Agyapomaa Vrs Oparehene [2022] GHACC 134 (30 September 2022)

IN THE CIRCUIT COURT HELD AT AGONA SWEDRU ON FRIDAY THE 30TH DAY OF SEPTEMBER, 2022 BEFORE HIS HON. JONATHAN D. NUNOO CIRCUIT JUDGE SUIT NO: A4/15/2022 MAVIS AGYAPOMAA …. PETITIONER VRS SAMUEL OPAREHENE …. RESPONDENT. Petition’s Attorney absent. Respondent’s Attorney present. JUDGMENT The Petitioner in her petition is seeking for dissolution of the marriage and order that parties bear their cost. The Petitioner pleaded the following facts to indicate her claim that the marriage between them has broken down irretrievably in paragraphs 7 to 11 of her petition. 7. That several attempts made by the families of the parties, priest, well-wishers to settle the matter between them but all attempts have proved futile. 8. That the Respondent is not responsible in raising kids i.e. communication, relation with kids and wife. 9. That the Respondent can leave home for about three weeks without his family knowing where he is. 10. That the Respondent has behaved in such a way that the Petitioner cannot be reasonably be expected to live with the Respondent. The Respondent filed an answer to the petition and also alleged in paragraphs 8 to 11 as follows: 8. The Respondent admits paragraph 7 of the petition and further say all attempts failed of the petitioner had been selfish, resolved not to settle our differences as she had failed to listen to any advice from our counselors. 9. Respondent vehemently denies paragraphs 8, 9 and 10 of the petition and put the petitioner to strict proof. 10. Respondent say in further answer to paragraph 9 that when the Petitioner and the children came to the United Kingdom, petitioner was unemployed thus, Respondent was fully responsible for all the bills and welfare of the family. However, upon securing some employment the Petitioner only contributed 20% of the bills at home but as it stands now the petitioner has failed to contribute to the total upkeep of the family for more than a year at the time of this response. 11. Respondent further say that it is the Petitioner who has exhibited unreasonable behaviour ever since she obtained her British citizenship. a. That the petitioner goes out without any notice or regard to the Respondent and comes back any time she likes. b. That Petitioner moved to stay in the children room and failed to perform any matrimonial duties to the Respondent. c. That the petitioner has failed/denies the Respondent sex for the past two years even though they all stay in the same household. d. The Petitioner indoctrinate and /or put spit between the Respondent and his children to cause the children to dislike or disrespect the Respondent. 12 Respondent admit paragraph 11 of the petition. (Sic) The Respondent then prayed for a dissolution of the marriage and access to the children especially on weekends and holidays. At the end of the proceedings the issue for the court’s attention is whether or not the marriage between the parties has broken down beyond reconciliation. The parties did not call any witnesses in support of their respective cases. The general principle of law is that to enable a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to the prescribed standard as provided by statute. In Ackah v Pergah Transport Ltd & Ors. {2010] SCGLR 728 at 736 Adinyira JSC said that “it is a basic principle of law on evidence that a party who has 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 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 than its non- existence. This is the requirement of the law on evidence under sections 10(1) and 11 (2) and (4) The Evidence Act 1975 (NRCD 323)” In the case of Ababio V Akwan III (1994-95) GBR 774 by the Supreme at page 777, by Akins JSC who delivered the lead opinion of the court stated; The general principle of law is that it is the duty of the plaintiff to prove his case he must prove what he alleges, in other words, it is a party who raises in his pleadings an issue essential to his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scale in his favour when on particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins, if not he loses on that particular issue. Section 14 of the Evidence Act 1975 (NRCD 323) provides that “Except as otherwise provided by law, 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” The burden of providing evidence as well as burden of persuasion is on both parties and the standard required to discharge the burden of persuasion is “preponderance of probabilities” see Section 12 (1) of the Act. Section 12 (2) of the same Act defines “preponderance of probabilities” to mean degree of certainty of belief in mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. Section 11 (4) of evidence Act (NRCD323) provides that a burden of providing evidence is discharge when a party provides sufficient evidence, so that on all the evidence a reasonable mind could conclude that the existence of a fact is more probable than its non-existence. The case of the Petitioner is that she and the Respondent has not been able to live as a couple for the past two years and that her husband goes out for three weeks without notice to the family and he has been going through her phones without her consent and keeping the benefits of the children yet he claims he does not have money for their upkeep and gives information of their marriage such as sex to his friends. The case of the Respondent simply is that he was ordinary resident in the United Kingdom so he went back after the marriage and facilitated the movement of the Petitioner and the children to the United Kingdom and took care of his family alone because the Petitioner was not working and soon after the Petitioner secured her documents she changed towards the Respondent by showing gross disrespect in her language and manners. The Petitioner can go out without informing the Respondent and she has moved from the matrimonial room to live with the children and has not been performing her marital duties and she does not give Respondent sex. Section 1 of Matrimonial the Petitioner Causes Act (Act 371) provides as follows: A petition for divorce may be presented to the court by either party to a marriage. Section (2) provides that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 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. 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. 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. . Determination of the issue that is whether or not the marriage between the parties have broken down beyond reconciliation? Form the evidence given by the parties it can be observed that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. The Court is however of the view what the Petitioner Attorney said about the Respondent breaching Petitioner’s privacy was not pleaded and there was no pleadings in respect of Respondent discussing any marital issues such as sex with his friends. Both parties averred and produced evidence to accusing each other of going out without informing the other and denial of sex for two years. The Petitioner is said to have vacated the matrimonial room to the children’s room and all efforts from family, friends and well- wishers to reconcile have not yielded any favourable results. In applying the law to the evidence adduced it is my view that the marriage between the parties have broken down beyond reconciliation and it must be dissolved and it is dissolved. The Petitioner is granted custody of the children with reasonable access to the Respondent. The children are to spend two weeks in each month with the Respondent but the children are to alternate the spending of holidays with the parties. No order as to cost. (SGD) H/H JONATHAN DESMOND. NUNOO. (CIRCUIT JUDGE) 9