MENSAH VRS AGBENYA (C5/12/2023) [2024] GHACC 28 (20 February 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON TUESDAY, THE 20TH DAY OF FEBRUARY, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE SUIT NO. C5/12/2023 GRACE ADUSEI MENSAH --------------- PETITIONER H/NO. BLOCK 5 SECTION 180 1ST STREET, ABUOM JUNCTION KWABENYA – ACCRA VRS ASPECTS NUKUNU AGBENYA --------------- RESPONDENT DOME PILLAR 2 PARTIES: ABSENT COUNSEL: JUSTICE ABDULAI, ESQ. FOR PETITIONER PRESENT FELIX LARTEY HOLDING THE BRIEF OF CEPHAS MOTEY, ESQ. FOR RESPONDENT PRESENT JUDGMENT FACTS The parties got married under Ordinance Cap 127, on 17th August 2019, at the Mensah Sarbah Hall, University of Ghana. There is no issue of the marriage. On 13th July 2023, the Petitioner filed the instant petition on grounds that the marriage between herself and the Respondent has broken down beyond reconciliation and prayed the Court for the following reliefs; Grace A. Mensah v. Aspect N. Agbenya Page 1 of 10 a. That the marriage celebrated on the 17th day of August 2019 between the parties be dissolved unconditionally. b. That the parcels of land, being the one and half (1½ plots) solely financed by Petitioner at Oyarifa be settled on her and same be declared her private property. c. That the half plot of land located and being at Oyarifa be declared a joint property and half of same settled on her and or in the alternative, Respondent be made to buy Petitioner out of the said half. d. That the Hyundai Elantra (unregistered), her private property be settled on her, and Respondent ordered to deliver same together with the documents thereof to Petitioner forthwith. e. An order directed at Respondent to account for the entire activities of the company Bandile Company Ltd and assets and profits shared equally between both parties. f. An order directed at Respondent to pay a lump sum alimony of GH¢200,000.00 and the payment for rent of a standard two-bedroom apartment not less than GH¢3,000.00 per month for 60 months. g. Cost of legal fees of Petitioner assessed at GH¢50,000.00. In his answer to the petition, the Respondent denied the allegations of the Petitioner. The Respondent is however not opposed to the prayer for dissolution of the marriage. Both parties further state that all attempts at reconciliation have proved futile. I deem it necessary to mention that before the hearing of the petition, Counsel for Petitioner informed the Court that, the parties had filed their Terms of Settlement on the ancillary reliefs and prayed the Court to adopt same as consent judgment. Grace A. Mensah v. Aspect N. Agbenya Page 2 of 10 Counsel for the Respondent also submitted that they had not filed their Witness Statement that the Respondent was out of the jurisdiction so the parties and their lawyers had a discussion to resolve the ancillary reliefs in which they had filed the Terms of Settlement. That based on the challenges from their side, hearing can be conducted based on the Petitioner’s Witness Statement and he will cross examine the Petitioner for the Court to make a determination whether or not the marriage has broken down. Being a petition for divorce, as provided in section 2(3) of the Matrimonial Causes Act, 1971 (Act 367), 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. Relying on the above authority, the Court conducted a hearing on the dissolution of the marriage to enable the determination that the marriage has broken down beyond reconciliation whilst the parties’ settlement on the ancillary reliefs as per their Terms of Settlement filed on 14th December 2023 will be adopted as consent judgment on the ancillary reliefs in addition to the judgment of the Court on the dissolution of the marriage. As a result, the hearing of the instant petition was basically on the dissolution of the marriage since the parties had filed their Terms of Settlement on the ancillary reliefs. THE CASE OF THE PETITIONER In her evidence to the Court, the Petitioner testified that she is a self-employed businesswoman and a resident of Kwabenya, Accra. She continued that the Respondent is her husband and that they got married on 10th August 2019 under customary law and later converted to Ordinance marriage on 17th August 2019 at the Mensah Sarbah Hall, University of Ghana and thereafter lived together at Dome Pillar 2, Accra. She tendered Grace A. Mensah v. Aspect N. Agbenya Page 3 of 10 pictures of their marriage ceremony as exhibit ‘A’. According to the Petitioner, sometime in April 2022 she discovered that the Respondent had a shocking lifestyle and her consequent complaints about his lifestyle resulted in his exhibition of unreasonable behavior towards her. That the Respondent prefer to pay hook-ups and prostitutes paltry sums of money for virtual sex in her presence rather than make love to her. That the Respondent would sometimes record the virtual sex with the hook-ups and prostitutes and watch same at a later time when he is in a sexual mood rather than performing his conjugal obligations with her. According to the Petitioner, since the inception of the marriage, she has been the sole financier in the relationship as the Respondent showed no interest, nor support towards the financial upkeep of their home nor demonstrated any interest in her financial well- being, including payment of her school fees, feeding, and medical bills among other things. That the Respondent compulsorily takes and borrows her money and any refusal to disclose or lend Respondent money will be met with attacks, abuses and threats. The continuous behaviour of the Respondent caused a rift in their marriage that threatened her own safety and informed her decision to leave their matrimonial home. She further told the Court in her evidence that during the marriage she acquired one and half piece or parcel of land at Oyarifa, and she is currently developing without any support or financial contribution from Respondent. That Respondent has refused to yield the document related to the land or make accounts in respect of all the money she sent him for the development of the said land. That Respondent and herself acquired a half plot of land within the same location of Oyarifa of which she contributed GH¢10,000.00 and Respondent contributed GH¢20,000.00 but Respondent has consistently refused to deliver the receipt and the conveyancing deeds in respect of the land and all efforts and demands made to Respondent to lead her to the exact location of the land yielded no necessary results till date. That she had a car which Respondent sold and used the Grace A. Mensah v. Aspect N. Agbenya Page 4 of 10 proceeds to buy a Hyundai Elantra, but he refused to permit her use to the car. That Respondent brought her an unregistered Chevrolet Spark which he claimed was owned by his friend who owed him for her to use. That the parties established a company referred to as Bandile Company Ltd, which was solely managed by the Respondent, but he refuses to account for the finances of the company regardless of the contracts they secure for and on behalf of the company. That the customary drinks have been redeemed and accepted by the Respondent’s family. The Petitioner tendered in evidence a copy of the marriage certificate as Exhibit ‘B’. The Petitioner did not call witness and thereafter closed her case. The Respondent elected not to give evidence during the hearing and did not also call witness. LEGAL ISSUE At the Case Management Conference stage, both counsel for the parties agreed to set down only one issue; which is whether or not the marriage has broken down beyond reconciliation. BURDEN AND STANDARD OF PROOF Grace A. Mensah v. Aspect N. Agbenya Page 5 of 10 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 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 Petitioner to prove the facts alleged to establish the breakdown of the marriage. 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:- ... Grace A. Mensah v. Aspect N. Agbenya Page 6 of 10 (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; (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 Petitioner 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. Grace A. Mensah v. Aspect N. Agbenya Page 7 of 10 From the evidence adduced by the parties at the hearing, I made the subsequent observations and findings: The Petitioner in her evidence testified that the Respondent preferred to pay hook-ups and prostitutes insignificant sums of money for virtual sex in her presence rather than make love to her and would sometimes record those virtual sex and watch same at a later time when he is in a sexual mood rather than performing his conjugal obligations with her. That the Respondent since their marriage has not maintained her or supported her welfare. That the Respondent abuses and threatens her. The Respondent denied the Petitioner’s allegations of unreasonable behaviour on his part. As a result, 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. Considering that the Petitioner could not prove her allegations of unreasonable behaviour after it was denied by the Respondent, I find from the evidence on record that there was no unreasonable behaviour on the part Respondent and accordingly dismiss the said allegations. 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 Grace A. Mensah v. Aspect N. Agbenya Page 8 of 10 separation before the presentation of the present petition where their families have agreed to accept their drinks. 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.” Both parties told the Court that there were attempts at reconciliation but all were 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 has no objection to the dissolution of their marriage. Accordingly, I find as a fact that the parties have been unable or failed to live together as husband and wife for a continuous period of at least two years immediately preceding the presentation of this petition and the Respondent consents to the grant of a decree of divorce. Flowing from the above, I find that the marriage between the parties has broken down beyond reconciliation. CONCLUSION Grace A. Mensah v. Aspect N. Agbenya Page 9 of 10 Consequently, I conclude that the marriage between the parties has broken down beyond reconciliation and in the circumstances; I do hereby grant the Petitioner’s prayer for dissolution of the marriage. The marriage celebrated between the parties on 17th August 2019 is hereby dissolved. The marriage certificate with Certificate No. WEM/24/19 and License No. AMA/01904614/2019 is accordingly cancelled. The Terms of Settlement signed by the parties herein and their respective lawyers; and filed on the 14th day of December 2023 is hereby adopted and entered as consent judgment on the ancillary reliefs and as part of the final judgment of this Court and the parties are bound by it. There shall be no order as to costs. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) Grace A. Mensah v. Aspect N. Agbenya Page 10 of 10