Tettey v Yartey (C5/06/2025) [2025] GHACC 68 (15 August 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 15TH DAY OF AUGUST, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/06/2025 FELICIA KOKWE TETTEY --------------- PETITIONER 37, ACCRA ACCRA VRS EMMANUEL OFORI YARTEY --------------- RESPONDENT 37, ACCRA ACCRA PARTIES: PETITIONER PRESENT RESPONDENT’S LAWFUL ATTORNEY PRESENT COUNSEL: LINDA AMPOMAH ABOAH, ESQ. FOR THE PETITIONER PRESENT NO LEGAL REPRESENTATION FOR THE RESPONDENT JUDGMENT Felicia K. Tettey v. Emmanuel O. Yartey Page 1 of 12 FACTS The parties got married under the Marriage Ordinance Cap. 127, on 13th February 2005 at Nantoma Memorial Presbyterian Church, Kanda in Accra. There are no issues of the marriage. On 25th October 2024, the Petitioner herein filed the instant petition on grounds that the marriage between her and the Respondent has broken down beyond reconciliation; that the Respondent has committed adultery and also behaved in a way that she cannot reasonably be expected to live with him. The Petitioner prayed the Court for the following reliefs: i. Dissolution of the marriage contracted between the parties as having broken down beyond reconciliation. ii. An order that the four (4) units of chamber and hall (uncompleted) on four (4) plots of land located in Avagah, Nsawam in the Eastern Region of Ghana be settled on the Petitioner. iii. Any order(s) as this Honorable Court may deem fit. The Respondent entered appearance by himself on 12th March 2025 and filed his answer on the same day. In his answer to the petition and cross petition, the Respondent denied some of the averments in the petition whilst he admitted some. The Respondent cross petitioned as follows: a. Dissolution of the marriage contracted between the parties as having broken down beyond reconciliation. b. Any order(s) as this Honourable Court may deem fit. Felicia K. Tettey v. Emmanuel O. Yartey Page 2 of 12 It is noteworthy to mention that before the hearing of the petition, Counsel for the Petitioner informed the Court that, the parties had filed their Terms of Settlement on the ancillary reliefs and prayed the Court to adopt same as consent judgment. Being a petition for divorce, as provided in section 2(3) of the Matrimonial Causes Act, 1971 (Act 367), the Court shall not grant a petition for divorce unless it is satisfied on all the evidence that the marriage has broken down beyond reconciliation. Relying on the above authority, the Court conducted a hearing on the dissolution of the marriage to enable the determination that the marriage has broken down beyond reconciliation whilst the parties’ agreement on the ancillary reliefs as per their Terms of Settlement filed on 23rd July 2025 will be adopted as consent judgment on the ancillary reliefs in addition to the judgment of the Court on the dissolution of the marriage. Therefore, the hearing of the instant petition was limited to the dissolution of the marriage since the parties had filed their Terms of Settlement on the ancillary reliefs. THE CASE OF THE PETITIONER It is the case of the Petitioner that the marriage celebrated between her and the Respondent has broken down beyond reconciliation on the grounds of unreasonable behavior and adultery on the part of the Respondent. In her pleading, the Petitioner stated the particulars of her allegation of unreasonable behavior as well as adultery by the Respondent. Felicia K. Tettey v. Emmanuel O. Yartey Page 3 of 12 In her evidence to the Court, the Petitioner testified among other things that she got married to the Respondent on 13th February 2005 and tendered the marriage certificate of the parties as exhibit ‘A’. That in the course of their marriage, the Respondent joined a religious cult, which she strongly objected on religious and moral grounds but the Respondent was dismissive and told her that he had made up his mind and that if she was not in agreement, she could exit the marriage. That the Respondent further instructed her never to enter the room in which he practiced his occult activities; and this created a climate of fear and anxiety for her in her own matrimonial home. The Petitioner continued that the Respondent was also verbally abusive towards her and her family. That on several occasions, the Respondent hurled insults at her and extended these insults to her family, to the extent of calling her mother a witch and accused her of being the cause of their childlessness. That these accusations caused her significant emotional distress and severe emotional pain as she had no one to confide in, at the time. That the Respondent barred her from visiting her family and prohibited her from maintaining any relationship with her mother, whom he claimed was a witch; and even prevented her from attending her own mother's funeral when she passed away. According to the Petitioner, even after her mother's demise, the Respondent continued to attribute his misfortunes to her family, claiming that her ancestral stool was the source of his problems. That the Respondent instructed her to perform rituals at her family house to reverse these misfortunes, which she complied with to avoid any further misunderstandings between her and the Respondent. That the Respondent later claimed the rituals were ineffective as he had been informed that he was still spiritually bound. That about six (6) years ago, the Respondent was transferred to Kumasi for work; and he subsequently became increasingly distant and stopped answering her calls. The Petitioner continued that during a visit to the Respondent at Kumasi, she discovered Felicia K. Tettey v. Emmanuel O. Yartey Page 4 of 12 another woman in the Respondent's room who claimed to be his fiancée. That she had no alternative but to spend the night in the Respondent's residence due to the lateness of the hour at which she arrived. That she packed her belongings and resolved not to visit again but she forgave the Respondent after he pleaded with her family, promising not to repeat his actions. That she resumed visiting the Respondent but despite resuming her visits, the Respondent's mother and sister later informed her that the Respondent had fathered a child with another woman but claimed he had no intention of marrying her. That upon receiving this information, she told her family about the development and several reconciliation meetings were scheduled with regards to the problem at hand but the Respondent failed to attend any of the meetings. The Petitioner further testified that the Respondent was later involved in an accident, and she travelled to Kumasi with her sister to care for him. That upon arrival, she discovered that the Respondent was cohabiting with the paramour and their child. That she also realized that her belongings had been removed, packed and replaced with those of the paramour, and the room she previously occupied had been reassigned to the said woman. That she was disheartened by the discovery and took her packed belongings and left. That the Respondent personally helped her with her belongings to the vehicle. According to the Petitioner, she has since stopped visiting the Respondent as there is no space or recognition for her as his wife. That she believes the Respondent has emotionally and physically moved on with another partner. That throughout the marriage, she faithfully discharged her duties as a wife, showing respect, love, and support to the Respondent. However, these gestures were not reciprocated. That the Respondent's persistent misconduct, emotional neglect, deceit and infidelity have caused her unbearable emotional suffering, and psychological distress. Felicia K. Tettey v. Emmanuel O. Yartey Page 5 of 12 That the Respondent has shown by his actions that he has no intention of remaining married to her. THE CASE OF THE RESPONDENT The Respondent’s lawful attorney, Simon Nii Ofori Yaotey testified about the fact that the Respondent admits that there was one instance of verbal abuse during the marriage, which arose in the context of a misunderstanding provoked by the conduct of the Petitioner. He continued with Respondent’s denial of the other allegations by the Petitioner. He further testified that the Respondent admits to having committed adultery and further says that the said conduct occurred after a prolonged period during which the Petitioner consistently refused him intimacy, citing ill-health. That the Respondent avers that one affair resulted in the birth of a child, in the year 2023. That the Respondent says that he firmly believes that the marriage has broken down beyond reconciliation. That several attempts have been made to resolve the differences between the parties, but none has yielded any fruitful result. That the Respondent humbly pleads and urges this Honorable Court to support the application before this Court for the dissolution of the Ordinance Marriage celebrated between the Petitioner and Respondent as having broken down beyond reconciliation and also adopt the terms of settlement. LEGAL ISSUE The legal issue to be determined by this Court is whether or not the marriage between the parties has broken down beyond reconciliation. Felicia K. Tettey v. Emmanuel O. Yartey Page 6 of 12 BURDEN AND STANDARD OF PROOF The general rule in every civil case is that, the burden of proof rests upon the party, whether Petitioner or Respondent, who substantially asserts the affirmative of his or her case. 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 Serwah v. Kesse [1960] GLR 227-231, Van Lare JSC stated: “The law as I understand it is that in all civil cases the preponderance of probability in favour of a party may constitute sufficient ground for a judgment in favour of that party. The general rule, of course, is that the onus probandi lies on the party who substantially asserts the affirmative of the issue”. 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”. The standard of proof as stated therefore applies to a petition for divorce. See Happee v. Happee [1971] 1 GLR 104. Thus, the burden is on the Petitioner to prove the facts alleged to establish the breakdown of the marriage. ANALYSIS Felicia K. Tettey v. Emmanuel O. Yartey Page 7 of 12 Before I analyse the evidence adduced at the trial, it is significant 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. 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. Felicia K. Tettey v. Emmanuel O. Yartey Page 8 of 12 (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 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 at the trial, I made the following observations and conclusions: It is undisputable 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 this petition and the Respondent consents to the grant of a decree of divorce. From the evidence on record, it is also not in doubt that the Respondent has had a child with another woman during the subsistence of his marriage to the Petitioner, and also asserted that he has another lady who is currently pregnant with his second child. In the case of Quartey v. Quartey & Anor [1972] 1 GLR 6, it was held by Kingsley-Nyinah J.A. that: “a Court may act upon an admission of adultery even though there be no confirmatory proof of it, if the Court is satisfied that the evidence as to the admission is trustworthy and if the evidence amounts to a clear, distinct and unequivocal admission of adultery.” The evidence on record suggests that the Respondent whilst married to the Petitioner had extra marital affairs and actually has child(ren) with other women. This is an admission of adultery on the part of the Respondent. The Respondent also admitted having verbally Felicia K. Tettey v. Emmanuel O. Yartey Page 9 of 12 abused the Petitioner during their marriage and his reason is that, he was provoked by the Petitioner. Consequently, I find from the evidence on record that the Respondent committed adultery and flowing from that the Respondent behaved in such a way that the Petitioner cannot reasonably be expected to live with him. In the case of Mensah v Mensah [1972] 2 GLR 198, Hayfron-Benjamin J. held that: “… one point is clear and it is that the conduct complained of must be sufficiently grave and weighty to justify a finding that the Petitioner cannot reasonably be expected to live with the Respondent…” From the evidence led at the trial the Respondent committed adultery, and behaved unreasonably towards the Petitioner and therefore the Petitioner cannot reasonably be expected to live with him. The Court of Appeal in the case of Knudsen v. Knudsen [1976] 1 GLR 204 CA per Amissah JA stated as follows: “… Of course, in a state of affairs where the duty is placed upon the Petitioner to show that the marriage has broken down beyond reconciliation, common prudence indicates that attempts at reconciliation be made whenever possible and that where such attempts have been made without success evidence of these be given to help the Court arrive at the desired conclusion. It does not, to my mind follow, however, that a divorce will never be granted in any case unless evidence of an unsuccessful attempt at reconciliation is led.” The parties led evidence that there have been several attempts at reconciliation by their families but all have proved futile and that the marriage has broken down beyond Felicia K. Tettey v. Emmanuel O. Yartey Page 10 of 12 reconciliation. I therefore find that the marriage has broken down beyond reconciliation, considering also that the Respondent consents to the dissolution of his marriage to the Petitioner. CONCLUSION Accordingly, I conclude that the marriage between the Petitioner and the Respondent has broken down beyond reconciliation and in the circumstances; I do hereby grant the prayer of the Petitioner for dissolution of their marriage and enter judgment in the following terms; 1. I hereby grant a decree for the dissolution of the marriage celebrated between the parties on 13th February 2005 at Nantoma Memorial Presbyterian Church, Kanda in Accra. Thus, the marriage is hereby dissolved. 2. The marriage certificate issued to the parties herein with Certificate No. NMPC/02/2005 and License No. PCG/AD/ML.01/2005 is accordingly cancelled. 3. The Terms of Settlement signed by the Petitioner herein and the lawful attorney for the Respondent as well as the Lawyer for the Petitioner; and filed on the 23rd day of July 2025 is hereby adopted by the Court and entered as consent judgment on the ancillary reliefs, and as part of the final judgment of this Court in the instant petition; and the parties are bound by it. 4. Each party shall bear their own cost of the suit. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) Felicia K. Tettey v. Emmanuel O. Yartey Page 11 of 12 (CIRCUIT COURT JUDGE) Felicia K. Tettey v. Emmanuel O. Yartey Page 12 of 12