Danquah Vrs Kwame Adjei [2022] GHADC 282 (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 TINA DANQUAH --------------- PETITIONER SUIT NO. A4/27/22 H/NO. I/N 78 SITE 16, COMMUNITY 1, TEMA VRS KWAME ADJEI OF E ROAD COMMUNITY 4, TEMA PARTIES: PRESENT --------------- RESPONDENT 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 all attempts at reconciliation have been unsuccessful. Page 1 of 8 THE CASE OF THE PETITIONER In her petition and evidence to the Court, the Petitioner stated that the parties have been married for the past nine years under the Ordinance with two issues namely Kingsley Amoaben Adjei and Daniel Obeng Adjei; 8 and 6 years respectively. That since they got married, the parties have not stayed together as husband and wife in one apartment as the Respondent vacated from her apartment to his family house at Tema. That the Respondent was allocated a single room in his family house so it could not contain the parties for cohabitation. That the Respondent also refused to stay with her in her apartment and only visited her when he wanted sex. The Petitioner continued that she reported the conduct of the Respondent to her uncle who talked to the Respondent about the need to stay together as husband and wife but he did not listen to the advice and continued to stay in his family house. That for the past six years after the birth of their second born, the Respondent has denied her sex. According to the Petitioner, their customary marriage has been dissolved in 2020. That the Respondent made it clear to her that that he is no more interested in her as his wife. She prayed for the marriage between them to be dissolved and also prayed for custody of the children to be granted to her with reasonable access to the Respondent. The Petitioner did not call witness and thereafter closed her case. THE CASE OF THE RESPONDENT The Respondent in his answer to the petition and evidence confirmed the fact that the parties got married under Ordinance on 11th December 2013 at the Tema Page 2 of 8 Metropolitan Assembly, Tema. That after the marriage the parties resided in Community 1, Tema site 14 for four years before relocating to his father’s house at Community 4, due to misunderstanding between them. That they were happily living together after the marriage until about two years ago when his parents informed him that the Petitioner and her father had presented drinks to the family to dissolve the marriage between them as demanded by their tradition. That he gave his consent for his parents to accept the Petitioner’s drinks for the divorce. He continued that since 2020 there has not been intimate relationship between the parties. That he continues to pay the children’s school fees and other bills. He concluded that since the marriage has been dissolved traditionally, he does not have any interest in same; and prayed the Court for the dissolution of their marriage. The Respondent thereafter closed his case without calling witness. I deem it necessary to mention that before the hearing of the petition, the parties were referred to the Court Connected Alternative Dispute Resolution (CCADR) and the mediator submitted their Terms of Agreement signed on 17th August 2022 on the ancillary reliefs. Same will be adopted as consent judgment on the ancillary reliefs, in addition to the judgment of the Court on the dissolution of the marriage. At the end of the hearing, the legal issue to be determined by this Court is whether or not the marriage has broken down beyond reconciliation. Page 3 of 8 This being a civil case, the general rule is that the burden of proof rests upon the party who substantially asserts the affirmative of his case. Section 12(1) of the Evidence Act, 1975 (NRCD 323), provides that: “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” This was reiterated by Amissah JA in the consolidated case of Ricketts & Another v. Addo & Others and Ricketts v. Borbor & Others [1975] 2 GLR 158- 169, C. A., when the learned judge stated that: “... the burden of persuasion which a plaintiff has to satisfy in every case is no more than proof on a balance of probabilities”. Section 11(4) of the Evidence Act 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”. Before I examine the evidence adduced at the hearing, it is essential 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. Page 4 of 8 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; (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 Page 5 of 8 it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation." In the instant case the burden is therefore on the Petitioner to prove that the marriage has broken down completely; 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 hearing, the subsequent observations and findings were made: From the evidence before this Court the parties could not stay together as husband and wife under the same roof shortly after their marriage because of misunderstanding between them as to where to stay. From the evidence the Respondent did not see this as any issue and stated that they lived happily but clearly this was an issue to the Petitioner and attempts at reconciliation having failed, their marriage was customarily dissolved. From the evidence of both parties, they have separated for over five years now as they could not reconcile their differences therefore they could not stay together as husband and wife under the same roof which was a great concern to the Petitioner. After a careful examination of the petition and the answer to same as well as the evidence of both parties, it is not in doubt that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Accordingly, I find it as a fact that the parties have been unable or failed to live together as husband and wife for more than two years now and the Respondent consents to the grant of a decree of divorce. Page 6 of 8 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. .” Both parties told the Court in their evidence that their families made several attempts at reconciliation but all proved futile. Having considered the fact that several attempts at reconciliation by the families of the parties were unsuccessful, I consequently find that the marriage between the parties has broken down beyond reconciliation. In view of the above, I conclude that the marriage between the parties has broken down beyond reconciliation and in the circumstances; I do hereby grant the Petitioner’s prayer for dissolution of the marriage. The marriage celebrated between the parties on 11th December 2013 is hereby dissolved; and the Terms of Agreement signed by the parties herein on 17th August 2022 is hereby adopted and entered as consent judgment of the Court on the ancillary reliefs. There will be no order as to costs. …………………………………….. H/H AKOSUA A. ADJEPONG (MRS) CIRCUIT COURT JUDGE Page 7 of 8 15TH DECEMBER 2022 Page 8 of 8