KOTEI vs. KOTEI [1974]DLHC2291

Date	1974-05-17
Suit No.
Citation No.	[1974]DLHC2291

SARKODEE J.

PETER A. ADJETEY FOR THE PETITIONER.

MISS A.A. AYISI FOR THE RESPONDENT.

[1974]DLHC2291
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">KOTEI <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">KOTEI<o:p></o:p>&nbsp;[HIGH COURT, ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 2 GLR 172<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
17 MAY 1974.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

PETER A.
ADJETEY FOR THE PETITIONER.<o:p></o:p>

MISS A.A.
AYISI FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE J.<o:p></o:p>The
husband and wife were married in 1962. In April 1968 they separated and have
since not lived as man and wife. Very little explanation for the separation was
offered except that in 1967 when the parties returned from the United Kingdom
(where the petitioner undertook some training) the petitioner went to Kumasi on
posting. He had no suitable accommodation and therefore his wife and children
had to remain in Accra. Whilst he was in Kumasi she visited him on two
occasions only. On the first occasion she went to collect her personal
belongings from the petitioner’s house. On the second visit she and the
petitioner slept in the petitioner’s house but in separate rooms. Whereas the
husband says that their marriage has broken down beyond reconciliation she
asserts the contrary and adds that she is still, after six years, waiting for
her husband to send for her, that she still loves her husband and will
entertain an attempt at reconciliation. There are two children of the marriage,
Emmanuel Neequaye, born on 20 March 1962 and Sarah Adei, born on 10 June 1964.<o:p></o:p><o:p>&nbsp;</o:p>The sole
ground for granting a petition for divorce is that the marriage has broken down
beyond reconciliation. But the petitioner is also obliged to comply with
section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367), which requires him
to establish at least one of the grounds set out in that section. The
petitioner in this case has set out to prove (1) (e), namely, “that [he and the
respondent] have not lived as man and wife for a continuous period of at least
five years immediately preceding the presentation of the petition. “Subsection
(3) contains an important provision which brings into focus the general scheme
of the Act, which is to encourage reconciliation as far as may be practicable.
Thus section 8 enjoins the petitioner or his counsel to inform the court of all
attempts made to effect a reconciliation and gives the court power to adjourn
the proceedings at any stage to enable attempts at reconciliation to be made if
there is a reasonable possibility of reconciliation. It is, however, wrong, in
my view, to say that proof of total breakdown of the marriage and the
possibility of reconciliation should be taken “disjunctively.” This, counsel
for the respondent explained, meant that there is a burden to prove separately
that the marriage has broken down and even when it is proved that it has broken
down that there should be the further proof that it is beyond reconciliation.
It is accepted that proof of one or more of the facts set out in section 2 (1)
is essential and that proof of one of them shows the marriage has broken down
beyond reconciliation. It is also conceded that notwithstanding proof the court
can refuse to grant the decree of dissolution on the ground that the marriage
has not broken down beyond reconciliation. It will be noted that the discretion
given to the court is not a discretion to grant but to refuse a decree of
dissolution. This means that once facts are proved bringing the case within any
of the facts set out in section 2 (1) a decree of dissolution should be
pronounced unless the court thinks otherwise. In other words, the burden is not
on the petitioner to show that special grounds exist justifying the exercise of
the court’s power. Once he or she comes within any one of the provisions in
section 2 (1) (e) and (f), the presumption is in his favour; proving one of the
provisions without more is proof of the breakdown of the marriage beyond
reconciliation.<o:p></o:p><o:p>&nbsp;</o:p>Proof of
five years’ continuous separation enables the marriage to be dissolved against
the will of a spouse who has committed no matrimonial offence and who cannot be
blamed for the breakdown of the marriage: see Fuller v. Fuller [1973] 2 All
E.R. 650, C.A. where the original cause of the separation was that the husband
suffered from coronary thrombosis. Later when the husband left the hospital he
went to stay in a house where his wife lived with another man. The husband
lived there as a lodger because his doctor told his wife that he must not live
on his own. The wife’s petition for divorce was granted on appeal. A more
sordid and pathetic example is the Western Australian case of Main v. Main
(1948-49) 78 C.L.R. 636, S.C. where the respondent husband became completely
paralysed and was admitted to a hospital. He recovered and returned home but
later collapsed and he was sent to hospital again. This happened several times.
In 1943 he was admitted to a home as a patient where he remained until 1945
when he was transferred to an institution. He lived continuously in that place
and it was unlikely that he would ever be discharged. In 1948 the wife
petitioned on the ground that she and her husband had lived separately and
apa</main>