Moore v Asantewaa (C5/01/2024) [2025] GHACC 69 (7 March 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 7TH DAY OF MARCH, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/01/2024 MR. JULIUS CORNELIUS MOORE --------------- PETITIONER 512 SOUTH GARDEN ST WINNSBORO SOUTH CAROLINA 29180 USA VRS GEORGINA ASANTEWAA ------------- RESPONDENT GPS 42 BURTON ST GE-288-6080 TAIFA, ACCRA PARTIES: PRESENT COUNSEL: KEZIA P. KENNETH AZUMAH (MRS) ESQ. FOR PETITIONER ABSENT FREDERICK ASAMOAH WITH MAGUERITA PLANGE TAYLOR FOR RESPONDENT PRESENT Julius Cornelius Moore v. Georgina Asantewaa Page 1 of 11 JUDGMENT FACTS The parties got married under Ordinance Cap 127, on 14th April 2023, at the Asokwa Municipal Assembly at Kumasi. There is no issue of the marriage. On 22nd January 2024, the Petitioner who was the Applicant then, through his lawyer filed motion on notice for leave to file petition before two years pursuant to Order 65 rule 3 of C.I. 47. This Court on 13th February 2024, heard the said application upon listening to counsel for the Applicant and the Respondent legally unpresented who told the Court that she was not opposed to the application that is why she did not file any affidavit in opposition. The Court subsequently granted the application relying on section 9(2) of the Matrimonial Causes Act, 1971 (Act 367) and Order 65 rule 3 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The Applicant was under the circumstances, granted leave to file a petition for divorce before two years of their marriage. Pursuant to leave of this Court, the Petitioner on 27th February 2024 filed the instant petition on grounds that the marriage between him and the Respondent has broken down beyond reconciliation on account of the Respondent's adulterous and unreasonable behavior for which he cannot reasonably be expected to live with her as his wife. The Petitioner prayed the Court for the following reliefs; a. The marriage celebrated on 14th April 2023 be dissolved by this Honourable Court. b. Any other reliefs that this Honourable Court deem fit. The Respondent was given several opportunities by this Court to file her answer but she did not and when an answer was eventually filed on her behalf by a lawyer called Eleanor Julius Cornelius Moore v. Georgina Asantewaa Page 2 of 11 Mawuli Kportsoafe, it came to light upon the Court’s interrogation from the said lawyer who appeared before the Court on the day of hearing that, she did not have any valid solicitors license to practice as the said lawyer admitted same before the Court. Consequently, both the notice of entry of appearance and the answer authored and filed by the said lawyer endorsed with an expired solicitor’s license were struck out as incompetent as the lawyer submitted to the Court that she intends to renew her solicitor’s license in April. In effect the Respondent did not have an answer before this Court to be able to adduce evidence in support of the said pleading. Accordingly, the hearing was conducted based on the Petitioner’s Witness Statement and the Respondent was given the opportunity to cross examine the Petitioner which she did cross examine the Petitioner on his evidence in chief. THE CASE OF THE PETITIONER In his evidence to the Court, the Petitioner testified among others that he met the Respondent in 2022 through social media and she told him she is a seamstress. That on or about 14th April 2023 he and the Respondent contracted a marriage under the Marriages Act, 188-1985 (Cap 127) at the Asokwa Municipal Assembly in Kumasi. He tendered in evidence exhibit ‘A’ being a copy of the marriage certificate. The Petitioner continued that after the marriage, they cohabited in a hotel in Kumasi and subsequently in another Hotel in Accra before renting an apartment at Taifa at the cost of USD14,000.00 which served as the matrimonial house. That after renting the accommodation he remodeled the apartment and furnished it with modern gadgets as well as effects. According to the Petitioner, the marriage between him and the Respondent has broken down beyond reconciliation on account of the adulterous lifestyle, verbal and emotional abuse and unreasonable conduct of the Respondent. Julius Cornelius Moore v. Georgina Asantewaa Page 3 of 11 The Petitioner further testified that he took full responsibility of every expense including making sure that the Respondent does not lack anything in his absence by remitting her regularly. He tendered evidence of funds remitted as exhibit ‘B’ series. He testified that he feels scammed by the Respondent’s conduct because averagely he maintained the Respondent with USD1,000.00 monthly since they started dating in September 2022. That between April to August 2023, he sent the Respondent more than USD20,000.00; and between May and August 2023 Respondent collected monies from him for two fibroid operations when she knew that she was pregnant for another man. The Petitioner further testified that he discovered in September 2023 that the Respondent was 10 weeks pregnant although they had not been together nor had sex since April 2023 when he went back to the USA after their marriage. That the Respondent has admitted to being impregnated by her boyfriend Cecil Morton and told him that she was no longer interested in the marriage. He tendered exhibit ‘C’ series to that effect. That when he confronted the Respondent on her pregnancy, she sacked him from the matrimonial home he rented at Taifa; and he had to spend the last 10 days of his stay in Ghana in a hotel. That the Respondent afterwards continued to rain unprintable insults on him. Exhibit ‘D’ series were tendered as the evidence of the insults. That he has been scandalized by the conduct of the Respondent and has lived in so much pain especially when he had to move out of the property he rented. The Petitioner concluded that the parties cannot continue their relationship as husband and wife, as their marriage has broken down beyond reconciliation on account of the adulterous and unreasonable behaviour of the Respondent. The Petitioner did not call witness and thereafter closed his case. Julius Cornelius Moore v. Georgina Asantewaa Page 4 of 11 As stated above in this judgment, the Respondent did not have any answer to the petition on record, therefore she could not give evidence as there was nothing to give evidence on. This is because her evidence must be premised on an answer to the petition. However, the Respondent was allowed to partake in the hearing and she was given the opportunity by the Court to cross examine the Petitioner on his evidence as she was present in Court during the hearing. LEGAL ISSUES The legal issues to be determined by this Court are: 1. Whether or not the Respondent committed adultery. 2. Whether or not there is unreasonable behavior on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with her. 3. Whether or not the marriage has broken down beyond reconciliation. BURDEN AND STANDARD OF PROOF The general rule in every civil case is that the burden of proof rests upon the party, whether Petitioner or Respondent, who substantially asserts the affirmative of his or her case. Section 12(1) of the Evidence Act, 1975 (NRCD 323), provides that: “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” Julius Cornelius Moore v. Georgina Asantewaa Page 5 of 11 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 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”. Also, in the case of Yorkwa v. Duah [1992-93] GBR 281, the Court of Appeal decision per Brobbey J.A. (as he then was) stated that: “The provisions of the Evidence Decree, NRCD 323, require that in a case like the instant one, the obligation to adduce evidence should first be placed on the plaintiff”. 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). 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 Julius Cornelius Moore v. Georgina Asantewaa Page 6 of 11 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. 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. Julius Cornelius Moore v. Georgina Asantewaa Page 7 of 11 (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." In the instant case, it is required that the evidence adduced by the Petitioner 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. The Petitioner in his evidence testified that he and the Respondent got married on 14th April 2023; and he discovered in September 2023 that the Respondent was 10 weeks pregnant although they had not been together nor had sex since April 2023 when he went back to the USA after their marriage. He also testified that the Respondent has admitted to being impregnated by her boyfriend Cecil Morton and told him that she was no longer interested in the marriage. That when he confronted the Respondent on her pregnancy, she sacked him from the matrimonial home he rented at Taifa; and he had to spend the last 10 days of his stay in Ghana in a hotel. That the Respondent afterwards continued to rain unprintable insults on him. He tendered exhibit ‘C’ series and ‘D’ series to that effect. From the said exhibits which is series of chats between the parties herein, the Respondent stated that she is 5 months pregnant and April was 7 months. Indeed, the Respondent stated in the said chat among other things that, she made the Petitioner feel the pain of being stupid. She also told the Petitioner in the said chat that he was looking funny when he was pretending to care about her and her baby. She also said in the chat that Cecil ruined the joy of the Petitioner that is why the Petitioner will not forget him. The Respondent actually insulted the Petitioner with unprintable words to the extent that she told him that he should be stupid to think that she was going to watch him decide her life. Julius Cornelius Moore v. Georgina Asantewaa Page 8 of 11 From the unchallenged evidence adduced by the Petitioner on record, it is not in doubt that the Respondent got pregnant for another man during the subsistence of her marriage to the Petitioner. The evidence on record suggests that when the Petitioner found out about the said pregnancy, the Respondent became verbally abusive towards the Petitioner. It is therefore not surprising that the Petitioner testified that he has been scandalized by the conduct of the Respondent and has lived in so much pain as a result of the Respondent’s conduct, and this Court is inclined to believe that piece of evidence on record. In the case of Adjetey v. Adjetey [1973] 1 GLR 216 HC, it was held by Sarkodee J. that: “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 probability. Direct evidence of adultery is rare. In nearly every case the fact of adultery is inferred from circumstances which by fair and necessary inference would lead to that conclusion.” From the evidence on record, it is undisputable that the Respondent committed adultery. Relying on the above authority, and in the absence of any contrary evidence; I accordingly find from the evidence on record on the first issue that the Respondent committed adultery. From case law, conducts such as assault of a partner and verbal abuse have all been held to constitute unreasonable behaviour. See the case of Happee v. Happee & Anor [1974] 2 GLR 186. It can be gleaned from the evidence on record that the Respondent verbally abused the Petitioner after her act of adultery. Flowing from the above, verbal assault or abuse Julius Cornelius Moore v. Georgina Asantewaa Page 9 of 11 constitutes unreasonable behaviour; therefore, for the Respondent to have verbally assaulted or abused the Petitioner after she was exposed as having gotten pregnant by another man whilst married to the Petitioner, amounted to unreasonable behaviour on the part of the Respondent. In Mensah v Mensah [1972] 2 GLR 198, Hayfron-Benjamin J. held that: “… one point is clear and it is that the conduct complained of must be sufficiently grave and weighty to justify a finding that the Petitioner cannot reasonably be expected to live with the Respondent…” Moreover, having found supra that the Respondent committed adultery coupled with the verbal abuse on the Petitioner by the Respondent, I find that the said conduct complained of by the Petitioner is sufficiently grave and weighty to justify the Petitioner’s claim that he cannot reasonably be expected to live with the Respondent particularly having considered the entire evidence on record and how the Petitioner consistently maintained the Respondent. From the evidence on record, I thus find on the second issue that there was unreasonable behavior on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with her. In view of the above, I find on the last issue that the marriage between the parties herein has broken down beyond reconciliation. CONCLUSION Julius Cornelius Moore v. Georgina Asantewaa Page 10 of 11 From the foregoing, 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 Petitioner’s prayer 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 14th April 2023, at the Asokwa Municipal Assembly, Kumasi. Thus, the marriage is hereby dissolved. 2. The marriage certificate with Certificate No. ASKMA/KMS/AS/284/2023 and License No. ASKMA/ML/359/2023 is accordingly cancelled. 3. There will be no order as to financial provision to either party to the marriage considering the circumstances of the instant petition and of the parties. 4. The parties shall bear their own cost of the suit. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Julius Cornelius Moore v. Georgina Asantewaa Page 11 of 11