Amugi v Amugi (A4/35/22) [2025] GHADC 209 (16 May 2025)

IN THE DISTRICT COURT AT LA HELD ON FRIDAY THE 16TH DAY OF MAY, 2025 BEFORE HER WORSHIP ADWOA BENASO ASUMADU-SAKYI, SITTING AS MAGISTRATE SUIT NO: A4/35/22 FREDRICK NII YARTEY AMUGI HOUSE NO. D369, ALLOTEY BULLEY ST. DANSOMAN >>> PETITIONER VRS. WINIFRED AKOSUA OFOSUA AMUGI HOUSE NO. D369, ALLOTEY BULLEY ST. DANSOMAN >>> RESPONDENT PARTIES: Petitioner present Respondent absent LEGAL REPRESENTATION: Kwame Bonni for the Petitioner Johnny Adeku for the Respondent _______________________________________________________________ JUDGMENT INTRODUCTION By a petition filed on the 8th day of March, 2022 Petitioner is seeking the following reliefs:- a) That the ordinance marriage between the Petitioner and Respondent be dissolved. b) That each party maintains its cost. Counsel for the Respondent filed an Answer on the 12th day of May, 2022 and the Petitioner filed a Reply to the Respondent’s Answer on 31st May 2022. On the 5th of October, 2022 the court granted the Respondent leave to file an Answer and Cross Petition. The Petitioner was ordered to file an amended Petition on the 20th of October, 2022 and he complied with the order and prayed for the following reliefs; a. That the ordinance marriage between the Petitioner and Respondent be dissolved. b. That the Respondent be ordered to make monthly payment of GH¢ 3,000.00 to the Petitioner pending suit. c. That thereafter the Respondent be ordered to pay financial settlement of GH¢ 300,000.00. d. That each party maintains its cost. The Respondent then filed an amended Answer and Cross Petition on the 12th of October, 2022 and she prayed for the following reliefs; a. That the Petitioner be ordered to make to the Respondent such monthly maintenance of GH¢ 2,000.00 pending suit and thereafter such periodically payments as may be just. b. In the alternative, should the court in its wisdom see merit in the Petition to grant a divorce, the Respondent prays for financial settlement of GH¢ 200,000.00. c. That the Petitioner be ordered to pay costs of and incidental to the suit. The Petitioner filed an amended witness statement on the 22nd of October, 2022 and the Respondent filed a supplementary witness statement on the 12th of October, 2022. Hearing commenced on the 22nd of June, 2022 and the Petitioner was cross examined by Counsel for the Respondent on the 22nd of June, 2022, 6th of July, 2022, 16th of November, 2022, and 22nd of February, 2023. Although cross examination of the Petitioner was not completed the Respondent and her lawyer refused to appear in court despite being given several notices and as a result the Petitioner was discharged and was allowed to close his case on the 11th of April, 2025. The Respondent’s Answer and Cross petition was then struck out pursuant to Order 25 rule 1(2)(a) of the District Court Rules, 2009 (C.I 59) and in the circumstance I will not consider her Answer in this judgment. The case was then adjourned to the 16th of May, 2025 for judgment. The Petitioner got married to the Respondent under Part III of the Marriage’s Act 1884-1985 (CAP 127) on the 6th of August, 1983 at the Epiphany Presbyterian Church at Kajaano, South La Estate. Parties cohabited at South La Estate and are blessed with two issues namely; David Amugi aged 38 years and Daniel Amugi aged 31 years. The Petitioner is a Pensioner and an actor and the Respondent is a Pensioner. PETITIONER’S CASE Per the petition, it is the Petitioner’s case that the Respondent has refused him sex for 22 years before the inception of the instant case. He also states that the Respondent has behaved unreasonably towards him and as a result he cannot continue to live with her and this has led him to move out of their matrimonial home. He also states that the marriage between himself and the Respondent has broken down beyond reconciliation and prays for the dissolution of the marriage. BURDEN OF PROOF It must be stated that the standard of proof required by law in proof of breakdown of a marriage beyond reconciliation, is the same as all civil cases which is proof on a preponderance of probabilities. See Bisi v. Tabiri alias Asare [1987-88] 1 GLR 360, Sagoe and Others v. Social Security and National Insurance Trust (SSNIT) (2012) 2 SCGLR 1093, Bakers-Woode v. Nana Fitz (2007-2008) SCGLR 879 at 891 and John Dramani Mahama v. Electoral Commission and Another, Civil Suit No. H1/05/2021 dated 4th March 2021. The standard of proof, a preponderance of probabilities was defined in the case of GIHOC Refrigeration and Household v. Jean Hanna Assi [2005-2006] SCGLR 458 as a party’s ability to persuade the Honourable Court that the existence of a relevant fact is more probable than not as follows: “Since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (burden of persuasion) in all civil matters is the preponderance of the probabilities based on a determination of whether or not a party with the burden of producing evidence on the issue”. The Petitioner therefore has a duty to prove his case by leading sufficient evidence to convince the court that his story is probably true. With the above discussion in mind I will go ahead and discuss the law on dissolution of marriages under the Ghanaian law and whether the marriage celebrated between the parties has broken down beyond reconciliation. Per section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) the only ground for the grant of a decree of divorce is that the marriage has broken down beyond reconciliation. Section 2 of Act 367 specifies facts for the purposes of showing that the marriage has broken down beyond reconciliation and for the purposes of the instant case the following sections are relevant to this case: (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; (b)That the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent; (f) That the parties to the marriage have, after diligent effort, been unable to reconcile their differences. The Petitioner in his supplementary witness statement which was adopted as his evidence had the following to say; 9. That the marriage has broken down beyond reconciliation. 10. That the Petitioner and Respondent have lived together as husband and wife for the past 38 years BUT are unable to reconcile their differences. 11. That the Respondent has behaved in a way the Petitioner cannot reasonably be expected to live with the Respondent. 12. That all attempts made by both families to reconcile the marriage have proved futile. He then went ahead to pray for the court to dissolve the marriage between himself and the Respondent in paragraph 25 of his witness statement as follows; 25. WHEREFORE I respectfully pray that: i) The marriage between the Petitioner and the Respondent be dissolved. It is trite that the evidence adduced by a party must be subjected to cross examination as held in the case of Quarcoo v. Welbeck [2008-2009] 2 GLR 498, Quaye J.A. held at page 519 that evidence not tested by cross examination is improper and lends itself to being set aside. With this principle in mind I will reproduce what ensued during the Petitioner’s cross examination by Counsel for Respondent on the 6th of July, 2022 and it is clear that he maintained the assertions he made against the Respondent. This is what he had to say: Q. I suggest to you that the respondent sleeps naked with only a loin cloth on the same bed and could not have denied you sex. A. My Lord anytime we want to make love there is some compromise. Our own attitude before we go to bed tells a lot that we can or cannot. So whatever way she dresses and gets into bed does not really matter. Q. So are you telling the court that for 22 years you have never had any sexual intercourse? A. For 22 years I have not had sex with my wife Q. I suggest to you that your wife has not denied you sex for 22 years. You have rather denied her sex A. My wife has denied me sex for 22 years He went on to state that he had moved out of their matrimonial home during cross examination on the 16th of November, 2022. This is what he had to say: Q. You have moved out of your matrimonial home. Not so? A. Quite recently yes Q. When did you move out? A. In July, 2022 Q. Which specific date A. I would not know the real date but I moved out in July when the proceedings started. Since the Petitioner’s cross examination was not completed upon a careful perusal of the evidence adduced by the Petitioner it is clear that the Petitioner never wavered in his assertion that the marriage between himself and the respondent has broken down beyond reconciliation due to the unreasonable behavior of the respondent which has led him to move out of their matrimonial home. Accordingly, I am satisfied that the Petitioner was able to prove on a preponderance of probabilities that his marriage to the Respondent has broken down beyond reconciliation. Accordingly I hereby decree the marriage celebrated under the Marriage Ordinance (Cap 127) between the Petitioner and the Respondent on the 6th of August, 1983 at the Epiphany Presbyterian Church at Kaajano, South La Estate, dissolved. The Petitioner is also seeking for an order directed at the Respondent to pay an amount of Three Hundred Thousand Ghana Cedis (GH¢ 300,000.00) as financial settlement. Financial settlement or financial provision after divorce or separation is determined based on equitable considerations, primarily guided by section 20(1) of the Matrimonial causes Act, 1971 (Act 367), which emphasizes that such arrangements must be just and equitable, taking into account the circumstances of the parties. Section 20 of Act 367 provides as follows: (1) The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the court thinks just and equitable. (2) Payments and conveyances under this section may be ordered to be made in gross or by installments.” The courts have established that the nature and amount of financial settlements vary depending on the unique facts of each case, including the needs of the applicant, the financial capacity of the respondent, the duration of the marriage, contributions of the marriage and future earning capacities. Therefore, I must determine that the Respondent will be able to pay the amount being claimed by the Petitioner. The Respondent in this case was a banker at GBC but went on retirement in 2018. This is what the Petitioner had to say during his cross examination of the 6th of July, 2022: Q. The respondent used to work with G.C.B not so? A. Yes Q. And since then, the respondent claimed your medical expenses from her employers A. She started claiming it just about when she came on retirement. That was 2018. There is also evidence on record that the Petitioner was gainfully employed at the Ministry of Finance and was the acting director of supply and went on retirement in the year 2008. He also added that he was an actor. This is what he had to say during cross examination on the 6th of July, 2022: Q. You were working with Ministry of Finance A. Yes. My position was the Acting Director of supply. I am into supply and materials management Q. So you were a Senior Director at the Ministry of Finance A. In an acting capacity Q. You were also acting as well as in addition to your normal job A. Yes. It is not that I was acting. I am an actor in toto Q. So you retired in 2008 A. Yes Q. I suggest to you that you were making substantial income from your acting profession A. That is not true He then admitted he was receiving monthly pension payment during cross examination. This is what he said on the 6th of July, 2022: Q. You receive monthly pension payment as well A. Yes From the foregoing it is clear that the Petitioner has been on pension since the year 2008 and that he has been receiving his monthly pension payment and is still acting to this day. There is also evidence on record that the Respondent has been on retirement since the year 2018. There is no evidence on record that the Respondent is currently working or has another source of income and therefore there is no way she will be able to pay an amount of Three Hundred Thousand Ghana Cedis (GH¢ 300,000.00) being sought by the Petitioner in this case. The Petitioner on the other hand is still working as an actor and still receives his monthly pension payment and as such there is no need for an award of financial settlement in his favour as he does not need to re-organize his life or maintain his standard of living. It must also be stated that unfortunately none of the parties are seeking for the equitable distribution of movable or immovable property which can be settled on the Petitioner as settlement of property rights or in lieu thereof or as part of financial provision. From the foregoing considering the oral testimonies of the parties before this Court, I am inclined to believe that the Petitioner does not need to re-organize his life after the dissolution of the marriage and it is also clear that the Respondent cannot pay this amount. The Petitioner is also seeking for maintenance pending suit to the tune of Three Thousand Ghana Cedis (GH¢ 3,000.00) but same was never tackled during the subsistence of the case and with judgment being given this relief is moot. There will be no orders as to cost. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE