Arthur v Arthur (C5/273/2024) [2025] GHACC 112 (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: C5/273/2024 ANTHONY ARTHUR H/NO. B434/5 DJANE KOTEI STREET PETITIONER BUBIASHIE, ACCRA VRS GERTRUDE ARTHUR H/NO. B434/5 RESPONDENT DJANE KOTEI STREET BUBIASHIE, ACCRA JUDGMENT INTRODUCTION The parties were married under the Marriage Ordinance on the 16th March 2014 at the Christ Apostolic Church International Bubiashie, Accra. Whilst the petitioner is a Marketing Consultant, the respondent is a Nurse. There are two (2) issues of the marriage. On the 10th April 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: “16. Wherefore the petitioner prays as follows: 1. Dissolution of the marriage celebrated between the parties on the 16th March. 2014 at the Christ Apostolic Church International, Bubiashie, Accra. 2. Order for the grant of reasonable access to the issues of the marriage.” 1 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: 10. That the parties after diligent efforts have been unable to reconcile their differences. Particulars a. The Petitioner continuously lacks affection for the Respondent therefore resulting in irreconcilable differences mainly as a result of unreasonable nagging. b. The Parties are incompatible and unable to plan as a family due to the lack of affection and irreconcilable differences even after the withdrawal of the initial petition. c. That the matrimonial home is no more a matrimonial home properly so-called due to the lack of affection and irreconcilable differences and incompatibility even after the withdrawal of the petition for divorce especially nagging by the Respondent about anything d. That the parties have not behaved as man and wife for a long time and have neither slept together as man and wife nor had sex for about two (2) years. 2 11. Petitioner says there have been various attempts at reconciliation by both families, the pastor in their church and their marriage counsellors but none has yielded any positive result.” In this case, the respondent though duly served with the petitioner’s Petition, together with setting down cause for trial, and hearing notices of which services were duly proved, did not enter appearance or file her Answer to the petitioner’s Petition. Neither did she appear in court to either give evidence or cross-examine the petitioner. She 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. The respondent however filed was an Affidavit of Consent for the grant of the divorce on the 14th May, 2024. 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’S CASE The petitioner testified that he got married to the respondent on the 16th March, 2014 at the Christ Apostolic Church International, Bubiashie Assembly and they were issued with a marriage certificate which he tendered in evidence as Exhibit “A”. They have two (2) issues in the marriage namely Francis Nhyira Odum Arthur and George Ayeyi Nyarko Arthur. It is the case of the petitioner that regrettably they are simply incompatible and therefore it will be highly impossible for them to live together as man and wife. It is the evidence of the petitioner that he continuously lacks affection for the respondent therefore resulting in irreconcilable differences mainly as a result of unreasonable nagging by the respondent. They are also incompatible and unable to plan as a family due to the lack of affection and irreconcilable differences. It is further the evidence of the petitioner that the lack of affection and irreconcilable differences and incompatibility led him to vacate the matrimonial home and he and the respondent have not behaved as man and wife for a long time and have neither slept together as man and wife nor had sex for about two (2) years. The petitioner stated further that there have been various attempts at reconciliation by both families, the pastor in their church and their marriage counsellors but none has yielded any positive result. 4 As far as the petitioner is concerned, the marriage celebrated between them has broken down and he would never reconcile 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. It is also the case of the petitioner that he purchased two (2) plots of land at Kasoa during the subsistence of the marriage and he shall transfer one of the plots to the respondent as compensation. He further indicated that he shall rent a two bedroom apartment and pay for the rent advance thereof for the respondent and the two (2) issues of the marriage and shall also maintain the two issues of the marriage with two thousand Ghana cedis (GH¢2,000.00) every month, pay their school fees and medical bills as and when they fall due. He further prayed the court to grant custody of the two (2) issues to the respondent with reasonable access to him. 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 16th March, 2014. 2. That the parties have two (2) issues of the marriage. 3. Both parties consent to the dissolution of the marriage. ISSUE FOR DETERMINATION The main issue for determination is as follows: Whether or not the marriage contracted between Anthony Arthur the petitioner herein and Gertrude Arthur the respondent herein on the 16th March, 2014 at the Christ Apostolic Church International Bubiashie, 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). 5 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.” 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; (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; 6 (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 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 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. 7 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. Furthermore, the ground upon which the petitioner seeks the dissolution of the marriage contracted between himself and the respondent is having not lived as husband and wife for a period of two (2) years and failure of attempts at reconciliation. He therefore has the burden of leading cogent and credible evidence in proving same. ANALYSIS OF THE EVIDENCE ON RECORD ISSUE Whether or not the marriage contracted between Anthony Arthur the petitioner herein and Gertrude Arthur the respondent herein on the 16th March, 2014 at the Christ Apostolic Church International Bubiashie, Accra has broken down beyond reconciliation? A. PARTIES HAVE NOT LIVED TOGETHER AS HUSBAND AND WIFE FOR A CONTINUOUS PERIOD OF TWO YEARS The petitioner stated in paragraph 9 (d) of his Petition that he and the respondent have not behaved as man and wife for a long time and have neither slept together as man and wife nor had sex for about two (2) years and he further lead evidence to this fact. Excerpts from the petitioner’s evidence-in-chief are as follows: “The first reason is incompatibility as it was difficult for the two of us to get along and so for that reason, I vacated the house. We have never for two years lived together as husband and wife. It is based on this that the two of us mutually agreed to have the marriage dissolved.” 8 This court therefore finds as a fact that the parties to the marriage have not lived together as husband and wife for a period of two (2) years. The court is satisfied that the petitioner proved his case by the preponderance of probabilities that they have not lived together as a married couple for a continuous of two (2) years immediately preceding the presentation of the petition as provided under section 2 (1) (d) of the Matrimonial Causes Act, 1971 (Act 367) and this court holds same. B. THE PARTIES TO THE MARRIAGE HAVE, AFTER DILIGENT EFFORT, BEEN UNABLE TO RECONCILE THEIR DIFFERENCES The petitioner stated in paragraph 10 of his Petition that all attempts at reconciliation by both families, the pastors in their church and their marriage counsellors have not yielded any result and he further lead evidence to that fact. An excerpt is as follows: “There have been various attempts to reconcile us to remain in the marriage but all to no avail.” From the totality of the evidence on record, this court finds as a fact that the parties after diligent effort have been unable to reconcile their differences. The court is satisfied that the petitioner proved his case by the preponderance of probabilities he and the respondent after diligent effort have been unable to reconcile their differences as provided under section 2 (1) (f) 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. 9 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 parties for the past two (2) years have not lived together as husband and wife. The court finds that the marriage has broken down and there is no hope or reconciliation at this stage as the petitioner himself 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 10 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.” The court is satisfied that regarding the burden of persuasion, the petitioner 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 that from the totality of the evidence on record that, the marriage contracted between Anthony Arthur the petitioner herein and Gertrude Arthur the respondent herein on the 16th March, 2014 at the Christ Apostolic Church International Bubiashie, Accra has broken down beyond reconciliation and the justifications are that from the evidence: i. 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. ii. The parties to the marriage have, after diligent effort, been unable to reconcile their differences. 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. Since the petitioner testified: i. that he purchased two (2) plots of land at Kasoa during the marriage and he shall transfer one of the plots to the respondent as compensation; ii. that custody of the two (2) issues of the marriage be granted to the respondent with reasonable access to him, iii. that he shall rent a two bedroom apartment and pay for the rent advance thereof for the respondent and the two (2) issues of the marriage, and 11 iv. that he shall also maintain the two (2) issues of the marriage with two thousand Ghana cedis (GH¢2,000.00) every month, pay their school fees and medical bills as and when they fall due, the court proceeds to make the following orders: 1. Custody of the two issues in the marriage namely Francis Nhyira Odum Arthur and George Ayeyi Nyarko Arthur is granted to the respondent with reasonable access to the petitioner. 2. The petitioner shall transfer one of the plots of land at Kasoa purchased during the subsistence of the marriage to the respondent forthwith. 3. The petitioner shall pay to the respondent the sum of Two thousand Ghana cedis (GH¢2,000.00) as maintenance monthly. 4. The petitioner shall pay the two (2) issues school fees and other incidental expenses associated with their education and medical bills as and when they fall due. 5. The petitioner shall rent a two bedroom apartment for the respondent and the issues of the marriage. CONCLUSION 1. The marriage solemnized on the 16th day of March, 2014 at the Christ Apostolic Church International Bubiashie, Accra between between Anthony Arthur the petitioner herein and Gertrude Arthur the respondent herein with Certificate Number MC/156/03/14 Licence Number AMA/1950/2014 is hereby dissolved. 2. Custody of the two issues in the marriage namely Francis Nhyira Odum Arthur and George Ayeyi Nyarko Arthur is granted to the respondent with reasonable access to the petitioner. 3. The petitioner shall transfer one of the plots of land at Kasoa purchased during the subsistence of the marriage to the respondent forthwith. 12 4. The petitioner shall pay to the respondent the sum of Two thousand Ghana cedis (GH¢2,000.00) as maintenance monthly. 5. The petitioner shall pay the two (2) issues school fees and other incidental expenses associated with their education and medical bills as and when they fall due. 6. The petitioner shall rent a two bedroom apartment for the respondent and the issues of the marriage. 7. Each party shall bear his/her cost of the instant action. COUNSEL JOSEPH NUER-TEYE FOR SOLOMON QUANDZIE FOR THE PETITIONER ABSENT PETITIONER PRESENT RESPONDENT ABSENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 13