HIGH COURT, ACCRA
DATE: 26 APRIL 1967
BEFORE: EDUSEI J.
CASES REFERRED TO(1) Higgins v. Higgins and Bannister [1943] P. 58; [1943] 2 All E.R. 86; L.J.P. 55; 169 L.T. 45; 59
T.L.R. 294; 87 S.J. 193.
(2) Beard v. Beard [1946] P. 8; [1945] 2 All E.R. 306; 114 L.J.P. 33; 174 L.T. 65; 61 T.L.R. 555, C.A.
(3) Larbi v. Larbi, High Court, Accra, 3 March 1967, unreported.
(4) Jamieson v. Jamieson [1952] A.C. 525; [1952] 1 T.L.R. 833; 116 J.P. 226; [1952] 1 All E.R. 875;
1952 S.C. (H.L.) 44, H.L.
(5) Manu v. Manu [1959] G.L.R. 21, C.A.
NATURE OF PROCEEDINGS
PETITION for divorce on the ground of cruelty. The facts are sufficiently stated in the judgment.
COUNSEL
S. Kwami Tetteh for the petitioner.
E. N. Moore for the respondent.
JUDGMENT OF EDUSEI J.
The petitioner and the respondent were married on 17 December 1960 at the A.M.E. Zion Church, Cape Coast. Before this marriage both parties had had some education in the United Kingdom, the petitioner having studied for three years at Liverpool Calder College for a diploma in domestic science. She holds another diploma in the same discipline from an Australian institution where she underwent some training. There are two children of the marriage-Nana Ekua Abiw Osei-Koom born on 15 June 1961 and Kwamina Osei-Koom, Jnr., born on 3 February 1963. The petitioner is now a teacher at the Winneba Specialist Training College and the respondent is acting principal of Kikam Technical Institute in the Western Region. The incident which led to the presentation of the divorce proceedings originated from Kumasi where the petitioner and the respondent were working as teachers in 1961. They agreed to have a common fund by bringing their monthly salaries together for the upkeep of the matrimonial home subject to certain payment to be made to each spouse. It appears from the evidence that this arrangement worked well for some time until September 1964 when the petitioner
[p.276] of [1967] GLR 274
realised that she was worse off having regard to the fact that she was receiving a higher salary than her husband. From the evidence there can be no doubt that the arrangement as regards the putting together of their financial resources worked to the greater advantage of the respondent. The petitioner decided therefore not to abide by this arrangement, and on 27 January 1965 a quarrel ensued between the petitioner and the respondent at their home at Danyame in Kumasi. The genesis of the quarrel was that the petitioner refused, on request by the respondent, to show her savings bank book to him and this quarrel to use the words of the petitioner: “lasted till 1 a.m…. He left and closed all the doors of the rooms of our bunglow at Danyame, Kumasi. He returned and pounced on me as I lay in bed; gave me a slap on the right cheek followed by another on the left. I got out of bed where I had been lying when this assault on me took place with a view to defending myself. As I tried to get out of the bed he held my throat and pinned me down to the bed and he slapped me with the other hand; I managed to get hold of his finger and bit it. As his finger was in my mouth he managed to get hold of a shoe which was near the bed and hit me so hard on my head that I became dazed.He went to the wardrobe and pulled out my personal effects and scattered them on the floor of the bedroom. I went to the bathroom to wash my face and realised that blood was coming out from my nose and mouth.”
The respondent admits that there was this quarrel on 27 January 1965 and that the cause was her wife’s failure to show him her savings pass book. His version of the incident of 27 January 1965 was as follows:
“I wanted to see the savings bank book but she refused to let me see it. I followed her to the bedroom and asked for the savings bank book and she would not talk to me. I held her hand and asked-’Comfort are you not the one I am speaking to?’ She threw my hand away and abused me and with my left hand pointing at her I said that I had not been checking her and that was why she was misbehaving towards me and suddenly she held my left forefinger and bit it. I asked her to release my finger which was in her mouth but she would not but continued to bite me hard and so I gave her a knock on the head with a view to forcing her to release my finger. She released my finger and I said to her – ‘You have tempted me to use my hands on you for the first time; so do not do such a thing again, Comfort I am very sorry’.”
[p.277] of [1967] GLR 274
I have no doubt at all in my mind that the story of the petitioner is the more probable having regard to the events prior to this incident and I prefer her version to that of the respondent I have no reason to doubt the veracity of her evidence; she struck me as a witness of truth when I consider the frankness with which she narrated her whole evidence. I am tempted to say that the respondent might as well tell his version of the incident of 27 January 1965 to the marines. As a result of this assault the petitioner left for Cape Coast the following day with some of her belongings. She, however, returned to her husband on 1 February 1965 as a result of the intervention of the authorities of Wesley College where the petitioner was a teacher. Again on the evening of 2 February 1965 a quarrel arose because the respondent demanded the petitioner’s January salary and she refused to give it to him. The respondent there and then held her and threw her against a wall of their room and as she was coming from the wall he confronted her and gave her two slaps on either cheek. This piece of evidence stands uncontroverted, and even if 27 January 1965 incident can be said to have been condoned by the petitioner on her return to the matrimonial home on 1 February 1965, I am prepared to uphold counsel’s submission that the incident of 2 February 1965 did revive the January incident: see Higgins v. Higgins and Bannister [1943] P. 58 and Beard v. Beard [1946] P. 8, C.A.
I have now to consider whether the incidents of January and February 1965 did amount to cruelty in law. Cruelty, to be a ground for dissolution of marriage, may be defined as wilful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger. In deciding whether there is cruelty, the social position of the parties and their mental and physical condition must be taken into consideration. In the case of Larbi v. Larbi, High Court, Accra, 3 March 1967, unreported, I had occasion to refer to certain principles worthy of consideration when cruelty is the ground for dissolution, and in that judgment I said:
“Cruelty must be regarded in relation to the particular spouse because what would be cruel to one spouse might not be cruel to another. One cannot have a conception of cruelty in the abstract unrelated to its effect since people are infinitely varied in their make-up and what might be cruel to one might make no impression at all on another. The court in my view must estimate the standard of culture of the parties, their habits of expression and actions and their interaction in daily life.”
Thus Lord Normand in Jamieson v. Jamieson [1952] A.C. 525 at p.
[p.278] of [1967] GLR 274 535, H.L. had this to say:
“and for my part I am respectfully inclined to accept the Lord President’s view that the conduct alleged, must be judged up to a point by reference to the victim’s capacity for endurance, in so far as that capacity is orought to be known to the guilty spouse’.” I am in entire agreement with this statement. Here are man and woman trained in the best traditions of English life and urbanity and their standard of culture, no doubt, is on a higher plane than that of a couple quartered in a remote Ghanaian village. The petitioner is a well educated woman holding a diploma in her profession from recognised institutions in Liverpool and Australia, and there is no doubt whatsoever that she must be a person of considerable culture and intelligence. In my opinion, conduct of the kind complained of would be most likely to raise in her some fear for her safety and I may here also advert to the threat meted out by the respondent to the petitions on the morning of 28 January 1965 to the effect that if the petitioner failed to bring home her savings bank book he the respondent, would “finish her” and she understood this to mean that the respondent would kill her. Such conduct, I think, as she described, having regard to her class and standing, amounted to intolerable mental cruelty.
Counsel for the respondent has invited this court to reject, in the absence of medical evidence, the petitioner’s narrative relating to the oozing of blood from her nose and mouth as a result of the beating of 27 January 1965 because there was a denial of this allegation by the respondent. I have already indicated in this judgment my reasons for the acceptance of the petitioner’s evidence of the incident of 27 January 1965 in preference to that of the respondent, and I only wish to add that the absence of medical evidence of physical injury in no way detracts from the petitioner’s right to be protected by a decree of the court for the dissolution of her marriage: see Manu v. Manu [1959] G.L.R. 21 at p. 22, C.A. Again Mr. Moore, counsel for the respondent, drew the attention of the court to the necessity of corroboration in respect of the January beating and concluded that there was no such corroboration and this should disentitle the petitioner to her relief, I have no hesitation at all to say that there is corroboration not only of the January incident but also of the assault on the petitioner on 2 February 1965.
This February assault was indeed the last straw that broke the camel’s back for the petitioner left the matrimonial home on 3 February for Accra; the corroboration is provided by the respondent’s own letter (exhibit B) dated 11 March 1965 which he wrote to the petitioner and part of which reads thus:
[p.279] of [1967] GLR 274
“Darling dear, may I kindly ask you to forgive and forget all that I have done against you which has unfortunately strained relationship between you and me … Therefore darling, let us bury the hatchet in the interest of these two dear loving children of ours…. Darling, I repeat, forgive and forget all that I have knowingly or unknowingly done against you. No matter how deep your feelings may be, I earnestly entreat your pardon to take into serious and urgent consideration the well-being of Nani and Sonny and forget all that has happened and return to their daddie with them as early as you possibly can … Dee, kindly bear in mind that there is not always a smooth sailing on the sea of any marital life. I have had my lesson from what has happened, and I promise, Darling that I will, repeat I will, never give you any cause for complaint when you come back to me.”
What further corroboration is required than this open admission of ill-treatment perpetrated against the, petitioner by the; respondent?
In conclusion I am satisfied on the totality of the evidence before me that the petitioner has established cruelty and it is adjudged that she is entitled to a decree of dissolution of the marriage as prayed in her petition. A decree nisi is hereby granted, to be made absolute on the expiration of three weeks from today.
The petitioner has asked this court to give her the custody of the children of the marriage, who have been with her since she left the matrimonial home in February 1965. I do not entertain any doubts that having regard to the sentiments expressed in exhibit B, the respondent is very much interested in his children; but the paramount consideration in these matters is the welfare of such children. Considering their tender ages (they were born on 15 June 1961 and 3 February 1963) and, in the absence of any evidence of their beingbetter cared for by the respondent, I am of the opinion that the children, Nana Ekua Abiw Osei-Koom and Kwamina Osei-Koom, Jnr., should stay with their mother, the petitioner, who perhaps with the permission of the hymnist, sings and ponders over the famous melody-”Can a woman’s tender care cease towards the child she bare?”
The costs of this petition are assessed at N¢150.00 in favour of the petitioner against the respondent.
DECISION
Petition for divorce granted.
S.E.K.
