Afari-Mintah v Amankwah (C5/01/2025) [2025] GHACC 97 (25 April 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON FRIDAY THE 25TH DAY OF APRIL, 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.), CIRCUIT COURT JUDGE SUIT NO: C5/01/2025 CLAUDIA AFARI-MINTAH 2015 DORCHESTER RD APT D9 PETITIONER BROOKLYN NEW YORK 11226 U.S.A. VRS EMMANUEL PAUL AMANKWAH H/NO. C834/4 RESPONDENT KOKOMLEMLE, ACCRA JUDGMENT INTRODUCTION The parties were married under the Marriage Ordinance on the 5th January, 2015 at the Principal Registrar of Marriages Office, Accra. Whilst the petitioner is a student, the respondent is an operations Manager. There are no issue(s) of the marriage. On the 1st of August, 2024, the petitioner filed a petition for divorce and averred that the marriage has broken down beyond reconciliation and prayed the court for the following reliefs: “WHEREFORE THE PETITIONER PRAYS THE HONOURABLE COURT AS FOLLOWS: (a). Dissolution of the marriage contracted between the parties on the 5th January, 2015. 1 (b) The parties to bear their own cost.” 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 their marriage has broken down beyond reconciliation. The relevant particulars of the petitioner’s Petition are as follows: PARTICULARS OF UNREASONABLE BEHAVIOUR “9. That the Respondent has behaved in such a manner, that the Petitioner cannot reasonably be expected to continue waiting for him as he never communicate. He did not pick Petitioner’s calls for the past seven (7) months which has caused the Petitioner much anxiety, distress, discomfort and pain.” In this case, the respondent though duly served with the petitioner’s Petition, together with setting down cause for trial, entered an appearance on the 12th August, 2024, filed a witness statement on the 29th November, 2024 but did not file any Answer to the petitioner’s Petition. SUMMARY OF EVIDENCE BY THE PETITIONER The petitioner testified through her lawful attorney Mary Afari-Mintah herself but did not call any witness. 2 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’s attorney tendered in evidence as Exhibit “A” a Power of Attorney and as Exhibit “B” the Marriage Certificate. It is further instructive to note that the respondent though duly served with hearing notices of which services were duly proved, did not appear in court to either give evidence or cross-examine the petitioner. He is therefore deemed to have waived his 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. 3 See: Repubilc vrs High Court Exparte Salloum and Others (2012) 37 MLRG 34 SC. THE PETITIONER’S ATTORNEY’S CASE The petitioner’s attorney testified that the petitioner got married to the respondent on the 5th of January, 2015 at the Principal Registrar of Marriages Office, Accra. They are no issue(s) of the marriage. According to the petitioner’s attorney, after the marriage, the parties cohabited at Accra, However, the petitioner lives in the United States of America whilst the respondent lives in Accra. It is further the evidence of the petitioner’s attorney that the parties could not live together as husband and wife due to some serious misunderstanding between them which caused the respondent to move out of the matrimonial home. She continued that the respondent has behaved in such a manner, that the petitioner cannot reasonably be expected to continue waiting for him as he never communicates with her and has also failed to pick the petitioner’s calls for the past seven (7) months which has caused the petitioner much anxiety, distress, discomfort and pain. According to the petitioner’s attorney, the respondent is wasting the time of the petitioner unnecessarily and has demonstrated by his conduct that he is no longer interested in the said marriage. As far as the petitioner’s attorney is concerned, the marriage celebrated between the petitioner and the respondent has broken down and the petitioner would never be reconciled with the respondent. The petitioner 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. ISSUE FOR DETERMINATION The main issue for determination is follows: Whether or not the marriage contracted between Claudia Afari-Mintah the petitioner herein and Emmanuel Paul Amankwah the respondent herein on the 5th of January, 2015 at the Principal Registrar of Marriages Office, Accra has broken down beyond reconciliation? 4 ANALYSIS OF THE RELEVANT SECTIONS OF THE MATRIMONIAL CAUSES ACT, 1971 (ACT 367) Before I deal with the only issue, I now wish to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely sections 1 (2), 2 (1), and 2 (3). The only ground upon which a marriage may be dissolved is where the petitioner proves that the marriage has broken down beyond reconciliation. Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides thus: “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.” 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. 5 (d) That the parties to the marriage have not lived as husband and wife for a period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, the Court may grant a petition for divorce under this paragraph despite the refusal; (e) That the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or (f) That the parties to the marriage have, after diligent effort, been unable to reconcile their differences.” Under section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367): “Although the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation.” BURDEN ON THE PETITIONER 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. 6 The Supreme Court also in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 unambiguously resolved the question of standard burden of proof. In the case of African Mining Services v Larbi [2010-2012] GLR 579, the Court held that the burden of persuasion in civil matters requires the person who has the evidential burden to discharge, to produce sufficient evidence such that a reasonable mind, such as this Court, will come to the conclusion that the existence of the fact is more probable. It is therefore the petitioner’s duty as required by law to produce the evidence of the facts in issue such that a reasonable mind, such as this Court, will come to the conclusion that from the existence of the facts, it is more probable that the marriage has broken down beyond reconciliation and that duty must be satisfactorily discharged. Furthermore, the ground upon which the petitioner seeks the dissolution of the marriage contracted between herself and the respondent is unreasonable behaviour by the respondent. ANALYSIS OF THE EVIDENCE ON RECORD ISSUE Whether or not the marriage contracted between Claudia Afari-Mintah the petitioner herein and Emmanuel Paul Amankwah the respondent herein on the 5th of January, 2015 at the Principal Registrar of Marriages Office, Accra has broken down beyond reconciliation? UNREASONABLE BEHAVIOUR BY THE RESPONDENT The petitioner in paragraph 9 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 failing to communicate with her for the past seven (7) months which has caused her much anxiety, distress, discomfort and pain. 7 Therefore the petitioner had the burden of leading cogent and credible evidence in proving the various acts of unreasonable behaviour against the respondent. This court therefore finds as a fact that the respondent indeed had behaved unreasonably towards the petitioner by failing to communicate with her for the past seven (7) months which has caused the petitioner much anxiety, distress, discomfort and pain. I must also confess that no woman, no matter how large her heart can pull along with a husband who fails to communicate with her for good seven (7) months with no just cause. The conduct of the respondent in my view falls very far short of that of a reasonable man. From the totality of the evidence on record, I find as a fact that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue to live together with him. The petitioner proved her case by the preponderance of probabilities that respondent has behaved unreasonably towards her in a way that she cannot reasonably be expected to live with him as provided under section 2 (1) (b) of the Matrimonial Causes Act, 1971 (Act 367) and this court holds same. The next question to consider is the requirement of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367) whether the marriage between the petitioner and the respondent has broken down beyond reconciliation. On a proper construction of this sub-section of the act, the court can still refuse to grant a decree even when one or more of the facts set in section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367) have been established. It is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one party that the marriage has broken down will not be enough. 8 See: Dictum of Bagnall J in the case of Ash v. Ash [1972] 1 ALL ER 582 at page 586. From the evidence on record, there is no indication that the parties are prepared or willing to cooperate once again to find a solution to their differences. The court finds that the marriage has broken down and there is no hope or reconciliation at this stage as the parties themselves have told this court and it is better for this court to dissolve this marriage so that the parties can go their separate ways and be put out of their miseries. To insist that the petitioner and the respondent continue to live together as man and wife would be turning a contract of marriage into one of slavery regardless of the psychological and emotional trauma on the parties or one of them and allowing this marriage to strive on hopelessly, helplessly, and lack of trust. This is because matrimonial causes are unique because they involve two persons who are physically, emotionally and spiritually involved with each other unlike other causes of action like land cases, contract, constitutional, chieftaincy etc. which do not involve intimacy between two people. No doubt the Bible declares the unique relationship as the two becoming one flesh. 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.” I find and hold that from the totality of the evidence on record that, the marriage contracted between the petitioner and the respondent on the 5th of January, 2015 at the Principal Registrar of Marriages Office, Accra has broken down beyond 9 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 him. 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 Claudia Afari-Mintah the petitioner herein and Emmanuel Paul Amankwah the respondent herein on the 5th of Januarys, 2015 at the Principal Registrar of Marriages Office, Accra dissolved. CONCLUSION i. The marriage solemnized on the 5th of Januarys, 2015 at the Principal Registrar of Marriages Office, Accra between Claudia Afari-Mintah the petitioner herein and Emmanuel Paul Amankwah the respondent herein with Certificate Number RGM 049/2015 and Licence Number SL 0320066 is hereby dissolved. ii. Parties are to bear their respective costs. COUNSEL PETER NII-ADJEI BLEBO FOR GEOFFREY H. QUIST FOR THE PETITIONER PRESENT PETITIONER’S ATTORNEY PRESENT RESPONDENT ABSENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 10 11