Wiafe v Wiafe (C5/02/2024) [2025] GHACC 70 (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. C5/02/2024 KATE WIAFE --------------- PETITIONER BLK B1, SSNIT FLATS DOME, ACCRA VRS ALEX APPEAGYEI WIAFE --------------- RESPONDENT BLK B1, SSNIT FLATS DOME, ACCRA PARTIES: PRESENT COUNSEL: SAMUEL TSATSU TAMAKLOE, ESQ. FOR THE PETITIONER PRESENT SELORM V. K. AGBLEY, ESQ. FOR THE RESPONDENT PRESENT JUDGMENT FACTS Kate Wiafe v. Alex Appeagyei Wiafe Page 1 of 14 The parties got married under Ordinance Cap. 127, on 20th December 2008, at the International Central Gospel Church, The Royal Temple (ICGC – Awoshie), Accra. There is no issue of the marriage. On the 28th day of August 2023, the Petitioner filed the instant petition 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; a. Dissolution of the Ordinance marriage contracted between the Petitioner and the Respondent on the 20th day of December 2008 at the International Central Gospel Church at Awoshie-Anyaa, Accra in the Greater Accra Region of Ghana as broken down beyond reconciliation. b. Order directed at the Respondent to pay the Petitioner a cash sum of five hundred thousand Ghana Cedis (GHS500,000.00) as compensation. c. Order for equal share of the eight-bedroom house located at New Aplaku near Kings University College in the Ga South Municipality in the Greater Accra Region of Ghana. d. Order for equal share of the two plots of land located at Otsebleku near Oyibi in the Kpone-Katamanso Municipality in the Greater Accra Region of Ghana. e. Order for equal share of the two plots of land located at Obosomase in the Akuapim South Municipality in the Eastern Region of Ghana. f. Order assigning the Ford Explorer car with registration number GG 1098-17, to the Respondent. g. Order assigning the Toyota Corolla car with registration number GG 1716-19 to the Petitioner. h. Order for recovery of possession of the assets assigned to the Petitioner. i. Cost. Kate Wiafe v. Alex Appeagyei Wiafe Page 2 of 14 In his answer to the Petitioner’s petition, the Respondent denied the allegations of unreasonable behaviour, and stated that it is rather the Petitioner who has acted in such ways that he cannot reasonably be expected to live with her as husband and wife. The Respondent cross petitioned that the said marriage celebrated between the parties be dissolved. At the Case Management Conference stage, Counsel for the Respondent submitted to the Court that the parties have been able to execute and file their Terms of Settlement; which the Petitioner also confirmed same. Both parties further told the Court that apart from the dissolution of the marriage there was no outstanding issue between them. Both parties confirmed their respective signatures on the terms of settlement filed on 2nd December 2024. In accordance with section 2(3) of the Matrimonial Causes Act, 1971 (Act 367), the Court directed that it will conduct a hearing on the dissolution of the marriage; and adopt the terms of settlement filed by the parties on the ancillary reliefs in its judgement on the dissolution of the marriage. The Petitioner and counsel for the Respondent agreed that the issue to be determined by the Court is whether or not the marriage has broken down beyond reconciliation. As indicated above, being a petition for divorce, 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. Relying on the above authority, the Court conducted a hearing on the dissolution of the marriage to enable the determination that the marriage has broken down beyond Kate Wiafe v. Alex Appeagyei Wiafe Page 3 of 14 reconciliation whilst the parties’ agreement on the ancillary reliefs as per their Terms of Settlement filed on 2nd December 2024 will be adopted as consent judgment on the ancillary reliefs in addition to the judgment of the Court on the dissolution of the marriage. In view of the above, the hearing of the instant petition was basically on the dissolution of the marriage. THE EVIDENCE OF THE PETITIONER In her evidence to the Court, the Petitioner testified among other things that she is a Social Development Worker at Compassion International in Accra whilst the Respondent is a Compliance Manager of the Social Security and National Insurance Trust (SSNIT) at Pension House, Accra. That the parties got married under the ordinance on 20th December 2008 at the Central Gospel Church International at Awoshie-Anyaa and they cohabited at the Dome SSNIT Flats, Accra. According to the Petitioner, for over a decade and a half that the marriage had been in existence, it had unfortunately not been blessed with any child and the childlessness was as a result of a medical condition and tried as she did by way of various medical attempts and alternative medical treatments at conception all proved futile. That she eventually ended up losing all reproductive organs through surgery as recommended by the medical experts because of a life - threatening disease. That it was at this point that the Respondent started putting up a behavioral pattern consistent with unreasonableness. That the Respondent and his uncle, in April 2020 held a meeting with her parents without her knowledge and proposed to them that he wanted to take a second wife and all Kate Wiafe v. Alex Appeagyei Wiafe Page 4 of 14 attempts at convincing him to drop the idea and that there are alternative ways of having children by way of adoption, proved futile. The Petitioner further testified that the matter was placed before the Pastor of International Central Church at Dome Pillar 2 for resolution where she was present with his family but nothing positive came out of the meeting and there the Respondent indicated that because there was no child in their marriage, it should be dissolved, but because of the tense atmosphere which had generated as result of that discussion, it was agreed that they should separate for some time for cooler heads to prevail; which they agreed to separate for three (3) months but that elapsed and went into the second year of the separation but they could not reconcile. That the Respondent subsequently informed her through his lawyers, that the marriage contracted between them has broken down beyond reconciliation and that he would be taking legal steps to have the marriage dissolved which she consented to that, and made her request. That the Respondent later barged into the house, used metal bars to break the trap door and the lock of the main door and violently entered the room where she was, forcefully took the keys to her Toyota Corolla car which is registered in her name and been using it for the past five (5) years and drove it away to an unknown destination. The Petitioner tendered exhibits ‘A’ series to ‘E’ series in support of her assertions in her evidence. The Petitioner did not call witness and thereafter closed her case. THE EVIDENCE OF THE RESPONDENT Kate Wiafe v. Alex Appeagyei Wiafe Page 5 of 14 The Respondent in his evidence confirmed his marriage to the Petitioner herein as asserted by the Petitioner. He testified that before the marriage, the Petitioner had a medical condition which she failed to fully disclose to him. That it was after the marriage that he became fully aware of the nature of the medical condition. That the nature of ailment was such that the Petitioner was constantly bleeding and in pain; and this made her very feeble. According to the Respondent, the Petitioner was aware that there was no cure for her ailment and that her ailment would make it very difficult for her to have children, but she failed to disclose this to him before the marriage. That after becoming aware of the nature and extent of the Petitioner's condition, he insisted on sending the Petitioner abroad for treatment but she refused. That she rather resorted to traditional treatments and only resorted to orthodox medicine whenever her condition becomes worse. That various treatment regimens yielded no positive results. That the Petitioner's condition worsened over the years; and in April 2018, the Petitioner traveled to the United States for work and decided to seek treatment, but it was too late as she was diagnosed of cancer. That the Petitioner, upon her return to Ghana again failed to inform him about the cancer diagnosis. That as a result the Petitioner was advised to undergo a total hysterectomy since the cancer was spreading. The Respondent further testified that, before the total hysterectomy was performed and upon medical advice, he arranged and paid for the freezing of Petitioner's eggs at Lister Hospital in Accra; and also paid for the services of a surrogate mother to carry the fertilized embryos of the Petitioner through IVF Treatment but all these procedures ended in a failure as the all the eggs and embryos got destroyed in the process. The Respondent continued that after several attempts, the parties could not agree on a solution to their inability to bear children; and that has led to constant arguments creating Kate Wiafe v. Alex Appeagyei Wiafe Page 6 of 14 an unconducive environment in the home resulting in him having to move out of the matrimonial home. That the Petitioner attacked him with a shovel and a pestle when he later went to the Dome flat to collect certain building materials, even though he had informed the Petitioner that he would be coming to the house to collect the said materials. That the Petitioner could only be restrained by the security men at post and other co-tenants. That the Petitioner further lodged a complaint of unlawful entry and stealing against him at the Police Station after the incident. That the Petitioner's behavior is causing emotional and psychological distress on him, had led to a breakdown in affection and communication between us, to the point where all attempts at reconciliation have failed, and he prays that the marriage celebrated between the Petitioner and him be dissolved. The Respondent did not call witness and closed his case thereafter. LEGAL ISSUE The legal issue to be determined by this Court is whether or not the marriage has broken down beyond reconciliation. BURDEN AND STANDARD OF PROOF Kate Wiafe v. Alex Appeagyei Wiafe Page 7 of 14 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. Section 11(4) of the Evidence Act, 1975 (NRCD 323) 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 parties to prove the facts alleged to establish the breakdown of the marriage. ANALYSIS Before I examine the evidence adduced at the hearing, it is essential to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely; sections 1(2), 2(1) and (3) which provide as follows: "1(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. Kate Wiafe v. Alex Appeagyei Wiafe Page 8 of 14 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." Kate Wiafe v. Alex Appeagyei Wiafe Page 9 of 14 In the instant case, it is required that the evidence adduced by the parties herein must be able to indicate one or more of the facts under section 2(1) of Act 367 to prove that the marriage has broken down completely. From the evidence adduced by the parties at the hearing, I made the subsequent observations and findings: Both the petition and cross petition have unreasonable behaviour as their respective grounds for their respective reliefs of the dissolution of the marriage. The Petitioner in her evidence testified among others and basically to the effect that the childlessness in their marriage was as a result of a medical condition and they tried various medical and alternative medical treatments at conception but all were unsuccessful. That it was at this point that the Respondent started putting up unreasonable behavior, where he wanted to take a second wife and all attempts at convincing him to drop the idea for them to consider alternative ways of having children by way of adoption proved futile. That this led to their separation. The Respondent denied the Petitioner’s allegations of unreasonable behaviour on his part. Therefore, the Petitioner had a burden to lead sufficient evidence to prove her allegations of unreasonable behaviour on the part of the Respondent. This burden, the Petitioner failed to discharge in the sense that the Petitioner in her evidence repeated the assertions in her pleadings and did not lead cogent evidence to substantiate her allegations of unreasonable behaviour after same was denied by the Respondent. The Petitioner adduced evidence in support of the said medical condition but did not lead evidence to establish the unreasonable behaviour on the part of the Respondent complained of. In that regard, the Petitioner did not go beyond her rhetorical statements as already asserted in her pleadings. Kate Wiafe v. Alex Appeagyei Wiafe Page 10 of 14 The Petitioner had the onus to prove her allegation of unreasonable behaviour on the part of the Respondent, to the satisfaction of the Court which assertions she failed to prove, after the Respondent denied her allegation of unreasonable behaviour. Likewise, the Respondent also made allegations of unreasonable behaviour on the part of the Petitioner, that the Petitioner had a medical condition which she failed to fully disclose to him, and that it was after the marriage that he became fully aware of the nature of the medical condition which was such that the Petitioner was constantly bleeding and in pain; and this made her very feeble. That the Petitioner was aware that there was no cure for her ailment and that her ailment would make it very difficult for her to have children, but she failed to disclose this to him before the marriage. The Respondent also stated that the Petitioner attacked him with a shovel and a pestle when he later went to the Dome flat to collect certain building materials, even though he had informed the Petitioner that he would be coming to the house to collect the said materials. However, the Respondent could also not prove his averments which were denied by the Petitioner in her Reply and Answer to the Cross Petition. Similarly, the Respondent only repeated his assertions without adducing sufficient evidence to establish same. The law is very clear on allegations and the legal principle is that he who alleges must prove. In Klah v. Phoenix Insurance Company Ltd [2012] 2 SCGLR 1139, it was held that: “where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing Kate Wiafe v. Alex Appeagyei Wiafe Page 11 of 14 other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true”. Considering that both the Petitioner and the Respondent could not prove their respective allegations of unreasonable behaviour on the part of each other, after each denied the other’s allegations, I find from the evidence on record that there was no unreasonable behaviour on the part of either the Petitioner or Respondent and accordingly dismiss the said allegations for lack of evidence. Notwithstanding the above, from the pleadings of the parties and the evidence on record, there is an indication that the parties have irreconcilable differences and this led to their separation before the presentation of the present petition. 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.” It is on record that attempts at reconciliation by the parties have been unsuccessful. Under cross examination, the Petitioner agreed with counsel for the Respondent that she has still not been able to resolve her differences with the Respondent. It is therefore undisputable that the parties to the marriage have been unable to reconcile their differences. It is also not in doubt that the Respondent equally prays for the dissolution of their marriage. Kate Wiafe v. Alex Appeagyei Wiafe Page 12 of 14 Accordingly, I find that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Flowing from the above, I find that the marriage between the parties has broken down beyond reconciliation. 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 both parties for dissolution of their 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 20th December 2008, at the International Central Gospel Church, The Royal Temple (ICGC – Awoshie), Accra. Thus, the marriage is hereby dissolved. 2. The marriage certificate with Certificate No. IC47/2008 and License No. AMA 8790/2008 is accordingly cancelled. 3. The Terms of Settlement signed by the parties herein and their respective lawyers; and filed on the 2nd day of December 2024 is hereby adopted by the Court and same is entered as consent judgment on the ancillary reliefs and as part of the final judgment of this Court in the instant petition; and the parties are bound by it. 4. There shall be no order as to costs. [SGD.] Kate Wiafe v. Alex Appeagyei Wiafe Page 13 of 14 H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Kate Wiafe v. Alex Appeagyei Wiafe Page 14 of 14