Mensah v Rockson (C5/17/2025) [2025] GHACC 67 (12 September 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 12TH DAY OF SEPTEMBER, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/17/2025 DAVID MENSAH --------------- PETITIONER ACCRA DANSOMAN VRS REGINA EFUA ROCKSON --------------- RESPONDENT PARTIES: ABSENT COUNSEL: SAEED HAFFIS, ESQ. FOR THE PETITIONER PRESENT KOFI KORANTENG, ESQ. FOR THE RESPONDENT ABSENT JUDGMENT On 14th March 2025, the Petitioner herein filed the instant petition on grounds that the marriage between him and the Respondent is a nullity, that the parties have not consummated the marriage since same was celebrated. He prayed the Court for the following reliefs; David Mensah v. Regina Efua Rockson Page 1 of 9 a. An order declaring that the marriage celebrated between the parties herein on the 3rd day of January, 2024 be declared as voidable. b. Any further order that this Honorable Court may deem fit. Notice of entry of appearance was filed by counsel for the Respondent on 25th March 2025, however the Respondent thereafter failed to file an answer to the petition. Subsequent to that the Respondent and her lawyer failed to attend Court notwithstanding several hearing notices that were served on the Respondent through her lawyer. The bailiff attached to this Court; one Benjamin Sunu submitted affidavits of service of four different hearing notices on the Respondent through her lawyer in relation to the dates the instant petition was called in Court as well as affidavits of service of all processes filed in the instant action. The Respondent having failed to attend Court for the hearing of the petition in spite of being duly served; the Court commenced the hearing without the Respondent. THE CASE OF THE PETITIONER The Petitioner testified that he married the Respondent herein under Part III of the Marriages Act (CAP 127) at a ceremony officiated by the Registrar of Marriages at the Saltpond District Court, on 3rd January 2024. That after the said marriage the parties never cohabited, however, the Respondent lives at Abeka-Lapaz in the Greater Accra Region of the Republic of Ghana. That there are no issues to the marriage. That the parties are both citizens of Ghana but he is ordinarily resident in the United States of America. That he is David Mensah v. Regina Efua Rockson Page 2 of 9 a PhD candidate at the Northern Arizona University in the United States of America whilst the Respondent is a registered nurse by profession. That the marriage between the parties is a nullity. According to the Petitioner, because of his busy schedule as a PhD candidate he arrived in Ghana two days before the celebration of the marriage. That before the celebration of the marriage his family went through the process of the engagement rites on his behalf. That after the celebration of the marriage the parties left for honeymoon in Takoradi but could not consummate the marriage solely because the Respondent was observing her monthly flows. That because he was racing against time in order to complete his thesis, he left Ghana before the Respondent finished her monthly flows. The Petitioner continued that even before the celebration of the marriage he promised to file for the Respondent so she will join him in the States. That shortly after he arrived in the United States of America, he began the process for her to join him in the States. That the Respondent was denied visa after the he filed for her to join him and that was the beginning of his troubles in the marriage. The Petitioner further testified that, the Respondent ceased all form of communications with him and verbally abused his family at the least provocation. That he confronted Respondent about the incident and he received his fair share of the verbal abuse. That the Respondent caused her family to return his drinks given to her during the celebration of the customary marriage; and he also stopped sending Respondent monthly allowance after she caused her family to return his drinks. He concluded that the parties have not consummated the marriage since same was celebrated; and prayed this Court to grant him all his reliefs sought. David Mensah v. Regina Efua Rockson Page 3 of 9 The Petitioner thereafter closed his case. Let me put it on record that the Respondent as stated above failed to respond to the instant petition and also failed to attend Court to partake in the hearing of the petition although she was duly served. A party has himself or herself to blame for failing to attend Court. In the case of Republic v. Court of Appeal, Accra Ex Parte East Dadekotopon Development Trust, Civil Motion No J5/39/2015, dated 30- 07-15, it was held that: “There could not be a breach of the rules of the audi alteram partem rule, when it is clear from the facts that sufficient opportunity was given to a party and was abused by him”. In view of the foregoing, this Court closed the hearing; and set a date for judgment having given the Respondent ample time and opportunity to attend Court but she failed to do so. LEGAL ISSUE Whether or not the marriage celebrated between the parties on 3rd January 2024 is voidable. BURDEN AND STANDARD OF PROOF 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 case. Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: David Mensah v. Regina Efua Rockson Page 4 of 9 “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”. Section 12(1) of the Evidence Act, 1975 (NRCD 323), provides that: “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that: “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323) have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities. No exceptions were made.” Also, in the case of Yorkwa v. Duah [1992-93] GBR 281, the Court of Appeal decision per Brobbey J.A. (as he then was) stated that: “The provisions of the Evidence Decree, NRCD 323, require that in a case like the instant one, the obligation to adduce evidence should first be placed on the plaintiff”. ANALYSIS Before I analyze the evidence adduced at the hearing, it is essential to set out the relevant section of the Matrimonial Causes Act, 1971 (Act 367) namely; section 13 which provides as follows: “(1) A person may present a petition to the Court for a decree of nullity for annulling the marriage on the ground that it is by law void or voidable. David Mensah v. Regina Efua Rockson Page 5 of 9 (2) In addition to any other grounds on which a marriage is by law void or voidable, a marriage is voidable, subject to subsection (3), on the ground (a) that the marriage has not been consummated owing to the wilful refusal of the Respondent to consummate it; or (b) that at the time of the marriage either party to the marriage was of unsound mind or subject to recurrent attacks of insanity; or (c) that the Respondent was at the time of the marriage pregnant by some person other than the Petitioner; or (d) that the Respondent was at the time of the marriage suffering from an incurable venereal disease in a communicable form. (3) The Court shall not grant a decree of nullity in a case falling within paragraph (b), (c) or (d) of subsection (2) unless it is satisfied that (a) the Petitioner was at the time of the marriage ignorant of the facts making the marriage voidable; and (b) proceedings were instituted within a year from the date of the marriage; and (c) marital intercourse with the consent of the Petitioner has not taken place since the Petitioner discovered the existence of the facts making the marriage voidable. (4) Nothing in this section shall be construed as validating a marriage which is by law void but with respect to which a decree of nullity has not been granted.” In the case of De Reneville v. De. Reneville, Greene M.R. defined a voidable marriage as follows: David Mensah v. Regina Efua Rockson Page 6 of 9 “A voidable marriage is one that will be regarded by every Court as a valid subsisting marriage until a decree annulling it has been pronounced by a Court of competent jurisdiction.” The Petitioner in the instant case claims that the marriage between him and the Respondent is a nullity. He testified that the marriage has not been consummated by the parties due to the fact that when the parties got the opportunity to consummate their marriage during their honeymoon, the Respondent was having her monthly menstruation and before she will finish same, the Petitioner had to leave Ghana to complete his thesis as a PhD student at the Northern Arizona University in the United States of America. From the evidence adduced by the Petitioner, the Respondent has indicated by her conduct that she is no more interested in the marriage between the parties after she was denied visa to join the Petitioner in the United States of America. Considering that the Respondent did not file an answer to deny the claims of the Petitioner and further considering that there is no contrary evidence on record by the Respondent to rebut or discredit the evidence adduced by the Petitioner, same shall be accepted by the Court as a fact. In Fori v. Ayirebi [1966] GLR 627, the Supreme Court held that: “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”. David Mensah v. Regina Efua Rockson Page 7 of 9 This principle was further enunciated by Ansah JSC in Takoradi Flour Mills v. Samir Faris [2005 -2006] SCGLR 882 when he referred to the case of Tutu v. Gogo, Civil Appeal No. 25/07, dated 28th April 1969, Court of Appeal unreported; digested in 1969 CC76 where Ollenu JA (as he then was) stated thus: “In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the Court.” Applying the above authorities to the instant case, the Respondent is deemed to have acknowledged those facts as asserted by the Petitioner and the Court hereby accepts same. Accordingly, I find from the evidence on record that the marriage of the parties has not been consummated by the parties since same was celebrated. From the analysis above and the totality of the evidence led, and relying on the above authorities, I hereby find that the marriage celebrated between the parties on 3rd January 2024 is voidable as same has not been consummated. I further hold that the Petitioner herein is entitled to annulment of the marriage there having been no consummation. Therefore, from the evidence on record, I find the marriage celebrated between the parties on 3rd January 2024 as voidable. Accordingly, I decree for the nullification of the marriage celebrated between the parties on 3rd January 2024. CONCLUSION David Mensah v. Regina Efua Rockson Page 8 of 9 In conclusion, I declare that the marriage celebrated between the Petitioner and the Respondent on 3rd January 2024 is voidable since there has been no consummation. I hereby enter judgment in the following terms: 1. I hereby grant a decree for the annulment of the marriage celebrated between the Petitioner and the Respondent on the 3rd day of January 2024. 2. The marriage certificate with Certificate No. SDC/59/24 and License No. SMC/ML/47/24 is consequently cancelled. 3. There shall be no order as to costs. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) David Mensah v. Regina Efua Rockson Page 9 of 9