Akaba v Nyarko (C5/32/2024) [2025] GHACC 64 (28 February 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 28TH DAY OF FEBRUARY, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/32/2024 BENJAMIM FRANKLIN AKABA --------------- PETITIONER H/NO. PMB 161 TEMA GREATER ACCRA VRS LINDA NYARKO --------------- RESPONDENT H/NO TA 106 TAIFA GREATER ACCRA PARTIES: PETITIONER ABSENT RESPONDENT PRESENT COUNSEL: WISDOM GADZO HOLDING THE BRIEF OF SARFO GYAMFI, ESQ. FOR THE PETITIONER PRESENT NO LEGAL REPRESENTATION FOR RESPONDENT Benjamin Franklin Akaba v. Linda Nyarko Page 1 of 13 JUDGMENT FACTS The parties got married under Ordinance Cap. 127, on 27th October 2018, at Dunamis Centre Assemblies of God Church at Accra. There are three issues of the marriage namely; Sterling Franklin Akaba aged 5 years, Stylar Naila Akaba aged 3 years and Selma Anna Akaba aged 1 year. On 30th September 2024, the Petitioner filed the instant petition on grounds that the marriage between himself and the Respondent has broken down beyond reconciliation due to the unreasonable behaviour of the Respondent; and prayed the Court for the following reliefs; a. That the said marriage contracted in the year 2018 be dissolved. b. The terms of settlement by the parties be adopted by this Honourable Court. In her answer to the petition, the Respondent denied the allegations of unreasonable behaviour, but admitted one of the allegations of adultery on her part. The Respondent further stated that the Petitioner is entitled to all his reliefs. I deem it necessary to mention that before the hearing of the petition, Counsel for the Petitioner informed the Court that, the parties had filed their Terms of Settlement on the ancillary reliefs and prayed the Court to adopt same as consent judgment. The Respondent concurred to that. 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. Benjamin Franklin Akaba v. Linda Nyarko Page 2 of 13 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 reconciliation whilst the parties’ settlement on the ancillary reliefs as per their Terms of Settlement filed on 1st November 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. Flowing from the above, the hearing of the instant petition was basically on the dissolution of the marriage since the parties had filed their Terms of Settlement on the ancillary reliefs. THE CASE OF THE PETITIONER In his evidence to the Court, the Petitioner testified among others that he got married to the Respondent in the year 2018 under Ordinance Law of the Republic of Ghana. That he has lived most of his years outside the jurisdiction in search of greener pastures for his family during the subsistence of the marriage. The Petitioner continued that he made it a priority to maintain his family both in Ghana and abroad during the subsistence of their marriage. Their marriage was blessed with three issues. According to the Petitioner, the Respondent has behaved in such a way which has caused him much distress, anxiety and embarrassment to the extent that he cannot reasonably live with. That he has not been able to live in their said marriage since the Respondent behaved in ways that amounted this unreasonable behavior. The Petitioner further testified that he duly informed the Respondent of his disinterest in the said marriage after attempts by family and friends to reconcile them failed. That he has currently made all the necessary provision as to the maintenance of the issues in the marriage to ensure their welfare. Benjamin Franklin Akaba v. Linda Nyarko Page 3 of 13 The Petitioner did not call witness and thereafter closed his case. THE CASE OF THE RESPONDENT The Respondent in her evidence confirmed her marriage to the Petitioner herein and testified that her they got married under the Ordinance on 27th October 2018 at the Dunamis Centre Assemblies of God Church, Accra. A copy of the marriage certificate was tendered as exhibit ‘1’. She continued that their marital home was at West Trasacco, East Legon, Accra after they got married. That subsequently Petitioner relocated to Dubai shortly thereafter and instructed her to relocate with their son to join him there which she did in or around October 2020. That in less than three years after she relocated to Dubai, the Petitioner unilaterally relocated to the United States where he has lived for the past one year. That she has not spent more than a total of two months living together with Petitioner since they got married because of the travel schedules of Petitioner. According to the Respondent, whiles in Dubai, the Petitioner directed that she stays at home and take care of their children which included Petitioner's daughter from a previous relationship. That prior to her marriage to Petitioner, she was gainfully employed as a banker initially with the UMB Bank and then with the Consolidated Bank of Ghana (CBG). During the pendency of her marriage to Petitioner, she obtained a Master of Business Administration (Finance) at the University of Ghana Business, School. She however resigned from her work at the instruction of Petitioner. She concluded that the Petitioner has behaved in such an unreasonable manner that has made it impractical for the marriage to continue. To that extent, she cannot be reasonably expected to remain in the marriage. Benjamin Franklin Akaba v. Linda Nyarko Page 4 of 13 The Respondent further testified that the Petitioner has informed her via a telephone call that he is no longer interested in staying married to her. He then gave her three days to pack her luggage out of the house he rented for her and their three children, together with Petitioner's daughter, and leave Dubai with them. That immediately she arrived in Ghana with the children, the family of Petitioner visited her family and concluded the dissolution of their marriage in accordance with custom and tradition. After the customary dissolution of marriage, they executed Terms of Settlement to ensure an amicable determination of the petition. The Respondent did not also call witness and closed her case thereafter. LEGAL ISSUE The legal issue to be determined by this Court is whether or not the marriage between the parties has broken down beyond reconciliation. 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. 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.” Benjamin Franklin Akaba v. Linda Nyarko Page 5 of 13 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 important 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:- ... Benjamin Franklin Akaba v. Linda Nyarko Page 6 of 13 (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." In the instant case the burden is therefore on the Petitioner to prove that the marriage has broken down completely; proof of one or more of the facts under section 2(1) of Act 367 is/are necessary. Benjamin Franklin Akaba v. Linda Nyarko Page 7 of 13 From the evidence adduced by the parties at the hearing, I made the subsequent observations and findings: The Petitioner stated in his pleading that the Respondent has committed adultery and he finds it intolerable to live with the Respondent. The Petitioner further particularized his plea of adultery as follows: i. That the Respondent had an affair with another man in Ghana while the Petitioner was out of the jurisdiction. ii. That the Respondent had another affair with another man in Dubai while the Petitioner was in the United States. iii. That the Respondent confessed to the Petitioner of her infidelity. The Respondent in her response to the petition, admitted paragraph 11 (i) which is to the effect that the Respondent had an affair with another man in Ghana while the Petitioner was out of the jurisdiction. The Respondent denied paragraph 11 (ii) that she had another affair with another man in Dubai while the Petitioner was in the United States. Once the Respondent admitted the Petitioner’s claim that she had an affair with another man in Ghana while the Petitioner was out of the jurisdiction, there was no need for the Petitioner to lead evidence to substantiate same. It is trite that in such instance the Petitioner need not adduce any evidence in proof of his pleading or averment that has been admitted or not denied. In the case of Fori v. Ayirebi [1966] GLR 627, the Supreme Court held that: “When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment.” Benjamin Franklin Akaba v. Linda Nyarko Page 8 of 13 Notwithstanding that the Respondent denied the Petitioner’s other allegations of adultery on her part, and therefore the Petitioner had a burden of proof to prove his allegations that were denied by the Respondent, and from the evidence before the Court the Petitioner did not lead sufficient evidence in support of his other allegations of adultery that were denied; applying the principle in the above authority to the instant petition, the Court hereby accepts the admission of the Respondent in relation to the Petitioner’s claim under paragraph 11(i) of the petition as an established fact. In the case of Quartey v. Quartey & Anor [1972] 1 GLR 6, it was held by Kingsley-Nyinah J.A. that: “a Court may act upon an admission of adultery even though there be no confirmatory proof of it, if the Court is satisfied that the evidence as to the admission is trustworthy and if the evidence amounts to a clear, distinct and unequivocal admission of adultery.” This admission by the Respondent is a clear and unequivocal admission of adultery on the part of the Respondent. Consequently, the Court hereby makes a finding that the Respondent committed adultery. This is because section 2(1)(a) of Act 367 does not indicate that the Respondent must commit series of adulteries before the Petitioner can rely on same to show that the marriage has broken down beyond reconciliation being the sole ground for granting a petition for divorce. The Petitioner in his evidence testified that the Respondent has behaved in such a way which has caused him much distress, anxiety and embarrassment to the extent that he cannot reasonably live with. That he has not been able to live in their said marriage since the Respondent behaved in ways that amounted to this unreasonable behavior. The Petitioner further testified that he duly informed the Respondent of his disinterest in the said marriage after attempts by family and friends to reconcile them failed. Benjamin Franklin Akaba v. Linda Nyarko Page 9 of 13 As earlier stated in this judgement, the Respondent denied the Petitioner’s other allegations of adultery on her part. As a result, the Petitioner had a burden to lead sufficient evidence to prove his other allegations of adultery on the part of the Respondent in paragraph 11(ii) and (iii). 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 other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true”. This burden, the Petitioner failed to discharge as he did not lead any evidence on the said averments after same were denied by the Respondent. I therefore find those allegations under paragraph 11(ii) and (iii) as unsubstantiated. Accordingly, the said allegations remain unsubstantiated and I hereby dismiss same for lack of evidence. Nonetheless, with the above finding of the Court that the Respondent committed adultery based on her own admission of the said averment by the Petitioner, I am inclined to accept the Petitioner’s evidence that the Respondent has behaved in such a way which has caused him much distress, anxiety and embarrassment to the extent that he cannot reasonably live with her. Thus, having found supra that the Respondent committed adultery, I find that she behaved unreasonably towards the Petitioner when she had an affair with another man in Ghana while the Petitioner was out of the jurisdiction. Benjamin Franklin Akaba v. Linda Nyarko Page 10 of 13 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…” Flowing from the above, I further find that the Petitioner suffered embarrassment due to the conduct of the Respondent having an affair with another man in Ghana while the Petitioner was out of the jurisdiction. Consequently, I find that there was unreasonable behaviour on the part of the Respondent such that the Petitioner cannot reasonably be expected to live with her. 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.” Both parties testified that attempts by their families and friends to reconcile them failed; and they concluded the dissolution of their marriage in accordance with custom and tradition. Both parties have also mutually agreed to the dissolution of their marriage and the Respondent consents to the grant of divorce. From the foregoing, I find that the marriage between the parties has broken down beyond reconciliation as they could not reconcile their differences, after diligent effort. Benjamin Franklin Akaba v. Linda Nyarko Page 11 of 13 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 27th October 2018, at Dunamis Centre Assemblies of God Church at Accra. Thus, the marriage is hereby dissolved. 2. The marriage certificate with Certificate No. DC/AG/TA/97/2018 and License No. A.M.A. 101806482/2018 is accordingly cancelled. 3. The Terms of Settlement signed by the parties herein and filed on the 1st day of November 2024 is hereby adopted by the Court and 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.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Benjamin Franklin Akaba v. Linda Nyarko Page 12 of 13 Benjamin Franklin Akaba v. Linda Nyarko Page 13 of 13