Adu Vrs Ackon [2022] GHACC 125 (6 October 2022)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 06TH OCTOBER 2022 CORAM: HIS HONOUR YAW POKU ACHAMPONG SUIT NO.: C5/10/2022 JOYCE ADU …………. PETITIONER VS SAMUEL ACKON …………… RESPONDENT Parties present Petitioner herein filed a petition on 06th April 2022, seeking the following reliefs: JUDGMENT a) An order that the Ordinance (Cap 127) marriage[sic] celebrated between the parties on 25th December, 2011 at St. John Mary Vianney Catholic Church, Dadwene Kyekyewere in the Adanse North District be dissolved. b) An order for fair and equitable share of all that 10- bedroom house situate at Oxford near the Oxford School Football park, Dunkwa-On-Offin. c) An order for an enhance[sic] GH¢500.00 monthly remittance. d) General damages of GH¢100000.00 as alimony. In the answer of Respondent, he prayed the Court to dismiss reliefs b and d of the petition. Section 2(2) of the Matrimonial Causes Act, 1971(Act 367) states: On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent.” Order 65 rule 20 of the High Court (Civil Procedure) Rules, 2004(CI 47is about evidence at hearing of a petition for divorce. It states: (1) Subject to section 39 of the Act and this rule, the witnesses at the trial of any proceedings under this Order shall be examined orally and in open Court, provided that the Court may order that (a) subject to subrule (2) of this rule, any particular facts to be specified in the order may be proved by affidavit; (b) the affidavit of any witness may be read at the trial on such conditions as the Court considers reasonable; (c) evidence of any particular facts to be specified in the order shall be given at the trial by a statement on oath of information or belief, or by production of documents or entries in books or otherwise as the Court may direct; (d) not more than a specified number of expert witnesses may be called. (2) Where it appears to the Court that any party reasonably desires the attendance of witness for cross-examination and that the witness can be produced, an order shall not be made authorising the evidence of that witness to be given by affidavit, but the expenses of that witness at the trial shall be specially reserved. (3) Nothing in any order made under this rule shall affect the power of the Court at the trial to refuse to admit evidence tendered in accordance with the order if in the interest of justice it should think fit to do so.” The law makers have good reasons for enacting the above laws as regards hearing in a matrimonial cause. In the instant case, we have a petition before us and not a writ of summons. In Black’s Law Dictionary, 11th edition, 2019, ‘petition’ is defined, inter alia, as follows: “A formal written request presented to a court or other official body.” In situations like this, a party to the marriage has a grievance and has come to the court to seek redress. Section 1(1) of Act 367 states: A petition for divorce may be presented to the court by either party to a marriage. The petition may not end up in a divorce though the petitioner prays for divorce. Section 1(2) of Act 367 states: The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. But section 2(3) of Act 367 states: Notwithstanding that 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. However, the Court in deciding whether the marriage has broken down beyond reconciliation should be guided by section 2(1) of Act 367. Section 2(1) of Act 367 provides certain grounds upon which the Court may hold that a marriage has broken down beyond reconciliation. It states: 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 so 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; or (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. The court is enjoined by law to conduct enquiries into the matter on the above provisions in section 2(1) of Act 367 supra in juxtaposition with the pleadings in the petition, answer, cross- petition, and reply as well as depositions in any affidavits that may be before the court. In the High Court(Civil Procedure)(Amendment) Rules(CI 87), Rule 3 which amends Order 38 of CI 47, states: 3. The principal enactment is amended in Order 38 by the substitution of rule 1 of “General rule 1. Subject to the Constitution, the Evidence Act, 1975(NRCD 323), these Rules and any other enactment to the contrary, a fact to be proved at the trial of an action by the evidence of the witnesses shall be proved by a trial of their oral evidence in court.” Rule 4 of CI 87 inserts Rules 3A to 3G in Order 38, it states, inter alia: 4. The principal enactment is amended in Order 38 by the insertion of the following rules after rule 3. “… Requirement to serve witness statements for use at trial 3B. (1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally at the trial. ...” Going by witness statements may take away the court’s mandate under rule 20 of Order 65 of CI 47 supra as well as section 69 of the Evidence Act. Section 69 of NRCD 323 states: The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to— (a) make the interrogation and presentation as rapid, as distinct, and as readily understandable as may be, and (b) protect witnesses from being unduly intimidated, harassed or embarrassed. In any case, if lawyers are in the matter and they prepare witness statements, they are deemed to know the requirements of the law in terms of admissibility of evidence. The lawyer on the other side is also deemed to know the way to cross-examine legally sensibly. However, when the parties are unrepresented by lawyers and they file witness statements, they may deviate from the rudiments of the law as regards admissible evidence and also no meaningful cross-examination may be made. With my view of the law as above, I did not order witness statements to be filed; I set down the action for hearing in accordance with section 2(2) of Act 367. The parties proceeded to file witness statements. Upon reading the witness statements, I found them quite well written. Petitioner filed a motion to discontinue reliefs b and d of her petition. The court consequently struck out those reliefs as withdrawn. Petitioner testified on her witness statement; Respondent said he had no cross-examination for her. Respondent also testified on his witness statement; Petitioner said she had no cross- examination for him. Neither Petitioner nor Respondent said they would call a witness though they filed witness statements for people they intended to call as witnesses. As the parties did not cross-examine each other and also did not call any witnesses and as I find their witness statements quite well written, I find it expedient to produce the witness statements of the parties themselves in this judgment for clear understanding of the issues in this matter infra. See section 62 of the Evidence Act which is on cross-examination. The following is the witness statement of Petitioner: “ 1. My name is Joyce Adu. I am a teacher and work with Ghana Education Service and stationed at Amoamo R/C Primary School. 2. I live at Amoamo in the Ashante Bekwai Municipal of the Ashante Region. 3. I have taken the action in this court because I have been advised and verily belief[sic] the same to be true that, even though the marriage was celebrated outside the jurisdiction of this court, since the Respondent is residing within the jurisdiction of this court, this court is the proper forum for this action. 4. I know the Respondent. He was my husband but the customary aspect of the marriage has been dissolved about a year ago. 5. That the marriage was solemnized under the Ordinance (Cap 127) on the 25th of December, 2011 at St. John Vianny Catholic Church, Kyekyewere in the Obuasi Municipal of the Ashanti Region. 6. That since the marriage was under Ordinance(CAP 127) dissolution would not be proper unless the ordinance aspect of the marriage is dissolved by the Honourable Court. 7. The Respondent is also a teacher and works with Ghana Education Service and stationed at Methodist J. H. S Dunkwa-On-Offin. 8. That we got to know each other when we were doing our first degree in the University of Education Winneba, Kumasi Campus and we got marriage[sic] after the program in 2011. 9. The marriage is blessed with three (3) children... 10. That after the marriage we moved to stay under the same roof in the Respondent’s father’s house at Low Cost, Dunkwa-On-Offin and at the initial stage, we were enjoying the marriage until at a point in time Respondent’s behavior in the marriage suddenly did change from better to worse. 11. That due to the bad treatment Respondent was given to me including beatings, disgracing me before my in-laws and the siblings of the Respondent, I packed out of the matrimonial home and eventually resulted[sic] to the dissolution of the customary aspect of the marriage. 12. That due to the bad treatment and the beatings Respondent melted[sic] out to me, my eyes have been affected and in view of that my medical Doctors have recommended that I must use lens and I have been receiving medical treatment on my eyes from time to time. 13. That for the 3 children in the marriage I delivered, each delivery resulted into surgical operation or secerian[sic] session[sic] and during the last delivery the doctors advised that I should be ceased delivery and in view of that my womb has been closed. 14. That the complications in the delivery and the subsequent closed[sic] of my womb was as a result of the Respondent’s consistent beatings and bad treatment on me whenever I was pregnant. 15. That during the pendency of the marriage I assisted the Respondent to acquired[sic] 10 bed rooms self-contain situate at Oxford, Dunkwa-On-Offin which said property is deemed to be marital family property. 16. That in the cause of the marriage, we mutually agreed that, while the Respondent used his monthly salary to finance the building project, I should use my monthly salary for household expenses or to keep the house and in view of that I was providing food for the family, paying for the children[sic] medical bills as well as providing clothing and other basic needs. Even my medical bills including delivery bills, I used to pay without demanding anything from the Respondent because of the earlier mutual agreement. 17. That upon completion of the building, the respondent failed and or refused to move the family into the house, rather rented out the entire building to tenants and exclusively used the money or proceeds from the rent. 18. That when all attempts to bear upon the respondent move the family into the newly built building failed and when it was also not convenient for the family to continue staying in the family house I applied for released[sic] from Dunkwa-On-Offin hence my transferred to Amoamo. 19. That the respondent has failed and or refused to give me my equitable share of the 10 bed rooms’ self-contain building acquired during the pendency of the marriage upon persistent attempts after the dissolution of the customary marriage. 20. That the building project was started around 2012, and for all these[sic] period, I used my monthly salary to take care of the family to enable respondent accumulate enough fund to complete the building project on time. Even though I could not quantify the amount of money spent to take care of the family, for about 5 years I was taking charge of the family, I spent substantial amount. 21. That I have taken the present petition for the dissolution of the Ordinance (CAP 127) marriage conducted on the 25th December, 2011. Because the respondent has persistently behaved in an unreasonable manner towards me. 22. That the court should compel the Respondent pay[sic] an amount of GH¢100,000.00 to me in lieu of the closure of my womb and the effect on my eyes as a result of Respondent’s bad treatment on me during the marriage and as I may not get a man who is potential to give birth or need children to marry in the rest of my life. 23. That Respondent be compelled to give me equitable share of all that 10 bed rooms self- contain house situate at Oxford, Dunkwa-On-Offin. 24. That Respondent be made to pay adequate and substantial amount of money monthly for the up-keep of the 3 children. 25. That is all.” The witness statement of Respondent is as follows: " 1) My name is Samuel Ackon. I am a professional teacher at Methodist J. H. S at Dunkwa- On-Offin. I am also a farmer. 2) I know the petitioner herein. She is my wife. We got married under the ordinance in December 2011 and later on lived under the same roof in my father’s house at Dunkwa-On-Offin. 3) Our marriage is blessed with three (3) issues... 4) Some few months into our marriage, I found out that the petitioner was extremely naughty, highly temperamental and disrespectful. 5) With or without any reason whatsoever, the petitioner could get annoyed, and under these conditions, she would insult me at will and all those around me including even my father and mother. This happened when we were together alone in our bedroom. 6) Knowing what would have happened to our marriage if I should report her conduct to my parents and siblings, I kept my problems with her to myself so that my marriage would be saved. 7) I once made a passing comment of her unruly behaviour to my friend called Michael Ampontua, and before I realized, he had told my sister (Henrietta Ackon) everything and the result was not pleasant. 8) I was not lucky however one day when my wife poured her own urine she had intentionally stored for some days on me and my elder brother Frank Ackon suddenly appeared on the scene. My brother was shocked at her behaviour and he invited her to his place and spoke to her. 9) Because of this shameful act, the petitioner became very uncomfortable in the house especially whenever Frank was around. 10) Unable to contain the situation any longer, my wife sought for a release from her employers to her current station in 2018 without my knowledge and consent. I must also add that in all these, I restrained myself from laying a finger on her. 11) Whiles at her new station, my wife would not visit me here at Dunkwa-On-Offin and she would also not allow me to visit her. On the few occasions that I forced myself to her new place, she would frown all day, would not talk to me, would not cook for me and would fiercely resist any attempt to have sex with her. 12) Because of this attitude, I decided to stay away from her and we lived apart from then onwards. After attempts at settling our impasse failed, my wife formerly indicated her desire to discontinue with the marriage when she presented/returned my dowry/drinks (tri nsa) to me and followed it up with the formal dissolution of the customary aspect of the marriage. 13) I wish to state that I started working as a teacher in 2008 and in December, 2009, I purchased a building plot at Dunkwa-Oxford area and started developing it. 14) I married my wife in December, 2011 and before that I had made some preparation towards its construction. I had finished the blocks aspect of the house and I had five (5) trips of sand and six (6) trips of gravels on the plot. I had also purchased all the washroom facilities. 15) The actual construction of the house started during our marriage and I took some loans from my bankers to assist me in its construction. I also used some savings from both my teaching appointment and farming activities. 16) I must also add that the entire roofing sheet for the house was also purchased for me as a gift from my own father (Mr. Francis Ackon). 17) I wish to disclose that just as I personally purchased the building plot on which the house in issue is situated before the two(2) of us got married, so the petitioner had also acquired by purchase her own building plot at Obuasi-Kyekyewere. 18) I further wish to disclose that whiles[sic] I was building this house at Dunkwa-Oxford, the petitioner was also using her savings from her teaching appointment to build hers on her Obuasi-Kyekyewere plot and today she is almost through with it. 19) I wish to state again that the petitioner never contributed a penny in constructing this house just as I also did not contribute anything in constructing hers. 20) During the period of our marriage, I was virtually responsible for the upkeep of the house including our issues of health and our children’s education: I dared not ask the petitioner for any assistance as regards the house keeping money let alone making any arrangement with her in that respect. 21) I wish to state that the petitioner has made marriage life very uncomfortable for me and it will take some time for me to recover and to get back into my normal usual self. Hence, I am agreeable that the ordinance marriage be formally dissolved by this honourable court. 22) I am however vehemently opposed to her prayer to this honourable court for a share of my house at Dunkwa-Oxford. 23) I am also strongly opposed to her prayer to this court to compel me to pay alimony of GH₵100,000.00 and or any money at all to her. 24) I am therefore praying this honourable court to dismiss her claims for those reliefs as indicated in paragraphs 22 and 23 above.” In Majolagbe v. Larbi [1959] GLR 190, Ollennu J gave the following dictum: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true'." Because of the sacrosanct nature of the principle that dictum encapsulates, it has been referred to with approval by courts superior to the High Court in later years. See Klutse v. Nelson (1965)GLR 537 @ 542 and Baah Ltd v. Saleh Brothers [1971] 1GLR 119 @ 122. Section 10(1) of NRCD 323 defines “Burden of Persuasion” and it states: For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Section 10(2) of the Evidence Act adds that: The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 of NRCD 323 defines “Burden of Producing Evidence”; subsections 1 & 4 state: (1) 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. ... (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Thus in Ackah v. Pergah Transport Limited and Others[2010] SCGLR 728; Sophia Adinyira JSC stated at page 736 that: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things(often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law 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 the fact is more reasonable[sic] than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree[sic].” The issues for determination are: Whether or not any of the conditions in section 2(1) of Act 367 prevails Whether or not the marriage has broken down beyond reconciliation. Whether or not Respondent should pay more than GH¢500 per month for the upkeep of the children Section 8(2) of Act 367 states: If at any stage of the proceedings for divorce it appears to the court that there is a reasonable possibility of reconciliation, the court may adjourn the proceedings for a reasonable time to enable attempts to be made to effect a reconciliation, and may direct that the parties to the marriage, together with representatives of their families or any conciliator appointed by the court and mutually agreeable to the parties, attempt to effect a reconciliation. In accordance with section 8 of Act 367 and also in accordance with section 2(2) of Act 367 supra, the court asked the parties to bring to court two relatives of theirs for further enquiries. Section 8(4) of Act 367 states: Evidence of statements or other actions of the parties or their representatives in connection with attempts at reconciliation under subsection (2) shall not be admissible in court in the divorce proceedings. I will therefore not produce the contents of what the relatives said before the Court. However, the relatives were ad idem that the marriage should be dissolved. After their relatives had spoken, the parties maintained their stance that the marriage should be dissolved. I find that section 2(1) (b) and (f) prevail. Considering the evidence on record and the entire circumstances of the case, I hold that marriage has broken down beyond reconciliation. In Hyde v Hyde & Woodmanse[L. R.] 1 P. & D. 130, Lord Penzance pronounced that: “I conceive that marriage as understood in Christendom may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.” Marriage under the ordinance is to be forever till death part the ways of the parties. But if the union falls on the rocks, a court of competent jurisdiction may intervene and if need be, dissolve the marriage for the marriage couple to part ways. I hereby dissolve the marriage herein. It is decreed that the parties are longer husband and wife, as from today 06th October 2022. Section 47 of the Children’s Act,1998(Act 560) states: 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, basic education and reasonable shelter for the child. By relief c of the petition, I gather that Petitioner is seeking increment in money Respondent pays for the upkeep of the children. The parties did not adduce evidence to assist the court as to the amount of money that is reasonable in that course. However considering the entire circumstances of the case I hold that GH¢1000.00 is reasonable in that regard. Therefore, the court orders that the GH¢500.00 be increased to GH¢1000.00 per month as regards relief c. (SGD) HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 06/10/22 16