Mills-Odoi v Mills-Odoi (C5/130/2025) [2025] GHACC 100 (11 April 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON FRIDAY THE 11TH DAY OF APRIL, 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.), CIRCUIT COURT JUDGE SUIT NO: C5/130/2025 KAFUI MILLS-ODOI NO. 7 BOTI CLOSE SOUTH ODORKOR ESTATES PETITIONER AKOKOR FOTO DANSOMAN-ACCRA VRS DONALD MILLS-ODOI CANTONMENTS RESPONDENT ACCRA JUDGMENT INTRODUCTION The parties were married under the Marriage Ordinance on the 28th March 2009 at the International Central Gospel Church, Accra. Whilst the petitioner is a Development Specialist, the respondent is a Technician Engineer. There are no issue(s) of the marriage. On the 19th November 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 as follows: a. That the marriage between the petitioner and the respondent celebrated on the 28th of March, 2009 be dissolved. b. Such further orders or reliefs that this honourable Court may deem fit.’’ 1 Since this is a matrimonial cause, it is the direct provisions of the Matrimonial Causes Act, 1971 (Act 367) which should apply. Section 2 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides that: “On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into facts alleged by the petitioner and the respondent.” The facts relied on by the parties must therefore be pleaded and placed before the court; otherwise, the court cannot perform its statutory duties under the above section of this Act. The particulars set out in detail the facts relied on by the petitioner to establish the allegations that the marriage has broken down beyond reconciliation. The relevant particulars of the petitioner’s Petition are as follows: PARTICULARS OF UNREASONABLE BEHAVIOUR “i That there has been very little or no intimacy in the marriage since inception. ii. That all efforts by the petitioner to introduce the level of intimacy required as a married couple has been met with varying forms of resistance. iii. That the last time parties were intimate was about 12 years ago. 8. Petitioner says the parties are simply incompatible and therefore it will be highly impossible for them to live together as man and wife.” In this case, the respondent though duly served with the petitioner’s Petition, together with setting down cause for trial, the petitioner’s witness statement and hearing notices of which services were duly proved, did not enter appearance or file his Answer to the petitioner’s Petition. Neither did he appear in court to either give evidence or cross-examine the petitioner. He is therefore deemed to have waived his right to be heard, although there is an authority to the effect that the 2 right to be heard is an established common law principle, it is a right which should not be taken away unless the rules of court permit it to be so. See: Republic vrs High Court Exparte Salloum and Others (2012) 37 MLRG 34 SC. SUMMARY OF EVIDENCE BY THE PETITIONER The petitioner testified on oath but did not call any witness. In several decided cases, the superior courts have held that there are situations where the testimony of a single witness will suffice to prove a case. In the case of Kru vrs Saoud Bros & Sons (1975) 1 GLR 46, the Court of Appeal held: “Judicial decisions depend on the intelligence and credit and not the multiplicity of witnesses produced at the trial.” Also, in the case of Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR, the Supreme Court held affirming the position of the law that: “(a) A tribunal of facts can decide an issue on the evidence of one party. A bare assertion on oath by a single witness might in the proper circumstance of a case be enough to form the basis of a judicial interpretation. The essential thing is that the witness is credible by the standard set in section 80 (2) of the Evidence Act, 1975.” Again, in the case of Ghana Ports and Harbours Authority vrs Captain Zavi & Nova Complex Ltd (2007-2008) SCGLR 806 the Supreme Court held thus: “It is true that witnesses are weighed but not counted and that a whole host of witnesses are not needed to prove a particular point.” THE PETITIONER’S CASE 3 The petitioner testified that she got married to the respondent on the 28th March, 2009 at the International Gospel Church, Awoshie in Accra and they were issued with a marriage certificate which she tendered in evidence as exhibit “’A”. After the marriage, they cohabited at Cantonments, Aplaku-Bortianor, Bubuashie, South Odorkor and Dansoman all in Accra and they have no children between them. According to the petitioner, after the celebration of their marriage, there has been very little to no intimacy and this lack of intimacy is not due to lack of effort from her side but rather the respondent’s refusal, neglect or failure to take part in any intimate activities. It is further the evidence of the petitioner that she convinced the respondent to seek medical help and even went with him on several occasions to the medical facility with the hope that one day, they will have their own children however, to her utmost dismay, the respondent was not taking the medications prescribed for him but rather lead her on to believe that he was taking them. The petitioner continued that because of the respondent’s actions, there has been very little intimacy between them as married couple and the last time they were intimate was about 12 years ago. It is also the evidence of the petitioner that the respondent knew very much that she wanted children in the marriage and she therefore finds his actions deceitful and hurtful to the extent that she has irreparably lost trust in him and therefore cannot live with him as man and wife. Regrettably they are simply incompatible and therefore it will be highly impossible for them to live together as man and wife. The petitioner stated that the respondent is not prepared to co-operate with her for the betterment of their future and the marriage. As far as the petitioner is concerned, the marriage celebrated between them has broken down and she would never reconcile with the respondent. She would not go back to the respondent and no more diligent efforts at reconciliation would succeed. She therefore prayed the court to dissolve the marriage. ISSUE FOR DETERMINATION 4 The main issue for determination is follows: Whether or not the marriage contracted between Kafui Mills-Odoi a.k.a. Kafui Adzo Sosu the petitioner herein and Donald Mills-Odoi the respondent herein on the 28th March, 2009 at the International Gospel Church, Accra has broken down beyond reconciliation? ANALYSIS OF THE RELEVANT SECTIONS OF THE MATRIMONIAL CAUSES ACT, 1971 (ACT 367) Before I deal with the only issue, I now wish to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely sections 1 (2), 2 (1), and 2 (3). 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; 5 (c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. (d) That the parties to the marriage have not lived as husband and wife for a period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, the Court may grant a petition for divorce under this paragraph despite the refusal; (e) That the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or (f) That the parties to the marriage have, after diligent effort, been unable to reconcile their differences. 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 6 probabilities and there is no exception to it except where the issue to be resolved in the civil suit borders on criminality such as fraud and forgery. The Supreme Court also in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 unambiguously resolved the question of standard burden of proof. In the case of African Mining Services v Larbi [2010-2012] GLR 579, the Court held that the burden of persuasion in civil matters requires the person who has the evidential burden to discharge, to produce sufficient evidence such that a reasonable mind, such as this Court, will come to the conclusion that the existence of the fact is more probable. It is therefore the petitioner’s duty as required by law to produce the evidence of the facts in issue such that a reasonable mind, such as this Court, will come to the conclusion that from the existence of the facts, it is more probable that the marriage has broken down beyond reconciliation and that duty must be satisfactorily discharged. 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, she therefore has the burden of leading cogent and credible evidence in proving the various acts of unreasonable behaviour against the respondent. ANALYSIS OF THE EVIDENCE ON RECORD ISSUE Whether or not the marriage contracted between Kafui Mills-Odoi a.k.a. Kafui Adzo Sosu the petitioner herein and Donald Mills-Odoi the respondent herein on the 28th March, 2009 at the International Gospel Church, Accra has broken down beyond reconciliation? UNREASONABLE BEHAVIOUR BY THE RESPONDENT The petitioner in paragraph 7 of her Petition averred that the marriage has broken down beyond reconciliation as the respondent has behaved unreasonably towards 7 her in a way that she cannot reasonably be expected to live with him as husband and wife by: i. refusing, neglecting or failing to take part in any intimate activities for the past twelve (12) years, and ii. refusing to take his prescribed medications after visiting a medical facility for assistance knowing very well her desire to have her own children. 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 the following: 1. that the parties have had issues with intimacy and conceiving for the past twelve years, 2. that the petitioner convinced the respondent to seek medical help and even went with him on several occasions to the medical facility, and 3. that the respondent was prescribed some medications to take but he refused to take them. I must state that it was very cruel, inhumane and selfish on the part of the respondent to have refused to take his medications prescribed knowing very well the petitioner’s hope and desire to have children in the marriage. I must also confess that no woman, no matter how large her heart can pull along with a husband who is the cause of their lack of intimacy for twelve good years and inability to have children and refuses to take his medication after seeking medical help, knowing very well the wife’s efforts, hope, prayer and desire to have their own children. The conduct of the respondent in the court’s view falls very far short of that of a reasonable man. From the totality of the evidence led, I find as a fact that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to 8 continue to live together with him. This court is therefore satisfied that the respondent has behaved unreasonably towards the petitioner in a way that he 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 court is satisfied that the petitioner proved her case by the preponderance of probabilities that the respondent has behaved in such a way that she cannot reasonably be expected to live with him. 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. The court finds that the marriage has broken down and there is no hope or reconciliation at this stage as the petitioner herself has told the 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 9 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 28th March, 2009 at the International Central Gospel Church, 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 him as husband and wife. 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 Kafui Mills-Odoi a.k.a. Kafui Adzo Sosu the petitioner herein and the respondent Donald Mills-Odoi the respondent herein on the 28th March, 2009 at the International Central Gospel Church, Accra dissolved 10 CONCLUSION i. The marriage solemnized on the 28th March, 2009 at the International Central Gospel Church, Accra between Kafui Mills-Odoi a.k.a. Kafui Adzo Sosu the petitioner herein and Donald Mills-Odoi the respondent herein with Certificate Number ICGC AW53/2009 and Licence Number AMA1648/2009 is hereby dissolved. ii. No order as to cost. COUNSEL PASCAL ATTA-FYNN FOR THE PETITIONER PRESENT RESPONDENT ABSENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 11