CHARLES AKPENE AMEKO vs. SAPHIRA KYEREMA AGBENU [2015]DLCA8287

Date	2015-03-11
Suit No.	SUIT NO.H1/20/2014
Citation No.	[2015]DLCA8287

DENNIS D. ADJEI (J.A.) – PRESIDING

LOVELACE-JOHNSON (J.A.)

CECILIA SOWAH (J.A.)

RAPHAEL B. K. ABOAGYE ESQ. FOR THE PETTIONER/RESPONDENT

LOUIS KUDJOE BLEWEISI ESQ. FOR THE RESPONDENT/APPELLANT

[2015]DLCA8287
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													<main id="main" class="content" style="min-height: 60rem" >CHARLES AKPENE AMEKO<o:p></o:p>(PETITIONER/RESPONDENT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0;mso-ansi-language:EN-GB">vs.<o:p></o:p>SAPHIRA KYEREMA AGBENU<o:p></o:p>(RESPONDENT/APPELLANT)<o:p></o:p>[COURT OF APPEAL,
KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO.H1/20/2014&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: 11TH&nbsp; &nbsp;MARCH, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>RAPHAEL B. K. ABOAGYE ESQ. FOR THE PETTIONER/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

LOUIS KUDJOE BLEWEISI
ESQ. FOR THE RESPONDENT/APPELLANT<o:p></o:p>

</div><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;mso-ansi-language:EN-GB">CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

DENNIS
D. ADJEI (J.A.) – PRESIDING, LOVELACE-JOHNSON (J.A.), CECILIA SOWAH (J.A.)<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp; ADJEI,J.A:<o:p></o:p>The
Defendant/Appellant dissatisfied with the decision of the Circuit Court,
Odumase Krobo delivered on&nbsp; 5th
December, 2013 appealed&nbsp; to&nbsp; this Court. The notice of appeal was filed on
4th March, 2014 and would be a subject of comment in the course of
the judgment.<o:p></o:p>The
facts of the case which culminated in this appeal were that the Petitioner
filed a petition against the Respondent for an order dissolving their Ordinance
marriage celebrated in 2005 at the Church of Pentecost at Central Akuse, in the
Eastern Region. The parties have twins who were seven and half (71/2)
years old at the time of the institution of the petition. The petitioner’s claim
was that he found the Respondent as disrespectful and quarrelsome after they
had gotten married. The Respondent also averred that she was ill treated by the
Petitioner. She was accused of being a witch and had a shock from the comment
which caused her to be hospitalized at Akuse Government Hospital. The
Petitioner willfully failed to have sex with the Respondent for five years
without any justification. The Respondent however resisted the dissolution of the
marriage and&nbsp; said that the marriage&nbsp; had not broken down beyond reconciliation but
if the Petitioner insists for&nbsp; the &nbsp;dissolution&nbsp;&nbsp;
she&nbsp; would not oppose it.<o:p></o:p>Hearing
commenced on 17th March, 2013. In the course of the evidence in
chief of the Petitioner, the trial court Judge decided to resolve the issue of
custody of the twins; the only children of the parties. The trial Judge ordered
the Department of Social Welfare to investigate and submit a social enquiry report
on the twins to assist him to make appropriate custody orders.<o:p></o:p>On
the next adjourned date; 5th September, 2013 the trial Judge without
further evidence dissolved the marriage on the grounds that he had read the
pleadings and was satisfied that the marriage had broken down beyond
reconciliation.<o:p></o:p>The
matter was adjourned on a couple of times before the social enquiry report was submitted
by the Department of Social welfare. On 5th December, 2013, the
trial Judge gave custody of the twins to the petitioner in accordance with the
recommendations made by the Department of Social Welfare.<o:p></o:p>The
Respondent dissatisfied with the custody order made by the trial Circuit Court
on 5th December, 2013 appealed against it on 4th March,
2014.<o:p></o:p>The
three main grounds of appeal are that the judgment is against the weight of
evidence on record, the trial Judge erred in law when he dissolved the marriage
without taking evidence and finally, the trial court erred when he granted
custody of six (6) years old children to the Respondent based on rumors. <o:p></o:p>From
the pleadings, the parties were ad idem
as to the age of the twins at the time of the institution of the action. They
were 71/2 years at the time of the institution of the action and
seems to conflict with the ground of appeal filed by the Respondent.<o:p></o:p>It
is not in dispute that the Respondent did not appeal against the order for the
dissolution of the marriage made on 5th September, 2013. The order
dissolving the marriage was a final judgment and the respondent had three months
as of right to appeal against it or with the leave of the trial Court or the
Court of Appeal after the next three months but she did not. The law is settled
that an extension of time to file an appeal against a judgment cannot be filed
after six months from the date of the delivery of the judgment. The time within
which to appeal against the judgment or order or decree by a Circuit Court to the
Court of Appeal is regulated by Rule 9 of the Court of Appeal rules, 1997 (C.I.
19) rule 9 of C.I. 19 </main>