Aidoo Vrs Essel [2022] GHADC 159 (31 October 2022)

1 IN THE DISTRICT COURT AGONA SWEDRU - A. D. 2022 BEFORE HIS HONOUR ISAAC APEATU Civil Suit No A4/11/2022 31st October,2022 GLADYS AIDOO … Petitioner VERSUS PHILEMON ISSAH ESSEL … Respondent JUDGMENT This is a petition for dissolution of marriage filed by the petitioner-wife of the marriage on 7th July 2022. Reading the petition, it is observed that the marriage between the parties was celebrated on the 18th day of August, 2018. After the said marriage, the parties cohabited at Gomoa Akroful. There are two issues in the marriage whose names were given as Peniel Issah Essel aged 7 years and Schemesumatie Issah Essel aged 3 years. The petitioner claims that the marriage has broken down beyond reconciliation. She thus filed this suit seeking from the court the following reliefs: 1. That the said marriage be dissolved. 2. That custody of the two children be granted her with reasonable access to the Respondent. In accordance with Order 18 rule 1(3) of the District Court rules, C. I. 59, the Petitioner filed her petition stating the grounds on which her claim for dissolution of the marriage and the other relief was based. The Petitioner deposed in her petition that the marriage between her and the Respondent has broken down beyond reconciliation. She averred that the Respondent threatens her with cutlass whenever there was an argument between them. That the respondent has had sexual intercourse with her sister. That she has left the matrimonial home for the past 8 months. That the respondent has failed to maintain the two children of the marriage. That there has not been any communication between them since March 2022 during which period the respondent has denied her sex. That both families realized that there was no love left in the marriage and decided to dissolve the customary marriage between them. The petition together with attached documents was duly served on the Respondent as mandated by procedure. On receipt of the processes, the respondent filed an answer to the petition and averred denying most the averments made by the petitioner in her petition. He averred to the effect that he has been maintaining the children. That it was not true that he threatened to harm the petitioner with a cutlass. That the petitioner has left the matrimonial home. That she denied her sex a year before she left the home in November 2021. The general rule of law has always been that the court before whom a matrimonial case is brought was under a statutory and positive duty to inquire so far as it reasonably could, into the charges and counter charges alleged by parties in a divorce suit as this one. But the onus of proof is on the petitioner to prove all allegations made against any such respondent and where a respondent made a counter allegation, he/she in accordance with section 14 of NRCD 323, bears the onus of proof to establish those allegations. And in discharging the onus on the petitioner, it was immaterial that the respondent had not contested the petition; he/she must prove the charges and, flowing from all the evidence before the court, the court must be satisfied that the marriage had irretrievably broken down. See Danquah v. Danquah [1979] G. L. R. 371; Donkor v Donkor [1982-83] GLR 1158. The onus therefore, of producing evidence of a particular fact, as in all civil cases, is on the party against whom a finding of fact would be made in the absence of further proof: see Section 17(a) and (b) of NRCD 323. The authorities are also in harmony that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under sections 10 (1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). The burden of producing evidence has thus been defined in Section 11 (1) of NRCD 323 as follows; “11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. And it bears stating that the burden of proof is also not static but could shift from party to party at various stages of the trial depending on the obligation that is put on that party on an issue. This provision on the shifting of the burden of proof is contained in Section 14 of NRCD 323 as follows: “14 Except as otherwise provided by law, unless 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 that party is asserting”. In accordance with the general rule of procedure as stated above, the Petitioner had the burden of proving all the averments she made against the respondent on the standard of preponderance of probabilities. If she succeeds in establishing her averments by evidence, the onus will then shift to the Respondent to lead some evidence to rebut same. The Matrimonial Causes Act, 1971 (Act 367) regulates divorces and other matrimonial causes in this country. Under section 1(2) of Act 367, a Court shall not grant a petition for divorce unless the marriage is proven to have broken down beyond reconciliation. As I have established above, the onus of such proof is on the party who alleges that the marriage has broken down beyond reconciliation. But under Section 2(1) of Act 367, for the purposes of showing that the marriage has broken down beyond reconciliation, a petitioner for divorce 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; 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. It has been held in a line of cases including Donkor v Donkor [supra] that the Matrimonial Causes Act, 1971 (Act 367), did not permit spouses married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to come to court and pray for the dissolution of their marriage just for the asking. And that the petitioner in such a case for dissolution of marriage must first satisfy the court of any one or more of those facts set out in section 2 (1) of the Act (above), not only by pleading them but also by proof for the purpose of showing that the marriage had broken down beyond reconciliation. The court explained further that Section 2 (3) of the Act, provided that even if the court found the existence of one or more of those facts it should not grant a petition for divorce unless it was satisfied that the marriage had broken down beyond reconciliation. What then did the petitioner do to prove that the marriage has broken down beyond reconciliation? The Petitioner gave evidence in a bid to prove break down of the marriage. She however did not call any witnesses in proof of her case even though she had submitted a statement for two witnesses. The nub of petitioner’s case is to the effect that she is a Hair dresser and the Respondent is a teacher and resides at Gomoa Gyaman. That they got married on the 18th of August 2018 after the Respondent’s family and her family had met and performed the customary marriage between herself and the Respondent on 17th August 2018. That there are two sons in the marriage namely Peniel Issah Essel who is aged 7 years of age and Schemesumatie Issah Essel aged 3 years. It is the case of the petitioner that the marriage has broken down beyond reconciliation. She stated that in the year 2020 her junior sister who was then living with them in the matrimonial home told her that the Respondent has had sexual intercourse with her. She stated that she questioned the Respondent and he admitted it. That the Respondent wanted to have sex with her junior sister again but her sister refused and that was the last straw that broke the camel’s back. That from that time, the Respondent started beating her sister even though she had not done anything wrong. That from that time, the Respondent started threatening her with cutlass whenever there was an argument leading to exchange of words. That the Respondent’s behaviour made her report the matter at CHRAJ in Agona Swedru but to no avail. That she then removed her personal belongings from the matrimonial house and went to stay with her mother in order to have peace. That presently, they have been living separately and though Respondent maintains the two children at GH¢70.00 a week, he does not maintain her. That the marriage between them has broken down beyond reconciliation. That the Respondent has been disgracing her in the eyes of the public by saying that men sleep with her for sexual satisfaction and that she was a prostitute. She claimed that there was no communication between them and that she has lost all interest in the marriage. She stated that the customary marriage has been dissolved by their respective families and prayed that the court dissolves the ordinance marriage between them. After the petitioner closed her case, the Respondent was called to give evidence in accordance with procedure. Respondent gave evidence but called no witnesses in proof of his claims. The nub of respondent’s case is that they got married on 18th August, 2018 and have two issues in the marriage but that that they have separated for about one year two months now. According to him, they got separated in November 2021, when the Petitioner in the company of her parents, the Odikro of Akroful, one Kwesi Pamfo and Kwesi Mewu came home and packed all her belongings without any prior notice. That during the subsistence of the marriage there were petty misunderstanding emanating from her mode of dressing, communication and her movement in and out of the house. That the Petitioner was always in scanty clothes, very disrespectful and returned home always late without any tangible reason. That after staying together for 3 years the Petitioner’s sister, one Charity came to live with them in the house as a pupil of the Carolina Basic School. That the Petitioner suspected every move of this sister when in his company. That it was never true that he had had intimacy with the sister because the said sister is a minor. That he has never threatened the Petitioner with a cutlass but that it was she who has been threatening to kill herself at the least provocation. That once the Petitioner hit him with a metal causing a cut on his face which he reported to the Police Station. It is his case that the Petitioner’s parents have been threatening to kill him. He also prayed that the marriage be dissolved to bring to bring peace. The only issue which needs to be determined in this case is whether or not the marriage between the parties has broken down beyond reconciliation. But as has been stated above, to arrive at this finding, the court ought to determine whether any of the grounds as above stated were relied on and proved. I shall therefore determine whether the petitioner’s assertions fit into any of the grounds stated under section 2(1) (a) to (f) of Act 367. If not, I shall find out if any of respondent’s assertions against the petitioner were also proved. This is because, the law is settled that in a petition for divorce, any other established fact has to support a finding that the marriage has broken down beyond reconciliation. And any of the grounds upon which divorce is founded as laid down under section 2(1) of Act 367 must only go to prove breakdown beyond reconciliation. So was the evidence able to establish the omnibus ground? From the petition and the evidence on record, the petitioner’s main ground based on which she seeks a dissolution of this marriage is not very clear. She did not specifically mention any of the facts stated under section 2(1) of Act 367 as those she relies on. With the one she alleged being that the respondent has committed adultery with her younger sister, she failed to lead any evidence of substance on it. The need to have led evidence to substantiate same was heightened by the fact that the respondent denied it in his Answer. It has been held in a plethora of cases that although the evidence proffered to prove adultery need not reach certainty as in criminal cases, it must carry a high degree of probability. As such adultery can be inferred from the circumstances of the case but mere opportunity to commit adultery will not be sufficient to ground adultery. And though direct evidence of adultery is rare, it must be proved to the satisfaction of the court. See the case of Adjetey v Adjetey [1973] 1 GLR 216. However, the petitioner did not call any further evidence to establish what she asserted. That notwithstanding, what clearly appears from the facts in evidence is that there are irreconcilable differences that exist between herself and the respondent such that they cannot continue to live as husband and wife. This is a relatively young marriage. However, I find that there are real differences between the parties which emerged as early and soon as they got married. These differences which I find from the evidence, has led to persistent quarrels and mistrusts between them which eventually led to the petitioner packing out of the matrimonial home. As already stated above, a party could ground a petition for dissolution of marriage by proving the fact that there exist irreconcilable differences between them and that the parties to the marriage have, after diligent effort, been unable to reconcile their differences as provided in section 2 (1) (f) of the Act. It was held in the case of Mensah v Mensah [1972] 2 GLR 198 that in order to establish this head or guide line three things are requisite: (a) There should exist differences between the parties. (b) They should have made diligent efforts to reconcile these differences, (c) They should have been unable to effect the reconciliation of the differences. It was further held by the court that section 2 (1) (f) of the Act did not require that there should be disputes between the parties; it only required that there should be differences. It explained that a dispute is a difference but not all differences are disputes and that the inability of a spouse to have an issue is not a difference even though there may be a difference between the spouses as to how to remedy the situation. The court went on to state that the differences must be between the parties and that a litigation between the wife’s family and the husband’s family would not be a difference between the wife and the husband, although it may lead to one. The fact that the husband belonged to the Justice Party while the wife supported the Progress Party did not mean that there were irreconcilable differences. It again stated that the differences should be such as would make it impossible for the marriage to subsist. It should be remembered, that evidence of the differences is being proffered to show the breakdown of the marriage. Differences which cannot possibly affect the subsistence of the marriage are not sufficient. Evidence of petty quarrels and minor bickering which are but evidence of that frailty which all humanity is heir to is not sufficient. The differences must be real and not imaginary; they should be so deep as to make it impossible for the parties to continue a normal marital relationship with each other. In this case, I find that there are serious differences between the parties in the marriage. I find that the petitioner does not trust the respondent. She has grown suspicious of the respondent over the years because she thinks that he is having an extra marital affair with no other person than with her younger sister. That suspicion has been heightened by the fact that they do not stay together. So the petitioner thinks that the respondent is having multiple relationships with women and accuses respondent of it. Petitioner also makes a counter accusation that the respondent accused her of flirting with other men. Even though each of them deny what they each accuse the other of doing, I do not think that such suspicions and accusations bode well for the marriage. I think that there is serious mistrust for the respondent by the petitioner and vice versa. I take cognizance of the fact that the marriage was only celebrated in 2018. And as I observed above, it is a young marriage. However, from the demeanor of the parties in this case, I do not think that it is worth the effort to want to bring them back together as husband and wife. As was rightly observed by their families, there is no love between the two. I think therefore that any attempt to bring them together will be to promoting further quarrels and animosity between the two. What the two have presently cannot be termed as a marriage. I cannot in the circumstances make a decree for the belligerent parties to go and stay under one roof. To do that will be turning my back on reality. It is no wonder that they are already separated. Moreover, as stated by the respondent in his answer, there have been several efforts by the families of the parties to have their marriage reconciled but have all proven futile. The upshot of the above is that the differences between the Respondent and the petitioner have been widened the more that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. And that is a valid ground to grant their request for dissolution of the marriage. I have read carefully the evidence as presented by the parties. I am of the firm conviction that the Petitioner was able to prove breakdown of the marriage based on section 2(1) (f) of Act 367. There are irreconcilable differences between the respondent and the petitioner which militate against any thought of reconciling the two. On the totality of the evidence on record, I am satisfied that the marriage has broken down beyond reconciliation. I will therefore grant the prayer for dissolution on account of the petitioner and pronounce a dissolution of the marriage between the respondent and the petitioner. The marriage between the parties is hereby dissolved. There are no joint properties between the parties herein. But there are two children between the parties. Petitioner made a claim for custody of the two children. The children are said to be 9 and 3 years old and are currently living with the petitioner. Considering where the children should stay, the law mandates that the interest of such children should be the primary consideration of a court called to make such determination. I think that it will be in the supreme interest of the two children that they continue to live with their mother. Shuffling them between the petitioner and the respondent will not be in their interest growing up. The petitioner is the mother of the children. Once she is competent and desirous to look after her children, the court will not make an order granting custody to the respondent. Custody of the two children of the marriage therefore is granted to the petitioner herein with reasonable access to the respondent. The respondent shall have access to the children by visiting them with advance notice to the petitioner. He shall also have access to them during vacations and such holidays as the parties may agree. Following from that, I order the respondent to continue to maintain the two children with an amount of GH¢500 per month subject to a 20% yearly increment starting from November 2023. He shall be responsible for their educational, shelter, health and all other needs of the children henceforth. In the result, and based on the available evidence assessed on a balance of probabilities and the relevant law, the Petitioner succeeds in terms as follows: i. The marriage between the Petitioner and the Respondent contracted under the Marriages Act, 1884-1985, Cap 127 is dissolved and the marriage certificate cancelled accordingly. ii. Custody of the two children of the marriage namely Peniel Issah Essel aged 7 years and Schemesumatie Issah Essel aged 3 years is granted to the petitioner herein with reasonable access to the respondent. The respondent shall have access to the children by visiting them with advance notice to the petitioner. He shall also have access to them during vacations and such holidays as the parties may agree. iii. It is ordered that the respondent maintains the children with an amount of GH¢500 per month subject to a 20% yearly increment starting from November 2023 and shall be responsible for their educational and health needs henceforth. Given the circumstances under which the parties lived in the marriage and how the marriage came to an end as is borne out by the evidence on record, I am not inclined to make any order for cost. Parties shall bear their own costs. HIS HONOUR ISAAC APEATU DISTRICT MAGISTRATE