KUSI VRS HOMADI (G/WJ/DG/A4/37/22) [2022] GHADC 394 (4 October 2022)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON TUESDAY THE 4TH DAY OF OCTOBER, 2022 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO. G/WJ/DG/A4/37/22 TRACY AGYEI KUSI PETITIONER VRS ROCKSON KING HOMADI RESPONDENT PARTIES ARE PRESENT AND SELF REPRESENTED. JUDGMENT The petitioner filed a petition for divorce in the registry of this court on 16th March, 2022 against the respondent for the following reliefs: a. An order by the Honourable Court to humbly dissolve the marriage which was contracted and celebrated somewhere in the first week of the month of November 2013 as same has broken down beyond reconciliation. b. An order to the respondent to maintain the two children of the marriage, pay medical bills not covered by NHIS and to register the children with the scheme and renew same when it expires. c. No order to compensation as the petitioner does not need any alimony and the parties should bear their respective costs. THE CASE OF THE PETITIONER The case of the petitioner is that parties got married under the ordinance somewhere in the first week of the month of November 2013 at the Registrar General’s Department and the respondent has taken custody of the marriage certificate and has refused to give her a copy. It is the further case of the petitioner that after the marriage, parties cohabited at Gbawe and have two issues of the marriage namely Rockson Homadi aged seven years and Regina Homadi Quayson aged four years. Petitioner informs the court that the marriage has broken down beyond reconciliation by the unreasonable behaviour of the respondent. She particularised the unreasonable behaviour of the respondent as follows; 1. That the respondent started showing signs of irresponsibility few months after the celebration of the marriage 2. That the respondent was very temperamental and has been assaulting petitioner at random and assaulted her even during her pregnancy 3. That respondent attacks the petitioner with any object or implements he picks or comes across when he is angry 4. That due to the frequent assaults and respondent’s failure to maintain the home, she deserted the matrimonial home for her life and safety. She prayed for the dissolution of the marriage. She also prayed for reasonable access to the issues of the marriage. THE CASE OF THE RESPONDENT The Respondent does not contest the dissolution of the parties’ marriage even though he denies the averments of the petitioner. According to him, he has given petitioner has deserted the matrimonial home and has demonstrated that she has no intention of returning to the matrimonial home. He informed the court that he gives his consent for the dissolution of the marriage and prayed for custody of the two issues of the marriage. After close of pleadings, the court set down the issue of whether or not the marriage of the parties has broken down beyond reconciliation. BURDEN OF PROOF It is trite that sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) provide that the standard in all civil action is by a preponderance of probabilities. This position of the law was re-echoed by Benin JSC in the case of Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721 at page 733 as follows; “It must be pointed out that in every civil trial all what the law requires is proof by a preponderance of probabilities. See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved. THE COURT’S ANALYSIS AND OPINION 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. Section 2 (1) of Act 367 explains that 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 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 (f) That the parties after a diligent effort been unable to reconcile their differences. Section 2(2) of Act 367 imposes a duty on the court to enquire into the facts alleged by the petitioner and the respondent. Section 2(3) also provides that although 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 it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation. His Lordship Dennis Adjei J. A stated this position of the law in CHARLES AKPENE AMEKO V SAPHIRA KYEREMA AGBENU (2015) 99 GMJ 202, thus; “The combined effect of sections 1 and 2 of the Matrimonial Causes Act, 1971 (Act 367) is that for a court to dissolve a marriage, the court shall satisfy itself that it has been proven on the preponderance of probabilities that the marriage has broken down beyond reconciliation. That could be achieved after one or more of the grounds in Section 2 of the Act has been proved.” From the evidence, the Petitioner based her allegations for the breakdown of the marriage on the unreasonable behaviour of the Respondent who according to her was gay. To succeed under this fact, the petitioner must first establish unreasonable conduct on the part of the Respondent and secondly, she must establish that as a result of the bad conduct, she cannot reasonably be expected to live with him. At page 123 of the book, “At a glance! The Marriages Act and the Matrimonial Causes Act Dissected by Mrs Frederica Ahwireng-Obeng, the learned writer on unreasonable behaviour stated; “Unreasonable behaviour has been defined in English law as conduct that gives rise to life, limb or health or conduct that gives rise to a reasonable apprehension of such danger”. The above statement reiterated the position of the law in GOLLINS V GOLLINS [1964] A. C 644 She added that the principle of law is that, the bad conduct complained of must be grave and weighty and must make living together impossible. It must also be serious and higher than the normal wear and tear of married life. From the totality of the evidence before the court, I am very clear in my mind that there has been a total repudiation of marital obligations between the parties due to the fact that the petitioner has deserted the matrimonial home and has no intentions of resuming cohabitation. I therefore proceed under Section 47 (1) (f) of the Courts Act 1993, (Act 459) to decree that the Ordinance Marriage between Rockson king Homadi and Tracy Agyei celebrated at the Registrar General’s Department in Accra on 20th November, 2013 is hereby dissolved. I hereby order the cancellation of the marriage certificate issued. A certificate of divorce is to be issued accordingly. Issue two: Whether or not respondent is entitled to custody of the children of the marriage with reasonable access to the petitioner The courts have consistently held that on the award of custody of a child, the welfare of the child must be the paramount determining factor. This principle has been given statutory force by section 2 of the Children’s Act, 1998 (Act 560) which states: The best interest of the child shall be paramount in any matter concerning a child. This principle of the law was stated in OPOKU-OWUSU V OPOKU-OWUSU [1973] 2 GLR 349-354 where it was held as follows; “in such an application, the paramount consideration is the welfare of the children. The court’s duty is to protect the children irrespective of the wishes of the parents.” The considerations for custody or access have been provided in Section 45 of Act 560 as follows; A family tribunal shall consider the best interest of a child and the importance of a young child being with his mother when making an order for custody or access. Subject to subsection (1), the tribunal shall consider (a) the age of the child (b) that it is preferable for the child to be with his parents except where his rights are persistently abused by his parents (c) the views of the child if the views have been independently given (d) that it is desirable to keep siblings together (e) the need for continuity in the care and control of the child (f) Any other matter that the Family tribunal finds relevant. Applying the law to the facts of the present case, it is uncontroverted that the two issues of the marriage have been living with their father, since the parties’ separation. I find and hold that it is in the best interest of the children that custody be granted to the respondent for continuity in their care and control. Section 47 of Act 560 provides that a parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child. Section 49 of Act 560 provides amongst others that in considering the maintenance order, a family tribunal shall consider the income and wealth of both parents of the child or of the person legally liable to maintain the child and the cost of living in the area where the child is resident. Respondent is ordered to maintain the children and pay their school fees and medical bills as and when the bills fall due. I make no order as to costs.