QUARTEY v. QUARTEY AND ANOTHER [1972] 1 GLR 6
HIGH COURT, ACCRA
Date: 30 JUNE 1971
BEFORE: KINGSLEY-NYINAH J.A.
CASES REFERRED TO
(1) Aduke v. Aiyelabola (1942) 8 W.A.C.A. 43.
(2) Kirwah v. Kwofi (1894) 1 Ren. 112.
(3) Allen v. Allen and Bell [1894] 1 P. 248; 63 L.J.P. 120; 70 L.T. 783; 42 W.R. 459; 10 T.L.R. 456; 6
R. 597, C.A.
(4) Loveden v. Loveden (1810) 2 Hagg. Cons. 1.
(5) Farham v. Farham (1925) 41 T.L.R. 543; 133 L.T. 320.
(6) Ginesi v. Ginesi [1948] P. 179; [1948] 1 All E.R. 373; [1948] L.J.R. 892; 112 J.P. 194; 64 T.L.R.
167; 92 S.J. 140; 46 L.G.R. 124, C.A. (7) Ross v. Ellison or Ross [1930] A.C. 1; 96 L.J.P.C. 163; 141 L.T. 666.
(8) R. v. Golathan (1915) 84 L.J.K.B. 758; 112 L.T. 1048; 79 J.P. 270; 31 T.L.R. 177; 24 Cox C.C.
704; 11 Cr.App.R. 79, C.C.A.
(9) Getty v. Getty [1907] P. 334; 76 L.J.P. 158; 98 L.T. 60.
(10) Weinberg v. Weinberg (1910) 27 T.L.R. 9.
(11) White v. White and Jerome (1890) 62 L.T. 663. [p.8] of [1972] 1 GLR 6
(12) Majolagbe v. Larbi [1959] G.L.R. 190.
(13) Spring v. Spring and Jiggins [1947] 1 All E.R. 886.
(14) Constantine Steamship Line v. Imperial Smelting Corporation Ltd.; The Kingswood [1942] A.C.
154; [1941] 2 All E.R. 165, H.L.
NATURE OF PROCEEDINGS
SUBMISSION of no case to answer at the conclusion of a petitioner’s case in a petition for divorce on the ground of adultery, before Kingsley Nyinah J.A. sitting as an additional judge of the High Court.
COUNSEL
S. K. Tetteh for the petitioner.
E. N. Moore for the respondent.
Harold Darko, with him Martin Ayisi, for the co-respondent.
JUDGMENT OF KINGSLEY-NYINAH J.A.
The parties this cause were joined together as husband and wife in holy wedlock at the Ridge Church,
Accra, on 26 December 1964. Prior to that ceremony the respondent-wife had been customarily married to the petitioner-husband in 1957. Some four years after the solemnisation of their marriage, and exactly four children later, the husband presented this petition seeking for a dissolution of this union upon the single, urgent and serious ground of adultery against his wife, the mother of his children, his petition averring inter alia as follows:
“(7) That the respondent has since the celebration of the marriage committed adultery with the co-respondent, Plockey. (8) That on 18 January 1966, the respondent committed adultery with the co-respondent at Asylum Down, Accra.” After he had made clear these particulars as to the date and place of this grave matrimonial offence, the petitioner sought to set the seal of authority upon his allegations with the following statement, “(9) That the respondent hereafter confessed the said adultery to your petitioner.” The respondent-wife, of course, by her answer stoutly denied these allegations in the following terms:
“(5) That she denies paragraphs (7) and (8) of the petition.
(6) That on 18 January 1966, the co-respondent gave her a lift and she went to a house at Asylum Down but denies anything improper took place at the said house. (7) That she admits paragraph (9) of the petition but says the alleged confession made in writing was obtained by duress. Explaining the form of that duress, the respondent averred that, “when she refused to admit having committed adultery with the co-respondent the petitioner set upon her and beat her severely” behind closed doors. Wherefore, “in order to avoid further assaults on her she wrote a confession dictated to her
by the petitioner.” Added to all this, the respondent cross-petitioned for a dissolution of her marriage with the petitioner on the very same ground charged by her husband, namely, adultery with Miss Martha Abbey, the woman-named. [p.9] of [1972] 1 GLR 6 Thus was issue well and truly joined between this man, Albert Kwartei, and this woman, Phyginia Baaba, and this court is called upon to determine whether or not the parties’ allegations have been proved, and which of them, the husband or the wife, should be entitled to succeed upon their separate actions.
But at this half-way stage when the petitioner has closed his case, this court has been called upon,
following a submission of no case, to say whether this action must run its full course and the respondent and the co-respondent also be heard before judgment; or whether the trial should be curtailed and stopped and a decision given without hearing the other, the respondent’s, side because the evidence thus far adduced by the petitioner in support of his case is not such as ought to bind the respondent or the co-respondent or both to an answer. In fine, I am being asked to adjudicate upon the facts as now before me, because the allegations of adultery, made by the petitioner against his wife and against the co-respondent have not been established. Both counsel for the respondent and for the co-respondent elect and are content not to call any evidence. They have submitted no case. They rest their defence upon the legal arguments urged and centred around the fact that the petitioner’s case does not qualify as a prima facie one.
It is a trite principle of law that where a plaintiff has made out a prima facie case, the defendant must
make his defence to that case. See Aduke v. Aiyelabola (1942) 8 W.A.C.A. 43. In Kirwah v. Kwofi
(1894) 1 Ren. 112 it was held that the plaintiff having made out a prima facie case, it was the duty of the court to hear the defendant before proceeding to judgment. In this instant case, therefore, my decision, whether for or against the urgent submission of no case, will depend upon, and be influenced by, the nature and the quality of the evidence thus far marshalled in support of the petitioner’s charge of adultery against his wife, and also involving the co-respondent.
Adultery is defined by the Concise Oxford Dictionary (4th ed.), p. 19 as “Voluntary sexual intercourse of married person with one of the opposite sex other than his or her spouse.” It is also defined by Halsbury’s Laws of England (3rd ed.), Vol. 12, at pp. 235-236, to mean, “consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse.”
Rayden on Divorce (7th ed.), at p. 131 makes it quite clear and states that the offence is committed when it takes place “between a married person and a person of the opposite sex.”
The burden of proving adultery lies upon the party who alleges it, for there stands in favour of the spouse against whom this grave misconduct is charged, a presumption of innocence. As to the standard of proof required to establish this offence, the state of the law is that, “Adultery must be proved to the satisfaction of the Court, that is beyond reasonable doubt; the evidence need not reach certainty, but it must carry a high degree of probability.” See Halsbury’s Laws of England (3rd ed.), Vol. 12, p. 237, para. 445. In Allen v. Allen and Bell [1894] P. 248 at [p.10] of [1972] 1 GLR 6 p.252, C.A. Lopes J. using the words of Sir William Scott in another case (Loveden v. Loveden (1810) 2
Hagg. Cons. 1 at p. 2) said, “ it is very rarely indeed that the parties are surprised in the direct fact of
adultery. In every case almost the fact is inferred from circumstances which lead to it by fair inference as a necessary conclusion.”
That inference, the deduction of adultery, has been held to arise when there is proof of the disposition of the parties to commit that marital misconduct, together with the opportunity for committing the said adultery: see Farnham v. Farnham (1925) 41 T.L.R. 543. It has also been held that adultery must be proved with the same degree of strictness as is required for the proof of a criminal offence in a criminal case: see Ginesi v. Ginesi [1948] P. 179, C.A.
Although, therefore, no direct evidence has here been adduced by the petitioner showing that his wife and the co-respondent were discovered that afternoon at Asylum Down locked in the illicit and adulterous embraces of each other, there still remained, nevertheless, the duty the husband had to discharge: to lead, in support of his case, evidence that is strict, satisfactory and conclusive enough to satisfy the legal conviction of this court for, as Rayden in his learned treatise on Divorce (7th ed.), states at pp. 133-134, para. 104:
“The burden of proof is throughout on the person alleging adultery, there being a presumption of innocence.
A suit for divorce is a civil and not a criminal proceeding, but the same strict proof is required of adultery as is required in a criminal case before an accused person is found guilty; that is, the tribunal must be satisfied on proof beyond all reasonable doubt.”
In Ross v. Ellison or Ross [1930] A.C. 1, H.L. Lord Buckmaster, making reference to the proof of
adultery, said, inter alia, at p. 7:
It is a matter of inference and circumstance. It is easy to suggest conditions which can leave no doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by documents, e.g.
letters and diaries, or antecedent conduct that the association of the parties was so intimate and their
mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.”
At p. 21 of the very same report, Lord Atkin also said, inter alia:
“But from opportunities alone no inference of misconduct can fairly be drawn unless the conduct of the parties prior, contemporaneous, or subsequent justifies the inference that such feelings existed between the parties that opportunities if given would be used for misconduct.”
It becomes clear from all this, therefore, that the burden upon the petitioner to establish an affirmative case of adultery requires the adducement, by him, of proof that is at once cogent and reasonably conclusive. That [p.11] of [1972] 1 GLR 6 onus cannot be lightly shrugged off by evidence or proof that is tainted, indifferent, suspicious or uncertain.
Let us now turn to the evidence thus far adduced to see whether or not it attains to the required level and standard of proof so necessary in a case such as this instant one. The burden of the petitioner’s evidence was that, as a result of a telephone call he had from a man who described himself as shoemaker Amoo, he took his wife, the respondent, and a friend of his called Mr. Abudulai, to a Shell petrol filling station at Asylum Down, Accra, where they made a rendezvous with the shoemaker. And there, said the petitioner:
“In the presence of my wife and Mr. Abudulai, Mr. Amoo told me that at lunch-time that day, 18 January 1966 at about 12.45 p.m., a car registered as GF 1060 came with my wife to a house close to his workshop at Asylum Down. The car stopped and a man came out. The man went into the house and came back, opened the door for my wife to come out of the car, and locked up the car while my wife was going into the house.
The man then followed the woman into the house. Mr. Amoo said he was then together with five other people including my cousin Lartey Mingle. . .”
Continuing, the petitioner testified that when they got back to the matrimonial home and he and his wife were alone, he asked his wife to explain the whole affair to him; whereupon the respondent, his wife, made the following confession, “Albert, please forgive me. I am the one the boys saw at Asylum Down … I was going to Makola Market during lunch-time. When I got to Club Road … an Opel car, No. GF 1060 stopped by the side.”
According to the petitioner he then asked his wife who the driver of that car was and she said:
“His name is Plockey. He works in the Bank of Ghana Issue Department. He asked me where I was going … He asked me to get into the car. In the car he was nice to me and asked me if I did not feel the weather was warm. I agreed that it was warm and then he told me normally, when the weather was warm, he has a place where he rests. So if I liked we could go there to rest. And so we drove to Asylum Down and went into a room in a house.”
Continuing the petitioner said:
“At that stage my wife went down on her knees, on the floor, and started to plead earnestly with me, saying, ‘Albert, forgive me. I do not consider what I have done as adultery, because though Plockey was sleeping with me he did not ejaculate. Lartey Mingle interrupted us. A lot of things happen in town, worse things happen in town these days; what I have done is a small thing, so you better forget it’.”
Since this confession, together with a subsequent one made at a family gathering shortly after the
petitioner’s return from the United [p.12] of [1972] 1 GLR 6
States of America is the foundation upon which the petitioner raised the entire superstructure of his action against his wife, and against the co-respondent as well, it was imperative that his evidence as to his wife’s misconduct, and her confession thereof, be substantially corroborated by convincing and reliable evidence. It is the law, also, that even though there be no confirmatory proof in support of a wife’s admission of adultery, the court may act upon that admission, but only subject to the following vital conditions:
(a) that the court is satisfied that the evidence is trustworthy;
(b) that the evidence amounts to a clear, distinct, and unequivocal admission of adultery.
Having said all these things against his wife and against the co-respondent, the petitioner said, answering questions from the co-respondent’s counsel, “I was not, myself, at the scene of the adultery. All my information is based on what Mingle told me, and on what my wife confessed to me.” And he also agreed, under cross-examination, that, “The co-respondent was not present when my wife confessed her adultery to me.”
Since ocular proof of the respondent’s alleged adultery had not been forthcoming, I formed the
impression, when the petitioner’s first and only witness entered the box, that he would supply certain vital information missing from the evidence of the petitioner which would lead me to infer and to arrive at the necessary conclusion that the misconduct complained of and averred did, in verity, take place. That first witness was Julius Lartey Mingle, the petitioner’s very own cousin. He testified as follows, “I do remember 18 January 1966. Some time between 1.00 and 1.30 p.m. I was sitting with some friends at Asylum Down when a car stopped at a distance of about 50 yards from where we were.” After mentioning Mr. Amoo, a shoemaker, as one of the friends who were with him, Lartey Mingle went on:
“The car was driven by Mr. Plockey who works at the Bank of Ghana. He was not alone in the car; he had a woman with him in his car. … When the car stopped Mr. Plockey came out of it . . . and then went up to the house by which he had stopped the car. He returned to the car … and the woman then alighted from the car.
The woman . . . entered into the house. At that point I told my friends … that the woman who went out of the car was the wife of Mr. Quartey, a cousin of mine. I recognised her to be my cousin’s wife when she got down from the car.
After they had both of them gone into the house … I followed my cousin’s wife and Mr. Plockey into the house … I was accompanied by Charlotte, the trotro driver, and the shoemaker, Shoemaker, Mr. Amoo. I left them at the gate and went alone into the house … The landlord’s son directed me to the first door facing the gate. I went … and knocked on it, thrice. At the fourth knock I heard a man’s voice asking from behind the door, ‘Who are you? ‘I replied [p.13] of [1972] 1 GLR 6 and said, ‘I am Mr. Mingle,’ The man then said, ‘Hold on, I am coming.’ And some seconds later the door opened. And I saw Mr. Plockey standing there naked except for a pair of men’s pants that he had on. On his
mouth I noticed smudges of lipstick. The door was not opened wide by Mr. Plockey. It was only about six inches ajar and I could see his face and body.”
At that stage, and if what this witness testified was really true, if he actually saw it the way he narrated it, then one would have expected, quite naturally, either that Lartey Mingle would have rushed past the co-respondent into the room in order that he might see for himself whether there was any woman in there with Plockey, the co-respondent; if there was, then whether that woman was, in verity, Mrs. Quartey, the respondent; and if she was indeed his cousin’s wife, whether she was in an immoral, or a carnally suggestive state of undress or not; and then, having satisfied himself that there was absolutely no mistake as to the identity of the woman he had seen riding in the co-respondent’s car, to have then introduced himself to the two sinners as Mr. Quartey’s cousin, and then furthermore, demanded an explanation from Mrs. Quartey as to what she was doing in that room with the co-respondent, and she a lawfully married woman: Or else, one would have expected that Lartey Mingle, the petitioner’s first witness, would promptly have enlisted the effectual help of his friends, more particularly the trotro driver and Mr. Amoo, the shoemaker, with specific instructions to them not to allow either Mrs. Quartey or Mr. Plockey to leave the house until he had telephoned through to his cousin, the petitioner, and told him of what was happening with Mrs. Quartey at Asylum Down.
Strangely enough, however, Lartey Mingle, the kingpin of the petitioner’s case, did none of the very
significant and naturally-to-be-expected things which would have lent compelling substance to his
evidence, and to the case put forward by the petitioner. Instead, and stranger still, Lartey Mingle said he left the scene and went home, rather to collect his identity card. And when he went back to the scene, he not only permitted himself to be driven by the very same Mr. Plockey in the latter’s car to, and set down at, a point near the Mental Hospital, Accra; but he also agreed not to cause any embarrassment to his cousin’s wife, Mrs. Quartey, by returning to the scene with the co-respondent, Mr. Plockey. And then, still further heightening the utter improbability of his story, this witness said that instead of going, himself, after work, to the petitioner, his cousin, to check on whether his cousin had been correctly informed by Mr. Amoo, the shoemaker, or at all, and then to confirm or augment with more eye-witness detail what he had himself actually seen in that house at Asylum Down, Lartey Mingle rather went back to his house after work that day, and then off to a choir practice.
As I watched and heard Lartey Mingle unburden himself of this narrative, I formed the impression that he was not assisting the court with the truth. He said he had not seen Mrs. Quartey for three years, when he saw her that afternoon at Asylum Down with Plockey. Was not that reason enough why he should have bulldozed his way into that room [p.14] of [1972] 1 GLR 6 to satisfy himself fully that the woman in there with the co-respondent was indeed Mrs. Quartey, his very own cousin’s wife, and there to reintroduce himself to Mrs. Quartey, if at all that was necessary?
Dealing the petitioner’s cause a fatal body-blow, Lartey Mingle testified that he was not at all suspicious of what he said he saw that day. And he went on and agreed, under cross-examination, that, “At a meeting subsequent to these incidents I did say that there was no misconduct on the part of Mrs. Quartey.” It is a matter of no little significance that the witness stood his ground and repeated that statement when he was re-examined by the petitioner’s counsel. That answer was one of the unkindest cuts of all to the petitioner’s case because it not only very materially contradicted the petitioner’s whole stand against his wife, the respondent, but it also severely undermined the credibility of the petitioner himself who said under cross-examination, “It is untrue that at that meeting Mingle denied that Plockey had had sexual intercourse with my wife. He never made any such denial.”
Well, if Mingle “never made any such denial” at that meeting, Mingle most certainly never made any
admission or said here, on oath, that his cousin’s wife, the respondent, had either committed adultery with Plockey, or else had behaved in such a way that necessarily points to any misconduct having taken place.
Of the material fact that Lartey Mingle was a liar on essential issues, I am quite convinced, because he answered simple and straight-forward questions with unnecessary hesitation, with that momentary dubitation that carries with it the unmistakable impress of falsehood and mendacity. His evidence was not at all reliable or trustworthy. That Lartey Mingle may indeed have been at Asylum Down that day; that he may in truth, have seen the respondent, his cousin’s wife, riding in the co-respondent’s car that afternoon — a fact never disputed or challenged by the respondent herself—all this, I readily concede. But that the petitioner’s very own cousin, and his only witness, Lartey Mingle, saw and heard the incidents he said he witnessed, commencing from when he said the respondent followed Plockey, the co-respondent, into the house (of whose description as to number, area, or location there never was the slightest evidence) up to his alleged confrontation with the co-respondent — all that I take with a very large grain of salt and reject as being highly coloured, and a brazen-faced lie perpetrated merely to give a semblance of authenticity and truth to the weak and febrile charge of adultery levelled by the petitioner against the respondent, his wife.
Even if Lartey Mingle’s evidence about the stains of lipstick on the co-respondent’s face is believed, that alone, without much more damning evidence, would not be conclusive proof of the allegation of adultery made. Indeed, I am ready to concede that those misplaced blotches of feminine beauty-aid and make-up on the face of the co-respondent may be evidence of the co-respondent and the respondent — if she was the woman in the room with him — indulging in an orgy of kissing as a prelude to their stolen and iniquitous sexual gratification. That is as far as the evidence here present can justifiably take me. The facts and the evidence before [p.15] of [1972] 1 GLR 6 me do not, in my opinion, satisfy my legal conviction enough, or at all, to persuade me to find as a necessary fact, or even to draw the probable inference, that if they kissed and made unrighteous love to each other, it necessarily and conclusively proves, or means, or follows, that they slept together and lost
themselves in each other’s embezzled carnal embraces.
It is my opinion of the whole of Lartey Mingle’s evidence that while it did nothing to avail, and therefore, to advance the petitioner’s cause by affording the petitioner’s allegations trustworthy support and necessary and vital corroboration, it rather enured to the respondent’s benefit and supported her defence that no misconduct ever took place between the co-respondent and herself. It is my view of the evidence of Lartey Mingle, taken against the necessary background of the peculiar circumstances of this case, and together with the evidence of the petitioner himself, that it is so very tenuous, so open to doubt, suspicion and uncertainty, as to be wholly inconsequential and, therefore, unworthy of acceptance as true. What evidence there is does not, in my judgment, go far enough, or at all, to provide any basis for the probable inference, even, that when the respondent rode in the car of the co-respondent, it was in purposeful pursuance of some previous arrangement between them to keep an adulterous, immoral and nefarious assignation at Asylum Down. I am fully satisfied to hold, therefore, that the nature and quality of the evidence marshalled by the petitioner in support of his charge of marital misconduct against his wife falls short of being such as can convince the understanding or satisfy the reason of any rational jury of the fact that adultery was either attempted, or else fully consummated between the respondent and the co-respondent that afternoon.
I will now turn back to the confession of adultery attributed to the respondent by her husband. I have read very carefully the words of the confession. I have weighed and very anxiously considered it against the background of the facts, having special regard not only to the respondent’s denial of misconduct, and to her answer that the confession was extorted, but also and even more important, to the evidence of Lartey Mingle and the petitioner’s very own ready and frank admission that he is in love with Martha Abbey whom he wishes to marry. And in the result I am fully persuaded to view that alleged confession with grave suspicion, and to attach thereto no weight at all.
I have been wondering why the respondent should have troubled, at all, to make that confession since, according to her, and as told this court by the petitioner, she never herself considered that she had done anything amiss. If, as the petitioner told it, she never thought of what had happened as adultery, then I am at a loss to understand just why she should have gone into such details, even mentioning the registration number of the car that took her and the co-respondent to Asylum Down. And then, to cap it all, why should the respondent have gone down and, on bended knees, prayed for forgiveness from her husband for something she never considered wrong?
[p.16] of [1972] 1 GLR 6 From the sharp and disruptive inconsistencies inherent in the words of that confession; from the clear equivocality of those words, strong and cogent data is provided for the necessary inference (which I have no hesitation at all in drawing) that if the respondent uttered the words attributed to her, she not only never wrote them down on any paper herself, but that her admission of that marital misconduct was extorted from her under extremely suspicious circumstances, and that she never attached any special importance to what she said, if at all she said it.
I reject this alleged confession of adultery because, after very anxious scrutiny, I am fully convinced and satisfied that in the extremely peculiar circumstances of this case, it ought not to be acted upon. I have come to this decision because the facts and the evidence persuade me to the view that the confession cannot be really and honestly true.
One decisive fact that I construe adversely against the petitioner is the following evidence about Miss
Martha Abbey. He said, concerning this girl, his very ardent mistress and paramour named by the
respondent in her cross-petition, “I have been in love with her since 1966 to date. I would like to marry her, if I had the chance. I would agree that the only difficulty now is this marriage between myself and my wife.” Let me say at once that this deposition on oath by the petitioner has excited in my mind grave suspicions and doubts as to his bona fides in instituting these proceedings. In one of his letters to the respondent from America, the petitioner committed himself to paper and said he was tired of his wife, the respondent. If it is because of this tiredness that the petitioner has gone to these lengths to try and get rid of his lawfully-wedded wife, Phyginia Baaba, so that he could be freed to marry Martha, then let it be clearly noted that this court will not be party to any suit for a dissolution instituted because one or other of the parties is in love again with someone new, and so has become tired of, or fed-up with, his or her former and regular spouse.
Words such as “I do not consider what I have done as adultery”; “A lot of things happen in town, these days”; “What I have done is a small thing, so you better forget it” do not put the alleged confession completely beyond doubt or uncertainty. Those words are so equivocal, they make the entire confession so ambiguous. They tend, in my view, and having pertinent regard to the respondent’s answer, to prove the truth and honesty of the respondent’s defence. These words lead me to conclude that if the respondent did in truth confess in the way and the manner the petitioner says she did, she never confessed to the allegation of adultery. It has been held that, “No man is to be convicted on a plea which is ambiguous. If there is any ambiguity it is to be taken as a plea of not guilty … He must not be taken to have admitted his guilt unless he does so in unmistakeable terms: “See R. v. Golathan(1915) 11 Cr.App.R. 79 at p. 80, C.C.A. I adopt and confirm this for the purposes of this case and I hold it utterly irrelevant that the authority is a criminal one.
But over and above all this, and of much greater significance and decisiveness in this case, is the telling and negativing absence of necessary [p.17] of [1972] 1 GLR 6 corroboration of the petitioner’s allegations of adultery against his wife. The state of the law, on this point is to be found in the headnote to Getty v. Getty [1907] P. 334 which was cited in Weinberg v. Weinberg
(1910) 27 T.L.R. 9. It is as follows:
“Although it is the general practice in matrimonial cases not to act and grant relief upon uncorroborated confessions of adultery, there is no absolute rule of practice and no rule of law precluding the court from acting upon such uncorroborated evidence.
The true test seems to be whether the Court is satisfied from the surrounding circumstances in any particular and exceptional case that the confession is true, If so satisfied, it is open to the court to grant relief, notwithstanding the absence of independent corroborative testimony.”
Giving evidence about that confession, the petitioner gave an express indication of the fact that the
respondent’s confession was written out by herself. My suspicion deepened when that vital document was neither tendered in evidence by the petitioner, nor was its non-production explained to the court. I do not think, therefore, that I can with honest conviction or clear conscience, say that I am so satisfied of the truth of this alleged confession as to hold the respondent to it.
If all that the petitioner said was told him about his wife, the respondent, did really happen and is,
therefore, worthy of acceptation as true — that the respondent and the co-respondent were seen entering a house together and that, shortly afterwards tell-tale smudges of lipstick were found on the co-respondent’s face, and the respondent later made a series of confessions and admissions — then why was not the shoemaker, Mr. Amoo, who peddled that disparaging information to the petitioner over the telephone, and also later allegedly repeated it in the respondent’s presence, called with other vital and material witnesses, in convincing support of the petitioner’s cause herein? And why, also and still further, did not the petitioner fire any questions at his wife at the Shell filling station, Asylum Down, when she was face-to-face with Mr. Amoo, the shoemaker, to satisfy himself as to the truth, or otherwise, of the shoemaker’s allegations? Strangely enough, the petitioner did nothing at all at that rendezvous, and in the presence of his friends, to get some open and voluntary admission of guilt, or a denial, no matter how weak, from his wife. Instead the petitioner said, and this I hold having pertinent regard to the circumstances of this case detracts greatly from the substance of his allegations against his wife, “While Mr. Amoo was telling me all this in the presence, and to the hearing of my wife, I kept watching her. My wife just stood there and she said absolutely nothing . . . At that stage I also did not ask her anything.”
The petitioner’s silence, when the situation clearly demanded a solemn, pointed word from him, greatly weakened his evidence of that alleged private and covert confession made to him by his wife. To my mind, a public admission of guilt made at the Shell filling station, Asylum Down, and in the presence of the petitioner and his friends, Messrs. [p.18] of [1972] 1 GLR 6 Abudulai and Amoo, the shoemaker informant, would have been far more convincing and reliable, and more readily acceptable, if any of those persons, then present and hearing it, had come forward and given
clear and unbiased evidence in confirmatory support thereof, than the alleged confession made to the
petitioner alone in the matrimonial bedroom.
I do not set any store by the petitioner’s evidence that while his informant, Mr. Amoo, was telling his
narrative the respondent just stood there and she said absolutely nothing. But I do take very seriously the fact that he also did not ask his wife anything. It is my view that the circumstances as then prevailing clearly dictated that the petitioner should have asserted himself as the husband and demanded an answer or explanation from his wife, the respondent. And his wife who was under a solemn duty to honour and to obey her husband would then have been bound to make answer either admitting, or else denying, the shoemaker’s allegations.
I am satisfied that the respondent’s silence cannot be taken as an indication of guilt. Whereas she owed no duty to give an explanation to the shoemaker, the respondent was under a solemn marital vow to make a truthful answer to her husband, and anything she had said there, at the filling station, regarding this instant charge of misconduct and in answer to her husband, would have been binding upon her.
As I view the facts and the circumstances of this whole case, much more conviction, much greater weight and credit, would have been lent to the confessions allegedly made by the respondent if, at the very first private opportunity that the petitioner had (at that meeting at Colonel Peter Agbeko’s house) of confronting Plockey, the co-respondent, with the allegations of both Lartey Mingle and the shoemaker, the co-respondent and again the respondent had admitted his, her, or their guilt and left no doubt at all in the minds of those present, and there had been clear proof of this; and if there had existed between the respondent and the co-respondent pointers to undue and improper familiarity and recent opportunity for the gratification of their unrighteous carnal appetites. Said the petitioner on this aspect of the matter:
“A meeting was arranged at Colonel Agbeko’s house. Present at that meeting were Colonel Agbeko and his wife, my father and mother-in-law, Plockey and his wife, two other friends of Plokey’s, my wife and I.
Nothing resulted from that meeting except a row between Plockey and me.”
Instead of having Plockey’s wife and his friend there at that meeting, the attendance of either Mingle or Amoo there, to confront the co-respondent, would have been more profitable for the petitioner. And it is very strange that the petitioner adduced no evidence whatsoever of any questions put by himself to either the respondent, or to Plockey; or by Colonel Peter Agbeko, a lawyer, or by any of the other elders, people then present, to both the respondent and to the co-respondent, to extract some admission, or some denial, from Plockey or the respondent or both. [p.19] of [1972] 1 GLR 6
There was yet another meeting shortly after the petitioner’s return home to Ghana from the United States of America. That was the meeting of the elders of his own and his wife’s families. Some of the people present were named by the petitioner as Mr. Nunoo, Mr. Asumah, Mr. Nathan, his wife’s parents and brothers, his aunts and an uncle. It is my opinion that for the purposes of strict legal proof it was not enough for the petitioner to have said broadly, as he did say in evidence, “At that meeting my wife and I told our respective sides of the story and my wife confessed and admitted that she had been to bed with that man Plockey. She asked that the matter be dropped.”
It was necessary, I hold, that evidence was adduced by one or other of the persons who attended each of the meetings (the one held at the matrimonial home, the very next day after the shoemaker’s report; that held at Colonel Peter Agbeko’s; and the joint-family one) at which any confessions or admissions were made by the respondent, to say, truthfully and honestly, what really took place at those meetings and what part the parties played. Such evidence would have gone a long way and enabled this court to say whether the respondent did say anything at all in answer to the denigrating allegations against her, and if she did, whether what she said could properly be construed and understood as a confession of guilt; or whether what she said was merely an explanation of how she came to be riding in Plockey’s car; or whether she merely admitted driving with the co-respondent to Asylum Down, and no more? Or whether she sought the forgiveness of her husband, and of the elders of their families, for having succumbed to the blandishments of “that man Plockey” and simply lost herself in the adulterous and illicit embraces of Plockey, her paramour? If she made confession of such infidelity as the petitioner here complains of, then it was imperative, in order that that admission might have availed the petitioner, that that fact be established by credible evidence and corroborated by the dependable and incorrupt testimony of one or other of any of those people who saw and heard the respondent utter that acknowledgement of her marital perfidy and misconduct: See White v. White and Jerome (1890) 62 L.T. 663.
Apropos of this I would here make pertinent reference to the now celebrated authority of Majolagbe v. Larbi [1959] G.L.R. 190 which held at p. 191 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.”
In that case Ollennu J. (as he then was) said at p. 192 — and I quote and adopt his statement:
“Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness box, and repeating the averment on oath, if he does not adduce that
[p.20] of [1972] 1 GLR 6 corroborative evidence which (if his averment be true) is certain to exist.”
I hold, therefore, that the absence from this case of at least one independent and trusty witness to the
alleged confessions of infidelity, substantially neutralised the petitioner’s allegations of adultery against his wife, the respondent.
Assuming even, but certainly not admitting, that the respondent did in verity confess her adultery, that fact cannot prevail against the co-respondent, to incriminate and render him liable to the petitioner herein for the very simple reason that such confession or admission was never either made by the respondent in the presence of the co-respondent, or put directly by the petitioner or any other person to the co-respondent himself for the co-respondent to have made unequivocal admission, or even made hesitant and dubious answer thereto. This moves me to bold any such confession, if ever made by the respondent, completely dead, and null and void of effect against the co-respondent because it is the law that an admission or confession of adultery made out of court by a party in the absence of other parties is evidence only against the party making the confession or admission. On the other hand evidence on oath by a party in the witness-box is evidence not only against the party making it but also against any other party implicated. See Spring v. Spring and Jiggins [1947] 1 All E.R. 886 per Wallington J.
On the very inconclusive evidence thus far adduced by the petitioner in support of his allegations of
adultery which has stood unsubstantiated; from the facts of this case which are not of such legal
consequence as ought to compel a necessary or irresistible inference of guilt; and in all the peculiar
circumstances of this matter, I am inspired by a bold confidence to find, and to hold, that since the facts here proved do not require an explanation from, or by, the respondent, or from, or by, the co-respondent, there is absolutely no legal warrant or factual justification of the other side to this matrimonial dispute being called upon.
There is, at this stage of this trial, a complete want of preponderating evidence such as, being also
decisive and free from doubt and suspicion, should properly weigh the scales in the petitioner’s favour.
What evidence there is rather persuades me to hold that the respondent be fully entitled to the benefit of those doubts so very clearly generated by the absence of positive and reasonably convincing proof from the petitioner in support of his case.
Said Lord Wright in Constantine Steamship Lines v. Imperial Smelting Corporation Ltd.; The Kingswood [1941] 2 All E.R. 165 at p. 191, H.L.
“[T]he ordinary rule is that a man is not held guilty of fault unless fault is established and found by the court.
This rule, which is sometimes described as the presumption of innocence, is no doubt peculiarly important in criminal cases or matters, but it is also true in civil disputes.”
[p.21] of [1972] 1 GLR 6 I avouch and adopt these words in, and for the purposes of, this instant case.
It being quite plain that the evidence against the respondent and the co-respondent is so manifestly,
suspicious, inconclusive, and unreliable, I cannot do otherwise than to find as a decisive fact, and to hold, that the petitioner’s case against his wife must fail because he has not succeeded in discharging the burden of proof laid upon him by law.
In the result, I do not call upon either the respondent or the co-respondent to give evidence. And because I cannot, upon any legally justifiable footing, or at all, pronounce a verdict and decree in favour of the petitioner, I hereby dismiss his petition and I give judgment accordingly to the respondent and the co-respondent. And I make the following orders.
(i) That this marriage be dissolved in favour of the respondent on the footing of the petitioner’s own
confessed adultery with his mistress, Martha Abbey, the woman-named.
(ii) That decree nisi be now pronounced—and it is accordingly declared—in favour of the respondent.
(iii) That the decree nisi be made absolute on Friday, 16 July 1971.
(iv) That the present position regarding the custody of the children continues undisturbed, the petitioner
having charge, custody, and care of Sarah, Francis, and Zenobia; and the respondent of Kwartei.
(v) That the petitioner continues paying regular monthly maintenance towards the upkeep of his son,
Kwartei, by the respondent.
(vi) That the petitioner do pay the following costs:
(a) To the respondent, N¢200.00
(b) To the co-respondent, N¢80.00.
DECISION
Petition dismissed.
Cross-petition granted.
