ANTO-MENSAH VRS BOAKYE (C5/346/2023) [2024] GHACC 147 (15 March 2024)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON FRIDAY, 15TH MARCH 2024, BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS), CIRCUIT COURT JUDGE SUIT NO: C5/346/2023 ABENA YEBOAH ANTO-MENSAH 1ST LAGOON DRIVE SAKUMONO PETITIONER VRS FRANCIS AKWASI ASIEDU BOAKYE ODENEHO KWADASO KUMASI RESPONDENT JUDGEMENT On the 27/3/2021, in Accra within the Jurisdiction of the court, parties herein celebrated an ordinance marriage. Thereafter, they cohabited at Odeneho Kwadaso in the Ashanti Region and Mile 11 in the greater Accra region respectively. Parties are both Ghanaians and self-employed and a trader respectively. There is one issue of this marriage, Gainnis Akwasi Asiedu Boakye . Petitioner contends that the marriage celebrated between parties have broken down beyond reconciliation. She avers that Respondent has behaved in such a way that she cannot reasonable be expected to live with him as husband and wife. She further averred that several attempts by both 1 families to reconcile them have proved futile as Respondent. She therefore prays the court for the following relief; i. That the marriage celebrated between the parties on the 27th March 2021 be dissolved. ii. That custody of the issue of the marriage be granted the Petitioner with reasonable access and supervised access to the Respondent. iii. An order for the Respondent to provide for the school fees and medical bills of the child as and when they fall due and a further order for Respondent to maintain the child od the marriage on a monthly basis at a proposed rate of One Thousand Ghana Cedis (GHC1000) reviewable every year. iv. An order that Respondent makes financial provision for the Petitioner. Respondent in his answer to the petition denied behaving in an unreasonable manner in the marriage but admitted that the marriage celebrated between him and Petitioner has broken down. He challenged Petitioner being fit to have custody of the child of the marriage and cross-petitioned as follows; a. the dissolution of the marriage celebrated by the parties on the 27/03/2021. b. Full custody of the child of the marriage with visitation rights granted to the Petitioner. Under the laws of Ghana, ordinance marriage may only be dissolved by a court after it has been established that the marriage has broken down beyond reconciliation. (See section 1(2) of the Matrimonial Causes Act, 1971 Act 367 2 hereinafter referred to as Act 367). Petitioner’s ground for seeking the dissolution of her marriage to Respondent is based on unreasonable behaviour. Although Respondent denies this allegation, he admits that the marriage between them has broken down beyond reconciliation and cross-petitions for dissolution of the marriage. Prior to the hearing of the case of parties, terms of settlement was executed between parties and their respective counsel as follows; That the terms of settlement contained herein be adopted by this Honourable Court as Consent Judgment. (a) That the marriage celebrated between the parties on the 27th of March 2021 be dissolved on grounds that the marriage has broken down beyond reconciliation. (b) That the Petitioner be granted custody of the child with the Respondent being granted supervised access on weekends and when the child is on vacation. (c) That the Respondent shall maintain the child of the marriage on a monthly basis of One Thousand Ghana Cedis (GHC 1,000) reviewable by 20% each year. (d) That the Respondent shall pay the school fees and all educational needs of the child as and when they fall due. (e) That the Respondent shall be responsible for 70% (Seventy Percent) of 3 every medical bill of the child of the marriage as and when they fall due and the Petitioner shall be responsible for the outstanding 30% (Thirty Percent). (f) That this shall be the final judgment of the Court. Section 2(1) of Act 367 requires that a petitioner must satisfy the court of one or more of the instances listed therein as proof that the marriage has broken down beyond reconciliation. Section 2(1)(b) of Act 367 provides that where the Respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent same suffice as proof of the break down of the marriage beyond reconciliation. Petitioner’s evidence on oath is that, after the marriage, Respondent abuses her verbally without any just cause or at the slightest opportunity even in the presence of third parties. A copy of the marriage certificate is in evidence as exhibit A. According to her, Respondent unleashes his unbridled temper as soon as he hears her speaking with certain male friends but is consistently flirting with several women. She stated that Respondent had on several occasions called her a “whore” amidst other verbal insults. Petitioner tendered in evidence exhibits B series whatsApp chats between her and Respondent in which he has verbally abused her. Petitioner continued that although Respondent from the onset of the marriage till their separation claimed to be a managing director for Gladys Owusu Cement Enterprise, he failed to maintain her and the issue leading her to borrow money from her family members to fend for herself as well as the issue to her embarrassment. She testified further that Respondent on several occasions failed to contribute to the payment of the medical bills of the issue from birth through to when he broke his arm and when he needed surgery to correct a genital defect. Petitioner tendered in evidence as exhibit C series hospital bills receipts. Petitioner further testified that Respondent failed to contribute to the 4 education of the child and she has been solely responsible for enrolling the child into school, his clothing and accommodation as well. Exhibit D series are receipts for the payment made for school fees and other educational expenses. Petitioner continued that Respondent flirted with several women to her humiliation. She stated that on certain occasions, Respondent was physically abusive and thereafter profusely apologize but would repeat those same actions later. She contended that she has lost consortium in the marriage due to Respondent not having any affection for her. Respondent on oath also testified that after cohabiting at Odeneho Kwadaso in the Ashanti Region, Petitioner decided to relocate to Accra and lived at Mile 11. In order to save his marriage, he relocated to Accra. He testified that Petitioner has on several occasions pulled knives on him threatening his his and on some occasions work him up from his sleep only to see her drawing knives at him and threatening his life. Respondent denied the allegations of unreasonable behaviour contending that he takes care of the issue of the marriage and has been remitting Petitioner for the upkeep of the child. Respondent continued that Petitioner sometimes returns the monies he sends her on some occasions. He denied not footing the bills of the issue when he was born and tendered in evidence exhibit 2 a copy of the receipt of the hospital bill in relation to the delivery of their child. He further contended that he has been faithful inn the marriage contrary to the assertions of Petitioner. What constitutes the fact of Unreasonable behavior under section 2(1)(b) of Act 367 has been discussed in the case of Mensah v Mensah [1972] 2 GLR 198. The court held per Hayfron-Benjamin that “in determining whether a husband has behaved in such a way as to make it unreasonable to expect a 5 wife to live with him, the court must consider all circumstances constituting such behavior including the history of the marriage. It is always a question of fact. The conduct complained of must be grave and weighty and mere trivialities will not suffice for Act 367 is not a Cassanova’s Charter. The test is objective”. Also in the case of Knudsen v Knudsen [1976] 1GLR 204, Amissah JA stated that “the question therefore is whether the Petitioner established that the Respondent behaved in such a way that he could not reasonably be expected to live with her. Behaviour of a party, which would lead to this conclusion, would range over a wide variety of acts. It may consist of one act if of sufficient gravity or of a persistent course of conduct or of a series of acts of differing kinds none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so.” Respondent in his answer to the petition and on oath challenged Petitioner’s allegations of his unreasonable acts. Exhibit B series being communications between Parties herein discloses and confirm some vulgar words used on Petitioner by the respondent. In exhibit B series, Respondent in his messages to Petitioner wrote “ how do you feel after been used by the se guys during breastfeeding, is sad and disgraceful. You are not satisfied now you are adding dildos too. I won’t be surprised if you engege in lesbianism with a gal.” in exhibit B1, Respondent calls Petitioner “mad bitch”, “rotten shit”, and “cursed pig”. Exhibit B3, Respondent goes on about Petitioner being mad but not knowing it , being a home wrecker and a used pad being useful than her. In exhibit B4, Respondent again in his messages insults Petitioner as being foolish. These exhibits confirm Petitioner’s assertion that Respondent has been verbally abusive in the marriage. the kind of words used by Respondent 6 assuming without admitting that he was venting out his displeasure about some conduct of Petitioner are too harsh and uncouth for a husband to used on a wife. The content of exhibit B, B1 to B4 reveals Respondent has little or no respect for Petitioner. This behaviour is such of severe gravity that it suffices as unreasonable behaviour. In exhibit B5, Petitioner in her messages to Respondent insist respondent should send her “the money” for the feeding of the child if he doesn’t want any embarrassment with Respondent responding that he would send the money god willing the next day and further stating that he would send GHC50. This exhibit also confirms that maintenance of the issue was not sent to Petitioner at a particular period. In respect of Petitioner’s contention that Respondent has from birth of the child failed to pay for the medical bills, exhibit 2 tendered by Respondent reveals payment of medical bills of GHC9,973.1 on the 1/09/2021. This payment was made fews days after birth of the issue of the child and same confirms Respondent’s assertion that he paid the medical bills after the birth of the child. Exhibit C series are also medical bills of the child and they are all dated 2023. Exhibit C series reveals that Petitioner covered medical bills of the child in 2023 as she has alleged. Exhibit D series also is the school admissions forms and payment of admission and school fees of the child paid by Petitioner. Further exhibit E series disclose someone asking for contact of ladies and Petitioner contends this was the acts of Respondent flirting with other women. The evidence of Petitioner on oath of Respondent’s conduct in the marriage i.e verbally abusive is of such gravity that it would be unreasonable to expect Petitioner to continue leaving together as husband and wife. Further, Petitioner per her evidence has proved the alleged flirting on social media with other women by Respondent, being saddled with the medical and educational expenses of the issue of the marriage. 7 In the case of KOTEI V KOTEI [1974] 2 GLR 172, Sarkodee J held as follows, “the sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. But the petitioner is also obliged to comply with section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367), which requires him to establish at least one of the grounds set out in that section… proving one of the provisions without more is proof of the breakdown of the marriage beyond reconciliation…It is accepted that proof of one or more of the facts set out in section 2 (1) is essential and that proof of one of them shows the marriage has broken down beyond reconciliation. It is also conceded that notwithstanding proof the court can refuse to grant the decree of dissolution on the ground that the marriage has not broken down beyond reconciliation. It will be noted that the discretion given to the court is not a discretion to grant but to refuse a decree of dissolution. This means that once facts are proved bringing the case within any of the facts set out in section 2 (1) of Act 367 a decree of dissolution should be pronounced unless the court thinks otherwise. In other words, the burden is not on the petitioner to show that special grounds exist justifying the exercise of the Court’s power.” Petitioner successfully establishes that Respondent has behaved in a manner that she cannot reasonable be expected to live with him as husband and wife as espoused under section 2(1) (b). Sarkodee J in the case of KOTEI V KOTEI supra went further to state that section 2 (3) of Act 367 contains an important provision which brings into focus the general scheme of the Act, which is to encourage reconciliation as far as may be practicable. Section 8 of Act 367 enjoins the petitioner or his counsel to inform the Court of all attempts made to effect reconciliation and gives the court power to adjourn the proceedings at any stage to enable attempts at reconciliation to be made. 8 Both parties have intimated to the court their unwillingness to continue with this marriage, are currently living separately and both aver that the marriage has broken down beyond reconciliation and further pray the court to dissolve same. Parties have further testified that attempts by their respect families to resolve their difference and reconcile them have proved futile. The court therefore finds and hold that the marriage celebrated between parties herein on the 27/03/2021 at the Ledzorkuku Municipal Assembly has broken down beyond reconciliation as claimed by both parties. Judgment is entered in favour of petitioner as prayed per her relief (1). The court hereby decrees the ordinance marriage celebrated between parties herein on the 27/03/2021 at the Ledzorkuku Municipal Assembly be and is dissolved today the 15th day of March 2024 forthwith. ANCILLARY RELIEFS As mentioned supra, the parties executed terms of settlement and filed same at the registry of the court on the 14/2/2024. In their evidence on oath, both parties prayed the court to adopt same as consent judgment in respect of the ancillary relief of both parties in the Petition and cross-petition. The court accordingly adopts the said terms of settlement as consent judgment in respect of ancillary reliefs and they are as follows; (i) Custody of the child Gainnis Akwasi Asiedu Boakye is granted to Petitioner with supervised access to Respondent on weekends and when the child is on vacation. (c) That the Respondent shall maintain the child of the marriage on a monthly basis of One Thousand Ghana Cedis (GHC 1,000) reviewable by 20% each year. 9 (d) That the Respondent shall pay the school fees and all educational needs of the child as and when they fall due. (e) That the Respondent shall be responsible for 70% (Seventy Percent) of every medical bill of the child of the marriage as and when they fall due and the Petitioner shall be responsible for the outstanding 30% (Thirty Percent). (f) That this shall be the final judgment of the Court. PARTIES ABSENT AMAZING GRACE ADOMAH FOR PETITIONER PRESENT YVONNE ADJADI HOLDING THE BRIEF OF SAMUEL OSEI SARPONG FOR RESPONDENT PRESENT (SGD) H/H AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT JUDGE 10