Evans-Amoah v Evans-Amoah (C5/21/2024) [2025] GHACC 84 (20 June 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 20TH DAY OF JUNE, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/21/2024 MS. SERWAA KANKAM EVANS-AMOAH --------------- PETITIONER GREDA ESTATE 10TH AVENUE G STREET SANGRIA STREET SPINTEX - ACCRA VRS MR. DAVID ABEKU EVANS-AMOAH --------------- RESPONDENT GREDA ESTATE 10TH AVENUE G STREET SANGRIA STREET SPINTEX - ACCRA PARTIES: PRESENT COUNSEL: NYAABIIRE N. ATINDAANA, ESQ. FOR THE PETITIONER PRESENT RACHEL MACCARTHY, ESQ. FOR THE RESPONDENT ABSENT Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 1 of 12 JUDGMENT FACTS The parties got married under the Marriage Ordinance Cap. 127, on 27th April 2013 at Hse No. 603, Trotro Street, Abelemkpe at Accra. There are three issues to the marriage, namely Phoebe Maggie Evans-Amoah 10 years, Chloe Kate Evans-Amoah 7 years and Ian Abeku Evans-Amoah 3 years, at the time the petition was filed. On 22nd May 2024, the Petitioner herein filed the instant petition on grounds that the marriage between her and the Respondent has broken down beyond reconciliation due to the unreasonable behaviour of the Respondent; and prayed the Court for the following reliefs: i. That the said marriage be dissolved. ii. That the Petitioner be granted custody of all the children who are currently with the Petitioner. iii. That Respondent be made to pay school fees of the children in their current school or any other school deemed appropriate. iv. That the Respondent be ordered to make to the Petitioner such maintenance pending suit and thereafter a monthly payment of GHS5,000.00 as may be just. v. Respondent be ordered to pay for the medical bills of the children when necessary. vi. Any other relief deemed fit by this Court including legal cost occasioned by this petition. In his Answer and Cross-Petition filed on 7th October 2024, the Respondent denied the allegations of unreasonable behaviour and cross petitioned as follows: Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 2 of 12 a. Dissolution of the marriage between the parties as same has broken down beyond reconciliation. b. Custody of the two issues of the marriage. c. That the Petitioner is not entitled to anything. d. That each party bears their own legal fees. e. Any other relief this Court may deem fit. I deem it necessary to mention that before the hearing of the petition, the parties were referred to the Court Connected Alternative Dispute Resolution (CCADR) to attempt settlement on the ancillary reliefs and on 18th December 2024 their Terms of Agreement was filed which was adopted by this Court as consent judgment on the ancillary reliefs on 31st January 2025. 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. Flowing from the above, the hearing of the instant petition was basically on the dissolution of the marriage since consent judgment had been entered by the Court on the ancillary reliefs of the parties. THE CASE OF THE PETITIONER In her evidence to the Court, the Petitioner testified among others things that after the marriage of the parties, they cohabited at Dansoman, Accra and other places including Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 3 of 12 Teshie in Accra. That the marriage between the parties has broken down beyond reconciliation. That the Respondent has behaved in such a way that she cannot reasonably be expected to live with him. According to the Petitioner, the Respondent has caused her much anxiety, emotional trauma, and distress. That she is currently suffering health wise as a result of the behaviour and conduct of the Respondent by engaging in weed smoking which makes her always stay awake in apprehension of any likely harm that may come her way as per her medical records in exhibit ‘A’ series. The Petitioner continued that the Respondent is very abusive and gets violent with her at the least opportunity without any provocation. That the Respondent violently and physically assaulted and battered her and on one occasion at midnight she had to flee for safety and ended up passing the night at the Crystal Palm hotel with the 2nd child as per exhibit ‘B’ series. That the Respondent returns home every night drunk and high on weed causing apprehension, fear, insecurity to her and the minor children, thereby depriving her of the necessary sleep which has affected her health as per attached exhibit ‘C’ series being WhatsApp communication from the Respondent promising not to come home drunk or smoke but failed to fulfil his own pledge. The Petitioner also tendered some audios which were not translated and so the Court is not able to comment on same as it is not in the English language and some parts are also not audible. She continued that the Respondent threatened and removed her belongings from the matrimonial home and locked her out and she subsequently relocated to her mother's residence as per exhibit ‘D’ being the evidence of Petitioner locked out of the main house. According to the Petitioner all attempts by both families to reconcile their differences have yielded no result as per audio in exhibit ‘F’. Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 4 of 12 The Petitioner did not call witness and thereafter closed her case. THE CASE OF THE RESPONDENT The Respondent in his evidence confirmed his marriage to the Petitioner herein and testified among other things that the marriage between the parties has broken down beyond reconciliation due to the unreasonable behaviour of the Petitioner. That he has never in the course of the marriage been violent to anybody in the matrimonial home. That the Petitioner on the other hand has always exhibited violent behaviour towards him. According to the Respondent he has never smoked marijuana. That he does not drink, and has never gone home drunk. That the Petitioner has over the years treated him very shabbily in the matrimonial home and now that she wants to leave the marriage, she is looking for very weird reasons to get him out of her life. That for some two years now, specifically following the birth of their last child, the Petitioner has refused to have sexual intercourse with him and all attempts at making her change her mind have proved futile. That the Petitioner has refused to speak to him and only communicates with him when she needs money or any other items and she does that through their first child, Phoebe Amoah. That the Petitioner has been very unruly towards him by shouting at him and calling him names and using unprintable words at him, even in the presence of their young children which has caused him so much embarrassment. That for the past two years, he has had to endure so much disrespect at the hands of the Petitioner but he has refrained from any act that would disturb the marriage. That the Petitioner has showed gross disrespect towards him with total disregard for him as a husband. That all attempts Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 5 of 12 by the families, friends and clergy of both parties to reconcile the parties have proved futile since the Petitioner is bent on leaving the marriage. The Respondent did not also call witness and closed his case thereafter. 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. 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 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 Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that in all civil actions, the standard of proof is proof by preponderance of probabilities, and there is no exception to that rule. Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 6 of 12 Section 11(4) of the Evidence Act, 1975 (NRCD 323) 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 parties to prove the facts alleged to establish the breakdown of the marriage. ANALYSIS Before I examine the evidence adduced at the hearing, 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. 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; Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 7 of 12 (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 it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation." In the instant case the burden is therefore on the parties to prove that the marriage has broken down completely; 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 hearing, I made the subsequent observations and findings: The Petitioner stated in her pleading that the Respondent has behaved unreasonably towards her in their marriage and adduced evidence in support of the said assertion to Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 8 of 12 the effect that the Respondent’s conduct of smoking weed and coming home drunk affected her health. From the exhibits tendered by the Petitioner in her evidence as well as the answer given by the Respondent under cross examination, the Respondent actually promised the Petitioner that he will not return to their matrimonial home drunk or having smoked. This piece of evidence supports the assertion of the Petitioner that the Respondent returns home drunk and high on weed and that caused her fear and insecurity and thereby deprived her of the necessary sleep which affected her health. Exhibit ‘D’ also indicates how the Respondent locked the Petitioner from the matrimonial home and gave her conditions upon which he will give her access to the house. The Petitioner in her evidence testified that the Respondent has behaved in such a way which has caused her much anxiety, emotional trauma and distress that she cannot reasonably live with him. The Respondent denied the Petitioner’s allegations of unreasonable behaviour on his part. However, the Petitioner adduced satisfactory evidence to establish her allegation of unreasonable behaviour on the part of the Respondent and moreover the Respondent admitted under cross examination that he sent the Petitioner a message and promised not to go home drunk or having smoked. In 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…” Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 9 of 12 From the evidence on record, I find that there was unreasonable behaviour on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with him. The Respondent also alleged conducts of unreasonable behaviour on the part of the Petitioner, to which the Petitioner denied in her Reply and Answer to the Cross-Petition. As a result, the Respondent had a burden to lead sufficient evidence to prove his allegations of unreasonable behaviour on the part of the Petitioner. 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 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”. This burden, the Respondent failed to discharge as he did not lead cogent evidence on the said allegations of unreasonable behaviour on the part of the Petitioner after same was denied by the Petitioner. The Respondent only repeated the averments in his pleading when he gave evidence. I therefore find those allegations of unreasonable behaviour on the part of the Petitioner as unsubstantiated. Accordingly, the said allegations remain unsubstantiated and I hereby dismiss same for lack of evidence. In Knudsen v. Knudsen [1976] 1 GLR 204 CA, the Court of Appeal 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 Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 10 of 12 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.” Both parties testified that attempts by their families, clergy and friends to reconcile them proved futile. Both parties have also mutually agreed to the dissolution of their marriage and the Respondent consents to the grant of divorce. From the foregoing, I find that the marriage between the parties has broken down beyond reconciliation as they could not reconcile their differences, after diligent effort. CONCLUSION Consequently, 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 the 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 27th April 2013, at Hse No. 603, Trotro Street, Abelemkpe at Accra. Thus, the marriage is hereby dissolved. 2. The marriage certificate with Certificate No. RGM1120/2013 and License No. SL.0475374 is accordingly cancelled. 3. The Terms of Agreement signed by the parties herein and filed on 18th December 2024 which was adopted by this Court and entered as consent judgment on the ancillary reliefs on the 31st day of January 2025 forms part of the final judgment of this Court in the instant petition; and the parties are bound by it. 4. There shall be no order as to costs. Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 11 of 12 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Serwaa K. Evans-Amoah v. David A. Evans-Amoah Page 12 of 12