Dominic Asante Vrs Octovia Ann Poku Agyemang [2022] GHADC 245 (15 December 2022)

IN THE TDC DISTRICT COURT HELD AT TEMA ON THURSDAY, THE 15TH DAY OF DECEMBER 2022 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE SUIT NO. A4/35/22 ---------- PETITIONER DOMINIC ASANTE COMMUNITY 25 TEMA VRS OCTOVIA ANN POKU AGYEMANG ---------- RESPONDENT COMMUNITY 25 TEMA PARTIES: PETITIONER PRESENT RESPONDENT ABSENT COUNSEL: NO LEGAL REPRESENTATION FOR THE PETITIONER MILDRED ACHEAMPONG FOR THE RESPONDENT ABSENT JUDGMENT The Petitioner per his petition filed on 6th June 2022 prays for dissolution of his marriage with the Respondent on the ground that their marriage has broken down beyond reconciliation; that the Respondent has behaved in a way that he cannot reasonably be expected to live with her. The Petitioner further says that attempts made at reconciliation have failed. Page 1 of 9 On 5th August 2022 when the case was first called in Court, the Petitioner was present whilst the Respondent was absent. Counsel for the Respondent appeared and prayed for a date to file the necessary process and also told the Court that the families were trying to settle their issues; to which the Petitioner responded that the attempts at reconciliations were not successful. The Court therefore ordered counsel for Respondent to ensure that the Respondent is present before the Court on the next adjourned date. Notwithstanding the above, the Respondent did not file her response/answer to the divorce petition neither did she appear before the Court although the petition and hearing notice were duly served on her by affidavits of service dated 7th June 2022 and 19th July 2022 respectively, which were deposed to by one Ahmed Ansah, a private bailiff attached to this Court. Further hearing notice and witness statement of the Petitioner were duly served on the Respondent on the orders of the Court by the same bailiff per his affidavit of service dated 8th November 2022, however the Respondent still failed to attend Court or respond to the petition. Consequently the Respondent did not participate in the hearing of the instant petition. Order 25 rule 1(2) (a) of the District Court Rules, 2009 (C. I. 59), provides that: “Where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim, if any, and allow the Plaintiff to prove the claim” The Respondent having failed to attend Court for the hearing of the petition notwithstanding proofs of service on her and relying on the above authority; the Court commenced the hearing without the Respondent. Page 2 of 9 It is common knowledge that being a divorce petition, as provided in section 2(3) of the Matrimonial Causes Act, 1971 (Act 367), 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. THE CASE OF THE PETITIONER In his petition and evidence to the Court, the Petitioner stated that he got married to the Respondent under the Marriage Ordinance on 3rd June 2020 at the Tema Metropolitan Assembly Chamber. That there is one issue of the marriage called Myles Kobby Asante. He continued that there have been several attempts to resolve their marital issue by the family, close relations, a counselor and Ogyedom ADR center but to no avail. That the mediator after hearing both parties on 12th March 2022 recommended that they separate for six weeks; and they have been separated since, due to continued misunderstanding. According to the Petitioner, there has not been any intimacy in the marriage for the past two years. That the Respondent often uses abusive words and curses on him whenever there is a misunderstanding. That the Respondent also uses threatening words on him such as she will bring him down, she will make sure he loses his job, among others. The Petitioner further stated that the Respondent subjects him to public ridicule that he is having an affair with two female friends and a colleague lady. That the Respondent spreads false stories about him to tarnish his image. The Petitioner continued that the Respondent physically attacked him twice; that she removed her slippers to slap his face whiles he was holding their son, and threw an iron at him twice. That he takes care of their son and Respondent needs such as school fees, feeding fee, hospital bills, monthly upkeep, provision and foodstuffs. He concluded that the public embarrassment, threats, verbal, physical and emotional abuse, false accusations, lack of intimacy and consistent misunderstanding are not healthy for both parties in the Page 3 of 9 marriage. He prayed for the dissolution of the marriage and access to the only child of the marriage whilst custody is granted to the Respondent. The Petitioner did not call witness and closed his case thereafter. Let me put it on record that the Respondent as stated supra failed to respond to the petition for divorce and also to attend Court to partake in the hearing of the petition although there were proofs of service on her. Order 1 of the District Court Rules, 2009 (CI 59) provides that the rules shall apply to all civil proceedings in the District Court and shall be interpreted and applied so as to inter alia achieve speedy and effective justice and avoid delays and unnecessary expense and also to ensure the complete, effective and final determination of all matters in dispute. Order 27 rule 1 of CI 59 provides that it is the duty of the parties, their lawyers and the Court to avoid unnecessary adjournments and other delays and ensure that causes or matters are disposed of as speedily as the justice of the case permits. Sophia Akuffo JSC (as she then was) reiterated the above principles in the case of Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation [2003-2004] SCGLR 21 where she said: “… in its remedial or practical character, the rules of procedure should serve the purpose of facilitating the sound management of litigation and process efficiency. It is these basic characteristics of civil procedure rules that facilitate the realization of the overall objective of the judiciary which is to assure access to justice for all...” Page 4 of 9 A party has himself or herself to blame for failing to attend Court. In the case of Republic v. Court of Appeal, Accra Ex Parte East Dadekotopon Development Trust, Civil Motion No J5/39/2015, dated 30- 07-15, SC Unreported, it was held that: “There could not be a breach of the rules of the audi alteram partem rule, when it is clear from the facts that sufficient opportunity was given to a party and was abused by him”. From the foregoing reasons and relying on the above authorities, this Court closed the hearing; and further set a date for judgment having given the Respondent ample time and opportunity to attend Court but she failed to do so. The legal issues to be determined by this Court are: 1. Whether or not there is unreasonable behavior on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with her. 2. Whether or not the marriage has broken down beyond reconciliation. In every civil case, the general rule is that the burden of proof rests upon the party, whether Petitioner or Respondent, who substantially asserts the affirmative of his or her case. In the case of Lamptey alias Nkpa v. Fanyie & Others [1989-90] 1 GLR 286, the Supreme Court held that: “On general principles, it was the duty of a plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the defendant to lead sufficient evidence to tip the scale in his favour”. This is clearly covered in section 14 of the Evidence Act, 1975 (NRCD 323). Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: Page 5 of 9 “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”. The relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely; sections 1(2), 2(1) and (3) provide as follows: "1(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 2(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. Page 6 of 9 (3) notwithstanding that the Court finds the existence of one or more of the facts specified in subsection (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." The Court should grant a divorce only where there has been a breakdown of the marriage beyond reconciliation. It is required from the Petitioner to prove one or more of the specified facts in order to establish that the marriage has broken down beyond reconciliation unquestionably on all the evidence. The burden on the Petitioner is therefore to prove that the marriage has broken down completely; proof of one or more of the facts under section 2(1) of Act 367 is/are important. From the evidence before the Court, the Petitioner told the Court that the Respondent often uses abusive and threatening words as well as curses on him whenever there is a misunderstanding and that the Respondent also subjects him to public ridicule that he is having an affair with other ladies. He also told the Court that the Respondent spreads false stories about him to tarnish his image. That the Respondent physically attacked him twice as she slapped his face with her slippers and threw an iron at him. It needs to be reiterated here that this matter being a civil action, the burden of proof on the Petitioner is nothing more than proof on the preponderance of probabilities. As indicated above in this judgment, the Respondent did not answer the allegations of the Petitioner against her despite duly been served with the petition and hearing notices. In the absence of contrary evidence or denial of the allegations by the Page 7 of 9 Respondent, I find that there was unreasonable behavior on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with her. After a careful examination of the evidence led by the Petitioner, it is undisputable that the Petitioner and the Respondent have not lived as husband and wife for some time now in their two years’ marriage. From the evidence before this Court, there has also not been any intimacy in the marriage for the past two years and the Respondent by her conduct consents to the grant of a decree of divorce. Having considered that attempts at reconciliation have failed, I find that the marriage has broken down beyond reconciliation. In the circumstances, I hereby grant the Petitioner’s prayer for dissolution of the marriage. The marriage celebrated between the parties on 3rd June 2020 is hereby dissolved with the following orders: 1. Custody of the child of the marriage namely; Myles Kobby Asante, two (2) years old, is hereby granted to the Respondent with reasonable access to the Petitioner. 2. The Petitioner shall pay a monthly maintenance of GH¢500.00 towards the upkeep of the said child. 3. The Petitioner shall pay school fees, educational bills and medical bills of the child as and when the need arises. 4. Clothing for the child shall be provided by both parties. 5. There will be no order as to financial provision to either party to the marriage considering the circumstances of the case. 6. There will be no order as to costs. ………………………………....... Page 8 of 9 H/H AKOSUA A. ADJEPONG (MRS) CIRCUIT COURT JUDGE 15TH DECEMBER 2022 Page 9 of 9