Gyau v Yeboah (C5/136/2024) [2025] GHACC 114 (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: C5/136/2024 JOYCE GYAU ADAKLU CLOSE PETITIONER GA-430-2880 VRS RICHARD ATIEMO YEBOAH RESPONDENT TABORA ACCRA JUDGMENT INTRODUCTION The parties were married under part 111 of the Marriages Act, 1971 (Act 367) on the 21st April, 2012 at the Presbyterian Church of Ghana, Charis Congregation, New Fadama, Accra. Whilst the petitioner is a caterer, the respondent is a teacher. On the 13th December 2023, 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 prays this Honourable Court for: a) An order for the marriage celebrated in fact between the parties to be dissolved. b) An order for the Petitioner to be granted custody of the only issue, Chantelle Atiemo-Yeboah of the marriage with reasonable access to Respondent. c) An order for the Respondent to maintain the child at five Hundred Cedis a month and to pay her medical and educational bills. 1 d) An order for Respondent to pay an alimony of Fifty Thousand Cedis (GHC50,000.00).” The respondent filed his Answer to the petitioner’s Petition on the 3rd January, 2024 and cross-petitioned for the following reliefs: “1. An Order for The Dissolution of the Ordinance Marriage celebrated between the Parties as having broken down beyond reconciliation. 2. An Order for the Court to grant custody of the issue of the marriage to the Respondent with reasonable access to the Petitioner.” The petitioner further filed a Reply and Answer to the respondent’s Answer and Cross-petition on the 30th January, 2024. 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. That the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with him and the Respondent has caused the Petitioner much anxiety, distress and embarrassment. PARTICULARS OF UNREASONABLE BEHAVOUR 2 i. That Respondent’s behaviour suddenly changed. He went out on Fridays and returned on Mondays. ii. That Respondent prior to the marriage lied to the Petitioner he had purchased a land of which he was paying in bits and that they would move from the family house into their own home in good time. iii. That Respondent kept his copy of their room key with his mother before leaving home, making Petitioner feel uncomfortable as it threatens their privacy. iv. That whenever the Petitioner discusses a matter with Respondent, he discloses it to his mother and siblings who are all living in the family house. v. That when Petitioner’s phone got spoilt, the Respondent refused to give her one of his phones, yet he bought a phone for another lady. vi. That when Petitioner was unwell and demanded for money for medical care, the Respondent failed to provide the money. vii. That Respondent does not maintain the only issue of the marriage. viii. That Petitioner once sent their child to Respondent to ask for money to buy uniforms and Respondent drove her away that he had not given her girlfriend ‘chop money’ let alone give her money for uniform. 9. That the Respondent has committed adultery and as a result of the adultery, the Petitioner finds it intolerable to live with the Respondent. PARTICULARS OF ADULTERY i. That Petitioner found out that the Respondent was having an extra marital affair with a woman in Fadama. ii. That Petitioner confronted the woman and advised her to stop any activity with the Respondent, but the relationship continued. iii. That after the said confrontation, the Respondent called to inform his mother Petitioner was disgracing him that he was a flirt, resulting in Respondent’s mother reporting the matter to their Presbyter. iv. That the Respondent has a 1 year, 3 months old baby with another woman. 3 v. That prior to the birth of this child, the Petitioner and the Respondent had been separated for nine (9) months. vi. That the separation was upon an advice given to Petitioner and Respondent by their Catechist as part of efforts or attempts at reconciliation. vii. That during the said separation, Petitioner went to the house to pick an item as her belongings were still in the house. viii. That to the shock of her life, she met a lady in the room dressing up after bathing, with her bag on their matrimonial bed as the Respondent took his bath. ix. That she immediately called her father in-law by name Mr. Yeboah to inform him about what she had seen, as well as her uncle by name Mr. Ofori to serve as proof that all her complaints about the Respondent’s flirting was in action.” SUMMARY OF EVIDENCE BY THE PETITIONER AND THE RESPONDENT The petitioner testified herself but did not call any witness. The respondent also testified himself 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 4 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 17th January, 2025. The parties subsequently filed the terms of settlement and same was adopted as the consent judgment by the court on the 31st January, 2025. The terms of settlement reached between the parties on the 17th January, 2025 which was adopted as the consent judgment by the court are as follows: “1. That the marriage contracted between the parties be dissolved according to law. 2. That custody of the issue of the marriage be granted to the Petitioner with reasonable access to the Respondent. 3. It is agreed that Respondent maintains the issue of the marriage with an amount of Five Hundred Ghana cedis (GH¢500.00) as maintenance monthly and the amount shall be paid on or before the 30th day of the preceding month. 4. It is agreed that Respondent pays for the medical bills and all educational expenses of the issue as and when they fall due without failure. 5. An order for a lump sum financial settlement of Fifteen Thousand Ghana cedis (15,000.00) which is to be paid within twelve months.” THE PETITIONER’S CASE The petitioner testified that she got married to the respondent on the 21st April, 2012 at the Presbyterian Church of Ghana, Charis Congregation New Fadama, 5 Accra. They have one (1) issue of the marriage namely Chantelle Atiemo Yeboah who is nine years old. It is the evidence of the petitioner that after two years of marriage, the respondent’s behaviour suddenly changed. She continued that the respondent went out on Fridays and returned on Mondays. According to the petitioner, the respondent had an extra marital affair with a woman in Fadama and she confronted the woman and advised her to discontinue the relationship since she is married to the respondent. It is also the case of the petitioner that the respondent has a 1 year, 3 months old baby by name Rachael Atiemo Yeboah with another woman apart from the one she confronted at Fadama. According to the petitioner, she got to know about this new baby when the respondent’s father whom he had introduced to her as such from the onset of the marriage asked her if she knew about respondent’s new baby whom the respondent had asked him and his mother to accompany, to her naming ceremony. The petitioner stated that prior to the birth of the said child, she and the respondent had been separated for nine months, in the spirit of reconciliation to ascertain whether they could miss each other and get reunited again. It is further the evidence of the petitioner that during the period of separation, she went to the house to pick an item as her belongings were still in the house and to the shock of her life, she met a lady in the room dressing up after bathing, with her bag on their matrimonial bed containing items like tooth brush and panties as the respondent took his bath. She immediately called her father in- law by name Mr. Yeboah so that the will be a witness to all her complains about the respondent’s incessant flirting. The petitioner continued that being so enraged by such disloyalty on the part of the respondent for bringing another woman to sleep in their matrimonial home whiles they were trying to resolve the problem was too much for her to bear which forced her to go outside to purchase a bottle of schnapps, removed her wedding ring together with the Bible and gave them to the respondent as an initial step to dissolve the marriage. It is further the case of the petitioner that the respondent’s disloyalty was from the onset of the marriage as he 6 had prior to the marriage lied to her that he had purchased a land of which he was paying in bits and that they would move from the family house into their own home in good time. These assurances according to the petitioner encouraged her to accept the respondent’s marriage proposal as she did not like the idea of living in a family house. The respondent subsequently mocked her in a family reconciliation that he married her out of pity. During the marriage, the respondent kept his copy of the key to their room with his mother before leaving home, making her feel uncomfortable as it threatened their privacy. Whenever she discusses a matter with the respondent, he disclosed same to his mother and siblings. When the only issue of the marriage was about to start school, the respondent changed his mind on the date she was to commence school with the reason that he had not discussed same with his family. She cannot comprehend why the respondent’s family should take decisions for them on issues that bothered between them so she threatened the respondent that if that was the case then she would drop the child at his work place on her way to work before he gave her money to enroll the child in school. When her phone got spoilt, the respondent refused to give her one of his phones, yet he bought a phone for another girlfriend. On the day he was going to deliver the phone to this girlfriend, he coincidentally sat in front of her in the same vehicle and so she overheard all their discussion. Immediately the respondent alighted, she also alighted to his surprise and she attempted to snatch the phone from him which eventually got smashed. She had to depend on her father for support when she was unwell as the respondent said he had no money to give her and after delivery, the respondent failed to provide cloth for her as custom demanded. She once sent the issue of the marriage to the respondent to ask for money to collect her school uniform from the seamstress but the respondent drove her away stating that he had not given his girlfriend chop money let alone give her money to collect her uniform. She and the respondent have been separated for about five (5) years and there is no consortium or any form of sexual intimacy shared between them. 7 As far as the petitioner is concerned, the marriage had broken down and she would never be reconciled 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. THE RESPONDENT’S CASE It is the evidence of the respondent that he got married to the petitioner on the 21st of April, 2012 at the Presbyterian Church of Ghana, Charis Congregation, New Fadama, Accra. Upon the celebration of the marriage, they cohabited at his family house at Lomnava, Accra. They have one (1) issue in the marriage namely Chantelle Atiemo-Yeboah. According to the respondent, the petitioner has behaved in such a manner that he cannot reasonably be expected to live with her as husband and wife. It is his case that before he got married to the petitioner, he already had children with other women which the petitioner was aware of and after the celebration of the birth of the sole issue of the marriage, the petitioner started demanding that he gives their daughter preferential treatment to the disadvantage of the children he had with the other women. The demands of the petitioner to treat their daughter differently from his other children led him to vacate the matrimonial home for the sake of his peace of mind. Although, he and the petitioner were cohabiting in his family house, he always ensured that they had their privacy and in order to ensure that, he never gave his mother a spare key to their matrimonial room and his mother has never entered their matrimonial room after they got married. Again, he also ensured that his mother and siblings were never privy to any marital problems and he made the conscious effort not to discuss the matters that transpired in their matrimonial home with his family. During the subsistence of their marriage, he has consistently been a supportive husband to the petitioner. He actively took care of the petitioner and made sure that she was comfortable during her pregnancy. He consistently provided financial support within the matrimonial home. Specifically, he covered school fees and other educational expenses of the sole issue of the marriage and he also 8 contributed financially to medical bills when required. After the petitioner vacated the matrimonial home, he tried to still be there financially for the sole issue of the marriage but the petitioner did not allow him to do so. In an effort to provide for the issue, he went as far as offering money to the issue while she was in school. However, the issue refused to accept the money citing the petitioner’s instructions that taking the money from him, would result in her death. While he cohabited with the petitioner, he never engaged in an extramarital affair with any woman let alone his ex-girlfriends whom he had ended relationships with and had no further involvement with after committing to the petitioner. The customary marriage was dissolved when the petitioner returned the drinks, ring and Bible given to her to him. He has not lived together as husband and wife with the petitioner for the past five (5) years and they have also not engaged in sexual intercourse for five years as well. The petitioner has subjected him to mental abuse and that has caused him great distress and extreme psychological and emotional breakdown. He prayed the court to grant him the reliefs as endorsed on his cross-petition. 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 21st April, 2012. 2. That the parties have one issue of the marriage. ISSUE FOR DETERMINATION The main issue for determination is as follows: Whether or not the marriage contracted between Joyce Gyau the petitioner herein and Richard Atiemo Yeboah the respondent herein on the 21st April, 2012 at the Presbyterian Church of Ghana, Charis Congregation, New Fadama, Accra has broken down beyond reconciliation? 9 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 prove 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 10 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 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, (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. 11 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, he is equally required to prove his 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 herself and the respondent are unreasonable behaviour and adultery which the respondent denies. The respondent also alleged in his cross-petition unreasonable behaviour by the petitioner as his basis for seeking a dissolution of the marriage which the petitioner also denied. 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 Whether or not the marriage contracted between Joyce Gyau the petitioner herein and Richard Atiemo Yeboah the respondent herein on the 21st April, 2012 at the Presbyterian Church of Ghana, Charis Congregation, New Fadama, Accra has broken down beyond reconciliation? 1. UNREASONABLE BEHAVIOUR 12 1A. UNREASONABLE BEHAVIOUR BY THE RESPONDENT The petitioner in paragraphs 8 to 12 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. going out on Fridays and returned on Mondays, ii. lying to her that he had purchased a land of which he was paying in bits and that they would move from the family house into their own home in good time, iii. keeping his copy of their room key with his mother before leaving home, making her feels uncomfortable as it threatens their privacy, iv. disclosing whatever she discusses with him to his mother and siblings who are all living in the family house, v. refusing to give her one of his phones when her phone got spoilt, vi. failing to give her money when she was unwell and demanded for money for medical care, and vii. failing to maintain the only issue of the marriage. 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 failure to cross-examine the petitioner on her 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 his Answer to the Petition and in his evidence-in-chief. 13 The onus was therefore on the petitioner to prove that the respondent has behaved in such a way that she cannot reasonably be expected to live with him. However, she 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 she cannot reasonably be expected to live with him was not able to adduce cogent and credible evidence to prove same. 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 she cannot reasonably be expected to live with him. The petitioner’s charge of unreasonable behaviour is therefore a mere allegation without a scintilla of evidence against her husband. It was as if petitioner was shopping for any available ground in an attempt to convince the court that her 14 husband has behaved unreasonably towards her so that the marriage could be dissolved. 1B. UNREASONABLE BEHAVIOUR BY THE PETITIONER The respondent in paragraph 5 of his Answer and Cross-petition averred that the marriage has broken down beyond reconciliation as the petitioner has behaved unreasonably towards him. The respondent further testified that the petitioner has behaved in a manner that he cannot reasonably be expected to live with her as husband and wife because before he and the petitioner got married, he already had children with other women which the petitioner was aware of and after the celebration and the birth of the sole issue of the marriage, the petitioner started demanding that he gives their daughter preferential treatment to the disadvantage of the children he had with the other women and this demand of the petitioner led him to vacate their matrimonial home. 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 petitioner’s counsel’s failure to cross-examine the respondent on his testimony in respect of the allegation of unreasonable behaviour by the petitioner, does not in any way suggest that the testimony or the assertion of the respondent was true or has been admitted. This is because the petitioner denied the said allegation of unreasonable behaviour in her Reply and Answer to the Cross- Petition and in her evidence-in-chief. 15 The onus was therefore on the respondent to prove that the petitioner 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 petitioner. The respondent aside mounting the witness box and maintaining that the petitioner 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 to prove same. 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 respondent thus failed to prove to the satisfaction of this court that the petitioner has behaved in such a manner that he cannot reasonably be expected to live with her. The respondent’s charge of unreasonable behaviour is therefore a mere allegation without a scintilla of evidence against his wife. 2. ADULTERY BY THE RESPONDENT 16 The petitioner alleged that the respondent has committed adultery and as a result she finds it intolerable to live with him. The petitioner testified that the respondent was involved in an amorous relationship with a woman at Fadama, a woman with whom he has a 1 year, 3 months old baby with and a lady she met in their matrimonial room dressing up after taking her bath with her bag on the matrimonial bed whilst the respondent took his bath. 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 failure to cross-examine the petitioner on her testimony in respect of the allegation of adultery, 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 adultery in his Answer to the Petition and in his evidence-in-chief. The onus was therefore on the petitioner to prove that the respondent has committed adultery with these three (3) women. Adultery is between a married person and a person of the opposite sex and it is difficult to prove since it is an illicit affair committed through the backdoor at the blind side of the other spouse. While adultery does not carry proof beyond all reasonable doubt as rightly held by Sarkodee J (as he then was) in Adjetey and Another vs. Adjetey (1973) 1 GLR 216 Holding 1, same must be proved to the satisfaction of the court. 17 In the case of Adjetey v. Adjetey [1973] 1 GLR 216 it was also held thus: “Adultery must be proved to the satisfaction of the court and even though the evidence need not reach certainty as required in criminal proceedings it must carry a high degree of certainty.” In the case of Quartey v. Quartey & Anor (1972) 1 GLR it was held by Kingsley- Nyinah J. that: “The burden of proving adultery lies on the person who alleges it and it cannot be shrugged off by evidence that is tainted, indifferent, suspicious or uncertain. The standard of proof required is proof beyond reasonable doubt, that is, it must be proved with the same degree of strictness as is required for the proof of a criminal offence.” It also need not be backed with corroborating evidence under section 7 (2) of the Evidence Act, 1975 (Act 323). It is enough if the respondent is found openly or uncompromisingly associating with his paramour. In the instant case, the petitioner apart from mounting the witness box and repeating the averments in her Petition failed to lead a shred of evidence to support her allegation that the respondent has committed adultery. In other words, the petitioner’s allegation that the respondent has committed adultery was not backed with the requisite evidence. As stated supra, the petitioner aside mounting the witness box and maintaining that the respondent has committed adultery was not able to adduce cogent and credible evidence or bring any credible witness to corroborate her claim. 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. 18 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. Therefore the respondent’s evidence with respect to the allegation of adultery by the respondent was really incredible. There seem to be an attempt to throw dust into the eyes of this court. The petitioner thus failed to prove to the satisfaction of this court that the respondent has committed adultery and that by reason of that adultery she finds it intolerable to live with him. The Petitioner’s charge of adultery is therefore a mere allegation without a scintilla of evidence against her husband. It was as if petitioner was shopping for any available ground in an attempt to convince the court that her husband committed adultery so that the marriage could be dissolved. No doubt she failed to lead any evidence to the effect that she caught the respondent making love to any of the three women or found the respondent and the said women in a compromising position. 3. PARTIES HAVE NOT LIVED TOGETHER AS HUSBAND AND WIFE FOR A PERIOD OF FIVE YEARS The petitioner in paragraph 12 of his Petition averred that the marriage has broken down beyond reconciliation as he has not lived together with the respondent as husband and wife for five (5) years. The petitioner in his evidence testified to that fact and stated further that the last time she and the respondent lived together as husband and wife was five years ago. The respondent also in his evidence-in-chief stated that they have not lived together as husband and wife for the past five years. 19 The court is satisfied that the parties proved their case by the preponderance of probabilities that they have not lived together as a married couple for a continuous of five (5) years immediately preceding the presentation of the petition as provided under section 2 (1) (e) 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. 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 and they have been separated for the past five years. The petitioner has also returned the bottle of schnapps, wedding ring together with the Bible to the respondent signifying a dissolution of the customary marriage. 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 20 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.” Despite the parties’ failure to prove their respective wild allegations of unreasonable behaviour against each other, there are 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 petitioner and 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. I find and hold that from the totality of the evidence on record that, the marriage contracted between Joyce Gyau the petitioner herein and Richard Atiemo Yeboah the respondent herein on the 21st April, 2012 at the Presbyterian Church of Ghana, Charis Congregation, New Fadama, has broken down beyond reconciliation and the justification is that from the evidence, the parties to the marriage have not live together as husband and wife for a continuous period of five (5) years immediately preceding the presentation of the petition. 21 Thus, a prima facie case has been made by the petitioner and the respondent that warrant 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 and the respondent. I hereby declare the marriage contracted between Marian Joyce Gyau the petitioner herein and Richard Atiemo Yeboah the respondent herein on the 21st April, 2012 at the Presbyterian Church of Ghana, Charis Congregation, New Fadama, Accra dissolved. CONCLUSION 1. The marriage solemnized on the 21st April 2012 at the Presbyterian Church of Ghana, Charis Congregation, New Fadama, Accra between Joyce Gyau the petitioner herein and Richard Atiemo Yeboah the respondent herein with Certificate Number PCG/CC/03/2012 Licence Number AMA/2681/2012 is hereby dissolved. 2. The petitioner is granted custody of the child of the marriage with reasonable access to the respondent. 3. The respondent is ordered to pay to the petitioner the sum of Five Hundred Ghana cedis (GH¢500) as maintenance monthly to be paid on or before the 30th day of the preceding month. 4. The respondent is ordered to pay the medical bills and all educational expenses of the issue of the marriage as and when they fall due. 5. The respondent is ordered to pay to the petitioner a lump sum of Fifteen Thousand Ghana cedis (15,000.00) to be paid within twelve months. 6. Each party shall bear his/her cost of the instant action. COUNSEL JEFFREY ABBEY ADAMSON FOR THE PETITIONER ABSENT THE RESPONDENT IS SELF-REPRESENTED 22 PARTIES PRESENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 23