Sekyibea Vrs Siripi [2022] GHADC 156 (12 December 2022)

1 IN THE DISTRICT COURT AGONA SWEDRU - A. D. 2022 BEFORE HIS HONOUR ISAAC APEATU Civil Suit No A4/58/2022 12th December, 2022 EMMA SEKYIBEA … Petitioner VERSUS ISAAC SIRIPI … Respondent JUDGMENT The petition was filed by the petitioner-wife of the marriage for dissolution of marriage. It was filed on 1st September 2022 and same served on the respondent. The petition recites that the marriage between the parties was celebrated on the 17th day of June, 2002 at the SDA Church, Agona Swedru. There are five issues in the marriage. The petitioner claims that the marriage has broken down beyond reconciliation. She thus filed this suit seeking from the court the following reliefs: 1. That the said marriage be dissolved. 2. Any other order as the court may deem fit In accordance with Order 18 rule 1(3) of the District Court rules, C. I. 59, the Petitioner attached the grounds of her petition for dissolution of the marriage to her petition. The Petitioner deposed in her petition that the marriage between her and the Respondent has broken down beyond reconciliation. She averred that she cannot continue to live with the Respondent. She averred that about 8 months ago, the respondent has misbehaved towards her. That they have been unable to agree on anything and that the least attempt to converse turns to quarrelling amidst insults which indicates that the parties are incompatible. That on 17th June, 2022, their first born son whose name she gave as Rex Siripi committed suicide and was buried. That she cannot figure out whether it was their persistent fighting in their matrimonial home that caused the death of their son. That on 20th July, 2022, she packed out some of her personal belongings and left the matrimonial home. That respondent’s behaviour indicates that he is no more interested in the marriage. That all attempts to find an amicable settlement of their differences have proven futile. She therefore filed the petition for dissolution of the marriage. The petition together with attached documents was duly served on the Respondent as mandated by procedure. On receipt of the processes, the respondent filed an answer to the petition and averred denying most the averments made by the petitioner in her petition. He denied the assertion by the petitioner that they were unable to agree on anything in the marriage stating that it was when his finances broke down after his transfer from Dawurampong SHS to Kasoa during which he incurred a lot of fuel cost which had an effect on their relationship. He admitted that they lost their first child but it was through no fault of any of them since he was at all material times in school in Accra. He averred that he does not agree to the dissolution of the marriage. The general rule of law has always been that the court before whom a matrimonial case is brought was under a statutory and positive duty to inquire so far as it reasonably could, into the charges and counter charges alleged by parties in a divorce suit as this one. But the onus of proof is on the petitioner to prove all allegations made against any such respondent and where a respondent made a counter allegation, he/she in accordance with section 14 of NRCD 323, bears the onus of proof to establish those allegations. And in discharging the onus on the petitioner, it was immaterial that the respondent had not contested the petition; he/she must prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage had irretrievably broken down. See Danquah v. Danquah [1979] G. L. R. 371; Donkor v Donkor [1982-83] GLR 1158. The onus therefore, of producing evidence of a particular fact, as in all civil cases, is on the party against whom a finding of fact would be made in the absence of further proof: see Section 17(a) and (b) of NRCD 323. The authorities are also in harmony that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under sections 10 (1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). The burden of producing evidence has thus been defined in Section 11 (1) of NRCD 323 as follows; “11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. And it bears stating that the burden of proof is also not static but could shift from party to party at various stages of the trial depending on the obligation that is put on that party on an issue. This provision on the shifting of the burden of proof is contained in Section 14 of NRCD 323 as follows: “14 Except as otherwise provided by law, unless 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 that party is asserting”. In accordance with the general rule of procedure as stated above, the Petitioner had the burden of proving all the averments she made against the respondent on the standard of preponderance of probabilities. If she succeeds in establishing her averments by evidence, the onus will then shift to the Respondent to lead some evidence to rebut same. The Matrimonial Causes Act, 1971 (Act 367) regulates divorces and other matrimonial causes in this country. Under section 1(2) of Act 367, a Court shall not grant a petition for divorce unless the marriage is proven to have broken down beyond reconciliation. As I have established above, the onus of such proof is on the party who alleges that the marriage has broken down beyond reconciliation. But under Section 2(1) of Act 367, for the purposes of showing that the marriage has broken down beyond reconciliation, a petitioner for divorce 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; 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. It has been held in a line of cases including Donkor v Donkor [supra] that the Matrimonial Causes Act, 1971 (Act 367), did not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution of their marriage just for the asking. And that the petitioner in such a case for dissolution of marriage must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act (above), not only by pleading them but also by proof for the purpose of showing that the marriage had broken down beyond reconciliation. The court explained further that Section 2 (3) of the Act, provided that even if the court found the existence of one or more of those facts it should not grant a petition for divorce unless it was satisfied that the marriage had broken down beyond reconciliation. What then did the petitioner do to prove that the marriage has broken down beyo nd reconciliation? The Petitioner gave evidence in a bid to prove break down of the marriage. She however did not call any witnesses in proof of her case. The nub of petitioner’s case is to the effect that she After the petitioner closed her case, the Respondent was called to give evidence in accordance with procedure. Respondent gave evidence but called no witnesses in proof of his claims. The nub of respondent’s case is that Having established the cases and responses put before the court by the parties, my next task is to find out the issue(s) germane to unraveling this case. Upon a careful scrutiny of the pleadings, I am of the opinion that the only issue which needs to be determined in this case is whether or not the marriage between the parties has broken down beyond reconciliation. But as has been stated above, to arrive at this finding, the court ought to determine whether any of the grounds as above stated were relied on and proved. I shall therefore determine whether the petitioner’s assertions fit into any of the grounds stated under section 2(1) (a) to (f) of Act 367. If not, I shall find out if any of respondent’s assertions against the petitioner were also proved. This is because, the law is settled that in a petition for divorce, any other established fact has to support a finding that the marriage has broken down beyond reconciliation. And any of the grounds upon which divorce is founded as laid down under section 2(1) of Act 367 must only go to prove breakdown beyond reconciliation. So was the evidence led by the petitioner able to establish the omnibus ground i.e. that the marriage has broken down beyond reconciliation? From the petition and the evidence on record, the petitioner’s main ground based on which she seeks a dissolution of this marriage is mixed up and not well delineated. Even though she did mention some of the facts stated under section 2(1) of Act 367 as those she relies on to prove breakdown of the marriage, it took a bit of scrutiny to find them. She nevertheless appears to have grounded her petition on the fact of unreasonable behaviour and their lack of compatibility leading to irreconcilable differences. On the first ground of unreasonable behaviour, the petitioner alleged that the respondent assaulted her in the marriage anytime there was a misunderstanding between them. I find in this case that the parties got married in 2002. They have been married for 21 years. They have four children presently. In actual fact, they had five children. However, it appears one of the children passed away under horrid circumstances. From snippets of evidence on the record, that child who was the eldest of the children named as Rex Siripi, committed what appears to be suicide. He is alleged to have drank poison and died from it. It is the aftermath of the unfortunate passing of the child that triggered the petitioner to file for divorce. Her main ground as appearing from her petition is that her marriage to the respondent has been bedeviled with incessant quarrels, threats and insults. She alleged that they have not been able to agree on anything in the marriage and that each attempt to make conversation turns into quarrels. So, due to this continuous misunderstanding and persistent fighting, their deceased son who could not bear it any longer committed suicide by drinking poison. As a result of the death of their son, the petitioner says she is going through emotional trauma and has prayed the court for dissolution of the marriage. I must say that even though the petitioner alleges that her son died because of their persistent quarrels and fighting, there is no direct evidence to show it. She did not lead any evidence to show that her son committed suicide because he could no longer bear with their quarrels and fighting in their home. Indeed, the respondent made mention of this in his answer to the petition. Be that as it may, there is an abundance of evidence to show that the parties did not gel well as married couples. All was not well in the marriage. In the evidence, the petitioner asserted that they are incompatible and added that she was subjected to assault by the respondent. The respondent did not deny that he assaulted the petitioner during the marriage when he had the opportunity to cross-examine her. He only wondered how their son’s death could be linked to their quarrelling and fighting. As I stated above, the petitioner grounded her petition for divorce in part, on the fact of unreasonable behaviour by the respondent under section 2(1) (b) of Act 367. In the case of Knudsen v Knudsen [1976]1 GLR 204, the Court in assessing a petition based on unreasonable behavior stated that the test to be applied in determining whether a particular petitioner could or could not reasonably be expected to live with the particular respondent was an objective one, and not a subjective assessment of the conduct and the reaction of the petitioner. In assessing such conduct, the court had to take into account the character, personality, disposition and behaviour of the petitioner as well as the behaviour of the respondent as alleged and established in the evidence. It went on to state that the conduct might consist of one act if of sufficient gravity or of a persistent course of conduct or series of acts of differing kinds, none of which by itself might be sufficient but the cumulative effect of all taken together would be so. In this case, the petitioner alleged that the respondent assaulted her in the marriage. She did not give details of the assault. However, the respondent did not deny that allegation. If he thought that the allegation made by the petitioner that he assaulted her was unfounded, he ought to, as a matter of law, have denied it during his cross- examination of the petitioner. Yet, he did not. From the tenor of his cross-examination, he appears to admit as a fact that he assaults the petitioner. I find that the habit of assault of a woman by the husband in a marriage relationship should be decried in no uncertain terms. It needs to be condemned with all the force it deserves. Restraint is needed in any relationship and where one party fails to exercise it and resorts to abuse of the other, no court ought to lend its support to it. The respondent’s assault on the petitioner is one that cannot be tolerated under any circumstance. And where there is proof of assault of a party to a marriage, the court ought to be cautious in making any order that has the effect of perpetuating the assault. In this case, I think that the petitioner has led sufficient evidence in proof of her claim that the respondent assaulted her in the marriage and that is a ground upon which the court can grant dissolution of the marriage. That notwithstanding, what clearly appears from the facts in evidence is that there are irreconcilable differences that exist between the parties to this marriage to such an extent that it is more likely than not that they cannot continue to live as husband and wife. I find this marriage to be an old one. They have been married for over 20 years. However, I find that there are real differences between the parties which from the pieces of evidence, appear to have been with them for a long time. These differences which I find from the evidence, has led to persistent quarrels and fighting between them which the petitioner thinks eventually led to the unfortunate death of their son. It is important to note that the petitioner persistently alleged that they were incompatible in the marriage with the respondent. Although she did not mention the allegation of assault on her person by the respondent in her petition, she nonetheless alleged that they were engaged in a lot of quarrelling in the marriage. In his answer to the petition, the respondent appears to have made an admission of the allegation of quarrelling but had questioned how their quarrels had had any influence on the suicide committed by their son. What I take from the above is that respondent appears to have admitted the allegation that they quarreled a lot in the marriage and that they were unable to string conversations together without it turning into a fight. He further mentioned in his answer that it was when his finances broke down after his transfer from Dawurampong SHS to Kasoa during which he incurred a lot of fuel cost which had an effect on their relationship. So there is a tacit admission that the relationship was not that rosy from the time he was transferred to Kasoa. As already stated above, a party could ground a petition for dissolution of marriage by proving the fact that there exist irreconcilable differences between them and that the parties to the marriage have, after diligent effort, been unable to reconcile their differences as provided in section 2 (1) (f) of the Act. It was held in the case of Mensah v Mensah [1972] 2 GLR 198 that in order to establish this head or guide line three things are requisite: (a) There should exist differences between the parties. (b) They should have made diligent efforts to reconcile these differences, (c) They should have been unable to effect the reconciliation of the differences. It was further held by the court that section 2 (1) (f) of the Act did not require that there should be disputes between the parties; it only required that there should be differences. It explained that a dispute is a difference but not all differences are disputes and that the inability of a spouse to have an issue is not a difference even though there may be a difference between the spouses as to how to remedy the situation. The court went on to state that the differences must be between the parties and that a litigation between the wife’s family and the husband’s family would not be a difference between the wife and the husband, although it may lead to one. The fact that the husband belonged to the Justice Party while the wife supported the Progress Party did not mean that there were irreconcilable differences. It again stated that the differences should be such as would make it impossible for the marriage to subsist. It should be remembered, that evidence of the differences is being proffered to show the breakdown of the marriage. Differences which cannot possibly affect the subsistence of the marriage are not sufficient. Evidence of petty quarrels and minor 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 this case, I find that there are serious differences between the parties in the marriage. I find from the evidence that the parties have been belligerent for quite some time now. There is the general admission that the atmosphere that existed in the home was not too cozy. They fought a lot. In such a situation, I do not think that the court ought to attempt to reconcile what cannot be reconciled. It is not worth the effort to want to bring them back together as husband and wife. There is no love between the two. The petitioner thinks that their son died as a result of their differences which he could no longer bear. To think that their son could drink poison because he thought that his parents were getting on his nerves with their fights is nothing to look down upon. I think that the parties should not be condemned into going back into the marriage. It will certainly not work again. Any attempt to bring them together will be to promoting further quarrels and animosity between the two. Looking at the situation between the parties, I cannot make a decree for them to go and stay under one roof. To do that will be turning my back on reality. It is no wonder that the petitioner has packed out of the marriage. Moreover, as stated by the respondent in his answer, there have been several efforts by the families of the parties to have their marriage reconciled but have all proven futile. The upshot of the above is that the differences between the Respondent and the petitioner have been widened the more that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. And that is a valid ground to grant their request for dissolution of the marriage. I have read carefully the evidence as presented by the parties. I am of the firm conviction that the Petitioner was able to prove breakdown of the marriage based on section 2(1) (f) of Act 367. There are irreconcilable differences between the respondent and the petitioner which militate against any thought of reconciling the two. On the totality of the evidence on record, I am satisfied that the marriage has broken down beyond reconciliation. I will therefore grant the prayer for dissolution on account of the petitioner and pronounce a dissolution of the marriage between the respondent and the petitioner. The marriage between the parties is hereby dissolved. There are no joint properties between the parties herein. But there are four children between the parties. It appears that the children are staying with the petitioner. None of the parties made a claim for custody of the children. No order shall hence be made on the children as there is little on which to pronounce an order. In the result, and based on the available evidence assessed on a balance of probabilities and the relevant law, the Petitioner succeeds in terms as follows: The marriage between the Petitioner and the Respondent contracted under the Marriages Act, 1884-1985, Cap 127 is dissolved and the marriage certificate cancelled accordingly. Given the circumstances under which the parties lived in the marriage and how the marriage came to an end as is borne out by the evidence on record, I am not inclined to make any order for cost. Parties shall bear their own costs. HIS HONOUR ISAAC APEATU DISTRICT MAGISTRATE