NUBUOR VRS DOMPREH (C5/83/23) [2023] GHACC 802 (22 December 2023)

IN THE CIRCUIT COURT “B”, TEMA, HELD ON FRIDAY THE 22ND DAY OF DECEMBER, 2023, BEFORE HER HONOUR KLORKOR OKAI-MILLS, CIRCUIT COURT JUDGE ALICE NUBUOR ----- PETITIONER VRS. TONY OBENG DOMPREH ----- RESPONDENT SUIT NO. C5/83/23 PARTIES PRESENT MIEZER MEA ALLEAH, ESQ. HOLDING THE BRIEF OF OWUSU ADOKO, ESQ. FOR THE PETITIONER PRESENT JOSEPH GYAMFI, ESQ. FOR THE RESPONDENT PRESENT JUDGMENT FACTS: The petitioner and the respondent got married under Part III of the Marriages Act, (1884-1985) Cap 127, on 28th December, 2016, at the Prince of Peace Presbyterian Church, Community 25, Tema. After the marriage, the parties cohabited at Community 8, Tema. There are two issues to the marriage called Frimpomaa Akosua Obeng-Dompreh aged 5 years and Afrakoma Afia Obeng-Dompreh, 2 years old. There has not been a previous proceeding prior to the filling of this petition. On 27th January, 2023, the petitioner filed the instant petition for divorce alleging that the marriage between herself and the respondent has broken down beyond reconciliation and prayed the court for the following reliefs; a. An order that the marriage celebrated between the petitioner and the respondent on 28th December, 2016 be dissolved. b. That the respondent be granted custody of the child with access to the petitioner. c. An order that the custody of the children of the marriage be granted to the petitioner, with visiting rights to the respondent. d. An order for the respondent to maintain the children, pay the school fees, health bills and part of the accommodation cost of the children. e. That the respondent be ordered to pay costs of and incidental to this suit. The respondent entered appearance, filed an answer to the petition and cross-petitioned as follows; a. That the marriage between the parties be dissolved as he has not done anything to deserve divorce as alleged by the petitioner. b. That the respondent has dutifully paid his children’s school fees, health bills, general maintenance bills and other bills till date even as he does not know where petitioner has taken them to and will continue to do same whether ordered by the court or not. c. That the petitioner be ordered to pay all respondent’s costs and legal fees in this frivolous suit. THE CASE OF THE PETITIONER The petitioner avers that the marriage celebrated between the parties has broken down beyond reconciliation owing to the fact that respondent has committed adultery and has also behaved in a manner that is unreasonable for the past 7 years and cannot reasonably be expected to live with respondent. According to the petitioner, on her allegation of adultery on the part of the respondent, she particularized the following: a. That the respondent is cohabiting with a different woman in Kumasi. b. That the Respondent constantly uses the lady he is cohabiting with in Kumasi to taunt the Petitioner. c. That the Petitioner saw another woman in the Respondent’s car and upon approaching the car and the respondent sped off; the speeding car nearly knocked the petitioner and her little baby strapped at her back. d. That the petitioner later received calls from the woman she saw in the respondent’s car with the said lady claiming that she was in an amorous relationship with the respondent. On her averment that the respondent has behaved in such an unreasonable manner, she stated that the respondent had a child from a previous relationship without informing petitioner about same prior to their marriage and respondent physically assaults the petitioner whenever there is a little disagreement and his has been happening from the time they got married. Petitioner also stated that respondent stopped eating food she prepares and respondent complains about everything she does. Petitioner indicates that on one occasion, after assaulting her, he threw her out of the house and she had to find shelter with a neighbor. Petitioner adds that respondent beat her one day till she was carried to the hospital but respondent’s father and respondent usually stays out late till about dawn without informing her. Petitioner further adds that respondent uses offensive and unprintable words and threatened to constructively evict her from the marriage by mistreating her. On property issue, the petitioner avers that that during the subsistence of the marriage, the parties acquired various movable and immovable properties, but the petitioner is not interested in any of these properties. Petitioner also stated that all attempts by friends and family members to reconcile the differences between the parties has proved futile, largely due to the respondent’s lack of cooperation and the constant posture. THE RESPONDENT’S CASE The respondent is agreeable that their marriage has broken down beyond reconciliation, though he was shocked to have been served with the petition. The respondent denies that petitioner ever saw him with a woman in his car and states that the woman in the car was his secretary. He indicates that petitioner sees every woman respondent associates with, including respondent’s workers, only in terms of cohabitation. In response to the assertions of adultery committed by respondent, respondent denies same and avers that he does not cohabit with any woman in Kumasi. The respondent further adds that the marriage has not attainted its 7-year mark; consequently, petitioner cannot submit that he has behaved in an unreasonable manner for the past 7 years. The respondent further avers that for reasons only known to the petitioner, petitioner is merely fabricating stories to make respondent appear unreasonable. According to him, petitioner always knew about his child and that during marriage counselling, petitioner was asked if she would accept and take care of respondent’s child and she answered in the affirmative. Respondent adds that he has suffered assaults at the hands of the petitioner and he has borne all with love and care hoping that with the passage of time, the petitioner would change from her tempestuous temper. Respondent states that petitioner has attacked him with a knife in the past. He denies behaving unreasonably On the issue of property, the respondent further avers that the movable and immovable properties were acquired before he married the petitioner and since they got married, they handle their finances separately. Respondent avers that on the contrary, it is rather the petitioner who has scuttled efforts by their church leaders and family and friends to reconcile them and that petitioner is buoyed on by her auntie who fully supports petitioner’s violent behavior ill-treatment of respondent. He also adds that since 17th October, 2022, he does not know where petitioner has relocated to with the children and further that it is the petitioner’s hot temper and her unreasonable appreciation of what a marriage is or ought to be that has occasioned ill- feeling and tension. SETTLEMENT During the pendency of the petition for divorce, the parties with the assistance of their lawyers attempted settlement and filed terms of settlement on the ancillary issues on 7th December, 2023 for the adoption of same by the court in the event that the court decrees for the dissolution of the marriage. The parties having settled on the ancillary reliefs, this court is bereft of jurisdiction to determine same. Consequently, the sole issue for the consideration of the court is the dissolution of the marriage. LEGAL ISSUE Whether or not the marriage between the petitioner and the respondent has broken down beyond reconciliation. ANALYSIS Under section 1 of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, a petitioner is required to prove one of the facts set out in section 2(1) of Act 367 is required to establish one of the six (6) facts enumerated in section 2(1) of Act 367, namely; adultery, unreasonable behaviour, desertion, failure to live as man and wife for two years, failure to live as man and wife for five years and irreconcilable differences. Where a respondent also cross-petitions for divorce as in the instant case, the respondent bears the burden to prove the allegations contained in the cross- petition on a balance of probabilities. In the case of Donkor v. Donkor [1982-1983] GLR 1158, the High Court, Accra, per Osei-Hwere J, held that: “The Matrimonial Causes Act, 1971 (Act 367), does not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution of their marriage just for the asking. The petitioner must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act for the purpose of showing that the marriage has broken down beyond reconciliation. Section 2(3), which is pertinent, provides that even if the court finds the existence of one or more of those facts it shall not grant a petition for divorce unless it is satisfied that the marriage has broken down beyond reconciliation…the petitioner is under a duty not only to plead any one or more of those facts in section 2(1) of the Act but he must also prove them. Equally the court is under a statutory and positive duty to inquire so far as it reasonably can, into the charges and counter-charges alleged. In discharging the onus on the petitioner, it is immaterial that the respondent has not contested the petition, she must prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage has irretrievably broken down.” The parties and their lawyers are also mandated to inform the court of all attempts at reconciliation and the court shall refuse to grant a petition for divorce if there is a reasonable possibility for reconciliation. See Section 2(3) of Act 367. In the case of Adjetey& Anor. v. Adjetey [1973] 1 GLR 216, the court held in its holding 2 that: “On a proper construction of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367), the court could still refuse to grant a decree even where one or more of the facts set out in section 2 (1) had been established. It was therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage had broken down beyond reconciliation would not be enough.” The petitioner in the instant petition set out to prove fact 2(1)(a) namely adultery and also under 2(1)(b); "that the respondent has behaved in a manner that it is unreasonable to expect petitioner to continue to live with respondent as husband and wife. Petitioner’s case on adultery of respondent Petitioner testified at paragraph 16 of her witness statement that the respondent is currently: “cohabiting with another woman in Kumasi, and before he left me to cohabit with the lady in Kumasi, he constantly taunted me with the lady as he always compared me with the Kumasi lady and claimed that the lady was far better than me in every aspect.” The petitioner further testified again at paragraph 17 that: “My Lord, sometime in 2020 I saw the Petitioner with another woman in Tema in the Respondent’s car and upon approaching the car, the Respondent sped off; the speeding car nearly knocked me and may little baby who was strapped at my back at the time.” The petitioner in addition to her further averment at paragraph 18 that she also received calls from the woman she saw in respondent’s car confirming that she is the respondent’s boyfriend, did not lead any evidence to substantiate her claim of adultery on the part of the respondent. Petitioner did not provide any shred of evidence to prove same; the court therefore finds that her claim of adultery against the respondent has not been proven and same falls. Petitioner’s case on unreasonable behavior by respondent The petitioner testified the respondent has been physically abusive towards and has been verbally abusive towards her in the presence of others. She added that she has not known peace since the parties got married. Petitioner states that she is always in apprehension of the respondent due to the fact that any issue they discuss generates into her being beaten by the respondent. To substantiate her claim that respondent has used abusive language on her, she attached a WhatsApp chat marked as Exhibit ‘B’ where the respondent used the phrase: “you are toilet” on her. According to petitioner, she is apprehensive that respondent may abduct the children and ran away with them, just to spite her and she attached another WhatsApp chat marked Exhibit C where respondent states: “Please if you do not agree to this, then you will not see the kids again.” The same exhibit shows another statement from the respondent to petitioner that: “I will force you. You will not see them again.” The petitioner testified that on some occasions she has had to sleep on the porch of their matrimonial home as respondent threw her out after they had disagreements. She avers that she is not interested in acquiring any of their properties they jointly acquired just to have her peace of mind and ability to live her life again without any threat of physical or verbal abuse. Additionally, the petitioner testified that despite diligent efforts made by their families and counselors, they have not been able to reconcile their differences due to the intransigence of the respondent. Based on the foregoing, they cannot continue to live as husband and wife and that the marriage has broken down beyond reconciliation. The respondent on his part testified that petitioner has tried to portray him as an adulterer unsuccessfully and he vehemently denied that he is cohabiting with another woman in Kumasi. According to respondent, their marriage had its share of occasional disagreements like most but what is more is that petitioner ever pulled a knife on him. The respondent testified that there has not been any joint acquisition of property between them and that as professionals, they manage their money as individuals; therefore, he is not surprised that petitioner indicated that she does not want anything from respondent, she just wants to leave. Respondent blames petitioner for the failure of all intervention staged by their friends and families in an effort to reconcile the parties. Respondent adds that though he is unaware of where his two children currently reside with petitioner, he continues to pay their fees and other ancillary costs towards the upbringing of the children as he is yearning to see them. He therefore prayed the court for the dissolution of the marriage. From the evidence led by the parties, the whole matrimonial history of the marriage is testament to the fact that the marriage has broken down beyond reconciliation. On the particular issue of the petitioner keeping the children away from the respondent, I find that the petitioner may be doing this because of the fear of the children being taken away by the respondent as the Whatsapp message exhibit C evidenced, so this is not unreasonable behavior on the part of the petitioner in the circumstances. I find that both parties have behaved unreasonably, the respondent more so. The petitioner allegedly pulling a knife on the respondent. The respondent also constantly physically and verbally abusing and assaulting the petitioner, threatening her by text messages and throwing her out of the marital home. Also, the parties after diligent effort have been unable to reconcile their differences. There has been a complete cessation of consortium vitae. When the parties met to settle the issues, they agreed that the marriage has broken down and should be dissolved. On the totality of the evidence led, I hold that the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. CONCLUSION In conclusion, I hold that the marriage between the petitioner and the respondent has broken down beyond reconciliation owing to unreasonable behavior by both parties, but particularly on the part of the respondent. I accordingly grant the petition and the cross-petition for divorce and enter the terms of settlement filed by the parties on 7th December, 2023 as consent judgment in the following terms; 1. I hereby grant a decree for the dissolution of the marriage celebrated between the petitioner and the respondent on 28th December, 2016. 2. The Registrar of the court shall cancel the original copy of the marriage certificate No. TMA/RM/ 1705/2016. 3. The terms of settlement signed by the parties and their respective lawyers dated 6th December, 2023 and filed in the Registry of this court on 7th December, 2023, is hereby adopted as consent judgment on the ancillary reliefs. Per the parties own terms; a. That petitioner shall have custody of the two children of the marriage by name Frimpoma Akosua Obeng Dompreh, aged 5 years and Afrakoma Afia Obeng Dompreh, aged 2 years be given to the petitioner and respondent will have right of visitation and access to the children anytime he is within the jurisdiction, or at least once in a fortnight. b. That the parties will be jointly responsible for the upbringing and development of the children in the following way: i. Education: Fees and other charges shall be borne by the respondent. ii. Health and wellbeing: Hospital bills and other health related charges shall be borne by the respondent. iii. Feeding of the children: a monthly payment of GHC2,000 (negotiable) will be made by the respondent for the children’s upkeep in weekly payment of GHC500.00. iv. That the respondent shall bear the cost of rent for the children. The said cost of rent shall be paid in a year in advance. v. Clothing shall be the joint responsibility of the parties. vi. Each party shall bear their own costs. 4. No order as to costs. H/H KLORKOR OKAI-MILLS (CIRCUIT COURT JUDGE) (SGD) 12