ASARE VRS. ASARE (A4/24/23) [2024] GHADC 575 (15 August 2024)

1 CORAM: HER WORSHIP BIANCA GYAMERA-BEEKO MAGISTRATE SITTING AT THE DISTRICT COURT MAMPONG-AKWAPIM ON THE 15TH DAY OF AUGUST, 2024. ------------------------------------------------------------------------------------------------- SUIT NO. A4/24/23 BERNICE OFFEI ASARE ………….. PLAINTIFF VRS. KWAKU ANI ASARE …………… DEFENDANT Parties present. JUDGMENT By a petition filed on 7th September, 2023 before this court differently constituted, the Petitioner herein seeks the following reliefs: 1. An order of the court for dissolution of the ordinance marriage contracted by the parties on 27th April, 2014. 2. An order of the court for the Respondent to care for the child’s school fees, hospital bills and any other incidental expenses. 3. Maintenance of GHS 500.00 every month. The Petitioner is a teacher who lives at Mampong-Akuapem and the Respondent is a Graphic Designer residing at Mamfi-Akuapem. Their marriage produced one issue; Akyede Asare-Ani aged 8 years old. The Petitioner complains of unreasonable behaviour on the part of the Respondent and particularised same in her petition as follows: a. The Respondent has created a very tense environment for the Petitioner such that the Petitioner lives in pain and emotional grief; 2 b. The Respondent for two and a half years now has failed to provide the Petitioner her basic needs such as psychological needs and sex. c. The Petitioner says that the Respondent does not communicate with her and has demonstrated his clear intentions not to live with her as husband and wife. In addition, the Petitioner also averred that parties had not lived together as husband and wife for the past three years and that for this period, she and the issue of the marriage had been deserted by the Respondent. The Respondent did not file an answer to the petition. However at the first hearing, he was present in court and pleaded liable to the ancillary reliefs. The court therefore entered judgment for the Petitioner in respect of those reliefs. The sole issue for the court to determine after that was whether the marriage ought to be dissolved. The court therefore ordered the parties to file their witness statements for that question to be determined. Section 14 of the Evidence Act, 1975 (Act 323) provides that 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 the case of Serwah v Kesse (1960) GLR 227, the Supreme Court stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. They laid down the following tests for who bears this burden: “The best tests for ascertaining on whom the burthen of proof lies are, to consider first which party would succeed if no evidence were given on either side; and, secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued See Taylor on Evidence, s.365 quoted in Stroud, Judicial Dictionary (3rd. ed.) p. 1996.” Accordingly, the Petitioner bears the burden of persuasion in this matter as regards the petition and the Respondent bears the burden of persuasion as regards the cross-petition. 3 Section 11(1) of Act 323 explains the burden of persuasion as the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue. This being a civil matter, the parties are required to prove their cases upon a preponderance of probabilities in accordance with section 12 of the Evidence Act 1975 (NRCD 323). Under Ghanaian law, the sole ground for granting a divorce is that the marriage has broken down beyond reconciliation; section 1(2) of the the Matrimonial Causes Act, 1971 (Act 367). In order to prove that the marriage has broken down beyond reconciliation, section 2(1) of Act 367 requires that the petitioner satisfies the court of one or more of the following facts: (a) that the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the 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; or (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 consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, 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 has hinged her petition on sections 2(1)(b) and (c) of Act 367 and is therefore required to lead evidence to establish these grounds in order to succeed. The Petitioner’s testimony was merely a repetition of the averments contained in her petition. She called no witness to corroborate her testimony and offered no other pieces of 4 evidence. This unfortunately does not suffice. In the case of Majolagbe v Larbi [1959] GLR 190, Justice Ollenu, quoting his dictum in the case of Khoury and anor. V. Richter delivered on the 8th December, 1958 explained as follows: Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” I am therefore unable to find that the Respondent behaved unreasonably as she failed to offer any proof to substantiate this allegation. Fortunately for the Petitioner however, the Respondent in his witness statement admitted that for the past three years parties have not lived together as husband and wife. This relieves the burden on the Petitioner to lead evidence to prove same; see the Supreme Court decision of Re Asere Stool; Nikoi Olai Amontia iv (substituted by Tafo Amon ii v. Akotia Oworsika 111 substituted by Laryea Ayiku iii (2005-2006) SCGLR 637 where it was held as follows; Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct”. Consequently. I find that Petitioner has deserted the marriage for the past 3 years. On this basis, I am satisfied that the marriage has broken down beyond reconciliation and hereby dissolve same. I make no order as to costs. SGD. H/W BIANCA GYAMERA-BEEKO MAGISTRATE 4