Anokye Vrs Dadzie [2022] GHADC 53 (15 December 2022)

CORAM: HER WORSHIP (MRS.) ROSEMARY EDITH HAYFORD, SITTING AS DISTRICT MAGISTRATE, DISTRICT COURT “B”, SEKONDI ON THE 15TH DAY OF DECEMBER, 2022 __________________________________________________________________ SUIT NO. A4/59/2022 KONFO ANOKYE - PETITIONER V GRACE DADZIE - RESPONDENT ------------------------------------------------------------------------------------------------------------- TIME: 11.19AM PETITIONER RESPONDENT - - ABSENT REPRESENTED BY JAMES OTUMANI PRESENT ___________________________________________________________________ JUDGMENT The instant petition was filed by the Petitioner on 10/05/2021 praying for a dissolution of the ordinance marriage celebrated between the parties on the 28th of August 1997 at the Sekondi Takoradi Metropolitan Assembly, Sekondi. Petitioner says the said marriage has broken down beyond reconciliation. Petitioner also prayed for custody of the two children of the said marriage. In an answer to the petition filed on the 24th of June 2022, the respondent denies that the marriage has broken down. She states further that if the Petitioner is of the view that their marriage has broken down then it is due rather to his behaviour during the said marriage and not based on what the Respondent has done or failed to do during the marriage. The Respondent cross-petitioned for the following: a) That the Petitioner be ordered to pay to the Respondent a lumpsum of GH₵500,000.00 as a financial provision b) That the Respondent be given an equal or fair share of the matrimonial home, H/No. E22, Essipon c) That Plot No. C127 Effia Cocoa Product Industrial Area, acquired by the parties during the marriage be settled in favour of the Respondent d) Costs including legal expenses and all expenses incurred by the Respondent incidental to this matter. The parties complied with the orders of the court and filed their respective witness statements. Subsequently, on the 6th of December, 2022, the parties filed terms of settlement on the auxiliary reliefs and prayed the court to adopt same. This will be considered at the end of the judgment if the court finds as a fact that the marriage indeed has broken down beyond reconciliation. Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) states that the sole ground for granting a petition for divorce in Ghana shall be that the marriage has broken down beyond reconciliation. In proving that the marriage has broken down beyond reconciliation, a petitioner must establish one of six causes i.e. adultery; unreasonable behavior; desertion for a period of two years; consent of both parties where they have not lived together as husband and wife for a period of two years; not having lived together as husband and wife for a period of five years; and finally, inability to reconcile differences after diligent effort. See: Section 2(1) of Act 367 It is material to point out that although the court may find the existence of one or more of the facts specified above, the law does not require the court to decree divorce unless it was satisfied on all the evidence, that the marriage has indeed broken down beyond reconciliation. This implies that even though the parties themselves have filed their terms of settlement, the court must still enquire as far as reasonable into the reasons for the divorce before granting the divorce or otherwise. In divorce just like in all civil cases, the degree of proof required by law is that of a balance or preponderance of probabilities. See Section 12 (1) and (2) of the Evidence Act, 1975 (Act 323). In the case of Adwubeng V. Domfeh [1996-97] SCGLR 660, the Supreme Court held that “sections 11 (4) and 12 of the Evidence Decree, 1975 (NRCD 323) have clearly provided that the standard of proof in all civil actions was proof by a preponderance of probabilities – no exceptions were made”. In the petition filed the Petitioner does not specify his reasons for the break down but gleaning from the pleadings and the testimony of the attorney unreasonable behaviour is inferred. The parties have been married for over 26 years and they have two adult children. After the marriage, the parties cohabited at Essikado, Essipon and Italy. It was the Petitioner who first traveled to Italy and sometime in the year 2011 the Respondent also joined him. Petitioner says that he helped Respondent acquire her residential permit which enabled Respondent to travel to and from Italy to work there. However, for the past 7 years, Respondent has returned to Ghana and has failed to return to Italy even though she has both residence and work permit to live in Italy. She has also refused to make any financial contributions to the family budget as claimed by the Petitioner. Petitioner further avers that Respondent has always been disrespectful towards Petitioner’s parents and siblings and that each time he visited Ghana the family had to sit over Respondent’s disputes with his parents and siblings. Petitioner says the conduct of the Respondent has caused him great pain, embarrassment, and betrayal. That the Respondent has deserted their matrimonial home and has informed the Petitioner that a certain pastor has told the Respondent that the Petitioner is married to his mother. Respondent on the other hand denies all the claims of the Petitioner and avers that she left Italy as a result of a spinal injury she picked from work in Italy at the time the Petitioner had left for the United States with the children of the marriage. This has made it impossible for her to work. Respondent avers that the Petitioner is fully aware of the situation and he was the one who even advised her to come back to Ghana so that her family could take care of her. As a result, the Respondent has been totally dependent on the Petitioner. She further avers that she has never disrespected the Petitioner’s mother or siblings. On the contrary, they have without any justification, hated and treated her with much disdain to the extent that she finds herself always with her family. Respondent says that she has not vacated the matrimonial home except that she spends some time occasionally at her family house in Takoradi when the ill treatment and disdain she is suffering at the hands of the Petitioner’s family members became unbearable. Respondent says she was shocked when the petition was served on her because it was the Petitioner who has always been assuring her and told her to look up to him and disregard any unpleasant vibes from his family members. The Respondent further denies ever telling the Petitioner about an encounter with a Pastor that he is married to his mother. It must be noted that the parties did not call any witnesses. The Petitioner testified through his attorney and the Respondent testified herself. The burden was on the Petitioner to prove all that he alleged in his petition. For example, his averment that the Petitioner was disrespectful towards his mother and siblings same having been denied by the Respondent, the Petitioner ought to have led some evidence. No evidence whatsoever was led apart from the mere averments. I find from the evidence that the Respondent and her in-laws and Petitioner’s siblings all lived in the same house. There could likely be some misunderstandings. The Respondent testified that they rather disrespected her and picked up unnecessary quarrels with her without any provocation. It was for that reason that she felt uncomfortable spending time in her own matrimonial home and rather spent time with her family. This important averment by the Respondent was never denied by the Petitioner. Again, even though the Petitioner averred that the Respondent was not bringing any income to the family coffers, the evidence is that the Respondent has been totally dependent on the Petitioner as a result of the injury she sustained in Italy which is making it difficult for her to work for which reason she has had several discussions with the Petitioner to set her up in a trade. Again, this averment was also not denied by the Petitioner. In effect what the Respondent avers is the truth. That being the case the Petitioner cannot turn around and play the victim here. I find on the totality of the evidence that it is rather the Petitioner’s mother and sibling who have been causing the problems between the parties and not the Respondent. Therefore, if there is any unreasonableness it is not on the part of the Respondent but rather the Petitioner who has failed to put his parents and siblings under check thereby affecting their marriage. I must state that from the evidence the parties have not lived together as husband and wife for over four years. The evidence is not clear why the Respondent did not join the family in the United States of America. The evidence is that the Petitioner has not been to Ghana for the past four years. Thus, the parties have not lived as husband and wife for this long. Under cross-examination of the Petitioner’s attorney below is what transpired: Q. You are aware that for quite some time, your nephew has not visited A. That is correct Q. He has not come to Ghana for about four years, not so A. That is correct Q. The children of the marriage are with the Petitioner, is that correct A. That is so Q. You will agree with me that as a result of the fact that he has not come to Ghana for about four years and the children are with him the parties have lived separate lives for about four years and beyond (emphasis mine) A. That is correct. From the above, it is clear that the parties have been living their separate lives and have not lived as husband and wife continuously for over four (4) years. The learned William Ekow Daniels in his book “The Law on Family Relations in Ghana, 2019 @ page312 state that “The test to determine whether or not the parties are not living as husband and wife has no relation to the physical state of things such as houses or households, but rather it is to be considered from the point of view of whether there is absence of consortium or cessation of cohabitation”. Looking at the test expounded above and relating same to the fact of the case, clearly, there has been the absence of consortium between the parties for over four years and that under the Matrimonial Causes Act is a ground for divorce. I, therefore, find that on the basis of the above the marriage between the parties has broken down. It is trite law however that the court will only dissolve a marriage on the above ground (that is, the parties having not lived together as husband and wife continuously for at least two years) only when there is consent from the Respondent. See Section 1 (2) (d) of the Matrimonial Causes Act 1971, Act 367. In the instant case, the Respondent has also cross-petitioned. She contended strongly that if the court finds as a fact that the marriage has broken down beyond reconciliation, then she will agree to the dissolution and will not withhold her consent save to say the reasons would not be laid on her door steps. Having critically looked at the evidence and the parties themselves having amicably agreed to go their separate ways coupled with the fact that the parties for the past 4 years have not lived as husband and wife, it is my considered view that the marriage between the parties has broken down beyond reconciliation. I shall therefore proceed to adopt the terms of settlement filed by the parties on 6/12/2022 as follows: 1. The marriage celebrated between the parties on the 28th of August, 1997 at the Metropolitan office, Sekondi be and is hereby dissolved as having broken down beyond reconciliation. Marriage certificate with number 189/97 pursuant to license number SAEMA/240/1997 is hereby cancelled. 2. It is hereby ordered that the children of the marriage are at liberty to stay wherever they desire since they are no longer minors. 3. The Respondent is hereby ordered to leave the matrimonial home within 4 weeks after the dissolution of the marriage. 4. Plot No. C127 Effia Cocoa Product Industrial Area is hereby settled in favour of the Respondent. 5. The Petitioner is hereby ordered to pay an amount of GH₵50,000.00 as financial provision to the Respondent. 6. The Petitioner is further ordered to pay an amount of GH₵10,000.00 as legal fees and other incidental expenses to the Respondent (SGD) H/W ROSEMARY EDITH HAYFORD (MRS) MAGISTRATE 8