OPERTEH VRS TUTU (A5/02/2024) [2024] GHACC 171 (27 March 2024)

IN THE CIRCUIT COURT AT ASAMANKESE HELD ON WEDNESDAY 27TH MARCH 2024 BEFORE HIS HONOUR ABASS ABUBAKARI ADAMS, ESQ., SITTING AS CIRCUIT COURT JUDGE. SUIT NO. A5/02/2024 DORA OPARTEH PETITIONER OF LASSI IN THE BONO WEST REGION. VRS DESMOND TUTU OF ASAMANKESE RESPONDENT PARTIES: BOTH PARTIES – PRESENT LEGAL REPRESENTATION: BOTH PARTIES APPEARED PRO SE. JUDGEMENT. 1. The parties contracted a monogamous marriage under the Marriage Ordinance, 1951 (Cap 127) at the Light House Chapel International, Asamankese on the th 30 of February 2017. The parties have had one (1) issue named Ida Nana Ama Tutu aged three (3) years old. After their marriage, the parties cohabited at Akim Asamakese. 2. The petitioner claimed that the respondent has behaved in such a manner that the parties cannot reasonably be expected to live as married couples. The petitioner claimed in her petition that the respondent stopped eating her food DORA OPARTEH V DESMOND TUTU PAGE 1 of 6 since 2020 due to squabbles between them. She also asserted that the respondent has failed to have sex with her for the past three years. That the respondent does not give her housekeeping money throughout the marriage and has also moved out of their matrimonial home. All efforts by their respective families and church to resolve their differences has failed. 3. The respondent in his answer to the petition contended that it was rather the petitioner who had denied him sex since 2019. That the petitioner has informed him severally that she has refused to have sex with the respondent because she has committed adultery with several men so he should divorce her. The respondent assert that it was the petitioner who first packed out of their matrimonial home. The respondent also asserted that he has the custody of their only child. 4. The law is that a plaintiff (in this case, a petitioner) in a civil suit, has the burden to prove his/her case on a balance of probabilities. Section 11 of the Evidence Act, 1975 (NRCD 323) states in part: Section 11—Burden of Producing Evidence Defined. (1) 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 the issue. DORA OPARTEH V DESMOND TUTU PAGE 2 of 6 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. 5. On the burden of proof, in the case of KLAH v. PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139, the Supreme Court, speaking through Akoto–Bamfo (Mrs) JSC, quoted with approval and added its judicial weight to the explanation of what constitutes proof in law as espoused in the case of MAJOLAGBE V LARBI 1959 GLR 190 AT PAGE 192 which relied on the case of KHOURY V. RITCHER, as follows: “Where a party makes an averment at 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 satisfy itself that what he avers is true.” 6. See also OKUDZETO ABLAKWA (NO.2) v. ATTORNEY GENERAL & ANOR [2012] 2 SCGLR 845 @ 847 and ACKAH v. PERGAH TRANSPORT LIMITED &ORS (2010) SCGLR 736. 7. From the above, the petitioner is duty-bound in law to prove her claims by producing evidence that demonstrates that she is entitled to her claim for dissolution of their marriage on the balance of probabilities. 8. There are two issues for determination in this case. The issues are (a)whether or not the marriage between the parties has broken down beyond reconciliation and (b) whether or not the petitioner is entitled to her ancillary reliefs. 9. Per section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) (hereafter referred to as the “MCA”) the sole ground for the grant of divorce is that the DORA OPARTEH V DESMOND TUTU PAGE 3 of 6 marriage has broken down beyond reconciliation. To demonstrate that the marriage has broken down beyond reconciliation any of the facts enumerated under sections 2(1) (a) to (f) of the MCA must be proved by the petitioner and/or respondent in their respective evidence. This was explained in the case of MENSAH v. MENSAH [1972] 2 GLR 198–209, by HAYFRON-BENJAMIN J. (as he then was) at page 202 where the respected Judge said: “From the relevant sections of the Matrimonial Causes Act 1971 (Act 367) namely, sections 1 (2) and 2 (1) and (3) the court ought to grant a divorce only where there has been a breakdown of the marriage beyond reconciliation. It is obligatory for the petitioner to prove one or more of the specified facts to establish that the marriage has broken down beyond reconciliation obviously on all the evidence. Having established these facts to such a standard as to lead the court to make a finding that these facts exist, the court can still refuse to grant the decree because it is not satisfied that the marriage has broken down beyond reconciliation.” It is a trite principle of law that a court hearing a divorce petition is under a duty to carefully consider all the averments in the pleadings of the petitioner before it as a mere assertion that the marriage has broken down. The court must consider whether the evidence adduced situates the case of the petitioner and/or respondent (if the respondent cross–petitioned for dissolution of the marriage) within any of the grounds in section 2 of the MCA. 10. The evidence of the parties shows that they have not had sexual intercourse for about three years. Both parties admit this fact except they blame the other for the lack of sexual intimacy in their marriage. It is thus undisputed that the parties have not had sex for over two year which amount to unreasonable behaviour on their part. Again, the unchallenged evidence shows that all efforts by the parties’ families and church to resolve the problems between them failed a yielded no positive outcome. I find this evidence as the fact of this case. These facts satisfy DORA OPARTEH V DESMOND TUTU PAGE 4 of 6 the benchmark set in sections 2 (1) (b) and (f) of the MCA as some of the grounds for dissolution of a marriage and can ground a dissolution of the parties' marriage. 11. Given the foregoing, it is my conclusion on the first issue raised in this judgement that the petitioner has demonstrated that their marriage has broken down beyond reconciliation. I accordingly dissolve the marriage between the parties. 12. On the second issue of whether or not the petitioner is entitled to her ancillary reliefs, part of the ancillary relief sought by the petitioner has become moot because the parties’ filed terms of settlement on the 29/02/24. This means that the issue to be resolved in respect of the distribution of properties acquired during the subsistence of the parties’ marriage is extinguished. The said terms of settlement filed by the parties is hereby adopted as consent judgement. 13. I must highlight that none of the parties sought custody of their child. It means the parties have no issue as to with whom or where the children should be. The Petitioner asked for maintenance, of GHC1,200.00 for their child. The evidence however shows that the respondent has custody of their child though he had engaged a nanny for the child. In matters pertaining to children, it is the paramount interest of the children that overrides any other consideration. In the case of BENTSI-ENCHILL v BENTSI-ENCHILL [1976] 2GLR 303 the court held that the primary concern of the court is to ensure that there are appropriate safeguards for a child’s general welfare irrespective of the interest of the parents. In the case of OFORI v OFORI [1981] G.L.R. 745 the court held that there was no good reason to take a child away and disturb his/her education and upbringing. In this instance the child is in the custody of his father, the respondent, it is just and fair that the custody of the child of the marriage be granted to, and is hereby granted, the respondent with the right of DORA OPARTEH V DESMOND TUTU PAGE 5 of 6 access to the petitioner so as not to unnecessarily disturb her education and upbringing which she is receiving at Asamankese. I believe this would give the child some stability instead of moving her all the way to Seni West District in the Bono East Region where the petitioner resides. In any case, the evidence on record shows that the parties are satisfied with the current arrangement they have made for the custody, maintenance and care of their child prior to coming to court. I would thus maintain the status quo. The petitioner’s prayer for GHC1,200.00. maintenance is hereby dismissed. I make no order as to cost. ………....………………SGD……… H/H ABASS ABUBAKARI ADAMS ESQ. 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