GENEVIEVE KESSE VRS DANIEL NII ADDOQUAYE (C5/306/2022) [2022] GHACC 349 (11 November 2022)

IN THE CIRCUIT COURT HELD IN ACCRA ON 11TH DAY OF NOVEMBER, 2022 BEFORE HIS HONOUR SAMUEL BRIGHT ACQUAH, CIRCUIT COURT JUDGE ======================================================================= GENEVIEVE KESSE H/NO. B/82/7 NII TEIKO STREET KANESHIE-ACCRA VRS DANIEL NII ADDOQUAYE TARKWA SUIT NO. C5/306/2022 PETITIONER RESPONDENT PARTIES WERE SELF REPRESENT ======================================================================= FINAL JUDGMENT ======================================================================== The Petitioner in this matter, GENEVIEVE KESSE is in court for only one relief. The dissolution of the marriage. The petitioner filed on 7th day of June, 2022 was served on the respondent on 8th day of June, 2022, but the search conducted at the registry of this court shows that the respondent has not filed any process despite all the Hearing Notices served on him. The respondent was ordered to file a pre-trial check list and setting down the matter for trial, both were complied. The court then ordered the both parties to file their respective witness statement simultaneously, which the petitioner complied and was served on the respondent, nothing again was heard from the respondent despite the numerous Hearing Notices. After series of adjournments and hearing notices without any sign of the respondent appearance, the court thereby gave the petitioner the green light to adduce evidence. The petitioner avers that the marriage between the parties was celebrated at Accra Metropolitan Assembly, Accra on 19th January, 2014, marriage certificate filed and marked as Exhibit A. that there is no issue in the marriage. That the couple lived together as husband and wife for thirteen months (13 months) at October, Accra. It is the case of the petitioner that, the parties have not lived as man and wife since 2015 and petitioner avers during this period is not having access to the respondent, showing the respondent has deserted the petitioner since 2015. Petitioner also claims that respondent is married to another woman. That respondent is an administrative officer for Medeama Football Club and now re-located to Tarkwa. That prior notice to respondent and she met respondent living under the same roof with a pregnant lady, and that compelled petitioner to return to Accused on that same day. Respondent don’t visit me, no communication, only to call me once after the Tarkwa episode to inform me to find myself a husband as he was no more interested in the marriage and went ahead to tell me to file a divorce petition. That respondent is …….bearing children whilst I remained single without a child. That the behavior of respondent has caused me pain, anxiety, embarrassment, shame and distress, hence the married has broken down beyond reconciliation. The respondent in this case DANIEL NII ADDOQUAYE has no story to tell since he never filed any process. In SARFO VRS DOMFEH (1977) 1 GLR 282 @ 295 ‚The standard of proof in civil trial is by jurisprudence of probabilities. NATIONAL DEMOCRATIC CONGRESS V ELECTORAL COMMISSION (2001-2002) 2 GLR 340 - -----of course, genuinely the plaintiff who seeks the declaration of claims and who must succeed on the strength of his own case and not on the weakness of the defendant, must fail in such a situation--- Even though the respondent in this case failed to appear in court, but it is not an automatic win for the petitioner, she should lead enough evidence to show that the marriage between the two parties has broken down beyond reconciliation as stated in section 1 (2) of the Matrimonial Causes Act 1971 (Act 367)---. The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. It is still the duty or the burden of proof is on the petitioner to satisfy the court that the marriage has broken down beyond reconciliation, dispute respondent’s absence in court. Section 2 of the same MCA, Act 367 also states: For the purpose of showing that the marriage has broken down beyond reconciliation. Section 2 (1) (a) That the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to line with respondent – This the petitioner avers that the respondent is staying under the same root with a pregnant woman, and a petitioner seeing this, respondent called her and informed her to find a man of her choice and that he has already moved on is a ……………..that respondent has really committed adultery – two opposite sex having sexual intercourse where the two parties could be married but not to each other. Clearly, since the marriage between the two parties still existing, respondent cannot go ahead and re-marry or having sex with that woman, a proof of section. 2(a) of MCA. (b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent – abandoning the matrimonial home since 2015 and also going ahead to remarry constitute an act which petitioner cannot reasonably be expected to live with respondent. (c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition – petitioner avers that respondent had abandoned her since 2015, this is more than two ears the land stipulates. (e) That the parties to the marriage have not lived at least five (5) years immediately preceding the presentation of the petition. The respondent is alleged to have lived with petitioner as a man and wife since 2015, enough to satisfy the law. (f) That the parties to the marriage have after diligent effort been unable to reconcile the differences – attempts were made to reconcile their differences but all failed. ASH V ASH (1972) 1 ALLER 582 --- In the instance, petitioner is required to adduce sufficient evidence in proof of section 2(1) of Act 367 to satisfy the court to rule that the marriage between the parties has broken down beyond reconciliation. KOTEI V KOTEI (1974) 2 GLR 173 – In order to succeed on a petition for a divorce, a petitioner has the burden on proving facts of the breakdown of the marriage. There must be existence of at least one or the above mentioned conditions justifying the exercise of a court’s discretion to dissolve the marriage. HAA V HALL (1962) 1 GLR 1246 – First the conduct must be such that a reasonable spouse in the circumstances and environment of these spouses could not be expected to continue to endure. Petitioner in this case, GENEVIEVE KESSIE has overwhelmingly satisfied the court that the marriage between the named parties in the petition has broken down beyond reconciliation exhibit ‘A’ being the marriage certificate is cancelled and divorce certificate is issued to the parties. The court also declares the parties to be single and can effective today 11th November, 2022 go ahead and marry any opposite partner of their choices. DECISION: MARRIAGE DISSOLVED H/H. SAMUEL BRIGHT ACQUAH CIRCUIT COURT JUDGE 5