KOFI KUTU GYAN VRS HARRIET BOAKYE-AGYEMANG
by HIS LORDSHIP JUSTICE BERNARD BENTIL
Jurisdiction
HIGH COURT
Judge
HIS LORDSHIP JUSTICE BERNARD BENTIL
Catalog Type
Case
Judgement Date
Jul 10, 2023
Summary
Matrimonial Causes – Dissolution of Marriage – Grounds for Divorce – Desertion – Burden of Proof – Unchallenged Evidence. This case concerns a divorce petition instituted by the Petitioner, who resides outside Ghana and acted through his appointed attorney, Emmanuel Essuman. The marriage in question was contracted under the Marriage Ordinance on 21st November 2016 at the Kumasi Metropolitan Assembly. At the time of the marriage, the Petitioner was a medical researcher, while the Respondent was a civil servant. Notably, the marriage produced no children. The Petitioner’s case was that the marriage had broken down beyond reconciliation. He explained that immediately after the marriage, he relocated to the United States, making cohabitation initially impossible, although the Respondent later joined him after about a year. However, during their brief period of living together, the Respondent allegedly behaved in a manner that made it unreasonable for him to continue the marital relationship. More significantly, the Petitioner claimed that the Respondent had deserted the matrimonial home for a continuous period of seven years and had failed to perform her marital obligations. Attempts to resolve the issues through family intervention proved unsuccessful, leading the Petitioner to conclude that the marriage was effectively non-existent. He therefore sought only the dissolution of the marriage. Procedurally, the Respondent did not participate in the proceedings. The court, however, satisfied itself that the Respondent had been duly served in accordance with Order 65 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). Relying on established authority, the court held that it was competent to proceed with the hearing despite the Respondent’s absence, as proper service had been effected. The court emphasized that the absence of a defence does not entitle a petitioner to automatic judgment. The Petitioner still bore the burden of proving his case on the balance of probabilities, in line with principles articulated in cases. The court reiterated that allegations must be supported by credible evidence, and the standard of proof remains unchanged even where the opposing party fails to appear. Substantively, the court applied the Matrimonial Causes Act, 1971 (Act 367), which provides that the sole ground for divorce is that the marriage has broken down beyond reconciliation. The Petitioner relied primarily on desertion as a factual basis under section 2(1)(c) of the Act, which requires proof that the Respondent deserted the Petitioner for a continuous period of at least two years immediately preceding the petition. On the evidence, the court found that the Respondent had indeed been absent from the matrimonial home for approximately seven years. This clearly exceeded the statutory minimum requirement of two years, and the court was entitled to infer desertion from this prolonged absence. Additionally, the Respondent’s failure to participate in the proceedings or demonstrate any interest in the marriage further supported the conclusion that she had effectively abandoned the relationship. The court also considered the broader requirement under section 2(3) of Act 367, which mandates that even where a specific fact is proved, the court must be satisfied on the totality of the evidence that the marriage has broken down beyond reconciliation. In this regard, the court concluded that the Respondent’s conduct demonstrated a clear lack of interest in the marriage, and that the union had, in reality, ceased to exist. In a notable observation, the court remarked that where a marriage has truly broken down, it would be unjust to compel the parties to remain bound in a union devoid of substance, likening such insistence to transforming marriage into a form of “slavery,” with adverse psychological consequences. Accordingly, the court held that the Petitioner had successfully discharged the burden of proof and established that the marriage had broken down beyond reconciliation. A decree of divorce was therefore granted, dissolving the marriage. No orders were made with respect to alimony or costs.
Full Content
JUDGMENT
The Petitioner who lives outside the Country appointed one Emmanuel Essuman of H/No. AN 232/1 Anomabo, within the Central Region of the Republic of Ghana as his Attorney.
Per the Witness Statement filed by His Attorney, the Parties got married under the ordinance on 21st November, 2016, in Kumasi Metropolitan Assembly of the Republic of Ghana. A copy of the marriage Certificate was attached and marked as Exhibit B. At the time of the marriage, the Petitioner was a Medical Researcher whilst the Respondent was a Civil Servant. There are no children between the Petitioner and the Respondent.
According to the Petitioner, immediately after his marriage with the Respondent he had to travel to the United States making it impossible to live together with the Respondent as husband and wife. The Respondent joined the Petitioner a year after.
From the testimony of the Petitioner, the Respondent during their brief cohabitation behaved in such a way that he cannot reasonably be expected to live with Respondent. The Respondent has also been accused of deserting her matrimonial home for a continuous period of Seven (7) years and has since failed to perform any duty as a wife. The Petitioner stated that he has on a number of occasions reported the conduct of the Respondent to her family members but nothing positive came out of it. The Petitioner is of the view that the marriage is practically non-existent.
The only relief the Petitioner is seeking is that the marriage be dissolved.
The rule is that, unless the relevant rules in Order 65 of the High Court (Civil Procedure) Rules, 2004 (C.I.47) (herein referred to as C.I. 47) are complied with, a court is not competent to proceed with the trial or hearing of a cause brought before it.
(See Taylor v Taylor (Supreme Court, 12 November 1962)).
Order 65 rule 9 of C.I. 47 provides that unless the court otherwise directs, a matrimonial action shall not proceed to trial unless every person required by Rule 8 to be served with a copy of the petition
a. has filed appearance or
b. is shown by Affidavit to have been served with the Petition personally or in accordance with an Order for Substituted Service.
The provision above is without any ambiguity and on the authority of Order 65 Rule 9(b) supra, a court may proceed to hear the case where the Respondent does not participate or defend the action. This court is duly satisfied that the Petition has been served on the Respondent. The Petitioner was therefore requested to open his case despite the fact that the Respondent has failed to participate in the trial.
The main issue for determination is whether or not the Petitioner is entitled to his relief. The Petitioner is not automatically entitled to his claim merely because he faces no opposition from the Respondent. The Petitioner must satisfy the court on the preponderance of probabilities of the existence of the facts he alleges in his Petition. In other words, the Petitioner must show that his claim is more probable. It is trite that a party cannot win a case based on allegation which he fails to prove or establish. Therefore, a party who makes allegations has the burden to lead evidence to prove those allegations unless they are admitted by the other party. If he fails to do that, a Ruling on those allegations will be made against him.
See Okudzeto Ablakwa (No. 2) v Attorney General and Another [2012] 2 SCGLR 845 at 867.
It is worthy of note that the absence of a party at trial does not in any way lower the standard of proof on the Petitioner.
According to section 1(2) of the Matrimonial Causes Act, 1971 (Act 367) (the Matrimonial Causes Act), the sole ground for granting a Petition for Divorce must be that the marriage has broken down beyond reconciliation. Section 2(1) of the Matrimonial Causes Act specifies facts, one or more of which a Petitioner must prove for the purposes of showing that the marriage has broken down beyond reconciliation.
See Alex Borkettey Aplerh-Doku v Georgette Adubea Aplerh-Doku (DM/0481/2016) dated 22 March 2017 HC.
In addition to the establishment of either of the facts in section 2(1) of the Matrimonial Causes Act, the Court must be satisfied, on all the evidence that the marriage has broken down beyond reconciliation. Section 2(3) of the Matrimonial Causes Act provides that notwithstanding that the court finds the existence of one or more of the facts specified in subsection (1), the court shall not grant a Petition for Divorce unless it is satisfied, on all the evidence that the marriage has broken down beyond reconciliation.
The onus clearly lies on the Petitioner to adduce sufficient evidence in support of his claim in order to avoid a finding against him. The justification for this is that a person who makes an averment or assertion which is denied by his opponent has a burden to establish that his averment or assertion is true and he does not discharge this burden unless he leads admissible and credible evidence from which the fact(s) he asserts can properly and safely be inferred.
See Zabrama v Segbedzi [1991] 2 GLR 221.
With regards to the claim of having not lived with the Respondent for almost Seven (7) years, section 2(1)(c) of the Matrimonial Causes Act provides that Petitioner must satisfy the Court that the Respondent has deserted the Petitioner for a continuous period of at least Two (2) years immediately preceding the presentation of the Petition. The evidence adduced by the Petitioner to this effect is that, as stated in paragraph 9 of his Witness Statement, that the Respondent has deserted her matrimonial home for continuous period of Seven (7) years cannot be overlooked and this court is able to safely make an inference from this evidence that the minimum Two (2) years of desertion has been satisfied. Therefore, this ground succeeds.
Where the Court is satisfied from the conduct of the Parties that the marriage has in truth and in fact broken down beyond reconciliation, it cannot pretend and insist that they continue as man and wife. To do so would be turning a contract of marriage into one of slavery regardless of the psychological effect on the Parties or one of them.
On the totality of the evidence, I am satisfied that, the conduct of the Respondent clearly shows her disinterest in the marriage and also that the marriage has broken down beyond reconciliation in terms of section 2(1) of the Matrimonial Causes Act. As a result the marriage between the couple is hereby dissolved. No order is made as to the payment of alimony and cost.
(SGD)
BERNARD BENTIL J.
[HIGH COURT JUDGE]
COUNSEL
EUNICE FRIMPONG ESQ. FOR THE PETITIONER.