Oddoye Vrs Oddoye [2022] GHADC 196 (22 December 2022)

IN THE DISTRICT MAGISTRATE COURT AT ADENTAN SITTING BEFORE HER WORSHIP LINDA AMISSAH ON THURSDAY THE 22ND DAY OF DECEMBER, 2022 HARRY VINCENT ASHONG ODDOYE PETITIONER SUIT NO. A4/81/2022 VRS: PHYLLIS ODDOYE RESPONDENT __________________________________________________________________ JUDGMENT The parties were married under the ordinance on the 26th of December 2006. There are two issues of the marriage. The petitioner herein filed a petition against the respondent on the 12th of November 2021 for the following reliefs: a. That the ordinance marriage between the parties be dissolved b. He is granted access to the issues of the marriage. The respondent filed an answer to the petition and cross-petitioned for the following reliefs: a. The dissolution of the marriage b. An order that custody of the children be granted to her with reasonable access to the petitioner c. An order for financial settlement d. An order that the respondent pays the school fees of the children, and medical bills as and when they fall due e. An order for the petitioner to provide accommodation for the respondent and the issues of the marriage. In his witness statement, the petitioner stated that he is a pastor and as a pastor, his marriage is expected to serve as an example for the youth. However, due to the unruly behavior of the respondent, this has not been so. The respondent does not have any respect for his family. There was an occasion the respondent insulted his father for no apparent reason. The respondent on a daily basis picks up quarrels with him. On one occasion, whilst he was speaking to a friend on the telephone, the respondent slapped him. This behaviour of the respondent led him to leave the matrimonial home in June 2015. He has been responsible for the care of the children. He pays their school fees as well as their medical expenses. It is the case of the respondent that the petitioner’s conduct is not worthy of emulation because of his adulterous lifestyle and unreasonable behaviour. According to the respondent, she has never insulted the petitioner’s father. She only complained about his conduct when he used tomato puree she had prepared and stored. On the allegation of slapping, she said she did so in self-defence. Sometime back, the petitioner abruptly ended a conversation he was having with someone on the telephone, and upon enquiring about this suspicious behaviour, a quarrel ensued between them. In the course of the quarrel, the petitioner pushed her and she also slapped him. The respondent added that she has apologized for that conduct. According to her, the petitioner is fond of ending his calls anytime he is on the telephone and she comes around. She does not pick up quarrels with the petitioner. She has always been respectful. It is the petitioner who speaks to her in an unfriendly and condescending manner and has on a number of occasions called her mediocre. The petitioner often travels to Kumasi with the excuse of going on outreach programs. On one of such travels, she found that he had purchased ladies’ underwear for his girlfriend. The petitioner later told her he was no longer in a relationship with his girlfriend in Kumasi. The petitioner left the matrimonial home in 2014 and occasionally sends money for the upkeep of the children. These monies are inadequate and cannot cater for the educational needs of the children let alone cater for the upkeep of the home. The law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided in Sections 10, 11, and 12 of the Evidence Act. The stated provisions have also been pronounced in cases as ABABIO V AKWASI 1 See also OKUDZETO ABLAKWA (No. 2) V ATTORNEY GENERAL & ANOTHER 2 where the court stated: “ if a party goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation unless the allegation is admitted. If he fails to do that the ruling on that allegation will go against him . . .” It is provided by the Matrimonial Causes Act, 1971, (Act 367) that; the sole ground for the dissolution of a marriage in this jurisdiction shall be that the marriage has broken down beyond reconciliation”. The first issue for determination by this court is whether or not the marriage celebrated between the parties, has broken down beyond reconciliation, for which reason the court should grant a dissolution of same. The petitioner in the instant petition, is relying on unreasonable behavior as proof of the breakdown of the marriage. 1 1V [1994 -95] GBR 774; 2 [2012] 2 SCGLR 845 @ page 867 Section 2(1) of Act 367 provides six facts any of them when proved by the petitioner will show that the marriage has broken down beyond reconciliation Section 2(1) (b) of Act 367 provides that a marriage can be said to have broken down beyond reconciliation when the petitioner is able to prove that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent”. To prove that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with her, the petitioner told the court that the respondent slapped him once when he was speaking on the telephone with a friend. The petitioner did not deny this however she told the court she apologized for doing that. The petitioner also told the court that the respondent once insulted his father. The respondent in her cross- examination of the petitioner asked: Q: Can you tell the court what caused me to insult your father? A: we had invited two church elders to our home and we were late in going home. My dad put tomatoes on the fire and you insulted him. The question asked by the respondent in itself is an admission that he insulted the father of the petitioner. However, she had a reason for doing so. In another question, the respondent asked the petitioner. Q: was the insult in his presence A: No, it was when you were insulting me This question asked by the respondent also indicates that she indeed insulted the petitioner’s father however, it was not done in his presence. From the above analysis, I am convinced that the petitioner has met the requirement in Section 2(1)(b) of the Matrimonial Causes Act. Besides proving any of the six facts in Section 2(1) of the Matrimonial Causes Act, the Act requires that for a dissolution of marriage to be granted, there must be evidence of a failed attempt at reconciliation. Section 8 of the Matrimonial Causes Act provides: on the hearing of a petition for divorce, the petitioner or his counsel shall inform the court of all efforts made by or on behalf of the petitioner, both before and after the commencement of the proceedings, to effect reconciliation.” In the present case, there is evidence that there have been interventions from two priests and family members to reconcile the parties which failed. Also, there is evidence that the petitioner has moved out of the matrimonial home as far back as 2014. This in itself is evidence of a failed attempt at reconciling their differences. On that score, I am also satisfied that the petitioner has satisfied the requirement of Section 8 of the Matrimonial Causes Act. From the totality of the evidence before the court, I find that the marriage between the parties has broken down beyond reconciliation. The ordinance marriage celebrated on the 26th December, 2006 is dissolved. As part of the reliefs sought in her cross-petition, the respondent asked for financial settlement. However, she failed to indicate any specific amount. The determination of the payment of a lump sum during the dissolution of marriage begins with Section 20(1) of the Matrimonial Causes Act. 1971 (Act 360). It provides: the court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the court thinks just and equitable. In determining what is just and equitable, the court is enjoined to consider the parties’ income, earning capacity, other financial resources each party has or is likely to have in the future, the parties standard of living, and their life circumstances. In the present case, the petitioner is a priest. The respondent on the other hand is a seamstress. The parties at the time of filing this petition had been married for fifteen years. The respondent in these years certainly performed certain domestic services for the petitioner which made him have time on his hands to perform his functions as a priest. I will therefore order the petitioner to make a financial payment to the respondent as alimony. The respondent also prayed to have custody of the issues of the marriage. In line with the best interest principle which governs issues regarding custody and the fact that the children are young, I will grant custody to the respondent. The respondent again asked for maintenance for the upkeep of the children. The petitioner informed the court that he is responsible for the payment of the educational needs of the children as well as their medical expenses. The respondent also prayed the court to order the petitioner to provide accommodation for the children. The petitioner did not object to same. Judgment on the ancillary reliefs are as follows: • custody of the issues of the marriage is granted to the respondent with reasonable access to the petitioner. The petitioner is to have access fortnightly during the weekends and during the vacation. • The respondent is ordered to pay the school fees of the children as well as their medical expenses as and when they fall due • The petitioner is to maintain the children with ghc1,000 each month effective January, 2023. • The petitioner is to settle on the respondent an amount of ghc 30,000 as financial settlement to be paid in gross • The respondent is to contribute to obtaining accommodation for the petitioner and the issues of the marriage. He is to contribute 50% of the rent to be paid anytime it falls due until the petitioner re-marries. There will be no order as to costs. SGD H/W LINDA AMISSAH MAGISTRATE 7