Amponsah Vrs Adjei [2021] GHADC 3 (5 October 2021)

1 IN THE DISTRICT COURT, HELD AT GOASO COURT ON THE 05TH OCTOBER,2021 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE PATRICIA AMPONSAH PETITIONER SUIT NO. A4/1/20 VRS AUGUSTINE KING ADJEI RESPONDENT OF 1286 WILSON AV. APT 606 TORONTO PER HIS LAWFUL ATTORNEY KWAME KYEI BAFFOUR PETITIONER PRESENT RESPONDENT ATTORNEY PRESENT NO LEGAL REPRESENTATION FOR THE PARTIES This is a proceeding under the Matrimonial Causes Act, 1971 of Act 367. JUDGEMENT The parties have married for four (4) years and the Petitioner lived alone in Nkaseim, whilst the Respondent live at Toronto Canada. There are no issues in the marriage. On the 22nd July, 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 dissolution of the marriage under the Ordinance Cap 127 between the parties. (2) An order for the court to compel the Respondent to a pay push off package of GHc15, 000.00 for wasting her time for the past four years of marriage. The Respondent filed an answer and prayed for the following orders and relief: (a) The Respondent says that it is the Petitioner who is seeking for dissolution of the marriage but not the Respondent, though if the Petitioner is ready for the dissolution of the marriage he has no objection. (b) The Respondent avers that if the Petitioner is insisting of dissolution of the marriage then the Respondent request for the following:- (i) (ii) Bible Promise ring (iii) Engagement ring (iv) Wedding ring (v) (vi) Television set Furniture and dining table (vii) Cost of sponsorship GHc12, 000.00 (viii) An order of the honourable court to compel the Petitioner to compensate or pay push off package / lump sum of money to the Respondent for the four year of marriage for no apparent reasons for divorcing him. 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 CASE The parties got married under the Marriage Ordinance (Cap 127) in Ghana in 2018. Thereafter the Respondent went to live in Canada and rented a room at Nkaseim for the Petitioner. They have been married for (4) years without any children. It was the case of the Petitioner that the Respondent always accused her of her barrenness and finds it intolerable to live with the Respondent. She contended that the Respondent failed to remit her or maintained her for the period of four years in the marriage and also refused to communicate with her for the past four (4) years. She further contended that for the past one and half years they have not had any sexual intercourse and the Respondent told her to go for police report to process her travelling documents on many occasions and told her to go for a loan to process it and she also refused it and the Respondent told her not to call him again and if she is not interested in the marriage then they should halt it and this led a four years long silence. According to the Petitioner she could no longer endure the situation again and then informed the family of the Respondent about it and both families strived hard to resolved the issues but to no avail. She contended that the couple also deem it expedient to resolve the issues of infertility that is confronting the marriage and added that the Respondent too has a very low sperm and very weak in bed and she always buys medicine whenever they wanted to make sex before the Respondent could sex her and that makes it very difficult for them to produce any children. They both come to the conclusion that with the rifles confronting the marriage it would be best they terminate the marriage as there is no happiness and love in the marriage hence the divorce. She told the court that she again called the Respondent after the long silence that she could not continue the marriage and sent his drinks to the father of the Respondent. THE CASE OF THE RESPONDENT ATTORNEY My brother is saying he is not causing the divorce and does not agreed or consent to the dissolution of the marriage. The marriage was sent to the pastor who blesses the marriage to resolve the marriage problem but the Petitioner refused for settlement. The Respondent is praying to the court for settlement as he opposed to the divorce. The Respondent added that he is no more collecting the Television, furniture and dining table from the Petitioner and also failed to talk about the GHc12, 000.00 used by the Petitioner. 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 Respondent is entitled to his relief sought c. Whether or not the Petitioner is entitled to a reasonable lump sum of GHc15,000.00? d. 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. Even though the Respondent was insisting the marriage continues but he is not living in Ghana to enable the Petitioner to even consider his plea. The evidence on record indicates that the parties even though got married in Ghana but never lived together under one roof as husband and wife when the Respondent proceeded to Canada and this has created a long silence and distance between the two hence the divorce as the Respondent has denied the Petitioner sex for a very long time. On the other hand, the Petitioner sees no future in the marriage and has lost all interest in the marriage due to the conducts of the Respondent. CROSS EXAMINATIONS BETWEEN THE PARTIES: Q In your evidence you made mention that the Respondent is impotent. I wanted to know you first had an engagement prior to the wedding. Are you telling the court that at that time of the engagement was the Respondent impotent? A. The penis was very soft so I always buy medicine before he can sex me. Q. Why did you allow him to wed you knowing very well that the manhood is very weak/soft? A. I was in love and was trying all means to make things work for us. I am not causing the divorce because of his weak manhood. Q. I wanted to know which father or the family member of the Respondent that you inform him about your intention to terminate the marriage? A. I informed Mr. Kojo Donkor the Respondent’s father and my father as well. Q Your father is in Europe, where actually did you inform him about your intention? A. I called him on phone and told him. Q. Why did you fail to inform me as I am a witness to the marriage? A. Because my- in- law was the senior most of the family hence the message. CROSS-EXAMINATION BY PETITIONER Q. If he says he is not consenting to the divorce. I am putting it to you that your brother the Respondent is living with his wife at the Europe? I put it to you. A. I don’t have wife at the Europe. If I have a wife there with me why should I come down from Europe with my papers to marry you? Q. Can you recall that your wife sister called me to threaten me that I am taking her sister’s husband from her? A. It is not true. From the above cross examinations its shows that the long silence and the Respondent inability to perform his conjugal right as a man has caused the dissolution of this marriage. The evidence on record shows that the Petitioner and the Respondent have not lived together as husband and wife since 2018 as the Respondent has deliberately denied the Petitioner his conjugal right. As I have stated above, the Respondent has also given his consent to the dissolution of the marriage and that she cannot reasonably be expected to live with the Respondent. In the circumstances, I rely on sections 2(1) (b) (d) & (f) of Act 367 and grant the dissolution of the marriage filed on 22nd July, 2020. Section 20(1) of Act 367 provides that: “The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.” 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 the circumstances, I make the following orders: a. The Petitioner is to give to the Respondent a Bible, Engagement ring, and Wedding ring or its equivalent of GHc2,100.00 per the receipt exhibit ‘A’ b. The Petitioner is to keep the Television set, furniture and dining table c. The Respondent is to pay a lump sum of GHc15,000.00 as a push off package for deliberately denying and delaying the Petitioner for the past four years of marriage without any cause. ……………………………………… HW MAGDALENE THOMPSON DISTRICT MAGISTRATE