OFORI V. OFORI

AMUA-SEKYI J.

The petitioner, Victor Kodzo Ofori, hails from Vakpo in the Volta Region; the respondent, Victoria Dzigbordi Ofori, nee Affram, hails from Peki, also in the Volta Region. Some time before 1964, the petitioner went to the United States of America to study Engineering. After qualifying in 1964 he took up an appointment with the I.B.M. Corporation of New York as a Computer Systems Engineer. From time to time, the petitioner paid visits to Ghana. In 1971 while on one of such visits, the petitioner, on 3 April, married the respondent under the Marriage Ordinance, Cap. 127 (1951 Rev.) in Accra. Later that month, the petitioner and the respondent left for the United States where they set up a matrimonial home in Poughkeepsie, New York, in a house owned by the petitioner. In 1972, the petitioner sold the house at Poughkeepsie and acquired another property on Long Island where he resided with the respondent. Later that year, there was born to the petitioner and the respondent a son, Wogbe, who is now eight years old. In 1974, a second son, Nuku, was born. He is now six years old. Both children were born on Long Island.

There is evidence that in 1975 the petitioner and the respondent visited Ghana with their two children. In June 1978 the respondent came to Ghana for another visit. She was accompanied by the children. After 6 July the petitioner also came to Ghana unannounced. On 17 July he caused this petition to be filed alleging that his marriage with the respondent has broken down beyond reconciliation, and asking for divorce and orders for the custody of the two children. The facts relied upon by him are that the respondent has behaved in such a way that he cannot reasonably be expected to live with her, and that after diligent efforts, he and the respondent, have been unable to settle their differences. The petition was served on the respondent in Accra the next day. On 19 July, she filed her answer to the petition.

It is the evidence of the petitioner that his marriage with the respondent was never a happy one. From the very beginning, even their ordinary conversations tended to end up in heated argument. He accused the respondent of habitual rudeness and of being worldly in outlook. He says she neglected her household duties and would not cook for him or see to the daily needs of the children. The petitioner says he was obliged to take up these responsibilities himself, and this affected his efficiency in his employment and caused him great distress. The occasional visitors from Ghana who came to stay with them received scant treatment from the respondent. One major source of disagreement was the ownership of the matrimonial home on Long Island. According to the petitioner, the respondent insisted that she be made a co-owner of the property. Finally, he alleges that against his wishes the respondent decided to take up a job.

The respondent admitted that she occasionally quarrelled with the petitioner, but said that this was no more than in other marriages. She explained that she asked to be made a co-owner of the Long Island property because as she and the petitioner submitted joint income tax returns, she believed she was entitled to expect this. She insisted that it was the petitioner and his relatives who asked that she should go back to work after the children had been born.

The evidence of the respondent is that when she suggested that the property be registered in their joint names the petitioner asked her if she knew any man in Ghana whose properties were in the joint names of himself and his wife, to which she retorted that they were not in Ghana and also that she was contributing to the family budget. I take it that in the United States it is not unusual for husbands and wives to own property in common. Even in this country, joint savings are now common, and joint properties are not unknown. And if, as the evidence suggests, the petitioner was able to get tax rebates by submitting income tax returns in the joint names of the respondent and himself, it is only natural that the respondent should feel insecure upon finding that the property acquired on Long Island after the marriage, was in the sole name of the petitioner. I see nothing worldly in the suggestion.

On the matter of her going to work, which has been hotly debated in the proceedings before me, I prefer the evidence of the respondent; for, if the respondent went back to work against the wishes of the petitioner, I would not expect him to go out of his way to make it possible for her to work. He arranged for her to take a course to enable her qualify to work as a nurse in the United States. He went with her to three hospitals in search of appointment. When she was finally engaged, the petitioner would, on his own evidence, leave his place of work in order to take the respondent to work at 4 p.m., and would go back to collect her at midnight. He even engaged a baby-sitter for the period in the evenings when he would be away to fetch the respondent. I accept the evidence of the respondent that the petitioner agreed that she should go to work. Such sacrifices as he was called upon to make as a result were willingly borne.

Another allegation made by the petitioner is that when he came to this country in July 1978, he invited the respondent to stay with him at his sister’s house. This invitation the respondent declined. What the respondent told the petitioner was that as she was the first to arrive in the country, it was the petitioner who should rather go to stay with her at the brother’s house where she was lodging. It is surprising that this small matter could not be resolved, but it is indicative of the uncompromising attitudes the parties had taken up in their dealings with each other. After the respondent was served with the petition for divorce, and she realised that her marriage was in danger of breaking up, she decided to accept the petitioner’s offer to stay with him. The evidence before me is that when the respondent arrived at the house of the petitioner’s sister, the petitioner decamped.

Before the petition was filed. the petitioner had agreed with the respondent that the respondent should leave the children with him whilst she returned to the United States. The petitioner was to take them back at the end of his vacation. Now, the respondent, who was due to leave for New York on 21 July, decided to take the children with her, and left the petitioner a note to that effect. The reaction of the petitioner was to apply to this court for an order restraining the respondent from taking the children away. The application, which was made ex parte, came before Griffiths-Randolph J. on 21 July. He granted the injunction sought. Subsequently, the order was discharged on the application of the respondent. It is common ground that owing to this legal tussle, the respondent left for New York without the children, the petitioner left for New York in August, taking the children with him.

When on arrival, the petitioner made it known that he would not share the same bedroom with the respondent, the respondent attempted to take an overdose of sleeping tablets. This made the petitioner relent. I am satisfied that thereafter he resumed full marital relations with the respondent. In exhibit 1, a letter written by the petitioner to the parents of the respondent, the petitioner said:

“Victoria pleaded with me to withdraw my petition for a divorce. She asked intermediaries to intercede on her behalf. I gave a lot of thought to the matter and finally agreed that we should give the marriage another chance and that we should give ourselves time to work out our differences.”

Mr. Tsegah, counsel for the respondent, has submitted that with the resumption of marital relations, the slate was wiped clean and that the petitioner could not thereafter rely on any of the matters set out in his petition to prove that the marriage has broken down beyond reconciliation. I regret that I do not see it this way. The Matrimonial Causes Act, 1971 (Act 367), encourages attempts being made to reconcile parties to divorce suits. Indeed, section 8 gives the court power to adjourn the proceedings for a reasonable time to enable attempts to be made to effect reconciliation. If, therefore, after a petition has been filed, the parties themselves, for the purpose of effecting reconciliation, agree to live together again as man and wife then, unless they do so for an inordinately long period, it would, in my view, be defeating the provisions on the promotion of reconciliation to hold that the parties are thereby barred from pursuing the remedy of divorce if the attempt at reconciliation fails. In this case, the petitioner and the respondent resumed cohabitation for a limited period of about three months until on 13 November 1978, when the respondent left the matrimonial home on Long Island, taking the children with her.

It is not necessary to recount the events leading to this final break. It is sufficient to state that on 17 November the respondent, as the plaintiff, filed a verified complaint in the Supreme Court of the State of New York against the petitioner, as the defendant, asking for a divorce and ancillary reliefs, including custody of the infant children, alimony and child support. The proceedings were, however, stayed by Judge Lonschein of that court on the application of the defendant, that is, the petitioner herein, until the suit in this country had been determined.

The position now is that the respondent left the matrimonial home on 13 November 1978, and has not returned since. The petitioner does not know where she lives, and she has refused to disclose the whereabouts of the children, except to say that they are in Nassau County in the State of New York. The explanation she gave for her reticence was that she was afraid the petitioner would take the children from her. I believe the respondent when she says that she would like to be reconciled with the petitioner, but I do not see how they can live together again when they mistrust each other so much. On the evidence before me, I am satisfied that the marriage of the petitioner with the respondent has broken down beyond reconciliation. It is accordingly dissolved.

Now, in proceedings for a divorce under Act 367, the court has power under section 22 to make, in respect of any child, any order which it thinks reasonable and for the benefit of the child. Such an order may be made either on the court’s own initiative or on the application of a party to the proceedings. In this regard, the court may award custody of the child to any person, regulate the right of access of any person to the child, and provide for the education and maintenance of the child out of the property or income of either or both of the parties to the marriage. An order for custody may be made although the child is already out of the jurisdiction: see Philips v. Philips (1944) 60 T.L.R. 395, C.A. And under section 25 (2) the court may order any person to return a child to the jurisdiction.

The petitioner was educated in the United States, and he worked there from 1964 until December 1978. He acquired and still owns landed property there. On leaving, he did not resign from his job, but took the precaution of obtaining leave of absence. His evidence is that he was given one year, but when this period expired he asked for a further year, and this was granted. I believe when these proceedings are over he will go back to the United States to resume residence and to work there. His evidence, however, was that he intends to live here and bring up the children in this country. In her evidence the respondent disclosed that she has since March this year taken up United States citizenship. Presumably, she intends to live permanently in the United States, and would like the children to be brought up there.

It must be remembered that Wogbe and Nuku were born in the United States, and have lived there ever since, except for two brief periods in 1975 and 1978, when they came to this country with their parents. It is the evidence of the petitioner that they do not speak Ewe. I see that in paragraph 4 of an affidavit sworn by the petitioner on 26 July 1978, and filed in this court on the same day, the petitioner disclosed that the children have United States passports. He says “Wogbe and Nuku were born in America, so they have American passports.” I have not seen those passports, but it is safe to assume that therein they are described as United States citizens. It seems to me that there is no good reason for disturbing the education and upbringing of these children by bringing them to Ghana where neither parent intends to live permanently. I would therefore grant custody of the children, Wogbe and Nuku, to the respondent. I would further grant her permission to keep the said children out of the jurisdiction. The petitioner may apply for an order regulating access to the children. The respondent may apply for maintenance for the children.

Appearances

KWAME TETTEH FOR THE PETITIONER; S. A. X. TSEGAH FOR THE RESPONDENT.