BEATRICE ASOMANI V. DARTEH-ADJEI

JUDGMENT

AGBEVEY J.

It is the case of the Petitioner that the parties married under customary law  on the 1st day of May 2009 and that the parties co-habited at East-legon, Accra.  The parties are both Ghanaians. There are two issues of the marriage. 

In her petition filed on the 29th day of April 2015, the Petitioner is praying  the Court as follows: 

a. The marriage be dissolved. 

b. The Petitioner be awarded maintenance for herself and her children  pending this suit. 

c. The Petitioner be given custody of their two children namely, Ama  Animwaa Darteh-Adjei and Kojo Darteh-Adjei who are aged five (5) years  and one (1) year, three months respectively.

d. The Respondent provides for the upkeep, medical expenses and school fees  of their children. 

e. The Petitioner be given a lump sum of GH¢100,000.00 

f. That the Respondent settles on the Petitioner and their children  permanently the matrimonial home, one owned by the Respondent as part  of financial settlement. 

g. Outstanding amount for maintenance due the Petitioner from about  April/May 2013 to date. 

h. The Petitioner be given such reliefs as may be just. 

The Respondent filed an Answer on the 27th day of May 2015 in which he  denied the material particulars, especially he averred that there was no lawful  marriage between the parties. He averred further that since the 18th day of September 1995 he has been married to one Rita Asiamah Kesiwaa under the  Marriage Ordinance. 

He, however, admitted that he was in concubinage with the Petitioner with  whom he has two children. According to the Respondent’s pleadings, he approached the Petitioner’s family to notify them of the termination of the concubinage. 

The Respondent denied relief (a) of the petition and averred that the marriage  never existed and so cannot be dissolved by the Court. He also averred that the  Petitioner is not entitled to reliefs (b) – (h). 

It is worthy of note that prior to the hearing, the parties had entered a consent  judgment in the following terms: 

i. That joint custody be in both parties but the Petitioner be given care  of the children, Ama Animwaa Darteh-Adjei and Kojo Darteh-Adjei  with reasonable access to the Respondent.

ii. That the Respondent will provide occupancy without any  encumbrance in one of his flats at Achimota as accommodation to  the Petitioner and the children Ama Animwaa Darteh-Adjei and  Kojo Darteh-Adjei for as long as the Petitioner remains unmarried  without prejudice to the Respondent’s continued ownership and title  to the flat. For the avoidance of doubt the Petitioner would move  out of the property if she marries. 

iii. That the Respondent would bear the cost of all educational expenses  i.e.; tuition fees and transportation to and from school of the  children, Ama Animwaa Darteh-Adjei and Kojo Darteh-Adjei. 

iv. That the Respondent would pay five hundred Ghana Cedis  (GH¢500.00) as monthly maintenance for the children. 

v. That the Respondent will pay ten thousand dollars (US$10,000.00) as financial compensation to the Petitioner. 

vi. That the Respondent would bear all the medical expenses of Ama  Aniwaa Darteh-Adjei and Kojo Darteh-Adjei upon the presentation  of receipts by the Petitioner. 

vii. That regardless of the outcome of the evidence to be taken by the  Court on whether or not there was a marriage between the parties,  the parties agree that no orders of the Court should deny the  petitioner of the agreed sum of US$10,000 or any part thereof should a finding go against the Petitioner, nor the Respondent be made to  pay anything more than the agreed sum of US$10,000 should a finding go against the Respondent. 

viii. That there will no award as to cost. 

ix. That both the Petitioner and Respondent will each bear the costs of  their own legal fees. 

The Petitioner, in her evidence-in-chief, testified on oath that she got married  to the Respondent on the 1st day of May 2009 customarily. She tendered  photographs of the ceremony which were admitted into evidence without  objection as EXHIBIT ‘A’ series. She told the Court that when the parties met,  the Respondent told her that he was divorced. She added that the parties went through a proper ceremony of marriage at her father’s house at Achimota. She testified further that after the marriage she cohabited with the Respondent at East  Legon where they lived openly as husband and wife together with the  Respondent’s other three children from his previous marriage. 

Under cross-examination, the Petitioner who is 38 years old, denied the assertion of the respondent that she was pregnant as a result of which the  ceremony that took place at her father’s house on the 1st day of May 2009 was merely to acknowledge the acceptance of the pregnancy by the Respondent. She  vehemently denied the question put to her that she was pregnant for which reason the Respondent duly accepted responsibility and moved her into his matrimonial home to take care of her. Furthermore, she testified that she got pregnant one month after the traditional marriage ceremony whilst cohabiting with the Respondent and that she went on to have a second child with the Respondent in  the course of the marriage. 

The Respondent, in his evidence-in-chief, told the Court that he met the  Petitioner and she became his girlfriend some time in January 2009. In the course of the relationship, in or about March 2009, the Petitioner told him that she was pregnant. Consequently, he informed his siblings and family members who went  with him to the family house of the Petitioner to accept responsibility for the pregnancy and a ceremony of sorts took place. He denied that it was a traditional marriage ceremony. The Respondent told the Court that he was and still married to one Rita Asiamah Kesiwaa.

He tendered a photocopy of a marriage certificate which was admitted in  evidence as EXHIBIT ‘1’ which Exhibit indicated that the Respondent and Rita  Asiamah Kesiwaa were married under the Ordinance on the 18th day of  September, 1995 at the Office of the Principal Registrar of Marriages, Accra. The  Respondent testified further that his wife was sojourning in the United States of  America (hereinafter called the USA) when the Petitioner moved into their  matrimonial home. He told the Court that because he never married the Petitioner  there is no marriage to be dissolved. 

Under cross-examination, he told the Court that the said Rita Asiamah  Kesiwaa was travelling back and forth to the USA and returned to the country in  2010. He stated further that when she returned to Ghana and found the Petitioner  living in her matrimonial home, she insisted that the Petitioner should be moved  from same before she would move back into their home. The Respondent denied the assertion that he told the Petitioner’s family that he had divorced Rita  Asiamah Kesiwaa. 

The issue to be determined by the Court is whether or not the Respondent  contracted a customary marriage with the Petitioner and if so whether it was a  valid marriage. 

It is trite that he who asserts must prove. In the case of ABABIO v. AKWESI  IV (1994-1995) GBR, 774, the Court held that “The general position of the  law is that it is the duty of the plaintiff to prove what he alleges, in other  words, it is the party who raises in his pleadings, an issue essential to  the success of his case who assumes the burden of proving it.” This has  been given effect to by relevant Sections of the Evidence Act, 1975 (NRCD) 323  as follows:

Section 10 (1) provides: “For the purposes of this Act, the burden of  persuasion means the obligation of a party to establish a requisite degree of belief  concerning a fact in the mind of a tribunal of fact.” Section 11 (1) provides: “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. Section 11 (4) in other circumstances the burden of producing evidence  requires a party to produce sufficient evidence which on the totality of evidence,  leads to a reasonable mind to conclude that the existence of the fact was more  probable than its non-existence. Sec.12 (1) Except as otherwise provided by law, the burden of persuasion  requires proof by a preponderance of probabilities”. (2) “Preponderance of probabilities means that degree of certainty or belief  in the mind of a tribunal of fact or the court by which it is convinced that the  existence of a fact is mere probable than its non-existence.” Section 14. “Except as otherwise provide by law, unless it is shifted, a party  has the burden of persuasion as to each fact the existence or non-existence of  which is essential to the claim or defence that the party is asserting.” 

The Petitioner tendered EXHIBIT ‘A’ series which are photographs depicting  the parties and others at a ceremony. Whereas the Petitioner testified that the  occasion in question was the celebration of a traditional marriage ceremony  between the Petitioner and the Respondent, the latter denies this and insists that the said ceremony as captured in EXHIBIT ‘A’ series was to announce his  acceptance of the Petitioner’s pregnancy. 

A close scrutiny of the photographs making up EXHIBIT ‘A’ series show that  the said ceremony which took place on the 1st of May 2009 was too elaborate for a mere acceptance of pregnancy. All the images captured in the photographs  including the Respondent putting a ring on the Petitioner’s finger as well as  presenting her with a wrapped Bible appear to be a traditional marriage ceremony having taken place on that occasion. 

On the evidence, I find that a traditional marriage took place on the 1st day of May 2009 between the Petitioner and the Respondent. This is in spite of the  Respondent being economical with the truth. This is what ensued under cross examination: 

Q. I am suggesting to you that you indeed told the Petitioner and her  family that you had divorced Ms. Rita Asiamah? A. My lord, that is never true. I never and will never divorce my wife. Q. You told this honourable Court that the ceremony was to accept  responsibility of the Petitioner’s pregnancy. Am I correct? A. That is correct. Q. Take a look at Exhibit A series. A. Yes my lord. Q. In some of the pictures, you were holding a ring and in some you  were pushing it onto the Petitioner’s finger. Can you tell this  honourable court the purpose of that, if you were just going to accept  the responsibility for her pregnancy? A. My lord, in one instance, I was holding the hand of the Petitioner  and I cannot see any ring in my hand. Q. Take a look at Exhibit A14? A. Yes my lord, I can see I was talking and my hand was up. Q. And describe what you were doing in Exhibit A as well?A. I was holding her hand. Q. I am again suggesting to you that, you are being very untruthful to  this Court and that Exhibit A and Exhibit A14, clearly shows that  you are holding a ring and that you are pushing the ring onto the  Petitioner’s finger? A. That is not true. Q. I am further suggesting to you that you indeed got married to the  Petitioner under customary law? A. That is not true. Q. I am further suggesting to you that you indeed got married to the  Petitioner under customary law? A. My lord I never married the Petitioner. 

Clearly, EXHIBIT ‘A’ series on the balance of probabilities indicate that  a customary marriage took place on the 1st day of May, 2009 at the house of the  Petitioner’s father and I so find. 

On his part, the Respondent tendered EXHIBIT ‘1’ which is a photocopy  of a marriage certificate of an Ordinance Marriage dated the 18th day of  September 1995 evidencing the celebration of a marriage between the  Respondent and Rita Asiamah Kissiwa. Although the Petitioner contended that  the Respondent had represented to her family prior to the traditional marriage that  he was a divorcee, the Respondent testified that he was very much married to the  said Rita Asiamah Kissiwaa as evidenced by Exhibit 1. The Respondent, in the  absence of any evidence to the contrary has discharged the onus on him to  establish that at the time of the celebration of the customary marriage, he was  married under the ordinance. 

Section 44 of Cap 127 provides that a person married under the Ordinance  shall be incapable of contracting a valid marriage under any native law or custom. 

In the case of BARAKE v. BARAKE (1993 -94) 1 GLR 653, the parties  married under the Marriage Ordinance (Cap 127). The Court held that the second  marriage of the Respondent which was under the Mohammedans Ordinance  (Cap129) was bigamous as Section 44 of Cap 127 incapacitated a person married  under the Marriage Ordinance from another marriage during the subsistence of  the earlier marriage. 

Once the presumption of a customary marriage has been established, the  onus shifted to the party contesting it to establish the contrary. It is incumbent on  the Respondent to establish the contrary. This he has discharged by producing a  certificate of marriage, EXHIBIT ‘1’. 

Section 263 (1) of the Criminal Offences Act, 1960 (Act 29) provides

“A  person commits bigamy who knowing that a marriage subsists between him or her and any person, goes through the ceremony of marriage, whether in Ghana or  elsewhere, with some other person.” 

Section 264 provides that

“Whoever, being unmarried, goes through the  ceremony of marriage, whether in Ghana or elsewhere, with a person whom he  or she knows to be married to another is guilty of a misdemeanour, whether the other party to the ceremony has or has not such guilty knowledge as to be guilty  of bigamy”. 

Section 265 (2) provides that

“A person may be guilty of bigamy or of an  offence under Section 264 if, having contracted a monogamous marriage with  any person, he marries or purports to marry any other person under customary  law, or if, being married to any person by customary law, he goes through a  monogamous ceremony of marriage with any other person.”

The Court held in BARAKE v. BARAKE (Supra) that besides Section 44 of Cap 127 which rendered the second marriage invalid, Section 264 of Act  29 similarly rendered the purported marriage bigamous. 

On the evidence, I find that although the parties went through a customary  marriage ceremony in the house of the Petitioner’s father, the said marriage in the  absence of any evidence of a divorce between the Respondent and Rita Asiamah  Kesiwaa, is not valid. Consequently, on the evidence, there is no valid marriage  to be dissolved by the Court as there was a valid subsisting ordinance marriage  between the Respondent and Rita Asiamah Kesiwaa at the time of the celebration  of the customary marriage between the Petitioner and the Respondent on the 1st day of May 2009. 

Under Section 14 of the Matrimonial Causes Act 1971 (Act 367) children  of void marriages shall be deemed to have the same status and rights as if the  marriage of their parents have been dissolved rather than annulled. This is  applicable to the two children of the parties. 

As mentioned earlier, in respect of the ancillary reliefs, I enter judgment  in terms of the consent judgment filed on 22nd of April 2016, signed by the parties  with their respective Counsel as consent judgment of the Court. 

For the avoidance of doubt I reproduce the terms are as follows: 

x. That joint custody be in both parties but the Petitioner be given care  of the children, Ama Animwaa Darteh-Adjei and Kojo Darteh-Adjei  with reasonable access to the Respondent. 

xi. That the Respondent will provide occupancy without any  encumbrance in one of his flats at Achimota as accommodation to  the Petitioner and the children Ama Aniwaa Darteh-Adjei and Kojo  Darteh-Adjei for as long as the Petitioner remains unmarried without  prejudice to the Respondent’s continued ownership and title to the flat. For the avoidance of doubt the Petitioner would move out of the property if she marries. 

xii. That the Respondent would bear the cost of all educational expenses  i.e.; tuition fees and transportation to and from school of the children, Ama Aniwaa Darteh-Adjei and Kojo Darteh-Adjei. 

xiii. That the Respondent would pay five hundred Ghana Cedis (GH¢500.00) as monthly maintenance for the children. 

xiv. That the Respondent will pay ten thousand dollars (US$10,000.00) as financial compensation to the Petitioner. 

xv. That the Respondent would bear all the medical expenses of Ama  Aniwaa Darteh-Adjei and Kojo Darteh-Adjei upon the presentation of receipts by the Petitioner. 

xvi. That regardless of the outcome of the evidence to be taken by the  Court on whether or not there was a marriage between the parties,  the parties agree that no orders of the Court should deny the  petitioner of the agreed sum of US$10,000 or any part thereof should  a finding go against the Petitioner, nor the Respondent be made to  pay anything more than the agreed sum of US$10,000 should a  finding go against the Respondent. 

xvii. That there will no award as to cost. 

xviii. That both the Petitioner and Respondent will each bear the costs of their own legal fees. 

It is further agreed that this judgment shall be filed in Court and entered as consent judgment.  

SGD. 

CECILIA DON-CHEBE AGBEVEY J. 

JUSTICE OF THE HIGH COURT

Appearances

NANA BENEWAH FRIMPOMAA BADU FOR EGBERT FAIBILLE JNR. FOR THE PETITIONER PRESENT EMMA OWUSU MARFO FOR JUSTICE KUSI MINKAH-PREMO FOR THE RESPONDENT PRESENT