BOATENG VRS BOATENG (G/WJ/DG/A4/69/21) [2022] GHADC 385 (13 October 2022)

IN THE DISTRICT COURT HELD AT WEIJA ON THURSDAY THE 13TH DAY OF OCTOBER, 2022 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS.), DISTRICT MAGISTRATE SUIT NO. G/WJ/DG/A4/69/21 ALBERT AMANKWA BOATENG PETITIONER VRS CYNTHIA BOATENG RESPONDENT PETITIONER IS PRESENT AND REPRESENTED BY NANA AKUA ASIEDUA APPIAGYEI MENSAH ESQ. RESPONDENT IS PRESENT AND REPRESENTED BY DOROTHY NEEQUAYE (MRS). JUDGMENT The petitioner filed a petition in this court on 21st July, 2021 seeking the following reliefs; 1. Dissolution of the Ordinance Marriage between the parties 2. Respondent be granted custody of the children 3. The petitioner shall be responsible for the upkeep and educational fees of the children. Respondent filed an answer to the petition on 12th April 2022 and cross petitioned for the following reliefs; a. That the ordinance marriage celebrated between the parties on the 24th day of August 2007 should not be dissolved b. That the petitioner be ordered to pay the respondent alimony of GHC100,000.00 in the event that the court determines that the marriage be dissolved. c. That the petitioner be ordered to pay for the necessaries of life of the four issues of the marriage including their education, healthcare, food, shelter and clothing. d. Costs for the cause. On 19th April 2022, parties were referred to the Court Connected Alternative Dispute Resolution (CCADR) for an amicable settlement of the ancillary reliefs. Parties were able to resolve issues regarding maintenance of the four issues of the marriage including payment of their educational expenses and health care. They were unable to agree on payment of financial settlement. The following issues were therefore set down for determination by the court; 1. Whether or not the marriage contracted between the parties has broken down beyond reconciliation 2. Whether or not respondent is entitled to alimony of GHC100,000.00 THE CASE OF THE PETITIONER It is the case of the petitioner that parties got married under the Ordinance in 2007 at the Registrar General’s Department in Accra and have four issues of the marriage namely Nana Yaw Boateng and Nana Yaa Sarfoa Boateng who are twins aged 13, Awurakua Afriyie Boateng aged 11 years and Nana Kwaku Amponsah Obrimpong Boateng aged 9. It is the further case of the petitioner that after the marriage, parties cohabited at Chantan, Kasoa and Bubuashie all in Accra. He added that parties separated in the year 2015 and have since then not lived as man and wife. According to the petitioner the parties’ marriage has broken down beyond reconciliation due to the unreasonable behaviour of the respondent and irreconcilable differences between the parties and prays for same to be dissolved. He particularized the unreasonable behaviour of the respondent as follows; 1. That the respondent is hot tempered and has attempted to stab him on several occasions during a misunderstanding between them 2. That the respondent has constantly disrespected him in the presence of people including her family members. 3. That respondent is fond of accusing him of engaging in extra marital affairs which always leads to misunderstandings between them 4. That respondent on several occasions has accused him of using the parties’ first son for money rituals to the extent that she made a public utterance that he uses human sacrifices and fake powers to manage the church he pastors 5. That respondent has constantly peddled false rumours about him, disgraced and embarrassed him in the presence of his church members, family and friends which led to lots of people leaving petitioner’s church due to the utterances of the respondent 6. That the respondent has with the help of her family members moved the church petitioner pastors from its location and have started using the same location for a church. Petitioner concluded that throughout the marriage, parties have experienced serious arguments and have been unable to agree on issues or live together peacefully as man and wife. THE CASE OF THE RESPONDENT The respondent denied the averments of the petitioner save that the parties got married under the ordinance on 24th day of August 2007 at the Registrar General’s department and have four issues of the marriage. It is the case of the respondent that on or around October 2009, the petitioner who is the founder and head pastor of Mountain of Faith Chapel brought home one of the female church members by name Cynthia Hogan to live with the parties’ in their matrimonial home at Chantang. The reason he gave was that the young lady did not have support so he wanted to support her to learn a trading which was catering. It is the further case of the respondent that unknown to her, the said Cynthia Logan and the petitioner were having an affair. According to her, one fateful day in May 2012, upon a tip off, she met her husband and Cynthia Logan in a room alone and when she confronted them, they did not deny cheating on her. Respondent added that after the incident, petitioner became very mean and abusive calling her a bad luck woman. She stated that on one occasion, she fainted as a result of stress and trauma and found herself on a hospital bed at Ankam Clinic at Darkuman. Respondent added that she supported her husband to pay for the catering course of Cynthia Hogan and used the family’s scarce financial resources for her graduation ceremony. According to her, she allowed her to accompany her husband to programmes only for her to pay her back by having an affair with the petitioner. She informed the court that the said Cynthia Hogan is heavily pregnant for the petitioner, a fact she finds difficult to bear. Respondent informed the court that on one occasion as a result of a misunderstanding between her brother and his sister, had her arrested and detained at the Kaneshie Police Station until the following day when she was bailed from the custody of the police by her uncle. Respondent admits that parties have not lived as a couple for some years now however she has not given up on the marriage and prays that the marriage is not dissolved as same has not broken down beyond reconciliation. Respondent informs the court that the petition for divorce has adversely affected the social and academic lives of the issues of the marriage. She however prayed that in the event that the court deems it wise to dissolve the marriage, her reliefs should be granted. BURDEN OF PROOF It is trite that the burden of proof will generally lie on the party asserting the affirmative of an issue, the absence of the defendant notwithstanding. Section 11 of the Evidence Act, 1975 NRCD 323 provides; (i)For the purposes of this decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Section 14 of NRCD 323 also provides that in a trial, the burden of proof may shift but 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. This principle of law is reiterated in the case of RE: ASHALLEY BOTWE LANDS; ADJETEY AGBOSU & OTHERS V KOTEY & OTHERS [2003-2004] SCGLR 420 where Woode JSC (as she then was) at page 444 stated; It is trite learning that by the statutory provisions of the Evidence Decree 1975,(NRCD 323) the burden of producing evidence in any given case is not fixed, but shifts from a party to party at various stages of the trial depending on the issues asserted and or denied. ISSUE ONE 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. Under Section 2(1) Act 367 for a marriage to be deemed to have broken down beyond reconciliation which is the only reason under Ghanaian law for the grant of a petition for divorce it is stated that; (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 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. Applying the law cited supra to the facts and the evidence led in this matter to the test under section 2(1) of the Matrimonial Causes Act 1971, Act 367, I find that the ordinance marriage celebrated between the parties on 24th August 2007 at the Registrar General’s Department in Accra has broken down beyond reconciliation on the fact of the separation of the parties for well over five years. ISSUE TWO With regard to issue two, respondent informs the court that she is no longer interested in a financial settlement and will therefore not pursue same. DECISION Having held that the marriage between the parties has broken down beyond reconciliation, the petition for the dissolution of the Ordinance Marriage between the parties is granted under Section 47 (1)(f) of the Courts Act 1993, Act 459. It is further decreed that the said marriage be dissolved. Accordingly, the Ordinance Marriage between Albert Amankwa Boateng and Cynthia Boateng celebrated at the Registrar General’s Department in Accra on 24th August, 2007 is hereby legally dissolved and a certificate of divorce is to issue to that effect. The Terms of Agreement of the parties dated 7th June 2022 is hereby adopted as consent judgment of this court and made a part of the final judgment of this court. I make no order as to costs. H/W RUBY NTIRI OPOKU (MRS.) (DISTRICT MAGISTRATE)