PEPRAH VRS SIAW (C5/011/2024) [2024] GHAHC 222 (19 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT SUNYANI ON THE 19TH DAY OF APRIL, 2024 BEFORE HIS LORDSHIP GABRIEL NENE KWAO MATE TEYE SUIT NO. C5/011/2024 SYLVESTER PEPARH - PETITIONER VRS FELICIA BOADI SIAW - RESPONDENT JUDGMENT The petitioner Sylvester Peprah a teacher and resident of H/No AMK/GO 16, Amasu in the Bono Region of Ghana filed a divorce petition through his counsel, Joseph Addai Akwaboa on 2/11/2023 praying the court for an order for the dissolution of the marriage ordinance contracted between the petitioner and the respondent on the 20th of February 2020’ The petitioner sought leave to serve the respondent out of the jurisdiction which the court granted. Subsequently, the court ordered for the petitioner and all subsequent processes to be served on the respondent by substituted service through her address in IPSWICH, UNITED KINGDOM, her phone number and her e-mail address. Subsequently, the matter was set down for trial and the parties were asked to file their respective witness statements and any documents the parties intended to rely on. The petitioner at every stage of the case duly served on the respondent, however she refused/failed to response to all of them, let alone to appear in court to defend her position. The petitioner filed the divorce petition as stated earlier on the 7/11/2023 and stated some reasons below why the marriage is said to have broken down beyond reconciliation and the reasons why the marriage should be dissolved. (1) That the parties have ceased to live together as husband and wife in the United Kingdom (2) That the respondent does not give the petitioner peace of mind in the matrimonial home. (3) That the respondent disturbs the petitioner and has threatened to have the petitioner deported to Ghana. (4) The respondent has threatened to kill herself in order for the petitioner to be arrested and jailed in the United Kingdom. (5) That the parties have not lived as husband and wife for a continues period. (6) That the respondent has behaved so unreasonably that the petitioner cannot be expected to live with her under the same roof as husband and wife. It is the case of the petitioner that several attempts to reconcile the differences between the parties have proved futile hence this petition. That the respondent has caused the petitioner harm, anxiety, pain and distress to the extent that, he cannot be reasonably expected to live with the respondent. The petitioner thus says that marriage has broken down beyond reconciliation. The petitioner filed his witness statement and pretrial checklist on 01/02/2024 and same was served on the respondent by way of substituted service and same was duly executed. The petitioner mounted the witness box on 16/02/2024 and gave his evidence in chief, notice of which the respondent had. Consequently, the case was further adjourned to 05/03/2024 for the respondent to cross examine the petitioner. The respondent once again failed/refused to appear in court, though the opportunity to appear was provided for her through hearing notice. It is the understanding of the court that, the effect of the respondent appearing or not answering the petition then or causing an answer to be filed on her behalf translates to the respondent not contesting the divorce as she had notice of same. The effect of such boycott of proceedings by a party is amplified in the case of Ghana Consolidated Diamonds Limited vrs Tanco and other (2001-2002) 2 GLR 150 where the court held in holding (1) that; “a party who was aware of the hearing of a case but chose to stay away out of his own decision could not, if judgment went against him, complain that he was not given a hearing. He could only appeal on the merits of the judgment. Accordingly, since the defendants chose not to take part in the proceedings, after their stay of proceedings had been refused and the trial court went on with the action and entered judgment for the plaintiff, the defendants could not complain that they had been denied a hearing” That the failure of the respondent to appear to contest the divorce petition is to the effect that, the assertion by the petitioner that there are irreconcilable differences between the parties is uncontroverted. The petitioner says the evidence adduced in court is not contradicted thus same can and should be relied to dissolve the marriage be between the parties. The above position has been supported or buttressed in the case of Mensah vrs Mensah (1972) 2 GLR 198 when the Supreme Court held in holding 1 as follows: “under Act 367, section 2 (2), the court has to inquire into the facts alleged by the parties. However, the court does not have to hold such inquest in all cases. Where the evidence of the petitioner stands contradicted, an inquest is not necessary unless it is suspected that evidence is false or the true position is being hidden from the court” In the instance case, the evidence in support of the allegation, that the marriage has broken down beyond reconciliation remains uncontradicted hence the court is empowered to dissolve the marriage between the parties celebrated on 20th February,2020 based on same. Per section 1 of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. To prove same, the petitioner must establish at least one of the factors set out in section 2 (1) of Act 367, namely; 1. adultery 2. unreasonable behavior 3. desertion 4. failure to live together as man and wife for a period of two(2) years 5. failure to live as man and for 5 years and 6. irreconcilable differences Per the evidence adduced, the petitioner has shown that there are irreconcilable differences between him and the respondent and same remain uncontested. In the case of Donkor vrs Donkor (1982-1983) GLR 1058 the High Court, Accra per Osei Hwere J, held that; “The Matrimonial Causes Act, 1971 (Act 367), does not permit spouses married under marriage ordinance. to come to court and pray for the dissolution of their marriage just for the asking. The petitioner must first satisfy the court of any one more of those facts set out in section 2 (1) of the Act for the purpose of showing that the marriage has broken down beyond reconciliation” Section 2 (3), which is pertinent, provides that even if the court finds the existence of one or more of those facts, it shall not grant a petition for divorce unless it is satisfied that the marriage has broken down beyond reconciliation. … the petitioner is under duty not only to plead any one or more of those facts in section 2 (1) of the Act but he must also prove them. Equally, the court is under a statutory and positive duty to inquire so far as it is reasonably can; into the charges and counter charges alleged. In discharging the onus on the petitioner, it is immaterial that the respondent has not contested the petition, she must prove the charges and, following from all the evidence before the court, the court must be satisfied that the marriage has irretrievably broken down” To encourage reconciliation as may be practicable, section 8 of Act 367 enjoins the petitioner to inform the court all attempts to settle the matter ( difference) in this instant case the threshold has been fulfilled by the petitioner and further proved same of the facts set out in section 2 (1) thus: There is no possibility of reconciliation section 2 (1) (7) states as follows: - “for the purposes of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court …that the parties after diligent effort have been unable to reconcile their differences” In order to succeed under section 2 (1) (f), there must be evidence that irreconcilable difference exists between the parties within the meaning and intendment of section 2 (1) (f) of the Matrimonial Causes Act, 1971 Act 367, and the petitioner per the evidence has successfully proved same. In the case of Mensah vrs Mensah supra at 206, the court held that for section 2 (1) (f) to apply, the following elements must be present; (a) there should exist differences between the parties. (b) They should have made diligent efforts to reconcile these differences, and (c) They should have been unable to effect the reconciliation of the differences, the court further held at page 207 of the report , The court further held at page 207 of the report that; “The section does not require that there should be disputes between the parties; it only requires that there should be differences”. Secondly, the differences should be such as would make it impossible for must be between the parties… Thirdly, the differences should be such as would make it impossible for the marriage to subsist. Differences which cannot possibly affect the subsistence of the marriage are not sufficient. Evidence of petty quarrels and mirror bickering which are but evidence of that frailty which all humanity is heir to is not sufficient. The differences must be real and not imaginary; they should be so deep as to make it impossible for the parties to continue a normal marital relationship with each other” In the instant case, the petitioner has testified that, after celebration of the marriage, they cohabited in the United Kingdom and have about a year not lived together as husband and wife. The respondent has also issued several threats such as self-harm to get the petitioner arrested and the threat of causing the deportation of the petitioner. It shows how unreasonable the behavior of the respondent has been and the fact that living together would be practically impossible due to the unreasonable behaviour of the respondent. To this end, it is the finding of this court that the combined effect of evidence that there are irreconcilable differences between the petitioner and the respondent and that the marriage between them has broken down beyond reconciliation. I am of the view that flowing from the evidence adduced and the finding of facts that the marriage has broken down beyond reconciliation, it is only fair and just to allow the parties to go their separate ways. Consequently, I declare that the marriage between the petitioner, SYLVESTER PEPRAH AND FELICIA BOADI SIAW contracted under the Ordinance Marriage on the 20th of February, 2020 in Dormaa Ahenkro is hereby dissolved. The parties may go their separate ways. No cost will be awarded against any of the parities. GABRIEL NENE KWAO MATE-TEYE (JUSTICE OF THE HIG H COURT) Counsel: Joseph A. Akwaboa for petitioner No representation for the respondent 8