IN THE SUPERIOR COURT OF IUDICATURE
IN THE COURT OF APPEAL
ACCRA A.D. 2011
CORAM: ABBAN, JA (PRESIDING)
DUOSE, JA
OFOE, JA
SUIT NO.: 141149/2011 17Th1 November, 2011
KOJO ANYAFUL	PETITIONER/APPELLANT
VRS
THERESA ANYAFUL	RESPONDENT/RESPONDENT
Family Law— Husband and wife— Dissolution of marriage— Grounds upon which divorce petition is granted by the court— Petitioner to adduce strong and weighty evidence to show marriage has broken down beyond reconciliation— Matrimonial Causes Act, ss. 1,2 & 3.
IUDGMENT OFOE, l.A
The appellant who was the petitioner in the trial court sought from the court the dissolution of the marriage between him and the respondent. By his petition he was seeking the dissolution of the marriage because the respondent has been abusive, that they had not lived together since 1999, all diligent efforts have been made to
 
resolve their differences to no avail and that the respondent has behaved in such a way and manner he cannot reasonably be expected to live with her. In respect of property settlement he prayed the court to settle House Number 120 Park Road, Uxbridge, Middlesex, England which he claims he purchased alone and one other house in Rome on him. A two bedroom NTHC property in Accra which he built with the contribution of the respondent he asked that it be settled on them jointly and an uncompleted house in Dome which he claims he built alone be settled on him.
The respondent denied the allegations of the petitioner and accused him rather of abandoning the home most of the time. It was the case of the respondent that they lived together in the U.K until the petitioner returned to Ghana in1991. They agreed that she stayed behind in the U.K to study Nursing. They visited each other regularly until the petitioner got a job with the United Nations and moved to Rome in 1996. After her course in the UK she joined the petitioner in Rome. On agreement of both parties he had to go back to the UK with the children for medical reasons. This was in 1999. Kwesi their 13 years old child is medically challenged and needed continious care and medical attention. Their other child is Yaa who at the time of the petition was 11 years. The petitioner abandoned them in the UK and on any of the rare visits he made to them there were quarrels with occasional threats from the petitioner to divorce her. She also thinks the marriage has broken down beyond reconciliation and prays for dissolution of the marriage, custody of the two children, maintenance including medical bills and
 
allowance for the children. In respect of the properties she claims to be a joint contributor and therefore the London and the Lashibi property in Ghana, which they jointly owned, be settled on her for the petitioner to keep the Italy and Dome house in Ghana. I must mention here that the respondent mentioned that she had commenced divorce proceedings in the UK through her solicitors because she and the children are British citizens and domiciled in the UK and their joint assets are in the UK, Italy and Ghana. When she commenced this proceeding her father in Law called that she should not proceed with the proceedings but come to Ghana for a discussion on the matter
The petitioner's reply to the respondent's answer sought for different reliefs. He asked that the London property be sold and the proceeds be split between them after payment of the mortgage balance and all the other properties be shared according to each person's contribution. When the case came on for hearing the respondent was not in court and the court proceeded to take evidence in her absence on the 27" July 2009 and delivered its judgment on the 19th October 2009 refusing the petition for divorce.
It is this refusal that the appellant, who I have referred to as the petitioner and I will continue to refer to as such in this appeal, is aggrieved with and has appealed to this court. To him the judgment is against the weight of evidence and is not warranted by law. There is a lot wrong with this other ground of appeal that simply states that "the judgment is not warranted by law". It has been repeated and several times that Rule 8 sub rule 4 requires that where the
 
ground of appeal alleges error of law particulars of the error should be clearly stated. I will make no issue out of this omission by counsel and proceed to find out whether indeed there was such error of law as alleged by the petitioner.
The brief of the evidence put before the court why he thinks the marriage has broken down irreconciliably were that the wife has been very abusive towards him and on one occasion she struck him at the back of his head. After this incident Mr. Kojo Owusu Tieku, a Diplomat came in and their differences were resolved and they agreed to continue with the relationship. This was in 2005. Another difference between them was resolved by a Mr. Asante in London and they agreed to continue the marriage for the sake of the children. Their differences continued anytime they met. On one other occasion the respondent came to his office and abused him in front of his secretary and this to the petitioner broke the camel's back. To the petitioner these were sufficient acts of the petitioner clearly indicating their marriage had broken down beyond reconciliation. He ended his evidence that the last time they had sexual relations was a year ago. It needs noting that the petitioner gave these pieces of evidence on the 271h July 2009.
What was the trial judges assessment of the evidence and its application of the law that the petitioner finds unacceptable. After referring to section 2(1) and 2(3) of the Matrimonial Causes Act and emphasizing that the court should not grant divorce petition unless it finds that the marriage had broken down beyond reconciliation the trial judge proceeded and concluded:
 
"The Petitioner in the instant case led no corroborative evidence in support of his assertions. The parties are living apart of each other by their own mutual arrangements. Quarrels, conflicts, insult and differences between spouses and I dare to say occasional romantic assaults are normal incidents of married life. Not having had sex for a year without more is no ground for divorce especially when the parties are not living together and there is no complaint of having had any adverse health related consequences. By the petitioners own evidence the two attempts at reconciliation were successful when they both agreed to continue for the sake of the children.
Marriage is a sacred institution ordained by God, sanctioned by the state and approved and consented to by two families. The law requires very strong and weighty reasons to dissolve such a union. On the evidence led in this case, no weighty reasons have been advanced to convince me to grant the prayer. Accordingly the prayer will not be granted."
Counsel for the petitioner disagrees with these views expressed by the trial judge and argues that there are sufficient pieces of evidence provided by the petitioner for the grant of the petition for divorce. He submits that the Matrimonial Causes Act, Act 367 of 1971, specifically section 2(1) provides that to show that the marriage has broken down beyond reconciliation there is the need to establish the existence of certain facts. (2) (1)(b) provides that:
 
"the respondent should have behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". This standard, according to counsel was met by the evidence given by the petitioner. The two incidents that were settled can't be the basis for concluding that the marriage had not broken down beyond reconciliation, as the trial judge reasoned. For according to counsel, if there had indeed been a settlement, the subsequent incident where the respondent had to abuse him, a diplomat, in his office before the secretary would not have occurred. To interpret these incidents, including an assault as "romantic assaults" and conclude that the law requires" strong and weighty reasons to dissolve such a union is not only a wrong assessment of the evidence but also a wrong application of the law on burden of proof. Counsel submits that our civil law demands proof on the preponderance of the probabilities and not "strong and weighty reasons" as the trial judge stated. It is counsel's submission that to wait until an irreversible harm is caused to one of the parties, as the court appeared unconsciously to have preferred, should be rejected for His Lordship Sarkodie's views in the case of Addo vrs Addo (1973) 2 GLR 103 at 106, where he said,
"The injury may be to physical or mental health but where one spouse complains of unreasonable behavior of the other spouse it seems to me the injury need not be actually suffered. A reasonable apprehension (emphasis mine) that injury will result if the conduct is persisted in will be enough; for the
 
Court should not wait for a spouse to be actually injured
before offering (her) relief."
It would be necessary to quote the relevant portions of the
Matrimonial Causes Act for a better appreciation of the application
of the facts to the applicable law.
"Section 1	Petition for Divorce.
(1)	A petition for divorce may be presented to the court by
either party to a marriage.
(2)	The sole ground for granting a petition for divorce shall be
that the marriage has broken down beyond reconciliation.
Section 2—Proof of Breakdown of Marriage.
(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:—
(a)	that the respondent has committed adultery and that
by reason of such adultery the petitioner finds it
intolerable to live with the respondent; or
(b)	that the respondent has behaved in such a way that
the petitioner cannot reasonably be expected to live with
the respondent; or
(c)	that the respondent has deserted the petitioner for a
continuous period of at least two years immediately
preceding the presentation of the petition; or
 
(d)	that the parties to the marriage have not lived as man 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 such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or
(e)	that 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; or
(1) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.
(2)	On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent.
(3)	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".
A cursory reading of these provisions will show that the sole grounds for granting a petition for divorce is that the marriage has broken down beyond reconciliation. Whether a marriage has got to
 
that stage or not is for the trial judge to determine after examining all the facts put before him. By subsection 3 of section 2 even though there may be established any of the facts specified in subsection 1, the court should still be satisfied that the marriage has broken down beyond reconciliation. Looking at the evidence led before the trial court there has been two incidents but settled. Then was the abuse in the office. Should these two incidents that were settled and the subsequent abuse in the office be sufficient grounds for a conclusion that the respondent has behaved in such a way as not to expect the petitioner to reasonably live with her? I don't think the trial judge's conclusion in the negative is baseless. This is especially so when the petitioner himself told the court that the last time they had sexual affair was over a year ago. And these are couple not living together, by their own agreement, because each had to work at a different location on the globe for financial reasons- one in the UK and the other in Rome. As rightly stated by the trial judge petitioning for divorce is a different thing from its grant. A party is at liberty to petition for divorce but it is the duty of the court to look at the entire evidence before it whether it is satisfied the marriage has broken down beyond reconciliation. Underlying section 2 of the Act, quoted earlier, is a clear duty imposed on the court to give maximum scrutiny to petitions for divorce and be satisfied before grant. I am of the view the trial judge did exactly that before concluding refusing the petition.
It is true that the trial judge made reference to strong and weighty reasons before the grant of divorce. Counsel finds this an
 
introduction of another yardstick not known to the law in the
discharge of the evidential duty imposed on parties in civil litigation. How strong and what weight should be given to the evidence led by the petitioner? For the trial judge to find that no such weighty evidence has been given by the petitioner and that the evidence he led is not strong enough for the petition to be granted, I don't think should be interpreted as introducing an unknown evidential principle on proof in our law of evidence. If he did, it is a known common principle that an appeal is by way of rehearing. Is there evidence for which on application of the evidential burden of proof on the balance of probabilities the judgment can be supported? I think the answer should be a yes.
Issue of jurisdiction has tangentially been raised but on reading of the appeal record I don't think it is worth any bother to this court. The essential conclusion is that the prayer in the petition has been refused. Whatever happened in the UK, if indeed it happened, by way of earlier divorce, was not canvassed before the trial judge because the respondent who raised it in her pleadings did not testify before the trial judge.
From the foregoing the appeal is consequently dismissed.
VICTOR D. OFOE
(JUSTICE OF APPEAL)
 
HENRIETTA ABBAN, JA I agree	HENRIETTA ABBAN (JUSTICE OF APPEAL)
ISAAC DUOSE, JA	I also agree	ISAAC DUOSE (JUSTICE OF APPEAL)
COUNSEL
. MR. GEORGE KOM FOR PETI'I'IONER/APPELLANT(WITH HIM FRANCIS KOKU)
MR. FRANCIS ACHIBONGA FOR RESPONDENT/RESPONDENT

