Kuvlo v Ayornu (A4/10/2025) [2025] GHADC 68 (14 May 2025)

IN THE DISTRICT COURT B, SITTING AT KOFORIDUA ON WEDNESDAY THE 14TH DAYOF MAY,2025,BEFORE HERWORSHIPYVONNE NELLYAMAADJADI. SUITNO.A4/10/2025 TIME:8:40HRS EMMANUELKUVLO : PETITIONER V. DORISAYORNU : RESPONDENT Parties: PetitionerAbsent, RespondentPresent. JUDGMENT. The parties herein were married under the ordinance on 14th February, 2010 at the Global Evangelical Church in Kete-Krachi in the republic of Ghana. About 14 years later,the Petitioner herein filed a Petition for the marriage to be dissolved. The union wasblessed withthreeissues aged13,10and 7yearsold. The Petitioner’s case is that due to irreconcilable differences which Petitioner failed to state, the parties have not lived together continuously as husband and wife for the past six years and have not had sexual relations as man and wife within those six years.He soughtthe following reliefs fromthecourt: 1. That themarriage betweenthe partiesbe dissolved. 2. That the Respondent be given custody of all the issues of the marriage with reasonable access tothe Petitioner whenhe is inGhana. 3. That thePetitioner be ordered tocontribute tothe maintenance oftheissuesof themarriage, payment ofschoolfees andmedical bills inclusive. 1|Pa ge In answer, the Respondent admitted parties had not lived together continuously as man and wife in six years. She claimed the Petitioner had denied her conjugal rights and that he neglected to provide for her and the children within those six years. She further accused him of deserting the matrimonial home. The Respondent prayed for thefollowing reliefs: 1. Anorderforthe dissolutionofthe marriage. 2. An order directing the Petitioner to pay GH₵3,000.00 for the maintenance of the three issues. 3. An order for the plot of land situate at Afienya, near Hot Oven Bakery acquired by the partiesto be equitably shared. 4. An order directed at the Petitioner to account for the proceeds of sale of a Hyundai vehicle whichparties jointlyacquired. 5. An order directed at the Respondent to pay monthly feeding allowance arears of GH₵3,000.00 for each child, summing up to a total of GH₵504,000.00. 6. Alimony ofGH₵50,000.00. 7. Anordergranting Petitioner access tothe children 8. An order directing the Petitioner to maintain the children and be responsible forfood, clothing, educationaland medical bills asand when theyfalldue. 9. Any orderdeemed fit by thecourt. At the hearing of this matter which commenced and ended on the same day, the Petitioner did not testify but called on a witness to testify on his behalf. The Respondent testified and did not call on any witness. COURT’S ANALYSISAND OPINION 2|Pa ge Section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) provides that the sole ground for granting a petition for divorce shall be that the marriage has brokendownbeyond reconciliation. Section 2 (1) of Act 367 again provides that for the purpose of showing that the marriage has broken down beyond reconciliation, the petitioner shall satisfy the courtofone ormoreofthe following facts: (a) That the Respondent has committed adultery and that by reason of the adulterythe petitionerfinds it intolerabletolivewith theRespondent (b) That the Respondent has behaved in a way that the petitioner cannot reasonablybe expectedtolivewiththe respondent (c) That the respondent has deserted the petitioner for a continuous period of at least twoyearsimmediatelypreceding the presentationofthepetition. (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 withheld the court may grant apetitionfordivorceunder this paragraphdespite the refusal (e) That the parties to the marriage have not lived as husband and wife for a continuous period ofat least five years immediately before the presentation of thePetition, (f) That the parties after diligent efforts have been unable to reconcile their differences. Section2(3) provides that althoughthecourt finds the existence ofone ormore ofthe facts specified in (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 case of Kotei v. Kotei [1974] 2 GLR 172, Sarkodee J. held as follows; 3|Pa ge “…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 that 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 that 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.” (Emphasis mine). Fromthe scant factsand evidence before the court, the Petitionerbased his allegation for the breakdown of the marriage on the fact that parties had not lived together continuously for a period of six years and had also not engaged in sexual relations during the same period. The Respondent based her reasons on the alleged desertion of the matrimonial home and shirking of spousal and parental responsibilities by the Petitioner. Section 1 (2) (e) of the Matrimonial Causes Act provides that the parties seeking a dissolution of marriage should not have lived as husband and wife for a continuous period of at least five years immediately before the presentation of the petition. Although parties did not provide any evidence to show they have not lived together continuously for a period of six years and not had sexual relations within the same time frame, the court finds this fact to be more probable than otherwise. 4|Pa ge This is because Section 7 of the Evidence Act,1975 (N.R.C.D 323) deals with corroboration. It states that corroboration consists of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence. Having corroborated each other’s claims, the court is convinced this marriage canbe dissolved based onsection 1(2)(e)ofthe Matrimonial CausesAct. Now to the issue of desertion. Desertion is defined as the unjustifiable withdrawal from cohabitation without the consent of the other spouse and with the intention of remaining separated permanently. According to section 2 (1) (c) of the Matrimonial Causes Act, the Petitioner must establish that the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the filing ofthe petition. Section 5 (1) of the Matrimonial Causes Act states that: For the purposes of section 2 (1) (c), in determining whether the period for which the respondent has deserted the petitioner has been continuous, the Court shall disregard any period or periods not exceeding six months in the period during which the parties resumed living as man and wife Desertion may be the physical withdrawal from a place or withdrawal from a state of things. The withdrawal must amount to a total repudiation of marital obligations. Seethe case ofNaylor v.Naylor [1961] 2AllER129. The elements of desertion are de facto separation, animus deserendi, lack of consent from the other spouse and lack of reasonable excuse. All elements must be present for desertion to be proved. Inability to proveone out the four means desertion failed. De facto separation is deemed to have occurred when there is actual withdrawal from the performance of all marital obligations leading to a complete cessation of cohabitation. 5|Pa ge In the case of Hope v. Hope [1948] 2 All ER 920 the court held that there was insufficient separation for desertion to be established due to the reasonthat although parties slept in different rooms, Mr. Hope continued to have meals with the rest of thefamily andshared living space withthem. Animus deserendi is the intention to bring cohabitation to an end by the party who has decided to cease performing his or her marital responsibilities. The burden of proving the intention of the respondent to bring cohabitation to an end lies on the petitioner. Lack of consent can be ascertained from the circumstances of the case. For example, parties may live separately due to work transfers. Such consent may be express or implied, however, it must be voluntarily given. Once consent is withdrawn, desertion is deemed to have taken place. See the case of Nutley v. Nutley [1970] 1 AllER410. On the other hand, if a party has a good reason for bringing cohabitation to an end, desertion cannot be said to have taken place. It cannot be desertion when a party ends cohabitation due to domestic violence and this can be termed constructive desertion. Constructive desertion occurs when a party is compelled to end cohabitation due to the conduct of the other. A party alleging constructive criticism must prove factum and animus, that is prove that the other spouse intended to expel him or her from the household to permanently bring cohabitation to an end. In Hughesv.Hughes[1973] 2G.L.R342,the courtheld that: “For the conduct of the of the wife to amount to desertion, the court has to be satisfied that it was an unjustifiable withdrawal from cohabitation and that she had the intention of remaining separated permanently from him. Where a spouse has agreed that the other spouse could leave, he could not complain that the other was guiltyofdesertionas separationwasby consent.” 6|Pa ge As stated before, all (emphasis mine) the elements must be present before the fact of desertioncan be proved. The Respondent did not adduce any evidence to back her claim of Petitioner’s desertion except what wascontained inherAnswerto the Petition. The EvidenceAct, 1975(N.R.C.D323) provides in section10as follows: (1). For the purposes of thisAct, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind ofthe tribunal offact orthe Court. (2). The burdenofpersuasionmay require aparty (a) to raise a reasonable doubt concerning the existence or non-existence of afact, or (b) to establish the existence or non-existence of a fact by a preponderance ofthe probabilities orby proofbeyond areasonable doubt. Section11defines theburden ofproducing evidence. Itstatesthat; (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable thanitsnon-existence. Section 12 deals with proof by a preponderance of the probabilities as demanded in acivilcase and the sectionstatesthat (1). Except as otherwise provided by law, the burden of persuasion requires proofbyapreponderance oftheprobabilities. 7|Pa ge (2). “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that theexistence ofafact is more probable thanits non-existence. The Court does not find the Respondent’s allegation of the Petitioner deserting the matrimonial home to be true. From the facts before the court, parties did not have a designated matrimonial home during the pendency of the marriage. This was due to the fact that they chose to reside where they worked. Parties initially took turns visiting each other before the differences alluded to but not stated before the court came into play. As discussed supra, such an arrangement consented to by parties cannot nowbe termed desertion. TheLaw onSpousal Property Case law regarding property acquired during marriage has travelled from the principle of substantial contribution (Quartey v. Martey [1959] G.L.R 377 H.C) to arrive at the principle of equality is equity as espoused by the Supreme Court in Mensah v. Mensah [2012] 1 SCGLR 39. The principle of equality is equity is based onarticle 22(3) ofthe1992Constitution which statesthat; with a view to achieving the full realization of the rights referred to in clause (2) of this article - (a) spouses shall haveequalaccess to propertyjointly acquired during marriage; (b) assets which are jointly acquired during marriage shall be distributed equitably betweenthe spouses upondissolution ofthe marriage. In the case of Quartson v. Quartson [2012] SCGLR 1077, the Supreme Court stated that: “The decision in Mensah v. Mensah is not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled and that it should be applied on a case by case basis, with a view 8|Pa ge to achieving equality in the sharing of marital property. Consequently, the facts of eachcase will determine the extent towhichthe ruling applies.” The Petitioner did not speak to the claims of the Respondent regarding the Hyundai car allegedly sold during the pendency of the marriage and the land situate at Afienya. Although the law backs the reliefs Respondent is seeking from the court, the Respondent failed to provide any evidence to show such matrimonial properties were acquired. One main principle of evidence is that he who asserts must prove. There is no evidence before the court in respect of the purchase of the car, the purported sale thereof or any other information such as registration details that would help the court arrive at a determination necessitating an order to be made for proceeds of the sale to be shared. In respect of the land, all the information provided is that it is situate at Afienya without further description. For example, Respondent could have tendered a copy of a lease or perhaps a copy of a search from the Lands Commission to validate this claim of property ownership. Merely stating the information in the Answer to the Petition and repeating same in her witness statement does not amount to evidence. It was held in the case of Hammond vrs. Odoi(1982/83)GLR at1215: “Where a party has pleaded facts but led no evidence in support of the facts, the facts merelypleaded cannot be the foundation for judgmentonthe merits”. Having failed toconvince the court,the reliefs Respondent is seeking with regardsto thenamed propertiescannot be granted. CONCLUSION The court therefore finds and holds that the marriage celebrated between the parties herein onthe 14thday of February,2010 at the Global Evangelical Church of Ghana in 9|Pa ge Kete-Krachi has broken down beyond reconciliation as claimed by parties. The court hereby decrees that the ordinance marriage celebrated between the parties is dissolvedtodaythe 14thday ofMay,2025forthwith. ANCILLARY RELIEFS The judgment ofthe courtin respect ofancillary reliefs areas follow: 1. Custody of the three issues; Elikem Light Atsu Kuvlo, Deladem Emma Adzo Kuvlo and Delalorm Trinita Atsu Kuvlo is granted to the Respondent with accesstothe Petitioner during vacations. 2. The Petitioner is to maintain the threeissues withthe amount ofGH₵2,500.00 monthly, starting from the date judgment is delivered. This amount is subject toanupward review of15% yearly. 3. That the Petitioner shall bear responsibility for school fees and all fees related tothe educationalneedsofthe threeissues. 4. That the parties shall equally bear responsibility for the health needs of the threeissuesas and when medical bills falldue. 5. That the Petitioner is responsible for providing accommodation for the issues until the third born completes tertiary level of education or any other training schoolafterher second cycle education. 6. The court awards the Respondent with alimony of GH₵20,000.00. This amount is tobe paid before 31stDecember,2025. The court will not grant the Respondent’s relief of an order directed at the Petitioner to pay maintenance arears in the sum of GH₵ 504,000.00. This is because 10|Pa ge Respondent failed to provide any evidence to show how much she had expended in single handedly caring for the children during the period of years she claimed she did. Despite the Respondent failing to produce evidence of the cost incurred in raising the issues within the last six years, the court notesfrom the facts that the Respondent has been the primary parent and caregiver for them. This contribution cannot be overlooked, hence the court’sdecision regarding theancillary reliefs. H/WYVONNE NELLYAMA ADJADI MAGISTRATE 11|Pa ge