DIVISION: IN THE HIGH COURT, KUMASI
DATE: 6TH MAY, 1963
BEFORE: DJABANOR J.
NATURE OF PROCEEDINGS
APPLICATION by a judicially separated husband for modification of an order for permanent alimony
payable to his wife.
COUNSEL
Kofi Sackey (with him Sotomey) for the applicant.
Hayfron-Benjamin for the respondent.
JUDGMENT OF DJABANOR J.
This is an application by the respondent husband for modification of the order for permanent alimony
payable to his wife. The wife (the respondent in this application) petitioned for judicial separation from
her husband (applicant) on the grounds of the adultery of her husband with one Alice Agyei-Kyem of
Kumasi and cruelty. The court found that adultery was proved but not cruelty, and granted the wife’s
petition awarding her £G25 per month as alimony.
[p.417] of [1963] 1 GLR 416
In the case of Crentsil v. Crentsil Sarkodee Adoo J.S.C., delivering the judgment of the Supreme Court
stated: “By the Administration of Justice (Miscellaneous Provisions) Act, 1938, 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.”
In this application the husband is saying that his financial position has become worse, while the wife’s
financial position has improved. He showed to the court his salary vouchers to substantiate this. It appears
from this—and this was taken up by the wife’s solicitor—that the decrease was caused by the increased
income tax and his contribution to the compulsory savings scheme (national bonds). The wife’s counsel
submitted that the deductions for the national bonds should not be taken into consideration because those
would be refunded at the end of a stated period. But I think that that is the wrong view to take. I think that
the principle is, “How much income does the husband get every month from which he can maintain
himself and his wife?” It must not be forgotten that the couple have been judicially separated but not
divorced. They are still married as far as the law is concerned.
I accept the evidence that the husband’s monthly income is now £G1 17 4s. 9d. as against £G133 1s. 5d.
per month at the time of the award of alimony of £G25 per month two and a half years ago. The husband
is saying that his wife is a dressmaker of some standing who makes an income of about £G240 per year
therefrom. This, the wife has refuted, saying that she is in fact unemployed. I must confess that I am not
in sympathy with any person of the standing of the wife who says she is unemployed. I do not believe that
she has been doing no work since the award was made to her two and half years ago. I think she is
working and that she has made some progress in her work, during the last two and a half years. I am
inclined to believe that her income would be about £G150 from her dressmaking. I do not think it would
be right or just for the court to allow a wife to remain content with doing no work and just subsisting on
the award of alimony.
[p.418] of [1963] 1 GLR 416
The husband says that he spends some money on his daughter attending school. This has not been refuted.
I do not on the other hand believe that the wife is so “wealthy” that she financed her own holiday in
Nigeria. She is a Nigerian and at least she must be deemed to have some relatives there. I also do not
believe that the husband is doing private business as alleged. I will need evidence before I believe that of
a full time employee of the Kwame Nkrumah University of Science and Technology.
When this court (Simpson J.) awarded an alimony of £G300 per year, he based his calculations on a basic
joint income of the parties of £G2,000. Now the evidence shows that the husband’s yearly income is
£G1,406 and the wife’s income (I have assessed) is £G150. Their joint income is therefore £G1,550. This
divided by five gives £G310; which works out after deducting £G150, (as did Simpson J.), at £G160 per
annum. I will therefore vary the award of alimony from £G300 per annum to £G160 per annum or £G13
13s. 4d. per month. I order accordingly that this sum must be paid to the wife as alimony as from May
1963.
DECISION
Application granted.
J. D.
