Arku v Totimeh (C5/316/2024) [2025] GHACC 115 (9 May 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON FRIDAY THE 9TH DAY OF MAY, 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.), CIRCUIT COURT JUDGE SUIT NO: C5/316/2024 MAGDALENE ARKU SOWUTWUOM PETITIONER ACCRA VRS EUGENE TOTIMEH KORLE WORKOR RESPONDENT ACCRA JUDGMENT INTRODUCTION The parties were lawfully married on the 30th day of January, 2016 at the Redeem Evangel Church, Ho in the Volta Region of the Republic of Ghana. Whilst the petitioner is a hairdresser, the respondent is a DJ. On the 22nd May, 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, Petitioner humbly prays this Honourable Court for: a. Dissolution of the marriage contracted between the parties as having broken down beyond reconciliation. b. Custody of the issue of the marriage to be granted to the Respondent with reasonable access to the Petitioner whilst both parties will continue to maintain the 1 issue of the marriage including but not limited to the payment of school fees and medical bills as and when they fall due.” 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 to establish the allegation that the marriage has broken down beyond reconciliation. The relevant particulars of the petitioner’s Petition are as follows: “8. That the Respondent has behaved in such a manner that the Petitioner cannot reasonably be expected to continue to live with the Respondent PARTICULARS OF UNREASONABLE BEHAVIOUR a. Petitioner says that after the celebration of the marriage, the parties cohabited at Ho and relocated to Sowutwom in Accra. b. Petitioner says that the Respondent was at all material times drunk in the course of the marriage. c. Petitioner says that the Respondent was physically abusive towards the Petitioner on numerous occasions. d. Petitioner says that the Respondent threatened the Petitioner’s life which forced the Petitioner to move out of the matrimonial home in 2019 for fear of her life. 2 e. Petitioner says that the Respondent was not initially taking care of the Petitioner and the issue of the marriage. f. Petitioner says that the Respondent has caused the Petitioner anxiety and stress in the course of the marriage.” In this case, the respondent though duly served with the petitioner’s Petition, together with setting down cause for trial, the petitioner’s witness statement and hearing notices of which services were duly proved, did not enter appearance or file his Answer to the petitioner’s Petition. Neither did he appear in court to either give evidence or cross-examine the petitioner. He is therefore deemed to have waived her right to be heard, although there is an authority to the effect that the right to be heard is an established common law principle, it is a right which should not be taken away unless the rules of court permit it to be so. See: Republic vrs High Court Exparte Salloum and Others (2012) 37 MLRG 34 SC. SUMMARY OF EVIDENCE BY THE PETITIONER The petitioner testified on oath but did not call any 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: 3 “(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 petitioner tendered in evidence, the marriage certificate and two photographs of her bleeding on the face as Exhibits “A”, “B” and “B1” respectively. THE PETITIONER’S CASE The petitioner testified that she got married to the respondent on the 30th January, 2016 at the Redeem Evangel Church, Ho in the Volta Region of the Republic of Ghana. They cohabited at Ho after their marriage before they relocated to Sowutwom, Accra. They have one (1) issue of the marriage namely Humphrey Totimeh who is six (6) years old. It is the evidence of the petitioner that the respondent has behaved in such a manner that she cannot reasonably be expected to continue to live with him. It is further the evidence of the petitioner that the respondent is at all material times drunk in the course of the marriage and he has been physically abusive towards her on numerous occasions. She continued that the respondent also threatened her life which forced her to move out of the matrimonial home in 2019 for fear of her life. She has not lived together with the 4 respondent as man and wife for the past five years and several attempts by their respective family to reconcile them have proved futile. As far as the petitioner is concerned, the marriage celebrated between them has broken down and she would never reconcile with the respondent. She would not go back to the respondent and no more diligent efforts at reconciliation would succeed. She therefore prayed the court to dissolve the marriage. 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 30th January, 2016. 2. That the parties have one (1) issue of the marriage. ISSUE FOR DETERMINATION The main issue for determination is as follows: Whether or not the marriage contracted between Magdalene Arku the petitioner herein and Eugene Totimeh the respondent herein on the 30th January, 2016 at the Redeem Evangel Church, Ho 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 petitioner 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.” 5 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 section 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; 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.” 6 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 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 her 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, (NRCD 323) provides that the standard burden of proof in all civil matters is proof by the preponderance of 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. 7 Furthermore, the ground upon which the petitioner seeks the dissolution of the marriage contracted between herself and the respondent is unreasonable behaviour by the respondent. Therefore, the onus is on the petitioner to lead cogent and credible evidence to prove her allegations. ANALYSIS OF THE EVIDENCE ON RECORD ISSUE Whether or not the marriage contracted between Magdalene Arku the petitioner herein and Eugene Totimeh the respondent herein on the 30th January, 2016 at the Redeem Evangel Church, Ho has broken down beyond reconciliation? UNREASONABLE BEHAVIOUR BY THE RESPONDENT The petitioner in paragraph 8 of her Petition averred that the marriage has broken down beyond reconciliation as the respondent has behaved unreasonably towards her in a way that she cannot reasonably be expected to live with him by: i. getting drunk at all material times in the course of the marriage, ii. physically abusing her on numerous occasions and iii. threatening her life which forced her to move out of the matrimonial home in 2019 for fear of her life. The petitioner further testified that the respondent has behaved in such a manner that she cannot reasonably be expected to live with him because he is always drunk, he physically abuses her and he also threatened her life which forced her to move out of the matrimonial home. The petitioner tendered in evidence, as Exhibits “B” and “B1” respectively photographs of bleeding from her face after the respondent hit her. 8 From the totality of the evidence on record together with Exhibits “B” and “B1”, this court finds as a fact that the respondent has behaved in such a manner that the petitioner cannot reasonably be expected to live with him because he is always drunk, he physically abuses her and he also threatened her life which forced her to move out of the matrimonial home. I must also confess that no woman, no matter how large her heart can pull along with a husband who is always drunk, physically abuses her and also threatens her life. The conduct of the respondent in my view falls very far short of that of a reasonable man. From the totality of the evidence on record, I find as a fact that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue to live together with him. The petitioner proved her case by the preponderance of probabilities that respondent has behaved unreasonably towards her in a way that she cannot reasonably be expected to live with him as provided under section 2 (1) (b) of the Matrimonial Causes Act, 1971 (Act 367) and this court holds same. 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. 9 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, the petitioner vacated the matrimonial home in the year 2019. 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 petitioner herself 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. 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.” 10 This Court is satisfied that regarding the burden of persuasion, the petitioner produced sufficient evidence to persuade it to come to the conclusion per the existence of the fact that the marriage has broken down beyond reconciliation. Thus, a prima facie case has been made by the petitioner 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 petitioner. This court finds and holds from the totality of the evidence on record that, the marriage contracted between Magdalene Arku, the petitioner herein and Eugene Totimeh, the respondent herein on the 30th January, 2016 at the Redeem Evangel Church, Ho has broken down beyond reconciliation and it dissolves same. The petitioner also prayed the court to grant custody of the only issue of the marriage to the respondent with reasonable access to her and also an order for both of them to continue to maintain the issue of the marriage including but not limited to the payment of school fees and medical bills as and when they fall due. Accordingly: i. Custody of the only issue of the marriage namely Humphrey Totimeh is accordingly granted to the respondent with reasonable access to the petitioner. ii. The parties are ordered to equally contribute towards the payment of the only issue’s maintenance fee, including but not limited to the payment of school fees and medical bills as and when they fall due. CONCLUSION 1. The marriage contracted between Magdalene Arku the petitioner herein and Eugene Totimeh the respondent herein on the 30th January, 2016 at the Redeem Evangel Church, Ho is accordingly dissolved. 11 2. Custody of the only issue of the marriage namely Humphrey Totimeh is accordingly granted to the respondent with reasonable access to the petitioner. 3. The parties are ordered to equally contribute towards the payment of the of the only issue’s maintenance fee, including but not limited to the payment of school fees and medical bills as and when they fall due. 4. No order as to cost. DEBORAH EWURADWOA NTRIWAH ANING HOLDING THE BRIEF OF YVONNE AMEGASHIE FOR THE PETITIONER PRESENT PETITIONER PRESENT RESPONDENT ABSENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 12