Atteh v Danyo (C5/325/2024) [2025] GHACC 117 (2 May 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON FRIDAY THE 2ND DAY OF MAY, 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.), CIRCUIT COURT JUDGE SUIT NO: C5/325/2024 SAMUEL ATTEH HOUSE NO. D333/25 PETITIONER DARKUMAN-ACCRA VRS MONICA DANYO RESPONDENT ABLEKUMA- ACCRA JUDGMENT INTRODUCTION The parties were married under the Marriage Ordinance on the 6th May, 2022 at the Accra Metropolitan Assembly, Accra. Whilst the petitioner is a driver by profession, the respondent is a trader. On the 30th 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 (1) An Order for the Ordinance Marriage celebrated between the Parties to be dissolved as broken down beyond reconciliation. (2) An Order for custody of the sole issue of the marriage to be granted to Respondent with reasonable access to the Petitioner. (3) An Order directing the Petitioner to continue to be responsible for the maintenance and general upkeep of the sole issue. 1 (4) An Order directing Parties to be jointly responsible for the schooling and related educational expenses and medical and related health expenses of the sole issue of the marriage as and when they fall due. (5) Any further Order(s) this Honourable Court may deem fit. 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 allegations that the marriage has broken down beyond reconciliation. The relevant particulars of the petitioner’s Petition are as follows: “7. That petitioner says that the marriage between the parties has broken down beyond reconciliation due to the respondent’s unreasonable behavior towards the petitioner. PARTICULARS OF UNREASONABLE BEHAVIOUR i. Petitioner says that after the celebration of the marriage the parties cohabited in a rented accommodation at Darkuman, Accra in the Greater Accra Region of the Republic of Ghana. ii. Petitioner says that six (6) months after the celebration of the marriage he noticed a drastic change in respondent’s behaviour, which change was not for the best. iii. Petitioner avers that when the sole issue of the marriage was eight (8) months old, respondent frequently returned home very late and she exhibited a want of care and concern for the welfare of their new born baby. 2 iv. Petitioner says that when the issue was eight (8) months old the parties enrolled her in school as both were occupied with work, however, when school closes respondent was often absent and failed to pick up the infant. v. Petitioner says that on several occasions, the issue’s teacher had to bring the issue home with her and petitioner was compelled to hastily leave work to pick up the issue from her teacher’s home. vi. Petitioner avers that he was solely responsible for the care of the issue as Respondent habitually returns home late and neglects her domestic duties, including cooking for the family, attending to the issue and the general upkeep of the matrimonial home. vii. Petitioner says that on weekends Respondent typically returns home between 12:30 a.m. and 1:00 a.m. and is mostly intoxicated upon her return. viii. Petitioner avers that Respondent in preparation for her mother’s funeral stated that she needed money and out of goodwill, Petitioner secured a loan of Three Thousand Ghana Cedis (GH¢3,000.00) to assist Respondent. ix. Petitioner says that Respondent assured him that she would repay the loan immediately after the funeral as she would receive donations in kind and cash from persons attending the funeral. x. Petitioner avers that after the funeral rites were concluded at Assin Fosu, Respondent received various donations in kind and cash but failed and refused to repay petitioner the Three Thousand Ghana Cedis (GH¢3,000.00) Petitioner loaned her as previously agreed. xi. Petitioner says that during the subsistence of the marriage, he procured a container for the Respondent where Respondent used to sell foodstuffs. Petitioner adds that at one point, Respondent informed him that she was no longer interested in selling the foodstuffs in the container and as such she intended to sell the container. xii. Petitioner says that upon returning home, Respondent presented him with a Sale Agreement indicating that the container he had purchase for her was being sold for Nine Thousand Ghana Cedis (GH¢9,000.00). Petitioner further stated he duly signed the Agreement but he never received any proceeds from the sale of the 3 container although Respondent did in fact sell the container at the said amount of Nine Thousand Ghana Cedis (GH¢9,000.00). xiii. Petitioner avers that after Respondent vacated the matrimonial home with the sole issue of the marriage without his knowledge and consent Respondent later requested money for the issue’s school admission. Petitioner says he informed her that she should use the proceeds from the sale of the container for the issue’s admission and if additional funds were required, petitioner would contribute accordingly. xiv. Petitioner avers that Respondent has failed and refused to inform him of the school where the sole issue is currently enrolled. Furthermore, Respondent has failed and refused to provide any proof that the sole issue has been admitted to any school. xv. Petitioner says that Respondent has been bringing the sole issue to him and he has observed that on days when the issue is supposed to be in school the sole issue is with him and this observation has further heightened petitioner’s suspicion that the sole issue of the marriage has not been enrolled in any school. 8. Petitioner avers that Respondent has committed adultery and as a result of the adultery petitioner finds it intolerable to continue to live with respondent as husband and wife under one roof. PARTICULARS OF ADULTERY i. Petitioner says that during the subsistence of the marriage, Respondent engaged in series of adulterous acts with numerous men. The petitioner can specifically identify approximately eight (8) men with whom he suspects the Respondent has committed such acts. ii. Petitioner says that he has consistently endeavoured to ensure the wellbeing of the Respondent and the sole issue of the marriage. However, Petitioner asserts that after going through Respondent’s messages, he has frequently observed Respondent soliciting for money from other men. iii. Petitioner further avers that Respondent once solicited for money from a man named Fred to rent a place of her own. 4 iv. Petitioner says that he captured screenshots of some of the messages exchanged between Respondent and other men and sent them to Respondent’s father to demonstrate that his allegations against Respondent are not frivolous.” SUMMARY OF EVIDENCE BY THE PETITIONER The petitioner testified himself 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: “(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 as Exhibit “A”, the Marriage Certificate, photocopies of mobile money transactions and receipts evidencing payment of 5 maintenance and school fees for the sole issue of the marriage as exhibits “B” series and “C” respectively. In this case, the respondent though duly served with the petitioner’s Petition, witness statement 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: Repubilc vrs High Court Exparte Salloum and Others (2012) 37 MLRG 34 SC. THE PETITIONER’S CASE The petitioner testified to the effect that he got married to the respondent on the 6th May, 2022 at the Accra Metropolitan Assembly, Accra. After the marriage, they cohabited in a rented accommodation at Darkuman until the respondent vacated from the matrimonial home and has since not returned. They have one issue of the marriage namely Susana Narh. It is the case of the petitioner that the marriage has broken down beyond reconciliation due to the respondent’s unreasonable behaviour towards him from the inception of the marriage to date. It is his case that six (6) months after the celebration of the marriage, he noticed a drastic change in the respondent’s behaviour, which was not for the best. Just when the sole issue of the marriage turned eight (8) months, the respondent frequently returned home very late and she exhibited a want of care and concern for the welfare of their baby. In furtherance to the above, when the issue turned eight (8) months, they had no 6 choice than to enroll her in a crèche as both of them were occupied with work however, when school closed, the respondent was often absent and failed to pick up their child. On countless occasions, the sole issues’ teacher was forced to take the issue home with her and he was compelled to hastily leave work to pick up the issue from her teacher’s home as the respondent who had the responsibility of picking up the issue from crèche did not do so. It is further the evidence of the petitioner that he has been solely responsible for the care of the issue of the marriage as the respondent habitually returns home late and neglects her domestic duties including cooking for the family, attending to the issue of the marriage and the general upkeep of the matrimonial home. One weekend, the respondent typically returned home between 12:30 a.m. to 1:00 a.m. intoxicated. The respondent in preparation for her mother’s funeral stated that she needed money and he secured a loan of Three Thousand Ghana Cedis (GH¢3,000) to assist her with the assurance that she would repay the loan immediately after the funeral as she would receive donations in kind and cash from person’s attending the funeral but after the funeral rites were concluded at Assin Fosu, the respondent failed to repay the loan as previously agreed after receiving various donations in kind and cash. During the subsistence of the marriage, he procured a container for the respondent to sell foodstuffs in. Subsequently, the respondent informed him that she was no longer interested in selling the foodstuffs in the container and as such she intended to sell the container. One day when he returned home from work, the respondent presented him with a sale agreement indicating that the container he purchased for her was being sold at Nine Thousand Ghana cedis (GH¢9,000). He duly executed the agreement but to date, he has not received the proceeds from the sale of the container even though the respondent confirmed that she sold it for Nine Thousand Ghana cedis (GH¢9,000.00). The respondent vacated the matrimonial home with their child without his knowledge and consent. Subsequently, the respondent requested for money from him to use same to enroll their child in a new school and he told her that she should use the proceeds from 7 the sale of the container to pay the child’s admission fee and that if additional funds were required, he would contribute accordingly. During that period the respondent failed and refused to inform him of the school she enrolled their child in and she also failed and refused to provide any proof that their child has been admitted to any school for that matter. The respondent was in the habit of bringing their child to him not just on weekends but also on weekdays that the child was expected to be at day care and this arrangement further heightened his suspicion that their child was not enrolled in school. It is also the evidence of the petitioner that the respondent has committed adultery and as a result of the adultery he cannot continue to live with her as husband and wife under one roof. During the subsistence of their marriage, the respondent engaged in series of adulterous acts with numerous men of which he can specifically identify approximately eight (8) men with whom he suspects the respondent has committed adultery with. He has consistently endeavoured to ensure the wellbeing of the respondent and their daughter. However, after going through the respondent’s messages, he frequently observed respondent soliciting for money from other men. The respondent once solicited for money from a man named Fred to rent a place of her own. Since the 6th September, 2023 to date, he and the respondent have not cohabited as husband and wife, nor have they engaged in any form of sexual intimacy. Prior to the respondent packing all her belongings and finally vacating their matrimonial home, she was in the habit of going away from the home for two (2) to three (3) days and returning as and when she pleases. According to the petitioner, several attempts have been made by their respective family to persuade the respondent to return to their matrimonial home so that they can continue to live together as husband and wife. However, all such attempts have proved futile as his wife has consistently expressed a lack of interest in their marriage. On the 20th September, 2023 the respondent was invited for mediation at the offices of the Legal Aid Commission in Accra, with the aim of facilitating 8 reconciliation and resolving their marital differences. However, the respondent reiterated her stance by expressing her lack of interest in continuing with the marriage and she insisted on them getting divorce. The petitioner stated that the respondent’s conduct has caused him so much pain, worry, emotional and psychological trauma and as such he cannot reasonably be expected to remain married to her. 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. ISSUES FOR DETERMINATION The main issues for determination are as follows: 1. Whether or not the marriage contracted between Samuel Atteh the petitioner herein and Monica Danyo the respondent herein on the 6th May, 2022 at the Accra Metropolitan Assembly, Accra has broken down beyond reconciliation? 2. Whether or not custody of the only issue of the marriage namely Susana Narh can be granted to the respondent with reasonable access to the petitioner? 3. Whether or not the petitioner can be compelled to pay a monthly allowance for the maintenance and upkeep of the only issue of the marriage, pay her school fees and all other expenses associated with her education and pay her medical bills as and when they fall due? ANALYSIS OF THE RELEVANT SECTIONS OF THE MATRIMONIAL CAUSES ACT, 1971 (ACT 367) Before I deal with the issues, 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. 9 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 section 2 (1) 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 10 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 It is a general principle of law that he who asserts must prove. This general principle has been given both statutory expressions at section, 10 (1) and (4) of the Evidence Act, 1975 (NRCD 323), and judicial pronouncements. In the case of Ababio v. Akwasi 111 (1995) 2 GBR 774, the Court held that: “The general principle of law is that it is the duty of the plaintiff to prove his case, i.e. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of the case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins: if not he loses on that particular issue.” See also: Bisi v Tabiri [1987-1988] I GLR 360 Ackah v. Pergah Transport Limited & Others [2010] SCGLR 732. 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 11 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 his marriage has broken down beyond reconciliation and that duty must be satisfactorily discharged. Furthermore, the grounds upon which the petitioner herein seeks the dissolution of the marriage contracted between himself and the respondent are unreasonable behaviour and adultery. Therefore, the onus is on him to lead cogent and credible evidence in proof of his allegations. ANALYSIS OF THE EVIDENCE ON RECORD ISSUE ONE Whether or not the marriage contracted between Samuel Atteh the petitioner herein and Monica Danyo the respondent herein on the 6th May, 2022 at the Accra Metropolitan Assembly, Accra has broken down beyond reconciliation? A. UNREASONABLE BEHAVIOUR BY THE RESPONDENT 12 The petitioner in paragraphs 7 of his Petition averred that 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) returning home very late when the sole issue of the marriage turned eight (8) months, thereby exhibiting a want of care and concern for the welfare of their baby, (ii) failing to pick up the only issue of the marriage from school; (iii) saddling him with the sole responsibility of caring for the issue of the marriage as the respondent returned home late, (iv) neglecting her domestic duties including cooking for the family, attending to the issue of the marriage and the general upkeep of the matrimonial home, (v) selling the container which he procured for her during the subsistence of the marriage to sell foodstuffs in at Nine Thousand Ghana cedis (GH¢9,000.00) and keeping the proceeds to herself, (vi) refusing to refund the loan of three thousand Ghana cedis (GH¢3,000.00) which he procured for her to help her in organizing her mother’s funeral at Assin Fosu after receiving donations in kind and cash from person’s who attended the funeral, (vii) vacating the matrimonial home with their child without his knowledge and consent and (viii) refusing to inform him of the school she enrolled their child in after vacating the matrimonial home. From the totality of the evidence on record, this court finds as a fact that the respondent indeed has behaved unreasonably towards the petitioner by failing to pick up the only issue of the marriage from school, saddling the petitioner with the sole responsibility of caring for the issue of the marriage as she returned home late, neglecting her domestic duties including cooking for the family, attending to the 13 issue of the marriage and the general upkeep of the matrimonial home, selling the container which the petitioner procured for her during the subsistence of the marriage to sell foodstuffs in at Nine Thousand Ghana cedis (GH¢9,000.00) and keeping the proceeds to herself, refusing to refund the loan of Three Thousand Ghana cedis (GH¢3,000.00) which the petitioner procured for her to help her in organizing her mother’s funeral at Assin Fosu after receiving donations in kind and cash from person’s who attended the funeral, vacating the matrimonial home with their child without the petitioner’s knowledge and consent and refusing to inform the petitioner of the school she enrolled their child in after vacating the matrimonial home. As indicated supra, the respondent though duly served with the petitioner’s Petition, together with setting down cause for trial, the witness statement of the petitioner 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. This also goes to show that the respondent is indeed, an unreasonable woman. I must also confess that no man, no matter how large his heart can pull along with a wife who fails to pick up their child from school, saddles him with the sole responsibility of caring for the issue of the marriage as she returned home late, neglects her domestic duties including cooking for the family, attending to the issue of the marriage and the general upkeep of the matrimonial home, sells the container which he procured for her during the subsistence of the marriage to sell foodstuffs in at Nine Thousand Ghana cedis (GH¢9,000.00) and keeps the proceeds to herself, refuses to refund the loan of three thousand Ghana cedis (GH¢3,000.00) which he procured for her to help her in organizing her mother’s funeral at Assin Fosu after receiving donations in kind and cash from person’s who attended the funeral, vacates the matrimonial home with their child without his knowledge and consent; and refuses to inform him of the school she enrolled their child in after 14 vacating the matrimonial home. The conduct of the respondent in my view falls very far short of that of a reasonable woman. 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 her as husband and wife. The petitioner proved his case by the preponderance of probabilities that the respondent has behaved unreasonably towards him in a way that he cannot reasonably be expected to live with her as provided under section 2 (1) (b) of the Matrimonial Causes Act, 1971 (Act 367) and this court holds same. B. ADULTERY BY THE RESPONDENT The petitioner alleged that the respondent has committed adultery and as a result he finds it intolerable to live with her. The onus is therefore on the petitioner to prove that the respondent has committed adultery. The petitioner testified that during the subsistence of their marriage, the respondent engaged in series of adulterous acts with numerous men of which he can specifically identify approximately eight (8) men with whom he suspects the respondent had committed adultery with. It is further the evidence of the petitioner that he has consistently endeavoured to ensure the wellbeing of the respondent and their daughter. However, after going through the respondent’s messages, he frequently observed respondent soliciting for money from other men. He continued that the respondent once solicited for money from a man named Fred to rent a place of her own. 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 15 Another vs. Adjetey (1973) 1 GLR 216 Holding 1, same must be proved to the satisfaction of the court. 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 his Petition failed to lead a shred of evidence to support his 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 and I seek to demonstrate why. Firstly, the petitioner stated that the respondent engaged in series of adulterous acts with numerous men of which he can specifically identify approximately eight (8) men with whom he suspects the respondent had committed adultery with. He used the word suspect which means that he had the idea or the impression of the existence, presence, or truth of the respondent engaging in series of adulterous acts with numerous men without certain proof. He was just suspicious and a multitude of suspicion does not lead to proof. 16 Secondly, the petitioner testified that after going through the respondent’s messages, he frequently observed respondent soliciting for money from other men. He continued that the respondent once solicited for money from a man named Fred to rent a place of her own. It is instructive to note that the fact that the respondent was allegedly soliciting for money from men including one Fred does not any way suggest that she has committed adultery with them. 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 his 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. 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 Ghana Ltd (2007) 11 MLRG 141 SC. Therefore the petitioner’s evidence with respect to the allegation of adultery by the respondent was really incredible and full of untruths and inconsistencies. 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 he finds it intolerable to live with her. 17 The petitioner’s charge of adultery 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 committed adultery so that the marriage could be dissolved. No doubt he failed to lead any evidence to the effect that he caught the respondent making love to Mr. Fred or the other men or found the respondent and Mr. Fred or the other men in a compromising position. 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, the parties to the marriage have not lived together as husband and wife since 6th September, 2023 to date. There is therefore 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 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 18 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 petitioner’s failure to prove his wild allegation of adultery 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 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. I find and hold that from the totality of the evidence on record that, the marriage contracted between Samuel Atteh the petitioner herein and Monica Danyo the respondent herein on the 6th May, 2022 at the Accra Metropolitan Assembly, Accra has broken down beyond reconciliation and the justification is that from the evidence the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with her. 19 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. I hereby declare the marriage contracted between Samuel Atteh the petitioner herein and Monica Danyo the respondent herein on the 6th May, 2022 at the Accra Metropolitan Assembly, Accra dissolved. ISSUE TWO (2) Whether or not custody of the only issue of the marriage namely Susana Narh can be granted to the respondent with reasonable access to the petitioner? I will now consider the statutory provisions relating to the custody of a child and also look at relevant case laws enunciated in same. Section 3 of the Matrimonial Causes Act, 1971 (Act 367) states that: “(3) Without prejudice to the generality of subsection (2), an order under that subsection may; (a) Award custody of the child to any person (b) Regulate the right of access of any person to the child…” Section 2 (1) of the Children’s Act, 1998 (Act 560) provides as follows: “2(1) The best interest of the child shall be paramount in a matter concerning a child. (2) The best interest of the child shall be the primary consideration by a Court, person, an institution or anybody in a matter concerned with a child.” See also: Braun v Mallet [1975] 1GLR 81-95 20 Fink v Coelho [1999-2000] 2GLR 166 In the case of In Re Dankwa [1961] 1 GLR 352, Ollenu J. (as he then was) held: “At common law a father is the natural guardian of his infant child and prima facie has a right to custody even against its mother, the rule could not be interfered with except in very special circumstances. Children of tender years should normally be with their mother…” In the aforementioned case, it was also held that the child has adapted herself to her environment and was happy; and it was therefore not in her best interest to subject her to another change of environment and at association by making the order sought. See: Asem vrs Asem [1968] I GLR 1146 CA. The petitioner prayed the court to grant custody of the sole issue of the marriage to the respondent with reasonable access to him. In the instant case however, the paramount consideration is the welfare of the children firstly and secondly, the crucial question for consideration is which of the parties were better suited to be entrusted with the upbringing of the children. Furthermore, the parties must put their differences aside in the best interest of the child and not visit their sins on the innocent child. The role of the father in the upbringing of the child is crucial. He influences the child in unique ways. A child has the right to a relationship with both her parents. It is clear from the evidence on record, that the sole issue of the marriage has also been living with the respondent ever since the respondent vacated from the matrimonial. Susana Narh has adapted herself to her environment and was happy; 21 and it was therefore not in her best interest to subject her to another change of environment. Being a child of tender years, she should be with her mother. Considering the totality of the evidence on record, the best interest and welfare of the only issue of the marriage, I hereby make the following orders: i. Custody of the only issue of the marriage namely Susana Narh is accordingly granted to the respondent with reasonable access to the petitioner. ii. The petitioner shall have access to Susana Narh on weekends fortnightly and for the first half of every holiday and vacation with two (2) days prior notice to the respondent. iii. The respondent shall allow the petitioner to communicate with Susana Narh via phone calls and WhatsApp video calls whenever the child and/or the petitioner desire. ISSUE THREE Whether or not the petitioner can be compelled to pay a monthly allowance for the maintenance and upkeep of the only issue of the marriage, pay her school fees and all other expenses associated with her education and pay her medical bills as and when they fall due? Under section 6 of the Children’s Act, 1998 (Act 560): “6 (1) No parent shall deprive a child of his welfare whether- (a) The parents of the child are married or not at the time of the child’s birth, or (b) The parents of the child continue to live together or not. 6 (3) Every parent has the rights and responsibilities whether imposed by law or otherwise towards his child which include the duty to – 22 (c) Provide good guidance, care, assistance and maintenance for the child and assurance of the child’s survival and development. (d) except where the parent has surrendered his rights and responsibilities in accordance with law.” Section 47 of the children’s Act, 1998 (Act 560) provides that: “47. (1) A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, basic education and reasonable shelter for the child.” Section 49 of the Children’s Act 1998 (Act 560) enjoins the court in making maintenance orders to consider: “49. When making a maintenance order, a family tribunal shall consider: (a) the income and wealth of both parents of the child or of the person legally liable to maintain the child, (b) an impairment of the earning capacity of the person with a duty to maintain the child, (c) the financial responsibility of that person with respect to the maintenance of other children, (d) the cost of living in the area where the child is resident, (e) the rights of the child under this Act, and 23 (f) any other matter which the family tribunal considers relevant.” The petitioner in his petition for divorce prayed the court for an order directing him to continue to be responsible for the maintenance and upkeep of the sole issue of the marriage and also an order directing the respondent and himself to be jointly responsible for the schooling and related educational expenses and medical and related health expenses of the sole issue of the marriage as and when they fell due. He also testified that on the 20th of September, 2023, he and the respondent were invited for mediation at the offices of the Legal Aid Commission in Accra and during the mediation session, it was agreed that he would provide financial assistance for the benefit of their daughter and he has diligently fulfilled this obligation up to date. This court has also taken note of the fact that per Exhibits “B” series and “C” which were proof of two hundred Ghana cedis (GH¢200.00) made by the petitioner through mobile money to the respondent and payment of the child’s school, feeding and examination fees of seven hundred and eighty-five Ghana cedis (GH¢785.00) by the petitioner to the child’s school and maintenance fees. The parties are duty-bound to provide good guidance, care, assistance, and maintenance for the child of the marriage, and assurance of the child’s survival and development as stipulated under section 6 (3) and (6) of the Children’s Act, 1998, (Act 560). The petitioner as the father of the child is under a duty to ensure that the welfare of the child is not deprived. In the case of Adjei & Anor v Rupley [1956] 1 WALR 62, it was held that: “(ii) By native custom throughout the Gold Coast a father is primarily responsible for the maintenance of his children.” 24 However, the welfare and upbringing of the child cannot be put solely on the petitioner. It is a shared responsibility and the respondent ought to contribute towards same. It is the opinion of this court that considering the cost of living in Accra and the rising rates of inflation every month in this country: i. The petitioner is ordered to maintain his child with four hundred Ghana cedis (GH₵400.00) every month effective May, 2025. ii. The respondent shall furnish the petitioner with details of the child’s school, fees, feeding fees, and cost of textbooks. iii. The petitioner shall contact the child’s school and make payments of the fees, feeding fees and cost of textbooks. iv. The petitioner shall pay the child’s medical bills as and when they fall due. v. The respondent shall also buy clothes and shoes for the child. CONCLUSION 1. The marriage solemnized on the 6th May, 2022 at the Accra Metropolitan Assembly between Samuel Atteh the petitioner herein and Monica Danyo the respondent herein, Accra with certificate number 0673/MC/2022 and licence number AMA 102200975/2022 is dissolved. 2. Custody of the only issue of the marriage namely Susana Narh is accordingly granted to the respondent with reasonable access to the petitioner. 3. The petitioner shall have access to Susana Narh on weekends fortnightly and for the first half of every holiday and vacation with two (2) days prior notice to the respondent. 25 4. The respondent shall allow the petitioner to communicate with Susana Narh via phone calls and WhatsApp video calls whenever the child and/or the petitioner desire. 5. The petitioner is ordered to maintain the only issue of the marriage with four hundred Ghana cedis (GH₵400.00) every month effective May, 2025. 6. The respondent shall furnish the petitioner with details of the child’s school, fees, feeding fees, and cost of textbooks. 7. The petitioner shall contact the child’s school and make payments of the fees, feeding fees and cost of textbooks. 8. The petitioner shall pay the child’s medical bills as and when they fall due. 9. The respondent shall also buy clothes and shoes for the child. 10. No order as to cost. COUNSEL JANE DEDE SENAM TACHIE-MENSON FOR THE PETITIONER PRESENT PETITIONER PRESENT RESPONDENT ABSENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 26 27