Acheampong v Nyadubea (C5/163/2024) [2025] GHACC 104 (21 February 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON FRIDAY THE 21ST DAY OF FEBRAURY, 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.), CIRCUIT COURT JUDGE SUIT NO: C5/163/2024 EMMMANUEL KUSI ACHEAMPONG HOUSE NO 657 PETITIONER ACHIMOTA MARKET VRS ALICE KUMI NYADUBEA OP1 ODUPONG OFAAKOR RESPONDENT PALACE KASOA JUDGMENT INTRODUCTION The parties were married under the Marriage Ordinance on the 29TH December, 2018 at the Jesus Generation Evangelistic Ministry, Accra. Whilst the Petitioner is Banker, the Respondent is a nurse. On the 15th January, 2024, the Petitioner filed a petition for divorce and averred that the marriage has broken down beyond reconciliation and prayed the court for the following reliefs: “11. WHEREFORE the Petitioner prays: i. That his marriage to the Respondent be dissolved since same has broken down beyond reconciliation. ii. That each party be made to bear their own cost of the suit.’’ 1 The respondent filed her Answer to the petitioner’s Petition on the 8th March, 2024 and cross-petitioned for the following reliefs: “a. That the marriage celebrated on 29th December 2018 between the parties be dissolved since same has broken down beyond reconciliation. b. That the Petitioner is not entitled to any ancillary reliefs.” 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 allegation that the marriage has broken down beyond reconciliation. The relevant particulars of the petitioner’s Petition are as follows: “8. That the Respondent has committed adultery and the Petitioner finds it intolerable to live with the Respondent as husband and wife. PARTICULARS OF ADULTERY a. The Respondent voluntarily confessed to committing adultery with persons other than the Petitioner. b. That the Petitioner saw evidence on the Respondent’s phone pointing to the fact that the Respondent has been engaging in sexual relations with persons other than the Petitioner. 2 9. That the Petitioner and the Respondent have not lived as man and wife for a period of five years. PARTICULARS OF FAILURE TO LIVE AS MAN AND WIFE a) That the Petitioner and the Respondent have failed to live as man and wife for a continuing period of five (5) years. b) That the Petitioner and the Respondent have not seen each other for the past five (5) years. 10. That all attempts at reconciliation by the families of the parties have proved futile.” The relevant particulars of the Respondent’s Answer is also as follows: “8 In further response to paragraph 7 of the Petition the Respondent contends that she has totally lost any interest if at all in the marriage and same has broken down beyond reconciliation.” SUMMARY OF EVIDENCE BY THE PETITIONER AND THE RESPONDENT The petitioner testified himself but did not call any witness The respondent also testified through her lawful attorney and called no witness. 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. 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: 3 “(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 Petitioner tendered in evidence as Exhibit “A”, the Marriage Certificate. THE PETITIONER’S CASE The petitioner testified that he got married to the respondent on the 29th December, 2018 at the Jesus Generation Evangelistic Ministry, Accra. Since the celebration of the marriage, he has resided in Accra whilst the respondent resided in the United States of America. They have no child together. According to the petitioner, the respondent travelled to the United States of America three days after they got married and returned to Ghana after a year and a half, stayed for few days and that was when the marriage started to go downhill. The petitioner stated that on the day of the arrival of the respondent to Ghana, he went to the airport to pick her up and he waited for quite some time, only for her to inform him that she had joined a car provided by her uncle. He was quite disappointed about the turn of events and so called the respondent’s mum to inform her about what happened. After the conversation with the respondent’s mother, he drove to Kasoa to pick the respondent up and upon his arrival, he was informed by her family that she was not ready to meet him. Nevertheless, the respondent’s aunt assured him that she would ensure that the respondent comes to his place. He later received a call from the respondent’s family asking him to pick the respondent up, which he did, and 4 while they were on their way home, the respondent mentioned that she wanted a divorce. At first, he assumed she was joking and so he did not think much about it until she brought the topic of divorce again and stated her intention of filing for a divorce. After, he asked the respondent whether she has informed her parents about her decision to divorce him. It is further the evidence of the petitioner that during the respondent’s brief time at his end, she was continually on the phone with someone, and when he inquired who it was, she said it was a colleague from work. However, the phone call kept going on till late in the night and he became concerned. That night, he turned off his WIFI in the house and went to sleep. However, when he woke up, he noticed that the respondent had taken his phone and was on another call. He became quite suspicious of the respondent’s relationship with the supposed colleague and so the next day, he searched the respondent’s phone and to his utmost disbelief, he found flirtatious messages between the respondent and her lover, the supposed colleague pointing to an intimate relationship and confirming his suspicion of their involvement in a sexual affair. He took screen shots of the messages, showed them to the respondent, and requested her to tell him the truth. The respondent initially denied the contents of the communications, but subsequently voluntarily confessed to having committed adultery. It is also the evidence of the petitioner that the respondent has committed adultery such that he finds it intolerable to live with her. Furthermore, he and the respondent have not lived together as husband and wife for a continuous period of 5 years and all attempts at reconciliation by their families and friends have proved futile. 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. 5 THE RESPONDENT’S LAWFUL ATTORNEY’S CASE It is her case that she is testifying on behalf of the respondent and has a power of attorney from her which she tendered in evidence as exhibit “1”. It is the evidence of the respondent’s lawful attorney that the respondent got married to the petitioner on the 29th December, 2018 at the Jesus Generation Evangelistic Ministry, Accra. After the marriage, the petitioner lived in Ghana, whilst the respondent lived in the United States of America where she is domiciled. There are no issues of the marriage. At the time the parties contracted the marriage, the petitioner was aware that the respondent was serving in a Navy in the United States of America and as such could only visit the petitioner when she was on her annual leave. According to the respondent’s attorney, the respondent has been very supportive towards the petitioner even though he has not been appreciative over the subsistence of their marriage. The respondent has not committed any adultery and at any rate the petitioner has failed to adduce any evidence to substantiate the said allegation and the court ought to disregard such spurious allegations. She continued that the petitioner failed to avail himself for any family meetings whether virtual or in person which were specifically convened to settle the misunderstanding between them and it is surprising that the petitioner would fabricate such untruths about her. The respondent has had to endure an unsupportive partner who is unwilling to make the marriage work and strongly believes that it will serve the best interest of the parties that the marriage which has already broken down beyond reconciliation be dissolved. 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 29th December, 2018 at the Jesus Generation Evangelistic Ministry, Accra 6 2. That there are no issue(s) of 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 Emmanuel Kusi Acheampong the petitioner herein and Alice Kumi Nyadubea the respondent herein on the 29th December, 2018 at the Jesus Generation Evangelistic Ministry, Accra has broken down beyond reconciliation? 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: 7 (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. (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 8 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 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 the 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 grounds upon which the petitioner seeks the dissolution of the marriage contracted between himself and the respondent are adultery which the respondent denies and having not lived together as husband and wife for a continuous period of five year. The respondent also alleged in her cross-petition having not lived together with the petitioner as husband and wife for two years. Therefore, the onus is on each one of them to lead cogent and credible evidence to prove their respective allegations. 9 ANALYSIS OF THE EVIDENCE ON RECORD A. ADULTERY BY THE RESPONDENT According to the petitioner, during the respondent’s brief time at his end when she came to Ghana one and a half years after she left for the United States of America three days, after their marriage. She was continually on the phone with someone, and when he inquired who it was, she said it was a colleague from work. However, the respondent’s phone call kept going on till late in the night and he became concerned. That night, he turned off his WIFI in the house and went to sleep. However, when he woke up, he noticed that the respondent had taken his phone and was on another call. It is further the evidence of the petitioner that he became quite suspicious of the respondent’s relationship with the supposed colleague and so the next day, he searched the respondent’s phone and to his utmost disbelief, he found flirtatious messages between the respondent and her lover, the supposed colleague pointing to an intimate relationship and confirming his suspicion of their involvement in a sexual affair. He took screen shots of the messages, showed them to the respondent, and requested her to tell him the truth. The petitioner stated further that the respondent initially denied the contents of the communications, but subsequently voluntarily confessed to having committed adultery. 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 counsel’s failure to cross-examine the petitioner on his testimony in 10 respect of the allegation of adultery, does not in any way suggest that the testimony or the assertion of the petitioner was true or has been admitted. This is because the respondent denied the said allegation of adultery in her Answer to the Petition. Adultery is between a married person and a person of the opposite sex and it is difficult to prove since it is an illicit affair committed through the backdoor at the blind side of the other spouse. While adultery does not carry proof beyond all reasonable doubt as rightly held by Sarkodee J (as he then was) in Adjetey and Another vs. Adjetey (1973) 1 GLR 216 Holding 1, same must be proved to the satisfaction of the court. In the case of Adjetey v. Adjetey [1973] 1 GLR 216 it was also held thus: “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 certainty.” In the case of Quartey v. Quartey & Anor (1972) 1 GLR it was held by Kingsley- Nyinah J. that: “The burden of proving adultery lies on the person who alleges it and it cannot be shrugged off by evidence that is tainted, indifferent, suspicious or uncertain. The standard of proof required is proof beyond reasonable doubt, that is, it must be proved with the same degree of strictness as is required for the proof of a criminal offence.” It also need not be backed with corroborating evidence under section 7 (2) of the Evidence Act, 1975 (Act 323). It is enough if the respondent is found openly or uncompromisingly associating with his paramour. In the instant case, the petitioner apart from mounting the witness box and repeating the averments in his Petition failed to lead a shred of evidence to support his allegation that the respondent has committed adultery. In other words, the petitioner’s allegation that the respondent has committed adultery was not backed with the requisite evidence and I seek to demonstrate why. 11 The petitioner claimed that he searched the respondent’s phone and to his utmost disbelief, he found flirtatious messages between the respondent and her lover, the supposed colleague pointing to an intimate relationship and confirming his suspicion of their involvement in a sexual affair and he took screen shots of the messages. However, he failed to show the said flirtatious messages to the court. As stated supra, the petitioner aside mounting the witness box and maintaining that the respondent has committed adultery 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. The petitioner thus failed to prove to the satisfaction of this court that the respondent has committed adultery and that by reason of that adultery he finds it intolerable to live with her. The petitioner’s charge of adultery is therefore a mere allegation without a scintilla of evidence against his wife. It was as if petitioner was shopping for any available ground in an attempt to convince the court that his wife committed adultery so that the marriage could be dissolved. No doubt he failed to even tell the court the name of the said colleague of the respondent and lead any evidence to the effect 12 that he caught the respondent making love to her alleged lover or found respondent and her lover in a compromising position. B. PARTIES HAVE NOT LIVED TOGETHER AS HUSBAND AND WIFE FOR A PERIOD OF FIVE YEARS The petitioner in paragraph 10 of his Petition averred that the marriage has broken down beyond reconciliation as he has not lived together with the respondent as husband and wife for over five years. The petitioner in his evidence testified to that fact. The respondent’s lawful also testified that the parties to the marriage have not lived together as husband and wife for a continuous period of at least five years. The respondent’s lawful attorney further testified to that fact under cross- examination; The following dialogue ensued between counsel for the petitioner and the respondent’s lawful attorney: “Q. Do you know of any arrangements between the petitioner and the respondent for them to be together anywhere in the world as a married couple? A. Yes my lord. Q. And when was the last time the parties acted on that arrangement? A. My lord in the year 2019. Q. Is it true that the respondent and the petitioner have not lived together as husband and wife for the past five years? A. Yes my lord.” From the evidence on record, from 2019 to 15th January, 2024 when the Petition was filed, which is five years, the parties have not lived together as husband and wife. 13 I am satisfied that the parties proved their case by the preponderance of probabilities that they have not lived together as a married couple for a continuous of five years immediately preceding the presentation of the petition as provided under section 2 (1) (e) 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. 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 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 14 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 and the respondent on the 29th December, 2018 at the Jesus Generation Evangelistic Ministry, Accra has broken down beyond reconciliation and the justification is that from the evidence, the parties to the marriage have not live together as husband and wife for a continuous period of five (5) years. I am satisfied that regarding the burden of persuasion, the petitioner and 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 petitioner and 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 petitioner and the respondent. I hereby declare the marriage contracted between the Emmanuel Kusi Acheampong the petitioner herein and Alice Kumi Nyadubea the respondent on 15 the 29th December, 2018 at the Jesus Generation Evangelistic Ministry, Accra dissolved. CONCLUSION 1. The marriage solemnized on the 29th December, 2018 at the Jesus Generation Evangelistic Ministry, Accra between Emmanuel Kusi Acheampong the Petitioner herein Alice Kumi Nyadubea the Respondent herein with Certificate Number JGM/M/014/18 Licence Number AMA 101808308/2018 is hereby dissolved. 2. Each party shall bear their own costs. COUNSEL ADWOA BENEWAA BIRITWUM HOLDING THE BRIEF OF AFUA YIRENKYIWA APPIAH-ADU FOR THE PETITIONER ABSENT GEORGE ANNAN-PRAH FOR THE RESPONDENT PRESENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 16 17