ERIC KWASI ASARE (PLAINTIFF) vs. MERCY PERBY (DEFENDANT) [2012]DLHC7443

Date	2012-12-04
Suit No.	SUIT NO. BDMC 293/2011
Citation No.	[2012]DLHC7443

HIS LORDSHIP MR. KWASI DAPAA J.

SETH ADOM ASOMANING FOR PETITIONER

[2012]DLHC7443
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													<main id="main" class="content" style="min-height: 60rem" >ERIC KWASI ASARE<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MERCY PERBY<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. BDMC 293/2011 &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; &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;DATE: 18TH APRIL,
2012<o:p></o:p>

</div>COUNSEL: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SETH ADOM ASOMANING FOR
PETITIONER<o:p></o:p>

</div>&nbsp;CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP MR. KWASI DAPAA
J.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>The
petitioner initiated these proceedings on the 4-08-11 for the sole relief that
the marriage subsisting between the parties be dissolved for the reason that
the same has broken down beyond reconciliation. The respondent in her answer
filed on the 4-11-11 denied that the marriage had broken down but nonetheless
cross-petitioned for the dissolution of the marriage and ancillary reliefs as
follows: <o:p></o:p>“(i) Petitioner’s wish to have the marriage dissolved be
granted him. <o:p></o:p>(ii) The matrimonial home H/No A/444/14 Pepper Close, be
declared the property of the respondent by virtue of the fact that after the
respondent having solely financed the massive extension works to the house the
petitioner gifted his interest in the house to the respondent in atonement for having
a child out of wedlock. <o:p></o:p>(iii) The petitioner pays respondent a lump sum as
financial settlement <o:p></o:p>(iv) Any further order(s) that the court may deem fit.” <o:p></o:p>These
reliefs claimed in the Answer were denied by the petitioner in his Reply filed
on the 23-11-11. <o:p></o:p>The
petition was set down for trial on the 26-01-12. On the 9-03-12 when the
petition was called for hearing counsel for the parties announced to the court
an agreement between the parties not to contest the issues but to mutually pray
for the dissolution of the marriage and waive the claims for the ancillary
reliefs. Since the issue whether or not a marriage has broken down beyond
reconciliation is a legal one to be decided by the judge and not the parties
this court adjourned the petition for evidence to be taken from the parties.
See section 2(3) of the MATRIMONIAL CAUSES ACT, 1971 (ACT 367). <o:p></o:p>The
petitioner led evidence on the 16-04-12 and was cross-examined by counsel for
the respondent. The respondent who was represented by an Attorney in the
proceedings was absent. The petitioner did not call a witness and closed his
case on his evidence alone. The respondent per her counsel announced that the
respondent did not intend to lead evidence and has agreed to have the marriage
dissolved, and also waive any claim for the ancillary reliefs. <o:p></o:p>The
evidence of the petitioner was basically about the desertion by the respondent
and the consequent lack of knowledge and or information about her for 6 years.
He said they got married under the Marriage Act 1884-1985(CAP.127) at the
Marriage Registrar’s Office, Accra and cohabited in Accra from 1979 until 2005.
He was a staff of the Bank of Ghana whilst the respondent was a staff of the
Ghana Commercial bank, both in Accra. They have 2 issues of the marriage who
are both adults. In the course of their marriage the respondent was dismissed
from her work but she refused to disclose the actual cause to the petitioner.
The petitioner also decided to resign from his post at the Bank of Ghana to go
into farming against the opposition from the respondent. <o:p></o:p>The
relationship got sour to the extent that each of them lived his/her separate
life and the 2 did not live as husband and wife for a long time. Matters took a
dramatic turn in 2005 when the respondent decided to travel to the United
States of America. She told the petitioner that she was going for 6 months
holidays but failed to disclose her location and whereabouts in the U.S.A to
him. The petitioner has not heard anything from her since. After a long wait
without any communication between them the petitioner tried to get a cousin of
the respondent to intervene to settle the problem but the latter refused to
co-operate. He then approached the family of the respondent in 2008 for a
dissolution of the marriage but the family told him that since the marriage was
under the Marriages Act they could not get it dissolved at home. The respondent
was contacted on phone by the family and she gave her consent to the
dissolution of the marriage so the family advised the petitioner to proceed to
the court to have the marriage dissolved. <o:p></o:p>The
petitioner concluded his evidence saying that he realized in the course of
their cohabitation that the 2 were incompatible partners even before the
respondent deserted him. From the cross-examination of the petitioner by
counsel for the respondent it was clear that not much had been done by way of
effort or attempt towards reconciliation of the parties but it was not denied
that the respondent has left the petitioner and the matrimonial home since 2005
without returning. Sh</main>