BENETH KARIKARI AMOAH VRS ABENA NIMO AMOAH (C5/44/2022) [2022] GHACC 346 (10 December 2022)

IN THE CIRCUIT COURT HELD IN ACCRA ON 10TH DAY OF DECEMBER, 2022 BEFORE HIS HONOUR SAMUEL BRIGHT ACQUAH, CIRCUIT COURT JUDGE ========================================================= SUIT NO. C5/44/2022 BENETH KARIKARI AMOAH, 11 LINDERWOOD, STERLING, VIRGINIA, USA (SUING PER HIS LAWFUL ATTORNEY, CLEMENT AMOAH) CD21, AKIM AWISA VRS PETITIONER ABENA NIMO AMOAH HSE NO. A4163/10 DANSOMAN, ACCRA ===================================================== RESPONDENT ===================================================== PETITIONER’S RELIEFS FINAL JUDGMENT (i) That the marriage between the parties be dissolved. (ii) That the sum of Four Thousand Four Hundred and Ninety Eight United States Dollar, Ten Cents (US$4,498.10) or its cedi equivalent of Twenty- Two Thousand, One Hundred and fifty Seven Ghana Cedis Ninety Four pesewas (GH¢22,157.94) spent on Respondent during pendency of the marriage has been sufficient for her care and wellbeing during the period. (iii) That petitioner offers to pay Respondent the lump sum of Two Thousand Ghana Cedis (GH¢2000) as final settlement of the dissolution of the marriage. RESPONDENT’S CROSS PETITION (a) That the marriage celebrated between the parties on 3RD JAN 2019 be dissolved. (b) That the court orders the petitioner to pay Respondent a lump sum of One Hundred Ghana Cedis (GH¢100,000) as financial settlement and alimony for utterly wasting the time and good years of the Respondent (c) Any other order(s) as the court may deem fit. THE PETITIONER’S CASE That the parties got married on 3rd January 2019 at the Registrar General’s Department in Accra, where the parties co-habited in Dansoman, Accra for a period of less than three (3) weeks, and petitioner left for the United States of America where he was and still lives and works. It was the intention of the petitioner to let Respondent join her at the US, which intention was made clear to the Respondent and family. The petitioner was already enlisted in US Marine Force before he came down for the marriage, he was then staying at the single quarters where wives were not allowed to stay, so had to wait till the due time for Respondent to join him. But Respondent and her family misunderstood him and put pressure on him for respondent to join her there. It is also the case of the petitioner that Respondent gave his cell phone number to some of Respondent’s family members and friends who occasionally called petitioner to make unreasonable financial demands, and also Respondent and her mother also put pressure on petitioner to acquire a land in Ghana. The final blow was when petitioner became aware that Respondent’s family had taken his name to a fetish priest for consultation for petitioner to yield to their demands. These problems built up and communication broke down between the married couple, attempts were made by the father of the petitioner to bring them closer together but to no avail, hence the divorce. Petitioner also denied the issue of adultery being levelled against him by the Respondent, also stating that the adultery conduct of his was caused by the acts of Respondent and his family. The GH¢100,000 alimony is very outrageous and he can only pay five thousand Ghana Cedis (GH¢5,000) as alimony. RESPONDENT’S CASE According to the Respondent, Seventeen (17) days after the marriage ceremony on 3rd January 2019, petitioner left for USA. Respondent alluded to the fact that monthly remittances were paid her but challenged the duration petitioner was referring to. It is the contention of the Respondent that petitioner did not enter the marriage in good faith, and has wasted a good time and years of the Respondent, hence petitioner within the first year into the marriage started asking for a divorce, and no or little communication in 2020, and only few times they spoke, petitioner only talked of divorce. Respondent claims petitioner told her he had committed an adultery in USA. Respondent admitted petitioner once told her he wanted Respondent to join her in USA, but little was done to actualize this dream. It is also the case of the Respondent that the monthly remittances of Gh¢1000 a month was short lived and this has caused her so much stress and embarrassment as a married woman and he fell on her family members for financial assistance. Respondent also claims several attempts were made by her family to reconcile them but the family of the petitioner throated all the attempts the only time both parties met was when they presented the drinks for divorce customarily. The following issues are set down for trial. (1) whether or not the marriage between the parties has broken down beyond reconciliation. (2) whether or not the remittances paid to the Respondent by the petitioner is sufficient for her upkeep. (3) whether or not the Respondent is entitled to a financial settlement grant or alimony of One Hundred Thousand Ghana Cedis (Gh¢100,000). EVIDENCE DECREE 1975 (NRCD 323) Sections 10(1) For the purpose of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court 10(2). The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact by preponderance of the probabilities or by proof beyond reasonable doubt. 11(1) For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 12(1) Except as otherwise provided by law, the burden of persuasion requires a proof by a preponderance of probabilities. 12(2) “preponderance of Probabilities “means the degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. IN RE PRESIDENTIAL PETITION, AKUFO ADDO, BAWUMIA & OBETSEBI LAMPTEY (AKUFO ADDO CASE) (NO. 4) (2013) SCGLR (SPECIAL EDITION) 73, PER GBADEGBE JSC @ 464 – “As the case herein fought on evidence placed before us, our task on keeping with a long and settled line of authorities is to reach our own decision on all evidence on a balance of probabilities – See sections 10, 11, 12, 13, and 14 of Evidence Act, NRCD 323 of 1975. This being a civil case, the petitioners bear the burden of leading evidence on a balance of probabilities. At this point, I venture to say that the effect of the acts on which the petitioner’s rely to sustain their action is one that must turn a careful consideration of the applicable statutory provisions and so stated it would appear that our decisions turn out solely on facts but a mixed questions of facts and law. Our courts over the years determined several cases in which decisions are based on a consideration of mixed questions of facts and law and as such this case does not present to us a challenge that is historical in terms of the evaluation of evidence ----- SARFO V DOMFEH (1977) IGLR 283 at 295 “The standard of proof in a civil trial is by preponderance of probabilities” ZABRAMA VRS SEGBEFIA 91991) 2GLR 221 “A person who makes an averment or assertion which is denied by his opponent was under the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he assets can properly and safely referred. ELIZABETH OSEI V MADAM ALICE EFUA KORANG (CIVIL APPEAL NO. J4/27/2012) SC DATED 20TH FEBRAURY 2013 – “ Therefore unless the burden shifts, each party bears the burden of proof in respect of their claims” Section 1 of the Matrimonial Causes Act 1971 (Act 367) of Ghana stipulates that; the sole ground for granting a petition for a divorce shall be that the marriage has broken down beyond reconciliation and under section 2 of the same Act for the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts: Section 2(1) (a) That the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with respondent; or (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. (d) that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consent to the grant of a decree of divorce, provided that such consent, shall not be unreasonably withheld, and where the court may grant a petition for divorce under this paragraph notwithstanding the refusal; or (e) that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. The petitioner in his witness statement tried to justify the divorce by stating that, Respondent and his family had been putting unnecessary financial pressure on him as well as sending his name to a spiritualist for them to control his mind. But during the hearing of the divorce petition, he failed to justify same. One of the reasons given by the petitioner for the grant of the divorce petition which the court thinks was the major reason, was that petitioner claimed he had just lost interest in the marriage, so his family should see to the end of the marriage, and they also complied with the order from the petitioner, held a meeting which was supposed to reconcile the parties, but surprisingly handed over a divorce drink to the respondent’s family by petitioner signifying end to the marriage customarily. The couples only lived for seventeen days as married couples in Ghana after the marriage ceremony, only for the petitioner to leave for USA where he lived before the marriage. When petitioner needed the respondent for the marriage he flew down to witness the marriage himself, but when it came to the dissolution of same, he felt comfortable to appoint a lawful attorney to execute that job for him, especially the customary divorce which was done in a day. The marriage bond between the couples seems to be very weak because they lived together for only seventeen (17) days as man and wife. MENSAH V MENSAH (1972) 2 GLR 198-209 Holding 3 – In determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all circumstances constituting such behavior including the history of the marriage, it is always a question of fact. The conduct complained of must be weighty and mere trivialities will not suffice for Act 367 is not a Casanova’s character. The test was objective. KNUDSEN V KNUDSEN (1976) I GLR 204-216 CA – Holding 2 – The cross petition was based on section 2 (1) (b) under which the test to be applied in determining whether a particular petitioner could or could not reasonably be expected to live with the particular respondent is an objective one, and not a subjective assessment of the conduct and reaction of the petitioner. In assessing such a conduct, the court had to take into account the character, personality, dispensation and behavior of the petitioner as well as the behavior of the respondent as alleged and established in the evidence. The conduct might consist of act of sufficient gravity or of a persistent course of conduct or series of acts of different kinds none of which by itself might be sufficient but the cumulative effect of all taken together would be so. According to the evidence before the court, the desire for divorce stated by the petitioner is not weighty, but ten years after the marriage ceremony, developing a gradual but serious cracks in the marriage. The marriage itself has collapsed long ago. Section 2(1) (b) is satisfied. KOTEI V KOTEI (1974) 2 GLR 172 “In order to succeed in a petition for a divorce, a petitioner has the burden in proving facts of the breakdown of the marriage. There must be in existence of at least one of the above mentioned conditions justifying the exercise of a count’s discretion to dissolve the marriage. HALL V HALL (1962) I WLR @ page 1256 – CA PER DIPCOCK J – “First, the conduct must be such that a reasonable spouse in the circumstances and environment of these spouses could not be expected to continue to endure. Petitioner in this case living in USA and Respondent in Ghana, and these cracks have developed in the marriage over the years very difficult for the marriage to continue to exist, hence the court grants the dissolution of the marriage on the bases that petitioner has lost interest in the marriage. The next issue is whether or not the remittances sent to the respondent by the petitioner is sufficient for her upkeep. This issue is complex in nature. From the records Gh¢1000 monthly remittances was paid by petitioner to the respondent which according to respondent was stopped somewhere along the line. Before the court can satisfy itself with the issue, it must be aware of where the respondent was staying, standard of living of the place, prices of goods and services, the maintenance, was it for only respondent or other matters involving the period of time etc records which are not available to the court. Since respondent was able to survive the court will confirm it was reasonable but may not be necessary be sufficient. The last issue, whether or not respondent is entitled to financial grant or alimony of One Hundred Thousand Ghana Cedis (GH¢100,000). Section 20 of Act 367 20(1) The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu therefore or as part of financial provision as the court thinks just and equitable. OBENG V OBENG (2013) 63 GMJ 158 CA What is “ just and equitable” may be determined by considering the following factors; the income, the earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future, the standard of living enjoyed by the parties before the breakdown of the marriage, the age of each of the parties to the marriage. BARAKE V BARAKE (1993-1994) I GLR 635 @ 660 PER BROBBEY J – “On such an application, the court examines the needs of the parties and makes reasonable provision for their satisfaction out of the money, goods or immovable property of his or her spouse. AIKINS V AIKINS ( 1974) GLR 233 PER SARKODIE J – “The court was entitled under section 20 of Act 367 to order a lump sum payment ----The husband’s ability to pay was not merely to have physical cash but it could be determined by his ability to provide money by way of overdraft or loan and in the absence of full and frank information by the husband as to his financial provision the court was entitled to draw inference adverse to the husband as to his capacity” Comparing the two characters in this case, that is the petitioner and respondent, petitioner is way above the respondent in terms of wealth. He is ordinarily resident in USA worked with USMC and now a nursing student; as against the respondent who is in Ghana and financially weak. Also the petitioner may have some income which he didn’t disclose to the court, eg monthly allowances from the USMC for his service, scholarship at the Nursing School etc. petitioner is gradually preparing himself for the future, also the fact that his main reason for the divorce is that, “I am no more interested in the marriage”, abandoning the respondent in Ghana to struggle for herself, wasting some of her youthful years in Ghana, which she could have used to attract suitors and start producing children. However, in the case of respondent, no child yet, that long years of marriage has drastically reduced her market value for new suitors looking young woman to marry, but petitioner doesn’t lose anything. As the petitioner is saying he would pay only two thousand cedis (GH¢2000) increased to five thousand cedis (Gh¢5000), as against the respondent who is also looking for a figure around One Hundred Thousand Ghana cedis (GH¢100,000), lump sum the court therefore settled on Eighty Thousand Cedis (Gh¢80,000.00) to be paid by the petitioner to the respondent and this payment must be fully settled on or before three months after the judgment. DECISION: MARRIAGE DISSOLVED H/H. SAMUEL BRIGHT ACQUAH CIRCUIT COURT JUDGE 11