Ebenezer A. Okorne Vrs Patience Narkie Obu [2022] GHADC 266 (1 November 2022)

IN THE TDC DISTRICT COURT HELD AT TEMA ON TUESDAY, THE 1ST DAY OF NOVEMBER 2022 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE EBENEZER AKWETEY OKORNOE --------------- PETITIONER SUIT NO. A4/33/22 COMMUNITY 26 DAWHENYA – TEMA VRS PATIENCE NARKIE OBU --------------- RESPONDENT COMMUNITY 26 DAWHENYA – TEMA PARTIES: PRESENT COUNSEL: NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT The Petitioner 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 all attempts at reconciliation have proved futile. THE CASE OF THE PETITIONER Page 1 of 8 In his petition and evidence-in-chief, the Petitioner told the Court that the parties got married twelve years ago at Tema Municipal Assembly. That after their marriage they cohabited at Tema Community 26. That there are four children between the marriage namely, Caleb Henry Koranteng Okornoe, 11 years; Elizabeth Soyoe Akwetey Okornoe, 9 years; Michelle Akwetey Okornoe, 7 years and Noble Tetteh-Sikatse Okornoe, 5 years. That in 2016 he faced financial challenges in his business and subsequently defaulted in paying a bank loan. That due to the said challenge he could not take care of the Respondent and the children as he used to do in the past. That it made him change from his supply business and rather engaged in construction works. That although it was difficult for him he tried to provide at least the very minimum for the family but he saw a drastic change in the character of the Petitioner at this point in time which were anger, disrespect, quarrelling, abusive attack with insults in the presence of the children; and this is having negative effect on the children. That he has developed emotional trauma and torture. That the Respondent in one of their arguments told him that she is being taken proper care of, by her friend than the Petitioner so he is wasting his time and life. That the Respondent rather accuses him of infidelity and denied him of his sexual pleasure for months, sometimes close to a year. That there is no affection between the parties any more. According to the Petitioner all efforts by the relatives of the parties to settle the issue between them for peace to prevail were to no avail. He prayed the Court to dissolve the marriage as it has broken down beyond reconciliation. He also prayed the Court to grant custody of the children to him and access to the Respondent. The Petitioner did not call witness and thereafter closed his case. Page 2 of 8 THE CASE OF THE RESPONDENT The Respondent in her answer and evidence confirmed being married to the Petitioner, and having four issues of the marriage. She continued that after their marriage, she decided to further her education as agreed on before the marriage but the Petitioner convinced her to wait. That he kept giving her excuse that it will affect the children since they are young and she understood. That she later realized the Petitioner had this notion that a woman or a wife is not supposed to be higher in terms of achievements than her husband, in order to control her. That this has been the mind of the Petitioner why he has not allowed her to improve upon her life and have stayed idle for the past twelve years; and that he gets angry anytime she raises the issue of being idle which has affected her so much. According to the Respondent the Petitioner has been very irresponsible to the extent that he told her his money does not take care of women. That even when she is sick it is her family that supports her financially whilst with the Respondent as his wife. That this has been the genesis of their quarrels and misunderstandings. That the Petitioner sometimes calls her useless and insults her in the presence of the children which is not good for their up-bringing. That the parties do not agree on anything anymore; and there has been no peace, joy or love between them. She continued that the children are the Petitioner’s priority as he takes care of them well so she does not seek for any compensation. She prayed the Court grants them the opportunity to go their separate ways. She also prayed for access to the children. The Respondent thereafter closed her case without calling witness. At the end of the hearing, the legal issue to be determined by this Court is whether or not the marriage has broken down beyond reconciliation. Page 3 of 8 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 Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that in all civil actions, the standard of proof is proof by preponderance of probabilities, and there is no exception to that rule. 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: “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”. Before I examine the evidence adduced at the hearing, it is essential to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely; sections 1(2), 2(1) and (3) which provide as follows: "1(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Page 4 of 8 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. (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 Page 5 of 8 it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation." In the instant case the burden is therefore on the Petitioner 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 necessary. From the evidence adduced by the parties at the hearing, I made the subsequent observations and findings: The Petitioner told the Court that the Respondent’s attitude as a married woman changed completely as she disrespected him as her husband. That the Respondent verbally abused him in the presence of their children. That the Respondent also denied him sex for months. The Respondent did not dispute the assertions of the Petitioner and indeed confirmed same in her evidence to the Court. From the evidence before this Court both parties became incompatible as a result of mistrust. The Respondent also told the Court that the Petitioner told her his money does not take care of women based on that she also decided not to be intimate with him as it is her family who supports her when she is sick even though she stays with the Petitioner as husband and wife. From the evidence before this Court, both parties behaved unreasonably towards each other. The parties from their evidence attempted reconciliation with their families but they were not successful so both have mutually agreed that their marriage be dissolved by the Court. This indicates that the parties had irreconcilable differences and this led to their incompatibility. From the evidence Page 6 of 8 on record the parties could not stay together as husband and wife in their matrimonial home. In Knudsen v. Knudsen [1976] 1 GLR 204 CA, the Court of Appeal per Amissah JA stated as follows: “… Of course, in a state of affairs where the duty is placed upon the Petitioner to show that the marriage has broken down beyond reconciliation, common prudence indicates that attempts at reconciliation be made whenever possible and that where such attempts have been made without success evidence of these be given to help the Court arrive at the desired conclusion.” After a careful examination of the evidence led by the parties, it is undisputable that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. The parties have also not lived as husband and wife for some time now. Accordingly, I find as a fact that the parties have been unable or failed to live together as husband and wife for a continuous period of at least two years immediately preceding the presentation of this petition and the Respondent consents to the grant of a decree of divorce. Flowing from the above, I find that the marriage between the parties has broken down beyond reconciliation. From the foregoing, I conclude that the marriage between the parties has broken down beyond reconciliation and in the circumstances; I do hereby grant the Petitioner’s prayer for dissolution of the marriage. The marriage celebrated between the parties on 17th February 2012 is hereby dissolved with the following orders: Page 7 of 8 1. Custody of the children of the marriage namely; Caleb Henry Koranteng Okornoe, 11 years; Elizabeth Soyoe Akwetey Okornoe, 9 years; Michelle Akwetey Okornoe, 7 years and Noble Tetteh-Sikatse Okornoe, 5 years, is hereby granted to the Petitioner with reasonable access to the Respondent. Reasonable access means the Petitioner shall release the children to the Respondent every other weekend thus two weekends in a month, every other holiday and half of their vacations. 2. The parties shall bear their own cost of the suit. 3. There will be no order as to financial provision to either party to the marriage considering the circumstances of the parties. ……………………………………….. H/H AKOSUA A. ADJEPONG (MRS) CIRCUIT COURT JUDGE 1ST NOVEMBER 2022 Page 8 of 8