MERCY BENEA BROWN VRS KWAME DARKO YIRENKYI (C5/113/21) [2022] GHACC 332 (17 November 2022)

CORAM: HER HONOUR BERTHA ANIAGYEI (MS) SITTING AT THE CIRCUIT COURT ‘B’ OF GHANA HELD AT TEMA ON THURSDAY, 17TH NOVEMBER, 2022 SUIT NO. C5/113/21 MERCY BENEA BROWN - PETITIONER VRS KWAME DARKO YIRENKY - RESPONDENT -------------------------------------------------------------------------------------------------------------------- JUDGMENT -------------------------------------------------------------------------------------------------------------------- The petitioner, with leave of the Court filed this petition on the 23rd day of August, 2021 for the dissolution of the marriage celebrated between the respondent and her on the 30th day of January, 2021. Petitioner contends that the marriage between the respondent and her has broken down beyond reconciliation due to their irreconcilable differences. There is no issue of the marriage. That the respondent has abused her sexually and his actions continue to cause her substantial hardship. Further that shortly after their marriage, the respondent began to command her in all aspects of their life which put so much fear and anxiety in her. Further that she had to leave the matrimonial home in Tema and return to her family in Takoradi in order to regain her sanity. That the respondent disrespected her family when they attempted to meet with him for an amicable resolution of their differences. That her family have since washed their hands off the marriage. She prayed the court to dissolve their marriage. The respondent in his answer denied all the claims of the petitioner and said he has always shown love and respect to her. That the petitioner left home on the 18th day of May, 2021 and all attempts to get to know her whereabouts have failed as she has ceased all form of communication with him. That it Page 1 of 12 is he who has rather made countless efforts at reconciliation by contacting the petitioner’s family members and counsellors but as the petitioner could not be found, this proved futile. He continued that the petitioner’s father called him on the evening of Sunday the 13th of June to schedule a meeting for the next morning being Monday the 14th day of June, 2021. That he indicated that he would be unavailable due to work. The petitioner’s father nonetheless called him in the morning of the Monday to say that he and others had set off to meet with him and that they would arrive in twenty minutes. That he waited for for over thirty minutes and when they were not showing up, he left for work. That he informed the petitioner’s father that he had to leave for work and he left. Thee hours later, his mother called to inform him that petitioner’s uncle had called her that he had arrived to dissolve the marriage. That the petitioner sent him a text message that she had given his Bible and ring to her father. The court made efforts to reconcile the parties. same were not successful. Accordingly, an enquiry was held into whether or not their marriage has broken down beyond reconciliation. THE CASE OF THE PETITIONER The petitioner repeated most the averments in her petition in her written evidence in chief. She added that the respondent always abused her sexually and this caused her to draw away from him. That respondent told her if he wants to see the monster in him, she should dare him. That she has totally lost interest, trust and confidence in the marriage due to the attitude and behavior of the respondent. That they are generally incompatible because the Page 2 of 12 respondent exhibited blatant disrespect towards her and there is no love and affection in the marriage. THE CASE OF THE RESPONDENT According to the respondent, he and the petitioner dated for more than three years and cohabited for over a year prior to celebrating their marriage. That in all, they had been together for about five years prior to their marriage. That he is not aware of any behavioural changes which occurred after the marriage. He said he did not abuse the petitioner sexually and also provided her with her needs. That he always respected and showed love to the petitioner. He also repeated the contentions in his answer as part of his evidence in chief. CONSIDERATION BY THE COURT The only issue for the court to determine is whether or not the marriage has broken down beyond reconciliation. Blacks’ law dictionary, (8th edition, 2004 p. 1449) defines divorce as ‚the legal dissolution of a marriage by a Court.‛ In Ghana, when a couple decide to marry under the Ordinance, then they can only obtain a divorce through the Courts. The ground upon which a divorce can be obtained from the Courts is clearly stated under the Matrimonial Causes Act, 1971 (Act 367). In section 1 (2) of Act 367, the sole ground for granting a petition for divorce 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 Page 3 of 12 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. Petitioner’s basis for arriving at the conclusion that their marriage has broken down beyond reconciliation is the unreasonable behavior of the respondent. It is he who asserts who bears the burden of proof and so the burden of persuasion lies on him to lead cogent and positive evidence to establish the existence of his claim in the mind of the court. See the case of Takoradi Flour Mills v. Samir Farris [ 2005-6] SCGLR 882 and Ackah v. Pergah Transport Ltd (2010) SCGLR 728. As the respondent has counterclaimed, she bore the same burden of proof in establishing her claim. See the case of Messrs Van Kirksey & Associates v. Adjeso & Others [2013-2015] 1 GLR 24. Divorce is by means of enquiry and a court must satisfy itself by way of evidence that indeed the marriage has broken down beyond reconciliation. Thus although the respondent in her answer admits that the marriage has broken down beyond reconciliation and also alleges unreasonable behavior and adultery, the Court through evidence must satisfy itself that the marriage has broken down beyond reconciliation. See the case of Ameko v. Agbenu [2015] 91 G. M. J. The basis of petitioner’s claim for the breakdown of their marriage is sexual abuse, disrespect and substantial hardship by the respondent. The respondent denies all these and so the burden remained on the petitioner to lead credible, cogent and relevant evidence in proof of her claim. Both parties testified alone and so the evidence was one of oath against oath. The petitioner’s evidence in chief did not disclose any peculiar or particular behavior of the respondent which had led to a Page 4 of 12 breakdown of the marriage. She also did not provide any details in proof of her skeletal averments. The respondent in cross examining her challenged her on her claims and that led her to provide further and better particulars of her claims. At page 10 of the record of proceedings, petitioner had answered under cross examination by the respondent; Q: Paragraph 9 of your evidence in chief, you mention that I disrespected you. Where did I stand to do so and what did I do? A: Four days after we got married, he gave me rules that I should be home before 5pm in the evening. Afterwards, when he talked to me, he shouts on top of his voice. A month after we got married, he goes out to talk ill about me and then afterwards, he starts to put recorders at home, to record conversations that I have both on phone and in the house. Q: Did we not go on our honeymoon after our marriage? A: We did but the rules came before we left. Q: A: Q: A: You said I sexually abused you. When did I start? It started a month after the marriage and you abused me several times. There are instances where you even dragged me from the hall to the bedroom to do that. There was a time that you told me that I should get ready because you wanted to have sex and if I do not, I would see the monster in you. I put it to you that your statement is false. It is true. He actually did that. Q: Who did you inform or tell that I was doing that to you because I married you from a family. Page 5 of 12 A: I did not inform anyone in my family specifically about the sexual abuse. I talked about it in a subtle way and they told me they would talk to him but they never did…… Still under cross examination by the respondent, the petitioner answered at page 13 and 14 of the record of proceedings; Q: A: Q: A: Q: A: Q: A: Q: A: Q: Did I abuse you during our honeymoon. Yes or no. No. he did not. Do you remember that on our way coming from our honeymoon, you told me that you do not want the marriage again. Yes or no? Yes. I did. I actually said it a day before we returned. And I called your mom when we returned to speak to you about this issue. Yes or no. Yes, you did. And a few days after your mom had left, I overheard you speaking to a guy on phone and saying that you did not want our marriage. Yes or no? Yes. And I told you that you should not do so and that if we have issues, we should speak to our counselors. Yes. And you refused and told me that if I have a problem, I should rather go and see the counselor as you do not have a problem. Yes or no? A: I do not remember saying any such thing. Petitioner admits that right after their honeymoon and indeed whilst they were returning, she had voiced out that she did not want the marriage again. That she had Page 6 of 12 persisted on this course even after her mother had spoken to her against it and told a gentleman. She also admits that during the honeymoon, there was no abuse by the respondent. She says the abuse started one month after the marriage. From her own evidence, it appears that she had made up her mind that she did not want the marriage again and was simply making things up. The respondent had denied sexually abusing her and indicated that there were times when she would call him from work that she was horny and he would come home to satisfy her. Between the two of them, I found the respondent to be much more credible. Petitioner appeared to be making things up so as to be able to leave the marriage. Although in her pleadings and evidence in chief, she had never mentioned that the respondent was monitoring and recording her calls, she sought to put that out during cross examination even when the question she was asked did not warrant such an answer. At page 14 of the record of proceedings, respondent had asked her; Q: A: And you kept having the same conversation with a guy. I talk to a lot of people and so I do not know who you are referring to. As I have said, you tapped into my phone line and were listening to my conversations. Q: And it was after I confronted you about speaking that way to that gentleman that you left the matrimonial home. A: I do not know which gentleman you are still referring to but I left because I realized that you tap into every phone call of mine and everyone that I talk to. Petitioner had not only brought in the claim that the respondent was tapping her phone, but was now indicating that she left not because of the sexual abuse, disrespect Page 7 of 12 or hardship that she had earlier claimed the respondent meted out to her, but because he was tapping into her phone. I generally did not find her to be a truthful witness. Still under cross examination at page 14 of the record of proceedings, she had answered: Q: And when I called you afterwards, you said that you were not returning to the matrimonial home. A: I did not say that. I said I needed time to think things through. That was the first time I left home. Respondent had then tendered EXHIBIT 1 through her. It is a record of their WhatsApp conversation on the evening of the 1st of March, 2021. In same, the petitioner had left home and even though the respondent was pleading with her to return home, she had not made any allegation of abuse against him as being her reason for leaving the house. She had rather said she had issues and same were not spiritual. Despite her denial of not saying she would not return to the matrimonial home, she had also said ‘’for today, I don’t know but I don’t want to ever come back. I have issue and is not spiritual’’. They celebrated their marriage on the 3oth of January, 2021. Thus the 1st of March, 2021 was about one month after their marriage. Without just cause, the petitioner had left the matrimonial home and despite her claim that she began to suffer sexual abuse around this time, her conversations with the respondent, does not indicate same. In the case of Ntim v. Essien [2001-2002] SCGLR 451, it was held that in determining the credibility of a witness, the court must take into account ‚the demeanour of the witness, the substance of the testimony, the existence or non existence of any fact testified to by the witness, a statement or conduct which is consistent or inconsistent with the testimony of the witness at the Page 8 of 12 trial, the statement of the witness admitting to untruthfulness or asserting truthfulness among others’’. The petitioner generally gave a nonchalant attitude sometimes bothering on rudeness to the respondent. She appeared to simply want a divorce and was making things up as the case progressed. The respondent on the other hand appeared visibly traumatized by the turn of events a little over three months after the celebration of their marriage. He sometimes broke down in tears during the proceedings. His tears did not appear to be an attempt to seek the empathy of the court; he appeared visibly disturbed. The petitioner admits that she had never reported any issues to their families and friends for resolution. Although she says she generally told her family, she could not mention who she told and any attempt that had been made to notify the respondent of her concerns. She packed her things out of the matrimonial home on 18th May, 2021 without any form of notice to the respondent. She did not deny that she was on good terms with the respondent’s family. Yet, she did not report any adverse conduct of the respondent to his family for them to resolve same. Many a man would be dumbfounded to say the least if they return home to find that their bride of three months and two weeks, has departed the matrimonial home and was refusing to return when there had not been any quarrel or issue between them. Although the petitioner placed the breakdown of their marriage under irreconcilable differences, her own evidence shows that not even one attempt was made to reconcile any issues between them. Her claims also show unreasonable behavior on her part rather than that of the respondent. Accordingly, I hereby dismiss her claim for dissolution of their marriage. Page 9 of 12 Although the respondent did not cross petition, section 11 of Act 367 provides that; Respondent entitled to divorce without cross petition ‚If in the proceedings for divorce, the respondent alleges against the petitioner and proves the facts required by section 1(2) and (2(1), the Court may in those proceedings, give to the respondent the relief to which the respondent would have been entitled if the respondent had presented a separate petition seeking that relief’’. The actions of the petitioner as proved by the respondent point her out as having behaved in an unreasonable manner. Act 367 does not define what constitutes unreasonable behaviour. By virtue of the varied nature of mankind character and sensibilities, it may very well prove a herculean task if an attempt is made to set in stone what acts constitute unreasonable behaviour. However, the test that is used is whether or not the act committed by one spouse is such that all right thinking men would hold that the act is unfair and unjust and the spouse who has been so offended, cannot be expected to continue to live with the other as husband and wife. In determining what constitutes unreasonable behavior, the test to be applied is an objective one. Hayfron Benjamin J (as he then was) held in the case of Mensah v. Mensah (1972] 2 G. L. R. 198 that ‚In determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all circumstances constituting such behaviour including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty and mere trivialities will not suffice for Act 367 is not a Cassanova's Charter. The test is objective‛. Page 10 of 12 This test was relied on by the Court of Appeal in the case of Knusden v. Knusden [1976] 1 GLR 204-216 where the court held that ‚The cross-petition was based on Act 367, Section 2 (1) (b) under which 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. 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 the case of Ansah v. Ansah [1982-1983] GLR 1127, Owusu Addo J. held that ‘’the test under the section, was whether the petitioner could reasonably be expected to live with the respondent inspite of the latter’s behavior. The test was therefore objective. But the answer obviously had to be related to the circumstances of the petition in question. That had to be a question of fact in each case. It followed that the conduct complained of must be sufficiently serious since mere trivialities would not suffice’. I hereby find that the actions of the petitioner, in indicating immediately after their honeymoon that she was no longer interested in the marriage, in persisting with this and telling other persons who would be considered as strangers to the marriage, in vacating the matrimonial home without just cause one month after their marriage and in finally deserting the matrimonial home three months after their marriage is unreasonable. Page 11 of 12 That she did all these despite the earnest pleas of the respondent goes to show how unreasonable she has been. Further that after leaving the matrimonial home in such manner, she proceeded to make things up against the respondent including a claim of sexual abuse just so she can obtain a divorce from the courts, is most unreasonable. Sexual abuse is a serious issue which many men and women suffer. The petitioner for what appears to be her need to secure a divorce at all costs, chose to trivialize such an important issue by blatantly lying about it Her actions are such that the respondent cannot be expected to continue to live with her as husband and wife. On the basis that the marriage between the parties has broken down beyond reconciliation due to the unreasonable behavior of the petitioner, which behavior the respondent cannot be expected to continue to live with, I hereby issue a decree to dissolve their marriage. Let the marriage celebrated between them on the 30th day of January, 2021 at the Saint Stephen Anglican Church, Tema be and same is hereby dissolved. Costs of five thousand Ghana cedis (Ghs 5,000) is awarded to the respondent for the prosecution of this case. (SGD) H/H BERTHA ANIAGYEI (MS) (CIRCUIT COURT JUDGE) Page 12 of 12