Tieku Vrs Ayanbare [2022] GHADC 83 (20 September 2022)

1 . IN THE DISTRICT COURT, HELD AT GOASO COURT ON THE 20TH SEPTEMBER, 2022 BEFORE HER WORSHIP MAGDALENE THOMPSON DISTRICT MAGISTRATE KINGSFORD TIEKU PETITIONER SUIT NO. A4/4/22 VRS JOYCELYN AYANBARE RESPONDENT PETITIONER PRESENT RESPONDENT PRESENT NO LEGAL REPRESENTATION FOR THE PARTIES This is a proceeding under the Matrimonial Causes Act, 1971 of Act 367. JUDGEMENT The parties have married for six (6) years at Goaso, after the marriage they lived at Goaso Ahafo Region. There is one issue in the marriage: Namely: Jason Nana Amoah Tieku – 2 years On the 13th April, 2022 the Petitioner filed legal proceedings seeking a divorce. The Petitioner prayers were formulated in the particulars of his petition as follows: (1) An order for the dissolution of the Ordinance marriage under Cap 127 between the parties (2) That the Petitioner be given custody of the child in the marriage and the Respondent given access to the child. The Respondent filed an answer and prayed for the following reliefs: a) An order for the dissolution of the Ordinance marriage between the two parties b) An order for the custody of the child of the marriage and reasonable access to the Petitioner c) An order of monthly maintenance allowance of GHc1,000.00 for the general upkeep of the child to be increased by 15% annually. d) An order directing the Petitioner to pay the school fees of the child of the marriage whilst the Respondent pays the other related educational expenses e) An order directing the Petitioner to provide the Respondent and the child with decent accommodation. Court: In the Respondent witness statements she stated that: “I have decided to abandon all other reliefs and I pray that the Honourable Court grant the sole relief of dissolving the marriage between the Petitioner and the Respondent. The court referred the matter to both parties to see their families for settlement but they told the court that all efforts to make amends prove futile. Dotse JSC in GLADYS MENSAH V. STEPHEN MENSAH [2012] 1 SCGLR 391 quoted Lord Denning in his book, “LANDMARKS IN THE LAW” Butterworths, 1954, writes at page 176 “on change in attitude of the British people to Divorce” as follows: “….. There is no longer any binding knot for marriage. There is only a loose piece of string which the parties can untie at will. Divorce is not a stigma. It has become respectable. One parent families abound.” The learned Supreme Court Judge stated that the above quotation can equally be said to be applicable to the Ghanaian society as well. THE PETITIONER’S CASE The parties got married under the Ordinance Cap 127 on 28th March, 2017 at Goaso and had one issue in the marriage. According to the Petitioner the Respondent started putting up some behaviors which was not acceptable immediately after the celebration of the marriage. He contended that all attempts made to resolve the problems failed. He added that the Respondent does not respect him as a husband and also maltreated the Petitioner’s child he brought into the marriage and this has affected the child greatly and he has become timid. He further contended that the Respondent’s mother does not talk to him. He told the court that the Respondent bought a car without the knowledge of the Petitioner at the time the family was in financial difficulties and that worsen the situation at home. He contended that the Respondent has failed her duty as a married woman and does not cook for the house and rather allowed friends to do the cooking for her. He is praying the court to dissolve the marriage as it has broken down beyond reconciliation. THE RESPONDENT CASE The Respondent confirmed that the marriage between the two parties have broken down beyond reconciliation due her conduct. She stated that the Petitioner was all material time aware of the Respondent itching to purchase of the said vehicle which has brought about the controversies. According to the Respondent they both agreed at the beginning of the marriage that the Petitioner will use his money to finance the building project and the Respondent used her earnings from her work for the up keep of the home and other domestic expenses and this arrangement has been maintained until the recent problems that has marred the beauty of the marriage. According to the Respondent she performs her wifely duty as a married woman and does all the house chores by cooking and washing for the Petitioner and the children and other domestic chores and occasionally seeks the help of a nanny. She told the court that she adopted the Petitioner’s child as her own and performed her duty as a mother to the child and corrects the child when he goes wrong but not that she is hard on the child as the Petitioner alleged and also gives due regard and respects to the Petitioner and his family. She can glean from the fact that it is the Petitioner who is not interested in the marriage hence the present action because when she visited her mother at Techiman and upon her return the Petitioner picks fight with her and told her to pack all her belongings from the matrimonial home and she should never stepped in the house again and this made her lodged a report at DOVVSU and the Petitioner was made to sign a bond to be of good behavior. The legal issue that fall for determination is as follows: a. Whether or not the marriage has broken down beyond reconciliation b. Whether or not the custody of the child in the marriage should be given to the Petitioner or the Respondent Section 14 of the Evidence Act, 1975 (NRCD 323) which regulates the reception and evaluation of evidence provides as follows: “….. Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or nonexistence of which is essential to the claim or defence he is asserting”. Before I examine the evidence adduced at the trial, it is pertinent to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) as follows: Sections 2(1)(b),(d) & (f) and (3) of Act 367 provides as follows: “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 fact: (b) that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent; (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 (f) that the parties to the marriage have, after diligent effort, they 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." In MENSAH V MENSAH [1972] 2 GLR 198, Hayfron-Benjamin J. (as he then was) held that: “… it is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage has broken down will not be enough…” SOME EXTRACTS FROM THE CROSS-EXAMINATION BY THE PARTIES Q. In your evidence you made mention that we both put up the matrimonial house. I am putting it to you that I solely put it up myself? A. Yes, because we both agreed on the onset that I will use my money to cook for the house and you will use your money to build the house but if you are saying so I will accept it as such. Q. I want to put it to you that before our marriage the house were in existence that my brother was occupying one room even though the house was not fully completed? A. It is true Q. In your evidence you made mentioned that the court should give me access to the child. I wanted to know from you will you always allow me to have frequent communication with the child Jeson? A. Yes. From the above cross-examination the Respondent has agreed and accepted that the Petitioner uses his money to put up the building and that the building was put up prior to the contracting of the marriage between the two. She has also agreed for the child in the marriage to have frequent communication with his father the Petitioner. In the present suit, both parties have stated during trial that the marriage has broken down beyond reconciliation and they cannot live with each other anymore. In the instant case the Petitioner told the court that the Respondent has bought a car and failed to use the money for the support of the house when the family was facing financial difficulties and this has actually killed the love and trust the Petitioner has in the marriage. He further adduced that the Respondent does not take proper care of his own child he brought into the marriage and has made the child very timid which has made the child going through psychological difficulties. The Respondent on the other hand adduced that the Petitioner has lost the interest in the marriage because of the vehicle she bought of which the Petitioner was aware that the Respondent has the desire to obtain that vehicle. On the other hand, the Petitioner sees the marriage as nothing to write home about for him to continue the marriage hence the dissolution. Respondent intimidated that it was the Petitioner who asked her to pack her belongings from the matrimonial home after she and the child of the marriage visited her mother at Teachiman. Respondent in her witness statement adduced that she is for going all her reliefs sought and rather pray the court for only the dissolution of the marriage and custody of the child in the marriage and reasonable access to the Petitioner. The evidence on record shows that the Petitioner and the Respondent have not lived together as husband and wife when the Petitioner realized that the Respondent has purchased a vehicle without the Petitioner’s knowledge and again there has not been any consummation ever since the marriage suffered cracks. As I have stated above, the Respondent has also given her consent to the dissolution of the marriage and that she cannot reasonably be expected to live with the Petitioner. It is clear that the marriage has broken down beyond reconciliation. In the circumstances, I rely on section 2(1) (b) (d) & (f) of Act 367 and grant the dissolution of the Ordinance marriage filed on 13th April, 2022. In determining whether to grant custody of the child in the marriage to the Petitioner or Respondent, it is said that the welfare of the child should be the fundamental or paramount consideration. This principle has been given statutory backing in all the statutes relating to children in this country and case laws including GRAY V GRAY [1971] 1 GLR 422 and BECKLEY V. BECKLEY [1974] 1 GLR 393 . Also, in the case of ATTU V. ATTU [1984-86] GLR 745, Brobbey J (as he then was) held as follows: “In this country, there can be no permanent or immutable order of custody because the Matrimonial Causes Act, 1971 (Act 367), per section 27 (1) empowers the court to rescind or vary any order of custody of any child as it thinks fit. There is no precondition on the rescission or variation, save that it should be made in the best interest of the child concerned” As the Respondent has stated in her evidence that she wants custody of the child and the Petitioner be given access and again the Respondent in her cross-examination has accepted to allow the Petitioner to have frequent communication with the child of the marriage. I therefore give the following order a) That the Respondent should continue to have custody of the child in the marriage and reasonable access to the Petitioner when the child is on vacation to spend time with his father and the Petitioner can have frequent communication with the boy child. …………………………………….. HW MAGDALENE THOMPSON DISTRICT MAGISTRATE