Manu Vrs Wilson [2022] GHADC 341 (13 December 2022)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON TUESDAY THE 13TH DAY OF DECEMBER, 2022 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO. G/WJ/DG/A4/61/22 EMMANUEL APPIAH MANU PETITIONER VRS MATILDA ABENA WILSON RESPONDENT THE LAWFUL ATTORNEY OF PETITIONER IS PRESENT AND REPRESENTED BY ITA TETTEH RESPONDENT IS ABSENT JUDGMENT The petitioner filed a petition on 20th June, 2022 against the respondent for the following reliefs: a. Dissolution of the marriage between the parties as having broken down beyond reconciliation b. Any further orders as the honourable court may deem fit. Respondent was served with the petition and a hearing notice on 20th July 2022 inviting her to contest the divorce however it is to be noted that even though respondent was served with all the necessary processes as well as hearing notices, for unexplained reasons, respondent did not file any process to contest the suit or appear in court personally to be heard. When the case was called for hearing, respondent failed to attend court and therefore the matter was heard without her. Order 25 r 1(2) (a) of the District Court Rules 2009, C. I.59 provides; “Where an action is called for trial and a party fails to attend, the trial magistrate may where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim if any and allow the Plaintiff to prove the claim” In Ankumah v City Investment Co Ltd [2007-2008] 2 SCGLR 1064, Baffoe Bonnie JSC held at page 1076 as follows; “A court is entitled to give judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not wish to be heard.” THE CASE OF THE PETITIONER The petitioner testified through his lawful attorney Esther Manu. She tendered a Power of Attorney donated to her by the petitioner and same was admitted in evidence and marked as Exhibit A. It is the case of the Attorney of petitioner that during the time parties were courting, respondent informed petitioner that she was pregnant and as a result parties got married on 2nd September 2000 at the Bethel Methodist Church in Takoradi. She tendered the marriage certificate with licence number SAGMA/167/2000 in evidence and same was admitted and marked as Exhibit B. It is the further case of the Attorney that respondent delivered a baby boy who was named Emmanuel Appiah Manu Junior. She added that the petitioner showed both the respondent and the child love and affection and made sure that they lacked nothing. She stated that four years thereafter, it came to the attention of the petitioner that another man was laying claim to the child. When he enquired the truth of the matter from the respondent, she admitted that the child belonged to another man and not to petitioner as she had made him believe. This broke the trust between the parties as petitioner felt he had been deceived into the marriage. All attempts at reconciliation by families of the parties have been unsuccessful as respondent remained adamant and unapologetic. Parties lived separately until petitioner travelled outside the jurisdiction. According to the attorney, parties have not lived as man and wife since 2004. She prayed for the dissolution of the parties’ marriage. ISSUE SET DOWN FOR DETERMINATION The issue that was set down for determination by the Court was whether or not the marriage contracted between the parties has broken down beyond reconciliation. In all divorce (civil) disputes, the petitioner ought to adduce evidence which must prove on the preponderance of probabilities that the marriage has broken down beyond reconciliation. STANDARD OF PROOF A party who asserts assumes the burden of proof. The requirements in sections 11,12 and 13 of the Evidence Act, 1975 (NRCD 323) on the burden to adduce evidence and burden of persuasion which together constitute the burden of proof was explained in Yorkwa v Duah [1992-93] GBR 272 as follows; “I am of the view that the expression burden of persuasion should be interpreted to mean the quality, quantum, amount, degree or extent of evidence the litigant is obliged to adduce in order to satisfy the requirement of proving a situation or fact. The burden of persuasion differs from the burden of producing evidence…the burden of producing evidence means the duty or obligation lying on a litigant to lead evidence. In other words, these latter sections cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led. Therefore it is the plaintiff who will lose first who has the duty or obligation to lead evidence in order to forestall a ruling being made against him.” The burden of proving the claims lies on the party making the claim. SHIFTING OF THE BURDEN OF PROOF The burden of proof may shift from the party who bore the primary duty to the other. Section 14 of the Evidence Act, 1975 (NRCD 323) provides as follows; Except as otherwise provided, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. In the case of Re Ashalley Botwe Lands; Adjetey Agbosu v Kotey [2003-2004] SCGLR 420, it was held as follows; “It is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323) the burden of producing evidence in a given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted. COURT’S OPINION In divorce cases, section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) provides that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Section 2 (1) of Act 367 again provides that 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 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 (f) That the parties after a diligent effort been unable to reconcile their differences. Section 2(3) provides that although the court finds the existence of one or more of the facts specified in (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. His Lordship Dennis Adjei J. A reiterated the position of the law in the case of CHARLES AKPENE AMEKO V SAPHIRA KYEREMA AGBENU (2015) 99 GMJ 202, thus; “The combined effect of sections 1 and 2 of the Matrimonial Causes Act, 1971 (Act 367) is that for a court to dissolve a marriage, the court shall satisfy itself that it has been proven on the preponderance of probabilities that the marriage has broken down beyond reconciliation. That could be achieved after one or more of the grounds in Section 2 of the Act has been proved.” In ADJETEY V ADJETEY [1973] 1 GLR 216, it was held; “ On a proper construction of the Act, the court can still refuse to grant a divorce even when one or more of the facts set out in section 2(1) has been established. It is therefore incumbent on a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion that the marriage has broken down will not be enough.” From the evidence, the Petitioner based his allegations for the breakdown of the marriage on the unreasonable behaviour of the Respondent. At page 315 of the book, “The Law on Family Relations in Ghana by William Cornelius Ekow Daniels, the learned author states as follows; “In cases involving behaviour, the burden of proof will lie on the petitioner to prove that the respondent has behaved in such a way that he cannot reasonably be expected to live with the respondent. It will be a good defence for the respondent to seek to prove that he has not behaved wholly or in the manner alleged. This defence will go to the establishment of the truth of the statement concerning the behaviour. The second defence will relate to the question whether the extent of respondent’s behaviour is that the petitioner cannot reasonably be expected to live with the respondent.” The respondent was not in court to cross examine the respondent on his assertions. In Quagraine v. Adams [1981] GLR 599 it was held that in a situation where a witness testifies and his opponent fails to cross-examine him, the court may consider the witness’s testimony as admitted by his opponent. I therefore find and hold that the petitioner has been able to prove on a balance of probabilities that the parties’ marriage has broken down beyond reconciliation by the unreasonable behaviour of the respondent. I therefore proceed under Section 47 (1)(f) of the Courts Act 1993, (Act 459) to decree that the Ordinance Marriage between Emmanuel Appiah-Manu and Matilda Abena Wilson celebrated at the Bethel Methodist Church on 2nd September 2000 is hereby dissolved. I hereby order the cancellation of the marriage certificate issued. A certificate of divorce is to be issued accordingly. I make no order as to costs. ............................................... H/W RUBY NTIRI OPOKU (MRS.) (DISTRICT MAGISTRATE)