Paintsil Vrs Paintsil [2022] GHADC 286 (23 November 2022)

IN THE DISTRICT COURT, ABURA DUNKWA, CENTRAL REGION OF GHANA ON 23RD NOVEMBER, 2022 BEFORE HER WORSHIP, JULIANA S. P. MENSAH, ESQ. NAOMI SAM PAINTSIL … PETITIONER SUIT NO. A4/59/22 HSE NO. 2BLK8 ABURA DUNKWA VRS. BRIGHT E. SAM PAINTSIL … RESPONDENT UNKNOWN HSE NO. ABURA DUNKWA PARTIES: - Present JUDGMENT The Petitioner, a seamstress and the Respondent, an electrician, got married on 13th July 2002 under the Marriage Ordinance (Cap. 127) and cohabited in Abura Dunkwa. They have three issues: Faith Sam Paintsil, Andrews Sam Paintsil and Favour Sam Paintsil aged 19, 16 and 10 years respectively. On 14th July 2022, Petitioner commenced the instant suit praying for a dissolution of their twenty years marriage and for custody of all the children. NAOMI S. PAINTSIL v. BRIGHT E. S. PAINTSIL - SUIT NO.:A4/59/22 The petitioner avers that about seven years ago, Respondent made several unfounded allegations of infidelity against the petitioner which resulted in numerous misunderstandings between the parties. Respondent forced Petitioner out of their matrimonial home for about a year. During this period, family members of both parties intervened for an amicable settlement but were unsuccessful. Petitioner avers further that about five years ago Respondent completely ejected Petitioner from their matrimonial home and subsequently the marriage was customarily dissolved. It is Petitioner’s averment that Respondent has caused Petitioner much distress and embarrassment. In answer to the petition and a cross-petition, Respondent admitted the allegations against Petitioner and added that they were justified as evidence of Petitioner’s infidelity was disclosed to her sister. The sisters apologised and pacified the Respondent and pleaded with the Respondent to keep the affair a secret. Respondent contends that, just when he got the impression that Petitioner had repented of her ways, he rather found out that Petitioner was steep into an extramarital affair. Respondent denied that he evicted Petitioner from their matrimonial home and said Petitioner rather left the home unceremoniously. He again denied that he had behaved in an unreasonable manner towards Petitioner. Respondent admitted that the parties have lived apart for seven years and that attempts by their Reverend Minister, church elders and respectable friends to reconcile the parties failed. Respondent, therefore, cross-petitions that the marriage between the parties be dissolved and that the Petitioner be granted custody of the children as she has prayed. NAOMI S. PAINTSIL v. BRIGHT E. S. PAINTSIL - SUIT NO.:A4/59/22 ISSUES 1. Whether or not the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with her. 2. Whether or not the Petitioner has behaved in such a way that the Respondent cannot reasonably be expected to live with him. 3. Whether or not the marriage between the parties has broken down beyond reconciliation. THE LAW Section 1(2) of The Matrimonial Causes Act, 1971 (Act 367) provides that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Section 2(1) says 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:— (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 NAOMI S. PAINTSIL v. BRIGHT E. S. PAINTSIL - SUIT NO.:A4/59/22 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. 2(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, the court held in holding (2) “Act 367 seems to draw a distinction between appearance and reality, in that a petitioner after proving one of the facts enumerated in section 2(1) is deemed to have shown that the marriage has broken down beyond reconciliation; but by section 2(3) the court is directed to conduct an inquiry to find out whether in truth it has done so. The court has then to consider all the evidence, including what it has found upon its inquiry and, if satisfied that the marriage has already broken down, decree a divorce.” EVIDENCE Before the trial began, this court gave the parties the opportunity to attempt reconciliation under section 8 of the Matrimonial Causes Act, 1971 (Act 367) but their attempt failed. The Petitioner testified that the parties got married on 13th July 2002 at the Westley Methodist Church, Abura Dunkwa and have been blessed with three children. The parties enjoyed a peaceful marriage until about seven years ago when Respondent made unfounded allegations of infidelity against Petitioner and totally denied her sex for those years. Attempts by both families to reconcile the parties have been unsuccessful. NAOMI S. PAINTSIL v. BRIGHT E. S. PAINTSIL - SUIT NO.:A4/59/22 Respondent in his evidence, simply confirmed Plaintiff’s claims that the parties have lived apart for about seven years and have not had sex since the time of the revelation of Petitioner’s unfaithfulness about seven years ago. Curiously, the parties refused to cross-examine each other during the trial and did not call any witnesses to testify. ANALYSIS OF THE ISSUES There are three issues to be determined by the court but I will address them together. EVIDENCE ACT, 1975 (NRCD 323) Section 14 states Except 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 law, a party alleging a fact is required to convince the court that the allegation is true and one of the ways in convincing the court is through cross-examination. But where a party fails to cross-examine, the allegation is deemed admitted. There are a plethora of authorities on this just I have pulled out just three. In Fori v. Ayirebi and Others [1966] GLR 627, the Supreme Court through Ollennu J. S. C. held in holding (6) thus: “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.” In Danielli Construction Ltd. v. Mabey & Johnson Ltd [2007-08] 1 SCGLR 60 at 65 Ansah JSC held: “The Plaintiff company did not cross-examine the witness of the defendant company in the witness box when he gave the evidence … the inference was that it admitted the import of the evidence.” NAOMI S. PAINTSIL v. BRIGHT E. S. PAINTSIL - SUIT NO.:A4/59/22 And in Ashanti Goldfields Co. Ltd. v. Westchester Resources Ltd. [2013] 56 GMJ 84 CA at 128 the Court held that where the evidence of a witness is unchallenged in cross- examination, it is deemed to have been admitted by the other side. In the case herein, both parties failed to cross-examine each other. The effect is that their claims against each other are deemed admitted. In Addo v. Addo [1973] 2 GLR 103, at 105 Sarkodee J. in holding 1 the court said “It is now settled that a wife has a right to the consortium of her husband and these rights are reciprocal.” It is noted that the judge used the term right, meaning an entitlement that ought not to be denied in marriage. I would refer to the learned author William E. Offei’s book on Family Law in Ghana (3rd ed.), page 179, where he quoted Bromley on Family Law (6th Ed) p. 114 “If one spouse […] willfully refuses to have intercourse at all, the other will be entitled to withdraw from cohabitation without being in desertion and may charge the guilty party with constructive desertion. A course of conduction of this sort would also enable the spouse suffering as a consequence to establish by such behavior that he (or she) could not be reasonably expected to live with the other.” In the case herein, I find established on the evidence that Petitioner committed adultery and Respondent has denied Petitioner sex for over seven years. I find again that the parties have not lived as husband and wife for the past seven years and attempts to reconcile them have failed. From the foregoing, it is obvious that more than one of the conditions stated in section 2(1) of Act 367 has been fulfilled grounding a conclusion that the marriage between the parties has broken down beyond reconciliation and therefore can be dissolved as prayed by the parties. NAOMI S. PAINTSIL v. BRIGHT E. S. PAINTSIL - SUIT NO.:A4/59/22 I hereby consequently declare dissolved, the marriage celebrated between the Petitioner and Respondent herein, on 13th July, 2002 under Cap 127. The Marriage Certificates with licence numbered BS 0655239 issued by the District Co- ordinating Director, Abura Asebu Kwamankese District, Abura-Dunkwa dated 15th January 2002 and Certificate No. ADMC/011/2002 issued by the Methodist Church at Abura Dunkwa and dated 13th July 2002 are duly cancelled. The Petitioner is to have custody of the three children with reasonable access to the Respondent. No order as to cost. H/W Juliana S. P. Mensah, Esq. District Magistrate NAOMI S. PAINTSIL v. BRIGHT E. S. PAINTSIL - SUIT NO.:A4/59/22 7