Sherrill Vrs Hanson [2022] GHADC 54 (29 November 2022)

IN THE DISTRICT COURT “B” SEKONDI HELD ON TUESDAY THE 29TH OF NOVEMBER, 2022 BEFORE HER WORSHIP (MRS.) ROSEMARY EDITH HAYFORD, __________________________________________________________________ SUIT NUMBER A4/62/2022 MARY SHERRILL - PETITIONER V STEPHEN KWESI HANSON - RESPONDENT ------------------------------------------------------------------------------------------------------------- TIME: 9.44 AM PETITIONER RESPONDENT - - PRESENT PRESENT ___________________________________________________________________ JUDGMENT The parties to this suit were married under the ordinance on the 5th of November, 2011 at the God is King Church International, Takoradi and they have three children. By a petition filed on the 30th of May, 2022, the petitioner claims the marriage has broken down beyond reconciliation. she pleads unreasonable behaviour on the part of the respondent and alleges various particulars as the basis. She seeks dissolution of the marriage and other consequential reliefs as follows: 1. Dissolution of the marriage 2. Custody of Charlene Abokoma Hanson (9 years), Stephanie Araba Hanson (7 years), and Stephanora Araba Hanson, 7 years be granted to the Petitioner while Respondent is granted reasonable access 3. Monthly maintenance for the children of the marriage The respondent denies the allegation of unreasonable behavior and the particulars stated thereunder. Respondent cross-petitions and prays as follows: (a) That the court should reconcile the parties and not dissolve the marriage, in the alternative (b) if the court dissolves the marriage, the court should grant custody of the children to the Petitioner with reasonable access to the Respondent (c) Respondent will maintain the children at GHc1,000.00 per month Both parties testified in court and none of them called any witnesses. The facts as pleaded by the Petitioner are that the Respondent is disrespectful, rude, and irresponsible. It is the case of the Petitioner that any slightest issue that crops up within the marriage, the Respondent would walk out from the room to the compound of their house and insult the Petitioner. This according to the Petitioner caused her a lot of embarrassment and unhappiness. Petitioner says she was the one managing the house and the Respondent never cared. Petitioner further avers that the Respondent assaulted the Petitioner twice and even threatened her with very abusive words. For these reasons, she prays for the dissolution. The Respondent on the other hand denies that the marriage has broken down beyond reconciliation and denies the averments of the Petitioner. Respondent says that if the Petitioner insinuates that she is not happy in the marriage it is because of her relationship with one Mr. Bannerman who was one time in a relationship with the Petitioner before the parties got married. It is the case of the Respondent that Petitioner has been inviting the said Mr. Bannerman to eat in the parties’ matrimonial home against the will of the Respondent. Respondent further avers that the Petitioner is disrespectful and does not regard him as her husband and the father of her children. This has caused humiliation and a lot of embarrassment to him. The issue for determination at the end of the trial is thus whether or not the marriage between the parties has broken down beyond reconciliation The sole ground for the grant of divorce in Ghana is that the marriage has broken down beyond reconciliation. This is provided under section 1 (2) of the Matrimonial Causes Act 1971, Act 367. Section 2 of Act 367 (supra) also provides that “For the purpose of showing that the marriage has broken down beyond reconciliation, the petitioner shall satisfy the court that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” To be able to arrive at this conclusion, the petitioner is enjoined to establish that one or more of the facts stated in section 2(1) of the said Act have occurred. Section 2(1) (a) of Act 367 (supra) provides 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; (Only the relevant sections pertaining to this matter will be quoted). (b) that the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent; Section 2(2) of the Matrimonial Act also stipulates that “On a petition for divorce the court shall inquire, so far as is reasonable into the facts alleged by the Petitioner and the Respondent” As stated earlier, the Petitioner grounds the reason for the divorce on Unreasonable behavior. In Mensah v Mensah [1972] 2 GLR 198, Hayfron Benjamin stated the test for unreasonable behaviour thus: “the test however is an objective one; It is whether the petitioner can reasonably be expected to live with the respondent and not whether the petitioner in fact finds it intolerable to do so. The answer must be related to the circumstances of both the petitioner and the respondent and is eminently a question of fact in each case…..one point is clear and it is that the conduct complained of must be sufficiently grave and weighty to justify a finding that the petitioner cannot reasonably be expected to live with the respondent. Mere trivialities would not suffice. The parties must be expected to put up with what has been described as the reasonable wear and tear of married life” It is trite that the burden is on the Petitioner to prove what she alleges. The Petitioner in his testimony stated that she is the one who has been taking care of the home and that the Respondent is irresponsible. The Respondent vehemently denies this claim. It came to light during the trial that the Respondent during the 11 years of marriage had lost his job on three different occasions. During that period, it is the Petitioner who catered to the needs of the family. The Respondent says that he was also helping except that the Petitioner did more. In my view, it was not the case that the Respondent was gainfully employed and deliberately refused to support the family. Neither was it the case that the loss of the jobs was attributed to him or that he even refused to look for another job. The evidence is that he made efforts on all three occasions that he lost his job and he subsequently got another. In my humble view, this is not someone who can be described as irresponsible. It was just the circumstances he found himself in at that time. Petitioner further testified that the Respondent shows immaturity and that whenever there is an issue between the parties, instead of the respondent discussing same with her, he would not but would rather complain to his friends, parents, and co-workers thereby causing her embarrassment. The Petitioner does not say the sought of issues, and the Respondent also did not deny this claim. It can only be inferred that that is the case. It is further the evidence of Petitioner that the Respondent has told her point blank that he does not trust or love her and that Respondent refused to eat the food Petitioner prepared causing her emotional trauma. Again, the Petitioner testified that on one occasion the Respondent physically abused her and later he called Petitioner’s elder sister to come to their matrimonial home and that if she failed, she would come and meet Petitioner’s dead body at the mortuary. It must be noted that all these averments were never denied or challenged by the Respondent under cross-examination. The effect of this is that the facts alleged by the Petitioner were true and same acknowledged by the Respondent. 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. See also Browne V Dunn (1894) 6 R 67, HL Keen Adrian (2008), in his book “The Modern Law of Evidence” (seventh Edition), Oxford, New York, 195, stated thus “A party’s failure to cross examine however, has important consequences. It amounts to a tacit acceptance of the witness’s evidence in chief. A party who has failed to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict his evidence-in-chief or impeach his credibility by calling other witnesses, will not be permitted to invite the jury or tribunal of fact to disbelieve the witness’s evidence on that matter.” The learned Jurist William E. Offei, in his book “Family Law in Ghana”, 3rd Edition @ page 229 states that “Threat of actual personal violence may constitute cruelty. The court does not wait until such threats are carried into effect. Offensive language or false accusations of adultery or incestuous adultery, or unnatural practices may amount of cruelty”. He further states that “In the past, cruelty was a ground for divorce. However, under Act 367 it has been subsumed under “unreasonable behaviour” which is one of the grounds for divorce. From the above authorities, since the averments of threat and abuse leading to emotional stress, distress, and embarrassment of the Petitioner were not challenged, it means an admission by the Respondent. It can therefore be concluded that the Respondent’s action of threatening and abusing the Petitioner is unreasonable. The Respondent also alleges that the Petitioner was in a relationship with one Mr. Bannerman and that brought him a lot of discomforts. In effect, the Petitioner committed adultery. A claim the Petitioner denies. The burden, therefore, shifted on the Respondent to prove this assertion. In Adjetey V Adjetey [1973] 1 GLR 216 it was decided that “Adultery must be proved to the satisfaction of the court and even though the evidence need not reach certainty as required in criminal proceedings, it must carry a high degree of probability” In this case, the Respondent could not prove same. All he did was to mount the box and repeat what he had already pleaded in his answer and cross-petition. Mere averments will not suffice. In Majolagbe v Larbi & Others [1959] GLR 190 at 192 it was held that: “the establishment of facts by proper legal means………by producing documents, description of things, reference to other facts, instances or circumstances………….by producing other evidence of facts and circumstances from which the court can be satisfied that what he (a party) avers is true”. I find on the evidence that the allegation by the Respondent concerning Mr. Bannerman could not be proved and therefore the Petitioner did not commit any adultery. There is overwhelming evidence that the parties have had several misunderstandings and family members of both families and even the Methodist Bishop of Sekondi have all tried to settle the parties’ differences but failed. Both parties confirm the same During the cross-examination of the Petitioner on the 29/11/2022 below is what transpired Q. There have been several times that you and your husband have had fightings (sic) and misunderstandings, is that correct A. That is so The Respondent in paragraphs 10 and 13 of his witness statement filed on 13/9/2022 also stated as follows: “10. …as a responsible husband, I approached some elders including Petitioner’s family and the Methodist Bishop of Sekondi to advice (sic) her so the marriage will be intact and peaceful 13. There has (sic) been several attempts at settlement of our differences by counsellors and the elders (supra) but Petitioner has been recalcitrant and never listens to any good counsel.” Clearly from the above, there have been attempts at reconciliation but all failed. It must be noted that even though the Respondent in his answer prayed to the court to reconcile the parties, he changed his mind at the time he filed his witness statement and prayed the court for a dissolution of the marriage. Much as the institution of marriage needs to be preserved, one cannot also compel parties to stay in a marriage when both parties are calling for it to be dissolved. In the circumstance having considered all the totality of the evidence before this court, it is my considered view that the marriage between the parties cannot be saved by this court and that same be and is accordingly dissolved. In respect of the custody of the three children, both parties agree that same should be granted to the Petitioner with reasonable access to the Respondent. The Respondent has further indicated to the court that he is willing to maintain the children of marriage at GH₵1,000 per month. DECISION 1. The marriage contracted between the parties herein on the 5th of November, 2011 at the God is King Church International, Takoradi has broken down beyond reconciliation and the same is accordingly hereby dissolved. It is ordered that a decree of divorce be granted; the marriage certificate with registration number GIK 08/11 pursuant to licence no. GIK 08/718/11 is hereby cancelled. 2. The Petitioner is hereby granted custody of the three children of the marriage (Charlene Abokoma Hanson (9 years), Stephanie Araba Hanson (7 years) and Stephanora Araba Hanson, 7 years) with reasonable access to the Respondent, prior due notice to the Respondent. 3. The Respondent is further ordered to maintain the children of marriage with an amount of One Thousand Ghana cedis (Gh₵1,000.00) per month subject to upward review to reflect economic conditions until the children attain the age of majority 4. The Respondent shall be responsible for the school fees and medical bills of the children as and when they fall due 5. The Respondent is hereby ordered to pay the transportation of the car that picks up the children to school. 6. There is no order as to costs (SGD) H/W ROSEMARY EDITH HAYFORD (MRS) MAGISTRATE COUNSEL: GEORGE ESSIFUL ANSAH FOR THE PETITIONER MRS. ADENU MENSAH FOR THE RESPONDENT - - PRESENT PRESENT 9