HIGH COURT, ACCRA
Date: 15 FEBRUARY 1974
SARKODEE J
CASES REFERRED TO
(1) Gayer v. Gayer [1917] P. 64; 86 L.J.P. 73; 116 L.T. 322; 33 T.L.R. 182; 61 S.J. 251, C.A.
(2) Ex parte Armitage (1858) 1 Sw. & Tr. 71; 4 Jur. (n.s.) 56; 27 L.J.P. & M. 4; sub nom. Anon. 30 L.T. (OS.) 278; 6 W.R. 222.
(3) Ling v. Ling and Croker (1858) 1 Sw. & Tr. 180; 27 L.J.P. & M. 58; 31 L.T. (o.s.) 186; 6 W.R. 674.
(4) Adjetey v. Adjetey [1973] 1 G.L.R. 216.
NATURE OF PROCEEDINGS
APPLICATION by the petitioner in a divorce action under Order 55, r. 25 (1) (a) and (b) of L.N. 140A for an order that his viva voce evidence be dispensed with and that his evidence be taken on affidavit.
COUNSEL
Dr. A. K. Fiadjoe for the applicant.
Y. N. A. Agbesi for the respondent.
JUDGMENT OF SARKODEE J
In this application brought under Order 55, r. 25 (1) (a) and (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), the applicant (who is petitioning for divorce in the substantive suit) prays for an order that his viva voce evidence be dispensed with and that his evidence be taken on affidavit on the grounds that he is abroad and that because his income is small it will be impossible for
[p.308] of [1974] 1 GLR 307
him to travel to Ghana for the present hearing of the petition. The applicant is at present on the staff of the Ghana Embassy in Bonn, West Germany, where he is likely to be until September 1975, when his tour will end.
It seems to me that leave to give affidavit evidence under Order 55, r. 25 should be granted only in exceptional circumstances. The court will readily grant leave for evidence to be given either wholly or partially on affidavit in undefended cases and will do so in defended suits where the petitioner is to give only formal evidence and no allegation about his conduct has been made or he on his part has nothing to explain in his conduct: see Gayer v. Gayer [1917] P. 64, C.A. where it was sought to prove adultery by affidavit in an undefended suit. In Ex parte Armitage (1858) 27 L.J.P. & M. 4, in a petition for dissolution of marriage, the judge dispensed with oral evidence and heard the case on affidavit. The respondent did not appear and even though the co-respondent appeared he did not object to the affidavit evidence. Also in Ling v. Ling and Croker (1858) 1 Sw. & Tr. 180 upon the application of the petitioner, other parties consenting, the judge directed that the cause should be heard on affidavit. Mrs. Ling appeared but put in no answer.
Above all the court must examine the case before it and decide whether to admit affidavit evidence if the absence of the deponent is not likely to damage the ends of justice. For a court which dispenses with oral evidence deprives itself of the opportunity of first-hand experience of a witness’s demeanour and much of the force of cross-examination is lost if it does not take place before the tribunal which has to accept or reject the evidence.
This divorce suit is seriously contested. The applicant husband in this case is relying on three main grounds to prove that his marriage with the respondent has broken down beyond reconciliation. First, that the respondent wife has behaved in such a way that the applicant cannot reasonably be expected to live with her. As particulars he alleges various acts of cruelty on the part of the wife as a result of which he says he has suffered considerable mental distress and humiliation. Secondly, he says that the wife has committed adultery by reason of which he finds it intolerable to live with her. Adultery must be proved to the satisfaction of the court and even though the evidence need not meet the certainty required in criminal cases, a high degree of probability is required. Thirdly, that he and the respondent have not been able to resolve their differences.
These are matters which require proof. The respondent, no doubt, would want to and ought to be given an opportunity to cross-examine the applicant. The court must also have the benefit of seeing the parties. The respondent on her part alleges that the applicant has committed adultery. The applicant vigorously denies this in his reply. The fact that the parties say that the marriage has broken down beyond reconciliation and may be dissolved does not by itself end the matter, for whether or not the marriage has broken down beyond reconciliation is a matter for the court: see Adjetey v. Adjetey [1973] 1 G.L.R. 216 at p. 219.
[p.309] of [1974] 1 GLR 307
It is true that the applicant’s absence is not of his own making, but to dispense with oral evidence and to accept affidavit evidence, in my view, is likely to damage the ends of justice. The application is therefore dismissed.
DECISION
Application dismissed.
T.G.K.
