Omari v Amegashitsi (C5/12/2024) [2025] GHACC 78 (13 June 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 13TH DAY OF JUNE, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/12/2024 RHODA OBRAW OMARI --------------- PETITIONER MILE 7 ESTATES NEAR WEST AFRICAN DÉCOR TILES ACCRA VRS ESTEBAN MAWUTOR AMEGASHITSI --------------- RESPONDENT 18 JUNCTION SPINTEX ACCRA PARTIES: PETITIONER ABSENT RESPONDENT PRESENT COUNSEL: PERCY N. W. NUNOO, ESQ. FOR THE PETITIONER PRESENT JOHN A. AKAZEE, ESQ. HOLDING THE BRIEF OF AKWASI BOAMAH, ESQ. FOR THE RESPONDENT PRESENT Rhoda O. Omari v. Esteban M. Amegashitsi Page 1 of 12 JUDGMENT FACTS The parties got married under the Marriage Ordinance Cap. 127, on 30th August 2014 at Favourhouse Christian Centre at the Girls’ Guide Centre, Achimota in Accra. There are two issues of the marriage, namely Kojo Nutifafa Amegashitsi and Kwame Nunana Amegashitsi, aged eight (8) years and five (5) years respectively at the time the petition was filed. On 7th February 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. An order for the dissolution of the marriage celebrated between the parties on 30th August, 2014. ii. An order for full custody of the two children to be granted to the Petitioner with reasonable access to the Respondent. iii. The Respondent be ordered to pay to the Petitioner monthly maintenance, including rent, in the sum of Seven Thousand Ghana Cedis (GHS7,000.00). That this amount shall be reviewed every two (2) years. iv. The Respondent be ordered to pay to the Petitioner alimony of Fifty Thousand Ghana Cedis (GHS50,000.00). v. An order directed at the Respondent to make copies of and return the originals of the children's birth certificates. Rhoda O. Omari v. Esteban M. Amegashitsi Page 2 of 12 vi. An order restraining the Respondent from showing up at the Petitioner's residence except for visiting the children and with the consent of the Petitioner. vii. An order that Respondent should bear the cost of Petitioner's. In his amended answer to the petition filed on 13th December 2024, the Respondent denied the allegations of unreasonable behaviour. The Respondent cross petitioned as follows: a. A declaration that the marriage celebrated between parties on 30th August 2014 be dissolved. b. That the Respondent be granted custody of the two (2) issues of the marriage; Kojo Nutifafa Amegashitsi, Kwame Nunana Amegashitsi with reasonable access to the Petitioner. c. A declaration that the Respondent pays an amount of Ten Thousand Ghana Cedis (GHS10,000.00) alimony or financial settlement. d. A declaration that the Petitioner pays an amount of Three-Thousand Ghana Cedis (GH¢ 3,000.00) as monthly maintenance for the two issues of the marriage, and same to be reviewed based on economic factors and the financial status and/or impairments of the parties. e. An order directed at both parties to share the cost of rent until such time that same would not be necessary. f. An order directed at the Respondent to keep the original copies of the birth certificates of the issues of the marriage as a co-parent and make it available to the Petitioner when same is needed and return them back to the Respondent afterwards. g. An order that each party bears his or her own costs. Rhoda O. Omari v. Esteban M. Amegashitsi Page 3 of 12 I deem it necessary to mention that in the course the hearing of the instant petition, after the Petitioner had been discharged from the witness box and was to call one of her four other witnesses on 16th May 2025, both counsel for the parties made submissions to the effect that the parties were now amenable to settlement and prayed for a date to attempt amicable settlement on the ancillary reliefs. The Court upon listening to both counsel for the parties obliged the parties another opportunity to settle the ancillary reliefs; and were further directed to file their Terms of Settlement in the event of successful settlement. On the next Court date on 30th May 2025, both counsel for the parties announced to the Court that the parties had been able to reach an agreement and reduced it into writing following which Terms of Settlement had been filed that morning 30th May 2025 so they prayed that it will be adopted 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 30th May 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 Rhoda O. Omari v. Esteban M. Amegashitsi Page 4 of 12 In her evidence to the Court, the Petitioner testified among other things that after their marriage, they lived at Wachild Estates, Sarpeiman, Accra. That there are two issues to the marriage. The Petitioner continued that the behaviour of the Respondent has caused her so much emotional pain and psychological distress. That contrary to the expectation of love and mutual friendship that motivated the marriage, the relationship between her and the Respondent has been plagued with disrespect, abuse, rejection and contempt to a point where it is now unbearable for her to live with the Respondent thereby compelling her to petition for a divorce. According to the Petitioner, the Respondent in proving that he is no longer interested in the marriage ended their customary marriage by returning the drinks to her family without informing her beforehand, claiming that she no longer loves him and that she is a feminist. That the Respondent has at all material times known that she is a feminist and a huge advocate for gender equality and therefore she finds it preposterous that the Respondent is now using that as a ground for the dissolution of their marriage. That the Respondent has since packed and moved out of the matrimonial home and has by his conduct constructively divorced her. That while she was pregnant with their last child, the Respondent put her through emotional and psychological distress by his many insensitive comments, actions and inactions and general heartless behaviours. The Petitioner continued that the Respondent refused to assist her to take care of their children when they lived together in the matrimonial home. That the ordeal the Respondent subjected her to, led to the aggravation of her postpartum depression which almost resulted in her getting a stroke and high blood pressure. She concluded that the behaviour of the Respondent has made her unhappy and uncomfortable in the marriage. The Petitioner did not call witness and thereafter closed her case. Rhoda O. Omari v. Esteban M. Amegashitsi Page 5 of 12 THE CASE OF THE RESPONDENT The Respondent in his evidence confirmed his marriage to the Petitioner herein as asserted by the Petitioner; and the fact that they have two issues to the marriage. According to the Respondent the Petitioner has behaved in such a way that he cannot reasonably be expected to live with her as his wife and same has caused him much anxiety and distress. That the Petitioner who now associates herself with a so-called liberal women group calling themselves radical feminists is always on social media platforms launching vile attacks on marriage denigrating the marriage institution to the extent that marriage is a useless endeavour hence no need for any woman to get married whatsoever. That the Petitioner labouring under the wrong notion of feminism always loudly hurls insults and shouts at him whenever issues concerning their marriage and other issues come up for discussion. The Respondent continued that the Petitioner has been inviting her friends to spend days in their matrimonial home without his consent and when he raises concerns same results in serious quarrels and insults on his person to the extent that the Petitioner has been referring to him as someone who is daft and bereft of knowledge. That the Petitioner has constantly been denying him of sex notwithstanding his repeated complaints he made to the Petitioner. That given his constant complaints about the Petitioner denying him of sex, the Petitioner suggested to him to solicit for sex outside the marriage, but he should ensure that he protects himself and/or get a vasectomy whilst he is at it. That it is not true that the Petitioner nearly suffered from stroke after childbirth and same is a figment of her fertile imagination without more. According to the Respondent, based on the Petitioner's ill conduct and unreasonable behaviour which got aggravated by Petitioner's misconceived acts of feminism coupled Rhoda O. Omari v. Esteban M. Amegashitsi Page 6 of 12 with the Petitioner persistently denying him of sex, he fell out of love with her, and packed some few items and moved out of their matrimonial home in order to save his sanity amidst the Petitioner's fierce advocacy against marriages and her incessant unreasonable behaviour and disrespect to his person. 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. 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. 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”. Rhoda O. Omari v. Esteban M. Amegashitsi Page 7 of 12 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; (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 Rhoda O. Omari v. Esteban M. Amegashitsi Page 8 of 12 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, it is required that the evidence adduced by the parties herein must be able to establish one or more of the facts under section 2(1) of Act 367 to prove that the marriage has broken down completely. From the evidence adduced by the parties at the hearing, I made the subsequent observations and findings: The Petitioner in her evidence testified basically to the effect that the Respondent during the subsistence of their marriage behaved unreasonably towards her by causing her so much emotional pain and psychological distress. That their relationship developed with disrespect, abuse, rejection and contempt to a point where it became unbearable for her to live with the Respondent; and that the Respondent in proving that he is no longer interested in the marriage ended their customary marriage by returning the drinks to her family. That the behaviour of the Respondent has made her unhappy and uncomfortable in the marriage. Rhoda O. Omari v. Esteban M. Amegashitsi Page 9 of 12 The Respondent denied the allegations by the Petitioner against him and also alleged that the Petitioner behaved unreasonably towards him by continuously denying him sex which caused him much anxiety and distress, amidst her radical feminism. That the Petitioner launched vile attacks on marriage denigrating the marriage institution to the extent that marriage is a useless endeavour hence no need for any woman to get married whatsoever. From the evidence on record, there is an indication that the parties have irreconcilable differences and this led to their separation before the presentation of the present petition as their families were not successful in their attempts to reconcile them. 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 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.” From the evidence on record, it is undisputable that the parties to the marriage have been unable to reconcile their differences. It is also not in issue that the Respondent likewise prays for the dissolution of their marriage. Accordingly, I find that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. I further that the parties to the marriage have been unable Rhoda O. Omari v. Esteban M. Amegashitsi Page 10 of 12 or failed to live together as husband and wife and the Respondent consents to the grant of a decree of divorce. Flowing from the above, I find that the marriage between the parties has broken down beyond reconciliation. 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 parties 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 30th August 2014 at Favourhouse Christian Centre at the Girls’ Guide Centre, Achimota in Accra. Thus, the marriage is hereby dissolved. 2. The marriage certificate issued to the parties herein with Certificate No. FHCC/AH/021/14 and License No. FHCC/MC/021/14 is accordingly cancelled. 3. The Terms of Settlement signed by the parties herein and their respective lawyers; and filed on the 30th day of May 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. Rhoda O. Omari v. Esteban M. Amegashitsi Page 11 of 12 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Rhoda O. Omari v. Esteban M. Amegashitsi Page 12 of 12