Stephen Bush Vrs Anja Maria [2022] GHACC 67 (26 April 2022)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON FRIDAY, 26TH DAY OF APRIL, 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL- BAASIT SITTING AS AN ADDITIONAL CIRCUIT COURT JUDGE. STEPHEN BUSH VS SUIT NO.: C5/264/2022 PETITIONER ANJA MARIA AGNETA HERBST RESPONDENT JUDGMENT Background: Petitioner herein per the Petition filed at the registry of the court on the 19th of April, prays the court for the following reliefs; a. That the marriage celebrated on 1st December, 2010 between the parties be dissolved. b. Custody of all the issues to the marriage be granted to the Respondent. c. That both parties be mulcted in with the cost of the proceedings. The basis of the instant Petition is that the parties got married at Mauritius on the 1st December 2010 and cohabited at Mauritius but the Respondent currently resides in Germany whilst the Petitioner resides in Accra. The Petitioner is a British citizen resident in Ghana but the Respondent is a German citizen and there are 3 issues of the marriage aged 15 years; 13 years; and twin girls both aged 7 years. The Petitioner states further that both parties have deserted each other as they have not lived together as husband and wife for the past two years neither have not had any sexual relations for the past two years. Additionally, all attempts by family and friends at reconciliation have proved futile as both parties have on several occasions said they are no longer interested in the marriage. Stephen Bush vs. Anja M. A. Herbst Pursuant to a Court Order dated 5th April 2022, leave was granted to the Petitioner to serve the Notice of the Divorce Petition on the Respondent out of the jurisdiction through courier services and same was done but the Respondent failed to enter appearance to the Petition. All other court processes including court notes were also served on the Respondent outside the jurisdiction via courier services but the Respondent again failed to respond to any of the said court processes. The Court accordingly proceeded to hear the case of Petitioner since Respondent, after being duly served, failed to appear before the court to exercise the rights available to her as part of the civil practice in our Courts. Determination On the 15th of March 2023, the court heard the case of the Petitioner on oath as he gave a short evidence in chief. Consequently, the main issue for determination is whether the marriage between the parties ought to be dissolved. It is to be noted that, the failure of the Respondent to appear at trial to cross examine the Petitioner on the evidence or challenge same either in cross examination or by contrary evidence does not exonerate the Petitioner from satisfying the court that the marriage has broken down beyond reconciliation. The Standard of proof in civil case such as the present action is proof on the preponderance of probabilities. This is statutory and has received countless blessing from the Courts of this land in plethora of authorities. See sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323. Section 12(2) of NRDC 323 defines preponderance of probabilities to mean that 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. In the case of Adwubeng vs. Domfeh (1997-98) 1 GLR 282, it was held per holding 3 as follows: ‚...sections 11(4) and 12 of NRCD 323 Stephen Bush vs. Anja M. A. Herbst clearly provided that the standard of proof in all civil actions, without exception, was proof by a preponderance of probabilities‛. Similarly, it is trite that the failure of a party to deny a material averment constitute an admission of same and such implied admitted fact requires no further proof. As the Supreme Court in the case of Fori vs. Ayirebi and Other [1966] GLR 627 held ‚when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact‛. Analysis There is only one ground for dissolution of a marriage under the Act 367. Section 1(2) of the Matrimonial Causes Act, 1971 Act 367 states ‚The sole ground for granting a Petition for divorce shall be that the marriage has broken down beyond reconciliation‛. Petitioner therefore must satisfy the court of one or more of the instances listed under section 2(1) of Act 367 as proof that the marriage has broken down beyond reconciliation to be entitled to the relief of dissolution of marriage. Section 2(1) of Act 367 requires that a Petitioner must satisfy the court of one or more of the instances listed therein as proof that the marriage has broken down beyond reconciliation. The court also has to satisfy itself that the grounds for dissolution canvassed by the Petitioner falls within Section 2 of Act 367. The Petitioner testified among others that both he and the Respondent have not lived together as husband and wife for the past Two (2) years. This testimony falls within the provisions of Section 2 (1) (c) which states that ‘…for the purpose of showing that the marriage has broken down beyond reconciliation the Petitioner shall satisfy the Court … that the Respondent has deserted the Petitioner for a continuous period of at least two years immediately Stephen Bush vs. Anja M. A. Herbst preceding the presentation of the Petition’. The Petitioner testified further that both parties have on several occasions, informed family and friends who have tried to reconcile them but that they are no longer interested in the marriage and desire to be divorced. Petitioner’s ground for seeking dissolution of the marriage therefore falls under Section 2 (1)(f) of Act 367 which provides that for the purpose of showing that the marriage has broken down beyond reconciliation, the Petitioner shall satisfy the Court that ‘… the parties to the marriage have, after diligent effort, been unable to reconcile their differences’. Conclusion It is not in dispute that the parties have not lived together as husband and wife for the past Two (2) years neither have they had sexual relations for Two (2) years now. Additionally, attempts at reconciling the differences of both parties have been futile. The court therefore finds that the marriage between the parties celebrated on the 1st of December 2010 at Mauritius has broken down beyond reconciliation. The court hereby decrees the said marriage celebrated on the 1st of December 2010 dissolved this 10th day of May, 2023. Additionally, the Respondent herein shall have custody of all the children of the marriage with reasonable access to the Petitioner. There shall be no orders as to cost. PARTIES Petitioner Present Respondent absent COUNSEL Grace Togbor Esq. holding brief for Naa Odofoley Nortey Esq. for the Petitioner Stephen Bush vs. Anja M. A. Herbst H/H HALIMAH EL-ALAWA ABDULBAASIT CIRCUIT COURT JUDGE Stephen Bush vs. Anja M. A. Herbst 5