DIVISION: IN THE HIGH COURT, KUMASI
DATE: 29TH OCTOBER, 1963
BEFORE: DJABANOR J.
CASES REFERRED TO
(1) B. v. B. and G. [1937] P. 1; [1936] 2 All E.R. 1254; 155 L.T. 322; 52 T.L.R. 719
(2) Sifton v. Sifton [1939] P. 221; [1939] 1 All E.R. 109; 55 T.L.R. 339
NATURE OF PROCEEDINGS
APPLICATION for leave to file an answer and cross-petition out of time.
COUNSEL
Benjamin (with him Boakye) for the petitioner.
G. Davey for the respondent.
JUDGMENT OF DJABANOR J.
This is an application by the respondent herein praying for what I consider to be leave to file the answer
to this petition out of time. There has been some argument about the propriety of this application. I have
no doubt that it is properly before me.
In order that the court may use its discretionary powers in granting such an application, like in all other
similar applications, good cause must be shown. In this case, according to the affidavit in support of the
application, “The firm of J. J. Peele & Co. were instructed to appear for the respondent and in accordance
with the said instruction they entered appearance for the respondent on the 14th August, 1963; and that
detailed instructions and necessary papers were not sent to the solicitors until the 16th October, 1963, as
the respondent was unable to get these from his former solicitors who have ceased to practise.”
[p.367] of [1963] 2 GLR 365
The petition was served on the respondent in London on the 14th June, 1963. On the 18th June, 1963, the
respondent wrote a letter to the court requesting three months adjournment within which to consult his
solicitors. I believe the court wrote back informing him to proceed with his entry of appearance and
consult a solicitor. However, appearance was entered on the 14th August, 1963, by the solicitors now
appearing for him. No answer was filed. The affidavit does not say when the solicitors were consulted,
and why the relevant papers, which were then with other solicitors here, could not be procured earlier,
and what efforts were made to procure them. From the copy of the proposed answer exhibited in this
application, it would appear that the instructions for filing the answer could have been given to the
solicitors when they were first instructed, for the contents of the answer show just bare denials of the
petitioner’s confession of adultery contained in her petition. The reason for the delay given by the
respondent has not appealed to me. But there are other matters to consider. A copy of the answer has been
exhibited and its efficacy has to be considered. In it the respondent has charged in paragraphs 3 and 4 as
follows:
“3. That the petitioner has frequently committed adultery with one Osei Tutu.
4. That since on or about 1960 the petitioner has lived, cohabited and habitually committed adultery with
the said Osei Tutu and by reason of the said adultery has conceived and given birth to two children,
the dates of the births and names of whom are unknown to the respondents.”
The answer ended with a prayer by the respondent for the dissolution of the marriage on the ground of the
petitioner’s adultery, and claimed damages from the co-respondent. Mr Davey, for the respondent,
submitted with considerable persuasive force, that the respondent should not be shut out from presenting
his cross-petition for that would be unjust to him. It falls, therefore, to consider whether a prima facie case
has been made on the face of this cross-petition for if one is disclosed, then it will be unjust to exclude it.
Mr. Benjamin, senior counsel for the petitioner has also submitted that a prayer for the exercise of a
discretion in a petition could not be made the subject of a cross-charge of adultery unsupported by
particulars. He cited as his authority for saying so the case of B. v. B. and G.,1 and said that in fact such a
charge should not be allowed to stand and that it should be struck out. If it be struck out, the prayer of the
respondent for dissolution of the marriage on the ground of adultery and subsequent damages against the
co-respondent cannot succeed. I think that this proposition of law is sound. But in my view, the facts of
that case do not apply here. In the first place, the respondent, on a proper construction of his proposed
answer, is not seeking to rely on the discretion statement as the basis of his cross-charge. He has stated in
paragraph 4 of his answer facts which in my view are sufficient, and which independently can ground a
charge of adultery. If the respondent had been content to
[p.368] of [1963] 2 GLR 365
rely on paragraph 3 alone, he would have been caught by the principle in B. v. B. and G. (supra).
Secondly, where a discretion statement has been put in evidence by a petitioner admissions therein may
be used by the respondent as proof of the allegation of adultery by the petitioner: see Sifton v. Sifton.2
But paragraph 11 of the petitioner’s affidavit in opposition is, to my mind, conclusive against the success
of the respondent’s cross-petition. In that paragraph the petitioner charges the respondent with collusion.
Collusion, of course, is an absolute bar to the grant of such a petition as presented by the respondent, and
if it can be substantiated, then there is no doubt that the cross-petition cannot succeed, and with it fall the
reliefs sought against the co-respondent. If that is the position then striking the respondent’s answer out,
i.e., not granting his application to file the answer out of time, will work no hardship upon him. The
petitioner’s counsel referred to the respondent’s letter to the petitioner dated the 13th September, 1962,
tendered in this suit as exhibit B1. In that letter he was discussing obtaining a divorce. In it he said, inter
alia,
“But much as I would like to get it over with as soon as possible, I must confess I have not enough funds to
see it through. I have already paid over £30 to my solicitors here in London and have been in regular
correspondence with Mr. Brookman, who at one time, was working with Messrs. J.J. Peele, my solicitors in
Ghana, for some way out. He (Mr. Brookman) suggests I pay an initial fee of £20 to them to enable the
lawyers to get ahead. You agree that since you are not going to contest the case the co-respondent, your
husband, will be called upon to pay the full cost of the case, after assessment. If that is going to be the case,
you will be helping your own case now, if you can pay in this money to help on with it. Should you find this
proposition quite acceptable, I will suggest you pay the amount to Mr. Brookman who in turn will settle it up
with Messrs. J. J. Peele. You will be given official receipt for any sums of money and I shall request you to
use Mr. Brookman as an intermediary.”
It is plain that this letter is collusive in character. Counsel for the petitioner states that the petitioner
refused, for her part, to comply with the suggestion thus made. I am of the opinion that this letter has
sealed the fate of the cross-petition and it has no hope of success.
I will not go into the other merits of the petitioner’s affidavit in opposition except to say generally that the
respondent, from the tone of his letter does not appear to be aggrieved by the violation of his wife’s
chastity. He appears to have acquiesced in the injury, and rather taken delight in teasing the petitioner. I
do not think that the refusal of this application will work any hardship on the respondent. On the contrary,
the petitioner says that she is ready and willing to marry the said Osei Tutu, and that any delay might ruin
her chances. I think that it is proper that I grant her request. The respondent has been sleeping on his
rights.
[p.369] of [1963] 2 GLR 365
In the result, from all the circumstances I will refuse the application for leave to file an answer out of
time.
No order as to costs.
DECISION
Application refused.
K.T.
