Fosu Vrs Fosu [2022] GHACC 127 (6 December 2022)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 06TH DECEMBER 2022 CORAM: HIS HONOUR YAW POKU ACHAMPONG SUIT NO.: C5/08/2022 SOLOMON FOSU ………………... PETITIONER VS LILY FOSU ………………. RESPONDENT PARTIES PRESENT JUDGMENT For better for worse is a common parlance about marriages. In Hyde v Hyde & Woodmanse[L. R.] 1 P. & D. 130, Lord Penzance stated: “I conceive that marriage as understood in Christendom may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.” This statement of Lord Penzance echoes the definition of marriage under the Marriage Ordinance, Cap 127(1951 Rev). A man and a woman should of their own volition agree to be joined together as a couple. Upon so doing, that union in matrimony is to be for life until death separates the couple. The Matrimonial Causes Act, 1971(Act 367) is the primary law that governs matrimonial causes as regards marriage under the Marriage Ordinance. See section 41(1) of Act 367. According to section 1(1) of Act 367, either party to the marriage can bring a petition for divorce. In the instant case, it is the man that brought the petition herein seeking the following reliefs: i. an order of the court dissolving the ordinance marriage contracted between the petitioner and the respondent herein at the District Court, Dunkwa-On-Offin on 2/12/2019. ii. an order praying the court to conduct DNA test on the new born baby girl to determine her paternity. Petitioner was suspicious that Respondent had committed adultery. Petitioner based that suspicion on his claims that Respondent stayed out of the matrimonial home late at night, that Respondent would go on a business trip whenever Respondent went for night duty among others. The suspicion grew to a crescendo. Petitioner eventually mounted this action. Respondent denied all the claims of Petitioner as regards the suspicion. Adultery is difficult to prove by hardcore evidence. Hardly can one get direct evidence(evidence in flagrante delicto) as regards adultery. Therefore, proof of surrounding circumstances suggestive of adultery may be the way to go. Section 2(1) of Act 367 states: (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. In Klutse v. Nelson (1965)GLR 537 @ 542 and Baah Ltd v. Saleh Brothers [1971] 1GLR 119 @ 122, the courts referred, with respectful approval, to the dictum of Ollennu J. (as he then was) in Majolagbe v. Larbi [1959] GLR 190, to wit: Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true. Kpegah J. A. (as he then was) in Zabrama v. Segbedzi [1991] 2 GLR 221 @ 246 had this to say: … a person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true, and he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden. The Court did not have to make that order as Petitioner sought in relief ii of his petition. It is for Petitioner to prove his claims by whatever evidence. Petitioner, in his quest to prove his claim of adultery on the part of Respondent, went for a deoxyribonucleic acid(DNA) test on the second child who he suspected that he was not the father of. The following is the test results: “A comparison of the DNA profiles shown below in the technical data does not support the hypothesis that Solomon Fosu is the biological parent of Emefa Owusu. 18 mismatches were observed between the alleged father and child when no mismatches are expected between a true biological father and child. Solomon Fosu is excluded as the biological parent of Emefa Owusu.” When Respondent was asked to react to the DNA test results, this is what she said: “I do not accept the DNA test results because since I got married to Petitioner, I have not had sexual intercourse with any other man.” Section 10(1) of NRCD 323 defines “Burden of Persuasion” and it states: For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Section 10(2) of the Evidence Act adds that: The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 of NRCD 323 defines “Burden of Producing Evidence”; subsections 1 and 4 state: (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) 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. In Ackah v. Pergah Transport Limited and Others [2010] SCGLR 728; Sophia Adinyira JSC stated at page 736 that: It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things(often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law 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 the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree. The onus therefore shifted to Respondent to produce some evidence as to defeat the strong evidence of the medical test i.e. the DNA test results, as to persuade the Court to disregard the said test results. Respondent failed on that course. The Court therefore takes the DNA evidence as cogent. I find that section 2(1)(a) of Act 367 prevails. I hereby hold that the marriage between the parties has broken down beyond reconciliation. The said marriage is hereby dissolved. It is hereby decreed that as from today 06th December 2022, the parties herein are no longer husband and wife. I do not find any basis to award compensation/alimony to Respondent as she prayed for in her cross-petition. I recommend, considering the circumstances of the case, that the parties should use the Family Tribunal to resolve issues about the upkeep of the children of the household in the spirit of section 2 of the Children’s Act, 1998(Act 560). (SGD) HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 06/12/2022 6