MEGHAN JULIA AYITEY V RAPHAEL M.K. AYITEY

JUDGMENT

INTRODUCTION

The marriage institution has been described as a besieged city, where those in, want out and those out want in. Such is the situation that the parties in this instant suit find themselves. The marriage will thus be dissolved today bringing finality and relief to the parties in the divorce petition that has spanned 8 years from 2015-2023. This suit indeed has a checkered history having commenced in the year 2016.

The Petitioner initially filed a Petition for divorce on the 16th of March 2016 against the Respondent for the dissolution of their marriage, claiming that, the marriage between the parties had broken down beyond reconciliation and so wanted the ordinance marriage dissolved. However, after a lot of intervening matters, the Petitioner on the 17th of May 2023 filed an amended petition. From the records the Respondent did not file an amended Answer and relied on his answer filed on 30th June 2016.

BRIEF FACTS

The Parties initially married under the Akan customary law on the 11th of February, 2012 and thereafter converted the customary law marriage into an ordinance one at the Christian Action Faith Church, Spintex Road, Accra on the 18th of February 2012. After the marriage, the parties cohabited at House number 4 Shepherd Street, West Coast, Lapaz- Accra. Both parties are citizens of Ghana. The Petitioner is a professional preschool Consultant with extensive experience in the areas of preschool education and the Respondent is a general Manager of Coconut Grove Hotel.

The marriage produced two children namely, Benaiah -Aaron Koku Ayitey who was aged three years and three months old and Emmanuel Ayitey, also aged one year, eleven months respectively at the time the petition for the dissolution of the marriage was filed. The Petitioner averred that, there was previously a custody application before the District Court, Amasaman with reference to the marriage, but same was discontinued so as to enable this Court effectively and completely determine all matters in controversy relating to the instant marriage.

In the petition for divorce, the Petitioner averred that, the marriage between the parties had broken down beyond reconciliation as the Respondent has behaved in an unreasonable manner towards her in the marriage such that, the Petitioner cannot reasonably be expected to live with him, and the Respondent has caused the Petitioner much anxiety, distress and embarrassment. The Petitioner sought the following reliefs;

a)  An order that the marriage between the Petitioner and the Respondent celebrated on 18th February 2012 be dissolved.

b)  An order for the custody of the children of the parties’ marriage namely, Benaiah-Aaron Koku Ayitey who was aged three years three months and Emmanuel Ayitey, aged one year elven months respectively to the Petitioner with the Respondent having reasonable access.

c)   An order for the maintenance of the issues of the marriage.

d)  Any other orders as this Court deems fit.

The crux of the Petitioner’s case can be found in Petitioner’s pleadings in paragraphs 8, 18, 19,20,24,25 26 {a-h), 27, of the Petition which for brevity, I shall touch on the salient points only. The Petitioner alleged that, the marriage had broken down as the Respondent has behaved unreasonably towards her and has commanded her to leave the matrimonial home and leave the children behind as he wanted separation and would deal drastically with the Petitioner if she refused to leave the matrimonial home.

The Petitioner again averred that, the Respondent threatened her for which she was impressed upon by family members to vacate the matrimonial home and look for an alternative accommodation elsewhere. She again averred that, the Respondent physically assaulted her sometime in 2016 and so out of an abundance of caution for her life, she left the matrimonial home to a safe haven and was threatened by the Respondent and some officers of the law to return the issues of the marriage to the Respondent.

The Petitioner particularized the unreasonable behavior of the Respondent, such as, the Respondent commanding her to leave the matrimonial home, verbal abuse, non-communication and the use of vituperative words on her as well as the Respondent refusing to support the work of the Petitioner and making a conscious effort to disrupt any business that the Petitioner would commence.

It is the contention of the Petitioner that, the Respondent has become intolerably difficult and had prevented the Petitioner from using anything that belonged to the Respondent.

The Petitioner claimed that, all efforts by the Petitioner’s family to reconcile the parties have proved futile as the Respondent has clearly indicated that, he has lost interest in the marriage and the parties cannot cohabit amicably.

The Respondent on his part did not only file an Answer, but cross petitioned as well on 30th June 2016. The Respondent in his Answer denied some material particulars contained in the Petition, and said that, if anyone had behaved unreasonably, it is the Petitioner and by reason of that unreasonable behavior, it is the Respondent who rather has found it very difficult to live with the Petitioner.

The Respondent contended that, throughout their four years of marriage, the Petitioner had not been concerned about anything that belongs to the Respondent so he found it quite weird that, the Petitioner should be complaining now. The Respondent also particularized the unreasonable behavior of the Petitioner such as the Petitioner being very temperamental, aggressive and often used abusive words on him regardless of who was present, and often physically assaulted him and during the course of the marriage, the Petitioner exhibited very nasty, abusive, behaviour towards the Respondent. And was unhygienic who couldn’t keep the matrimonial home in a neat and organized manner and the Petitioner is emotionally medically and psychologically unstable, since she had been medically diagnosed as suffering from hysteria panic disorder which causes her to have uncontrolled and extreme anger bouts but has refused to seek medical help. The Respondent cross petitioned for the following reliefs.

1.     An order that the Ordinance marriage celebrated between the Petitioner and the Respondent at the premises of the Christian Action Faith Ministries, Spintex branch Accra on the 18th of February 2012 be dissolved since same has broken down beyond reconciliation.

2.     An order that custody of the infant children namely Benaiah -Aaron Koku Ayitey who was aged three years three months and Emmanuel Ayitey be granted to the Respondent with supervised visitation rights to the Petitioner till such time when Petitioner can be described mentally fit by a qualified health institution.

It is important to put on record that, even though the Petitioner filed an amended Petition, the Respondent did not file an amended Answer.

A careful perusal of the records depict that, the Petitioner did not file a Reply to the Answer and cross petition, to admit or deny the assertions made by the Respondent in his pleadings and cross petition. The case was subsequently set down for trial and the parties were ordered to file their respective witness statements which they did.

Again a careful perusal of the record on the docket do not show that any issues were set down for trial at the case management conference, so the Court set down the following issues to help in determining the matter.

Issues

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

2.     Custody and maintenance of the children.

3.     Payment of School fees of the children.

4.     Paternity of the children.

 

Whether or not the marriage has broken down beyond reconciliation warranting its dissolution.

The Petitioner is in Court for the dissolution of the marriage between the parties and she has averred that, the marriage has broken down beyond reconciliation as a result of the unreasonable behaviour of the Respondent, as such the Petitioner cannot reasonably be expected to live with the Respondent as the Respondent’s behaviour has caused the Petitioner much anxiety, distress and embarrassment.

It is important to mention that, since this marriage was celebrated under the Ordinance, the law regulating its dissolution is the Matrimonial Causes Act (1971), Act 367.

By Section 1 (2) of the Matrimonial Causes Act, supra, the sole ground upon which an order for dissolution of a marriage can be made is that, the marriage has broken down beyond reconciliation.

Section 2 (1) of the said Act however, requires that,

 

(1) For the purpose of showing that the marriage has broken down beyond reconciliation the Petitioner shall satisfy the Court of one or more of the following facts:

By proving one or more of the facts set out in the said section, as follows:

 

(a) That the Respondent has committed adultery and that by reason of the adultery, the Petitioner finds it intolerable to live with the Respondent;

(b) That the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent;

(c)  That the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition;

(d) that the parties to the marriage have not lived as husband 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 the 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 despite the refusal;

(e) That the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the Petition; or

(f)  That the parties to the marriage have, after diligent effort, been unable to reconcile their differences.”

The general position of the law is that, a Court ought to inquire so far as is reasonable, into the facts alleged by the Parties, to satisfy itself on the evidence adduced that, the marriage between the parties has broken down beyond reconciliation. This requirement is provided for by Sections 2(2) and 2 (3) of Act 367, as follows;

“(2) On a Petition for divorce the Court shall inquire, so far as is reasonable, into the facts alleged by the Petitioner and the Respondent.

(3) Although 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 Respondent who is in the same position as the Petitioner, in relation to his Cross-Petition, similarly has to prove the facts stated in Section 2 (1) (a-f), of Act 367 supra.

It is in line with the requirement of the law that trial was conducted by the Court to ascertain whether or not the marriage has indeed broken down as alleged by the Petitioner and so should be dissolved as claimed also by the Respondent in his cross petition.

Burden Of Proof

It is trite knowledge that, he who asserts must prove. In the case of Okudzeto Ablakwa (N0.2) V Attorney General & Obetseibi –Lamptey (N0.2) 2 SCGLR 845, the Supreme Court in dealing with the burden of proof in civil trials, held at page 867 as follows; “He who asserts, assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323) Section 17 (a) .What this rule literally means is that, if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted…… stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”.

In the case of Ababio V Akwasi [1994-1995] 2 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).

Section 10 (1) of the Evidence Act supra 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 the tribunal of fact or Court”.

Section 11(1) of the Evidence Act NRCD 323 provides that 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.

In Bisi V Tabiri [1987-88] 1 GLR 360, it was held that “The standard of proof required of a Plaintiff in a civil action, was to lead such evidence as should tilt in his favour the balance of probabilities on a particular issue”.

It is also trite learning that, evidence is what the Court uses in resolving Issues of facts arising from a case and a pleading of averment in proof of which no evidence is offered, virtually serves no useful purpose in a case.

The Petitioner alleged that the Respondent had behaved unreasonably towards her which she particularized in her pleadings and as a result of which she finds it intolerable to live with the Respondent any longer. As specified by law, The Petitioner assumes the burden of proof. The Petitioner therefore has to lead credible evidence to establish her claim of unreasonableness on the part of the Respondent. The Petitioner is to lead evidence on her assertion so that on the preponderance of probabilities, any reasonable person will believe that, what she says is more probable than not.

Both Counsel for the parties were ordered to file their respective written addresses which they did.

TRIAL

 

At the trial, the Petitioner gave evidence via her witness statement together with her exhibits A-G1-G1B series. The Petitioner testified that, after the marriage, the parties lived peacefully together until 28th February 2016, when she was forced out of the matrimonial home because the Respondent assaulted their then three year old son causing her to flee from the matrimonial home till date. She again testified that, she suffered a lot of verbal abuse at the hands of the Respondent even though she continually coped with the Respondent’s constant verbal abuse, it reached its zenith in August 2012, and so in August 2015, the parties met with Counselors at their church where the Respondent told the Counselors that, he was no longer interested in the marriage and would no longer be able to attend the sessions due to his heavy work schedule. The Respondent further convened a meeting with the parties’ families and informed them that, he was no longer interested in the marriage.

The Petitioner again testified that, in September 2015, the Respondent without any provocation woke her up and demanded that she leaves the matrimonial home without the children and threatened her that, he would deal drastically with her, if she refused his demands.

The Petitioner’s further evidence was that, due to the threats from the Respondent, she was advised by her family members to look for alternative accommodation. Her further evidence is that, the Respondent refused to communicate with her and the verbal abuse escalated to such a point that, their house help even had the effrontery to disrespect her.

The Petitioner further testified that, she was assaulted by the Respondent and she reported the incident of assault to the Domestic Violence and Victim Support Unit (DOVVSU) at the Tesano Police station, where her statement was taken and she was given a medical form which she exhibited as her exhibit MJA 4. (a copy of the medical report and prescription for their elder son).She then out of abundance of caution left the matrimonial home to a safe haven as the Respondent had now become intolerably difficult to live with and had resorted to preventing the Petitioner from having anything to do with things that belonged to the Respondent.

She finally testified that all efforts at reconciliation had proved futile as the Respondent had clearly indicated that, he was no longer interested in the marriage and that the parties cannot cohabit amicably.

Per Section 2 (1) (b) of Act 367 supra, one of the facts that the Petitioner must prove to show that the marriage has broken down is when the Respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent and is a ground for divorce.

It is important to mention at this juncture what the Court has said regarding what will amount to unreasonable behavior.

In the case of Knudsen v Knudsen [1976]1 GLR @204 it was held that

“The behavior of a party which will lead to this conclusion would range over a wide variety of acts. It may consist of one act if it is of sufficient gravity, or of a persistent course of conduct or of a series of acts of differing kinds, none of which by itself may justify a conclusion that the person seeking the divorce cannot reasonably be expected to live with the spouse, but the cumulative effect of all taken together would do so”.

Also, unreasonable behavior has been defined in English law as “conduct that gives rise to in jury, to life, limb, or health or conduct that gives rise to reasonable apprehension of such danger. What amounts to unreasonable behaviour, has been held to depend on the circumstances of each case. It must not be conduct which can be termed as trivial, or such conduct as is occasioned by the wear and tear of marriage. The conduct must be grave and weighty, such as to merit a finding that the Petitioner cannot be reasonably expected to live with the Respondent. See MENSAH V. MENSAH [1972] 2 GLR, 198 at 204.

The Petitioner in her evidence testified that, the Respondent assaulted her for which she reported the incident to the Tesano Dovvsu. In her witness statement, the Petitioner had stated that, she attached exhibit MJA 4 which is a medical report from the Police, but a careful perusal of the exhibit did not show that, she had attached any exhibits to demonstrate to the Court that she was actually assaulted by the Respondent. The Petitioner rather attached receipts of school fees paid on behalf of the children and other utility receipts.

During cross - examination by Counsel for the Respondent on the evidence led by the Petitioner on the issue of the assault on her by the Respondent this is what transpired.

Q: You alleged in your pleadings and partly in your witness statement that the Respondent during the marriage assaulted and battered you. Is that the case?

A:  Yes.

Q:  But you never reported any of these batteries or assaults to the Police?

A: Yes I did. He assaulted me just once and that was on the 28th of February 2016 and after the assault, it was the intervention by the Tesano Police that brought in a team to rescue me and the boys from the house in which we had been locked up.

Q: You never attached a Police report to your witness statement?

A: No.

Q: I am finally putting it to you that, the Respondent has never assaulted you before?

A:  No, That is not true he did. He has assaulted me before.

Per the law as aforesaid, the Petitioner who is alleging that the Respondent had behaved in an unreasonable manner towards her by assaulting her for which she had to leave the matrimonial home, had the onus of proving that, the Respondent actually assaulted her. However, even though, the Petitioner stated that, she reported the assault and battery on her to the Police at Tesano, she failed to prove that indeed, the Respondent assaulted and battered her as she did not provide the Court with any evidence of the assault and battery to merit a ruling in her favour.

In the case of MAJOLAGBE VRS LARBI 1959 GLR @ 190. Ollenu JSC as he then was stated that;

“Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way. Example by producing documents, description of thing, reference to the facts, instances or circumstances and if his averment is denied he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness, he proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true”.

Also, the Supreme Court in the case of T.K SERBEH AND CO LTD V MENSAH [2005-2006] SC GLR 341 also crystallized proof in law as follows;

“For however credible a witness may be his bare affirmation on oath or the repetition of his averment in the witness box cannot constitute proof”.

From the evidence, the Petitioner, apart from repeating her averment in the witness box, did not provide the Court with any evidence such as the statement she made to the Police DOVVSU at Tesano depicting that, she had been assaulted and battered, she did not provide any photographs showing that she had been battered and assaulted, neither did she provide any corroborative evidence by calling witnesses to testify on her behalf.

The Petitioner merely stated that, she had been assaulted without any cogent evidence to back her claim. In the absence of any evidence to back her claim that she was assaulted and battered by the Respondent which made her flee the matrimonial home, I am unable to find that, she was assaulted by the Respondent on the said 28th February 2016 and also reported the assault and battery to the Police at Tesano as claimed by her, so I cannot make a finding that she was assaulted by the Respondent for which reason the Respondent had behaved unreasonably towards her within the contemplation of the law, for which reason she had to flee the matrimonial home.

In alleging that, the marriage had broken down as a result of the unreasonable behaviour of the Petitioner, the onus was also on the Respondent to prove this assertion. He testified that, the Petitioner physically attacked him during a misunderstanding and the Petitioner bit him. He being a cross Petitioner, also assumed the onus of proving that the Petitioner assaulted him as claimed by him in his pleadings and witness statement by adducing evidence to prove what he alleged.

To prove his claim of unreasonable behavior by the Petitioner such as her assault on him, the Respondent furnished the Court with exhibits 5X and 6 series depicting the Respondent in a torn tee shirt, a Police statement, attached with a photograph of assault bite marks on Respondent’s body and a bandaged arm and a police general medical form which included a medical officer’s report stating that the Respondent had a human bite on his left arm and bruises on the right elbow and on his neck. The conclusion drawn by the Doctor was that, there was moderate injury to the Respondent’s person.

Per the evidence adduced, there is overwhelming evidence by the Respondent giving credence of an attack on his person by the Petitioner thus discharging the onus on him to prove his claim of unreasonable behavior of the Petitioner in his cross petition. The preponderance of probabilities is strong to prove that, the Respondent was assaulted by the Petitioner. The Respondent has been able to discharge the burden of proof in respect of the claim of physical assault on him and the abusive and aggressive behavior of the Petitioner towards him in the course of the marriage.

I therefore find as a fact that the Respondent at a point in the course of the Parties’ marriage was physically attacked by the Petitioner thus establishing one of the unreasonable behaviors of the Petitioner complained of by the Respondent making it intolerable to live with the Petitioner, and I so hold.

From the evidence adduced, it is evident that both parties had problems in the marriage which they could not resolve. Again, the parties even though were married for 11 years, only stayed as man and wife for a period of four years.

The Petitioner also testified that the parties had ceased living as man and wife for seven years, three months and all attempts at reconciliation had failed as the Respondent had made it abundantly clear that he was not interested in the marriage any longer.

I find that the behaviors complained of by the parties per the evidence adduced were weighty and could give rise to injury to their lives, or give rise to reasonable apprehension of danger. The behaviors complained about cannot be attributed to ordinary wear and tear of marriage. These behaviors complained of are weightier and can be attributed to unreasonable behavior on the part of the petitioner.

The Petitioner per her pleadings stated that all attempts by family members of both parties to settle the differences between the parties have not been successful.

Further, Section 2 (1) (e) of Act 367 provides one of the facts that must be proved to show the breakdown of the marriage, that is, where the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition.

Section 2 1 (f) also provides, “that the parties to the marriage, after much diligent efforts, have been unable to reconcile their differences”.

Conclusion

All matters considered per the evidence adduced, I am satisfied that, the marriage has broken down beyond reconciliation warranting its dissolution.

Accordingly, I decree that the ordinance marriage celebrated between the parties on 18th February 2012 with certificate number CAFM 98/2012 and license number AMA.0584/2012 BE and is hereby dissolved and the marriage Certificate is cancelled.

The parties are to furnish the Registrar of marriages in the area where the marriage was contracted with the divorce certificate to amend the records accordingly.

Now, having dissolved the marriage between parties, I shall now turn my attention to the other issues. That is the custody, maintenance and payment of school fees of the children as well as the issue of paternity of the children.

Before I delve into the issue of custody, it is pertinent to first deal with the issue of paternity that has bogged the parties for some time for which at the end of the trial, an order was made for parties to subject themselves to a DNA test to be conducted on the parties together with their children. The test result that was submitted to the Court shows that, the Respondent is the father of the two issues of the marriage.

This puts to rest the issue of the paternity of the children. Per the DNA results, the Respondent is indeed the father of the two children, Benaiah- Aaron and Emmanuel. Having sorted out the issue of the paternity of the children, it is therefore appropriate to deal with the custody and maintenance of the two children.

In her relief (B), the Petitioner is asking for an order for the custody of the two children of the marriage with reasonable access to the Respondent. The Respondent is also asking for custody of the children with reasonable access to the Petitioner.

Section 22 of Act 367 supra provides that, “in proceedings under this Act, the Court shall inquire whether there are any children of the household and the Court either on its own or initiative or on application by a party make an order concerning a child of the household which it thinks reasonable and for the benefit of the child. And the order may include the award of custody of the child to any person”.

Generally, the rule is that, children of tender ages ought to be looked after by their mothers, unless there are circumstances pointing to the contrary. The children involved in this matter wherein the Petitioner seeks custody would be aged about 10 and 6 years old respectively now. These children are in their nascent stages of life and whatever decisions are taken in respect of them should have their best interests and welfare in mind.

The children, from the evidence have been staying with their mother since she moved out of the matrimonial home with them in 2014 at a time when no Court had made any order granting her custody, thereby denying the Respondent the chance and opportunity to bond with the children as a father and his sons ought to bond and to bring them up in a way that a responsible father would want to.

Having said this, let me quickly add that, I am not closing my eyes to the fact that, for the past 7 years or so, the children have been living with their mother alone.

In awarding custody the Court should do so in the best interest and welfare of the children being young boys. Per the record before this Court, the children are with their mother. In the case of Opoku –Owusu V Opoku Owusu [1973] 2 GLR @349 It was held that…., “In my respectful view and in the best interest of the children who per the records before this Court are in the custody of the mother, I hereby pronounce that custody be granted the Petitioner, with reasonable access to the Respondent, for continuity and stability in their care and education per the Children’s Act 1998 Act 560, they should continue to live with the Petitioner during the school term and the Respondent should have access to them during the weekend and for half of their vacation when the parties would have to split sharing the holidays with each other”. See also the case of Attu V Attu [1984-86] GLRD @144.

Accordingly, in the best interest and welfare of the children who have lived with their mother for some time now, to ensure continuity and stability in their care and education, it would be in their best interest to grant custody to their mother the Petitioner with the Respondent granted reasonable access every other weekend and half of their school vacations and part of some public holidays when the children get to spend some time with the Respondent.

During vacations, the children will spend half of the vacation period with the Petitioner and spend the other half with the Respondent.

The Petitioner also asked for the maintenance of the children. The Petitioner did not specifically ask for any fixed amount as maintenance but this will be done having in mind the present economic conditions prevailing in the Country.

Section 16 (1) of the Matrimonial Causes Act 1971, Act 367 provides that “either party to a marriage may petition the Court for an order for maintenance on the ground that, the other party to the marriage has wilfully neglected to provide, or to make a proper contribution towards reasonable maintenance for the Petitioner or a child of the household.”

Section 22 (1-3) of Act 367 supra, also provides that,

(1)              In proceedings under this Act the Court shall inquire whether there are any children of the household

(2)              The Court may either on its own initiative or on an application by a party to proceedings under this act, make an order concerning a child of the household which it thinks reasonable and for the benefit of the child.

(3)              Without prejudice to the generality of subsection (2) an order under that subsection may;

a)     award custody of the child to any person;

b)    Regulate the right of access of any person to the child

c)     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.

It is therefore appropriate for the Petitioner to pray for such a relief in the Petition and the Court will make its determination as it thinks just and equitable. It bears mentioning that, the responsibility of maintaining children of the marriage is a joint responsibility of both parties and not the preserve of the Respondent alone. See the case of Donkor V Ankra [2003-2005] 2 GLR 125 where it was held that, “under Section 47 (1) and (2) of the Children’s Act supra, where both parents of a child were earning an income, it had to be the joint responsibility to maintain the child, the tendency for women to look up to only men for the upkeep of children was gone…”

I have carefully considered Section 22 of Act 367 supra, which permits the Court to make orders concerning children of the household as the Court thinks reasonable in the best interest of the children, either suo motu or on an application made by a party.

Again, due consideration has been given to Sections 6 and 47 of the Children’s Act, 1998 (Act 560) which provides amongst others that, no parent, shall deprive a child of his welfare, and it is the duty of parents to provide care, maintenance and necessaries of life for a child.

After considering the circumstances of the parties, it is not lost on this Court that, the Petitioner is a preschool Consultant, and the Respondent is the General Manager of the Coconut Grove Regency Hotel. The Petitioner should be in a position to also contribute to providing care and maintenance for the children of the marriage just like the Respondent who is their father. The parties did not provide the Court with their affidavit of means to enable the Court know how much they earn and expend in a month on themselves.

That notwithstanding, the Court in reliance on the provisions of the law above mentioned, the respectful view of the Court is that, both parties ought to be responsible for the maintenance of the children and to provide the necessaries of life for them as stipulated under Section (22) 3 (c) of C.I 47 supra, that an order can be made for the education or maintenance of children by either, or both parties to the marriage.

The Respondent is ordered to pay Two Thousand Ghana Cedis GH¢2,000.00 a month as maintenance for the upkeep of the two children of the marriage, which should be reviewed upward depending on the economic situation prevailing in the Country at the time. The amount of GH¢2, 000.00 is to be paid at the end of each month with effect from the end of November 2023.

Since the Petitioner is the primary care giver the Petitioner is also to take up some responsibilities for the children in terms of their maintenance. Both Parties are ordered to be financially directly involved in the provision of care, educational needs and the necessaries of life of the two children of the marriage. Donkor V Ankrah supra.

Again, both parties are ordered to contribute towards the education, and medical expenses of the issues of the marriage as and when they fall due. The Respondent, being the father of the children, has a responsibility towards the education of the two children much as the Petitioner, who is their mother and the primary care giver. The parties shall both be responsible for the education of the children.

I hereby again order that, the Respondent shall bear a greater part of the school fees of the children by bearing 80% of the combined school fees of the two children and the Petitioner will also bear 20% of their school fees.

The Petitioner asked that the Court should make any order or orders as it thinks fit. The Petitioner did not object to the carrying out of the DNA test on the children save to say that, if the test turns out that, the Respondent is the father of the two children of the marriage, he should compensate the Petitioner with an amount of GH¢10,000.00. This was stated by her in her affidavit in response to the motion on notice for the conduct of the DNA tests on the two children of the marriage way back in 2018.

I am of the opinion that, now that the DNA results has established in 2023 five years on, the fact that, the Respondent is the father of the 2 children, it stands to reason that the Respondent is ordered to pay some compensation to the Petitioner.

I have taken into consideration the fact that the Petitioner did not ask for any financial settlement except that, she made a prayer to the court that she should be compensated with an amount of GH¢10,000.00 should the DNA test prove the Respondent to be the father of the children and the fact that she has asked as part of her reliefs that, the Court makes any order or orders as the Court deems fit, I order that the Respondent pays an amount of Thirty Thousand Ghana Cedis (GH¢30,000.00) to the Petitioner on or by the end of December 2023 to compensate her for any anxiety, stress and trauma she may have gone through whiles waiting for the results to establish that the Respondent is the father of the two children.

Final orders.

1.     The marriage between the parties celebrated on the 18th of February 2012 is hereby dissolved.

2.     The respondent is indeed the father of the two children of the marriage Benaiah-Aaron Ayitey and Emmanuel Kofi Ayitey.

3.     Custody of the two children of the marriage is granted to the Petitioner with reasonable access to the Respondent as specified in the Judgment.

4.     The Respondent is to pay an amount of Two Thousand Ghana Cedis Monthly as maintenance for the two children of the marriage.

5.     The parties are both to be responsible for the maintenance of the children and their educational and medical expenses as well as the provision of other necessaries of life.

6.     The Respondent shall compensate the Petitioner with an amount of GH¢30,000.00 for the stress and anxiety she may have gone through whiles waiting for the DNA test results.

Each party shall bear the cost of the litigation.

 

 

(SGD)

……………………………………………. MAVIS AKUA ANDOH (MRS)

JUSTICE OF THE HIGH COURT

DIVORCE & MATRIMONIAL COURT “2” ACCRA.

 

COUNSEL:

NANA KWAME ATTAFUAH WADIE WITH TAKYI STEPHEN ADU - AMANKWAH HOLD THE BRIEF OF AMA OPOKU AMPONSAH FOR THE PETITIONER.

COUNSEL FOR THE RESPONDENT ABSENT.

 

AUTHORITIES:

1.      OKUDZETO ABLAKWA (N0.2) V ATTORNEY GENERAL & OBETSEIBI – LAMPTEY (N0.2) 2 SCGLR 845

2.      ABABIO V AKWASI [1994-1995] 2 GBR 774

3.      BISI V TABIRI [1987-88] 1 GLR 360

4.      KNUDSEN V KNUDSEN [1976]1 GLR @204

5.      MENSAH V. MENSAH [1972] 2 GLR, 198 at 204

6.      T.K SERBEH AND CO LTD V MENSAH [2005-2006] SC GLR 341

7.      OPOKU –OWUSU V OPOKU OWUSU [1973] 2 GLR @349

8.      ATTU V ATTU [1984-86] GLRD @144.

9.      SECTION 16 (1) OF THE MATRIMONIAL CAUSES ACT 1971, ACT 367

10.   SECTION 22 (1-3) OF THE MATRIMONIAL CAUSES ACT 1971 ACT 367

11.   DONKOR V ANKRA [2003-2005] 2 GLR 125