JUDITH ABRA GAMELI MABREH VRS WILLIAM KAFUI KWAME MENSAH (C5/48/22) [2022] GHACC 329 (3 November 2022)

CORAM: HER HONOUR BERTHA ANIAGYEI (MS) SITTING AT THE CIRCUIT COURT ‘B’ OF GHANA HELD AT TEMA ON THURSDAY, 3RD NOVEMBER, 2022 SUIT NO. C5/48/22 JUDITH ABRA GAMELI MABREH - PETITIONER VRS WILLIAM KAFUI KWAME MENSAH - RESPONDENT --------------------------------------------------------------------------------------------------------------------- --------------------------------------------------- JUDGMENT -------------------------------------------------------------------------------------------------------------------- On the 5th of August, 2017, the parties to this action being of the conviction that they wanted to live the remainder of their years on this earth in each others company, celebrated their marital union under the ordinance at the Bishop Herman College Chapel, Kpando in the Volta Region. The petitioner on the 1st day of February, 2022, no longer wishing to be in marital union nor continue her life in companionship with the respondent, filed this petition for the dissolution of their marriage. There are no issues of the marriage. She averred that their marriage has broken down beyond reconciliation and they have been unable to reconcile their differences after diligent effort due to respondent’s recalcitrant and unreasonable behavior. That the respondent at the time of their marriage knew that he had a sexual dysfunction problem but failed to disclose same to her. That the few times they have had sexual intimacy, the respondent has had to depend on stimulating pills or some herbal concoction in order to have an erection and with that, his erection would last for a few seconds. That the respondent refuses to seek medical help. She further averred that for Page 1 of 13 more than two years prior to filing the petition, they had not lived together as husband and wife and her family has returned the drinks signaling the dissolution of their traditional marriage after which she moved out of the matrimonial home. She sought the reliefs of dissolution of the marriage, monthly maintenance of five hundred Ghana cedis (Ghs 500) during the pendency of the suit and for an order for a fifty thousand Ghana cedis (Ghs 50,000) as alimony and compensation. The respondent denied the claims of the petitioner and indicated that although the traditional marriage has been dissolved, there is a chance for reconciliation if only the petitioner would avail himself. He denied that he had any sexual dysfunction issue before their marriage and said they had been having sex before and after the marriage. That it was when the petitioner could not conceive after marriage that they went to the hospital twice. That he was given medication by the doctor and he has since been taking same. However, the petitioner refused to disclose her results to him. That it is petitioner’s impatience and unreasonable behavior that has led to the breakdown of their marriage. That although he still loves the petitioner, if she persisted in her petition, then the court should dissolve the marriage. However, as she was the one who voluntarily requested to leave the marriage, the court should not grant her second and third reliefs. At the close of pleadings, the issues for the court to determine are; 1. Whether or not the marriage between the parties has broken down beyond reconciliation Page 2 of 13 2. Whether or not the petitioner is entitled to financial settlement and compensation of fifty thousand Ghana cedis (Ghs 50,000). THE CASE OF THE PETITIONER In her evidence in chief, the petitioner said prior to the marriage, she used to live in Kpando in the Volta Region. That she relocated to Tema to live with the respondent after their marriage. The respondent is employed with GRIDCO whilst she is currently unemployed. That the respondent was aware that he had an erectile dysfunction prior to their marriage but he did not disclose same to her. When she confronted him, he told her he was undergoing treatment and showed her some medications that he was taking. That she later discovered that the respondent was not seeking medical treatment or not taking his medications. She repeated that the few times they had sex, the respondent had to depend on sexual stimulating pills or herbal concoctions and even at that, his erection would last for a few seconds. That she appealed to the respondent severally to seek medical or herbal treatment at reputable organizations but he refused. That for the few times that they had sex, she expected to take seed. When she did not, she consulted a medical facility and was informed that there was nothing wrong with her. That she had to quarrel with the respondent before he agreed to see the doctor for examination. After the tests, the doctor informed the respondent of some challenges which is the cause of his erectile dysfunction and advised the respondent to immediately commence treatment but he refused. That the respondent has intimated to Page 3 of 13 her that she could satisfy her sexual needs outside the marriage. That she has informed their families of the situation. That before their marriage, she had a cosmetic business which earned her four hundred Ghana cedis (Ghs 400) each week. The respondent contributed five thousand Ghana cedis (Ghs 5,000) to that business after their marriage but due to some unforeseen challenges, he asked her to close down the shop and has since then refused to assist her to start another business. She says, earlier on this year, she and her family returned the drinks to respondent’s family who readily accepted same. Petitioner tendered in evidence EXHIBIT A as a copy of their marriage certificate and EXHIBIT B and B1 as a copy of medical reports. THE CASE OF RESPONDENT The respondent admits that the petitioner is unemployed whilst he works with GRIDCO. That the petitioner has rather behaved in an unreasonable manner. That they had sex severally before they got married and so he finds it difficult to accept that he has any erectile dysfunction problem. That he has observed that the petitioner married him for a purpose and because she is not achieving same, she wants to disgrace him. That the petitioner requested that he sets her up in another cosmetic shop and he told her he was getting himself organized to do so. This changed the attitude of the petitioner towards him and she moved from the matrimonial room to another room and would not allow him to touch her. That whenever she agreed to have sex with him, she would kick him and ask him not to touch or hold her. Page 4 of 13 That when they visited the hospital to find out why they could not conceive, he took all the medications given to him. That further fertility tests indicated that his sperm count had increased drastically and he was put on more medications. However, the petitioner never showed her results to him. He denied having told the petitioner to satisfy herself sexually with other men. That he performed his duties as a husband towards the petitioner and even contributed to her business. He concluded that the petitioner betrayed his trust and promised to teach him a lesson. That she threatened to have his accounts frozen. CONSIDERATION BY COURT Blacks’ law dictionary, (8th edition, 2004 p. 1449) defines divorce as ‚the legal dissolution of a marriage by a Court.‛ In Ghana, when a couple decide to marry under the Ordinance, then they can only obtain a divorce through the Courts. The ground upon which a divorce can be obtained from the Courts is clearly stated under the Matrimonial Causes Act, 1971 (Act 367). In section 1 (2) of Act 367, the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. In proving that the marriage has broken down beyond reconciliation, a petitioner must establish one of six causes i.e. adultery; unreasonable behavior; desertion for a period of two years; consent of both parties where they have not lived together as husband and wife for a period of two years; not having lived together as husband and wife for a period of five years; and finally, inability to reconcile differences after diligent effort. 1. Whether or not the marriage between the parties has broken down beyond reconciliation. Page 5 of 13 Petitioner’s basis for arriving at the conclusion that their marriage has broken down beyond reconciliation is the unreasonable behavior of the respondent. It is he who asserts who bears the burden of proof and so the burden of persuasion lies on him to lead cogent and positive evidence to establish the existence of his claim in the mind of the court. See the case of Takoradi Flour Mills v. Samir Farris [ 2005-6] SCGLR 882 and Ackah v. Pergah Transport Ltd (2010) SCGLR 728. As the respondent has counterclaimed, she bore the same burden of proof in establishing her claim. See the case of Messrs Van Kirksey & Associates v. Adjeso & Others [2013-2015] 1 GLR 24. Divorce is by means of enquiry and a court must satisfy itself by way of evidence that indeed the marriage has broken down beyond reconciliation. Thus although the respondent in her answer admits that the marriage has broken down beyond reconciliation and also alleges unreasonable behavior and adultery, the Court through evidence must satisfy itself that the marriage has broken down beyond reconciliation. See the case of Ameko v. Agbenu [2015] 91 G. M. J. The basis of petitioner’s claim of unreasonable behavior on the part of the respondent is that he has an erectile dysfunction which he failed to disclose to her prior to their marriage and also that he is refusing to seek proper medical care or take his drugs in order to remedy the situation. The respondent denied this and says it is just an attempt by the petitioner to disgrace him. The petitioner in proof of her claim tendered in evidence EXHIBIT B and B1 which are medical reports. In the case of Adei and Anor v. Robertson and Anor [ 2016] 101 GMJ 160 Pwamang JSC stated that ‚the law is settled that unless a document in evidence is Page 6 of 13 invalid on the grounds of breach of a statute or has been shown not to be authentic, a court of law would consider it favourably in preference to inconsistent oral testimony’’. See also the case of Yorkwa v Dua [1992-93] GBR 278 CA, in which the Court of Appeal made it clear that where there exists (a) documentary evidence preference must be given to it than oral evidence provided the when documentary evidence is found to be authentic. The court at page 293 said: “Whenever there is in existence a written document and oral evidence over a transaction, the practice in this court is to consider both the oral and the documentary evidence, especially where the documentary evidence is found to be authentic and the oral evidence conflicting”. EXHIBIT B is a medical report from the Bethel Hospital and signed by Dr. Chris Aidoo, an obstetrician/gynaecology specialist. It is dated the 22nd day of March, 2022 and it indicates that the petitioner was seen at the facility in the year 2019. That she received treatment for pelvic inflammatory disease followed by a diagnostic laparoscopy. That her fallopian tubes were patent at the time. Further that the respondent was also invited for treatment and his semen analysis showed severe oligospermia. That the respondent was given initial treatment and expected to come for a follow up. The medical dictionary defines oligospermia as low sperm count i.e semen with a low concentration of sperm. The respondent was diagnosed as having a severe case of low sperm count. Page 7 of 13 From EXHIBIT B, the petitioner was treated for her condition while the respondent was ‚expected to come for a follow up’’. The report is dated in 2022. Clearly, the respondent did not return for the follow up after his initial diagnosis and medication. The respondent admits that he visited a certain medical facility with the petitioner for issues relating to their inability to conceive. EXHIBIT B series is a reference to that hospital visit. Respondent also indicates in paragraph 18 of his written evidence in chief that he did other tests and one of them showed that his sperm count had improved drastically. He failed to tender the said report into evidence or even provide the particulars of which hospital, laboratory or doctor had made this known to him. He rather tendered in evidence EXHIBIT 1 which is a lab test from MDS Lancet Laboratories dated the 7th day of September, 2018. It is a lab test which is not accompanied by a medical report, thus making it difficult for the court to know its meaning. I also take note that same was done before 23rd March 2020 the Bethel Hospital conducted a test on the respondent and diagnosed him as having oligospermia. I have no cause to doubt the medical evidence. The respondent had oligospermia and was not taking active steps to have same treated medically. With regard to the respondent’s erectile dysfunction, I find that the evidence was essentially oath against oath. In this regard, I believed the evidence of the petitioner far more than the respondent. She gave a good account of herself in the witness box and answered questions without prevarication unlike the respondent. I find from the evidence that the respondent had an erectile dysfunction that could not sustain an erection for a long time and he also had low sperm count. I also find that he Page 8 of 13 knew about this before he married the petitioner and failed to disclose same to her prior to their marriage. As to whether that constitutes unreasonable behavior, in determining what constitutes unreasonable behavior, the test to be applied is an objective one. Hayfron Benjamin J (as he then was) held in the case of Mensah v. Mensah (1972] 2 G. L. R. 198 that ‚In determining whether a husband has behaved in such a way as to make it unreasonable to expect a wife to live with him, the court must consider all circumstances constituting such behaviour including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty and mere trivialities will not suffice for Act 367 is not a Cassanova's Charter. The test is objective‛. This test was relied on by the Court of Appeal in the case of Knusden v. Knusden [1976] 1 GLR 204-216 where the court held that ‚The cross-petition was based on Act 367, Section 2 (1) (b) under which the test to be applied in determining whether a particular petitioner could or could not reasonably be expected to live with the particular respondent was an objective one, and not a subjective assessment of the conduct and the reaction of the petitioner. In assessing such conduct, the court had to take into account the character, personality, disposition and behaviour of the petitioner as well as the behaviour of the respondent as alleged and established in the evidence. The conduct might consist of one act if of sufficient gravity or of a persistent course of conduct or series of acts of differing kinds, none of which by itself might be sufficient but the cumulative effect of all taken together would be so.‛ Page 9 of 13 The petitioner indicates that because of the respondent’s sexual challenges, she has been left lonely and sexually unsatisfied. That the respondent is refusing to seek appropriate medical care and is rather taking in pills and herbs. At page 8 of the record of proceedings, under cross examination by the respondent, she answered; Q: A: I want to know why you want to divorce me. It is because you refused to go to the hospital for treatment with regard to your low sperm count. I was working and you asked me to be a housewife. Sexual intimacy is one of the incidents of marriage. Unless a married couple decide otherwise, sex is regarded as one of the indicators that parties are married and has the full blessing of all of society to engage in. When one party has challenges that hinder the enjoyment of sex, it is reasonable to expect the other party to provide support in ensuring that a solution is found. However, when the one who is challenged, refuses to seek appropriate medical treatment, then society would not expect the other to continue to remain in the marriage especially when this results in their inability to conceive. Reproduction is also an expected end of marriage. For as long as the respondent does not undergo the appropriate treatment, it means that the petitioner would not have or enjoy any sex and she cannot have a child as well. It is my considered opinion that this singular issue is grave enough to warrant the petitioner seeking a divorce and I agree with her contention that the behavior of the respondent is unreasonable and she cannot be expected to continue to live with him as husband and wife. Page 10 of 13 On that basis, I hereby find that the marriage between the parties has broken down beyond reconciliation due to the unreasonable behavior of the respondent. Accordingly, the marriage celebrated between them on the 5th day of August, 2017 at the Bishop Herman College Chapel and evidenced by a marriage certificate is hereby dissolved. The marriage certificate with license number 14741307 is hereby cancelled. The Registrar is to notify the administrator of the Church for their records to be amended accordingly. 2. Whether or not the petitioner is entitled to financial settlement and compensation of Ghs 50,000 The petitioner prays for financial provision in the sum of fifty thousand Ghana cedis (Ghs 50,000). In analyzing this, I am mindful of the decision in the case of Aikins v. Aikins [1979]GLR 223 holding 4 which is that ‚in considering the amount payable as lump sum, the court should not take into account the conduct of either the husband or the wife but it must look at the realities and take into account the standard of living to which the wife was accustomed during the marriage‛. In the case of Oparebea v. Mensah [1993-94] 1 GLR 61, the court held that in order to determine a claim made under Section 20 (1) of the Matrimonial Causes Act, the court must examine the needs of the party making the claim and not the contributions of the parties during the marriage. Factors to be considered in arriving at an equitable decision include the earning capacity or income of the parties, property or other financial properties which each of the parties has or is likely to have in the foreseeable future, the financial needs, Page 11 of 13 obligations and responsibilities of each of the parties and the standard of living enjoyed by the family before the breakdown of the marriage. Both parties in their written evidence in chief testify that the petitioner is unemployed whilst the respondent works with GRIDCO. At the trial, the respondent sought to change this to say that the petitioner prior to leaving the matrimonial home, was engaged in the preparation of local drinks. He said it is on an order basis which means it is not a stable or regular source of income for the petitioner. The respondent was the one providing for the matrimonial home when they lived together. Parties also agree that the petitioner was engaged in the selling of cosmetics and the respondent invested some money into same. That the said shop has since collapsed. The respondent in his evidence in chief says he was giving the petitioner a monthly upkeep of seven hundred Ghana cedis (Ghs 700) for herself alone. That is an indication that he introduced her to a certain standard of livelihood in the course of the marriage. He again changed her standard of livelihood by relocating her from Kpando in the Volta Region to Tema in the Greater Accra Region. It is a widely accepted fact that the standard and cost of living in Greater Accra is higher to that of other regions. Thus by simply relocating to Tema, the standard of living of the petitioner has changed. Now that they are divorced and the respondent is no longer liable for the provision of the necessaries of health and life for the petitioner, it is necessary that some form of financial provision be made to cushion the petitioner in the standard of living that she has been accustomed to. I would not make an order for compensation because the Page 12 of 13 dissolution of a marriage is not to be regarded as an injury or damage for which one party needs to be compensated. Upon these considerations, the respondent is to pay the sum of twenty five thousand Ghana cedis (Ghs 25,000) to the petitioner as financial settlement. The amount is to be paid within sixty days from the date of judgment failure of which it would attract interest at the prevailing commercial bank rate from the date of judgment till the date of final payment. There would be no order as to costs. (SGD) H/H BERTHA ANIAGYEI (MS) (CIRCUIT COURT JUDGE) SENANU ASHIAGBOR FOR THE PETITIONER PRESENT Page 13 of 13