Sey Vrs Rev. Broni [2022] GHADC 52 (30 November 2022)

CORAM: HER WORSHIP (MRS.) ROSEMARY EDITH HAYFORD, SITTING AS DISTRICT MAGISTRATE, DISTRICT COURT “B”, SEKONDI ON THE 30TH NOVEMBER, 2022 __________________________________________________________________ SUIT NUMBER A4/55/2022 JOSEPHINE ADWOA SEY - PETITIONER V REV. KOFI ANTWI BRONI - RESPONDENT ------------------------------------------------------------------------------------------------------------- TIME: 11.28 AM PETITIONER RESPONDENT - - PRESENT ABSENT PETITIONER REPRESENTED BY J. E. K. ABEKAH RESPONDENT UNREPRESENTED ___________________________________________________________________ JUDGMENT The instant petition was filed by the petitioner on the 26th of April, 2022. Petitioner prays for the dissolution of the ordinance marriage celebrated between the parties on the 6th of May, 2011 at the Metropolitan Offices, Sekondi on grounds that the said marriage has broken down beyond reconciliation as a result of the unreasonable behaviour of the Respondent. The Respondent filed an answer on the 23rd of May, 2022 wherein he denied the claim of the Petitioner and cross-petitioned as follows: 1. An order for dissolution of the ordinance marriage between the parties herein. 2. An equal share in House No. Plot No. 8 Block A Panty Estate, Akropong, Ashanti which was acquired with the joint resources of the parties during the subsistence of their marriage. 3. Any other relief(s) that the Honourable Court may deem fit. In a Reply to the Respondent’s Answer and response to the cross-petition filed by the Petitioner on the 14th of June, 2022, Petitioner denies all the claims of the Respondent and says that the Respondent has not exhibited any conduct of a husband to live with and is always in to cheat and reap on the sweat of the Petitioner. Petitioner further says that she solely acquired and financed the construction of house no. Plot No.8 Block A Panty Estate, Akropong Ashanti. That the Respondent never contributed any resources towards the building right from the acquisition of the land to the stage it has reached now near completion. Pursuant to the orders of the court, the parties filed their respective witness statement. However, on the return date for trial, the Respondent failed to show up in court to participate in the trial irrespective of the proof of service on him. Order 25 rule 1(2) of the District Court Rules, 2019 (C. I. 59), provides that “where an action is called for trial and a party fails to attend the trial the Magistrate may where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim, if any, and allow the Plaintiff to prove the claim” The same applies to divorce proceedings in this case, therefore, a party who fails to appear in court after due service on him is taken to have deliberately failed to take advantage of the opportunity to be heard. In such a situation, the audi alteram partem rule cannot be said to have been breached. The court having satisfied itself that there was proof of service on the Respondent, proceeded to hear the matter. The Petitioner was led in evidence by her counsel. Even though she filed a witness statement for a witness, he was never called upon to testify thus the same was struck out. She tendered seventeen (17) Exhibits in support of her case. The cross-petition and the witness statement filed by the Respondent were struck out since the Respondent failed to attend the trial. At the end of the trial, the issues for determination thus are 1. whether or not the marriage celebrated between the parties has broken down beyond reconciliation 2. Whether or not the Respondent is entitled to an equal share in House No. Plot No. 8 Block A Panty Estate, Akropong, Ashanti. The sole ground for the grant of divorce per Section 1 of the Matrimonial Causes Act (M. C. A.) 1971 (Act 367) is that the Marriage has broken down beyond reconciliation. For the court to be persuaded that the marriage has indeed broken down beyond reconciliation, the petitioner must lead evidence to establish any one or more of the six facts enumerated in section 2 (1) of the Act., namely: adultery; unreasonable behavior; desertion for a period of two years; consent of both parties where they have not lived together as husband and wife for a period of two years; not having lived together as husband and wife for a period of five years; and finally, inability to reconcile differences after diligent effort. See: Section 2(1) of Act 367 Per section 2(3) of the Act, although the Court finds the existence of one or more of the facts specified under section 2(1), the court shall not grant the petition for divorce unless it is satisfied on all evidence that the marriage had been broken down beyond reconciliation. The Petitioner grounds the reason for the breakdown of the marriage on the unreasonable behaviour of the Respondent. In determining what constitutes unreasonable behavior, the test to be applied is an objective one. Hayfron Benjamin J (as he then was) held in the case of Mensah v. Mensah (1972] 2 G. L. R. 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 weighty and mere trivialities will not suffice for Act 367 is not a Cassanova's Charter. The test is objective” The Petitioner avers that the parties got married under the ordinance on 6th May 2011 and there is no issue of the said marriage. The Petitioner tendered and the same was admitted as Exhibit A, the marriage certificate of the parties. It is the case of the Petitioner that the said marriage has broken down as a result of the unreasonable behaviour of the Respondent. Petitioner says the Respondent has denied her of her conjugal right for the past eleven (11) years by not having any sex with her for reasons only known to him. As a result, the Respondent stopped the Petitioner from sleeping on the matrimonial bed and he put her in a small single room with her belongings. And because the place was small Petitioner says for the past six (6) years she has been forced to sleep on the corridor of the house on a student mattress. It is further the case of the Petitioner that the Respondent does not eat her food and is on the false belief that she would kill him. Petitioner says communication between the parties is not effective and that the Respondent refuses to talk to her and does not also respond to her greetings to him. According to the Petitioner, the Respondent has avoided any contact with her and leaves the house anything the Petitioner was around. Petitioner says the Respondent spends the nights outside the matrimonial home and does not care for her. He also does not pay utility bills. Petitioner further avers that the Respondent has been verbally and physically assaulting her whenever there is the least misunderstanding and that even on one occasion Respondent bit the shoulder of the Petitioner. It is the case of the Petitioner that, all attempts by family members to resolve their differences have all failed as a result of the intransigence of the Respondent. Petitioner says that she was forced to leave the matrimonial home on the 17th of April, 2022 as a result of the threat from the Respondent. It must be stated here that the evidence adduced by the Petitioner was never challenged because when the trial commenced the Respondent never appeared in court to cross- examine the Petitioner even though there was proof of service on him. The effect is that whatever evidence the Petitioner led is acknowledged and therefore admitted. In Quagraine v Adams [1981] GLR 599, CA it was held that “where a party makes an averment and his opponent fails to cross-examine on it, the opponent will be deemed to have acknowledged, sub silentio, that averment by the failure to cross-examine.” Again, in TAKORADI FLOUR MIILS VRS SAMIR (2005-2006) SCGLR 882 it was held that in law where evidence is led by a party and that evidence is not challenged by the opponent in cross-examination and the opponent did not also tender evidence to the contrary, the fact deposed to in the evidence is deemed admitted by the party against whom it is admitted and ought to be accepted by the court. See also IBRAHIM VRS ABUBAKARI (2001-2001)1 GLR 540. I find from the evidence that even though the parties lived under one roof until recently when the petitioner moved out, there had not been any sexual relationship between the parties for 11 good years. Petitioner says the Respondent denied her sex for this long. Section 2 (1) (e) of the Matrimonial Causes Act, 1971 (Act 367) provides that; “(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” Under the provision above, proof of the parties having not lived continuously for 5 years, without more entitles a party to the grant of divorce. William Ekow Daniels in his book “The Law on Family Relations in Ghana” stated on page 312 that “the expression ‘have not lived as husband and wife’ does not mean that the parties must be living apart in different households. They could be living in the same household and yet in the real sense not living as husband and wife. The test to determine whether or not the parties are not living as husband and wife has no relation to the physical state of things such as houses or households but rather it is to be considered from the point of view of whether there is the absence of consortium or cessation of cohabitation.” (emphasis mine) In the instant case, there is no dispute that the parties have not lived as husband and wife for the past 11 years. This is so because the Respondent also confirmed the same in his answer. Although they shared the same accommodation, the evidence is that they shared no intimacy and had strained relations. On the authorities cited above, I am convinced that the marriage between the parties has broken down beyond reconciliation I accordingly decree that same be and hereby dissolved. There is the issue of House No. Plot 8 Block A, Panty Estate Akropong, Ashanti that Respondent in his cross Petition was seeking to claim a share. It is the considered view of the court that since the cross Petition of the Respondent was struck out that issue does not exist anymore. In any case, the Respondent who raised that issue failed to appear in court to defend the action. Furthermore, the only relief that the Petition sought was the dissolution which this court has granted following the evidence. I, therefore, proceed to give my final decision below DECISION On the foregoing, I hereby grant the petition for divorce dated 26/04/2022 on the finding that the marriage between the parties has broken down beyond reconciliation on the basis of s. 2 (1) (e) of Act 367. Being satisfied with the evidence adduced, I proceed under s. 42 (1) (b) of the Courts Act, 1993 (Act 459) to decree that the Ordinance Marriage between Josephine Adwoa Sey and Rev. Kofi Antwi Broni celebrated on 06/05/2011 at the Metropolitan Offices in Sekondi is hereby dissolved. It is hereby ordered that a decree of divorce be granted; the marriage certificate with no. 219/2011 pursuant to Licence No. STMA/219/2011 is hereby cancelled. There is no order as to costs (SGD) H/W ROSEMARY EDITH HAYFORD (MRS) MAGISTRATE 8