KODUA VRS GBEZE (C5/271/2023) [2024] GHACC 254 (21 August 2024)

IN THE CIRCUIT COURT “11” HELD IN ACCRA ON WEDNESDAY, THE 21ST DAY OF AUGUST 2024, BEFORE HIS HONOUR BASILIA ADJEI-TAWIAH, CIRCUIT COURT JUDGE SUIT NO. C5/271/2023 HENRIETTA TWENEBOAH KODUA VS DIVINE JORDAN GBEZE ======================================================== JUDGMENT ======================================================== By a petition filed on 4th May 2023, the Petitioner herein petitioned this Court for a divorce on grounds of Adultery, Unreasonable Behaviour and that the parties have not lived together as husband and wife for more than (3) years prior to the filing of the petition. It is the Petitioner’s case that all attempts made by both families to resolve their differences have proved futile. The Relevant paragraphs of the Petition showeth: The Petitioner has prayed this Court for a dissolution of the marriage celebrated between the parties on November 2018, custody of the only issue of the marriage and financial settlement. By an Answer and Cross Petition filed by the Respondent on … he denied most of the averments contained in the petition but admitted to the fact that the parties have not lived 1 together as husband and wife for more than 3 years. Also, the Respondent admits that when their daughter was born, he was under the conviction that he was not the father which was also influenced by his mother. The Petitioner’s oral evidence on the breakdown of the marriage was taken on 11th August 2023 and the matter was adjourned for the Respondent to be served with Court Notes and Hearing Notice to appear at the next hearing to cross examine the Petitioner but she failed to appear to do so. In the Petitioner’s evidence to the Court, he intimated that the Respondent has packed out of the matrimonial home since 2012 and the parties have not lived together as husband and wife ever since. He added that the parties have attempted resolving the issues with the families’ intervention but failed. The Respondent having failed to deliver an Answer to the Petition and failing to appear in Court to cross examine the Petitioner, the evidence of the Petitioner stood uncontroverted. This means that there was no other evidence by the Respondent on the issue or subject matter to challenge that of the Petitioner. 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 2 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 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 3 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 also did not appear before the Court to raise any objection to the testimony of the Petitioner or to cross examine the Petitioner after being served with the court proceedings and hearing notice to do so. The only evidence before the court now is that of the Petitioner to determine that the marriage celebrated between the parties has indeed broken down beyond reconciliation. The Petitioner has stated what he wants the Court to do per the endorsed reliefs in his petition and given evidence to support his claim and reliefs sought. Under the circumstances, I am satisfied that the marriage celebrated between the Parties at Faith Gospel Ministry, Korle Gonno on 8th May 2011 has broken down beyond reconciliation and the marriage is hereby dissolved on the Petitioner’s terms. The Parties are granted joint custody of the minor issue of the marriage, Brym Nettey and both parties shall be jointly responsible for the educational, feeding, and medical expenses of the said issue of the marriage. The Petitioner is to tender the marriage certificate to Court for same to be cancelled. The Petitioner shall bear his own legal costs. There will be no order as to costs. (SGD) H/H BASILIA ADJEI-TAWIAH CIRCUIT COURT JUDGE 4