Arhin v Arhin (C5/19/2024) [2025] GHACC 66 (21 March 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 21ST DAY OF MARCH, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/19/2024 CHARLOTTE ARHIN --------------- PETITIONER H/N0. 17 NECTARINE STREET DOME, ACCRA VRS DANIEL ARHIN --------------- RESPONDENT H/NO. 31A COFFEE STREET TESHIE NUNGUA ESTATE ACCRA PARTIES: PETITIONER PRESENT RESPONDENT ABSENT COUNSEL: DAVID OBENG-MENSAH, ESQ. FOR PETITIONER PRESENT JOEL ANNOR-AFARI, ESQ. FOR RESPONDENT ABSENT Charlotte Arhin v. Daniel Arhin Page 1 of 18 JUDGMENT FACTS The parties got married under Ordinance Cap. 127, on 24th November 2012, at the United Church, Teshie - Accra. There are four issues of the marriage. On the 16th day of April 2024, the Petitioner filed the instant petition which was amended pursuant to leave of this Court. The Petitioner filed the amended petition on 18th June 2024 on grounds that the marriage between herself and the Respondent has broken down beyond reconciliation as a result of the unreasonable behaviour of the Respondent. She prayed the Court for the following reliefs; 1. The dissolution of the marriage contracted on the 24th day of November, 2012. 2. Custody of the children be given to Petitioner with reasonable access to Respondent. 3. Monthly maintenance of GHS8,000.00, subject to upward reviews, every year from the date of judgment as well pay medical bills and all educational expenses of the children/issues herein, as and when it falls due. 4. An order for the Respondent to pay the Petitioner a lump sum of Two Hundred Thousand Ghana cedis (GHS200,000.00) as financial settlement or provision. 5. That the Dodge Dart car with registration number GE-946-19 be settled in favour of the Petitioner. 6. Any further order(s) the Honourable Court may deem fit. 7. Costs. Charlotte Arhin v. Daniel Arhin Page 2 of 18 In his amended answer and cross petition, the Respondent denied the allegations of unreasonable behaviour, and stated the marriage has not broken down beyond reconciliation and can be salvaged if the Petitioner cooperates with the Respondent and her own counsel of choice from whom the parties have been receiving help. The Respondent however cross petitioned as follows; a. That the marriage between the parties has not broken down beyond reconciliation. Or in the alternative, if the Court grants the Petitioner’s prayer for divorce, then custody of the four children of the marriage be granted to the Respondent with reasonable access to the Petitioner. b. Each party bear their costs. At setting down for trial stage, the parties were ordered to file their respective witness statements which the Petitioner complied with. However, the Respondent failed to file his witness statement even after the Court gave him an extension of time to do so upon his lawyer’s request. Notwithstanding several hearing notices that were served on the Respondent, neither the Respondent nor his lawyer subsequently attended Court for the hearing; and also, for his evidence to even be taken orally by the Court, and for him to partake in the hearing. Order 38 rule 1 subrule 2(a) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides that: “(2) Where an action is called for trial and a party fails to attend, the trial Judge may (a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim” Charlotte Arhin v. Daniel Arhin Page 3 of 18 The Respondent having failed to attend Court for the hearing of the petition notwithstanding being duly served; and relying on the above authority; the Court dismissed his cross petition and commenced the hearing without the Respondent. It is trite learning that being a divorce petition, as provided in section 2(3) of the Matrimonial Causes Act, 1971 (Act 367), 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. THE EVIDENCE OF THE PETITIONER In her evidence to the Court, the Petitioner testified among others that she is an Accounting Officer with ADNA Biologics Ltd and the Respondent is a Principal Banker with Letshego Ghana Savings & Loans. That on 24th November 2012 at the Methodist Church, Teshie Nungua Estate, she lawfully got married to the Respondent under the Marriages Act, 1884-1985 (CAP 127). She tendered in evidence a copy of the Marriage Certificate as ‘exhibit ‘A’. The Petitioner continued that after the said marriage, she cohabited with the Respondent at Teshie Nungua Estate in his father's house till she left the matrimonial home sometime in April 2023. That there are four (4) issues to the marriage namely Mac Yanni Arhin (11 years), Elyon Arhin (9 years), Daniel Agyirey Arhin (5 years) and Eoin Arhin (3 years). That during the subsistence of the marriage, the rash and unreasonable behavior of the Respondent has put not just her but also her children through a lot of emotional and psychological trauma. That the Respondent since the celebration of the marriage has treated her cruelly by subjecting her to years of verbal and emotional abuse. That the Charlotte Arhin v. Daniel Arhin Page 4 of 18 Respondent has exhibited such gross disrespect towards her family especially her mother who heeded her plea for assistance when she was pregnant with their first child but was later reluctant to assist her during subsequent pregnancies because of the Respondent's unruly and violent behavior. That even during periods that she was heavily pregnant, the Respondent did not assist her or get someone to assist her with chores in the house, but rather compelled her to perform all duties in the house including cooking for him, taking care of the children as well as attending to her pregnancy all by herself. That throughout the marriage, she has been a loving wife and a caring mother; and has assisted the Respondent in every possible way that a loving and committed wife will do. She tendered in evidence exhibit ‘B’ being to that effect that she assisted the Respondent financially. According to the Petitioner, she has been solely responsible for the upkeep of the house and payment of the children's school fees. The Petitioner also tendered exhibit ‘C’ as evidence that she caused her older brother to assist the Respondent in his business. She further testified that the Respondent on various occasions threatens to remove her from their matrimonial home without any provocation and justification. That on 10th April 2023, the Respondent forced her out of the house and did not allow her to take the children with her; and that she has have been living in a house belonging to her brother till date. She tendered exhibit ‘D’ to that effect. That after leaving the matrimonial home, she made all efforts to allow the children in her possession speak to the Respondent on the phone whenever he wanted to, but the Respondent started using the opportunity to harass, intimidate and threaten her compelling her to deny him that opportunity until this honourable Court made satisfactory orders to regulate his access to the children in her care. Charlotte Arhin v. Daniel Arhin Page 5 of 18 That the Respondent is actively working as a Principal Banker at Letshego Savings & Loans Ghana and earns substantially good income but has totally neglected the children in her care forcing her to be solely responsible for their upkeep including feeding as well as their school fees and all necessaries of life since leaving the matrimonial home. That she had to borrow from her friends in order to pay the school fees of the younger children in her care as the Respondent decided to neglect them and cater for their basic needs. She tendered exhibit ‘E series’ to that effect. That the separation of the children is affecting them and exhibit ‘F’ was tendered in that regard. That the Respondent bought a Dodge Dart car with registration number GE-946-19 and gave it to her to assist in their transportation but took it back in March 2024 and has refused to return it. That several attempts at reconciliation have not been successful. That the marriage has broken down beyond reconciliation and she can no longer reasonably be expected to live with the Respondent. She prayed this Honourable Court to dissolve the marriage between her and the Respondent and grant her custody of all her young children as they are in their early developmental years and require their biological mother to properly care for them. The Petitioner did not call witness and thereafter closed her case. Let me put it on record again that the Respondent as stated supra failed to file his witness statement or attend Court to give his evidence viva voca to the petition for divorce and also to partake in the hearing of the petition although he was duly served with hearing notices. Order 1 rule 1 subrule 2 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides that: Charlotte Arhin v. Daniel Arhin Page 6 of 18 “These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.” Order 37 rule 2 of C.I. 47 on the duty to avoid delay provides that: “It is the duty of the parties, their lawyers and the Court to avoid all unnecessary adjournments and other delays, and to ensure that causes or matters are disposed of as speedily as the justice of the case permits.” Sophia Akuffo JSC (as she then was) reiterated the above principles in the case of Republic v. High Court, Koforidua; Ex parte Eastern Regional Development Corporation [2003- 2004] SCGLR 21 where she said: “… in its remedial or practical character, the rules of procedure should serve the purpose of facilitating the sound management of litigation and process efficiency. It is these basic characteristics of civil procedure rules that facilitate the realization of the overall objective of the judiciary which is to assure access to justice for all...” A party has himself or herself to blame for failing to attend Court. In the case of Republic v. Court of Appeal, Accra Ex Parte East Dadekotopon Development Trust, Civil Motion No J5/39/2015, dated 30- 07-15, SC unreported, it was held that: “There could not be a breach of the rules of the audi alteram partem rule, when it is clear from the facts that sufficient opportunity was given to a party and was abused by him”. Charlotte Arhin v. Daniel Arhin Page 7 of 18 From the foregoing reasons and relying on the above authorities, this Court closed the hearing; and set a date for judgment having given the Respondent ample time and opportunity to attend Court but he failed to do so. Again, there is proof of service of hearing notice on the Respondent for the judgment but he did not attend Court. LEGAL ISSUES 1. Whether or not the marriage celebrated between the Petitioner and the Respondent has broken down beyond reconciliation. 2. Whether or not custody of the children be given to Petitioner with reasonable access to Respondent. 3. Whether or not an order of maintenance of GHS8,000.00 be given in respect of the children. 4. Whether or not the Respondent be ordered to pay the Petitioner a lump sum of GHS200,000.00 as financial settlement or provision. 5. Whether or not the Dodge Dart car with registration number GE-946-19 be settled in favour of the Petitioner. BURDEN AND STANDARD OF PROOF In every civil case, the general rule is that the burden of proof rests upon the party, whether Petitioner or Respondent, who substantially asserts the affirmative of his or her case. In the case of Adwubeng v. Domfeh [1996-97] SCGLR 660, the Supreme Court held that in all civil actions, the standard of proof is proof by preponderance of probabilities, and there is no exception to that rule. Charlotte Arhin v. Daniel Arhin Page 8 of 18 In the case of Lamptey alias Nkpa v. Fanyie & Others [1989-90] 1 GLR 286, the Supreme Court held that: “On general principles, it was the duty of a plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the defendant to lead sufficient evidence to tip the scale in his favour”. This is clearly covered in section 14 of the Evidence Act, 1975 (NRCD 323). Section 11(4) of the Evidence Act explains the burden of proof in civil cases as follows: “In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”. The standard of proof as stated therefore applies to a petition for divorce. See Happee v. Happee [1971] 1 GLR 104. Thus, the burden is on the Petitioner to prove the facts alleged to establish the breakdown of the marriage. ANALYSIS I shall now analyse and evaluate the evidence adduced by the Petitioner in support of her case within the context of the burden of proof and the prescribed standard of proof provided under the Evidence Act, 1975 (NRCD 323) to resolve the issues. 1. Whether or not the marriage celebrated between the Petitioner and the Respondent has broken down beyond reconciliation. Sections 1(2), 2(1) and (3) of the Matrimonial Causes Act, 1971 (Act 367) provide as follows: Charlotte Arhin v. Daniel Arhin Page 9 of 18 "1(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 2(1) For the purpose of showing that the marriage has broken down beyond reconciliation the Petitioner shall satisfy the Court of one or more of the following facts:- ... (a) that the Respondent has committed adultery and that 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 continuous 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, and where the Court is satisfied that it has been so 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. (3) notwithstanding that 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." Charlotte Arhin v. Daniel Arhin Page 10 of 18 From the evidence on record, the Petitioner stated that the Respondent has treated her cruelly by subjecting her to years of verbal and emotional abuse. That the Respondent has exhibited such gross disrespect towards her family especially her mother. That the Respondent forced her out of their matrimonial home. That the Respondent has neglected the children in her care forcing her to be solely responsible for their upkeep including feeding as well as their school fees and all necessaries of life since leaving the matrimonial home. The Respondent in his amended answer to the petition denied the allegations by the Petitioner. The Petitioner subsequently joined issues with the Respondent on his amended answer. However, the Respondent failed to give evidence in support of his answer. From the evidence on record as adduced by the Petitioner, it can be gathered that the Petitioner left the matrimonial home after she had a misunderstanding with the Respondent and the Respondent indicated that he felt disrespected when Petitioner refused to sweep and further threatened to leave. Therefore, the Respondent asked her to leave immediately. Clearly from the evidence on record, the parties had issue on who to sweep. This created a misunderstanding between them which made the Respondent ask the Petitioner to leave immediately. There is no sufficient evidence on why the parties had issue on sweeping as both of them ordinarily should be able to sweep. From the entire evidence on record, and given that the Respondent did not give evidence in support of his answer to the petition, I find that the Petitioner did what was required from her as a wife but due to the irreconcilable differences between the parties, they could not live as husband and wife as this resulted in their separation prior to the presentation of the instant petition. Charlotte Arhin v. Daniel Arhin Page 11 of 18 In Knudsen v. Knudsen [1976] 1 GLR 204 CA, the Court of Appeal per Amissah JA stated as follows: “… Of course, in a state of affairs where the duty is placed upon the Petitioner to show that the marriage has broken down beyond reconciliation, common prudence indicates that attempts at reconciliation be made whenever possible and that where such attempts have been made without success evidence of these be given to help the Court arrive at the desired conclusion.” The Petitioner led evidence to the effect that countless attempts at reconciliation by their professional counsellor as well as family members proved futile. Having regard to the evidence on record, I find that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Consequently, I find that the marriage between the Petitioner and the Respondent has broken down beyond reconciliation. 2. Whether or not custody of the children be given to Petitioner with reasonable access to Respondent. By section 22 of Act 367, where there is a proceeding under the said Act, the Court must enquire whether or not there are children in the marriage, then the Court may, either on its own initiative or on application by a party to proceedings under this Act, make an order concerning the child of the household which it thinks reasonable and for the benefit of the child. Section 2(1) of the Children’s Act, 1998 (Act 560) provides that the best interest of the child shall be paramount in any matter concerning a child. Charlotte Arhin v. Daniel Arhin Page 12 of 18 Section 2(2) of Act 560 lends support to the above stated law by specifying that the best interest of the child shall be the primary consideration by any Court, person, institution or other body in any matter concerned with a child. The welfare principle is restated in section 18(2) of the Courts Act, Act 459 as amended by Act 620. It is to the effect that the welfare of the infant shall be the primary consideration of the Court in the exercise of its powers under this section. On the above issue, the parties executed terms of agreement when they were referred to the Court Connected Alternative Dispute Resolution (CCADR) center and the said agreement was adopted by the Court. In view of the above authorities; and in the best interest of the children of the marriage, the status quo shall remain and the agreement reached by the parties shall be maintained by the Court on the issue of custody and access. 3. Whether or not an order of maintenance of GHS8,000.00 be given in respect of the children. It is trite learning that it is the responsibility of both parents to cater for their infant children. Section 22(3)(c) of Act 367, grants the Courts power to award maintenance and provide for the education of a child out of the income or property of either or both parties. Section 47(1) of Act 560 specifies that 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, education and reasonable shelter for the child. According to section 48(1) of Act 560, the following persons who have custody of a child may apply to a Family Tribunal for a maintenance order for the child: a parent of the child; the guardian of the child; or any other person. Section 48(3) of Act 560 provides Charlotte Arhin v. Daniel Arhin Page 13 of 18 that the application for maintenance may be made against any person who is liable to maintain the child or contribute towards the maintenance of the child. Section 49 of Act 560 is to the effect that a Family Tribunal shall consider certain things when making a maintenance order. They are: a. the income and wealth of both parents of the child or of the person legally liable to maintain the child; b. any impairment of the earning capacity of the person with a duty to maintain the child; c. the financial responsibility of the 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 f. any other matter which the Family Tribunal considers relevant. According to section 51(2) of Act 560, a Family Tribunal may order a periodic payment or lump sum payment for the maintenance of a child and the earnings or property of the person liable may be attached. Pursuant to section 51(4) of Act 560, when considering an application for maintenance, a Family Tribunal may make a maintenance order which it considers reasonable for any child in the household. See also: Section 16 of Act 367. From the evidence on record, the Petitioner is an Accounting Officer; and the Respondent is a Principal Banker. There is no evidence on the income of the parties and any impairment in their earning capacities. It can be gathered from the evidence on record that the Petitioner has been maintaining the children; and paying their school fees and other expenses. Flowing the above, the Respondent shall maintain each child with a monthly maintenance of GH1,000.00, pay their school fees and educational bills as well Charlotte Arhin v. Daniel Arhin Page 14 of 18 as medical bills. Clothing for the children of the marriage shall be provided by both parties herein. I shall address the last two issues together. They are: whether or not the Respondent be ordered to pay the Petitioner a lump sum of GHS200,000.00 as financial settlement or provision and whether or not the Dodge Dart car with registration number GE-946-19 be settled in favour of the Petitioner. Section 20 (1) of Act 367 provides that: “The Court may order either party to the marriage to pay to the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.” In the case of Aikins v. Aikins (1979) GLR 233, Sarkodee J (as he then was) held in holding 4 that: “In considering the amount payable as lump sum, the Court should not take into account the conduct of either the husband or the wife but it must look at the realities and take into account the standard of living to which the wife was accustomed during the marriage…” In the case of Barake v. Barake [1993-1994] I G.L.R 635 at page 666, where Brobbey J (as he then was) stated: “On such an application, the Court examines the needs of the parties and makes reasonable provision for their satisfaction out of the money, goods or immovable property of his or her spouse.” Charlotte Arhin v. Daniel Arhin Page 15 of 18 From the law, financial provision upon the dissolution of a marriage is not the exclusive preserve of women and that, the Court, may, if the justice of the case demands, award financial provision for either the man or the woman. The award of lump sum financial provision under Act 367 is therefore need based and it is not intended to enrich one spouse at the expense of another or punish the one who is to be blamed for the breakdown of the marriage. The essence of financial provision is not to enrich one spouse at the expense of the other but to cater for a genuine financial need of a spouse upon dissolution of the marriage. Thus, in the case of Gamble v. Gamble [1963] 1GLR 416 the Court held in holding 2 that: “the Court will not look with sympathy upon a wife who makes no effort to secure employment but is content to subsist on an award of alimony.” In the case of Obeng v. Obeng [2013] 63 GMJ 158, the Court of Appeal held that what is “just and equitable” may be determined by considering the following factors: the income, earning capacity, property, and other financial resources which each of the parties has or is likely to have in the foreseeable future, the standard of living enjoyed by the parties before the breakdown of the marriage; the age of each party to the marriage and the duration of the marriage.” From the evidence on record as adduced by the Petitioner, both parties are employed but the Petitioner has been the one who maintains the children of the marriage as well as pays for their school fees and other expenses whilst the Respondent conceals his salary and income from other activities. That the financial neglect by the Respondent caused her to borrow from friends and family to be able to support the children financially. As earlier stated, the Respondent refused to give evidence to establish the assertions in his amended answer and also refused to take part in the hearing to scrutinize the evidence of the Petitioner. Therefore, from the evidence on record, this Court is of the view that the Petitioner is entitled to some financial provision to be able to support her life upon the Charlotte Arhin v. Daniel Arhin Page 16 of 18 dissolution of their marriage. Consequently, based on the circumstances of the parties, I do consider it just and equitable to order the Respondent to pay financial provision of GHS100,00.00 to the Petitioner. In relation to the issue of the Dodge Dart car with registration number GE-946-19, having considered the evidence on record to the effect that the Respondent gave the said vehicle to the Petitioner to help her in her transportation and that of the children, but decided to take it back and has refused to return the car, and considering the best interest of the children who are in the custody of the Petitioner, I find it just and equitable to order the Respondent to return the said vehicle to the Petitioner. CONCLUSION Consequently, I conclude that the marriage between the Petitioner and the Respondent has broken down beyond reconciliation and in the circumstances; I do hereby grant the prayer of the Petitioner for dissolution of the marriage and enter judgment in the following terms; 1. I hereby grant a decree for the dissolution of the marriage celebrated between the parties on 24th November 2012, at the United Church, Teshie – Accra. Thus, the marriage is hereby dissolved. 2. The marriage certificate with Certificate No. MCG/TN/DES/001/12 and License No. MCG/TNC/001/12 is accordingly cancelled. 3. The consent ruling of the Court on the issue of custody and access of the children dated 14th June 2024 shall remain same in respect of custody of the children and access thereof. Thus the status quo before the judgment of this Court shall be maintained. Charlotte Arhin v. Daniel Arhin Page 17 of 18 4. The Respondent shall pay monthly maintenance of GHS1,000.00 for the upkeep of each child that is not in his custody. The monthly maintenance allowance shall be paid on the 2nd day of each month effective April 2025. 5. The Respondent shall also pay the medical bills, school fees as well as all educational expenses of the children of the marriage, when the need arises. 6. Clothing for the children of the marriage shall be provided by both parties. 7. The Respondent is ordered to pay to the Petitioner a lump sum of GHS100,000.00 as financial provision. 8. The Dodge Dart car with registration number GE-946-19 is hereby settled in favour of the Petitioner. 9. There will be no order as costs as Counsel for the Petitioner has waived costs. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Charlotte Arhin v. Daniel Arhin Page 18 of 18