Rachida Abubakar Vrs William Kweku Ntifo Jnr. [2022] GHADC 271 (31 October 2022)

IN THE TDC DISTRICT COURT HELD AT TEMA ON MONDAY, THE 31ST DAY OF OCTOBER 2022 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE RASHIDA ABUBAKAR --------------- PETITIONER SUIT NO. A4/11/22 ASHAIMAN VRS WILLIAM KWEKU NTIFO JNR --------------- RESPONDENT GBETSILE PARTIES: PRESENT COUNSEL: NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT The Petitioner prays for dissolution of her marriage with the Respondent on the ground that their marriage has broken down beyond reconciliation; that the Respondent has behaved in a way that she cannot reasonably be expected to live with him. The Petitioner further says that there have been several attempts at reconciliation but all have been unsuccessful. THE CASE OF THE PETITIONER Page 1 of 8 In her petition and evidence-in-chief, the Petitioner told the Court that the Respondent is her lawful husband and a Christian who had agreed to convert to Islamic Religion. That the Respondent was inconsistent with prayers and had later stopped. That they got married about two and half years now and lived at Sebrepor, Tema after the marriage. She further told the Court that they have no issue in the marriage and have tried their possible best to have a child through herbal treatments and several visits to the hospital but all did not work out. That in the course of their marriage the Respondent gave her GH¢5,000.00 as capital to operate a waakye business and she made account to him after every sale where he always took money from him. That she became very sick in December 2021 but the Respondent did not bother to take care of her or send her to the hospital. That she had to follow her mother to her place after she took her to the hospital and the Respondent never visited her. That she realized that the Respondent is no more interested in her and she has lost interest in him. That the Respondent has behaved towards her in such a manner that she cannot be expected to live with him as husband and wife. She prayed that the marriage be dissolved; and that the Respondent should compensate her with GH¢15,000.00 and also maintain her with GH¢500.00 per month till the dissolution of the marriage. The Petitioner did not call witness and thereafter closed her case. THE CASE OF THE RESPONDENT The Respondent in his answer and evidence told the Court that the parties got married under the ordinance on 8th January 2020. That he converted to Islam before he got married to the Petitioner. That in the cause of the marriage the Petitioner stopped the Muslim prayers so he informed his mother in law and she did nothing about it but he is still practicing the Islam religion. He continued that Page 2 of 8 he has never used the issue of child bearing to insult the Petitioner or put pressure on her because she has not been able to give birth because he has no problem with it as their marriage is just two years and they hope to have one. That he went for a financial assistance from friends and relatives to set up the business and played a supervising role in helping the Petitioner to manage her finances for some time and when he realized everything was in order he then stopped. He continued that he gave all the care she needed as a responsible husband. That he asked the Petitioner if she would go to the hospital and she said she was already on medication. That the Petitioner and her mother packed all her belongings from the matrimonial home and reported him to the Chief Imam who said the marriage was over because he has stopped praying. That he later realized the Petitioner was under the influence of her mother so the Petitioner pleaded that he should forgive them because she cannot do anything about the issue although she is not in support. He prayed that all the other reliefs of the Petitioner be dismissed because he is currently not working and still paying off the debts incurred in the business as it has collapsed. That he rather needs compensation because he did not sack the Petitioner and has not done anything to her to treat him this way. He concluded that he is not in support of the dissolution of the marriage but if the Petitioner insists the Court should go ahead and grant the divorce. The Respondent did not call witness and closed his case thereafter. The legal issues to be determined by this Court are: a. Whether or not there is unreasonable behavior on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with him. Page 3 of 8 b. Whether or not the marriage has broken down beyond reconciliation. In every civil case, the general rule is that the burden of proof rests upon the party, whether Petitioner or Respondent, who substantially asserts the affirmative of his or her case. In the case of Lamptey alias Nkpa v. Fanyie & Others [1989-90] 1 GLR 286, the Supreme Court held that: “On general principles, it was the duty of a plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the defendant to lead sufficient evidence to tip the scale in his favour”. This is clearly covered in section 14 of the Evidence Act, 1975 (NRCD 323). Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: “In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”. Before I examine the evidence adduced at the trial, it is important to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely; sections 1(2), 2(1) and (3) which provide as follows: "1(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Page 4 of 8 2(1) 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 the adultery the Petitioner finds it intolerable to live with the Respondent; (b) that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent; (c) that the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d) that the parties to the marriage have not lived as husband 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 the 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 despite the refusal; (e) that the parties to the marriage have not lived as husband 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. (3) 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 Page 5 of 8 it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation." The burden on the Petitioner is therefore to prove that the marriage has broken down completely beyond reconciliation indisputably on all the evidence; proof of one or more of the facts under section 2(1) of Act 367 is/are necessary. From the evidence adduced by the parties at the trial, I made the following observations and findings: The Petitioner told the Court that the Respondent behaved unreasonably towards her as he stopped practicing the Islamic Religion and also did not take care of her or send her to the hospital when she was sick. And that when her mother took her to the hospital, the Respondent did not visit her at the hospital. The Respondent denied the allegations of the Petitioner and stated that it is rather the Petitioner who has treated him badly because he has not done anything to her. The burden of proof was therefore on the Petitioner to lead cogent evidence to prove her allegations but she failed to discharge that burden. The law is very clear on allegations and the legal principle is that he who alleges must prove. In Klah v. Phoenix Insurance Company Ltd [2012] 2 SCGLR 1139, it was held that: “where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances, and his averment is denied, he does not prove it by merely going into the witness Page 6 of 8 box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true”. See also: Majolagbe vrs Larbi (1959) GLR 190 on proof in law. The Court cannot accept mere assertions without credible and reliable evidence. The Petitioner could not prove her allegations when same were denied by the Respondent but only repeated her assertions in the petition when she gave evidence. Given that the Petitioner failed to prove her assertions after same were denied by the Respondent, I find on the first issue that there was no unreasonable behaviour on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with him. After a careful examination of the evidence adduced by the parties, it is undisputable that the parties to the marriage have been unable to reconcile their differences. The parties have also not lived as husband and wife for some time now. Flowing from the above, I find on the last issue that the marriage between the parties has broken down beyond reconciliation. Section 20 (1) of Act 367 provides that: “The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.” Page 7 of 8 Having carefully considered the entire evidence adduced by the parties herein before this Court, as well as their circumstances; and relying on section 20(1) of Act 367 in light of justice and equity, I find that the Petitioner is not entitled to any financial provision or alimony upon the dissolution of the marriage. This is because from the evidence before this Court, the Petitioner could not adduce sufficient evidence to establish her claim of alimony and maintenance by the Respondent. The said claims are hereby dismissed as unsubstantiated. From the foregoing, I conclude that the marriage between the parties has broken down beyond reconciliation and I hereby grant the Petitioner’s prayer for dissolution of the marriage. The marriage celebrated between the parties on 8th January 2020 is hereby dissolved. The parties shall bear their own cost of the suit. There will be no order as to financial provision to either party to the marriage considering the entire evidence before the Court as well as the circumstances of the case and of the parties. …………………………………….. H/H AKOSUA A. ADJEPONG (MRS) CIRCUIT COURT JUDGE 31ST OCTOBER 2022 Page 8 of 8