ADUA VRS AZAASI (UE/BO/DC/A4/02/2025) [2025] GHADC 38 (13 February 2025)

*HWMNJ@DC/BO-13/02/2025* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BONGO IN THE UPPER EAST REGION OF GHANA, ON THURSDAY, THE 13TH DAY OF FEBRUARY, 2025. SUIT NO: UE/BO/DC/A4/02/2025 ADONGO ADUA PETITIONER OF ADUA’S HOUSE,BEO-BOKIN, BONGO VRS. ATUNYIA AZAASI RESPONDENT OF FORMER ADABOYA CHIEF'S PALACE, ADABOYA, BONGO TIME: 09:22AM PARTIES PRESENT NO LEGAL REPRESENTATION FOR THE PARTIES JUDGMENT Introduction 1. The Petitioner per her petition for divorce filed on the 19th day of December, 2024, claims against the Respondent for the following reliefs: a. An order for the dissolution of the customary marriage between Petitioner and Respondent. b. Any other order(s) as the Honourable court may deem fit and just. *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 1 of 14 *HWMNJ@DC/BO-13/02/2025* 2. The Respondent filed his response on 24th December 2024 and cross petitioned for the following reliefs: a. An order directed at Petitioner to return the dowry respondent paid on her head to wit; two cows together with two goats, two guinea fowls, one cock and one big size smock with hat which respondent presented as part of the overall dowry requirement. b. An order for Petitioner to pay back one additional cow which petitioner requested from Respondent to sell in order to raise money for the treatment of her child. c. General damages for breach of trust and denying Respondent of the benefits he could have derived from the marriage. d. Any other order(s) that the honourable court may deem fit and just. Case of the Petitioner 3. Petitioner avers that she got married to Respondent about 38 years ago and have no child with Respondent. Petitioner says that the marriage between her and respondent was against her wish/will. Petitioner says that her father got sick and they needed money to pay for his treatment and her father’s brothers compelled her to marry Respondent so that when the dowry of two cows is received, they could sell them to raise money for the treatment of her father. Petitioner says that she informed her uncles that she was not prepared to get into that marriage but her uncles gave her out in marriage to respondent against her wish. Petitioner avers that when she went to stay in respondent’s house, he did not take good care of her since he was depriving her of food and other basic needs. Petitioner further *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 2 of 14 *HWMNJ@DC/BO-13/02/2025* says that respondent maltreated her, insulted her at the slightest provocation labeling Petitioner as a witch. 4. Petitioner avers that one day a misunderstanding ensued between them and respondent held her neck and tried to strangle her to death but was rescued by their neighbours. Petitioner further avers that after she was rescued by her neighbours on that fateful day, she packed her belongings and left Respondent’s house for her father’s house. Petitioner says that she only spent three months (3) in her matrimonial home and because of the maltreatment by Respondent she finally left for her father’s house and has since taken another man and have three children. 5. Petitioner avers that the cock (Nu’uhe gme’a) which in Frafra customary rite seals the marriage was not given. Petitioner says that the marriage between her and Respondent has already broken down beyond reconciliation. It is the Petitioner’s case that the Respondent has acted and behaved in a manner that she cannot continue to have him as husband, hence the instant action for divorce. Case of the Respondent 6. Respondent vehemently denied some of the Petitioner’s allegations contained in her petition. Respondent says that he knew they had one child and the naming ceremony for the said child was done by Respondent but later petitioner told respondent in the presence of witnesses that the said child does not belong to Respondent. Respondent says that the marriage was not against Petitioner’s will/wish as alleged and that he met Petitioner in Kumasi-Bomso and proposed *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 3 of 14 *HWMNJ@DC/BO-13/02/2025* marriage to her. Respondent states that later on he officially sent a delegation to petitioner’s parents and to ask for her hand in marriage which was accepted. Respondent says that the necessary customary marriage rites were performed including the payment of two cows as dowry, two guinea fowls, a cock (Nu’uhe gme’a) and one big size smock with a hat. Respondent says that two goats were also presented for the marriage party. Respondent therefore avers that the marriage was done with full participation of petitioner and that it was never under duress or force. Respondent says that he provided for petitioner and never deprived her of food and other basic needs. 7. Respondent says that it is true that they stayed together for three (3) months but after three (3) months Petitioner asked for permission from Respondent to enable her go and take care of her sick father which permission Respondent willingly and happily granted. Respondent says that the cock (Nu’ uhe gme’a) was given and the one who sent it is still alive and that one of petitioner’s uncles who is also a witness to this fact is also alive. Respondent says that he made several attempts for petitioner to return to her matrimonial home after the demise of her father but all efforts proved futile. Respondent says that he has made several efforts through the chiefs in their respective area to reconcile their difference but petitioner has been the one who is unwilling for amicable reconciliation due to reason best known to her. Respondent avers that he never maltreated Petitioner during their stay together as alleged by the Petitioner but Petitioner took permission from Respondent to go and take care of her sick father and has refused to return back to her matrimonial home despite several efforts by Respondent for her to come back. *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 4 of 14 *HWMNJ@DC/BO-13/02/2025* 8. Respondent further avers that petitioner has deprived her of the conjugal and social benefit he could have enjoyed in his marriage to her for the past 38 years. Respondent avers while petitioner was still staying in her father’s house the said child which petitioner initially claimed was respondent’s child fell sick and petitioner requested one cow from respondent so that she will sell it to pay for the hospital bills which respondent gave. Respondent further avers that later on petitioner told respondent that the said child is not respondent’s child. Respondent further says that he spent his hard earned resources in the performance of the marriage rites and if Petitioner is not interested in the marriage, then her actions are unfair and constitute breach of trust. He therefore cross petitioned for the above-mentioned reliefs. Evaluation of Evidence/Legal analysis and finding of facts 9. The main issue for determination in this case is whether or not the marriage between the Petitioner and the Respondent herein has broken down beyond reconciliation. In addressing this main issue, the court will consider whether or not the parties have lived as husband and wife for a continuous period of at least five (5) years immediately preceding the presentation of this petition for divorce, and (b) whether or not the Petitioner is liable to return the dowry paid to her parents by the Respondent. 10. The evidence on record shows that the parties were customarily married about forty (40) years ago. The evidence further shows that the said marriage has not been dissolved customarily. Ordinarily, a customary marriage is dissolved *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 5 of 14 *HWMNJ@DC/BO-13/02/2025* customarily involving the families of parties and as such there need not be any court intervention to dissolve such a marriage. However, with the enactment of the Matrimonial Causes Act, 1971 (Act 367), the Court may upon an Application by a party, dissolve a customary marriage. Thus section 41 of Act 367 provides as follows: “41. Application of this Act (1) This Act shall apply to all monogamous marriages. (2) On application by a party to a marriage other than a monogamous marriage, the Court shall apply the provisions of this Act to that marriage, and in so doing, subject to the requirements of justice, equity and good conscience, the Court may (a) consider the peculiar incidents of that marriage in determining appropriate relief, financial provision and child custody arrangements; (b) grant any form of relief recognised by the personal law of the parties to the proceedings, in addition to or in substitution for the matrimonial reliefs afforded by this Act. (3) In the application of section 2 (1) to a marriage other than a monogamous marriage, the Court shall consider the facts recognised by the personal law of the parties as sufficient to justify a divorce, including in the case of a customary law marriage, but without prejudice to the foregoing, the following: (a) wilful neglect to maintain a wife or child; (b) impotence; (c) barrenness or sterility; (d) intercourse prohibited under that personal law on account of consanguinity, affinity or other relationship; and (e) persistent false allegations of infidelity by one spouse against another: *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 6 of 14 *HWMNJ@DC/BO-13/02/2025* (4) Subsection (3) shall have effect subject to the requirements of justice, equity and good conscience. (5) In the application of this Act to a marriage under customary law, the words “child of the household” shall be construed as including a child recognised under customary law as a child of the parties. 11. Also in the case of Adjei vs. Foriwaa [1980] GLR 378, Korsah J. made reference to section 41(2) of at 367 and stated as follows: “In my view any party to a marriage other than a monogamous one who seeks a relief from this court, which but for the above-quoted section the court could not have entertained must be deemed to have made an application to the court to apply the provisions of this Act to the marriage. But for the provisions of this Acts it was not the province of the High Court to entertain petitions for divorce where the marriage was one contracted under customary law. Customary law divorce was by act of the parties not by a decree of the court. The court could be requested to ascertain whether there was a valid customary law marriage or whether such a marriage had been dissolved according to custom. But the customary procedures for the dissolution of customary law marriages did not lend themselves to a dissolution of the marriage by a court action. The courts, therefore, until the enactment of Act 367, could not entertain a petition for the dissolution of a customary law marriage. The cross-petition by the defendant, being one for the dissolution of a customary law marriage, the defendant must be deemed to have requested the court to apply the provisions of Act 367 to his marriage. In applying the provisions of the said Act to a customary law marriage, the principles of divorce *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 7 of 14 *HWMNJ@DC/BO-13/02/2025* law upon which those provisions depend will necessarily have to be considered and applied, if justice, equity and good conscience so demand. ” 12. From the above authorities, the Petitioner prays this court to apply the provisions of Act 367 in the dissolution of their customary marriage. Accordingly, this court shall determine the instant Petition for the dissolution of the parties’ customary marriage by applying the provisions of Act 367. In applying the provisions of the said Act to the parties’ customary law marriage, the principles of divorce law upon which those provisions depend will be considered and applied, if justice, equity and good conscience so demand. 13. It is trite law that the sole ground for granting a petition for divorce is that a marriage has broken down beyond reconciliation. Section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) states that: The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 14. The law under Section 2(1) of Act 367 makes provision for six facts to prove the ground that the marriage has broken down beyond reconciliation. Thus, the Petitioner has the burden to satisfy the court on one or more of the following facts: - (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 a way that the Petitioner cannot reasonably be expected to live with the Respondent; or *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 8 of 14 *HWMNJ@DC/BO-13/02/2025* (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 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 such 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 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. 15. Although it is the duty of the court to inquire, so far as it reasonably can, into the facts alleged by both parties as stated in section 2(2) of Act 367, in practical terms the burden on the Petitioner is solely to establish one of the facts and it is for the Respondent in a defended suit to show, if he wishes, that the marriage has not broken down irretrievably as stated in the case of Ash v Ash (1972) 1 All ER 582; Pheasant v Pheasant (1972) 1 All ER 587. In the case of Kotei v. Kotei [1974] 2 GLR 172, Sarkodee J stated that: “Notwithstanding proof of one of the facts showing that the marriage has broken down the court has a discretion to refuse to grant the decree of dissolution on the ground that the marriage has not in fact *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 9 of 14 *HWMNJ@DC/BO-13/02/2025* broken down beyond reconciliation. The discretion given to the court is not discretion to grant but discretion to refuse a decree of dissolution. The burden is not on the petitioner to show that special facts or grounds existed justifying the exercise of the court's discretion; once he or she comes within any one of the provisions specified in section 2 (1) (e) and (f) of Act 367 the presumption is in his or her favour‟. 16. Hence proof of any of the facts raises a presumption of breakdown. If any of the facts is made out, the court must grant the dissolution unless it is satisfied that the marriage has not broken down irretrievably. The burden of proof and persuasion is on the part of the person making the averments to adduce sufficient, cogent and reliable evidence to support the allegations contained in the petition or cross- petition for the court to arrive at the decision that the acts alleged exist rather than their non-existence. 17. I will now proceed to examine the issue of whether or not the parties have lived as husband and wife for a continuous period of at least five (5) years immediately preceding the presentation of this petition for divorce. A Petitioner may satisfy the court that a marriage has broken down beyond reconciliation by adducing evidence that are in tandem with section 2(1)(d)(e) of Act 367. The law is that if parties have not lived as husband and wife for continuous period of at least five (5) years preceding the presentation of the petition for divorce and the Respondent consented to the dissolution of the marriage the court may proceed to grant the divorce. See section 2(1)(d)(e) of Act 376 and the case of Kotei vrs Kotei (1974) 2 GLR 172, HC, where the court held in holding four (4) as follows: *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 10 of 14 *HWMNJ@DC/BO-13/02/2025* “Where there was proof that the parties had lived apart for a continuous period of five years immediately preceding the presentation of the petition, the court would dissolve the marriage against the will of a spouse who had not committed a matrimonial offence and who could not be blamed for the breakdown of the marriage. But there must be proof that the parties had not lived as man and wife during that period; there must have been a total breakdown of the consortium vitae, mere physical separation was not enough. The petitioner must prove not only the factum of separation but also that he or she had ceased to recognise the marriage as subsisting and intended never to return to the other spouse. The state of mind of the parties was relevant but it did not matter whether or not the state of mind of one of the parties was communicated to the other. Fuller v. Fuller [1973] 2 All E.R. 650, C.A.; Main v. Main (1948-49) 78 C.L.R. 636, S.C. and Santos v. Santos [1972] 2 W.L.R. 889 at p. 898, C.A. applied.” 18. From the evidence the parties got married about forty years ago. They testified that they lived as husband and wife for only three months. From the evidence, the court found as a fact the parties have not lived as a husband and wife for a continuous period of at least five (5) years preceding the commencement of this petition for divorce. The court also found as a fact the parties could not resolved their matrimonial differences and have not been communicating for a considerable period of time. The court also found that the Respondent has consented to the dissolution of the marriage between them. This court therefore holds that the marriage between the parties has broken down reconciliation as they have not lived as a husband and wife for a continuous period of at least five (5) years preceding the commencement of this petition for divorce. *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 11 of 14 *HWMNJ@DC/BO-13/02/2025* 19. Moreover, the Respondent is seeking an order directed at Petitioner to return the dowry respondent paid on her head to wit; two cows together with two goats, two guinea fowls, one cock and one big size smock with hat which respondent presented as part of the overall dowry requirement. The Petitioner admitted that two cows were given as dowry but denied that two goats, two guinea fowls, one cock and a smock with hat which were allegedly presented to her parents. The Petitioner admitted that she is ready and willing to return the two cows to the Respondent. PW1 also confirmed that Respondent said she was ready to return the two cows. Accordingly the Petitioner is hereby ordered to return the two cows to the Respondent. 20. Furthermore, Respondent is seeking an order for Petitioner to pay back one additional cow which petitioner requested from Respondent to sell in order to raise money for the treatment of her child. The Petitioner denied she requested Respondent to sell additional cow to take care of the said child. She maintained that she was not at the Hospital when the Respondent brought some money for treatment of the child. From the evidence the Respondent claims he and Petitioner gave birth to one child but the Petitioner claims he is not the father of that child. There is no evidence on record that shows that the Respondent disputed the paternity of the said child when Petitioner allegedly claimed Respondent was not the father of the child. It is worthy of note that at the time Respondent allegedly sold cow to take care of that child he was playing a fatherly role. Thus, he recognized the child as his and did what a responsible father could do for his son. In the circumstances, this court is of the view that the Respondent is not entitled *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 12 of 14 *HWMNJ@DC/BO-13/02/2025* to any additional cow he allegedly sold to take care of the said child when the child was ill. That relief fails and it is accordingly dismissed. 21. Finally, Respondent is claiming general damages against Petitioner for breach of trust and denying Respondent of the benefits he could have derived from the marriage. It is worthy of note that the parties separated due to misunderstanding between them. If they had resolved the matrimonial differences they would have continued to live as husband and wife. They parties separated more than 38 years ago, if the Respondent was minded to claim damages he could have taken steps to do so long ago. And having failed to take action timeously, this court is unable to grant his relief for general damages. Indeed, Equity aids the vigilant, not the indolent. Conclusion 22. Having examined the facts as alleged by the Petitioner and the Respondent as well as the totality of the evidence adduced at the trial in accordance with the above- mentioned authorities, this court is of the considered opinion that the marriage between the parties herein has broken down beyond reconciliation. Accordingly, the court holds that: a. The customary marriage celebrated between the Petitioner and the Respondent about forty (40) years ago is hereby dissolved. b. The Respondent’s cross petition is granted in part in that the Petitioner is hereby ordered to return two cows to the Respondent. Respondent reliefs for damages and additional cow are however refused. *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 13 of 14 *HWMNJ@DC/BO-13/02/2025* c. There will be no order as to costs. The parties are to bear their respective costs incurred in pursuing this matter. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-ADONGO ADUA VRS. ATUNYIA AZAASI (SUIIT NO. A4/02/2025)* Page 14 of 14