Division: IN THE HIGH COURT, ACCRA
Date: 22 OCTOBER 1964
Before: ARCHER J
JUDGMENT OF ARCHER J
The petitioner seeks dissolution of the marriage between himself and the respondent on the ground that the respondent has since the celebration of the marriage treated the petitioner with cruelty and although it is not expressly stated in the petition, it seems that paragraph eleven of the petition suggests constructive desertion by the respondent. The respondent in her amended answer cross-petitioned for the dissolution of the marriage on the grounds of the petitioner’s cruelty, desertion and adultery.
The parties were married on 15 April 1948 and co-habited at Christiansborg and Kaneshie at Accra until their separation. There are two children of the marriage aged sixteen years and fourteen years respectively. The gist of the petitioner’s case is that since their marriage they have not had even two months peace in the matrimonial home. In 1955, the respondent assaulted him with a stick and his face was bruised. From January to June 1958 the wife would not perform house wifely duties and took exception to any suggestions made by the petitioner. Nagging by the respondent was so much that the petitioner used to sit in a public bar drinking to escape the nagging. About twelve times he had to sleep on the verandah when he returned home between 11 and 11.30 p.m. in the evening. In 1958, the nagging was so much that the petitioner had a nervous breakdown and was in hospital for three months. On his discharge from hospital the quarrels continued and therefore he left the house. In 1958 he had a scholarship to go to the United Kingdom and he returned to the matrimonial home and lived there for two days before his departure. While in England the respondent wrote a letter exhibit B in which the respondent amongst other things stated “I have been at fault all along but I assure you all I know is that we have no past.” The petitioner therefore relied on this letter and the statement quoted as an admission by the respondent of her responsibility for the disharmony and misunderstandings in the marriage. On his return from England in April 1959 he cohabited with the respondent but the quarrels, nagging and fights continued and just at the time he had made up his mind to leave, the respondent was admitted in hospital. He waited three or four days after her discharge and left the matrimonial home on 10 December 1959 with the children and has never returned. He testified that the respondent was pleased when he took away the children. This is the evidence for the petition and it consists only of the evidence of the petitioner himself.
The respondent in her cross-petition and in her evidence denied that she was a woman of uncontrollable temper. She maintained that it was rather the petitioner who was a difficult man and would not tolerate any suggestions from her. In 1957 the petitioner beat her up because she complained of non-payment of electricity and water bills. She thought the petitioner was morally weak so far as the fair sex was concerned and had even had sexual intercourse with the respondent’s near relatives. She denied nagging the petitioner and expressed the view that if the petitioner had a nervous breakdown then it was due to overwork and lack of leave which the petitioner had commuted for cash payment. In one beating, she lost some front teeth. She said that the petitioner left the matrimonial home in 1958 when she discovered that the petitioner had put a young school girl in the family way and had questioned the petitioner about it. She also stated that the petitioner returned late at night sometimes in the early hours of the morning worse for drink and at times slept in the living room with his working clothes on. These states of inebriety occurred when the petitioner was in charge of certain broadcast programmes which took him into the society of night life. In October 1959 the petitioner accused her of infidelity and called her a harlot. On her return from hospital the petitioner left with the children, the cook and houseboy and with certain crockery and glassware and left her alone a sick woman in the matrimonial home. The last woman who came into the picture was a Miss Doris Bannerman who has been named in the petition as an adulteress. This piece of evidence is that of the respondent alone.
In cross-examination certain suggestions were put forward by counsel for both parties which were intended to show that both parties had indulged in what I would call “promiscuous concupiscence”—that is uninhibited indulgence in sexual lust with all and sundry. I was stunned as some of the revelations had not been pleaded. Before counsel addressed the court I thought it was my duty in the interest of sex morality in Ghana to ask all non-relatives to leave the court as I had every cause to apprehend that counsel might be overzealous in dilating on the sexual prowess of each party. Fortunately, both counsel addressed the court, in the absence of the public, with moderation and with a sense of propriety and I wish to express my thanks to both counsel in that respect.
I have considered both pieces of evidence very carefully and I must confess that it is difficult to say who is speaking the truth. On the question of cruelty my attention was called to a definition of legal cruelty in Russell v. Russell.1 In my humble opinion, there is no definition of legal cruelty in that case, and Lord Davey stated the law as follows:
“ . . . the Court is not entitled to adopt its own view of what degree or kind of cruelty, or what description of behaviour or conduct by one spouse towards another, should be a ground of judicial separation. But by s. 22 of the Divorce Act, 1857, it is thrown back upon the principles acted on by the Ecclesiastical Courts in the exercise of their jurisdiction before the Act . . . The reported decisions of these Courts . . . [and] the general idea which, I think, underlies all those decisions is that, while declining to lay down any hard and fast definition of legal cruelty, the Courts acted on the principle of giving protection to the complaining spouse against actual or apprehended violence, physical ill-treatment, or injury to health.”
Lord Herschell in Russel v. Russel (supra) referred to the judgment of Sir Creswell Cresswell in Tomkins v. Tomkins,2 where after quoting from the judgment of Lord Stowell in Evans v. Evans,3 Sir Creswell Cresswell stated4:
“. . . ‘Danger of life, limb or health has continued in substance the rule upon which the Courts have acted . . . There must, however, be bodily hurt, not trifling or temporary pain; or a reasonable apprehension of bodily hurt . . . This is a clear, and, I apprehend, an accurate statement of the law administered by the Ecclesiastical Courts.”
If then, as I have opined, that there is no precise definition of legal cruelty, what tests are there to apply?
In Horton v. Horton5 Bucknill J. thought that
“Mere conduct which causes injury to health is not enough. A man takes the woman for his wife for better, for worse. If he marries a wife whose character develops in such a way as to make it impossible for him to live happily with her, I do not think he establishes cruelty merely because he finds life with her is impossible.”
Lord Normand in King v. King6 stated one principle as follows:
“The general rule in all questions of cruelty is that the whole matrimonial relations must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. Wilful accusations may be made which are not true and for which there are no probable grounds, and yet they may not amount to cruelty… the impact of the personalty and conduct of one spouse upon the mind of the other; and he weighed all the incidents and quarrels between them from that point of view.”
Denning L.J. (as he then was) in Thompson v. Thompson7 thought that to constitute cruelty the conduct complained of must be of a grave and weighty character. It is no good pleading trivial incidents which are only the ordinary wear and tear of married life or do no more than show that the parties are at arm’s length. These are some of the tests which I intend to apply to the evidence in the present petition. It is also settled law that cruelty must be proved beyond reasonable doubt. (See Bater v. Bater8 and Galler v. Galler.9) In every matrimonial offence, whatever it is, if possible the evidence of the spouse making the charge should be corroborated. But the necessity for corroboration is not an absolute rule of law and while corroboration is desirable and usual, there is not rule which prevents a tribunal from finding an offence proved in the absence of corroboration. However some authorities seem to establish that in any charge of cruelty corroboration should be looked for. (See Lawson v. Lawson10 and Marjoram v. Marjoram).11 In cruelty cases, corroboration may be afforded by the evidence of friends, neighbours or doctors who have seen bruises or other external manifestations. In this petition, counsel for the respondent argued that the petitioner’s evidence with regard to the respondent’s cruelty had not been corroborated and relied on the authority of Majolagbe v. Larbi12 that where corroborative evidence must exist the court expects a party who makes an averment (which the other side denies) to call such corroborative evidence in support of his own. Counsel for the petitioner in reply cited Kafton v. Kafton13 where Tucker L.J. stated that: “It is true that in cases of cruelty it is the practice of the court to require corroboration, but
it is not a rule of law. It is merely a matter of practice.” Cohen L.J. in the same case, stated that it was a matter within the discretion of the court and that the need for corroboration was necessarily greater in an undefended case (see Judd v. Judd14) than in a defended case where the petitioner’s evidence though uncorroborated is tested by cross-examination and can be measured against the evidence that is given on the other side. The petitioner’s counsel also relied on the case of Manu v. Manu15 in which the Court of Appeal had ruled that the absence of medical evidence of physical injury in no way detracted from the petitioner’s right to a decree. In that case two witnesses corroborated the evidence of the petitioner and the Court of Appeal thought the medical evidence was unnecessary.
In this petition, the husband maintains that as a result of the respondent’s persistent nagging his health broke and he was in hospital for about three months. The respondent denies this but attributes the breakdown in health to overwork and lack of rest. The petitioner accuses the respondent of assaulting him and using obscene language. The respondent denies this and counter-accuses the husband of beating her. Both the petitioner and the respondent appeared to me to be well-educated persons with a social status which is not low. The comportment of each in the box was refined and restrained. In all respects they are at par but they have given conflicting pieces of evidence. What right have I to believe one and disbelieve the other in the absence of corroboration? I think it will be unsafe to rely on the evidence of each of them on the ground of cruelty. Henn Collins J. in Atkins v. Atkins16 stated as follows:
“One knows that dropping water wears the stone. Constant nagging will become completely intolerable, and though in the course of married life you may be able to point to no single instance which could possibly be described as, in common parlance, ‘a row,’ yet nagging may be of such a kind, and so constant, that it endangers the health of the spouse on whom it is inflicted.”
In Atkins v. Atkins (supra) there was medical evidence that as a result of this constant nagging the husband’s health was affected. In this petition, the husband has not produced any medical evidence that he was admitted in hospital as a result of the nagging. And assuming that on the authority of Manu v. Manu (supra) medical evidence is dispensable, he has failed to produce any other witnesses to corroborate his evidence. I do not therefore consider that the ground of cruelty has been proved. If that is the case, the respondent cannot also be accused of constructive desertion. I do not also consider that the admission of faults in exhibit B by the respondent is an admission of legal cruelty.
The respondent did not pursue the ground of cruelty in her cross-petition because counsel thought the alleged acts of cruelty had been condoned. The court is therefore left with the grounds of desertion and adultery. The respondent testified that the petitioner left the matrimonial home in December 1959 without her consent or agreement and that she asked her sister to persuade the petitioner to return to the matrimonial home. She also reported the alleged desertion to the petitioner’s head of family. But the petitioner testified that when he left, the respondent was happy and even she asked him to take away the children. In this respect too there is no corroboration that the respondent wanted the petitioner back. The
sister who was sent to persuade the petitioner to return has not come forward to testify. My feeling is that in the absence of corroboration, the respondent allowed the petitioner to leave the matrimonial home, and she cannot thereafter complain. I do not therefore think that the charge of desertion in the cross-petition has been satisfactorily proved by the respondent.
I have considered the whole marriage from its celebration up to December 1959 and my conviction is that both the petitioner and the respondent possessed what is known as incompatibility of temperament the true meaning of which is expressed in the Scots phrase “a good couple spoiled,” i.e it was the condition of two normal people who could get on with the rest of the world but not with each other. Incompatibility of temperament is a ground for divorce in some countries with very high divorce rates but it has never been the law in Ghana as it has never been a ground in English divorce law. The intermittent incidents narrated by the petitioner are symptomatic of a woman of a highly strong nature. There are many women of this type and it is inaccurate to describe their conduct as cruel merely because it is distressing and even alarming. There must be weighty evidence to support the charge of cruelty. Hodson L.J. in Jillings v. Jillings17 in the Court of Appeal said:
“[W]hat may be cruelty to one person may not necessarily be cruelty to another. The test was not wholly subjective, and when one talked about a reasonable apprehension of injury to health, it was necessary to apply an objective test.”
However it seems to me that this marriage is now on the rocks and no salvage operations will be of any use to either party. Each party perhaps is anxious to open a new leaf and find himself or herself a new consort without living under the constant apprehension that one party is watching and detecting the other’s escapades in philandering.
In the Scottish case of Jamieson v. Jamieson18 it was suggested that “. . . protection [is needed] from the last straw or even from the penultimate straw which threatens to break the camel’s back, and not only from being laden afresh with another bale of straw.”
So far the charges are at par in the absence of corroboration and that leaves the question of adultery. The petitioner has admitted in evidence his adultery with one Miss Doris Bannerman and therefore my task so far as this charge in the cross-petition is concerned has been disposed of. I would therefore dismiss the petitioner’s prayer and grant the prayer of the respondent in her cross-petition solely on the ground of the petitioner’s adultery with Miss Doris Bannerman and accordingly I grant the respondent a decree nisi to be absolute within three weeks from today’s date.
I have considered the question of custody of the children very cautiously and I am of the opinion that to enable the petitioner to further their education, it is fair that he should have legal custody in view of their ages until they attain maturity. Custody of the two children therefore is hereby granted to the petitioner with a direction that the respondent shall have reasonable access to the children and that each child may spend half of the period of school or college holidays with the respondent provided such child is willing to do so. Forty guineas costs to the respondent.
DECISION
Cross-petition granted.
S. A. B.
