Baah v Appiah (A4/20/23) [2024] GHADC 690 (24 December 2024)

CORAM: HER WORSHIP BIANCA GYAMERA-BEEKO MAGISTRATE SITTING AT THE DISTRICTCOURTMAMPONG-AKWAPIMON24TH DAYOF DECEMBER, 2024. ------------------------------------------------------------------------------------------------------ SUITNO.: A4/20/23 MARGARETOMANE BAAH ……………. PETITIONER VRS. JONATHANKWAME APPIAH …………… RESPONDENT Petitioner present. Respondent absent. JUDGMENT By apetitionfiled on13thJuly, 2023,the Petitioner seeksthe following reliefs: 1. Anorderfor the dissolutionofthe ordinance marriage betweentheparties. 2. An order granting custody of the child to Petitioner with reasonable access to the Respondent. 3. An order directing the Respondent to maintain the child with GHS1,000 per month, pay schoolfees, medicalexpensesand any otherincidentalexpenses 4. Anyotherorder(s) thatthe courtdeems fit. The Petitioner is a teacher who lives at Akropong-Akuapem while the Respondent is also a teacher who lives at Kwamoso-Akuapem. Parties were married under the ordinance on 31st October, 2015 and the marriage produced one issue, Nhyiraba Aboagye Appiah aged 6at thetime ofthe filing ofthe petition. The Petitioner complains that for the two years preceding the filing of this petition, the Respondent had not had sex with her and when she complains he assaults her. The Respondent for his part complains that the Petitioner is disrespectful and has left the matrimonial home among others. He also cross-petitioned for dissolution of the marriage andcustodyofthe issue. 1 Parties agreed to attempt court connected ADR and succeeded in settling the ancillary issues. Per the termsfiled on5thOctober,2023,they agreed that: 1. Custody of the issue be granted to the Petitioner with reasonable access to the Respondent. 2. The Respondent maintain theissue withGHS 600eachmonth. The terms were adopted as consent judgment by the court, differently constituted, on 24th June, 2024. The only issue left to be resolved therefore is whether the marriage has broken down beyond reconciliation. Section14ofthe Evidence Act, 1975(Act 323)provides that except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essentialto theclaim ordefence heis asserting. In the case of Serwah v Kesse (1960) GLR 227, the Supreme Court stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially asserts theaffirmativeoftheissue”.They laid downthe following testsforwho bearsthis burden: “The best tests for ascertaining on whom the burthen of proof lies are, to consider first which party would succeed if no evidence were given on either side; and, secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued See Taylor on Evidence, s.365 quoted inStroud, Judicial Dictionary(3rd. ed.)p. 1996.” Accordingly, the Petitioner bears the burden of persuasion in this matter as regards the petitionand the Respondent bearsthe burdenofpersuasion asregardsthe cross-petition. Section 11(1) of Act 323 explains the burden of persuasion as the obligation of a party to introduce sufficient evidence to avoid a ruling against him on an issue. This being a civil 2 matter, the parties are required to prove their cases upon a preponderance of probabilities inaccordance withsection12ofthe Evidence Act 1975(NRCD323). Under Ghanaian law, the sole ground for granting a divorce is that the marriage has broken down beyond reconciliation; section 1(2) of the the Matrimonial Causes Act, 1971 (Act 367). In order to prove that the marriage has broken down beyond reconciliation, section 2(1) of Act 367 requires that the petitioner satisfies the court of one or more of the following facts: (a) that the respondent has committed adultery and that by reason of such adultery the petitioner findsitintolerable to livewith the respondent;or (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to livewith the respondent; or (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediatelypreceding 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 leastfive years immediately precedingthe presentation of the petition; or (f) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences. The Petitioner and Respondent are each therefore required to demonstrate the existence of one of the facts listed in section 2(1) of Act 367 in order to succeed on the petition or cross- petition as the case may be. Both the Petitioner and Respondent filed a witness statement, andneither called onotherwitnesses tocorroborate their testimonies. 3 The Petitioner’s testimony was that from the beginning of the marriage there had not been any proper communication between the parties. She alleged that the Respondent had failed to maintain both the issue of the marriage and herself in the course of the marriage even though he was gainfully employed as a teacher. Since 2021, the Respondent had stopped having sex with her and assaulted her without any provocation from her. The Petitioner also testified that the Respondent was doing business with a woman who doubled as his cook. The Respondent had sent drinks to the Petitioner’s family to communicate that he was no longer interested in the marriage. The Petitioner also testified that on 20th June 2023, she decided to move out of the matrimonial home and and in the process of packing the Respondent used a door to hit her on the forehead and that she reported the incident to the Police. Except for a photocopy of the marriage certificate that thePetitioner attached to herwitness statement, noover attachment was annexed. The accusation levelled by the Petitioner against the Respondent that he refused to have sex with her is by its nature difficult to substantiate. However, the allegations such as the complaint that Respondent was not maintaining the Petitioner and issue and that she was the one paying the fees and medical bills of the issue are capable of proof by the production of receipts for the payment of fees and medical bills by the Petitioner. Unfortunately, the Petitioner failed to produce any evidence to assist the court make a determination. For his part, the Respondent in his testimony denied the accusations made by the Petitioner against him. He however admitted sending drinks to the Petitioner’s family. He also admitted that on the 20th of June 2023, the Petitioner moved out of the matrimonial home. Like the Petitioner, he also made various allegations capable of some proof without adducing any evidence to help the court make a determination, and for that reason I shall notexpend any time delving into thoseissues. Having considered the testimonies of the parties, I am satisfied that parties have established in accordance with section 2(1)(f) ofAct 367that they have, after diligent effort, 4 been unable to reconcile their differences. I consequently find that their marriage has brokendownbeyond reconciliation and I so hold. Inconclusion: 1. The marriage celebrated between parties on 31st October, 2015 has broken down beyond reconciliationand is herebydissolved. 2. Custody of the issue is granted to the Petitioner with reasonable access to the Respondent. 3. The Respondent shall maintainthe issue with GHS 600eachmonth. 4. No orderas tocosts. SGD. H/W BIANCAGYAMERA-BEEKO MAGISTRATE 5