DIVISION: IN THE HIGH COURT, KUMASI
DATE: 28TH OCTOBER, 1963
BEFORE: APALOO J.
CASE REFERRED TO
Mbadiwe v. Yaya (1954) 14 W.A.C.A. 613
[p.361] of [1963] 2 GLR 359
NATURE OF PROCEEDINGS
APPEAL from a decision of a circuit court dismissing the plaintiff’s action for damages for the seduction
of his daughter. The facts are fully stated in the judgment.
COUNSEL
Hayfron-Benjamin for the appellant.
Agyepong for the respondent.
JUDGMENT OF APALOO J.
This is an appeal from a judgment of a circuit court which on the 28th January, 1963, dismissed a claim
by the plaintiff against the defendant for damages for seduction.
The plaintiff is the father of a young woman whose name is Lydia Asante. She was born in 1943, and at
the time material to this action, lived with her father and attended school. She brought forth a child on the
17th May, 1961. That would indicate that she must have taken seed the previous August. The plaintiff
claimed that she was debauched by the defendant whom he claimed was responsible for her pregnancy.
Accordingly, he claimed damages against him for seduction. Lydia herself gave evidence and said the
defendant was her boy friend. It was nothing like platonic friendship. It was clearly on the admitted
evidence, a lewd form of association. Lydia said she frequently had sexual intercourse with the defendant.
The defendant did not seek to dispute this. Indeed, he himself called one Kwaku Dua who said the
defendant passed the nights with him and that, “Lydia comes to the defendant and sleeps with the
defendant.” The defendant, however, denies responsibility for the pregnancy and claimed that his
association with Lydia came to an end in January 1960. Accordingly, he contended that he could not be
the author of the pregnancy which, on my reckoning, took place in or about August 1960. Lydia denied
that she had had sex relations with any other man, and there is, in fact, no evidence that she associated
about August 1960 with anyone else.
Accordingly, on this part of the case the issue which the learned circuit judge was called upon to
determine was: “Did the association between the defendant and Lydia come to an end in January 1960, so
that the defendant could not in the ordinary course of nature have been responsible for Lydia’s pregnancy
which took place on or about August 1960?” The learned circuit judge found for the defendant on this
issue although he did not seem to me to have formulated the issue so very clearly. As he decided this
issue adversely to the plaintiff, he thought it unnecessary to pronounce on the other issues and proceeded
to dismiss the action.
The plaintiff felt himself aggrieved by that decision, and appealed to this court on two grounds. The first
ground argued by counsel on behalf of the appellant was that, “The trial judge misdirected himself as to
the issue involved in taking judicial notice of certain matters of which the law did not permit him to do.”
This ground was actually relied upon to attack the reasons which the learned circuit judge gave for his
decision. As I read the judgment, the court founded itself on three reasons. Firstly, Lydia was not able to
produce a single letter or point to a single present to
[p.362] of [1963] 2 GLR 359
substantiate her claim to friendship with the defendant. Secondly, Lydia was not able to pin point the
exact date or nearest possible date of last intercourse, and thirdly the evidence of two young women who
testified on the plaintiff’s behalf was too sweet to be believed.
On the first of the reasons given by the learned circuit judge, counsel for the appellant submitted that it
was not necessary in seduction to establish that presents or correspondence must be shown to have been
exchanged between the defendant and the girl seduced. On the second, counsel submitted that the fact that
the girl was unable to recollect the exact date of the last sexual act does not mean that she must have been
associating with other men. The reasoning of the learned circuit judge was tantamount, it was contended,
to holding that pregnancy could only necessarily have occurred as a result of the last act of intercourse.
As to the learned circuit judge’s third reason, it was submitted that the two female witnesses told a natural
and probable story, and the court failed to give any tangible reason why it thought that that evidence was
unworthy of credit.
Counsel for the respondent submitted in defence of the first reason given by the circuit court that it
amounted to no more than that the burden on the plaintiff to establish seduction had not been discharged.
Counsel argued that the second reason given by the learned circuit judge was tangible as Lydia ought
reasonably to have recollected the date of her last menstrual period prior to the pregnancy. Counsel for
the respondent did not say anything expressly in defence of the third reason given by the circuit court.
Having myself considered the evidence, I find myself constrained to agree with counsel for the appellant
that the three reasons on which the learned circuit judge founded his judgment are basically unsound.
Where the friendship between Lydia and the defendant was admitted, I cannot see what object the
evidence of exchange of presents or letters would serve. Indeed the learned circuit judge argued against
himself for although he considered it contrary to human experience that there could be friendship between
a boy and a girl without exchange of presents or correspondence, yet he felt himself obliged to find that
Lydia and the defendant were in fact friends. The exchange of presents or letters between a wooing
couple must depend upon the degree of their enlightenment or culture I entirely fail to see how human
nature or human experience comes into the picture.
The court itself asked Lydia the date of her last sexual union with the defendant. She said she could not
remember the exact date but estimated it to be twenty months ago. The learned circuit judge concluded
that her inability to give the last date convinced him that Lydia was flirting with other men. In my
judgment, this conclusion is a non sequitur. Here is an association which has not the slightest pretension
to chastity and where two young persons were habitually engaged in satisfying their lust. Obviously
conception must have taken place in one of these unions. There is no reason to suppose that it was
necessarily the last act that propagated the seed which made Lydia pregnant. I do not think that she ought
necessarily
[p.363] of [1963] 2 GLR 359
to know the date of the last act or be convicted of flirtations with other men. What reason and common
sense would require her to know was the date when she missed her menstrual period. She said she knew
that date and two weeks after, she so informed the defendant. In this, she was supported by her witness
Ekua Boadah. In my opinion, the learned circuit judge’s conclusion on this part of the case was
manifestly wrong.
The learned circuit judge also rejected the evidence of two female witnesses who testified that they knew
of the friendship between Lydia and the defendant, and also that they had been fornicating. They are all
about the same age as Lydia and lived in the same house with her. One of them, Effua Atta, said she ran
errands between the defendant and Lydia and shared the same room with Lydia. She was thus in a
position to speak with some authority about Lydia’s liaison with the defendant. Another witness Ekua
Boadah said she often accompanied Lydia to the defendant and went with Lydia to inform the defendant
when the former missed her menstrual period. In my opinion, the evidence of these two witnesses is
inherently probable and I should expect good reasons to be given for its rejection. The learned circuit
judge said the story told by them was too sweet to be believed. I am not sure that I followed what the
court meant by the story being sweet. If by that the court thought the story was exaggerated, I would have
expected the learned circuit judge to pin point which part of the evidence suffered from this vice. If by it
he meant the evidence was fanciful, I will at once join issue with him. As I said, the story told by these
two witnesses was inherently probable, and the witnesses were in a position to speak of their own
knowledge of the matters about which they testified. In my judgment, the learned circuit judge was not
entitled to reject that evidence, certainly not for the untenable reason he gave. In my opinion, the finding
of the circuit court that the defendant was not responsible for Lydia’s pregnancy was based on faulty
reasoning and was a wholly erroneous conclusion. In these circumstances, the authorities permit me to
make such finding as in my opinion the evidence warranted.
It seems to me that on the facts of this case and in view of the defendant’s admission that he had carried
on for a period a lewd association with the plaintiff’s daughter, which association in the ordinary course
of things could result in pregnancy, the burden was on the defendant to establish to the satisfaction of the
court the precise time at which the association ended. In my opinion, he cannot make good his defence
otherwise since that defence is in the nature of a confession and avoidance. In order to show this, the
defendant relied merely on his bare assertion that the association ended in January 1960, about eight
months before Lydia’s pregnancy. But when asked in cross-examination when he last carnally knew the
plaintiff’s daughter he said September 1959. That would indicate that between September 1959 and
January 1960, the friendship continued but sex relationship had stopped. Were this a true story, the
defendant would have offered some explanation why this platonic conception of things suddenly dawned
upon him. To support the date when he discontinued friendship with Lydia, the defendant called as a
witness one Kwaku
[p.364] of [1963] 2 GLR 359
Dua. He said the friendship with Lydia stopped about two years ago. He was giving evidence in
December 1962. If his date is right, the friendship came to an end about December 1960. Lydia became
pregnant in August 1960 and that evidence merely destroyed the defendant’s case. Even if Dua was
wrong on the date, it does show how unreliable a bare assertion of date can be. I agree with counsel for
the appellant that the defendant merely manipulated the date to wriggle himself out of an uncomfortable
situation. I am satisfied it was the defendant who made Lydia pregnant and that his evidence was a
fabrication.
If I am wrong in my conception of the onus, and if it lay on the plaintiff to show that the relationship
continued until Lydia became pregnant in August 1960, my finding would still be the same. I should still
hold that that onus was discharged on a balance of probability. I should not arrive at this conclusion on
Lydia’s evidence alone, but I would take it in conjunction with the evidence of Effua Atta and Ekua
Boadah and the indirect corroboration of the plaintiff’s evidence by the testimony of Kwaku Dua the
defendant’s witness and the circumstance that Lydia was not shown to have been flirting with any other
man at about the time that she became pregnant. She also denied having intercourse with any other man
save the defendant and there was no contrary evidence. I should hold in these circumstances that the
balance of probability weighed heavily in favour of the truth of Lydia’s evidence. Accordingly, as I said, I
hold that the defendant was the author of Lydia’s pregnancy and reject the learned circuit judge’s finding
to the contrary.
At the time when the defendant seduced her, Lydia was seventeen years of age. She lived with her father
and rendered him services. The plaintiff said as a result of Lydia’s pregnancy and subsequent
confinement, he lost her services. Lydia herself said she still performed the same services for her father
during pregnancy as she did before it. Counsel for the defendant, therefore, contended that as the plaintiff
did not lose Lydia’s services during her confinement, the action for seduction did not lie. I cannot accept
this contention. It seems to me obvious that what Lydia meant was that she was not sickly during
pregnancy. It is not reasonable to believe that she would be in a fit physical state to render to her father
the services that she rendered even during her confinement. There was bound to be some period when she
could not and indeed counsel himself concedes that. Since the notion of service is itself a fiction, the loss
of service for even one day would suffice to ground an action in seduction. I think the plaintiff lost
Lydia’s services during her confinement and is entitled to damages against the defendant.
That leaves me only with the question of damages. With regard to the special damages, I think it is
sufficient to say that none was proved and I do not therefore propose to award any. With regard to the
general damages, since it is essentially a question of fact for the trial court, it would be a good thing if
courts of inferior jurisdiction adopt the English practice of assessing what damages they would have
awarded in the event of a successful appeal. This practice was sanctioned and adopted by the West
[p.365] of [1963] 2 GLR 359
African Court of Appeal in Mbadiwe v. Yaya C277.1 In quantifying the general damages, I think I am
entitled to take into account the plaintiff’s injured feeling and the defendant’s provocative conduct in
denying responsibility for the pregnancy and in imputing unchastity with other men to Lydia. But I do not
forget that damages in this case should be compensatory and not penal. Taking all the circumstances of
this case into consideration, and applying my best judgment to the matter, I assess general damages in
favour of the plaintiff in the sum of £G150.
Accordingly, the appeal is allowed. The judgment of the circuit court is set aside. In substitution for it, I
enter judgment for the plaintiff against the defendant for the sum of £G150. The plaintiff-appellant will
have his costs in this court assessed at 30 guineas and in the circuit court assessed at 25 guineas.
DECISION
Appeal allowed
K. T.
