DAM v. J. K. ADDO AND BROTHERS
[SUPREME COURT, ACCRA]
DATE: 21ST DECEMBER, 1962
COUNSEL
Dove for the appellant.
Dr. de Graft Johnson for the respondent.
JUDGMENT OF SARKODEE-ADDO J.S.C.
Sarkodee-Addo J.S.C. delivered the judgment of the court. The wife (the respondent in this appeal)
petitioned for the dissolution of her marriage on the grounds of adultery and cruelty. She further
claimed alimony,
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custody of their two male children and maintenance for the children in the petition which was heard
by Mr. Commissioner Attoh, in the Divisional Court, Cape Coast.
The husband (the appellant in this appeal) filed a belated answer denying the charge of cruelty but
there was no denial of the commission of adultery with the woman-named. The husband and the
woman-named filed separate affidavits in respect of their means and condition.
Mr. Commissioner Attoh in his judgment delivered on the 21st January, 1959, stated the facts, granted
the wife a decree nisi on the ground of adultery and continued:
“On the question of alimony, i.e. permanent maintenance of the wife, I am of the opinion that the
petitioner should be given £G21 a month by the respondent by way of alimony and maintenance while
she has the custody of the three and half-year-old boy until he is seven years when the custody shall be
transferred to the respondent. In the meantime the respondent shall have access to the three and
half-year-old boy. On custody of the three and half-year-old boy being transferred to the respondent as
above the alimony shall be reduced to £G200 per annum. Custody and maintenance of thirteen-year-old
boy shall be vested in the respondent. Petitioner shall have costs assessed at 30 guineas.”
The decree nisi was to be made absolute after the expiration of one month from the date of delivery of
the judgment, but the record discloses that it was not until the 9th April, 1959, that is, nearly three
months after, that the decree nisi was made absolute, and no reason was assigned for the delay.
On the 24th January, 1961, the husband filed an application for a modification order in pursuance of
Order 55, rules 3 (3), 42, 47 and 48 of Supreme [High] Court (Civil Procedure) Rules, 1954, for the
court:
“to make orders modifying the orders of alimony or maintenance and of custody of the infant child of the
marriage made by the Commissioner of Assize and Civil Pleas on the 21st January, 1959, to the effect
that:
(a) The respondent no longer pay alimony or maintenance to the petitioner, and
(b) Custody of the said child Alexander Edward be given to the respondent, and for any other or
further orders as to the court may seem meet, upon the grounds set forth in the accompanying
affidavit.”
The husband in his supporting affidavit recounted the history of the divorce proceedings and alleged
that he lived at Tamale and the wife lived at Cape Coast, separate and apart from each other and that
they had never had sexual intercourse together since she left him at Tamale on the 10th March, 1958,
for Cape Coast; that in December 1960, she gave birth to a baby girl by one Mr. Sam who was a
tenant in the house where she lived; and that she and the said Mr. Sam lived and cohabited as husband
and wife and that Mr. Sam also provided maintenance and necessaries for her and the child. He
further alleged that the said Mr. Sam has assumed paternal authority over Alexander Edward their male child of whom the wife was granted the custody and that the child had been ill-treated by the
said Mr. Sam.
The wife by her affidavit in answer and in opposition to the application denied the husband’s
allegations: she emphatically denied that the said Mr. Sam was the father of the baby girl, and
contended that she left
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Tamale with an undeveloped pregnancy but by the prayers of Mrs. Morris, the husband’s sister who
claims to be a prophetess, God gave her the baby girl who is the exact image and likeness of the
husband. She also denied the alleged ill-treatment of Alexander Edward by the said Mr. Sam, who,
according to her, had since August 1958 removed from the house where the said Mr. Sam was a
tenant and she also lived, and that they had never lived and cohabited together as husband and wife at
anytime.
Upon the matter coming up for hearing before Scott, J., evidence was taken from the parties and their
witnesses, and after an exhaustive hearing the learned judge in the course of his ruling reviewed the
evidence, and found that the charges against Mr. Sam were not proved. He further held that:
“On the evidence of the respondent herself and on the authorities in particular that of Preston-Jones v.
Preston-Jones [1951] A.C. 391, I consider I am bound to hold that with the non-access of the applicant,
the applicant could not possibly be the father of the child born on the 12th December, 1960 . . . In the
circumstances the order of alimony will be varied as from today to the extent that the applicant will now
pay £G16 per month to the respondent until the child Alexander Edward attains the age of seven years.
On the applicant obtaining custody of the child Alexander Edward, he will pay an annual amount of
£G150 towards the support of the respondent.”
From this ruling the applicant appealed to this court and the only ground argued by learned counsel
for the appellant in support of the appeal is as follows:
“In view of the finding of fact by the learned trial judge that the infant Nyamekye born in December
1960, is not the child of the appellant, the learned judge erred in varying the order of alimony by merely
reducing and not altogether cancelling it.”
Learned counsel in his brief argument in support thereof submitted that where the circumstances have
changed an order for variation may be made and that the respondent’s circumstance has changed by
the birth of a child of which appellant is not the father.
It is true that the learned judge did not accept the wife’s story of the husband being the father of the
baby girl but similarly the learned judge found that the allegations against the said Mr. Sam were not
proved and that he could not be held to be the father of the child.
The application was based on the assumption that the birth of a child increases the wife’s means and
alters her condition on the hypothesis that in the nature of things her paramour will provide her with
maintenance and necessaries: on the contrary, experience teaches that that has not always been the
case and as clearly disclosed on the evidence the birth of the child is more of a liability and in no way
an asset to the wife. In this case, there was no dum sola et casta vixerit clause nor were there
circumstances to warrant a variation of Mr. Commissioner Attoh’s order.
It will be observed that the variation made by Scott, J., rested mainly upon his observation and the
finding as contained in his ruling, is thus:
“It is unfortunate that medical evidence which the court was given to understand at an early stage of
these proceedings was to have been led on behalf of the respondent, was in fact never adduced as it
might have assisted to explain the protracted, over lengthy and highly abnormal period
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of gestation which the respondent testified she had and with which Mrs. Morris professes to be so familiar. On the evidence of the respondent particular that of Preston-Jones v. Preston-Jones [1951] A.C.
391, I consider I am bound to hold that with the non-access of the applicant, the applicant could not
possibly be the father of the child born on the 12th December, 1960.”
As this was the only reason upon which the learned judge grounded his variation it is as well that
before concluding our reasons reference be made to the principles and some of the authorities on the
powers of the court in modification of orders.
By the Administration of Justice (Miscellaneous Provisions) Act, 1938,1(1) section 14, the court may,
at any time after the making of an order for payment of alimony pending suit, permanent alimony,
periodical payments, maintenance (except as to secured maintenance), or maintenance of the children,
vary, discharge, or temporarily suspend the provisions of such order, or revive the operation of any
provision so suspended. In dealing with an application of this kind, the court has an unfettered
discretion to consider all the circumstances of the case including the increase or decrease in the means
of either of the parties to the marriage. Where periodical payments have been secured, any deed
executed by the parties in obedience to the order must be regarded as part of the order, and the court
has the same power to vary the deed as it has to vary the order. The fact that an order was made by
consent does not prevent it from being varied. The court may have regard to the conduct of the parties
including the re-marriage of the wife, in the same manner as in the hearing of the application for the
order in the first instance.
We now refer to some of the authorities enunciating these principles. In Perkins v. Perkins2(2) an
order by consent was made that the husband should pay to the wife during their joint lives and until
further order such a sum by way of maintenance as after deduction of income tax should amount to
£500 per annun. At the time the decree absolute was made the husband had an income of £3,000 per
annun and the wife one of less than £100 per annum. The husband claimed that his position had
become worse by reason of the fact that he had made two voluntary settlements upon his daughter by
a previous marriage. The wife had re-married and her present husband had an income of £580 per
annum after deduction of tax, and a furnished house, and would in four years be due to retire on a
pension of £400 per annum. The husband’s application for the reduction of maintenance payable to
the wife upon the ground of the improvement of her financial position on re-marriage was dismissed.
On appeal from the order of dismissal, it was held that;
(1) the husband’s financial position could not be considered as having become worse by reason of the
voluntary settlements made by him; (2) the wife’s financial position had been improved, as she was
saved the expense of maintaining a separate establishment of her own, and the maintenance ought on
that ground to be reduced to £350 per annum free of tax, until further order, and to that extent the
appeal was allowed.
In Bellenden (orse. Satterthwaite) v. Satterthwalte,3(3) it was held that a husband’s re-marriage
reduces his means and that is a good ground for consideration regarding the reduction of the
maintenance to the former wife.
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These cases and others are merely illustrative; they are not exhaustive. They depict due exercise of the
power the court now has under the Administration of Justice (Miscellaneous Provisions) Act, 1938,
whereby the court has now an unfettered discretion to consider all the circumstances of the case.
As to appeals from the exercise of the court’s discretion, it is a rule of law deep rooted and well
established that the Court of Appeal will not interfere with the exercise of the court’s discretion save
in exceptional circumstances. In Wickins v. Wickins4(4) the view of the Court of Appeal, expressed
by Swinfen Eady, M.R. nearly half a century ago, was that:
“where Parliament has invested the court with a discretion which has to be exercised in an almost
inexhaustible variety of delicate and difficult circumstances, and where Parliament has not thought fit to
define or specify any cases or classes of cases fit for its application, this court ought not to limit or restrict that discretion by laying down rules within which alone the discretion is to be exercised, or to
place greater fetters upon the judge of the Divorce Division than the legislature has thought fit to
impose.”
In Blunt v. Blunt5(5) where the judgment of the House of Lords on appeal from the Court of Appeal
was delivered by Viscount Simon, L.C. it was held that:
“An appeal against the exercise of the court’s discretion can only succeed on the ground that the
discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a
misapprehension of fact, in that it either gave weight to irrelevant or unproved matters or omitted to take
relevant matter into account; but the appeal is not from the discretion of the court to the discretion of the
appellate tribunal.”
In the light therefore of the principles and the authorities above referred to, we are of the view that the
argument in support of the appeal was without foundation. The application should have been
dismissed by Scott, J. The appeal is therefore dismissed and the judgment of the court below set aside.
In lieu thereof we substitute a judgment of dismissal of the husband’s application for the modification
of the order for permanent alimony and restore the original order made by Mr. Commissioner Attoh.
DECISION
Appeal dismissed.
Judgment of the High Court set aside.
Original order restored.
J. D.
