IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
JUDITH ATAWA GATROR - (Petitioner/Appellant)
WISDOM KPORTSU - (Respondent/Respondent)
DATE: 17TH MAY, 2017
SUIT NO: H1/04/2017
JUDGES: ADJEI J.A, SOWAH J.A , MENSAH J.A
GODWIN T. K. T. KPOBLE FOR PETITIONER
NO REPRESENTATIVE FOR RESPONDENT
L. L. MENSAH, J.A.
The Facts of the case:
The parties in this case who are husband and wife were married under customary law. The marriage was later solemnized under the Marriage Ordinance on the 17th of June 2012 at the Christian Assembly Church, Ho. While the Petitioner/Appellant wife is a community nurse with a diploma in midwifery, at Worawora, the Respondent/Respondent husband is a graduate teacher at Banda in the Krachie Ntsumburu District of the Volta Region. The Respondent/Respondent will be referred hereafter as Respondent.
Before the marriage, the Petitioner/Appellant who will hereafter be referred to as the Petitioner was offered admission to read midwifery at Dorma Ahenkro hospital in the Brong Ahafo Region for two years. This decision of the Petitioner to further her education was strongly disapproved of by the Respondent who said the Petitioner left him for school two weeks after the wedding. As a result of this, a serious misunderstanding arose between the couple. Alleging that the marriage has broken down beyond reconciliation, the Petitioner on the 8th of January 2015, filed a petition for divorce in the registry of the High Court, Ho for dissolution of the marriage. The Respondent resisted the petition, insisting that the marriage was “only facing a few challenges which we can resolve”.
After going through a full length trial, with none of the parties calling any witness to support their stand, the learned trial judge dismissed the petition to dissolve the marriage. He held that the Petitioner “has failed on all grounds without proof that the marriage has broken down beyond reconciliation”. Aggrieved by the decision, the Petitioner appealed to this forum.
Grounds of Appeal:
Although this is a case with a little evidence output, the Petitioner filed the following 13 grounds of appeal;
“1. That the court only dwelt on the perceived weakness of the Petitioner’s case, whilst totally fairing (sic) to do same for the Respondent and hence, one sided in its analysis of the case centrally (sic) to the well known maxim of a party relying on the strength of his or her own case and not on the weakness of the other’s case.
2. That the court erred in holding that the Respondent did not consent to the divorce.
3. That the court erred in holding that the marriage had not broken down beyond reconciliation since the problems and challenges stated by the Respondent could not be resolved.
4. That the court erred in holding that the Respondent’s conduct was unreasonable.
5. That the court failed to appreciate the fact that the Petitioner did not have the capacity to endure the Respondent’s conducts.
6. That the court erred in holding that the Petitioner has completed school and had not been killed since the threat could always be carried out at anytime.
7. That the court failed to appreciate the Respondent’s conducts towards the parents of the Petitioner in the whole case.
8. That the use of the word (sic) “levels have changed” by the court is not borne by the records and this occasioned a substantial miscarriage of justice.
9. That the court failed to realize that the Respondent originally unreasonably withheld consent before changing his position.
10. That the court by its judgment has turned a contract of marriage between the parties into one of slavery, regardless of the psychological effects on them.
11. That the judgment was generally against the weight of evidence.
12. That the court erred in holding that the Petitioner can reasonably be expected to live with the Respondent.
13. Further grounds may be filed upon receipt of the full record of proceedings”.
Although the Petitioner intimated that further grounds may be filed upon receipt of the full record of proceedings, no such further grounds has been filed.
As aforementioned, this case has a little evidence output and so the determination of the grounds of appeal raised by Petitioner unless otherwise stated will be the omnibus ground. This is ground 11 which says that the judgment was generally against the weight of evidence.
It is necessary to mention here that just as he failed to file his written address at the end of the case at the court below, so the Respondent failed to file his written submission of the case in answer to that of the Petitioner at this forum. The result is that this judgment is without the input of the Respondent.
On the omnibus ground, the learned counsel for the Petitioner submitted, that it is trite law that where a losing parting charges that the judgment is against the weight of evidence, it means that there are pieces of evidence on record which were either overlooked by the trial court or same were not adequately considered. And that if these pieces of evidence were carefully considered, the verdict would have gone into his favour.
In his submission on this ground, the Petitioner’s counsel referred to the case of Abbey and Others v.
Antwi V (2010) SCGLR 34 where Dotse JSC has this to say at h.4.
It is well-settled that where an appellant has alleged that the judgment of the trial court was against the weight of evidence, the appellate court would be under an obligation to go through the entire record of appeal to satisfy itself that a party’s case was more probable than not.
See also Djin v. Musah Baako (2007-2008) 1 SCGLR 686 and Tuakwa v. Bosom (2001-2002) 1 SCGLR 61.
Since in his argument the learned Petitioner’s counsel has subsumed virtually all his written submission under the general ground aforementioned, his first argument I wish to tackle is that the trial judge held that the Respondent did not consent to the divorce. According to counsel, this is not borne by the record of appeal. For example, counsel argued that on page 61 of the record of appeal the learned trial judge held this: “the petition has failed on all grounds without proof that the marriage has broken down beyond reconciliation”.
Counsel contended that contrary to the above, the Respondent himself admitted this under cross-examination at page 40 of the record of appeal as follows:
“Q. Contrary to your resistance to the divorce I put it to you, the court should grant the relief.
A. I have nothing to say”.
It is a further argument of counsel that the above agreement of the Respondent confirms his eventual admission that indeed the marriage between him and the Petitioner has broken down beyond reconciliation and the trial court should have so held.
In his judgment, the learned trial judge formulated six facts from the evidence and after evaluating same concluded that the marriage has not broken down beyond reconciliation. The six facts which the learned trial judge considered are:
1. Unreasonable conduct by the Respondent when Petitioner decided to further her education/Profession.
2. Refusal of Respondent to maintain her throughout her marriage.
3. Threats by the Respondent to kill her.
4. Cruelty in refusing Petitioner sex.
6. The parties have not lived as husband and wife for two years”.
As aforementioned, to a crucial question by the Petitioner’s counsel to Respondent as to whether or not the court should grant a decree of divorce, the Respondent said “I have nothing to say”. This answer should not be considered superficially. It goes to the very root of the relationship between this couple. The Respondent has unmistakeably admitted that the marriage has indeed broken down beyond reconciliation. And I think the learned trial judge should have used this admission by the Respondent and other facts from Petitioner’s evidence-in-chief to grant divorce.
I said so because the learned trial court, as rightly contended by the Petitioner’s counsel, completely ignored the strength of the case of the Petitioner and dwelt solely on her weak points. For instance, at page 17 of the record of appeal in the closing lines of the evidence-in-chief of the Petitioner, we have the following which goes to the very soul of this ill-fated marriage:
“The marriage has broken down beyond reconciliation as my heart is hurting me when I see him, and I can no longer marry him. Each attempt to reconcile us he did things worse than before. Even though he pleads each time for us to come back together, he does not do as he says. I pray for divorce (my emphasis)”.
The Petitioner made it clear that “my heart is hurting me when I see him and I can no longer marry him”. This sad declaration of the Petitioner was played out at her station when the Respondent visited her on three separate occasions. The treatment the Respondent received from his wife for several months is beyond belief. As the Respondent himself said in his evidence-in-chief which is recapped on hereunder:
“The challenges we face in our marriage are caused by my wife. I am not aware she has done anything to resolve our challenges. Currently, she stays at her station Worawora. The last time she visited me and stayed with me as a wife was in 2013. I last visited her in 2014 October. I visited her in February, March and April and she denied she knew me and that I was not her husband. This was what she told her colleague workers and that I was like a mad man and that her colleagues should not entertain me when I come. On those occasions in February I slept outside her door as she refused my entry; in March I slept at the O.P.D., and also in April I slept at the O.P.D. Despite these I call her on phone and she does not pick my calls of late – about two years now”. (my emphasis).
From the above, it is clear that there is no iota of consortium as found by the learned trial judge between the parties. What is more the litany of Petitioner’s humiliation of the Respondent is unbelievable. These are denying that the Respondent was her husband. She denied ever knowing Respondent. She stays at her station at Worawora. She told her colleague nurses that the Respondent was mad, and so they should not entertain him. Petitioner locked out her husband out on three occasions. On one occasion he slept at her door, because she refused him entry. On two occasions he slept at the O. P. D. of all places reserved for sick people. Finally for two years, she never picked his calls. What this means is that communication between the couple has completely and inexorably ceased, not for a few days, weeks or months but for 2 years!
From the above, the questions that rise are how can a wife treat her husband in such a cold, indifferent and humiliating manner? What is the self-respect and dignity of the Respondent as a husband? How can one’s lawfully married wife treat her husband with all due deference, like a nobody? These questions have only one answer – The marriage has irretrievably broken down beyond reconciliation in terms of section 1(2) of the Matrimonial Causes Act. Thus a prima facie case has been made by the Petitioner that warrants dissolution of the marriage.
I cannot but agree with the learned Petitioner’s counsel in his written submission that the requirements of section 1(2) of the Matrimonial Causes Act, has been met by the Petitioner. That section provides:
“The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation”.
The question is in whose interest was the trial judge serving by refusing annulment of the marriage – the Petitioner’s interest or the Respondents? From the evidence on record, the refusal by the learned trial judge to annul the marriage would not benefit the Respondent, apparently for whose sake the divorce was refused. This is because as amply demonstrated above, the Petitioner had totally rejected her husband with unbridled opprobrium and inveterate hostility. If the learned trial judge had adverted his mind to this aspect of the Petitioner’s evidence and conduct, vis a vis that of the Respondent, he would have decreed a divorce. I say so because all the ingredients of a totally failed marriage has been registered by the uncompromising stance of the Petitioner from a few weeks or months after their marriage on that 17th day of June 2012 five years ago to the present.
A look at section 2(1) of the Matrimonial Causes Act provides that 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 (a) that the Respondent has committed adultery; (b) that the Respondent has engaged in unreasonable conduct or behaviour; (c) has deserted the Petitioner for a continuous period of at least two years (d) failure to live together as husband and wife for at least two years provided that the Respondent consents to a decree of divorce (e) the failure to live together as husband and wife for a continuous period of at least five years; and finally (f) that the parties failed to reconcile their differences.
Out of the above six facts, the trial judge discussed unreasonable conduct, adultery, and the fact that the parties have not lived together as husband and wife for two years. The rest of the three other facts were formulated by him from the evidence as aforementioned.
In my opinion the Petitioner has proved that the marriage has irretrievably broken down beyond reconciliation because the couple have not lived together as husband and wife for a continuous period of at least two years immediately preceeding the presentation of the petition. I am aware that an appellate court should be slow in disturbing the findings of a trial court. However an appellate court can interfere with a trial court’s findings if they are wrong in a situation such as: if the court has taken into account matters or pieces of evidence which are irrelevant in law; the court excluded material evidence which are critically necessary for determination of the outcome of the case; the court has reached a conclusion which is palpably unreasonable to reach such conclusion and the court’s findings were not proper inferences drawn from the facts presented before it. See the case of Amoah v. Lokko & Alfred Quartey (substituted by) Gloria Quartey & Others (2011) 1 SCGLR 505 h. 2 and Ababio v. Bekoe II (1996-97) SCGLR 392.
In paragraph 22 of the petition, the Petitioner averred that the parties have not lived as husband and wife for over two years. However the Respondent denied this in paragraph 11 of his answer. In his tackling this fact of the parties not living for a continuous period of two years immediately preceding the petition, the learned trial judge failed to find as a fact that the couple have not lived for a continuous period of two years. Instead of establishing this fact, the learned judge dwelt exclusively on the Respondent husband withholding his consent. Consent from the Respondent is however not sine qua non to decree the dissolution of a marriage. If the consent is held unreasonably as in this instant case, the court has to decree a dissolution of the marriage once it is clear from the evidence on record that the couple have not lived for a continuous period of two years. This is because the Respondent can use consent as a weapon to deliberately deny the Petitioner a decree of divorce. See the case of Addo v. Addo (1973) 2 GLR 103. In that case Sarkodee J (as he then was) granted dissolution of the marriage despite the Respondent withholding consent.
In the instant case the woes of the couple started when the Petitioner left for school a few months after the couple’s wedding, (and not two weeks as stated by the Respondent in his answer. This is because secondary and tertiary institutions normally resume in September-October). Since that 2012 the marriage from the onset was tottering to the brink. Indeed from the evidence, after she went to school about October 2012, the Petitioner spent about a day with the Respondent when the Respondent took Petitioner to her parents and entreated his in-laws to ask his wife to truncate her school and join him at his station. Indeed the evidence is clear from the record of appeal that the couple never had a consortium. Clearly this is enough ground to dissolve the marriage. I do not know with due deference, what other evidence the trial court wanted to see before decreeing dissolution of the marriage.
As the learned trial judge puts it correctly, quoting in part Osei-Hwere J (as he then was) in the case of
Donkor v. Donkor (1982-83) GLR 1156 at page 1158:
The Matrimonial Causes Act (1971) Act 367 does not permit spouses married under the Ordinance to come to pray for dissolution of a marriage just for the asking. 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.
In this instant case the learned trial judge has accurately pointed the true picture between the parties’ total lack of consortium and the Petitioner wife declaring on page 6 of the record of appeal that her love for her husband is dead. Yet the trial court said the Petitioner “failed to prove the allegations made against Respondent”.
As aforementioned although the court before which a petition for divorce is placed is under obligation to ensure that he does not decree a divorce as a first resort, he has to be balanced in taking a panoramic view of the facts and circumstances of the case. He has to take into consideration the age, temperaments, sensitivities and dispositions of each spouse. Consideration is to move beyond the spouses at the centre of the divorce proceedings even to the relationship of the spouses to the families of the two. In the instant case, the relationship between the Respondent was poisoned beyond repair because a few months after the Petitioner left for school, she never spent her holidays with the Respondent but with her parents. That was from December 2012 to the time of the institution of the divorce proceedings on 8th January 2015 to date. See the case of Mensah v. Mensah (1972) 2 GLR 198 h. 3 and 4 and Knudsen v. Knudsen (1976) 1 GLR 204 CA. These two cases between them considered the facts and circumstances which would make a court to decree divorce or otherwise.
Although the relationship between spouses and their in-laws in divorce proceedings have not been factored into the Matrimonial Causes Act, as a condition to dissolve a marriage its effect as part of the surrounding circumstances in some marriages as in this instant case, cannot be ignored. This is amply considered by the learned Petitioner’s counsel in his written submission where he drew on the cross-examination of Respondent on pages 38-39 of the record of appeal which is reproduced hereunder:
“Q. You even abuse her siblings and parents and said they all forced you to marry her at the time you were not ready.
A. When I was explaining to my in-law the outstanding cost of the marriage and she leaving for school and also that they forced me to marry her when I was not ready.
Q. That was why your relationship with your in-laws is so strained and till date you cannot even go to them.
A. It is not true.
Q. You recall you told the court that your in-laws told you, you will no more marry the Petitioner.
A. Yes I said so.
Q. Do you also recall the in-laws asked you if you were ready to give her T & T at least to come to you.
A. I recall but the reason I was asked this was because I was complaining she was not coming to me and they said if she come, will I give her money.
Q. Naturally since late 2012 you have not lived as husband and wife.
A. I agree as she has been avoiding me.
Q. I am also putting it to you that the parents were not supporting her blindly as you told the court.
A. The parents were supporting her”.
I agree with the Petitioner’s counsel in his written submission that from the above exchange between counsel and Respondent, the relationship between Respondent and his in-laws and the couple themselves is in an all time low which affects the very foundation of the marriage. It is also clear that the Respondent does not maintain his wife. Indeed although the Respondent under cross-examination said that he maintains his wife through money transfer and Ghana Commercial Bank money transfer, he never professed a shred of evidence in proof of this.
Added to the above is the fact that the parties to the marriage have, after diligent effort been unable to resolve their differences in terms of section 2(1)(f) of the Act. Again, this may seem like I am entering the domain of the trial judge. In paragraph 19 of the petition, the Petitioner averred that
“The families of both parties have tried their best to settle the differences between the parties, but to no avail due to the unco-operative or stubbornness or adamancy of the Respondent”.
The above has been confirmed by the Respondent who in paragraph 8 of the answer averred as follow:-
That Respondent denies paragraph 19 of the petition and says in reply that it is rather the Petitioner who has not been understanding and refuses to pick the calls of Respondent and prefers to stay away from him unjustifiably.
Like the Respondent who poured out a litany of the ill-treatment of him by the Petitioner, the
Petitioner in cross-examination, itemizes several reasons why the marriage should fold up:
“Q. What are your grounds on which you are here for divorce.
A. He is accusing me of infidelity and with this accusation I cannot remain his wife. He also failed to assist me in my schooling even though he promised me. He even said I should stop the school and stop work so people will know he is married. He also reneges on arbitrations on these matters for which we were advised. He does not care of me for food and clothing. He took money from me for our marriage and he has failed to pay me back. He was arrogant to my parents for they encouraging me to continue my schooling. He threatened to kill me before I complete the schooling .....
Q. I am putting it to you that you are bent on having divorce and your grounds are hollow.
A. It is love we marry with and as at now there is no love and even if he give me a satchet of water I will not take it ...
Q. During the pendency of this case he visited you at Worawora.
Q. That night you did not allow him in your room.
A. Yes because I was scared of him.
Q. You did not offer him an alternate place to sleep that night.
The above exchange is another confirmation that the marriage between the couple has irretrievably broken down beyond reconciliation. Indeed the parties between them confirmed that at least there were four attempts at settlement, but same has not survived. In fact the blame game has reached a fevered pitch.
There is no marriage without a problem, but when there are problems, it is expected the parties, or at least one of them would yield to the other, or see reason to compromise. In the instant case however the situation is different. Both parties have taken entrenched positions. One would have thought that after the Petitioner had finished school, the Respondent would have been sending her money for her upkeep. This he failed to do as aforementioned. The result is that there is absolutely no marital nexus or social contact between them. In all the cases which I have considered such Addo v. Addo supra, Mensah v. Mensah (supra) Knudsen v. Knudsen (supra) and several of such matrimonial causes, there were at least a semblance of co-habitation, consortium and communication between the couple. Not in this instant case.
The reason why I think is marriage deserves to be dissolved is that, as rightly pointed out as aforementioned, by the learned trial judge, where the court is satisfied from the conduct of the parties that the marriage has in truth and in fact broken 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. Unfortunately, this is what the decision to maintain the marriage has done – to yoke two people who are physically, spiritually and psychologically poles apart.
At the risk of repeating myself in this instant case, no purpose would be served by allowing this marriage to go on and to plod on hopelessly and helplessly. This is because unlike other causes of action like land cases, contract, constitutional, chieftaincy etc. which do not involve intimacy between two people, matrimonial causes are unique because they involve two persons who are physically emotionally and spiritually involved with each other. No doubt Scripture declares the unique relationship as the two becoming one flesh. And since that relationship is reciprocal and one of the parties inexorably backs out, it is the duty of the court to see not only the case of one party and conclude that the marriage is subsisting, when the signal is clear that the marriage has failed. It is due to the foregoing that I think the marriage should be dissolved.
One other ground of the appeal is the charge by Petitioner’s counsel that the use of the phrase “levels have change” is not borne by the records, and this therefore occasioned a substantial miscarriage of justice to the Petitioner. Counsel contended that the use of those words connotes a certain negativity in the mind of the trial judge. That the mere fact that the Petitioner went to school to upgrade herself was not the reason for the bad relationship but the conduct of the Respondent. That the use of these words are extraneous and not borne out by the evidence. Counsel contended that despite the Petitioner upgrading her education, she is still a diplomate whereas the Respondent is a graduate teacher. This stance of the judge is prejudicial hence his decision, so argues Petitioner’s counsel.
At first reading the above ground of the appeal would not have been an issue. However, after looking at the record and the other pronouncement in like manner, the learned trial judge with the greatest respect, seems not to have considered the implications of his pronouncement on the case of the Petitioner. For instance at pages 53-54 of the record of appeal, this is what the learned trial judge has to say:
“The Respondent is a teacher in a village called Banda. His status as such cannot be doubted. This is a village teacher who has married a young nurse and is expecting consortium with her. He resists her going so soon to further her studies. As alleged the Petitioner who was also earning income at the time sponsors herself through school only to return to file a petition for dissolution of her marriage on ground of unreasonable conduct by Respondent in not sponsoring her through school (my emphasis).
I respectfully think the above seems to be lack of full appreciation of the position of the Petitioner on the part of the learned trial judge. It is as if the Petitioner has no right to further her education while the marriage is subsisting. Asking the Petitioner not to go for further studies, and stop her nursing profession and join her husband “village teacher” in the village, with respect reduces the petitioner to a status of not having a personality of her own. This is with respect a bit paternalistic. Indeed the evidence shows that the Respondent did not only refuse to sponsor the lady, but deliberately withdrew caring for her as his wife since December 2012. The fact that the Respondent said that Petitioner left him for school two weeks after their wedding is itself as aforementioned earlier, a lie because the Petitioner could not have left on about 2nd July 2012 when schools don’t reopen at that time. If the learned trial judge had gone beyond reducing the contest between the couple by placing both the evidential burden and persuasive burden exclusively on the Petitioner, he would have known that the conduct of the Respondent is most unreasonable to warrant the Petitioner still willing to marry Respondent. I agree with counsel that the ratio in the case of Edmund Danso v. Moses Adjei (2013) 58 GMD 71 at pages 96-97 per Amadu JA is germane to this case on sharing the evidential burden.
I also fully agree with counsel that there is enough evidence that the reason the woman wants a divorce is her loss of trust in her husband. Social status has nothing to do with this petition but the fact that the marriage has ceased to exist. No amount of ordering her to “reasonably be expected to return to live with Respondent as a wife” would help any of the couple or both of them together. The marriage has long passed that stage.
While saying that the marriage has broken down beyond reconciliation, in terms of section 1(2) of the Matrimonial Causes Act, I agree however with the learned trial judge that the Petitioner’s allegation that her husband committed adultery; or that he threatened to kill her were not backed with the requisite evidence. And as rightly held by the learned trial judge, in a civil trial, where an allegation of crime is professed, same must be proved beyond all reasonable doubt in terms of section 13(1) of the Evidence Act. It is there provided:
“In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt”.
The above is confirmed in the case of Hilodjie & Another vs. George (2005-2006) SCGLR 974 at 990 where Wood JSC (as she then was) has this to say:
“In civil litigation, the rules of evidence require a rather high degree of proof, i.e. proof beyond reasonable doubt, whenever a crime, which is directly in issue to the main dispute, is alleged”.
The Petitioner in this instant case admitted under cross-examination that she did not report the threat of her husband to the police. She should therefore hold her peace on the allegation of threat.
If the allegation of threat of death fails, the same goes with the Petitioner’s charge of adultery which is also a mere allegation without a scintilla of evidence against her husband.
Unlike threat of death, adultery is a moral wrong which does not require proof to reach the standard of a crime beyond all reasonable doubts as wrongly held by Kingsley-Nyinah J (as he then was) in Quartey v. Quartey & Another (1972) 1 GLR 6.
Adultery is difficult to prove since it is an illicit affair committed through the backdoor at the blind side of the other spouse. While adultery does not carry proof beyond all reasonable doubt as rightly held by Sarkodee J (as he then was) in Adjetey and Another vs. Adjetey (1973) 1 GLR 216 h. 1, same must be proved to the satisfaction of the court. It also need not be backed with corroborating evidence under section 7(2) of the Evidence Act, NRCD 323 as held by the trial court. It is enough if the Respondent is found openly or uncompromisingly associating with his paramour. In the instant case, the Petitioner failed to lead a shred of evidence to support her allegation that her husband was committing adultery. It was as if Petitioner was shopping for any available ground in an attempt to convince the court that her husband committed adultery so that the marriage could be dissolved. No doubt she failed to name any woman in the life of the Respondent, or caught him making love to any woman as she admitted under cross-examination.
I wholly agree with the learned trial judge that the Petitioner was “ill-advised with fanciful allegation which she failed to prove”. This however in my opinion, relates only to failure to prove her allegation of threat of death, denial of sex and adultery against her husband. Despite her failure to prove these wild allegations, there are several other compelling grounds which prove that the marriage between the parties has gone beyond retrieval. Indeed I have copiously given my reasons while it would be better to part the two spouses as there is no basis to make them to live under one roof. In view of this, I would allow the appeal and set aside the judgment of the High Court dated the 21st day of January, 2016. The marriage that was celebrated between the parties on the 17th day of June, 2012 at Christian Assembly Church, Ho is hereby dissolved.
The Petitioner/Appellant (hereinafter referred to in this appeal as the Petitioner) dissatisfied with the judgment of the trial High Court, Ho appealed against the said decision to this Court. The Respondent/Respondent will be referred to in this appeal as the Respondent. The Petitioner filed a petition for divorce in respect of the ordinance marriage she had with the Respondent at the Christian Assembly Church, Ho on 17th June, 2012. The parties married under customary law before they had the ordinance marriage. On 8th January, 2015 the Petitioner filed a petition for divorce and averred that the marriage has broken down beyond reconciliation. The Respondent in her answer to the petition resisted the Petitioner’s claim and averred that the marriage is facing challenges but has not broken down beyond reconciliation.
The trial High Court judge in his judgment delivered on 21st January, 2016 dismissed the petition on the basis that he was satisfied that the marriage has not broken down beyond reconciliation. The Petitioner dissatisfied with the judgment of the trial High Court filed an appeal against same to this court on 5th February, 2016. The twelve grounds of appeal filed by the Petitioner are as follows:
“1. That the court only dwelt on the perceived weaknesses of the Petitioner’s case, whilst totally failing to do same for the Respondent and hence, one sided in its analysis of the case contary to the well-known maxim of a party relying on the strength of his or her case and not on the weakness of the other’s case.
2. That the Court erred in holding that the Respondent did not consent to the divorce.
3. That the Court erred in holding that the marriage has not broken down beyond reconciliation since the “problems and challenges stated by the Respondent could not be resolved.
4. That the Court erred in holding that, the Respondent’s conduct was not unreasonable.
5. That the court failed to appreciate the fact that the Petitioner did not have the capacity to endure the Respondent’s conducts.
6. That the Court erred in holding that, the Petitioner has completed school and has not been killed since the threats could always be carried out at anytime.
7. That the Court failed to appreciate the Respondent’s conducts towards the parents of the Petitioner in the whole case.
8. The use of the word ‘levels have changed’ by the Court is not borne out by the records and this therefore occasioned a substantial miscarriage of justice to the Petitioner.
9. That the Court failed to realize that, the Respondent originally unreasonably withheld consent before changing his position.
10. That the court by its judgment has turned the contract of marriage between the parties into one of slavery regardless of the psychological effects of them.
11. That the judgment was generally against the weight of evidence.
12. That the court erred in holding that the Petitioner can reasonably be expected to live with the Respondent”.
I have carefully considered the grounds and I am of the opinion that grounds 1-10 should be subsumed under ground 11; that is the judgment is against the weight of evidence on record. There is no need to file several grounds of appeal when they can be subsumed under one ground. I am satisfied that grounds 1-10 of the appeal come under the omnibus ground of appeal; that is the judgment is against the weight of evidence on record. It is not the number of grounds of appeal filed against a judgment which is material but the substance. I am therefore called upon to evaluate the entire evidence on record including the exhibits and to discuss them with the appropriate laws and correct all the errors committed by the trial High Court and come to a proper conclusion. The burden is on the appellant who alleges that a judgment is against the weight of evidence to demonstrate the errors committed by his trial court in its evaluation of the evidence and the effect the improper evaluation of the evidence has on the judgment. The errors committed by a trial Judge under the omnibus ground of appeal may arise from evidence which were wrongly considered and in effect influenced the judgment and evidence which were not considered but should have been considered to affect the conclusion arrived at by the Judge. Omnibus ground of appeal therefore does not admit fanciful omissions, errors or lapses. Under the omnibus ground of appeal, the appellate Judge has a duty to evaluate the entire evidence on record and correct all the errors committed by the trial Court and satisfy himself that if the corrected version is properly discussed with appropriate laws, it may affect some or all the findings of fact made and has the propensity of affecting the conclusions arrived at by the said trial court.
In the case of Conduah; ex parte Aaba (substituted by Asmah) [2013-2014]2 SCGLR 1032, the Supreme Court held that the omnibus ground of appeal invites the appellate court to take another look at the facts on record, to ascertain whether the conclusions arrived by the trial Court is supported by the evidence on record. Furthermore, in the case of Akuffo-Addo v Catheline 1GLR 377, the Supreme Court in explaining the omnibus ground of appeal held that the appellate Court is seised with jurisdiction to examine the totality of the evidence on record and come to its own conclusion on the admitted and undisputed facts. An appellant who alleges that a judgment is against the weight of evidence on record must clearly and properly demonstrate to the appellate Court the lapses in the judgment to be impugned and further establish that the lapses in the judgment are colourful and if properly considered should reverse the conclusions made by the trial Judge.
The Petitioner in proving some of the lapses in the judgment stated that the trial High Court Judge erred by holding that the Respondent did not consent to the divorce, and furthermore, the marriage has not broken down beyond reconciliation. The only ground upon which a marriage may be dissolved is where the Petitioner proves that the marriage has broken down beyond reconciliation. Section 1(1) of the Matrimonial Cause Act, 1971(Act 367) provides thus:
“The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation”.
The grounds upon which a marriage would be said to have broken down beyond reconciliation are six (6) and the proof of one or more of them to the satisfaction of the Court may be a valid ground to the dissolution of the marriage. The six grounds are provided in sections 2 of the Matrimonial Causes Act, Act 367. They are as follows:
“2(i) 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:
“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, 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.
f. That the parties to the marriage have, after diligent effort, been unable to reconcile their differences”.
The Petitioner in paragraph 22 of her petition averred that the marriage has broken down beyond reconciliation as the parties have not lived together for over two years. The Petitioner in her evidence testified to that fact and stated that the parties have not lived together for a continuous period of at least two years immediately preceding the presentation of the petition. From the evidence on record, I am satisfied that the Petitioner proved her case by the preponderance of probabilities that the parties had not lived together as a married couple for a continuous of two years immediately preceding the presentation of the petition. The basis upon which the trial High Court Judge refused to grant the petition under this heading was that the Petitioner failed to obtain the consent of the Respondent as required in Section 6(1) of Act 367 and there is no evidence that the Respondent has unreasonably withheld the consent. There is evidence that several steps were taken to reconcile the parties but those steps failed. There is evidence that the Respondent did not give consent to the Petitioner to file the petition for divorce under that ground and it is not enough to hold that, on that premise alone the petitioner has failed to prove her case. The trial Judge in his opening remark on the legal position under section1(d) and 6(1) of the Act stated that under that heading the Respondent must consent to the grant of the decree for divorce. He stated thus:
“To succeed under this ground, however, the Respondent must consent to the grant of the decree for divorce”.
The above statement by the judge influenced his position of the law but does not represent the true position of the law on where the respondent fails to give consent to the dissolution of the marriage. The Courts have the power to grant petition for divorce under section 2(1) (d) of Act 367 where they are satisfied that consent has been unreasonably withheld. Determining whether consent withheld by the Respondent under section 2(1) of Act 367 is unreasonable or reasonable must be on a case by case basis depending on the evidence adduced by the parties.
From the totality of the evidence on record, I am satisfied that the Respondent unreasonably withheld his consent and this Court is competent to grant the petition for divorce. I am satisfied that the trial High Court failed to properly examine the evidence adduced and the legal requirements imposed by section 2(1)(d) and 6 of Act 367. I am also satisfied that the conduct of the Respondent was unreasonable particularly his insolence towards the mother-in-law and the father-in-law. The Respondent threatened to kill the Petitioner and it will be unreasonable on the part of the Petitioner to live with the Respondent.
There is further evidence on record to prove that before the petition was filed, efforts were made to reconcile the parties but failed. Furthermore, when the petition was filed, efforts were made to reconcile the parties but this also failed. The trial High Court Judge therefore erred when he came to the conclusion that there is no evidence to support the Petitioner’s evidence that after diligent efforts to reconcile their differences they could not reconcile.
I find and hold that from the totality of the evidence on record, I am satisfied that the marriage has broken down beyond reconciliation and the justifications are that; from the evidence, the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent, that the parties did not live for a continuous period of two years as husband and wife, and that the Respondent unreasonably withheld his consent to the dissolution of the marriage. Furthermore, from the evidence on record, all efforts to reconcile the parties proved futile and it would be unfair to impose marriage on the parties where there is evidence that the marriage has broken down beyond reconciliation and parties cannot live as husband and wife. From the judgment it seemed to me that the trial High court Judge failed to evaluate the evidence in accordance with standard burden of proof in civil matters. Sections 11(4) and 12(1) of the Evidence Act 1975, (Act 323) provide that the standard burden of proof in all civil matters is proof by the preponderance of probabilities and there is no exception to it except where the issue to be resolved in the civil suit borders on criminality such as fraud and forgery. The Supreme Court in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 unambiguously resolved the question of standard burden of proof. I am satisfied that regarding burden of persuasion, the Petitioner produced sufficient evidence to presuade me to come to the conclusion that the existence of the fact that the marriage had broken down beyond reconciliation was more probable to me than the position taken by the trial High Court Judge that the marriage was rather facing challenges. In the case of African Mining Services v Larbi [2010-2012] GLR 579, this Court held that the burden of persuasion in civil matters requires the person who has the evidential burden to discharge to produce sufficient evidence such that a reasonable mind, such as this Court, will come to the conclusion that the existence of the fact that the marriage has broken down beyond reconciliation is more probable that the assertion that the marriage is facing challenges.
As an appellate Judge, I have the same opportunity as the trial High Court Judge when it comes to the evaluation of the evidence on record. I am satisfied that the Petitioner proved her case on the preponderance of probabilities that the marriage has broken down beyond reconciliation. The position taken by the trial High Court Judge that the Petitioner could not prove that the marriage has not broken down beyond reconciliation is not supported by the evidence on record. Even though the sole ground for divorce is that the marriage has broken down beyond reconciliation, the standard burden of proof is the same as in other civil matters that is proof by the preponderance of probabilities. Any decision which purports to raise the standard burden of proof required in matrimonial matters as higher than in other civil cases is wrong and will not have legal basis under the Evidence Act. In effect, there are two types of burden of proof that is proof by preponderance of probabilities in civil matters and proof beyond reasonable doubt in criminal matters and there is no hybrid between the two.
The appeal succeeds on the above reasons and it will not serve any useful purpose to discuss the other grounds under the omnibus ground.
The judgment of the trial High Court delivered on 21st January, 2016 is hereby set aside and we substitute an order declaring the marriage contracted between the parties herein on 17th June, 2012 at the Christian Assembly Church, Ho and the customary marriage contracted between the parties as dissolved.