ELEGBA VRS OKUSU (G/WJ/DG/A4/01/23) [2022] GHADC 386 (18 October 2022)

IN THE DISTRICT COURT HELD AT WEIJA ON TUESDAY THE 18TH DAY OF OCTOBER, 2022 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS.), DISTRICT MAGISTRATE SUIT NO. G/WJ/DG/A4/01/23 EMMANUEL ESSEL ELEGBA PETITIONER VRS PRINCESS EMMANUELLA OKUSU RESPONDENT PETITIONER IS PRESENT AND REPRESENTED BY RICHARD LAAPO ESQ. RESPONDENT IS PRESENT AND SELF REPRESENTED. JUDGMENT The petitioner filed a petition in this court on 3rd October, 2022 praying that the ordinance marriage between the parties be dissolved on the fact that the respondent has abandoned the matrimonial home and has a three year baby girl with another man. Respondent filed an answer to the petition on 14th October 2022 and cross petitioned for the following reliefs; a. That the ordinance marriage celebrated between the parties on the 5th day of March 2011 should be dissolved. b. That custody of the children should be granted to respondent with reasonable access to the petitioner. c. Costs for the cause. THE CASE OF THE PETITIONER It is the case of the petitioner that parties got married under the Ordinance in 2007 at the St. Joseph The Worker Catholic Church in Tema on 5th March 2011. It is the further case of the petitioner that after the marriage parties cohabited at McCarthy Hill in Accra and have two issues of the marriage namely Oswald Elegba aged 10 years and Euphemia Elegba aged 8. It is the further case of the petitioner that respondent has abandoned the matrimonial home and has a three year old child with another man and as a result he finds it intolerable to live with respondent. According to him the marriage between the parties has broken down irretrievably on the fact of adultery of the respondent and prays for same to be dissolved. THE CASE OF THE RESPONDENT The respondent on the other hand confirmed that the parties got married under the ordinance on 5th day of March 2011 at the St. Joseph the Worker Catholic Church at Tema and have two issues of the marriage. Respondent admits that parties have not lived as a couple for some years now due to irreconcilable differences between the parties. She also admitted that she has a three year old child with another man. BURDEN OF PROOF It is trite that the burden of proof will generally lie on the party asserting the affirmative of an issue, the absence of the defendant notwithstanding. Section 11 of the Evidence Act, 1975 NRCD 323 provides; (i)For the purposes of this decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Section 14 of NRCD 323 also provides that in a trial, the burden of proof may shift but unless and until 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 he is asserting. This principle of law is reiterated in the case of RE: ASHALLEY BOTWE LANDS; ADJETEY AGBOSU & OTHERS V KOTEY & OTHERS [2003-2004] SCGLR 420 where Woode JSC (as she then was) at page 444 stated; It is trite learning that by the statutory provisions of the Evidence Decree 1975,(NRCD 323) the burden of producing evidence in any given case is not fixed, but shifts from a party to party at various stages of the trial depending on the issues asserted and or denied. After close of pleadings, the issues that were set down for determination were as follows; 1. Whether or not the ordinance marriage contracted between the parties on 5th March 2011 has broken down beyond reconciliation 2. Whether or not the custody of the issues of the marriage should be granted to the respondent with reasonable access to the petitioner ISSUE ONE Section 1(2) of the Matrimonial Causes Act, 1971, Act 367 provides that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Under Section 2(1) Act 367 for a marriage to be deemed to have broken down beyond reconciliation which is the only reason under Ghanaian law for the grant of a petition for divorce it is stated that; (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 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 such 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 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. Applying the law cited supra to the facts and the evidence led in this matter to the test under section 2(1) of the Matrimonial Causes Act 1971, Act 367, I find that the ordinance marriage celebrated between the parties on 5th March 2011 has broken down beyond reconciliation due to the fact of the adultery of the respondent and the fact that the petitioner finds it intolerable to live with her. ISSUE TWO From the evidence before this court, I find that the issues of the marriage who are minors have been living with the petitioner since the separation of the parties. Accordingly I find that it is in the best interest of the two issues of the marriage that custody is awarded to the petitioner with reasonable access to the respondent for continuity in their care and control. See sections 2 and 45 of the Children’s Act 1998 (Act 560) DECISION Having held that the marriage between the parties has broken down beyond reconciliation, the petition for the dissolution of the Ordinance Marriage between the parties is granted under Section 47 (1)(f) of the Courts Act 1993, Act 459. It is further decreed that the said marriage be dissolved. Accordingly, the Ordinance Marriage between Emmanuel Essel Elegba and Princess Emmanuella Okusu celebrated at the Joseph the Worker Catholic Church in Tema on 5th March, 2011 is hereby legally dissolved and a certificate of divorce is to issue to that effect. Custody of the two issues of the marriage is awarded to the petitioner with reasonable access to the respondent. Petitioner shall be responsible for the maintenance for the two issues of the marriage as well as the provision of all necessaries of life including their educational and health care needs. I make no order as to costs. (DISTRICT MAGISTRATE) H/W RUBY NTIRI OPOKU (MRS.)