Caitoe v Caitoe (C5/151/2024) [2025] GHACC 113 (16 May 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON FRIDAY THE 16TH DAY OF MAY 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.), CIRCUIT COURT JUDGE SUIT NO: C5/151/2024 FRANCIS CAITOE HOUSE NO. 28 PETITIONER PAPAYE STREET, DANSOMAN ACCRA VRS NANA ADWOA CAITOE (MRS.) HOUSE NO. 28 RESPONDENT PAPAYE STREET, DANSOMAN ACCRA JUDGMENT INTRODUCTION The parties were married under part 111 of the Marriages Act, 1971 (Act 367) on the 27th November, 2007 at the Principal Registrar of Marriages Office, Accra. Whilst the petitioner is a sales analyst, the respondent is a banker. On the 2nd January, 2024, the petitioner filed a petition for divorce and averred that the marriage has broken down beyond reconciliation and prayed the court for the following reliefs: “WHEREFORE the Petitioner accordingly prays as follows: 1 (a) An order for the valid dissolution of the marriage celebrated on the 27th November, 2007 at the Principal Registrar of Marriages Office, Accra. (b) Any further Order(s) as this Honourable Court may deem fit.” The respondent filed her Answer to the petitioner’s Petition on the 19th July, 2024 and cross-petitioned for the following reliefs: “a) The marriage between the parties be dissolved. b) That the Respondent be given custody of the children of the marriage with reasonable access to the Petitioner. c) That the Petitioner should maintain the children of the marriage such as paying school fees and child upkeep with reasonable support from the Respondent. d) Any further or other order(s) as the court may deem just.” Since this is a matrimonial cause, it is the direct provisions of the Matrimonial Causes Act, 1971 (Act 367) which should apply. Section 2 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides that: “On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into facts alleged by the petitioner and the respondent.” The facts relied on by the parties must therefore be pleaded and placed before the court; otherwise, the court cannot perform its statutory duties under the above section of this Act. The particulars set out in detail the facts relied on by the petitioner and the respondent to establish the allegation that the marriage has broken down beyond reconciliation. The relevant particulars of the petitioner’s Petition are as follows: 8. Petitioner says that for the past twelve (12) years he has endured hardship from the actions of the respondent. Respondent does not cook for him nor wash his cloths, He does the wash by himself and fed himself as well. 2 9. Petitioner avers that the attention and interest of respondent was focused on the children and paid no attention to him. 10. Petitioner avers that he has been traumatized and suffered emotional imbalance for all these past years. It is even a problem for respondent to offer him sex. 11. Petitioner avers that respondent does not respect him and consider him worthy in any decision making. He has been managing to live a normal life despite the happenings between them. 12. Petitioner avers there is no swift communication between them and they can live for days without talking to each other. They live as individuals on their own in their own matrimonial home. 13. Petitioner says that several attempts made by family members and friends alike at solving their differences have all proved futile. 18. Petitioner says that the behavior of respondent has made it impossible for him to continue to remain in the marriage, but will not relent to cater adequately for the issues of the marriage.” The relevant particulars of the respondent’s Cross-Petition are as follows: “8. The Respondent says that the Petitioner has behaved in such a manner that the Respondent cannot reasonably be expected to live with him. 9. That the Respondent says Petitioner gets upset when discussions concerning the home and the children does not go in his favour. 10 Respondent says that Petitioner does not perform his husbandly duties. 11. Respondent says that the Petitioner is mostly absent from home in flagrant disregard for his family. 12. Respondent says further that the Petitioner is very hostile and usually gives Respondent cold reception anytime they are discussing issues concerning the family. 3 14. That all attempts to get Petitioner to resolve and reconcile their differences including family and their pastor proved futile.” SUMMARY OF EVIDENCE BY THE PETITIONER AND THE RESPONDENT The petitioner testified himself but did not call any witness. The respondent also testified herself and called no witness. In several decided cases, the superior courts have held that there are situations where the testimony of a single witness will suffice to prove a case. In the case of Kru vrs Saoud Bros & Sons (1975) 1 GLR 46, the Court of Appeal held: “Judicial decisions depend on the intelligence and credit and not the multiplicity of witnesses produced at the trial.” Also, in the case of Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR, the Supreme Court held affirming the position of the law that: “(a) A tribunal of facts can decide an issue on the evidence of one party. A bare assertion on oath by a single witness might in the proper circumstance of a case be enough to form the basis of a judicial interpretation. The essential thing is that the witness is credible by the standard set in section 80 (2) of the Evidence Act, 1975.” Again, in the case of Ghana Ports and Harbours Authority vrs Captain Zavi & Nova Complex Ltd (2007-2008) SCGLR 806 the Supreme Court held thus: “It is true that witnesses are weighed but not counted and that a whole host of witnesses are not needed to prove a particular point.” The parties mutually agreed to resolve the ancillary reliefs in this matter amicably and they reached an agreement on the 16th December, 2024. The parties 4 subsequently filed the terms of settlement and same was adopted as the consent judgment by the court on the 25th April, 2025. The terms which were adopted as the consent judgment by the court are as follows: “3. THE PARTIES HEREBY AGREE AS FOLLOWS: a. That the marriage celebrated on the 27th November, 2007 between the Petitioner and the Respondent be dissolved. b. An order granting custody of the three (3) children of the marriage to the Respondent with reasonable access to the Petitioner. c. An order for the Petitioner to pay GH¢2000 every month as the cost of maintenance of the three (3) children of the marriage. d. An order for the Petitioner to bear 60% of the three children’s educational fees, uniforms, books, medical bills and clothing. e. That the Parties shall bear their legal costs. f. That an order for the Petitioner to vacate the matrimonial home immediately after the dissolution of the marriage.” THE PETITIONER’S CASE The petitioner testified that he got married to the respondent on the 27th November, 2007 at the Principal Registrar of Marriages Office, Accra. They have three (3) issues of the marriage namely Valma Ewurabene Serwaa Caitoe (15 years), Elma Nhyira Caitoe (12 years) and Alma Aseda Caitoe (7 years). According to the petitioner, he is no longer interested in the marriage because of the unreasonable behaviour of the respondent and their inability to reconcile their differences. It is further the evidence of the petitioner that several attempts by some family members and friends at reconciliation was not successful. There is a breakdown in communication between them to the extent that they have been living as individuals in their marital home for quite a long time and the situation has caused him much anxiety and emotional distress. 5 As far as the petitioner is concerned, the marriage had broken down and he would never be reconciled with the respondent. He would not go back to the respondent and no more diligent efforts at reconciliation would succeed. He therefore prayed the court to dissolve the marriage. THE RESPONDENT’S CASE It is the evidence of the respondent that she has been married to the respondent for the past 17 years and they have been blessed with three daughters namely Valma Ewurabena Serwaa Caitoe aged 16 years, Elma Nhyira Caitoe aged 13 years and Alma Aseda Caitoe aged 9 years. According to the respondent, the petitioner has behaved in such a manner that she cannot reasonably be expected to live with him. It is also the evidence of the respondent that the petitioner gets upset when discussions concerning the home and the children does not go in his favour, does not perform his husbandly duties, is mostly absent from home in flagrant disregard for his family, is very hostile and usually gives her cold reception anytime they are discussing issues concerning the family. The respondent stated further that all attempts to get the petitioner to resolve and reconcile their differences including family and their pastor proved futile. According to the respondent, the marriage has broken down beyond reconciliation and she prayed the court to dissolve same. FINDINGS OF PRIMARY FACTS From the evidence on the record, the following facts are not in dispute: 1. That the parties were married under the ordinance on the 27th November, 2007 2. That the parties have three (3) issues of the marriage. ISSUE FOR DETERMINATION 6 The main issue for determination is as follows: Whether or not the marriage contracted between Francis Caitoe the petitioner herein and Nana Adwoa Caitoe (Mrs.) the respondent herein on the 27th November, 2007 at the Principal Registrar of Marriages Office, Accra has broken down beyond reconciliation? ANALYSIS OF THE RELEVANT SECTIONS OF THE MATRIMONIAL CAUSES ACT, 1971 (ACT 367) Before I deal with the only issue, I now wish to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely sections 1 (2), 2 (1), and 2 (3). The only ground upon which a marriage may be dissolved is where the parties proves that the marriage has broken down beyond reconciliation. Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides thus: “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.” The grounds upon which a marriage would be said to have broken down beyond reconciliation are six (6) and the proof of one or more of them to the satisfaction of the Court may be a valid ground to the dissolution of the marriage. The six grounds are provided in sections 2 of the Matrimonial Causes Act, 1971 (Act 367). They are as follows: “2 (1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one of the following facts: (a) That the respondent has committed adultery and 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; 7 (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 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, 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. Under section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367): “Although 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.” BURDEN ON THE PETITIONER AND THE RESPONDENT In a petition for divorce, the burden that is cast on a petitioner is to lead sufficient evidence to enable a finding of those facts in issue to be made in his favour as required by sections 10 and 14 of the Evidence Act, 1975 (NRCD 323). See: Dzaisu v Ghana Breweries Limited [2009] 6 GMJ 111 S.C Ackah v Pergah Transport Limited [2011] 31 GMJ 174 S.C Sections 11( 4) and 12 (1) of the Evidence Act 1975, (Act 323) provides that the standard burden of proof in all civil matters is proof by the preponderance of 8 probabilities and there is no exception to it except where the issue to be resolved in the civil suit borders on criminality such as fraud and forgery. The Supreme Court also in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 unambiguously resolved the question of standard burden of proof. In the case of African Mining Services v Larbi [2010-2012] GLR 579, the Court held that the burden of persuasion in civil matters requires the person who has the evidential burden to discharge, to produce sufficient evidence such that a reasonable mind, such as this Court, will come to the conclusion that the existence of the fact is more probable. It is therefore the petitioner’s duty as required by law to produce the evidence of the facts in issue such that a reasonable mind, such as this Court, will come to the conclusion that from the existence of the facts, it is more probable that the marriage has broken down beyond reconciliation and that duty must be satisfactorily discharged. In this case, since the respondent also cross-petitioned, she is equally required to prove her case by the preponderance of probabilities, having regard to sections 10 and 14 of the Evidence Act, 1975 (Act 323). Furthermore, the ground upon which the petitioner seeks the dissolution of the marriage contracted between himself and the respondent is unreasonable behaviour which the respondent denies. The respondent also alleged in her cross- petition unreasonable behaviour by the petitioner as her basis for seeking a dissolution of the marriage. Therefore, the onus is on each one of them to lead cogent and credible evidence to prove their respective allegations. ANALYSIS OF THE EVIDENCE ON RECORD ISSUE 9 Whether or not the marriage contracted between Francis Caitoe the petitioner herein and Nana Adwoa Caitoe (Mrs.) the respondent herein on the 27th November, 2007 at the Principal Registrar of Marriages Office, Accra has broken down beyond reconciliation? A. UNREASONABLE BEHAVIOUR BY THE RESPONDENT The petitioner in paragraphs 8, 9, 10, 11, 12, 13 and 18 of his Petition averred that the marriage has broken down beyond reconciliation as the respondent has behaved unreasonably towards him in a way that he cannot reasonably be expected to live with her as husband and wife by: i. refusing or failing to cook for him nor wash his cloths, ii. focusing all her attention and interest on the children without paying attention to him, iii. refusing to have sex with him and iv. lack of respect for him and considering him unworthy in any decision making. Although the law is that when a party has given evidence of a material fact and he was not cross-examined upon that, he need not call further evidence of that fact and the opponent who failed to cross-examine him will be deemed to have acknowledged, sub silentio, that averment by the failure to cross examine as enunciated in the case of Quagraine vrs Adams [1981] GLR 599, Akyere-Djamson vrs Duagbor [1989-90] 1 GLR 223, SC, Fori vrs Ayirebi (1966) GLR 627 SC and Western Hardwood Ent. Ltd vrs W/A Ent. Ltd. (1998-1999) SCGLR 10, the respondent’s counsel’s failure to cross-examine the petitioner on his testimony in respect of the allegation of unreasonable behaviour by the respondent, does not in any way suggest that the testimony or the assertion of the petitioner was true or has been admitted. This is because the respondent denied the said allegation of unreasonable behaviour in her Answer to the Petition. 10 The onus was therefore on the petitioner to prove that the respondent has behaved in such a way that he cannot reasonably be expected to live with her. However, he failed to lead evidence to prove the various acts of unreasonable behaviour by the respondent. The petitioner aside mounting the witness box and maintaining that the respondent has behaved in such a manner that he cannot reasonably be expected to live with her was not able to adduce cogent and credible evidence. In the case of Zabrama v Segbedzi (1991) 2 GLR 221, the Court of Appeal restated the time honoured principle in Majolagbe v Larbi (1959) GLR 190 as follows: “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which that fact or facts he asserts can properly and safely be inferred.” Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR 883. Courage Adonoo vrs Fan Milk Ltd (2006) 6 MLRG 211 CA. T. K. Serbeh &Co Ltd vrs Mensah (2007) MLRG SC 1. Delmas America Africa Line Incorporation vrs Kisko Products Ghna Ltd (2007) 11 MLRG 141 SC. The petitioner thus failed to prove to the satisfaction of this court that the respondent has behaved in such a manner that he cannot reasonably be expected to live with her. The petitioner’s charge of unreasonable behaviour is therefore a mere allegation without a scintilla of evidence against his wife. It was as if petitioner was shopping for any available ground in an attempt to convince the court that his wife has behaved unreasonably towards him so that the marriage could be dissolved. 11 The next question to consider is the requirement of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367) whether the marriage between the petitioner and the respondent has broken down beyond reconciliation. On a proper construction of this sub-section of the act, the court can still refuse to grant a decree even when one or more of the facts set in section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367) have been established. It is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one party that the marriage has broken down will not be enough. See: Dictum of Bagnall J in the case of Ash v. Ash [1972] 1 ALL ER 582 at page 586. From the evidence on record, there is no indication that the parties are prepared or willing to cooperate once again to find a solution to their differences. The court finds that the marriage has broken down and there is no hope or reconciliation at this stage as the parties themselves have told this court and it is better for this court to dissolve this marriage so that the parties can go their separate ways and be put out of their miseries. To insist that the petitioner and the respondent continue to live together as man and wife would be turning a contract of marriage into one of slavery regardless of the psychological and emotional trauma on the parties or one of them and allowing this marriage to strive on hopelessly, helplessly, and lack of trust. This is because matrimonial causes are unique because they involve two persons who are physically, emotionally and spiritually involved with each other unlike other causes of action like land cases, contract, constitutional, chieftaincy etc. which do not involve intimacy between two people. No doubt the Bible declares the unique relationship as the two becoming one flesh. 12 I cannot but agree with Osei-Hwere J (as he then was) in the case of Donkor v. Donkor (1982-83) GLR 1156 at page 1158 as follows: “The Matrimonial Causes Act (1971) Act 367 does not permit spouses married under the Ordinance to come to pray for dissolution of a marriage just for the asking. Where the court is satisfied from the conduct of the parties that the marriage has in truth and in fact broken down beyond reconciliation it cannot pretend and insist that they continue as man and wife. To do so would be turning a contract of marriage into one of slavery regardless of the psychological effect on the parties or one of them.” Despite the petitioner’s failure to prove his wild allegation of unreasonable behaviour against his wife, there are several other compelling grounds which prove that the marriage between the parties has gone beyond retrieval. I am satisfied that regarding the burden of persuasion, the respondent produced sufficient evidence to persuade me to come to the conclusion per the existence of the fact that the marriage had broken down beyond reconciliation. The court finds and holds from the totality of the evidence on record that, the marriage contracted between Francis Caitoe the petitioner herein and Nana Adwoa Caitoe (Mrs.) the respondent herein on the 27th November, 2007 at the Principal Registrar of Marriages Office, Accra has broken down beyond reconciliation and the justification is that from the evidence, the petitioner has behaved unreasonably towards the respondent in a way that she cannot reasonably be expected to live with him Thus, a prima facie case has been made by the respondent that warrants the dissolution of the marriage. The requirements of section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) has thus been met by the respondent. I hereby declare the marriage contracted between Francis Caitoe the petitioner herein and Nana Adwoa Caitoe (Mrs.) the respondent herein on the 27th November, 2007 at the Principal Registrar of Marriages Office, Accra dissolved. CONCLUSION 13 1. The marriage solemnized on the 27th November, 2007 at the Principal Registrar of Marriages Office, Accra Francis Caitoe the petitioner herein and Nana Adwoa Caitoe (Mrs.) the respondent herein with Certificate Number RGM2463/2007 Licence Number SL 50353 is hereby dissolved. 2. The respondent is granted custody of the three issues of the marriage with reasonable access to the petitioner. 3. The petitioner is ordered to maintain the children of the marriage with GH¢2,000 every month. 4. The petitioner is ordered to bear 60% of the three children’s educational fees, uniforms, books, medical bills and clothing. 5. The petitioner is ordered to vacate the matrimonial home on or before the 23rd May, 2025. 6. Each party shall bear his or her cost of the instant action. COUNSEL BRIGHT AMU ESQ. FOR THE PETITIONER PRESENT WISDOM AMEGA SETSOAFIA ESQ. FOR THE RESPONDENT IS PRESENT PARTIES PRESENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 14