ABABIO VRS TAWIAH (C4/1/2023) [2024] GHACC 109 (31 January 2024)

IN THE CIRCUIT COURT HELD AT FIAPRE ON WEDNESDAY THE 31ST DAY OF JANUARY, 2024 BEFORE HER HONOUR AKUA ADOMA ADDAE. Suit No C4/1/2023 IN THE MATTER OF THE MATRIMONIAL CAUSES ACT, 1971 (Act 367) AND IN THE MATTER FOR A DIVORCE PETITION BETWEEN RAPHAEL SAE ABABIO PETITIONER AND KEZIAH YAA TAWIAH RESPONDENT JUDGMENT The Petitioner in his divorce petition filed on the 3rd of May, 2023, deposed that he is ordinarily resident in the State of New Jersey in the United States of America. The Petitioner and the Respondent were married under the marriage ordinance, CAP 127 after they had been in concubinage for a while. After the marriage, the parties cohabited in the city of Sunyani for a while. There is no issue to the marriage, and there have not been any proceedings before any court in respect of this marriage. The Petitioner is before this court because the marriage contracted under CAP 127 has broken down beyond reconciliation due to the unreasonable behaviour of the Respondent. In his particulars of unreasonable behaviour, contained in paragraph 7 of the divorce petition, the Petitioner states the Respondent had committed adultery, disrespects him, does not give him the due recognition as her husband, easily gets irritated and uses intemperate language at the least provocation, has refused to communicate with him for over a year now and that the Respondent was in the habit of inflating amounts and prices of items that the Petitioner caused her to purchase thereby cheating him. The Petitioner finally avers that all attempts at resolving their differences have proven unsuccessful and that upon the failure to do so, he caused his family to present drinks to the Respondent’s family, signifying the dissolution of the customary marriage. The Petitioner is saying he can no longer reasonably live with the Respondent as a wife and that her conduct has caused him much anxiety, distress, and psychological and emotional trauma. The Petitioner is seeking by way of relief the dissolution of the marriage contracted under CAP 127 The Respondent in her answer to the Petitioner’s divorce Petition filed on the 22nd day of May, 2024 denies committing adultery during the subsistence of the marriage. She rather accuses the Petitioner of being the one who committed adultery, several times with several ladies, including prostitutes, during the subsistence of their marriage. She averred in paragraph 4 of her answer that the Petitioner video recorded his sexual exploits and when the Respondent saw them, the Petitioner became angry. The Respondent further accused the Petitioner of being the one who rather disrespects, insults and abuses her without provocation. She avers that the Petitioner insults and abuses her even to the hearing and knowledge of neighbours and family members. In response to the averment that the Respondent had failed to communicate with the Petitioner, the Respondent avers that it is rather the Petitioner who refused to answer the Respondent’s call after she bought a new phone from her means. The Respondent firmly denies the allegation of cheating and says that she has never cheated, nor has she ever dreamed of cheating the Petitioner. She also accuses the Petitioner of making it impossible for the Parties herein to reconcile their differences and that she finds it intolerable to live with the Petitioner. The Respondent filed a cross–petition which was discontinued and subsequently struck out by the court. APPLICABLE LAW This case being a civil case, is governed by the general rule on evidence in civil cases as well as the provisions of the Matrimonial Causes Act, 1971 (Act 367). The general rules on evidence in civil matters are contained in sections 11(4) and 12(1) of the Evidence Act, NRCD 323. The said provisions are reproduced as follows: 11(4) 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 the existence of fact was more probable than its non-existence 12(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. The above sections clearly indicate that the standard of proof to be met in this instant case is one on the preponderance of probabilities. The elements which a Petitioner ought to prove to show that indeed a marriage has broken down beyond reconciliation are stated in section 2(1) of Act 367 The said section provides as follows: 2: 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: (1)(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 as 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 (d) that the parties to the marriage have not lived as man and wife for a continuous period of 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 is 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. Out of the 6 grounds for divorce stated in section 2(1) of the Matrimonial Causes Act, 1971 (Act 367) demonstrating that the marriage between the parties herein has broken down beyond reconciliation, the petitioner has stated his main ground for the divorce as adultery under subsection 2(1)(a), unreasonable behaviour under subsection 2(1)(b) and that the parties have failed to reconcile their differences after diligent effort, under subsection 2(1)(f). All these grounds will have to be proved by the Petitioner on a preponderance of probabilities. In the case of adultery, the Petitioner will have to prove that the Respondent voluntarily had sexual intercourse with another man other than the Petitioner. In the case of Adjetey v. Adjetey [1973] 1 G.L.R 216 the High Court held as follows: “Adultery must be proved to the satisfaction of court and though the evidence need not reach certainty as required in criminal proceedings, it must carry a high degree of probability. Direct evidence of adultery is rare. In nearly every case, the fact of adultery is inferred from the circumstances which by fair and necessary inference lead to that conclusion. There must be proof of disposition and opportunity for committing adultery, but the conjunction of strong inclination with evidence of opportunity does not lead to an irrebuttable presumption that adultery has been committed and likewise, the court is not bound to infer adultery from the evidence of opportunity alone.” In the instant case the Petitioner who gave evidence through his Lawful Attorney, per paragraph 20 of his witness statement, which was adopted as his evidence in chief before this court, alleged that the Respondent was so promiscuous that she even got pregnant for her landlord which said embarrassing situation was dealt with in private after the Respondent rendered an apology to the Petitioner. This is the only paragraph, in addition to paragraph 8(a) that mentions adultery on the part of the Respondent. Under cross-examination by Counsel for the Respondent, the Lawful Attorney of the Petitioner when asked in various forms if he agreed with counsel that the Respondent had accused the Petitioner of committing adultery, the said Lawful Attorney vehemently disagreed however when asked if he agreed with Counsel for the Respondent that the Petitioner had accused the Respondent of committing adultery, her readily agreed. Again when asked that the accusation that the Respondent committed adultery was a mere speculation as same was not backed by any evidence, the said Attorney responded that the Respondent herself admitted having committed adultery and even rendered an apology. This answer is quite ambiguous. The Petitioner had been accused of committing adultery. Per the Attorney’s Evidence-in-Chief, the Respondent was so promiscuous that she even got pregnant for her Landlord. The Attorney, saying that the Respondent admitted having committed adultery leaves the court wondering whether the adultery committed was concerning the alleged pregnancy for the Respondent’s landlord or someone else. Again, as the Attorney was giving evidence for the Petitioner, he is deemed to be fully knowledgeable in the facts of this case and as such he was in the position to clarify his answer, yet he did not. There was also no re-examination by Counsel for the Petitioner to clarify this ambiguity. This court, based on the evidence before it, is unable to make a find of fact that the Respondent herein committed adultery during the pendency of the marriage between the parties. I will now move on to consider the issue of unreasonable behaviour. The Petitioner in his petition lists numerous factors which according to him, constitute unreasonable behaviour on the part of the Respondent. He claims the Respondent disrespects him and does not give him the due recognition as her husband. He also states that the Respondent easily gets irritated and uses intemperate language on the Petitioner at the least provocation. He goes on to say that the Respondent has refused to communicate with him for almost a year now. He again accuses the Respondent of inflating the prices of items that the Petitioner caused her to purchase. The Respondent in her answer averred that it was rather the Petitioner who had behaved unreasonably. According to William E. Offei, in his book “Family Law in Ghana, at page 227 he stated thus: “in the past, cruelty was a ground for divorce. Under Act 367 it has been subsumed under “unreasonable behaviour” which is one of the facts to be considered in determining whether or not a marriage has broken down beyond reconciliation. Rayeden in his book Divorce (10th edition) at page 145 defined cruelty as follows: “Legal cruelty may be defined as “conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger. The fact that a marriage has broken down is no reason in itself for a finding of cruelty. In the case of Mensah v Mensah [1947] 2G.L.R 198 the court said that in determining whether or not there was cruelty or as in this case, unreasonable behavior, the question is whether the complaint is grave and weighty enough to justify a finding that the petitioner cannot be reasonably expected to live with the respondent In the instant case, the Petitioner avers in his divorce petition that the Respondent disrespects him and does not give him the due recognition as her husband. He also states that the Respondent easily gets irritated and uses intemperate language on the Petitioner at the least provocation. He goes on to say that the Respondent has refused to communicate with the Petitioner for almost a year now. These averments were also repeated in the witness statement of the Petitioner’s Lawful Attorney. Under cross-examination, the said Attorney admitted that one of the grounds the Petitioner was seeking divorce was because of unreasonable behaviour. He also admitted that there had been attempts at reconciling the difference between the parties but those attempts had been unsuccessful. The Attorney also agrees with Counsel for the Respondent that the marriage between the parties has broken down beyond reconciliation. On the part of the Respondent, she also accuses the Petitioner of unreasonable behaviour. She accuses the Petitioner of insulting and abusing her to the knowledge of neighbours and family members. She also claims that the Petitioner refused to communicate with her after she bought a phone from her resources. The reason according to her is because he suspected and accused her of having been given same by another man. She just like the Petitioner admit that the marriage has broken down beyond reconciliation as they both find it intolerable to live with each other. Further, during her cross-examination the Respondent in response to the question if given the chance, she would want to keep the Petitioner as her husband, her response was in the negative. As a matter of fact, not only did she answer in the negative, but she was quite emphatic. She answered as follows: “Que: Given the opportunity, would you like to keep the Petitioner as your husband? Ans: No. I don’t want him. The Respondent went ahead to say under cross-examination that all she wants from the Petitioner is the dissolution of the marriage. As a matter of fact, the Parties herein live in separate parts of the world. The Petitioner was, at all times material to the inception of this case, outside the jurisdiction of this court and the Republic of Ghana. On the final ground that the parties to the marriage have, after diligent effort been unable to reconcile their differences, there is no doubt from the evidence before me, that the Parties are unable to settle their differences. Both the Lawful Attorney of the Petitioner and the Respondent agree that all attempts at reconciliation have not been successful. FINDINGS AND CONCLUSION From the evidence before me, I find that there has been unreasonable behaviour on the part of both Parties. The conduct of the Parties herein is grave and weighty enough to justify a finding that the Petitioner cannot be reasonably expected to live with the Respondent. I therefore hold that the marriage contracted on the 14th of January, 2019 as per “Exhibit B” between the Petitioner, Raphael Sae Ababio and Respondent Kezia Yaa Tawiah has broken down beyond reconciliation and dissolve same. The Petitioner's petition for divorce is hereby granted. No order as to costs. …….. SIGNED……. AKUA ADOMA ADDAE