Worgbah v Adu-Benpong (C5/354/2024) [2025] GHACC 102 (28 February 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON FRIDAY THE 28 TH DAY OF FEBRAURY, 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.), CIRCUIT COURT JUDGE SUIT NO: C5/354/2024 BRIGHT WORGBAH … PETITIONER RACECOURSE, ACCRA VRS MERCY ADU-BENPONG … RESPONDENT ACCRA JUDGMENT INTRODUCTION The parties were married under the Marriage Ordinance on the 30th November, 2013 at the Presbyterian Church of Ghana-Nii Oworshieka (RIIS Congregation), Abeka Accra. Whilst the petitioner is a trader, the respondent is a Human Resource Personnel. There are two (2) issues of the marriage namely Aiden Worgbah 11 years old and Selasi Worgbah 6 years old. On the 11th July, 2024, the petitioner filed a petition for divorce and averred that their marriage has broken down beyond reconciliation and prayed the court for the following reliefs: “WHEREFORE the Petitioner prays as follows: a. That the marriage which was celebrated between the parties be dissolved. b. That the Petitioner be granted custody of the issues of the marriage Aiden Worgbah 11 years and Selasie Worgbah 6 years because the issues have been with the Petitioner ever since they got separated with reasonable access to Respondent.”” 1 The Respondent filed her Answer and Cross-Petition to the petitioner’s Petition on the 25th October, 2024 and prayed for the following reliefs: WHEREFORE RESPONDENT PRAYS AS FOLLOWS: (a) An order for the dissolution of the marriage celebrated between the Respondent and the Petitioner. (b) That the Petitioner be granted custody of the issues of the marriage Aiden Worgbah 11 years and Selasie Worgbah 6 years with Reasonable acess to Respondent.” Since this is a matrimonial cause, it is the direct provisions of the Matrimonial Causes Act, 1971 (Act 367) which should apply. Section 2 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides that: “On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into facts alleged by the petitioner and the respondent.” The facts relied on by the parties must therefore be pleaded and placed before the court; otherwise, the court cannot perform its statutory duties under the above section of this Act. The particulars set out in detail the facts relied on by the petitioner and the respondent to establish the allegations that the marriage has broken down beyond reconciliation. The relevant particulars of the petitioner’s Petition are as follows: PARTICULARS OF UNREASONABLE BEHAVIOUR 9. That Petitioner says that Respondent has behaved so unreasonably that he cannot live with her as a husband and wife. 10. That there is a total lack of love, trust and commitment on the part of the Respondent in the marriage. 2 11. That Petitioner says that Respondent gets too much anger and furious with the least misunderstanding between the two and sometimes it gets to a stage where the Respondent abuses the Petitioner with insults. 12. That Petitioner says that Respondent has been denying him of sex stating that she is no more interested in the marriage. 13. That Petitioner says Respondent has been putting pressure on the Petitioner that she is no more interested in the marriage and that the Petitioner should grant her divorce. Hence the filing of this suit.” The relevant particulars of the Respondent’s Answer are also as follows: i) That Respondent states that it is rather the Petitioner who for the past two years often use abusive language on the Respondent that at a point Respondent conditioned her mind to turn deaf ears to the abuses. ii) That the Petitioner has on numerous occasions heaped insults on the Respondent in public and ridiculed her causing injury to her reputation and creating a bad image for her. iii) That the Petitioner has behaved in such a way that the Respondent cannot reasonably be expected to live with him and the Petitioner has caused the respondent much anxiety, distress, emotional trauma and embarrassment coupled with physical threats and verbal abuse.” SUMMARY OF EVICENCE BY THE PETITIONER AND THE RESPONDENT The petitioner testified himself and called no witness The respondent also testified herself and called no witness. The petitioner tendered in evidence as Exhibit “A” their marriage certificate. In several decided cases, the superior courts have held that there are situations where the testimony of a single witness will suffice to prove a case. 3 In the case of Kru vrs Saoud Bros & Sons (1975) 1 GLR 46, the Court of Appeal held: “Judicial decisions depend on the intelligence and credit and not the multiplicity of witnesses produced at the trial.” Also, in the case of Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR, the Supreme Court held affirming the position of the law that: “(a) A tribunal of facts can decide an issue on the evidence of one party. A bare assertion on oath by a single witness might in the proper circumstance of a case be enough to form the basis of a judicial interpretation. The essential thing is that the witness is credible by the standard set in section 80 (2) of the Evidence Act, 1975.” Again, in the case of Ghana Ports and Harbours Authority vrs Captain Zavi & Nova Complex Ltd (2007-2008) SCGLR 806 the Supreme Court held thus: “It is true that witnesses are weighed but not counted and that a whole host of witnesses are not needed to prove a particular point.” The parties mutually agreed to resolve the ancillary reliefs in this matter amicably and they reached an agreement on the 4th November, 2024. The parties subsequently filed the terms of settlement and same was adopted as the consent judgment of the court on the 14th February, 2025 as follows: i. That custody of the two (2) issues of the marriage namely Aiden Worgbah 11 years old and Selasi Worgbah 6 years old be granted to the petitioner with reasonable access to the respondent. THE PETITIONER’S CASE The petitioner testified that he got married to the respondent on 30th November, 2013 at the Presbyterian Church of Ghana - Nii Oworshieka (RIIS Congregation), 4 Abeka Accra They are two (2) issues of the marriage namely: Aiden Worgbah 11 years and Selasie Worgbah 6 years. It is the evidence of the petitioner that the respondent gets angry and furious with the least misunderstanding between them and sometimes it gets to a stage where she abuses him. He continued that there is total lack of love, trust and commitment on the part of the respondent in the marriage. According to him, the respondent has been denying him sex with the reason that she is no more interested in the marriage. It is further the evidence of the petitioner that the respondent has been putting pressure on him that she is no more interested in the marriage and that he should grant her divorce, hence the filing of this suit.. They have been separated for the past one year. The respondent’s family has returned the traditional drinks to him. That all attempts by members of the families and a Reverend Minister from the respondent’s church to resolve their differences have been unsuccessful. That he cannot reasonably be expected to live with the respondent as the respondent has caused him much pain, trauma, embarrassment, worry and anxiety. As far as the petitioner is concerned, the marriage had broken down and he would never be reconciled with the respondent. He would not go back to the respondent and no more diligent efforts at reconciliation would succeed. He therefore prayed the court to dissolve the marriage and also to grant him custody of the two (2) children of the marriage. THE RESPONDENT’S CASE It is the evidence of the respondent that she got married to the petitioner on 30th November, 2013 at the Presbyterian Church of Ghana-Nii Oworshieka (RIIS Congregation), Abeka Accra. They are two (2) issues of the marriage namely: Aiden Worgbah 11 years and Selasie Worgbah 6 years. They have experienced difficulties throughout their marriage. According to the respondent, the petitioner has behaved in such a way that she cannot reasonably be expected to live with him as husband and wife. There is total lack of love, trust and commitment on the part 5 of the petitioner to the marriage. The petitioner always complains on any little thing that she will do. The petitioner gets angry and furious at the least misunderstanding between them and sometimes she had to pack her belongings and leave the matrimonial home for a while. That the petitioner has no respect for her as a wife and talks to her anyhow in public. They have been separated for the past two years. Attempts by their family members to resolve their differences have proved futile. As far as the respondent is concerned, the marriage had broken down and she would never be reconciled with the petitioner. She would not go back to the petitioner and no more diligent efforts at reconciliation would succeed. She therefore prayed the court to dissolve the marriage and also to grant the petitioner custody of the two (2) children in the marriage with reasonable access to her and regular communication with the children. FINDINGS OF PRIMARY FACTS From the evidence on the record, the following facts are not in dispute: 1. That the parties were married under the ordinance on the 30th November, 2013 at the Presbyterian Church of Ghana-Nii Oworshieka (RIIS Congregation), Abeka Accra. 2. That the parties have two (2) issues in the marriage. 3. That both parties agree to the dissolution of their marriage. ISSUE FOR DETERMINATION The main issue for determination is as follows: Whether or not the marriage contracted between the Petitioner Bright Worgbah and the Respondent Mercy Adu-Benpong on the 30th November, 2013 at the Presbyterian Church of Ghana-Nii Oworshieka (RIIS Congregation), has broken down beyond reconciliation? 6 ANALYSIS OF THE RELEVANT SECTIONS OF THE MATRIMONIAL CAUSES ACT, 1971 (ACT 367) Before I deal with the only issue, I now wish to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely sections 1 (2), 2 (1), and 2 (3). The only ground upon which a marriage may be dissolved is where the Petitioner proves that the marriage has broken down beyond reconciliation. Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides thus: “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.” The grounds upon which a marriage would be said to have broken down beyond reconciliation are six (6) and the proof of one or more of them to the satisfaction of the Court may be a valid ground to the dissolution of the marriage. The six grounds are provided in sections 2 of the Matrimonial Causes Act, 1971 (Act 367). They are as follows: “2 (1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one of the following facts: (a) That the respondent has committed adultery and 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. 7 (d) That the parties to the marriage have not lived as husband and wife for a 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, 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. Under section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367): “Although 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.” BURDEN ON THE PETITIONER AND THE RESPONDENT In a petition for divorce, the burden that is cast on a petitioner is to lead sufficient evidence to enable a finding of those facts in issue to be made in his favour as required by sections 10 and 14 of the Evidence Act, 1975 (NRCD 323). See: Dzaisu v Ghana Breweries Limited [2009] 6 GMJ 111 S.C Ackah v Pergah Transport Limited [2011] 31 GMJ 174 S.C Sections 11( 4) and 12 (1) of the Evidence Act 1975, (Act 323) provides that the standard burden of proof in all civil matters is proof by the preponderance of 8 probabilities and there is no exception to it except where the issue to be resolved in the civil suit borders on criminality such as fraud and forgery. The Supreme Court also in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 unambiguously resolved the question of standard burden of proof. In the case of African Mining Services v Larbi [2010-2012] GLR 579, the Court held that the burden of persuasion in civil matters requires the person who has the evidential burden to discharge, to produce sufficient evidence such that a reasonable mind, such as this Court, will come to the conclusion that the existence of the fact is more probable. It is therefore the petitioner’s duty as required by law to produce the evidence of the facts in issue such that a reasonable mind, such as this Court, will come to the conclusion that from the existence of the facts, it is more probable that their marriage has broken down beyond reconciliation and that duty must be satisfactorily discharged. In this case, since the respondent also cross-petitioned, she is equally required to prove her case by the preponderance of probabilities, having regard to sections 10 and 14 of the Evidence Act, 1975 (Act 323). Furthermore, the ground upon which the petitioner seeks the dissolution of the marriage contracted between himself and the respondent is unreasonable behaviour by the respondent which the respondent denies. The respondent also alleged in her cross-petition unreasonable behaviour by the petitioner as her basis for seeking a dissolution of the marriage which the petitioner does not deny. Therefore, the onus is on each one of them to lead cogent and credible evidence to prove their respective allegations. ANALYSIS OF THE EVIDENCE ON RECORD ISSUE 9 Whether or not the marriage contracted between the Petitioner Bright Worgbah and the Respondent Mercy Adu-Benpong on the 30th November, 2013 at the Presbyterian Church of Ghana-Nii Oworshieka (RIIS Congregation), has broken down beyond reconciliation? A. UNREASONABLE BEHAVIOUR 1. UNREASONABLE BEHAVIOUR BY THE RESPONDENT The petitioner in paragraphs 9 to 12 of his Answer averred that the marriage has broken down beyond reconciliation as the respondent has behaved unreasonably towards him in a way that he cannot reasonably be expected to live with her by: i. getting angry and furious with the least misunderstanding between them to the extent that sometimes it gets to a stage where she abuses him verbally; ii. denying him of sex stating that she is no more interested in the marriage; and iii. putting pressure on him that she is no more interested in the marriage and as such he should grant her divorce. The respondent in paragraph 3 of her Answer and Cross-petition denied the various acts of unreasonable behaviour against her. Therefore the petitioner had the burden of leading cogent and credible evidence in proving the various acts of unreasonable behaviour against the respondent. Although the law is that when a party has given evidence of a material fact and he was not cross-examined upon that, he need not call further evidence of that fact and the opponent who failed to cross-examine him will be deemed to have acknowledged, sub silentio, that averment by the failure to cross examine as enunciated in the case of Quagraine vrs Adams [1981] GLR 599, Akyere-Djamson vrs Duagbor [1989-90] 1 GLR 223, SC, Fori vrs Ayirebi (1966) GLR 627 SC and Western Hardwood Ent. Ltd vrs W/A Ent. Ltd. (1998-1999) SCGLR 10, the respondent ‘s failure to cross-examine the petitioner on his testimony in respect of the allegation of unreasonable behaviour, does not in any way suggest that the 10 testimony or the assertion of the petitioner was true or has been admitted. This is because the respondent denied the said allegation of unreasonable behaviour in her Answer and Cross-Petition. The petitioner aside mounting the witness box and maintaining that the respondent has behaved unreasonably towards him to the extent that he cannot continue to live with her as a husband and wife was not able to adduce cogent and credible evidence or bring any credible witness to corroborate his claim. In the case of Zabrama v Segbedzi (1991) 2 GLR 221, the Court of Appeal restated the time honoured principle in Majolagbe v Larbi (1959) GLR 190 as follows: “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which that fact or facts he asserts can properly and safely be inferred.” Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR 883. Courage Adonoo vrs Fan Milk Ltd (2006) 6 MLRG 211 CA. T. K. Serbeh &Co Ltd vrs Mensah (2007) MLRG SC 1. Delmas America Africa Line Incorporation vrs Kisko Products Ghna Ltd (2007) 11 MLRG 141 SC. Therefore the petitioner’s evidence with respect to the allegation of unreasonable behaviour by the respondent stood unproven. There seem to be an attempt to throw dust into the eyes of this court. The petitioner thus failed to prove to the satisfaction of this court that the respondent has behaved unreasonably towards him to the extent that he cannot continue to live with her as a husband and wife. The petitioner’s charge of unreasonable behaviour is therefore a mere allegation without a scintilla of evidence against his wife. It was as if petitioner was 11 shopping for any available ground in an attempt to convince the court that his wife had behaved unreasonably towards him. 2. UNREASONABLE BEHAVIOUR BY THE PETITIONER The respondent in paragraph 4 her Answer averred that the marriage has broken down beyond reconciliation as the petitioner has behaved unreasonably towards her in a way that she cannot reasonably be expected to live with the petitioner by: i) using abusive language on her; and ii) heaping insults on her in public and ridiculed her causing injury to her reputation and creating a bad image for her. The respondent further led evidence on how the petitioner always complains on any little thing that she will do, gets angry and furious at the least misunderstanding between them and talks to her anyhow in public which led her to pack her belongings and leave the matrimonial home for a while. The petitioner did not cross-examine the respondent on her testimony in respect of the allegation of unreasonable behaviour against him which means that the testimony or the assertion of the respondent was true or has been admitted. The law is that when a party has given evidence of a material fact and he was not cross-examined upon that, he need not call further evidence of that fact and the opponent who failed to cross-examine him will be deemed to have acknowledged, sub silentio, that averment by the failure to cross examine as enunciated in the case of Quagraine vrs Adams [1981] GLR 599, Akyere-Djamson vrs Duagbor [1989- 90] 1 GLR 223, SC, Fori vrs Ayirebi (1966) GLR 627 SC and Western Hardwood Ent. Ltd vrs W/A Ent. Ltd. (1998-1999) SCGLR 10. I must also confess that no woman, no matter how large her heart can pull along with a husband who constantly subjects her to ridicule, shame, embarrassment, 12 emotional and psychological trauma by always complaining on any little thing that she will do, gets angry and furious at the least misunderstanding between them and talks to her anyhow in public and uses abusive words on her. The conduct of the petitioner in my view falls very far short of that of a reasonable man. From the totality of the evidence on record, I find as a fact that the petitioner rather has behaved in such a way that the respondent cannot reasonably be expected to continue to live together with him. The respondent proved her case by the preponderance of probabilities that petitioner has behaved unreasonably towards her in a way that she cannot reasonably be expected to live with him as provided under section 2 (1) (b) of the Matrimonial Causes Act, 1971 (Act 367) and this court holds same. I am satisfied that the respondent proved her case by the preponderance of probabilities that petitioner has behaved unreasonably towards her in a way that she cannot reasonably be expected to live with him as provided under section 2 (1) (b) of the Matrimonial Causes Act, 1971 (Act 367) and this court holds same. The next question to consider is the requirement of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367) whether the marriage between the petitioner and the respondent has broken down beyond reconciliation. On a proper construction of this sub-section of the act, the court can still refuse to grant a decree even when one or more of the facts set in section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367) have been established. It is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one party that the marriage has broken down will not be enough. See: Dictum of Bagnall J in the case of Ash v. Ash [1972] 1 ALL ER 582 at page 586. 13 From the evidence on record, there is no indication that the parties are prepared or willing to cooperate once again to find a solution to their differences. The parties have been separated for the past one year. The court finds that the marriage has broken down and there is no hope or reconciliation at this stage as the parties themselves have told this court and it is better for this court to dissolve this marriage so that the parties can go their separate ways and be put out of their miseries. To insist that the petitioner and the respondent continue to live together as man and wife would be turning a contract of marriage into one of slavery regardless of the psychological and emotional trauma on the parties or one of them and allowing this marriage to strive on hopelessly, helplessly, and lack of trust. This is because matrimonial causes are unique because they involve two persons who are physically, emotionally and spiritually involved with each other unlike other causes of action like land cases, contract, constitutional, chieftaincy etc. which do not involve intimacy between two people. No doubt the Bible declares the unique relationship as the two becoming one flesh. I cannot but agree with Osei-Hwere J (as he then was) in the case of Donkor v. Donkor (1982-83) GLR 1156 at page 1158 as follows: “The Matrimonial Causes Act (1971) Act 367 does not permit spouses married under the Ordinance to come to pray for dissolution of a marriage just for the asking. Where the court is satisfied from the conduct of the parties that the marriage has in truth and in fact broken down beyond reconciliation it cannot pretend and insist that they continue as man and wife. To do so would be turning a contract of marriage into one of slavery regardless of the psychological effect on the parties or one of them.” I find and hold that from the totality of the evidence on record that, the marriage contracted between the petitioner Bright Worgbah and the respondent Mercy Adu- Benpong on the 30th November, 2013 at the Presbyterian Church of Ghana-Nii Oworshieka (RIIS Congregation) has broken down beyond reconciliation and the 14 justifications is that the petitioner has behaved in a way that the respondent cannot reasonably be expected to live with him. I am satisfied that regarding the burden of persuasion, the respondent produced sufficient evidence to persuade me to come to the conclusion per the existence of the fact that the marriage had broken down beyond reconciliation. Thus, a prima facie case has been made by the respondent that warrants the dissolution of the marriage. The requirements of section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) has thus been met by the respondent. I hereby declare the marriage contracted between the petitioner Bright Worgbah and the respondent Mercy Adu-Benpong on the 30th November, 2013 at the Presbyterian Church of Ghana-Nii Oworshieka (RIIS Congregation) dissolved. CONCLUSION 1. The marriage solemnized on the 30th November, 2013 at the Presbyterian Church of Ghana-Nii Oworshieka (RIIS Congregation) between the petitioner Bright Worgbah and the respondent Mercy Adu-Benpong with certificate number RC/1824319 and licence number AMA-11019/2013 is hereby dissolved. 2. Custody of the issues of the two (2) issues of the marriage namely Aiden Worgbah 11 years and Selasie Worgbah 6 years is hereby granted to the petitioner with reasonable access to the respondent. 3. Parties are to bear their respective costs. PETITIONER PRESENT RESPONDENT PRESENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) 15 (CIRCUIT COURT JUDGE) 16