Emmnauel Adom Quaye Vrs Victoria Gyabah [2022] GHACC 66 (10 May 2022)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON WEDNESDAY, 10TH DAY OF MAY, 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL CIRCUIT COURT JUDGE. SUIT NO.: C5/152/2022 EMMANUEL ADOM QUAYE PETITIONER VS VICTORIA GYABAAH RESPONDENT JUDGMENT Background: Petitioner herein per the Petition filed at the registry of the court on the 13th of January, 2022 prays the court for the following reliefs; a. That the marriage celebrated on 10th April, 2009 between the parties be dissolved. b. Respondent be granted custody of their three children with the Petitioner being granted reasonable access to the said children. c. An order sharing the cost of maintenance of the children between the parties herein. The basis of the Petition is that after the celebration of the marriage in 2009, the Parties cohabited in Germany and the United Kingdom, and there are Three (3) issues of the marriage aged Nine (9) years); Seven (7) years and Two (2) years respectively. According to the Petitioner, the marriage between the Parties has broken down beyond reconciliation because the Respondent has unreasonably behaved in a way that the Petitioner cannot be expected to live with the Respondent. With regards to the particulars of unreasonable behaviour, the Emmanuel Adom Quaye vs Victoria Gyaabaah Petitioner states that the Respondent consistently picks up unnecessary quarrels and always insults him without any provocation and in public causing him enormous embarrassment. He continued that the Respondent has shown gross disrespect to him and his family, and has on several occasions used very intemperate language against his family members. He stated further that the Respondent treats him with scorn and disdain neither does he care about the emotions of the Petitioner. The Petitioner concluded by stating that the Respondent has refused to shun her disrespectful and abusive attitude towards the Respondent despite several counselling sessions and interventions from Counsellors, Clergy and Elders. Pursuant to a Court Order dated 7th February 2022, leave was granted to the Petitioner to serve the Notice of the Divorce Petition on the Respondent out of the jurisdiction through courier services and same was done but the Respondent failed to enter appearance to the Petition. All other court processes including court notes were also served on the Respondent outside the jurisdiction via courier services but the Respondent again failed to respond to any of the said court processes. The Court accordingly proceeded to hear the case of Petitioner since Respondent, after being duly served all court processes, failed to appear before the court to exercise the rights available to her as part of the civil practice in our Courts. Determination On the 30th of March 2023, the court heard the case of the Petitioner through his Lawful Attorney; Mr. Samuel Odonkor, who on oath, gave a short evidence in chief. Consequently, the main issue for determination is whether the marriage between the parties ought to be dissolved. It is to be noted that, the failure of Emmanuel Adom Quaye vs Victoria Gyaabaah the Respondent to appear at trial to cross examine the Petitioner’s Lawful Attorney on the evidence or challenge same either in cross examination or by contrary evidence does not exonerate the Petitioner from satisfying the court that the marriage has broken down beyond reconciliation. The Standard of proof in civil case such as the present action is proof on the preponderance of probabilities. This is statutory and has received countless blessing from the Courts of this land in plethora of authorities. See sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323. Section 12(2) of NRDC 323 defines preponderance of probabilities to mean that degree of certainty of belief in the 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. In the case of Adwubeng vs. Domfeh (1997-98) 1 GLR 282, it was held per holding 3 as follows: “...sections 11(4) and 12 of NRCD 323 clearly provided that the standard of proof in all civil actions, without exception, was proof by a preponderance of probabilities”. Similarly, it is trite that the failure of a party to deny a material averment constitute an admission of same and such implied admitted fact requires no further proof. As the Supreme Court in the case of Fori vs. Ayirebi and Other [1966] GLR 627 held “when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact”. Analysis There is only one ground for dissolution of a marriage under the Act 367. Section 1(2) of the Matrimonial Causes Act, 1971 Act 367 states “The sole ground for granting a Petition for divorce shall be that the marriage has broken down beyond Emmanuel Adom Quaye vs Victoria Gyaabaah reconciliation”. Petitioner therefore must satisfy the court of one or more of the instances listed under section 2(1) of Act 367 as proof that the marriage has broken down beyond reconciliation to be entitled to the relief of dissolution of marriage. Section 2(1) of Act 367 requires that a Petitioner must satisfy the court of one or more of the instances listed therein as proof that the marriage has broken down beyond reconciliation. The court also has to satisfy itself that the grounds for dissolution canvassed by the Petitioner falls within Section 2 of Act 367. The Petitioner’s Lawful Attorney testified among others that the Respondent consistently picks up unnecessary quarrels with the Petitioner and always insults him without any provocation and has on several occasions verbally abused the Petitioner even in public, causing him enormous embarrassment. He testified further that the Respondent has shown gross disrespect to the Petitioner and his family and has on several occasions, used every intemperate language against the Petitioner and his family. He concluded his evidence by testifying that the Respondent has refused to shun her disrespectful and abusive attitude towards the Petitioner despite several counselling sessions and interventions from Counsellors and Clergy Elders. Petitioner’s ground for seeking dissolution of the marriage therefore falls under Section 2 (1)(f) of Act 367 which provides that for the purpose of showing that the marriage has broken down beyond reconciliation, the Petitioner shall satisfy the Court that ‘… the parties to the marriage have, after diligent effort, been unable to reconcile their differences’. Conclusion It is evident on record that attempts at reconciling the differences of both parties have been futile. The court therefore finds that the marriage between the parties Emmanuel Adom Quaye vs Victoria Gyaabaah celebrated on the 10th April, 2009 at the Marriage Registry, Accra has broken down beyond reconciliation. In the circumstances, (a) The court hereby decrees the said marriage celebrated on the 10th April, 2009 at the Marriage Registry, Accra dissolved this 10th day of May, 2023. (b) The Respondent shall have custody of all the children of the marriage and the Petitioner shall have reasonable access to the children. The Petitioner shall have access to the children during the school vacations OR IN THE ALTERNATIVE parties shall agree on the Petitioner’s access to the children in a manner that operates in the best interest of the children. (c) Both the Petitioner and the Respondent shall share the cost of maintenance of the children equally, with the Petitioner paying Fifty Percent (50%) of the cost and the Respondent also paying the remaining Fifty Percent (50%) of the cost of maintenance of the children. PARTIES Petitioner absent; Lawful Attorney present Respondent absent COUNSEL Richard Laapo Esq. for the Petitioner. H/H HALIMAH EL-ALAWA ABDULBAASIT CIRCUIT COURT JUDGE Emmanuel Adom Quaye vs Victoria Gyaabaah 5