Leslie Nortey Vrs Pamela Naa Odey Acquah [2022] GHACC 239 (22 June 2022)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY THE 22nd DAY OF JUNE BEFORE HER HONOUR KIZITA NAA KOOWA QUARSHIE CIRCUIT COURT JUDGE SUIT NO C5/342/2021 = PETITIONER LESLIE NORTEY Suing per his lawful attorney Kweku Osei-Boateng 57 Noble Crescent Buckinghamshire Hp 18 0WX Aylebury, United Kingdom ACCRA VRS PAMELA NAA ODEY ACQUAH 4 George Hammond Lane Hp 18 0FQ Aylebury, United Kingdom ============================================================ = RESPONDENT ============================================================ JUDGMENT Parties absent The Petitioner Mr. Leslie Nortey by a petition dated the 18th of May 2021 prayed the Honourable Court for a dissolution of the marriage between himself and the Respondent Pamela Naa Odey Acquah celebrated on the 28th of May 2018 at the Principal Registrar of Marriages Office, Accra. The Petitioner acting per his then lawful attorney Kofi Nti on the 29th of July 2021 sought leave of the Honourable Court to serve the petition out of the jurisdiction. The parties are ordinarily resident in the United Kingdom. Subsequent to the court’s order to serve the Respondent out of the jurisdiction, the lawful attorney of the Petitioner served the petition on the respondent at No 4 Hammond Lane HP18 OFQ- Aylesbury UK by DHL Courier Service. On the 11th of March 2022 the Lawyer of the Petitioner Claude Oppon Esq. prayed for the action to be set down for trial pursuant to Order 65 r 21 of CI 47 (Civil procedure rules of the High Court). Learned counsel referred to the attached Exhibit ‘A’, a search which revealed that the Respondent had been served with the petition but had failed to enter appearance. The Petitioner in compliance with the orders of the court filed a witness statement and attached Exhibit ‘A’, a copy of a duly executed power of attorney per his new lawful attorney Kwaku Osei-Boateng on the 21st of June 2022. On the 23rd of June 2022 he filed the pre-trial checklist. On the 14th of July 2022, 17th of August 2022, and Friday 9th December 2022, respectively the Petitioner served hearing notices on the Respondent who failed to enter appearance nor appoint a lawful attorney to represent her. On the 17th of November 2022, the court adopted the witness statement of the Petitioner as his evidence in chief before this honourable court. On the 22nd of December 2022, the Petitioner by order of the court filed an amended witness statement to include particulars of unreasonable behavior of the Respondent which was admitted as the last evidence in chief of the Petitioner in this case FACTS According to Petitioner, the parties got married on the 28th of May 2018 at the Principal Registrar of Marriages Office, Accra, after which they cohabited at Ayelsbury UK. The Petitioner is an optician and the Respondent is a care giver and there is no issue between them. Petitioner said that he and the respondent are incompatible and cannot be reasonably expected to live as husband and wife. He said they started having misunderstandings on all issues thereby causing tension. He said because he is a very private person he was very distraught when he found out that his wife had decided to rent a storage facility to keep her belongings though their house had a spare room. Even though according to him Respondent contributed very little financially. The aforementioned action further put a strain on their marriage. Petitioner said these tensions cumulated to a stage where the respondent left the marital home for about eight months for them to cool off from each other. Petitioner intimated that despite several efforts to resolve their differences they were not able to reconcile and rather have come to the sad realization that their marriage has ended. As noted, the Respondent though she was served various hearing notices failed to either appear or appoint a lawful attorney to represent her in this case. Satisfied that respondent is aware of the proceedings but has opted not to appear, the court will proceed to determine whether the marriage between the parties has broken down beyond reconciliation. ISSUE FOR DETERMINATION Per section 1(2) of the Matrimonial Causes Act, Act 367, 1971, the sole ground for the granting of a petition for dissolution shall be that the marriage has broken down beyond reconciliation. The main issue in the opinion of this court is whether or not the marriage between the parties has broken down beyond reconciliation. The general rule is that he who asserts must prove. He must prove the essential issues central to his case on the preponderance of probabilities which is the standard of proof in a civil matter. Section 12(2) of the Evidence Act NRCD 323 defines proof on the preponderance of probabilities to be ‚The degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable/likely than its non-existence”. To determine the issue the court refers to Section 2 of Act 367 that provides the grounds which when proven would lead the Court to this conclusion. And it provides as follows (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 such adultery the Petitioner finds it intolerable to live with the Respondent or (b) That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent or (c) That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition, or (d) That the parties to the marriage have not lived as man and wife for continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to the grant of a decree; provided that such consent shall not be unreasonably withheld, and where, the Court is satisfied that it has so been withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal or (e) That the parties to the marriage have not lived as man 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. From the evidence led by the parties I surmise that this petition is brought primarily under section 2(1)(b) (d) and (f) of Act 367. It was held in the case of Knusden vrs. Knusden (1976) 1 GLR 204 CA on the test of unreasonable behaviour that ‚The behavior of a party which will lead to this conclusion would range over a wide variety of acts. It may consist of one act if it is of sufficient gravity of a persistent course of conduct or series of acts of differing kinds none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so‛. In respect of what constitutes unreasonable behavior by a spouse, it was held by Hayfron – Benjamin J, in the case of Mensah vs Mensah (1972) 2 GLR 198 that ‘In determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all circumstances constituting such behaviour including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and mere trivialities will not suffice‛. The witness statement of the Petitioner which was admitted as his evidence before the honourable court mentioned the words incompatible, tension and disagreement between the parties. To highlight a few indicators of the alleged unreasonable behaviour between the parties I refer to Paragraph 16 of the WS ‚My Lord on a number of occasions, the Petitioner would return home from work about 6pm to find the Respondent still in bed‛. Paragraph 17 ‚My Lord in addition to contributing very little financially, the Respondent’s decision to rent a storage facility to keep her belongings rather than use a spare room in the house put further strain on the marriage‛. Para 21 ‚My Lord, the disagreements and tension got so bad that the respondent moved out of the marital home and the parties lived apart for about eight months to cool off from each other‛. Para 22‛ The parties have made several efforts to resolve their differences to live together happily as a couple as they had envisaged for their marriage: Para 23 ‚My Lord however all these efforts at resolving their differences have sadly failed‛. From the facts presented before this Honourable court it is clear that the parties have not lived together as man and wife for the past 5 years preceding the presentation of this petition and have also been unable to reconcile their differences. DECISION Having read the facts and evidence on record, it is clear from the perspective of the Petitioner with the somewhat quiet agreement of the respondent that the marriage between the parties has broken down beyond reconciliation. I believe that the petitioner has been able to prove that the marriage between himself and the respondent has broken down beyond reconciliation. Without going into psychology since I am in no way an expert in the subject, it is my opinion that people react differently to different circumstances. The fact that the parties had to separate in order to cool off from each other suggests a situation where matters had reached a boiling point. I firmly believe that the parties from the fore going are better off out of this union they have called marriage for the past five plus unhappy years. It is hereby decreed that the marriage celebrated by the parties on the 12th of May 2018 day of January, be dissolved this 22nd day of June 2023. PASCHAL ATTA FYNN HOLDING BRIEF FOR CLAUDE OPPON ESQ. FOR THE PETITIONER PRESENT ANDREW OTUKONOR ESQ. FOR THE RESPONDENT ABSENT (SGD) H/H KIZITA NAA KOOWA QUARSHIE CIRCUIT COURT JUDGE 6