Aalbers v Acheampong (C5/16/2024) [2025] GHACC 80 (14 February 2025)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 14TH DAY OF FEBRUARY, 2025 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/16/2024 SAMANTHA NICOLE AALBERS --------------- PETITIONER 20 ANEVON CRESCENT SPINTEX 18 TEMA VRS ALEXANDER TENKORANG ACHEAMPONG -------------- RESPONDENT HOUSE NO. BZ 123 BESTA STEET, PROMISE LAND TEMA WEST (GT-321-2479) PARTIES: PRESENT COUNSEL: NII ADAMA ADAMAFIO, ESQ. FOR THE PETITIONER ABSENT FRANCIS AKOBRE, ESQ. HOLDING THE BRIEF OF JULIUS ACKAH, ESQ. FOR THE RESPONDENT PRESENT Samantha N. Aalbers v. Alexander T. Acheampong Page 1 of 10 JUDGMENT FACTS The parties got married under Ordinance Cap. 127, on 30th November 2017, at the Ledzokuku-Krowor Municipal Assembly, Teshie-Nungua. There is one issue of the marriage. On 27th March 2024, the Petitioner filed the instant petition on grounds that the marriage between herself and the Respondent has broken down beyond reconciliation due to the unreasonable behaviour of the Respondent; and prayed the Court for the following reliefs; i. An order for the dissolution of the marriage celebrated between the parties herein. ii. An order for lump sum amount of Two Hundred Thousand Ghana Cedis (GHS200,000.00) in favour of Petitioner. iii. An order for custody of the issue in the marriage in favour of Petitioner with reasonable access to Respondent. iv. Maintenance of the issue of the marriage to be paid by Respondent; Two Thousand Ghana Cedis (GHS2,000.00) monthly, rent allowance, the child's school fees and hospital expenses. v. Costs inclusive of legal fees. vi. Any other reliefs that appear just to the Court. In his answer to the petition and cross petition, the Respondent denied the allegations of unreasonable behaviour, and stated that it is rather the Petitioner who is being unreasonable and immature. The Respondent cross petitioned as follows: Samantha N. Aalbers v. Alexander T. Acheampong Page 2 of 10 a. That the marriage contracted between the parties be dissolved. b. That the parties should have shared custody of the issue of the marriage. c. That each party should bear his or her own cost of litigation. d. Any other Order(s) to be made by this Honourable Court. At the setting down for trial stage, the Court with the consent of the parties and their respective lawyers, referred the parties to the Court Connected Alternative Dispute Resolution (CCADR) Centre for the mediator to attempt amicable settlement between them on the ancillary reliefs in the instant petition. The mediator on the 10th day of October 2024, filed in the Registry of this Court, the Terms of Agreement executed by the parties on the ancillary reliefs which indicated that there was a successful settlement on the ancillary reliefs. 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. 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’ agreement on the ancillary reliefs as per their Terms of Agreement filed on 10th October 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. Samantha N. Aalbers v. Alexander T. Acheampong Page 3 of 10 As a result, the hearing of the instant petition was basically on the dissolution of the marriage since the mediator at the CCADR had filed the parties’ Terms of Agreement on the ancillary reliefs. THE CASE OF THE PETITIONER In her evidence to the Court, the Petitioner testified that she and the Respondent married under Ordinance on 30th November 2017. That after the marriage, the they both cohabited at Adjei Kojo Global Town and thereafter they lived at Adjei Promiseland- Ashaiman, Accra. That there is one issue of the marriage namely Gerald Tenkorang Acheampong; six years. She continued that the marriage has broken down beyond reconciliation in that the Respondent has behaved in such a way that she cannot reasonably be expected to live with him and that the Respondent has caused her a lot of pain, anxiety, embarrassment and distress. According to the Petitioner, the Respondent disregards her in many ways for which reason she is seeking this divorce. The Petitioner did not call witness and thereafter closed her case. THE CASE OF THE RESPONDENT The Respondent in his evidence confirmed his marriage to the Petitioner, and the fact that the parties have one issue of the marriage being Gerald Tenkorang Acheampong (6 years). The Respondent further testified among others that his marriage to the Petitioner has broken down beyond reconciliation, largely due to the fact that the Petitioner has always being under the control and influence of her mother and is unable to take Samantha N. Aalbers v. Alexander T. Acheampong Page 4 of 10 independent decisions. That the Petitioner prefers to please her mother, even if, it is not in the interest of their marriage. That it is this attitude that has caused the breakdown of the marriage. According to the Respondent, he has never been disrespectful to the Petitioner and he is a faithful and a loving spouse to the Petitioner. That as a loving husband, the Petitioner's happiness and comfort is his priority. He provides her with everything she needs and ensures that she never lacks anything. That the nature of his work as a customs officer demands that he reports to work by 7am in the morning he can sometimes close as late as 11pm in the evening. By the time he gets home, it is almost midnight. That as a Petroleum Officer, he sometimes goes offshore for a month and the Petitioner is very much aware of same. That he was even compelled to impress upon his superiors, to re-assign him to boarding duties, instead of residence, after several complaints by the Petitioner. That the Petitioner never compromises on her demands and yet, when he must work to provide for same, she complains and nags. The Respondent further testified that it is rather the Petitioner who has deserted her marital home, her actions are depriving both his son and him, the daily love and affection between a father and a son. He prayed that this Honourable Court dissolves the marriage contracted between the parties and grant his reliefs. The Respondent did not also call witness and thereafter closed his case. 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. Samantha N. Aalbers v. Alexander T. Acheampong Page 5 of 10 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. 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: Samantha N. Aalbers v. Alexander T. Acheampong Page 6 of 10 "1(2) The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 2(1) For the purpose of showing that the marriage has broken down beyond reconciliation the Petitioner shall satisfy the Court of one or more of the following facts:- ... (a) that the Respondent has committed adultery and that by reason of the adultery the Petitioner finds it intolerable to live with the Respondent; (b) that the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent; (c) that the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d) that the parties to the marriage have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph despite the refusal; (e) that the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. (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." Samantha N. Aalbers v. Alexander T. Acheampong Page 7 of 10 In the instant case, it is required that the evidence adduced by the parties herein must be able to indicate one or more of the facts under section 2(1) of Act 367 to prove that the marriage has broken down completely. From the evidence adduced by the parties at the hearing, I made the subsequent observations and findings: The Petitioner in her evidence testified that the Respondent has behaved in such a way that she cannot reasonably be expected to live with him and that the Respondent has caused her a lot of pain, anxiety, embarrassment and distress. According to the Petitioner, the Respondent disregards her in many ways for which reason she is seeking this divorce. The Respondent denied the Petitioner’s allegations of unreasonable behaviour on his part. As a result, the Petitioner had a burden to lead sufficient evidence to prove her allegations of unreasonable behaviour on the part of the Respondent. This burden, the Petitioner failed to discharge in the sense that the Petitioner in her evidence only repeated the assertions in her pleadings and did not lead cogent evidence to substantiate her allegations of unreasonable behaviour after same was denied by the Respondent. The Petitioner did not go beyond her rhetorical statements as already asserted in her pleadings. The Petitioner had the onus to prove her allegation of unreasonable behaviour on the part of the Respondent, to the satisfaction of the Court which assertions she failed to prove. The law is very clear on allegations and the legal principle is that he who alleges must prove. In Klah v. Phoenix Insurance Company Ltd [2012] 2 SCGLR 1139, it was held that: Samantha N. Aalbers v. Alexander T. Acheampong Page 8 of 10 “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”. Considering that the Petitioner could not prove her allegations of unreasonable behaviour after it was denied by the Respondent, I find from the evidence on record that there was no unreasonable behaviour on the part of the Respondent and accordingly dismiss the said allegations. Notwithstanding the above, from the pleadings of the parties and the evidence on record, there is an indication that the parties have irreconcilable differences and this led to their separation before the presentation of the present petition. The Court gave the parties the opportunity to attempt reconciliation at the Court Connected Alternative Dispute Resolution (CCADR) Centre but both parties had taken entrenched positions and were not ready to reconcile. It is therefore undisputable that the parties to the marriage have been unable to reconcile their differences. It is also not in issue that the Respondent similarly prays for the dissolution of their marriage. Accordingly, I find that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Flowing from the above, I find that the marriage between the parties has broken down beyond reconciliation. CONCLUSION Samantha N. Aalbers v. Alexander T. Acheampong Page 9 of 10 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 both parties 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 30th November 2017, at the Ledzokuku-Krowor Municipal Assembly, Teshie-Nungua. Thus, the marriage is hereby dissolved. 2. The marriage certificate with Certificate No. RM/242/2017 and License No. LEKMA/ROM/1503/2017 is consequently cancelled. 3. The Terms of Agreement signed by the parties herein and the mediator at the CCADR centre; and filed on the 10th day of October 2024 is hereby adopted by the Court and same is 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) Samantha N. Aalbers v. Alexander T. Acheampong Page 10 of 10