Acquah Vrs. Acquah (A4/16/2022) [2022] GHADC 398 (14 October 2022)

CORAM: HER WORSHIP MRS ADWOA AKYAAMAA OFOSU, MAGISTRATE, DISTRICT COURT ACHIMOTA, ACCRA ON FRIDAY, 14TH OCTOBER, 2022 SUIT NUMBER A4/16/2022 DAVID FIIFI ACQUAH V MARTHA ESINAM ACQUAH - - PETITIONER RESPONDENT ……………………………………………………………………………………………………… ………………………. TIME: 12:00 PARTIES PRESENT GIDEON GABOR H/B NAA ODOFOLEY NORTEY FOR THE RESPONDENT PRESENT PETITIONER SELF-REPRESENTED ___________________________________________________________________ JUDGMENT The instant petition was filed by the petitioner praying the court to dissolve the marriage between the parties celebrated on 1st September, 2007 and custody of the child of the marriage Jeffery Kojo Gyan Acquah who is 12 years old and reasonable access to the respondent. P a g e 1 | 15 The petitioner averred that she and the respondent got married on the 1st of September, 2007 under the Marriage Ordinance Cap I27 at the saint Pauls’ Catholic Church Kpehe – Accra. That they have been living together after the marriage and are blessed with an issue. The petitioner further averred that there was peace in the marriage until the respondent suddenly changed her behaviour and engaged in extra marital affairs as a result of which she gave birth with another man. Continuing, the petitioner averred that he challenged the respondent over the pregnancy and the child and refused to be the father of the child which was supposed to be the second in the marriage. That the respondent sued him at the juvenile court where the court ordered for a DNA test to be conducted and the results indicated that the child was not for the petitioner. This led to a separation between the parties. That later in 2018, the family of the respondent upon another misunderstanding between the parties, even though the parties had been separated since 2013, challenged the DNA results which led to another paternity test being conducted and the results showed that the child was not for him. The petitioner thus grounded his petition on unreasonable behaviour and particularised same as follows: 1. Respondent is infidel in the marriage and as a result had an issue from that relationship called Bonaventure Acquah 2. Parties have been separated since 2013 till now and are living separately 3. The marriage has been deserted by parties and broken down The respondent filed an answer to the petition and denied virtually all the averments of the petition and she cross petitioned as follows: P a g e 2 | 15 a. The dissolution of the marriage celebrated between the parties on 1st September 2007 at the Saint Paul’s Catholic Church, Kpehe, Accra. b. An order granting custody of the issues of the marriage to the respondent with reasonable and supervised access to the petitioner on holidays and every other weekend c. An order for the petitioner to pay maintenance of 1,000.00 a month for the issues of the marriage d. An order for the petitioner to pay the school fees and educational needs of the issues of the marriage. e. An order for the petitioner to pay a lump sum of GHC20,000 to the respondent as financial provision In support of her cross petition, the respondent averred that prior to their marriage, the respondent was romantically involved with another woman who on countless times called to threaten her to “leave her man”. The petitioner assured and promised the respondent that the woman was only a disgruntled ex- girl friend who he used to be romantically involved with. On their wedding day, the said woman sent thugs to disrupt the ceremony and on another occasion the said woman sent thugs to threaten her at the matrimonial home causing the respondent anxiety and fear for her life. Whenever the respondent complains, the petitioner becomes emotionally, psychologically and verbally abusive towards the respondent. The petitioner’s behaviour changed when he began leaving the matrimonial home late at night without recourse to the respondent and returns when he pleases sometimes days after. The respondent was informed and has sighted the petitioner being in the company of the ex-girl friend among other women in circumstances unbecoming of a married man. P a g e 3 | 15 The respondent further averred that sometime in 2013 when the petitioner was allotted a new bungalow at Laterbiokorshie to live in, he informed the respondent to move in with her family whilst he makes the place habitable for the parties. The respondent moved in with her family and till date does not know the location or the state of the bungalow wherein the petitioner currently resides, constructively deserting the respondent. In further averment, the respondent stated that the issues of the marriage currently reside with the respondent in her family house where they enrolled in a school adjacent the family house and well catered for by the respondent and her relatives in the family house. Since the petitioner constructively deserted the respondent, the petitioner rarely communicates with the respondent and the issues of the marriage. The petitioner only pays the school fees of the 1st child, leaving the respondent entirely saddled with the responsibility of maintaining and catering for the other educational needs of the two children on her meagre salary and with the support of her family. The respondent further states that the petitioner has been adulterous and has a child by name Leonard Acquah with one of his concubines causing the respondent great embarrassment and making it intolerable for the respondent to live with the petitioner. By reason of the above the respondent stated that the petitioner has behaved in such a way that the respondent cannot reasonably be expected to continue living with the petitioner as husband and wife as his behaviour has caused the respondent so much pain, hurt and emotional distress making the respondent feel dejected and depressed. The respondent further stated that the respondent and the petitioner have not lived together as husband and wife for a continuous period of six years immediately preceding the presentation of the petition. That the parties after diligent efforts, been unable to reconcile their differences. P a g e 4 | 15 The respondent thus cross petitioned for the following reliefs: a. The dissolution of the marriage celebrated between the parties on 1st September, 2007 at the St Paul’s Catholic Church, Kpehe, Accra b. An order granting custody of the issues of the marriage to the respondent with reasonable and supervised access to the petitioner on holidays and every other weekend c. An order for the petitioner to pay maintenance of 1,000 a month for the issues of the marriage d. An order for the petitioner to pay the school fees and educational needs of the issues of the marriage e. An order for the petitioner to pay a lump sum of GHC20,000 to the respondent as financial provision In reply and answer to the cross petition the petitioner denied virtually all the assertions of the respondent. By an order of the court the parties filed their respective witness statements. The parties did not call any witnesses. From the pleadings the court was called upon to determine the following issues 1. Whether or not the marriage has broken down beyond reconciliation 2. Whether or not the petitioner is the father of the second child, Bonaventure Acquah 3. Which of the parties is entitled to custody of the issues of the marriage 4. Whether or not the petitioner is entitled to financial provision P a g e 5 | 15 As in all civil cases a party that alleges has the responsibility to produce evidence to prove what he or she alleges or asserts. The standard of proof is “proof on a preponderance of probabilities” as provided for under section 12(1) of the Evidence Act 1975, (NRCD 323) In the instant case therefore, both parties have the burden to prove what they assert in the petition and the cross petition ISSUE 1 Whether or not the marriage has broken down beyond reconciliation Section 1(2) of the Matrimonial Causes Act 1971 (Act 367) which is the enactment that governs the dissolution of marriages in Ghana provides that: “The sole ground for the dissolution of marriage in Ghana shall be that the marriage has broken down beyond reconciliation”. To enable the court come to this determination, the law further requires the petitioner (per section 2(1) of Act 367) who has brought the petition before the court to lead evidence to the satisfaction of the court that one or more of the facts facts enumerated therein have occurred in the marriage. The said section thus provides that: “(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 the Petitioner finds it intolerable to live with the Respondent; b. That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent; P a g e 6 | 15 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 lived apart for continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree being granted. e. That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. f. That the parties to the marriage have, after diligent efforts been unable to reconcile their differences.” The petitioner in the instant case grounds his petition on unreasonable behaviour of the respondent touching on her infidelity and that the parties have not lived together as man and wife since 2013. The petitioner alleges that there was peace in their marriage until the respondent suddenly changed her behaviour towards him which behaviour led to the respondent engaging in extra marital affairs out of which the respondent gave birth with another man. The respondent denied this allegation and therefore the petitioner had the burden of proving his assertion against the respondent. According to the petitioner, between the year 2010 and 2013, the petitioner gained admission at KNUST as a weekend student of which he gave his approval. During the latter part of 2012, the respondent got pregnant but he challenged the respondent over the pregnancy because prior to the time that the pregnancy became known, the respondent had left her matrimonial home to stay with her parents for over one month P a g e 7 | 15 without his consent. The respondent later sued him at the family and juvenile court over the upkeep of the children whereupon he challenged the paternity of the second child. The court thus gave an order for a DNA test to be conducted as per exhibit A. The test results showed that he was not the father of the second child. The petitioner supported this with exhibit B, the DNA test results. According to the petitioner in 2018 the family of the respondent requested for another DNA test to be conducted on the second child and the second test also proved that he is not the father of the second child. Even though the respondent denied the averments of the petitioner contained in paragraphs 4 to 8 of the petition, the respondent offered no evidence in rebuttal. In the light of the overwhelming evidence on record in support of the petitioner’s assertion of infidelity against the respondent and in the absence of any evidence to contradict same, I hold that the respondent was infidel in the marriage and although the petitioner did not ground his petition on adultery in terms of section 2(1)(a) of Act 367(supra), it is my view that the respondent’s conduct constitutes unreasonable behaviour for which the respondent cannot reasonably be expected to live with her. Furthermore the incontrovertible evidence is that the parties herein have since 2013 not lived together as husband and wife which falls within section 2(1)(e) of Act 367 which provides that: “(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:— e. That the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. P a g e 8 | 15 On the basis of the forgoing therefore, I am satisfied that the marriage between the parties has broken down beyond reconciliation in terms of section 2(1)(b) and (e) of Act 367 (supra) and same ought be dissolved. Issue 2 Whether or not the petitioner is the father of the second child, Bonaventure Acquah It is my view that this issue ought to be clearly determined to enable the court deal effectively with the issue of maintenance and custody. Section 32 of NRCD (supra) provides that: “A child born during the marriage of the mother is presumed to be the child of the person who is the husband of that mother at the time of birth”. This is a rebuttable presumption and per section 20 of NRCD 323 (supra): A rebuttable presumption imposes on the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non- existence of the presumed fact. In the instant case the burden therefore laid on the petitioner to produce evidence to rebut the said presumption since it operates against him. To this end, the petitioner tendered exhibits B and C which are DNA test results conducted in 2013 and 2018 respectively, which indicate that the petitioner is not the father of the supposed second issue of the marriage Bonaventure Acquah. No evidence has been offered to contradict the evidence of the petitioner. On the preponderance of probabilities therefore, it is my view that the petitioner effectively rebutted the P a g e 9 | 15 presumption of he being the father of the supposed second child of the marriage being Bonaventure Acquah. On that basis, I hold that the petitioner is not the father of the supposed second child of the Marriage, Bonaventure Acquah. ISSUE 3 Which of the parties is entitled to custody of the issues of the marriage Whilst the petitioner prays for custody of Jeffery Kojo Gyan Acquah who was twelve years old at the time of the presentation of the petition in November 2021, the respondent cross petitions for an order granting custody of the issues of the marriage to the respondent. On the issue of custody of the children, the guiding principle is the welfare principle which is provided under section 2 of the Children’s Act, 1998, (Act 560) which provides that: (1) The best interest of the child shall be paramount in any matter concerning the child (2) The best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child Thus in Braun v Mallet [1975] 1GLR at page 82, the court held that: “in the question of custody, it was well settled that the welfare and happiness of the infant was of paramount consideration of the court in the exercise of its powers in relation to children” Furthermore, Section 45 of Act 560 supra provides that: P a g e 10 | 15 (1) A Family Tribunal shall consider the best interest of the child and the importance of the young child being with his mother when making an order for custody or access (2) Subject to subsection (1) a family tribunal shall also consider (a) the age of the child (b) That it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents (c) The views of the child if the views have been independently given (d) That it is desirable to keep siblings together (e) The need for continuity in the care and control of the child; and (f) Any other matter that the Family Tribunal may consider relevant As established from the evidence, the petitioner is not the father of the supposed second issue of the marriage and so obviously the respondent shall continue to have custody of the second issue Bonaventure Acquah since she is his mother and which is in conformity with the law as provided in section 45 (2)(b) of Act 560 (supra). In respect of custody of the issue of the marriage, counsel for the respondent in her address submitted that he is an adolescent of 14 years old and is at the most impressionable stage of his life and highly susceptible to vices. Thus it will be in his best interest to ensure that he has good counsel and guidance from persons of good character. The evidence established that even when the parties were living as husband and wife, the child was living with the respondent’s family on weekdays and came to them on weekends. This was when the child was under four years old and he continues to stay in the respondent’s family house and attends a school close to the family house and from all indications is doing well in school. P a g e 11 | 15 The evidence further established that the petitioner lives alone and does not have the experience of single handedly taking care of the issue of the marriage or any of the two children he has with other women. During cross examination it became evident that he petitioner does not know how often the child visits the hospital and does not even see the child often. The following ensued under cross examination of the petitioner: Q: Do you know that your son often gets sick and frequents the hospital A: I don’t know the frequency but the last one I can remember was in 2018 During further cross examination the following transpired: Q: Before God and Man when was the last time you saw Jeffery A: It was in the last week of their 2nd term vacation in class six during the open day. It is obvious from the above that the petitioner is not fully involved with the personal care of the issue of the marriage and it has largely been the responsibility of the respondent with the support of her family. Counsel for the respondent further submitted, that it will be an understatement to state that a change in the environment would affect the mental and psychological growth and development of the child and be injurious to the child’s best interest especially as he is about to write his final exam to enter the senior High School. I cannot agree more with counsel’s submission in view of the welfare principle as stated in section 2 of Act 560 (supra) Furthermore, counsel submitted that a grant of custody to the petitioner will result in the separation of two siblings who have for most of their lives resided together and attend the same school causing both siblings untold emotional and psychological damage that P a g e 12 | 15 will require years of therapy to correct. Counsel referred to the case of Opoku Owusu v Opoku Owusu [1973] 2 GLR where the court held that: In such an application, the paramount consideration is the welfare of the children. The court’s duty is to protect the children irrespective of the wishes of the parents.... I think it is desirable to keep brothers and sisters together and not to split them up. A separation will disturb their progress and may affect them emotionally In the instance, it is my view that if custody is granted the petitioner, it will mean that the first child Jeffery will be separated from his brother with whom he has lived the most part of his life and of whom his mother the respondent has custody. This will certainly not be in the best interest of the child. I therefore agree with counsel’s submission that custody should remain with the respondent. Once custody is granted the respondent she will be entitled to an order for maintenance of the child ISSUE 4 Whether or not the petitioner is entitled to financial provision In her cross petition, the respondent seeks an order for petitioner to pay a lump sum of GH₵20,000.00 to the respondent as financial provision. Section 20 (1) of Act 367 (supra) provides that: “The court may order either party to the marriage to pay the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights in lieu thereof or as part of financial provision as the court thinks just and equitable” P a g e 13 | 15 Counsel for the respondent submitted that in making this award, this court ought to consider the standard of living of the parties and their circumstances to determine what is just and equitable. That in this action both parties are employed the petitioner is employed by the state as a civil servant and enjoys security of tenure. The respondent however is employed as an accounts clerk with an insurance company in Accra with no security of tenure. That it will only be just to ensure the petitioner provides some financial provision in order for the respondent to further her education to firm herself up in the company wherein she works or to fund a small business to cater for her needs, that of the children and support the members of her family who reside in the family house and cater for the children during the hours that she is at work. I must say that I am not persuaded by counsel’s submission as a basis for the grant of an order for financial provision. However considering the facts of the case, the circumstances leading to the separation of the parties in 2013 and the fact that the respondent has had to bear a chunk of the expenses in relation to the issue of the marriage for all this period, almost ten years, it is my opinion that it is just and equitable for the petitioner to make financial provision for the respondent. On the whole therefore, both the petition and the cross petition succeed in part. Consequently, it is hereby decreed that the marriage under the ordinance celebrated between the parties on 1st September, 2007 be and same is hereby dissolved and cancelled accordingly. Further to this, the following consequential orders are made: 1. Custody of the issue of the marriage Jeffery Kojo Gyan Acquah is granted the respondent with reasonable access to the petitioner on holidays and every other weekend. 2. The petitioner is ordered to pay the sum of GH₵600.00 as monthly maintenance for the issue of the marriage. P a g e 14 | 15 3. The petitioner shall pay the school fees and medical bills of the child as and when they fall due. 4. The Petitioner is ordered to pay a lump sum of GH₵15,000.00 as financial settlement. Parties to bear their costs. SGD ADWOA AKYAAMAA OFOSU (MRS) DISTRICT MAGISTRATE P a g e 15 | 15