Oluwashola Oluwabukola Tekpor Vrs Theodore Kwame Tekpor [2022] GHACC 87 (9 December 2022)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON FRIDAY THE 9TH DAY OF DECEMBER, 2022, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C5/25/23 OLUWASHOLA OLUWABUKOLA TEKPOR ----- PETITIONER VRS. THEODORE KWAME TEKPOR ----- RESPONDENT PARTIES PRESENT ANTHONY ADU-NKETIAH, ESQ. APPEARING WITH VALENTINA KWARTENG, ESQ. HOLDING THE BRIEF OF PRINCE KWEKU HODO, ESQ. FOR THE PETITIONER PRESENT EDWARD METTLE-NUNOO, ESQ. FOR THE RESPONDENT PRESENT JUDGMENT FACTS: The petitioner, a citizen of Nigeria and ordinarily resident in Ghana and the respondent, a Ghanaian and Mariner (Sea Captain) got married on 19th June, 2012, under Part III of the Marriages Act (1884-1985) Cap 127, at the Principal Registrar of Marriages Office Accra. After the marriage, the parties cohabited in Nigeria and subsequently relocated to Sakumono Estate, Tema in the Greater Accra Region. There is one issue to the marriage called Enoch Mawuena Kwaku Tekpor aged 7 years. There has not been a previous proceeding except an application for custody and maintenance of the issue of the marriage at the Family Tribunal Tema. On 11th October, 2022, the petitioner filed the instant petition for divorce alleging that the marriage between herself and the respondent has broken down beyond reconciliation and prayed the court for the following reliefs; a. That the marriage celebrated between the parties be dissolved. b. That the respondent be granted custody of the child with access to the petitioner. c. That the respondent be ordered to make to the petitioner such maintenance pending suit and thereafter such periodical payments as may be just. d. That the respondent be ordered to pay the petitioner a lump sum. e. That House No. Block 13, Flat 1, Signs and Wonders Estate, Redemption Camp three-bedroom flat at Redemption camp, Lagos, Nigeria be settled in favour of the petitioner. f. Costs including legal costs. The respondent entered appearance, filed an answer to the petition and cross- petitioned as follows; a. That the marriage contracted between the parties on the 19th June, 2012, be dissolved. b. That he be accorded custody of the child of the marriage with reasonable access to the petitioner. c. That there should be no order as to costs. The petitioner avers that the marriage celebrated between the parties has broken down beyond reconciliation owing to the failure of the parties to live as husband and wife for a continuous period of at least five (5) years immediately preceding the presentation of the petition for divorce. According to the parties, due to irreconcilable differences, the respondent vacated the matrimonial home and the parties have lived separately since 2018. Additionally, all attempts at reconciliation made by family, friends and their church pastors have proved futile. On property issue, the petitioner, the petitioner avers that that during the subsistence of the marriage, the parties acquired properties located within Ghana and in Nigeria including vehicles and houses, and specifically prays the court to settle House No. Block 13, Flat 1, Signs and Wonders, Estate, Redemption Camp three bedroom flat Redemption Camp, Lagos, Nigeria on her. The respondent is agreeable that their marriage has broken down beyond reconciliation since for five years preceding the presentation of the petition for divorce; they have not lived as husband and wife. The petitioner avers the physical and verbal abuse meted out to him by the petitioner compelled him to leave the matrimonial home. The respondent recounts how on one occasion he had to lock himself in the bedroom to escape from petitioner who attacked him with a kitchen knife. The respondent further avers that the threats of the petitioner did not abate and he was compelled to seek the assistance of the police patrol team, who rescued him by placing a ladder on balcony of the bedroom for him to descend to safety. According to him, as a result of the violent behaviour of petitioner and to ensure his safety and peace of mind, he moved out of the matrimonial house and the parties have been living separately for five years. The respondent further avers that most of landed properties were acquired before he married the petitioner and would put the petitioner to strict proof of the averments. SETTLEMENT During the pendency of the petition for divorce, the parties with the assistance of their lawyers attempted settlement and filed terms of settlement on the ancillary issues on 11th November, 2022 for the adoption by the court in the event that the court decrees for the dissolution of the marriage. The parties having settled on the ancillary reliefs, this court is bereft of jurisdiction to determine same. Consequently, the sole issue for the consideration of the court is the dissolution of the marriage. LEGAL ISSUE Whether or not the marriage between the petitioner and the respondent has broken down beyond reconciliation. ANALYSIS Under section 1 of the Matrimonial Causes Act, 1971 (Act 367), the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. To prove that the marriage has broken down beyond reconciliation, a petitioner is required to prove one of the facts set out in section 2(1) of Act 367 is required to establish one of the six (6) facts enumerated in section 2(1) of Act 367, namely; adultery, unreasonable behaviour, desertion, failure to live as man and wife for two years, failure to live as man and wife for five years and irreconcilable differences. A respondent who cross-petitions for divorce has the same obligation like a petitioner to establish any of the facts on balance of probabilities. The petitioner and the respondent in the instant petition set out to prove fact 2(1) (e) namely; "that he and the respondent have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition.” The principle of law is that proof continuous five years of not living together as husband and wife entitles a party to the grant of the petition for divorce even against a party who has committed no matrimonial offence. In the case Kotei v. Kotei [1974] 2 GLR 172, where a husband petitioned for divorce alleging that he and the respondent had not lived as husband and wife for six years, and that the marriage had broken down beyond reconciliation, the petitioner maintained that he had recognised the marriage as at an end and had no intention to take his wife back. In resisting the petition, the respondent asserted that she still loved her husband, that she was still waiting for the husband to send for her and was willing to make attempts at reconciliation if the proceedings were adjourned for that purpose. The High Court per Sarkodie J, in his erudite exposition of the law on section 2(1) 1(e) of Act 367 held @ 175-176 that: “Proof of five years’ continuous separation enables the marriage to be dissolved against the will of a spouse who has committed no matrimonial offence and who cannot be blamed for the breakdown of the marriage”. The court gave the caveat that there must be evidence of the total breakdown of consortium vitae and mere physical separation if not enough and the party alleging must show that he or she recognized the marriage as at end with no intention to return to the marriage. To prove her case, the petitioner testified that she is a Nigerian citizen but has been ordinarily resident in Ghana for a period of ten (10) years, According to her, she got married to the respondent on 19th June, 2012, under the Marriages Act (CAP 127) at a ceremony celebrated by the Principal Registrar of Marriages in the Principal Registrar of Marriages Office, Accra. In support, she tendered in evidence a copy of the marriage certificate admitted and marked as Exhibit “A”. According to her testimony, there was a previous custody and maintenance proceedings between them, which a court ruled in her favour. The petitioner testified that the marriage has broken down beyond reconciliation due to irreconcilable differences between the parties. The petitioner states that she has not lived together with the respondent as husband and wife since 2018 and for a continuous period of 5 years, they have been living separately. After giving birth to their son, she started having health issues, which affected her ability to work. Subsequently, they started having serious misunderstanding such that the respondent asked her to return to Nigeria, which she did and returned after about nine (9) months. Unfortunately, not long after her return to Ghana, their marital challenges escalated, and her husband left the matrimonial home at Sakumono. She was then living at Sakumono with their only child who was then about 3 years alone. The petitioner testified that prior to leaving home, they had a quarrel and the respondent reported her to the police for causing damage to his vehicles leading to her arrest and being charged before a court. When their marital woes continued, she applied to the District Court, Tema for custody and maintenance of the child of the marriage and in support, she tendered a copy of the court order admitted and marked as Exhibit “B” evidencing this fact. Despite the court order, since the issue between them is a male child and needs to be trained by his father, she agreed with the respondent to have custody of the child whilst she is granted reasonable access during vacations and weekends. Additionally, the petitioner testified that the rift between them deepened and despite diligent efforts made by their families and church elders, they have not been able to reconcile their differences. The petitioner further testified that, they have not shared the matrimonial bed for five years now and there has not been any sexual intimacy between them. According to her testimony, she has had intermittent health challenges within these five years, which the respondent took care of her medical bills, but they still could not resolve their differences. Based on the foregoing, they cannot continue to live as husband and wife and that the marriage has broken down beyond reconciliation. The respondent on his part testified that since the inception of the marriage, he has had to endure verbal and physical assaults from the petitioner. The respondent testified again that on one occasion, the petitioner threatened him with a knife, which compelled him to lock himself in the bedroom. However, the petitioner was not perturbed but she kept banging on the door amidst insults and commanding him to come out of the room. This compelled him to call the police to come to his rescue that night. When the police arrived at the matrimonial home, the petitioner refused to give them access and they were compelled to rescue him through the corridor of his bedroom with ladder to safety. After he left the matrimonial home following his rescue by the police, he has not lived with the petitioner as husband and wife for the past five years. According to him, due to the uncompromising behaviour and violent nature of the petitioner, he has had to struggle at every point of their journey to provide and care for the only child of the marriage. All attempts by well wishers, their pastors and others have failed to reconcile and bring them together. He therefore prayed the court for the dissolution of the marriage. The Matrimonial Causes Act further enjoins the parties or their respective lawyers to inform the court about all attempts at reconciliation and a court shall refused to grant a petition for divorce if there is a reasonable possibility for reconciliation. See Section 2(3) of the MCA and the case of Adjetey & Adjetey [1973] I GLR 216 at page 219. Regarding attempts at reconciliation, the petitioner testified to various attempts made by their families and pastors to help reconcile them which have all proved futile. Additionally, after the filing of the petition for divorce, they have met with their lawyers and agreed on the ancillary issues which they have filed terms to be adopted by the court but they could not reconcile their differences to resume co-habitation as man and wife. From the evidence led by the parties, the respondent admits that for a period of five years immediately preceding the presentation of the petition for divorce, they have not lived as husband and wife. It is trite learning that where an opponent admits an issue, further proof is superfluous. The parties having established this fact, the law does not require that a party prove who is to be blamed for the failure of the parties to live together as husband and wife and there is no need to establish the commission of matrimonial offence on the part of either party. Quite apart from the parties’ failure to live together as man and wife for a continuous period of at least five years, the whole matrimonial history of the marriage is testament to the fact that the marriage has broken down beyond reconciliation. Also, the parties after diligent effort have been unable to reconcile their differences. There has been a complete cessation of consortium vitae. When the parties met to settle the issues, they agreed that the marriage has broken down and should be dissolved. On the totality of the evidence led, I hold that the marriage celebrated between the petitioner and the respondent has broken down beyond reconciliation for failure of the parties to live together for a continuous period of five (5) years immediately preceding the petition for divorce. CONCLUSION In conclusion, I hold that the marriage between the petitioner and the respondent has broken down beyond reconciliation owing to failure of the parties to live together as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition for divorce. I accordingly grant the petition and the cross-petition for divorce and enter judgment in the following terms; 1. I hereby grant a decree for the dissolution of the marriage celebrated between the petitioner and the respondent on 19th June, 2012, in the Principal Registrar of Marriages Office, Accra. 2. The Registrar of the court shall cancel the original copy of the marriage certificate No. RGM 1568/2012. 3. The terms of settlement signed by the parties and their respective lawyers dated 21st October, 2022 and filed in the Registry of this court on 11th November, 2022, is hereby adopted as consent judgment on the ancillary reliefs. Per the parties own terms; a. Custody of the issue of the marriage by name Enoch Mawuena Kwaku Tekpor, aged 7 years be given to the respondent with reasonable access to the petitioner. b. That the respondent shall pay $50,000 or its Ghana Cedi equivalent at the prevailing forex rate as lump sum financial compensation to the petitioner forthwith. c. The House No. Block 13, Flat 1, Signs and Wonders Estate, Redemption Camp three-bedroom flat at Redemption camp, Lagos, Nigeria be settled on the petitioner. d. The respondent shall cause to be prepared and execute documents transferring his interest in the house stated in paragraph “C” above to the petitioner within one month (1) after the dissolution marriage. 4. No order as to costs. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 10