Belinda Klenam Akyea Vrs Edward Kofi Buabeng Assan [2022] GHADC 243 (15 December 2022)

IN THE TDC DISTRICT COURT HELD AT TEMA ON THURSDAY, THE 15TH DAY OF DECEMBER 2022 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE SUIT NO. A4/19/22 BELINDA KLENAM AKYEA --------------- PETITIONER GBESTILE VRS EDWARD KOFI BUABENG ASSAN --------------- RESPONDENT MATAHEKO - AFIENYA PARTIES: PRESENT COUNSEL: NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT The Petitioner prays for dissolution of her marriage with the Respondent on the ground that their marriage has broken down beyond reconciliation; that the Respondent has behaved in a way that she cannot reasonably be expected to live with him. The Petitioner further says that attempts at reconciliation were to no avail. Page 1 of 10 The parties have been married for three (3) years. The Petitioner, Belinda Klenam Akyea is a Quality Control Officer whilst the Respondent, Edward Kofi Buabeng Assan is a Pastor. Both parties cohabited after marriage until about a year ago when they started living apart. There is one (1) issue of the marriage namely; Godson Obrempong Assan, about 2 (two) years old. THE CASE OF THE PETITIONER In her petition and evidence-in-chief, the Petitioner told the Court that the parties married under the Ordinance at Church of Pentecost, Michel Camp Assembly on 19th October 2019. That after their marriage they cohabited in a single room a landlady gave to Respondent to rest after church service. She continued that after their marriage the Respondent refused to work to support her financially to cater for the family and all burden was on her as she has been financially responsible for everything even before getting married to the Respondent. That the landlady asked them to leave the said room after six months and she had to singlehandedly rent a chamber and hall self-contained at Gbetsile where they stayed. That when they had the baby the Respondent still refused to work and his refusal to work was negatively affecting their marriage so she had to move to stay with her mother and the Respondent followed her to spend two months in her mother’s house. That she later realized the Respondent has money but he is refusing to support and that she makes payment of all bills. According to the Petitioner the Respondent does not want her to further education but to work and bring home money. She continued that all persuasive attempts to resolve their issues by the church leaders, both families and other friends proved futile. That she has lost interest in the marriage due to the Respondent’s untruthful behavior and they have been separated since July 2021. She prayed for the dissolution of their marriage, custody of the child of the marriage with Page 2 of 10 reasonable access to the Respondent as well as maintenance orders among others for the upkeep of the child of the marriage. The Petitioner did not call witness and closed her case thereafter. THE CASE OF THE RESPONDENT The Respondent in his response to the Petition stated that it is not true that the Petitioner was solely responsible for their daily upkeep in the house. That he has not shirked his responsibility as a father and he was doing all the house hold duties as well as taking care of their son to enable the Petitioner go to work. According to the Respondent he could not go out to search for work because of his evangelism activities as a junior pastor and also because he was the one doing all the house chores including washing the Petitioner’s clothes and taking care of their son since they did not have anyone to fully help them take care of the baby. The Respondent continued that the Petitioner’s mother had a negative influence on their marriage as the Petitioner refused to reconcile with him after all the attempts at reconciliation and that the Petitioner is also enticed by money from other men who have expressed interest in her. He concluded that he thinks the marriage has not broken down beyond reconciliation and that he loves his wife and son so much. He further pleaded with the Court to help him as he does not want to divorce the Petitioner. He prayed that if the Petitioner insists on the divorce he should be granted reasonable access to their son. The Respondent did not call witness and thereafter closed his case. The legal issues to be determined by this Court are: Page 3 of 10 a. Whether or not there is unreasonable behavior on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with him. b. Whether or not the marriage has broken down beyond reconciliation. In every civil case, the general rule is that the burden of proof rests upon the party, whether Petitioner or Respondent, who substantially asserts the affirmative of his or her case. In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that in all civil actions, the standard of proof is proof by the preponderance of probabilities, and there is no exception to that rule. Section 11(4) of the Evidence Act, 1975 (NRCD 323) explains the burden of proof in civil cases as follows: “In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”. In the case of Bank of West Africa Ltd. v. Ackun [1963] 1 GLR 176-182, S. C., Sarkodee-Addo JSC stated: “… The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof … The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form.” Page 4 of 10 Before I examine the evidence adduced at the trial, it is necessary to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely; sections 1(2), 2(1) and (3) which provide as follows: "1(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 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 facts:- ... (a) that the Respondent has committed adultery and that by reason of the adultery the Petitioner finds it intolerable to live with the Respondent; (b) that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the 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; (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, provided that the 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 despite the refusal; Page 5 of 10 (e) that the parties to the marriage have not lived as husband 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. (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." The burden on the Petitioner is therefore to prove that the marriage has broken down beyond reconciliation from the evidence before this Court; proof of one or more of the facts under section 2(1) of Act 367 is/are necessary. From the evidence adduced by the parties at the trial, the subsequent findings and conclusions were made: The Petitioner told the Court that after their marriage the Respondent refused to work to support her financially to cater for the family therefore she was financially responsible for everything even before getting married to the Respondent. That she had to singlehandedly provide for accommodation for them to stay, and the Respondent’s refusal to work negatively affected their marriage so she had to move to stay with her mother. That the Respondent does not want her to further education except to work and bring money home. Page 6 of 10 The Respondent denied the allegations of the Petitioner and stated he did his best under the circumstances and rather it is the Petitioner who has been attracted by money from men who are interested in her. The burden of proof was therefore on the Petitioner to lead cogent evidence to prove her allegations but she failed to discharge that burden. The law is very clear on allegations and the legal principle is that he who alleges must prove. In Klah v. Phoenix Insurance Company Ltd [2012] 2 SCGLR 1139, it was held that: “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, 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”. See also: Majolagbe vrs Larbi (1959) GLR 190 on proof in law. The Court cannot accept mere assertions without credible and reliable evidence. The Petitioner could not prove her allegations when same were denied by the Respondent but only repeated her assertions in the petition when she gave evidence. Given that the Petitioner failed to prove her assertions after same were denied by the Respondent, I find on the first issue that there was no unreasonable behaviour on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with him. Page 7 of 10 After a careful analysis of the evidence adduced by the parties, it can be gathered that the Respondent performed all the house chores in their matrimonial home including washing the Petitioner’s clothes as well as running petty errands for the Petitioner. Indeed the Respondent was the one taking care of their young son together with changing his diaper, bathing and feeding him whilst the Petitioner attended work. From the evidence before this Court the Respondent is not in favour of the dissolution of the marriage however all attempts at reconciliation have failed. The Petitioner also insists that she does not want to stay with the Respondent as husband and wife anymore, because she is no more interested in the marriage. The Petitioner under cross examination admitted that she went to the house whilst the Respondent was in, with a certain man who said he will her get a shop. Clearly the Petitioner has other men interested in her who are supporting her financially hence her disinterest in the marriage with the Respondent. It is undisputable that the parties to the marriage have, after diligent effort, been unable to reconcile their differences, as they have not lived as husband and wife for over a year now. In Knudsen v. Knudsen [1976] 1 GLR 204 CA, the Court of Appeal per Amissah JA stated as follows: “… Of course, in a state of affairs where the duty is placed upon the Petitioner to show that the marriage has broken down beyond reconciliation, common prudence indicates that attempts at reconciliation be made whenever possible and that where such attempts have been made without success evidence of these be given to help the Court arrive at the desired conclusion. It does not, to my mind follow, Page 8 of 10 however, that a divorce will never be granted in any case unless evidence of an unsuccessful attempt at reconciliation is led.” Both parties told the Court that there have been several attempts at reconciliation by their family members, church leaders and friends but they all proved futile. Having regard that the parties have irreconcilable differences and have therefore lived apart for over a year now, I find on the last issue that the marriage has broken down beyond reconciliation. From the foregoing, I conclude that the marriage between the parties has broken down beyond reconciliation and I hereby grant the Petitioner’s prayer for dissolution of the marriage. The marriage celebrated between the parties on 19th October 2019 is hereby dissolved with the following orders: 1. Custody of the child of the marriage namely, Godson Obrempong Assan, 2 (two) years old, is hereby granted to the Petitioner with reasonable access to the Respondent. Reasonable access means the Petitioner shall release the said child to the Respondent every other weekend thus two weekends in a month, every other holiday and half of his vacations when he starts school. 2. The Respondent is ordered to pay a monthly maintenance of GH¢400.00 towards the upkeep of the said child. 3. The Respondent is ordered to enroll the said child in school when he is due to attend school. 4. The Respondent is ordered to pay the school fees, educational bills and medical bills of the child as and when the need arises. 5. Clothing for the said child shall be provided by both parties. Page 9 of 10 6. There will be no order as to financial provision to either party to the marriage considering the circumstances of the case and of the parties. 7. The parties shall bear their own cost of the suit. …………………………………….. H/H AKOSUA A. ADJEPONG (MRS) CIRCUIT COURT JUDGE 15TH DECEMBER 2022 Page 10 of 10