Amoah v Amoah (C5/29/2024) [2025] GHACC 73 (16 May 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 16TH DAY OF MAY, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/29/2024 MARY AKOSUA GYAMFUA AMOAH --------------- PETITIONER MS 411 MILE SEVEN NEW ACHIMOTA ACCRA VRS PERCY RONALD AMOAH --------------- RESPONDENT H/NO. H376 VEMAC STREET ADENTA, AMRAHIA DODOWA ACCRA GD-207-5312 PARTIES: PETITIONER ABSENT RESPONDENT PRESENT COUNSEL: PAAKWASI MENSAH-ABORAMPAH, ESQ. FOR THE PETITIONER PRESENT NII KWEI KOFI AMASAH, ESQ. FOR THE RESPONDENT PRESENT Mary A. G. Amoah v. Percy R. Amoah Page 1 of 10 JUDGMENT FACTS The parties got married under the Marriage Ordinance Cap. 127, on 12th March 2011 at Glory Gate Chapel International, Accra. There are two issues of the marriage namely, Nana Kwame Adepa Amoah aged thirteen (13) years and Maame Abena Aseda Amoah aged eleven (11) years, at the time the petition was filed. On 5th September 2024, the Petitioner herein filed the instant petition on grounds that the marriage between her and the Respondent has broken down beyond reconciliation as a result of desertion, unreasonable behaviour and adultery by the Respondent. The Petitioner prayed the Court for the following reliefs; a. That the marriage celebrated between the parties on 12th March, 2011 at Glorygate Chapel International, Haasto Accra be dissolved. b. That the Petitioner be granted custody of the issues of the marriage, Nana Kwame Adepa Amoah and Maame Abena Aseda Amoah, with reasonable access to Respondent. c. That Respondent be ordered to pay to Petitioner, her share of proceeds from the sale of their car together with interest calculated at the prevailing interest rate. d. That the Respondent be ordered to make to the Petitioner and the children such maintenance pending suit and thereafter such periodic payments as may be just. e. That the Respondent be ordered to pay costs of and incidental to this suit. Mary A. G. Amoah v. Percy R. Amoah Page 2 of 10 In his answer to the petition, the Respondent denied the Petitioner’s allegations of desertion, unreasonable behaviour and adultery and stated that the Petitioner is not entitled to reliefs ‘c’, ‘d’ and ‘e’ of her claims. I deem it necessary to mention that at the setting the matter down for trial stage, Counsel for the Respondent submitted 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’ settlement on the ancillary reliefs as per their Terms of Settlement filed on 26th February 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. As a result, the hearing of the instant petition was basically on the dissolution of the marriage since the parties had filed their Terms of Settlement on the ancillary reliefs. THE CASE OF THE PETITIONER In her evidence to the Court, the Petitioner testified among other things that she and the Respondent were lawfully married under the Marriage Ordinance (Cap 127) on the 12th March, 2011 at Glorygate Chapel International, Haasto and within the Ga East Municipal Assembly. The marriage between her and the Respondent has broken down beyond Mary A. G. Amoah v. Percy R. Amoah Page 3 of 10 reconciliation due to the conduct of the Respondent. That the Respondent left the matrimonial home in the year 2020 and has since not returned abandoning her and the issues of the marriage without any reasoning nor explanation whatsoever. That the Respondent also seized any form of communication with her since he abandoned her and the children even though he regularly spoke to the children through a phone he got for them. According to the Petitioner she strongly believes that the Respondent has been adulterous because on one occasion when she sought to have sexual intercourse with the Respondent, he rejected her advances even though they had not been intimate for a long period and told her that he could not sleep with her while sleeping with another woman. That she has also subsequently come to the knowledge that the Respondent lived with one Agnes Adona when he left home which culminated to her confrontation of the lady. The Petitioner concluded that in spite of the reliefs she seeks in this instant petition, she and the Respondent have agreed to settle this matter amicably on the basis of the terms in their Terms of Settlement filed in this honourable Court. 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 as asserted by the Petitioner; and the fact that they have two children. According to the Respondent the parties through their lawyers filed Terms of Settlement on 26th day of February, 2025 to bring a finality to this petition and the marriage Mary A. G. Amoah v. Percy R. Amoah Page 4 of 10 dissolved. That he relies on the Terms of Settlement filed on 26th February 2025, and he prays that his marriage with the Petitioner be dissolved. 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”. Mary A. G. Amoah v. Percy R. Amoah Page 5 of 10 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 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 Mary A. G. Amoah v. Percy R. Amoah Page 6 of 10 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 Petitioner herein must be able to indicate 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 petition alleged that the Respondent deserted her, behaved unreasonably and further committed adultery. In her evidence the Petitioner testified that the Respondent abandoned her and the children and also that she strongly believes the Respondent has been adulterous because he told her that he cannot sleep with her while sleeping with another woman. The Respondent denied the allegations of the Petitioner in his answer. As a result, the Petitioner had a legal burden to lead sufficient evidence to prove her allegations of adultery, unreasonable behaviour and desertion since there is also constructive desertion Mary A. G. Amoah v. Percy R. Amoah Page 7 of 10 which the Respondent’s answer suggests that he left the matrimonial home due to the behavior of the Petitioner towards him when he lost his job. That he became traumatized as a result of persistent harassment, embarrassment, intimidation as well as verbal and physical abuse from the Petitioner in the matrimonial home because it was having an effect on the children; and his health and life came under serious threat so he had to leave the matrimonial home to save his life. In view of the denial of the Petitioner’s allegations by the Respondent, the Petitioner had a legal burden to prove her allegations. This burden, the Petitioner failed to discharge in the sense that the Petitioner in her evidence repeated the assertions in her pleadings and did not lead cogent evidence to substantiate her allegations of adultery and the others after same were denied by the Respondent. The Petitioner did not go beyond her rhetorical statements as already asserted in her pleadings. The Petitioner had the onus to prove her allegations to the satisfaction of the Court which assertions she failed to prove. Notwithstanding the above, from the pleadings of the parties and 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. 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.” Mary A. G. Amoah v. Percy R. Amoah Page 8 of 10 Both parties in the instant petition testified that they have agreed to have their marriage dissolved as all efforts at reconciliation have been unsuccessful. It is therefore 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 or failed to live together 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. 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 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 12th March 2011 at Glory Gate Chapel International, Accra. Thus, the marriage is hereby dissolved. 2. The marriage certificate issued to the parties herein with Certificate No. GGC/EL006/2011 and License No. AMA/1730/2011 is accordingly cancelled. Mary A. G. Amoah v. Percy R. Amoah Page 9 of 10 3. The Terms of Settlement signed by the parties herein and their respective lawyers; and filed on the 26th day of February 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) (CIRCUIT COURT JUDGE) Mary A. G. Amoah v. Percy R. Amoah Page 10 of 10