Orlando Kwaku Appiah Vrs Naomi Lartey [2022] GHACC 88 (28 December 2022)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON WEDNESDAY THE 28TH DAY OF DECEMBER, 2022, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C5/81/22 ORLANDO KWAKU APPIAH ----- PETITIONER VRS. NAOMI LARTEY ----- RESPONDENT PARTIES PRESENT NO LEGAL REPRESENTATION JUDGMENT FACTS: The uncontroverted facts of this case are that the petitioner, a Navy Officer, got married to the respondent under Part III of the Marriages Act (1884- 1985), Cap 127, on 8th August 2011, at the Tema Metropolitan Assembly, Tema. Thereafter, the parties cohabited at Tema New Town. The marriage is blessed with three children namely; Whitney Appiah, aged 10 years, Sally Appiah, aged 8 years and an 18 months old baby yet to be named at the time of filing the instant petition for divorce. On 2nd June, 2022, the petitioner filed the instant petition for divorce alleging that the marriage celebrated between himself and the respondent has broken down beyond reconciliation and prayed the court for the following reliefs; a. An order of the court for the dissolution of the marriage contracted on the 8th August, 2011 at the Tema Metropolitan Assembly. b. An order to grant custody of the two children of the marriage to the petitioner with reasonable access. c. Any other order (s) as the court may deem fit. The petitioner avers that the respondent has behaved in such a way that he cannot reasonably be expected to live with her as man and wife. The particulars of unreasonable behaviour alleged are that there is a total lack of love, trust and commitment on the part of the respondent in the marriage. The petitioner accuses the respondent of neglecting her responsibilities as a wife since she does not cook, wash nor perform any other household chores expected of a wife. Again, the petitioner avers that the respondent does not respect him as her husband and insults the petitioner in the presence of his co-workers in the barracks when there is mere misunderstanding between the parties. Additionally, the petitioner claims that when the respondent was pregnant with their last child, there was a misunderstanding between them and the respondent came out of their room naked crying and insulting petitioner until a colleague’s wife came and covered respondent with a cloth and took her to the room. The petitioner further alleges that the respondent exposed his nakedness when they had an issue with a key. The petitioner adds that the respondent has a violent disposition The respondent also destroyed the windscreen of a car he acquired through loan but he attributed the spate of anger in the respondent to the pregnancy. Furthermore, the petitioner states that the respondent extorted money from him to attend antenatal care at Fidel Hospital at Tema Community 2 for which he gave her GH₵200 cedis every week to attend antenatal care. When she was due to deliver, the petitioner took her to the said hospital to deliver but they were turned away because she only visited the hospital three times despite the various amounts taken for antenatal care and he had to quickly arrange with a doctor at the Tema General Hospital to enable her deliver safely. The petitioner states that after delivery of their last born, the respondent went to her mother for assistance but she never returned and she did not allow the children to go to school. The respondent further named their last born without his knowledge and when he confronted her over the issue, she insulted him without just cause. Despite that, he maintains the children every month with an amount of GH₵500 and pay their school fees, feeding fees, hospital bills, studies fees. The petitioner states again that he once saw the children at a spot around 10- 11pm and when he enquired from her why she was in the spot at that time, she became angry leading to a scuffle between himself and the bar tender. The petitioner avers that he has on numerous occasions talked to the respondent about her behaviour but to no avail. Also, all attempts made by family members to reconcile their differences have failed. Consequently, the marriage celebrated between them has broken down beyond reconciliation. The respondent was personally served with the petition for divorce and all processes in the suit but she failed to enter appearance and to appear in court to participate in the proceedings. The court granted leave to the petitioner to lead evidence to prove his claim. Based on the pleadings and the evidence led, the court set down the following issues for determination. LEGAL ISSUES 1. Whether or not the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. 2. Whether or not the petitioner is entitled to the custody of the first two children of the marriage with reasonable access to the respondent. ANALYSIS It is trite learning that he who alleges must prove. The burden on a party to prove his claim on a balance of probabilities remains the same even when the action is uncontested. In the case of Tei & Anor v. CEIBA Intercontinental [2017-2018] 2 SCGLR 906 at 919, the Supreme Court, per Per Pwamang JSC stated as follows: “It must be remembered that the fact that defendant does not appear to contest a case does not mean that the Plaintiff would be granted all that he asks for by the court. The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at the trial. The absence of the defendant will aid the plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claim.” Thus, the petitioner who petitioned for divorce must lead sufficient evidence to prove the allegations contained in the petition on a balance of probabilities and the absence of the respondent at the trial does not relieve the petitioner of this obligation. ISSUE 1: Whether or not the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. Under Section 1 of the Matrimonial Causes Act, 1971(Act 367), the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, the petitioner is required to establish at least one of the facts set out in Section 2(1) of Act 367, namely, adultery, unreasonable behaviour, desertion, failure to live as husband and wife for at least two years, failure to live as man and wife for five years and irreconcilable differences. Also, in consonance with the spirit of Act 367 which is the promotion of reconciliation as far as may be practicable, Section 8 enjoins the petitioner to inform the court of all attempts made to effect reconciliation. Further to that, Act 367 imposes an obligation on the court to enquire carefully into the facts alleged and shall refuse to grant the petition if there is a reasonable possibility for reconciliation. In the case of Mensah v. Mensah [1972] 2 GLR 198, the court held in its holding 1 that: “Under Act 367, s. 2(2) the court has to inquire into the facts alleged by the parties. However, the court does not have to hold such inquest in all cases. Where the evidence of a petitioner stands uncontradicted an inquest is not necessary unless it is suspected that the evidence is false or the true position is being hidden from the court.” The petitioner in this instant petition has set out to prove fact 2(1)(b), namely, “that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent”. Thus, the obligation is on the petitioner to establish the conduct of the respondent constituting unreasonable behaviour, and the fact that he cannot reasonably be expected to live with her as a result of the behaviour alleged and proved. In the case of Hughes v. Hughes [1973] 2 GLR 342 @ 345 Sarkodee J held that; “to succeed, the petitioner must show that the respondent’s conduct reached a certain degree of severity. Her conduct must be such that no reasonable person would tolerate or consider that the complainant should be called on to endure”. The Matrimonial Causes Act, 1971 (Act 367) does not enumerate the conducts that constitute unreasonable behaviour to entitle a party to a grant of dissolution of the marriage. From case law, conducts such as assault of a partner, threat of death, writing damaging letters to a spouse’s employers, causing the arrest of a spouse without just cause, denial of sex to a partner, failing to cooperate in finding solution to the couple’s inability to have children and verbal abuse have all been held to constitute unreasonable behaviour which, coupled with the inability of the parties to reconcile can lead to a dissolution of the marriage. See the case of Happee v. Happee & Anor [1974] 2 GLR 186, The petitioner in his testimony repeated his averments on oath that he got married to the respondent on the 8th August, 2011 at the Tema Metropolitan Assembly and there are three children to the marriage. The petitioner avers that the marriage has broken down beyond reconciliation because the respondent does not respect him and at the Navy Officers barracks, where they live, the respondent insults him in the presence of his colleagues much to his embarrassment. According to his testimony, the respondent is not truthful and she discusses their marital issues with her parents which has made his trust for her to wane. For the past two years, the respondent has left the matrimonial home to live in her parents’ house and as such they have not lived as man and wife. The petitioner testified again that there is no love and trust in the matrimonial home and mere misunderstanding between them brings quarrel. There have been attempts made by family members to reconcile their differences which have all proved futile. He further states that as a result of the behaviour exhibited by the respondent in the marriage, he has lost interest and as such cannot reasonably be expected to live with her and prays the court to dissolve the marriage. The respondent was duly served personally with all the processes in the suit but she boycotted the proceedings. In the case Ankumah v. City Investment Co Ltd [2007-2008] 1 SCGLR 1064 holding 1, the Supreme Court held as follows; “The defendant, after several attempts, was finally served but failed to appear in court. The trial court therefore rightly adjourned the case for judgment. A court is entitled to give a default judgment, 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 respondent having failed to appear to contest the petition for divorce, the allegations regarding her behaviour in the marriage remains unchallenged. The absence of the respondent at the trial has deprived the court the opportunity to test the veracity of the testimony of the petitioner on oath. In situations where a party who appears at the trial fails to cross-examine his opponent on material facts is deemed to have admitted. Consequently, it becomes more damning when evidence of unreasonable behaviour has been led against a party but the party chose to boycott the proceedings. I therefore find that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with her. I therefore hold that the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation. I accordingly grant the petition for divorce. ISSUE 2: Whether or not the petitioner is entitled to the custody of the two children of the marriage. Under section 22(2) of the Matrimonial Causes Act, 1971 (Act 367), a court in any proceedings under the Act, on its own motion or an application by a party, may make an order concerning an award of custody of a child to any person, regulate the right of access of any person to the child, provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage. However, the Act does not specify the factors a court must consider in awarding custody or access to a child. The Children’s Act, 1998 (Act 560), provides useful guidance on the factors to consider in custody applications. The primary consideration is the welfare of the child as stated in section 2 of Act 560. Under section 45(1), a family tribunal making a custody order shall consider the best interests of the child, and the importance of a young child being with the mother when making an order for custody and access to a child. Among the factors to consider are; the age of the child, the importance of a child to be with the parents unless the child is persistently abused, the need for continuity in the care and control of the child, the views of the child if independently given, the need to keep siblings together, and any other relevant matter. In the case of In re McGrath (Infants) [1893] 1 Ch. 143, C. A. Lindley L. J. said at p. 148 what the courts consider in determining the welfare of the child in the following terms: “The duty of the Court is, in our judgment, to leave the child alone, unless the Court is satisfied that it is for the welfare of the child that some other course should be taken. The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.” Also, in the case of Braun v. Mallet [1975] 1GLR 81at page 91, the court held that: “The poverty of a parent is not per se a ground for depriving him of the custody of his or her child, and the mere fact that another claimant to custody is in a position to give the child a better start in life does not automatically give him a prior claim:” The petitioner in the instant case who claimed custody of the first two children of the marriage did not lead a scintilla of evidence in support of his claim to the custody of the children. The court ordered for a Social Enquiry Report but the court is unable to follow the recommendations in the report since on record, the petitioner is a Navy officer who may be called upon to leave the jurisdiction any day. The respondent also has more time on her hands to provide nurturing care for the children. There is also the need to ensure continuity in the care of the children and having regard to the ages of the children, they need to be cared for by their biological mother in the absence of the petitioner. There is no evidence that the lives of the children are in danger whilst in the custody of the respondent. The petitioner from his own pleading has stated that the third child of the marriage has not been named. Under section 6 of Act 560, every child is entitled to a name from birth and no person shall deprive the child of a name. Also, under section 6(4), a parent is responsible for the registration of the name of a child. The petitioner having stated that he is the biological father of the third child of the marriage but the said child is not named, this court cannot turn a blind eye to the infringement of the fundamental rights of the child in issue. I therefore order the petitioner to name the child within 14 days from the date of judgment and apply for the registration of the birth of the third child of the marriage. Having regard to the best interest of the children, and to ensure that there is continuity in the care and control of the children and the need to keep siblings together, I will award custody of the three children of the marriage to the respondent with reasonable access to the petitioner. The children shall spend weekend every fortnight and half of their vacation period with the petitioner. The petitioner states that he fully maintains the children and is responsible for their educational and health needs. The respondent has not appeared to challenge this for the court to hold that the contrary is the case and to make the necessary orders. Since it is the joint responsibility of parties to care for and maintain their children, the parties shall continue to maintain the three children of the marriage and provide them with the necessaries of life until they attain the age of majority. The petitioner shall pay a monthly maintenance allowance of GH₵1,000 effective 16th January, 2023, for the upkeep of the three children and shall be responsible for their educational and medical expenses. The respondent shall be responsible for the clothing needs of the three children. CONCLUSION In conclusion, I hold that the marriage between the petitioner and the respondent has broken down beyond reconciliation. I accordingly grant the petition for divorce and enter judgment in the following terms; 1. I hereby grant a decree for the dissolution of the ordinance marriage celebrated between the petitioner and the respondent on 8th August, 2011, at the Tema Metropolitan Assembly. 2. The petitioner shall present the original copy of the marriage certificate for cancellation by the Registrar of the court. 3. I hereby grant custody of the three children of the marriage namely; Whitney Appiah aged 10 years, Sally Appiah aged 8 years, and the 18 months old at the time of filing the petition to the respondent with reasonable access to the petitioner. The children shall spend weekend every fortnight and half of their vacations with the petitioner. 4. The petitioner is ordered to name the third child of the marriage and apply to register the birth of the child within fourteen (14) days from the date of the judgment. 5. The parties shall continue to maintain the three children of the marriage and provide them with the necessaries of life until they attain the age of majority. The petitioner shall pay a monthly maintenance allowance of GH₵1000 effective 16th January, 2023 for the upkeep of the three children and shall be responsible for their educational and medical expenses. The respondent shall be responsible for the clothing needs of the three children. 6. No order as to costs. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) (SGD) 11