SAMUEL AKUETTEY ABBEY V. GLADYS ABBEY

JU D G M E N T 

Samuel Akuetteh Abbey (hereinafter called the Petitioner) and Gladys Abbey (hereinafter called the Respondent) were married under the Ordinance  (Cap 127) (1951 Rev.) on the 23rd day of February 2007 at the Tema Metropolitan Assembly Chamber. After the marriage, the parties co-habited at Teshie and the  Spintex Road, Accra. The parties are both Ghanaians. 

There is one issue of the marriage a son by name Michael Abbey who was  15 years old as at date of filing the petition on the 10th day of January, 2013. The Petitioner is praying for the following reliefs: 

(a) An order dissolving the marriage between the Petitioner and the Respondent dated 23rd February 2007. 

(b)An order granting custody of the child of the marriage named Michael  Abbey. 

The Respondent filed an amended Answer on the 10th day of April 2015.  She denied the material particulars and cross-petitioned for reliefs as follows:

(i) An order dissolving the marriage between the Petitioner. 

(ii) An order granting custody of the child, Michael Abbey, to the  Respondent. 

(iii) Maintenance for the child. 

(iv) An order for Petitioner to pay the child’s school fees and medical  bills. 

(v) An order for Petitioner to pay the Respondent the sum of seventy thousand Ghana cedis (GH¢70,000.00) as financial provision. 

It is the case of the Petitioner that the Respondent has behaved in such a way that he cannot be expected to live with the Respondent. He averred that on 19th day of November 2011, he relocated the Respondent and his son to Italy and that he paid a visit to Ghana on 17th day of March 2012. He stated further that he left the Respondent and their son in their matrimonial home. It is further his case  that on his return to Italy on 31st day of March 2012, he met an empty house  without any trace of the Respondent and their son. 

According to the averments of the Petitioner the Respondent called him on the 2nd day of April and told him she was in Holland and refused to give him her contact details. He further averred that their son had been sent back to Ghana all and that attempts to get him back have proven futile as the Respondent’s relations have refused to release the issue of the marriage to the Petitioner. He avers also  that he has been denied of his conjugal rights. 

The Respondent contends in her amended Answer and cross-petition, that the Petitioner maltreated their son and her good self when they were with him in  Italy by preventing them from using facilities such as the water heater and  bathroom in the Petitioner’s home and that they were forced to use the facilities of their neighbour. She avers also that the Petitioner has had all her things  removed from their matrimonial home at Community 18, Spintex Road, Accra and that he has rather brought a woman by name Elizabeth into their home with  whom he is living as his paramour and whom Petitioner says he is going to marry. She avers that all attempts to resolve their differences have proven futile. 

At the close of pleadings, the issues for determination are: 

1. Whether or not the marriage has broken down beyond reconciliation?

2. Whether or not the Respondent is entitled to maintenance for the issue of the marriage and 

3. Whether the Respondent is entitled to financial provision of  GH¢70,000.00. 

The Petitioner’s lawful attorney, Lawrence Cudjoe Hodonu gave evidence on his behalf. He tendered a power of attorney which was admitted in evidence  as EXHIBIT ‘A’. He tendered the Marriage certificate which was admitted as  EXHIBIT ‘B’. He denied the assertions that the Petitioner maltreated the Respondent and their son when they were living with him in Italy. He also denied that there was any paramour known as Elizabeth in the Petitioner’s life. He  testified that since the 31st day of March 2012, the parties have lived apart as man and wife. The attorney tendered extracts of regular payments of 100 liras made  by the Petitioner on the orders of the government of Italy to their son whom the  Court is now told has returned to Italy. The said issue is now 18 years old and he  is in a tertiary institution in Italy. 

The Respondent since filing the amended answer and cross-petitioned appeared to have abandoned the suit since all subsequent processes served on her Counsel were not responded to. Neither the Respondent nor her Counsel appeared  in Court since the filing of the amended Answer.

Under the circumstances the Court had to proceed on the basis of the attorney’s evidence and the pleadings of the Respondent. 

Section 2 (1) (d) of the Matrimonial Causes Act, 1971 (Act 367) is one of the facts specified for the purposes of showing that the marriage has broken down beyond reconciliation. It provides: “that the parties to the marriage have not lived together as man and wife for at least 2 years immediately preceeding the presentation of the petition and the Respondent consents to the 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.” 

The Respondent has cross-petitioned for divorce which in essence means that she consents to the decree of divorce. 

I find that the marriage has broken down beyond reconciliation on the basis of the parties not having lived together as man and wife for 2 years immediately preceeding the presentation of the petition and the Respondent consents to the  decree of divorce as provided by Section 2 (1) (d) of Act 367 (Supra). I decree the marriage celebrated between the parties on the 23rd of February 2007 with certificate number ROM/0180/2007per licence number TMA/BM/0305/2007,  dissolved. 

Is the Respondent entitled to maintenance for the only issue of the  marriage? 

On the evidence, the only issue of the marriage is now 19 years old and he  lives in Italy even though it is not clear with whom he lives. He is not only an  adult at 19 years, but also per EXHIBIT ‘C’, the Petitioner already pays some form of the maintenance to the issue of the marriage . Thus this relief is moot.

Is the Respondent entitled to a financial provision of GH¢70,000.00?  Having regard to all the circumstances of this case I believe this is not a case for which the Respondent is entitled to financial provision as she has not established the need for financial provision. I will therefore decline this relief. There will be  no order as to costs. 

SGD. 

CECILIA DON-CHEBE AGBEVEY J. 

JUSTICE OF THE HIGH COURT 

Appearances

1. NII AKWEI BRUCE-THOMPSON FOR THE PETITIONER PRESENT 2. RESPONDENT ABSENT