Bankesie v Agbeve (C5/07/2024) [2024] GHACC 414 (15 November 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON FRIDAY, THE 15TH DAY OF NOVEMBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/07/2024 MARTHA BANKESIE --------------- PETITIONER ACHIMOTA GA-203-2001 VRS NELSON AGBEVIE --------------- RESPONDENT FOOD AND DRUGS AUTHORITY 17 NELSON MANDELA AVE. ACCRA PARTIES: PRESENT COUNSEL: MARCELLE WILLIAMS HOLDING THE BRIEF OF JACOB ACQUAH- SAMPSON, ESQ. FOR THE PETITIONER PRESENT WILLIAM AKASAN, ESQ. FOR THE RESPONDENT ABSENT JUDGMENT Martha Bankesie v. Nelson Agbeve Page 1 of 11 FACTS The parties got married under Ordinance Cap. 127, on 12th May 2018, at the St. James Catholic Church, Osu, Accra. There is no issue of the marriage. On the 18th day of December 2023, the Petitioner filed the instant petition on grounds that the marriage between herself and the Respondent has broken down beyond reconciliation as a result of the unreasonable behaviour of the Respondent. She prayed the Court for the marriage celebrated between the parties on 12th May 2018 to be dissolved given that it is irretrievably broken down. In his answer to the Petitioner’s petition, the Respondent denied the allegations of unreasonable behaviour, and stated that it is rather the Petitioner who has behaved in a way that he cannot reasonably be expected to live with her as husband and wife. The Respondent cross petitioned as follows: a. That the said marriage be dissolved. b. An order for each party to bear their own cost. THE EVIDENCE OF THE PETITIONER In her evidence to the Court, the Petitioner testified among others that she is a Public Servant and works with the Food and Drugs Authority. That the parties got married under Customary Law and the customary marriage was converted into a monogamous one under Part III of the Marriages Act (CAP 127) which was celebrated at the St. James Catholic Church, Osu, Accra on 12th May 2018. The Petitioner continued that the parties after the marriage, cohabited at unnumbered houses at Osu and Sowutuom in Accra. That there are no issues in the marriage. Martha Bankesie v. Nelson Agbeve Page 2 of 11 According to the Petitioner, the Respondent, during the course of the marriage hardly made any financial contribution to the upkeep of the home. That he refused to contribute money for food and for the basic upkeep of the matrimonial home. That the Respondent also on countless occasions during the course of the marriage refused to communicate with her. That after a year of marriage, the Respondent refused to engage in any form of sexual relations with her and will only agree to do so after being persuaded by her. The Petitioner further testified that she contributed an amount GHS10,000 for the parties to acquire a vehicle however, the Respondent never allowed her to drive the vehicle and will always keep the car key in his pocket even when he goes to sleep. That on one occasion, when the Respondent fell sick and had to be rushed to the hospital, he still had the car key in his pocket and instructed the Petitioner to drive since it was a "push to start" button that was engaged to start the vehicle. That in the course of the marriage, she was forced to leave the marital bed because the Respondent intentionally arranged items such as his phone, and other things between his side of the bed and that of the Petitioner which made her uncomfortable. That after the marriage, the Respondent moved in with her in a house she paid rent for. That when she reminded the Respondent that they needed to make provision to pay the rent advance, the Respondent promised that the parties would move into a new house. However, she went out one day only to return to find out that, the Respondent had packed all his belongings and left the matrimonial home and never returned. That after several diligent efforts by members of the families of both parties as well as a marriage counselor to help the parties settle their differences, they have not been able to reconcile their differences. Martha Bankesie v. Nelson Agbeve Page 3 of 11 The Petitioner did not call witness and thereafter closed her case. THE EVIDENCE OF THE RESPONDENT The Respondent in his evidence testified that he is a Public Servant at Food and Drugs Authority. He confirmed his marriage to the Petitioner herein as asserted by the Petitioner. He continued that the marriage between the parties has broken down beyond reconciliation. That just after their marriage in 2018, the Petitioner requested that he set her up with capital for bofrot business which he gave the Petitioner a cash of GHS2,000.00 and also provided her with 2x50Kg wheat flour, 1x 50Kg sugar, 1x 20kg margarine, 1 x 25L cooking oil to enable her start the bofrot business. That they never lacked food stuffs in their matrimonial home, he always made sure that he supplied food stuffs such as rice, tin tomatoes, frozen chicken and fish in cartons and had always made sure the house never lacks these items, and that they tend to have so much that they frequently send some to her sisters, brothers and her parents in bags and cartons. According to the Respondent, he has dutifully maintained the Petitioner but she appears simply not ready to carry on with the marriage. That later part of 2021, they had a misunderstanding, she got annoyed and refused to sleep on the bed and has since refused to have sex with him, and to cook for him. That she starves him and sorts herself out at her restaurant that was just adjacent to where they live. The Respondent continued that the Petitioner has already left the matrimonial home under no pressure from any quarters and that she left voluntarily leaving him alone in the matrimonial home which implies that she had already made her choice prior to bringing this action. That the Petitioner has behaved in such a way that he cannot reasonably be expected to live with her, as she has caused him much anxiety, distress and Martha Bankesie v. Nelson Agbeve Page 4 of 11 embarrassment. He prayed for this Honourable Court to grant her relief being sought for in her Petition. LEGAL ISSUE The legal issue to be determined by this Court is whether or not the marriage 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. 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. Martha Bankesie v. Nelson Agbeve Page 5 of 11 ANALYSIS Before I examine the evidence adduced at the hearing, it is essential 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:- ... (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; Martha Bankesie v. Nelson Agbeve Page 6 of 11 (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, 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: Both the petition and cross petition have unreasonable behaviour as their respective grounds for their respective reliefs of the dissolution of the marriage. The Petitioner in her evidence testified that the Respondent hardly made any financial contribution to the upkeep of the home as he refused to contribute money for food and for the basic upkeep of the matrimonial home. That the Respondent also refused to communicate with her on a number of occasions; further refused to engage in any form of sexual relations with her unless she cajoles him just after a year of marriage. The Petitioner also stated that the Respondent never allowed her to drive the vehicle she contributed financially to purchase. That the Respondent also per his conduct forced her Martha Bankesie v. Nelson Agbeve Page 7 of 11 to leave the marital bed and that he eventually packed all his belongings and left the matrimonial home and never returned, after failing to pay for their rent advance. The Respondent denied the Petitioner’s allegations of unreasonable behaviour on his part. Therefore, 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 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. Likewise, the Respondent also made allegations of unreasonable behaviour on the part of the Petitioner, that the Petitioner has refused to have sex with him, and to cook for him. That the Petitioner starves him and sorts herself out at her restaurant. That the Petitioner has caused him much anxiety, distress and embarrassment. However, the Respondent could also not prove his averments which were denied by the Petitioner in her reply and answer to the cross petition. Similarly, the Respondent only repeated his assertions without adducing sufficient evidence to establish same. 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: Martha Bankesie v. Nelson Agbeve Page 8 of 11 “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 both the Petitioner and the Respondent could not prove their respective allegations of unreasonable behaviour on the part of each other, after both denied the other’s allegations, I find from the evidence on record that there was no unreasonable behaviour on the part of either the Petitioner or Respondent and accordingly dismiss the said allegations for lack of evidence. 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. 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. It does not, to my mind follow, however, that a divorce will never be granted in any case unless evidence of an unsuccessful attempt at reconciliation is led.” Martha Bankesie v. Nelson Agbeve Page 9 of 11 It is on record that attempts at reconciliation have been unsuccessful. 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 equally 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 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 12th May 2018, at the St. James Catholic Church, Osu, Accra. Thus, the marriage is hereby dissolved. 2. The marriage certificate with Certificate No. SJ/222 and License No. AMA 101803730/2018 is accordingly cancelled. 3. The parties shall bear their own cost of the suit. Martha Bankesie v. Nelson Agbeve Page 10 of 11 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Martha Bankesie v. Nelson Agbeve Page 11 of 11