Ansong v Bawelle (C5/333/2021) [2024] GHACC 413 (30 October 2024)

IN THE CIRCUIT COURT “11” HELD IN ACCRA ON WEDNESDAY, THE 30TH DAY OF OCTOBER 2024, BEFORE HIS HONOUR BASILIA ADJEI-TAWIAH, CIRCUIT COURT JUDGE SUIT NO. C5/333/2021 GERALD AMANKWAH ANSONG PETITIONER VS JOYCE BAWELLE RESPONDENT ============================================================================== JUDGMENT ============================================================================== This matrimonial matter was originally presided over by Her Honour Priscilla Dapaah Mireku and then was taken over by H/H Isaac Oheneba Kuffour before whom trial commenced. At the time I took over, the trial was at a fairly early stage, so an order was made on 26th June, 2024 for proceedings to be typed out for adoption and continuation. Brief Background By a petition filed on 6th May 2021, the Petitioner herein petitioned this Court for a divorce on grounds of Unreasonable Behaviour, and for which reason the Petitioner could not continue to live with the Respondent. It is the Petitioner’s case that all attempts made by both sides of the parties’ families to resolve their differences have been unsuccessful. The Petitioner has prayed this Court for a dissolution of the marriage; an order for the physical and legal custody of the only issue of the marriage, Sampson Obeng Ansong (1 1 year 9 months at the time of filing petition) with reasonable access to the Respondent and any orders that this Honourable Court deems fit. From the records, the Respondent was served personally with the Divorce Petition. However, subsequent processes which included Notice to Set Down Proceedings for Trial, Hearing Notices and Petitioner’s Witness Statement and Supplementary Witness Statement were all served on the Respondent via substituted service by posting copies of the processes on notice board of the Circuit Court and on the walls of the Respondent’s residence, No.9 Alloway Crescent, Tsui bleoo last stop, Accra. The Respondent did not enter appearance, neither did she deliver an Answer to the petition nor attended Court, even once. On the return date for hearing, the proceedings were adopted, and the hearing was adjourned after the Petitioner concluded his testimony for the Respondent to cross examine the Petitioner. The Respondent did not appear at the next hearing although hearing notice was served on her by substituted service. The absence of the Respondent was construed by this Court to mean that the Respondent was disinterested in the outcome of the petition and had waived her right to participate in the proceedings. The matter was accordingly adjourned for Judgement. Applicable Law and its Application By Section 41(2) of the Matrimonial Causes Act, 1971 (Act 367) which provides that: On application by a party to a marriage other than a monogamous marriage, the court shall apply the provisions of this Act to that marriage, and in so doing, subject to the requirements of justice, equity and good conscience, the Court may— (a) have regard to the peculiar incidents of that marriage in determining appropriate relief, financial provision and child custody arrangements. 2 (b) grant any form of relief recognized by the personal law of the parties to the proceedings, either in addition to or in substitution Any party to a marriage other than a monogamous one who seeks a relief from this Court, which but for the above-quoted section the Court could not have entertained must be deemed to have made an application to the Court to apply the provisions of this Act to the marriage. But for this provision in the Act, the Courts would not entertain petitions for divorce where the marriage was one contracted under Customary Law. Roger Korsah J held by in Adjei v Foriwaa (1980) GLR 378 as follows: “Customary Law divorce is by act of the parties not by a decree of the Court.” This is because the customary procedures for the dissolution of customary law marriages differ from tribe to tribe, locality to locality and the personal law of the parties to the marriage. But for this enactment, this court could not have entertained this petition for dissolution of the parties’ customary marriage. Per Section 2 of Act 367 which provides that 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 such adultery the petitioner finds it intolerable to live with the respondent; or (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or 3 (d) that the parties to the marriage have not lived as man 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 such 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 notwithstanding the refusal; or (e) that the parties to the marriage have not lived as man 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. The Petitioner having petitioned this Court for a divorce on grounds of Unreasonable Behaviour on the part of the Respondent. The term “Unreasonable Behaviour” is used to describe the fact that a person has behaved in such a way that their partner/spouse cannot reasonably be expected to live with them. In support of this ground, the Petitioner filed witness statement on 4th April, 2022 and tendered same into evidence on 14th February, 2024. He intimated to the Court that, he has two children namely; Abena Asantewaa Ansong (8 years) and Ama Oduraa Ansong (6 years) from a previous relationship before getting married to the Respondent customarily in or around September, 2018.That during the pendency of the marriage the Respondent consistently subjected the two issues to cruelty and abuse in the Petitioner’s absence; that the Respondent used offensive and unwholesome words and curses on the two issues for little offences and mistakes; that the Respondent on multiple occasions physically assaulted the children to the extent of inflicting multiple wounds on them 4 among others. The Petitioner attached as part of his evidence, photocopies of photographs of scars on the hand, arm and rib area of the two issues which was caused as a result of the said physical assault by the Respondent. In a supplementary witness statement filed on 22nd May, 2024, the Petitioner attached a photocopy of a complaint lodged against the Respondent by the Petitioner at the Domestic Violence and Victims Support Unit (DOVVSU) dated 17th November 2020. In the said compliant, the Petitioner sought an investigation into the alleged physical assault by the Respondent on the Petitioner’s two issues. Section 11(1) of the Evidence Act 1975 (NRCD 323), provides that: “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue”. This position of the law was amply explained by this Court in the case of IN RE ASHALEY BOTWE LANDS; ADJETEY AGBOSU & OTHERS [2003-2004] SCGLR 400, 425-426. The Supreme Court speaking through His Lordship Brobbey JSC held as follows: “The effect of section 11 (1) and 14 and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court must make a determination of fact, or of an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has a duty to help his own cause by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence the court will be left with no choice but evaluate the entire case on the basis of the evidence before the court, which may turn out to be the only evidence of the plaintiff. (emphasis mine). If the court chooses to believe the only 5 evidence on record the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant. In the light of the statutory provisions, literally relying on the common law principle that the defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant. The above cited case was applied in LINDA AKOTO vs. BRIGHT KWASI MANU [2022] DLSC11680 where the Respondent filed a Petition seeking dissolution of her marriage with the Appellant and claimed some ancillary reliefs. The Appellant failed to file an Answer. When the Respondent testified and stated that the Appellant has two other houses apart from their matrimonial house. The Appellant failed to challenge the Respondent on this assertion. The Apex Court held; the trial judge was thus right when she settled the matrimonial house on the Respondent as there is unchallenged evidence on record that the Appellant has two other houses aside the matrimonial house. The argument from counsel for the Appellant that the trial Judge should have found out the location of the said properties, its value etc. and her evaluation of the evidence on record was without merit. If the Appellant had challenged this piece of evidence, then the Respondent would have been obliged to give the particulars the Appellant is referring to. Again, in the case of TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882, holding (1) where their Lordships held that: “The law is well-settled (as held by the trial court and affirmed by the Court of Appeal) that where the evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court. In the instant case, the Respondent did not deliver an Answer to the Petition and did not appear before the Court to raise any objection to the testimony of the Petitioner after being served with all the court processes and hearing notices to do so. The only evidence before 6 the court now is that of the Petitioner to assist this Court decide on the breakdown of the marriage and related ancillary reliefs. The Petitioner’s evidence, in the absence of any challenge to any issue or subject matter therefore stands uncontroverted. Again, in the instant case, no evidence was led by the Parties on the type of Custom used in celebration of the marriage, where the customary marriage took place or the system of family the parties subscribe to. It is therefore not clear to this Court what the personal law of the parties to the marriage is. This does not help especially when the court must decide on the legal custody of an issue of the marriage being a customary law one. In the absence of such knowledge, the Court shall base its findings on the available records and evidence before it, subject of course to the principles of justice, equity and good conscience pursuant to Section 41(2) of Act 367(supra) Based on the evidence presented to this Court, I am satisfied that the customary marriage celebrated between the parties in or around September 2018 has broken down beyond reconciliation and the marriage is hereby dissolved on the Petitioner’s terms. I hereby grant joint custody of the minor issue of the marriage, Sampson Obeng Ansong to the Parties. Both Parties shall be equally responsible for the educational, feeding, and medical expenses of the said issue. The Petitioner shall bear his own legal costs. I reckon that since the Petitioner through counsel has already lodged a complaint of domestic violence against the Respondent, the Petitioner may wish to pursue the said complaint to the latter to ensure the overall safety and welfare of all issues before and after the Parties’ marriage. (SGD) H/H BASILIA ADJEI-TAWIAH 7 CIRCUIT COURT JUDGE 8