Owiafe v Baah (EAS/NW/CC/C4/05/2025) [2025] GHACC 58 (5 March 2025)

IN THE CIRCUIT COURT OF GHANA HELD IN THE EASTERN REGION (NSAWAM) ON WEDNESDAY 5TH MARCH, 2025 BEFORE HER HONOUR MS. DIANAADU-ANANE SUIT NO. EAS/NW/CC/C4/05/2025 DANIEL OWIAFE. …...…………. PETITIONER VRS MERCY BAAH ………………. RESPONDENT JUDGMENT PETITIONER ABSENT RESPONDENT PRESENT BERNARD KWAASI ADDO KWAFO ESQ FOR THE PETITIONER The petitioner through his counsel on the 6th of January 2025 petitioned this court for dissolution of his marriage to the respondent and any other relief the court deems fit. THE GROUNDS FOR THE PETITION Gleaned from the petitioner’s petition, there are two (2) main grounds for his seeking dissolution of the marriage between him and the respondent. These are the fact that the parties have not lived together as husband and wife for the past two years and the inability of the parties to reconcile their difference despite diligent efforts. THE CASE OF THE PETITIONER According to petitioner the parties lawfully married under Customary Law in Nsawam and converted same into Ordinance marriage under Marriage Ordinances Act (Cap 127) on the 29th of January 2014 at the District Court, Nsawam and thereafter cohabitated at Nsawam. That their marriage is blessed 1 with three issues namely, Wendylove Okyere-Wiafe 10 years, Danielle Okyere- Wiafe 8 years and Enrico Okyere-Wiafe 3 years. The petitioner averred that currently, he is a Delivery Supervisor and lives at Holland whiles the respondent is a social worker and lives at Pokrom in the Eastern Region of Ghana. The petitioner averred that he has deserted the matrimonial home. The particulars for desertion were pleaded as follows: a. That the petitioner travelled out of the jurisdiction somewhere in 2021 leaving the respondent. b. That the parties begun having serious issues and disagreements from about 2021, most bothering on allegations of infidelity, curses and threats etc. c. The parties grew apart and did not communicate or consider themselves as man and wife until 2024 when they decided to formally separate pending divorce proceedings in court. d. That the petitioner and the respondent have both consented to bring this action after two years of desertion. e. That for the past 2 years, the parties have not lived together as man and wife. It is the petitioner’s claim that all attempts by the parties and their families to reconcile the parties’ differences have failed because respondent refuses to have any discussion to that effect. THE CASE OF THE RESPONDENT The respondent in her amended answer cross petitioned for dissolution of their marriage. She asserted she has been a good wife, and it was petitioner who deserted her after having the opportunity to travel outside the country. The respondent further averred that it is the petitioner who is not communicating and having issues with her which further affects their relationship and the cause of the breakdown of their marriage. The respondent in addition to cross petitioning for dissolution of their marriage, prayed for the following reliefs: i. Custody of the issues of the marriage. ii. Maintenance for the issues. 2 THE APPLICABLE LAW IN RESPECT TO THE ISSUES FOR DETERMINATION IN THE CASE The burden of proof in every civil case rest on the party, whether they be plaintiff or defendant, who substantially asserts the affirmative of his case. This is a general rule of evidence in civil cases. Thus, in the case of Bank of West Africa Ltd v. Ackun [1963] 1 GLR 176, SC, it was held at Holding (2) as follows: “The onus of proof in civil cases depends on the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof”. Another aspect of the evidential burden that must be met by parties to a civil action also finds expression in section 14 of the Evidence Act, 1975 (NRCD 323): “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non- existence of which is essential to the claim or defense he is asserting”. It is noteworthy, also, that in civil cases, the standard of proof is proof by preponderance of probabilities. In the case of Serwah v. Kesse [1960] GLR 227, Van Lare JSC held at page 229 as follows: “The law as I understand it is that in all civil cases the preponderance of probability in favour of a party may constitute sufficient ground for a judgment in favour of that party”. This case is a matrimonial case concerning a marriage contracted under the Ordinance (Cap 127). The applicable Ghanaian legislation therefore is the Matrimonial Causes Act, 1971 (Act 367). The main issue involved in this case being dissolution of an ordinance marriage, the relevant sections of Act 367 shall be stated by the court. According to section 1(2) of Act 367: “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation”. For the purposes of a petitioner establishing to the court that the marriage has indeed broken down beyond reconciliation, section 2(1) of Act 367 stipulates certain facts that must be proved. These facts include the following: 1. That the respondent has committed adultery as a result of which petitioner finds it intolerable to live with respondent. 2. That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; 3 3. That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; and the respondent consent to the grant of a decree of divorce 4. That the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition and 5. That the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Where a party petitions for a divorce, it is the duty of the court to inquire so far as is reasonable, into the facts alleged by the petitioner and the respondent. This inquiry is for the court to find the existence or non -existence of one or more of the facts that I have mentioned above. When the party has been able to prove one or more of the facts the Court must still be satisfied that on all the evidence provided, that, the marriage has broken down beyond reconciliation marriage. After close of pleadings, petitioner applied, and the petition was set for trial and parties respectively ordered to file their witness statements. Though it is the petitioner who initiated this petition, he did not file any evidence in support of his claim and since pleadings are not evidence, the petitioner’s petition is dismissed for want of proof. A defaulting respondent or defendant takes the blame for failing to appear in court to defend an action against him. In the case of Ex parte State Housing Co. Ltd (No. 2) [2009] SCGLR 185 it was held that “a party who disables himself from being heard cannot later turn around and accused the adjudicator of breaching rules of natural justice”. See also Republic v. Court of Appeal Accra, Ex parte East Dadekotopon Development Trust, Civil Motion No. J5/39/2015, dated 30th July 2015. Similarly, the Respected Jurist, S. A. Brobbey commented as follows in his authoritative book - Practice and Procedure in the Trial Courts of Ghana (2nd Edition) at Page 380: “…A party to a case may refuse to participate in proceedings or fail to lead evidence. The Rule is that when a party is given opportunity to lead evidence in support of his stand or in defense of allegations against him but deliberately declines to avail himself of that opportunity, the Court will be entitled to proceed with the trial to conclusion and make deductions, draw conclusions, or make findings based on the evidence adduced at the trial…”. 4 Since the respondent is also alleging the marriage has broken down, the onus lies on her to prove same to the court and the absence of the petitioner (respondent) in court does not automatically entitle her to the reliefs she seeks. The law is settled as held in the case of Dr. R.S.D. Tei & Anor vrs Messr Ceiba Intercontinental [2018] DLSC 3301 @ pg. 4, Pwamang JSC opined that “it must be remembered that the fact that a defendant does not appear to contest a case does not mean the plaintiff would be granted all that he asks for by the court. The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at the trial. The absence of the defendant will aid the plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claim”. As reiterated the ground for seeking dissolution of her marriage to the petitioner is desertion. It is the law that a party who makes an assertion bears the legal burden of establishing it. This was stated by Wood C.J in the case of Poku v. Poku [2008] 18 M.L.R.G 1 @ page 30 thus: “generally, the burden of proof is therefore on the party asserting facts, with evidential burden shifting as the justice of the case demands. The standard of degree must also necessarily be proof on the preponderance of probabilities”. The respondent in this case testified that petitioner has deserted her for more than 2 years. That the petitioner had an opportunity to seek greener pastures outside the country to Holland. Upon reaching Holland, petitioner was caring as he used to be back home. However, after some time the petitioner changed in his attitude and behaviour. That it started with not calling usually to not calling at all. Also, several calls to petitioner (respondent to the cross petitioner) were not answered leading respondent to believe petitioner was being unfaithful, though she had no evidence to confirm. That over time, they grew apart and became like total strangers and only communicate on matters bothering on their children. The respondent testified that attempts by family to help the situation came to no avail resulting in the return of the customary drinks back to petitioner’s family thereby dissolving their marriage customarily. That prior to this petition, petitioner informed her of his intention to leave the marriage and give them the opportunity to move on with their separate lives. 5 It is trite learning that leaving apart from each other does not amount to desertion. Desertion is defined as the unjustifiable withdrawal of cohabitation without the consent of the other spouse and with the intention of remaining separated permanently. Thus, to successfully to desertion, the following must be established. I. De facto separation, that means the total and actual withdrawal from the performance of all marital obligations, a complete cessation of cohabitation. In the case of Naylor v Naylor [1961] 2 ALL ER 129, it was held that withdrawal must amount to a total repudiation of marital obligations. II. The second element is that of animus deserendi, that is the intention to bring cohabitation permanently to an end. III. The third is the lack of consent, meaning the Respondent must withdraw from the performance of his or her marital obligations without the consent of his or her spouse. See the case of Nutley v Nutely [1970] 1ALL ER 410. IV. Finally, the withdrawal must be without a reasonable excuse. Thus, juxtaposing the essential requirements to establish desertion with the unchallenged evidence adduced by the respondent (petitioner), the petitioner by ceasing communication with the respondent and living as total strangers confirms that the petitioner intends to bring cohabitation between the parties to a permanent end without the consent of the respondent. Further, there is no justification for petitioner’s conduct. The respondent further testified that attempts at settlement by their families has proved futile resulting in the dissolution of their marriage customarily. Counsel for the petitioner under cross examination of the respondent did not dispute the evidence of the respondent, this is what transpired under cross examination: Q. How long have you been married to the petitioner? A. 11 years now. Q. You are no longer living together as husband and wife, not so? A. That is so. Q. The petitioner is in Holland, is that the case? A. That is so. 6 Q. For the past two and half years you have not lived as husband and wife? A. That is correct. Q. Before your husband initiated this petition for divorce he had a discussion with you on it, not so? A. That is so. Q. Based on that discussion, you have both filed terms of settlement, not so? A. That is so. Q. You consent to this divorce, is that the case? A. That is so. The general principle as enunciated in the case of Ababio v Akwesi III [1994- 95] Ghana Bar Report, part II, 774 is that “a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue, however, as stated by Mensah Boison JA in the case of Acqyaye v Awoti [1982-83] 2GLR 110, the testimony of a plaintiff is presumptive evidence which is rebuttable. The well-known rule of evidence is that although proof in civil cases rested on the plaintiff, that burden was discharged once the plaintiff had introduced sufficient evidence of the probability of his case. The burden shifted to the defendant to rebut the plaintiff’s evidence”. Thus, the respondent having led evidence as to the probability of her claim, the burden shifted unto the petitioner to rebut this claim, however, as noted above the counsel for petitioner did not dispute the claim of the respondent under cross examination. His questions were a confirmation or admission of respondent’s claim. It is trite learning that where a witness testifies and the opponent consciously fails or refuses to cross examine the witness, the court may consider the evidence as admitted by the opponent. In the case of Takoradi Flour Mills vrs Samir [2002-2006] SCGLR 882, Ansah JSC referred to the case of Tutu vrs Gogo (Civil Appeal No. 25/67 dated 28th April 1969, Unreported but digested in 1969 CC 76) Ollenu JA (as he then was) stated: “ In law, where the evidence is led by a party and that evidence is not challenged by his opponent and the opponent did not tender evidence to the contrary, the facts deposed to in evidence are deemed to have been admitted by the party against whom its led, and must be accepted by the court”. Thus, given the complete absence of evidence challenging the respondent’s evidence her claim ought to succeed. 7 Regarding acceptance of unchallenged evidence by a Court of law, the Distinguished and esteemed Jurist, Chief Justice Anin Yeboah stated as follows in the Landmark case of Nana Addo Dankwa Akufo-Addo and 2 Others v. John Dramani Mahama and 2 Others (2013) SCGLR special edition: “… I accept the proposition of law that when evidence led against a party is left unchallenged under cross-examination, the Court is bound to accept that evidence …”. Moreover, taking into due consideration the above erudite exposition of the law by the then Chief Justice, I am emboldened in my belief that the petitioner is entitled to her proven reliefs. This is because the testimony relating to same were left unchallenged and must therefore be accepted by this Court. In the case of Kotei v Kotei [1974] 2GLR 172 the Court held that “proof of five years continuous separation enables the marriage to be dissolved against the will of a spouse who has not committed any matrimonial offence and who cannot be blamed for the breakdown of the marriage”. In the instant petition, it is established that the petitioner has deserted the respondent, and this conduct of the petitioner is unreasonable because of which respondent cannot be reasonably expected to live with petitioner. Further, the parties have been unable to reconcile their differences despite diligent efforts leading to the dissolution of the marriage customarily. The main issue for determination by the court is: whether or not the marriage between the parties has broken down beyond reconciliation. From the analysis done by the court thus far, it is incontrovertible that the petitioner has deserted the respondent, and the parties have not been able to reconcile their difference leading to the customary dissolution of their marriage. The parties are in court only to break the legal shell of their marriage. Further, the parties have not lived together as husband and wife for the past two years preceding the presentation of this petition and they both consent to the dissolution of their marriage. To this end, the court resolves this issue by holding that the marriage between the parties in this case has indeed broken down beyond reconciliation. In reaching such a conclusion, the court has taken a cue from the principle established in the case of Kotei v. Kotei (supra) where the court held that “once the facts proved bringing the case within any of the facts set out in section 2(1) of the MCA, a decree of dissolution should be pronounced unless the court think otherwise. In other words, the burden is on petitioner to show 8 that special grounds exist justifying the exercise of the court’s power, once he or she comes within any one of the provisions in section 2(1) (e) and (f), the presumption is in his favour; proving one of the provisions without more is proof of the breakdown of the marriage beyond reconciliation”. The parties on the 24th of February 2025 filed terms of settlement and prayed the court to adopt same as consent judgment of the court as follows: 1. Petitioner will fully cater for the health of the children, particularly by registering the children under the health insurance and paying the premiums. 2. Petitioner will also take care of any expenses that is not covered by National Health Insurance 3. The petitioner will provide for the educational needs of the children in the school, including registration and prospectus items. 4. The petitioner will provide for the feeding of the children in school. 5. That the school of the children should only be changed by a consensual agreement between the parties. 6. That decisions with regards to the education of the children including but not limited to school they will attend shall be consensual. 7. In addition to providing for education and healthcare, petitioner will provide Two Thousand Ghana Cedis (GHC 2,000.00) per month for the general upkeep of the children. 8. This amount to be paid for maintenance shall be increased yearly by Ten Percentage (10%). 9. That custody of the issues of the marriage is given to the respondent with reasonable access to the petitioner until they attain the age of majority where they will decide independently. 10.That petitioner shall have access to the issues of the marriage every weekend, holidays and vacations at the residence of the respondent. 11.That the petitioner gives respondent at least a day’s notice as to his availability to pick up the children and where to pick then from before doing so. 12.That both parties refrain form verbally abusing each other. 13.That both parties shall not harass, abuse and behave unreasonably towards the children. 14.That the complainant of harassment, physical abuse, unreasonable behaviour meted out on any child shall immediately be reported. 9 15.That such a situation may be immediately referred to Social Welfare officer by the court who then may conduct an investigation into the complaints of issues within one week. 16.Where the Social Welfare officer is satisfied that any of the issues have been harassed, abused physically or verbally, or shown with an unreasonable behaviour by a parent, the social welfare office shall prepare a report to be attached to file in court. 17.That the marriage celebrated between the parties on the 29th of January 2014 at the Nsawam District Court be dissolved. 18.That the petitioner shall pay an alimony of Twenty-Five Thousand Cedis (GHC 25,000.00). 19.Regarding communication, the parties shall ensure decorum in their communication with one another. 20.The parties shall respect the space and privacy of each other. 21.That the parties shall always act in the best interest of the children. 22.That the terms of settlement shall constitute full and final settlement of the matter between the parties. 23.The terms herein agreed upon as consent judgment of the court. 24.That the terms of settlement herein contained shall be subject to the usual default clause. The terms of settlement mutually agreed and executed between the parties is adopted as consent judgment of the court and same is binding on the parties. FINAL ORDERS Since the parties do not claim any property rights, the following final orders are made. 1. The Ordinance Marriage celebrated between the parties on the 29th of January 2014 at the District Court, Nsawam is hereby dissolved as having broken down beyond reconciliation. 2. Marriage Certificate numbered 17/14 is hereby cancelled 3. The terms of settlement filed by the parties on the 24th of February 2025 is adopted as consent judgment of the court and same is binding on the parties. (SGD) H/H DIANA ADU-ANANE CIRCUIT COURTJUDGE 10 11