Adjei Vrs Samuel [2021] GHADC 1 (30 November 2021)

1 IN THE DISTRICT COURT, HELD AT GOASO COURT ON THE 30TH NOVEMBER, 2021 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE JENNIFER ADJEI PETITIONER SUIT NO. A4/2/2021 VRS ANTWI YEBOAH SAMUEL RESPONDENT PARTIES PRESENT PARTIES NOT REPRESENTED JUDGEMENT This is a proceeding under the Matrimonial Causes Act, of 1971 of Act 367(Cap 127). The parties married on 1st August, 2014 at Hwediem after the marriage they lived in Hwediem. There is one issue in the marriage: Namely: Nyiraa Yeboah James age …. 6 years On 29th October, 2020 the Petitioner filed legal proceedings seeking a divorce. The Petitioner prayers were formulated in the particulars of her petition as follows: (1) An order for the dissolution of the marriage under the Ordinance between the parties (2) An order for the Respondent to pay GHc20,000.00 as push off package (3) An order to compel the Respondent to maintain the child at GHc300.00 per month and provide all the necessaries (4) That the petitioner be granted custody of the child of the marriage with reasonable access to the respondent. The Respondent filed an answer and prayed for the following order and relief: That the marriage celebrated between the Parties on 1st August, 2014 be dissolved. When the case commenced the parties prayed the court for settlement but unfortunately the families of both parties could not settled the matter and case was referred back to court for continuation of the suit. Dotse JSC in GLADYS MENSAH V. STEPHEN MENSAH [2012] 1 SCGLR 391 quoted Lord Denning in his book, “LANDMARKS IN THE LAW” Butterworths, 1954, writes at page 176 “on change in attitude of the British people to Divorce” as follows: “….. There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can untie at will. Divorce is not a stigma. It has become respectable. One parent families abound.” The learned Supreme Court Judge stated that the above quotation can equally be said to be applicable to the Ghanaian society as well. THE PETITIONER’S EVIDENCE The parties got married under the Marriage Ordinance (Cap 127) six (6) years ago with one (1) child in the marriage and they lived as husband and wife at Hwediem-BA. According to the Petitioner she met the Respondent as a teacher and a student at the same time and she supported the Respondent in diverse ways during his schooling as he complained of financial handicap due to excessive loans he has taken. She contended that the Respondent was responsible during her pregnancy but he suddenly changed when the Petitioner went for maternity leave and spent the days with her mother at Obuasi. According to the Petitioner she had a message that the Respondent has started chasing women. When she returned from her mother’s place one night as they were all sleeping the Respondent’s phone belled continuously and this made her to answer to the call without the notice of the Respondent who was fast asleep and the voice was a female voice so she checked the number and the name of the caller was Mavis. According to the Petitioner she called the caller in the morning at her office to warn her to desist from calling her husband late for he is a married man but the person who answered the call the Mavis’s mother and she gave the call to Mavis but upon hearing her voice then hang up the phone. She further contended that the Respondent returning from work warned her not to touch his phone again and again warned her never to call the caller Mavis again for that Mavis was the one visiting him in the house during her absences and this has even created problem between him and the house tenants. She said that Respondent has shirked his responsibility during her delivery due to his education and when she returned to her matrimonial home she assumed responsibilities in the house and this made the Respondent concluded that the Petitioner disrespect him because she was acting as a bread winner in the house. According to the Petitioner the Respondent one day did not pass the night in his matrimonial bed and went and spend the night with the other girl. The Respondent again travelled to Goaso for five (5) days and she chanced on his dirty cloths and realized that one of his underwear (singlet) smells sperm. She further stated that the husband had never washed ever since they got married but that very day the Respondent did the washing without allowing the Petitioner to do the washing. She contended that due to the amount of loans the Respondent owes at the bank had made him failed to contribute or maintain the house and she the Petitioner has taken up the mettle. She said the Respondent one day demanded money for the baby’s food and she refused him and this brought some misunderstanding between them and the Respondent slapped her and her cover cloth in that morning dropped down and she stood there naked and she also got furious and picked a kitchen stool and hit the Respondent and then reported him to his church elder but Respondent pleaded with her not to but unfortunately she had already reported him and they came to advise them. She stated that the Respondent since 2017 to 2021 that is five (5) years now had never had any sexual intercourse with her. She would like to forgo the push off package. THE RESPONDENT EVIDENCE We were all staying together at Siechem after the marriage and it was the Petitioner who was taking care of the house as he was a student and also supporting him in his education. The Respondent testified that the problem started due to the Petitioner’s attitude of always taking their marriage affairs to her mother and any persons she knew and this marred the spirit of the marriage as marriage issues are to be kept discreet but not to be in public domain but Petitioner doesn’t like it that way for problems in their marriage to be resolved secretly and amicably but always prefer to be in the public domain. He then invited his mother-in-law to the house for resolution of their problems but this rather turned matter worst after the Petitioner’s mother had gone. According to the Respondent because of his schooling, life became hard and this corroborated the Petitioner’s assertion that he one day demanded money for the baby’s food and the Petitioner waded on him and he also slapped her and she became naked and shouted to create pandemonium and this brought people to the scene and Petitioner also hit him with a kitchen stool and later reported the incident to her elders at church and they came to settle the issue and Petitioner told them that he has raped her and this has taken the love and desire he had for the Petitioner and ever since had stopped having sexual intercourse with her for the past five (5) years. Thereafter the Petitioner packed her belongings from the matrimonial home and went to spend one month and two weeks with her mother alleging that she is on leave. After her returned then brought a letter to him that she has been transferred to Nkrankrom near Nkasiem. He started visiting her and one day on his usual visit involved in an accident and spent the days in his father’s house during his sickness and the Petitioner never visited him in that house stating that, that place is not their matrimonial home. According to the Respondent the Petitioner rained insults and curses on him that he had slept with another woman on their matrimonial bed and therefore brought her church elders to show them the bed. He tried to resolve such issues confronting the marriage but the Petitioner would not allow that and continue to sell information about their marriage to anyone she come across with or free with him or her. The Petitioner again called the Respondent’s father around 8.00p.m. that she is no more interested in the marriage and told him that even if the Respondent is clothed with gold gadget she will not marry him again and has repeated such words to the Respondent severally times. The legal issues that fall for determination are as follows: a. Whether or not the marriage has broken down beyond reconciliation. b. Whether or not the Petitioner is entitled to a reasonable lump sum of GHc20,000.00? c. Whether or not the Petitioner is entitled to the reliefs sought. Section 14 of the Evidence Act, 1975 (NRCD 323) which regulates the reception and evaluation of evidence provides as follows: “….. 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”. Before I examine the evidence adduced at the trial, it is pertinent to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) as follows: Sections 2(1)(b),(d) & (f) and (3) of Act 367 provides as follows: “2(1) 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 fact: (b) that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent; (d) that the parties to the marriage have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to the grant of a decree of divorce (f) that the parties to the marriage have, after diligent effort, they unable to reconcile their differences. (3) notwithstanding that the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a petition for divorce unless it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation." In MENSAH V MENSAH [1972] 2 GLR 198, Hayfron-Benjamin J. (as he then was) held that: “… it is 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 has broken down will not be enough…” In the present suit, both parties have stated during trial that the marriage has broken down beyond reconciliation and they cannot live with each other anymore because there is no cordiality in the marriage ever since the Petitioner reported the Respondent of raping her to her church elders. The evidence on record indicates that the parties even though got married and lived together as husband and wife under one roof until the Petitioner had a transferred to Nkrankrom near Nksiem for some years and this separated them prior to the Respondent’s having an accident that finally created distance between the two. On the other hand, the Respondent has lost interest and love in the marriage due to the persistent behavior of the Petitioner always broadcasting her marriage problems to her mother and people around her. Respondent has also denied the Petitioner his conjugal right for past five years. As I have stated above, the Respondent has also given his consent to the dissolution of the marriage and that he cannot reasonably be expected to live with the Petitioner. In the circumstances, I rely on sections 2(1) (b) (d) & (f) of Act 367 and grant the dissolution of the marriage filed on 29th October, 2020. Article 16 of Universal Declaration of Human Rights states:- “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to form a family; they are entitled to equal rights as to marriage, during marriage and at its dissolution”. In determining whether to grant custody to the Petitioner or Respondent, it is said that the welfare of the child should be the fundamental or paramount consideration. This principle has been given statutory backing in all the statutes relating to children in this country and case laws including GRAY V GRAY [1971] 1 GLR 422 and BECKLEY V. BECKLEY [1974] 1 GLR 393. Also, in the case of ATTU V. ATTU [1984-86] GLR 745, Brobbey J (as he then was) held as follows: “In this country, there can be no permanent or immutable order of custody because the Matrimonial Causes Act, 1971 (Act 367), per section 27 (1) empowers the court to rescind or vary any order of custody of any child as it thinks fit. There is no precondition on the rescission or variation, save that it should be made in the best interest of the child concerned”. The child in the marriage is already in the custody of the Petitioner. However the Petitioner in her evidence adduced that she does not need any push off package from the Respondent. I therefore grant her prayer. I make the following orders: a. The Petitioner should continue to have custody of the child of the marriage (Nyiraa Yeboah James 6 years) and reasonable access to the Respondent during vacations and returns him a week to the reopening of the school. Respondent can have communication with the child any time he wants to. b. The Respondent would continue to pay the school fees and medical bills of the child of the marriage and also provide him educational needs and provide all necessaries of life. c. The Respondent to maintain the child at GHc300.00 per month into court starting from November 2021. ……………………………………… HW MAGDALENE THOMPSON DISTRICT MAGISTRATE