HIGH COURT, SEKONDI
Date: 30 MAY 1974
EDUSEI J
CASE REFERRED TO
(1) B. v. B. [1971] 1 W.L.R. 1486; [1971] 3 All E.R. 682, C.A.
NATURE OF PROCEEDINGS
PETITION by a husband for divorce on the ground that the marriage had broken down beyond reconciliation and cross-petition by the wife for judicial separation. The facts are fully set out in the judgment.
COUNSEL
C. M. Cann for the petitioner.
Dr. E. V. C. de Graft-Johnson for the respondent.
[p.188] of [1974] 2 GLR 186
JUDGMENT OF EDUSEI J
The petitioner in this case is a marine engineer and is a native of the Netherlands whilst the respondent is a Ghanaian by birth. On 21 July 1951 the petitioner married the respondent at the Sekondi District Marriage Registry, and they lived together as man and wife at Sekondi and Takoradi until in 1968 or 1969 when they separated and lived apart. The petitioner has been ordinarily resident in Ghana since 1947, though he occasionally visits his native country on holidays.
Though the petitioner is domiciled in the Netherlands this court is seised with jurisdiction to determine his petition for divorce since he had been ordinarily resident in this country for over 25 years at the time he presented his petition in February 1972. The matrimonial jurisdiction in the instant petition of the court is set out in section 31 of the Matrimonial Causes Act, 1971 (Act 367), as follows:
“The court shall have jurisdiction in any proceedings under this Act whether either party to the marriage –
(a) is a citizen of Ghana; or
(b) i s domiciled in Ghana; or
(c) has been ordinarily resident in Ghana for at least three years immediately preceding the commencement of the proceedings.”
And section 32 of the said Act stipulates that:
“For the sole purpose of determining jurisdiction under this Act, the domicile of a married woman shall be determined as if the woman was above the age of twenty-one and not married.”
I must interpolate here that in the 1969 petition for divorce filed by the husband the respondent cross-petitioned for judicial separation which will be determined in this judgment. The original petition was, however, dismissed on the ground of lack of jurisdiction in 1970 because at that time jurisdiction to found divorce proceedings was based on domicile and the petitioner was at that time and is still domiciled in the Netherlands. But it is quite clear that in this present petition this court has jurisdiction to hear and determine the petitioner’s petition for dissolution of the marriage because the petitioner had been ordinarily resident in this country for over 25 years at the time he presented his petition for divorce: see section 31 (c) of the Matrimonial Causes Act, 1971 (Act 367). The respondent, a Ghanaian, has been ordinarily resident for at least three years, and is also domiciled in this country: see section 32 of Act 367. The two cases have been consolidated.
The evidence of the petitioner, which was not seriously challenged, was that since 1969 the parties herein have not been living together as man and wife. The petitioner complained that the respondent on a number of occasions heaped abuses on him in public. He said that the respondent went to his working-place and harassed him by asking the petitioner to leave the country. On another occasion whilst the petitioner was with his solicitor in the latter’s office, she went there to create a scene
[p.189] of [1974] 2 GLR 186
demanding their marriage certificate from the petitioner. It was with great difficulty that she was taken out from the lawyer’s office. And still on another occasion the respondent came to the flat of the petitioner and threatened to kill him if he did not leave the country. It was through police intervention that she left the scene.
The evidence clearly shows that the respondent had formed the notion that the petitioner was flirting with one Hannah Sey and had seen them together quite a few times. Though the respondent could not establish the charge of adultery against the petitioner there was evidence of very cordial relations between the petitioner and the said Hannah Sey, and this, no doubt, gave rise to the adulterous suspicions which the respondent formed of her husband with Hannah Sey.
When the respondent left the matrimonial home in 1969, though she herself said it was in 1968, she was indeed making life unbearable for her husband. She wrote a letter to the head office of her husband’s employers in Paris reporting that he had stolen certain property belonging to the company. The head office referred the matter to the petitioner’s manager in Takoradi who, on investigation, found that there was no truth in the respondent’s letter of complaint. Again she wrote another letter to the Freemason Lodge in Sekondi of which the petitioner is a member. She castigated the petitioner as an unfit person to be considered for the post of a master of the lodge. Here too the lodge authorities dismissed the complaint as baseless.
I must confess that no man, no matter how large his heart, can pull along with such a wife. The evidence further revealed the wickedness in the respondent when she smashed the windscreen of his car which he had parked on Adiembra Road near the former offices of Messrs. Gaisie, Scheck & Co,. a firm of Sekondi solicitors. This was on 9 December 1969. The respondent was subsequently charged with causing damage to property and she was convicted and fined 0250.00, though on appeal the fine, it seems, was set aside on purely humanitarian grounds. But this was not the end of the respondent’s harassment of the petitioner. On 10 December 1969 the petitioner was in an aircraft ready to fly to his native country on holidays. This was at the Kotoka International Airport, Accra. The engines had started when the steps to the door of the aircraft were put back into position. The door was opened and into the aircraft entered the respondent and two policemen. The respondent pointed out the petitioner to the policemen who took possession of his passport, arrested him, took him out of the aircraft and escorted him to the Airport Police Station. The aeroplane, however, left with the petitioner’s luggage. All this happened at about 8.10 a.m. He was kept at the police station for over two hours after which the police handed his passport over to him and ordered him to leave the police station. The time then was about 10.45 a.m. This episode was really humiliating and frustrating and it was the last straw to break the camel’s back. The petitioner went straight from the police station to the Accra office of his company to complain of this incident to
[p.190] of [1974] 2 GLR 186
his general manager, and whilst there a bailiff appeared, in the company of the respondent, with an absconding warrant. The bailiff took the petitioner to the High Court, Accra. He was, however, granted bail. I must say in parenthesis that at the time the petitioner was pulled out of the aircraft by the police at the instigation of the respondent there was no absconding warrant for the arrest of the petitioner. His arrest was therefore illegal. Apparently the respondent had sought the assistance of the police to detain the petitioner whilst the court proceedings for an absconding warrant were in progress in the Accra High Court. It is beyond peradventure that the police had no right whatsoever to behave the way they did and it is not surprising that the petitioner sued the policemen concerned for damages and, I am told, that the case has been settled for a figure. I am aware of this other case because it was before me in this court on a number of occasions.
The conduct of the respondent, in my view, falls very far short of that of a reasonable married woman and no self-respecting married woman would descend into such an unladylike position and behave so unseemingly as the respondent has done on a number of occasions. And no man, however conciliatory he may be can, even with the patience of the biblical Job, tolerate a woman of the calibre of the respondent.
On the evidence I find “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” The marriage has irretrievably broken down. There is no hope of reconciliation as the petitioner himself has told the court. I accept the evidence also that since 1968 the respondent has deserted the petitioner whose petition was sealed on 24 February 1972 in this court. Two years, at least, have elapsed since the desertion: see section 2 (1) (c) of the Matrimonial Causes Act, 1971 (Act 367), and this is a factor to be considered as proof that the marriage has broken down beyond reconciliation.
I am satisfied therefore on the evidence that the marriage has indeed broken down beyond reconciliation, and I accordingly dissolve the marriage between the petitioner and the respondent. I dismiss the respondent’s prayer for judicial separation for lack of evidence, and in any case such a decree will be useless and meaningless to the respondent in view of my decision to dissolve the marriage.
I now come to consider the matter of custody of the only child of the marriage, who was born on 5 October 1955. She is now attending St. Louis Secondary School in Kumasi. In deciding which of the two parents should have the custody of their child the paramount consideration is the child’s own welfare. All other considerations are subsidiary. Section 22 of the Matrimonial Causes Act, 1971, deals with the custody and financial provision for children of the marriage, and subsection (2) of that section enjoins the court in deciding on custody to have regard to what is reasonable and what will be for “the benefit of the child.” The English law criterion based on the “welfare” of the child as being the first and paramount
[p.191] of [1974] 2 GLR 186
consideration is in my view not very much different from our own Principle which makes reference to what is “reasonable and for the benefit of the child.”
This girl, who will be 19 years of age in October this year, is in a secondary school and if she performs creditably in her examinations she may wish to continue in a university in this country or elsewhere, or study for a profession. There is evidence that the father paid her fees in a boarding school in Switzerland for some time before she returned to continue her education here in Ghana. I must not do anything that may thwart the chances of this young girl if she decides to pursue further education or training. The father is asking for the custody of the child and so is the mother. If the child were of tender age certain factors would have been considered to determine the welfare of Patricia. I think in all probability the welfare and well-being of Patricia weighs the decision as to custody in favour of the petitioner and I so decree. The education and maintenance of Patricia is, no doubt, the responsibility of her father. I must, however, consider whether the respondent should be given any access to her child. Of course I know that a mother’s love for her daughter is proverbial, and to deprive a parent of access to her child is to most minds, harsh and unreasonable. Thus in B. v. B. [1971] 3 All E.R. 682, C.A. Edmund Davies L.J. opined thus at p. 688:
“For a court to deprive a good parent completely of access to his child is to make a dreadful order. That is what has been done here, and the impact on both parent and child must have lifelong consequences. Very seldom can the court bring itself to make so Draconian an order, and rarely is it necessary.”
Whilst I do agree with the observations of the learned judge, I must not lose sight of the fact of the unseeming behaviour of the respondent as revealed by the evidence in this case. Short visits from the mother might lead to scenes and disagreements which might seriously affect their daughter. Her visits to the house of the husband from whom she is now divorced could, in view of the uncontrolled and dreadful behaviour of the mother, do no possible good to the daughter and would be pregnant with harm. Here too the welfare of Patricia should be the paramount consideration.
The idea of giving access to a parent in such matters seems to spring from the general notion that there is a basic right in a parent to the companionship of his child but I would prefer to call it a basic right in the child rather than in the parent. The significance of this is simply that no court should deprive a child of access to his parents unless there are strong reasons to the contrary. In this case though custody has been given to the father I do not think it would be in the child’s interest to deprive her of access to her mother who alone in certain mother-daughter relationships can contribute to her emotional and material growth in the long run. I therefore order that at any time the daughter expresses her desire to visit her mother she must be given every facility by the father to do so. Indeed, the father must encourage her to visit her mother from time to time.
[p.192] of [1974] 2 GLR 186
Finally, I come to the important matter of financial arrangements. The respondent in her evidence stated: “If my husband is interested in Hannah Sey and wants to marry her then he must give me a lump sum of money-about 08,000.00.” I asked the parties to try to come to an agreement on the amount in case the petition for divorce succeeded. The respondent then asked for 04,000.00 and the petitioner suggested 02,000.00. I must say this is not an easy task for any court. Despite her unwholesome conduct, I think like most marriages the early part of their marriage was a happy one, and indeed it was so in view of the evidence adduced at the trial. The wife sometimes had her holidays in Europe including the home-country of the husband. The wife no doubt during their happy marriage prepared meals for the husband and she also, I suppose, did the household chores. She now does part-time dressmaking, and this court granted her 080.00 per month alimony pendente lite. She has collected this amount since August 1969, and by May-ending this year she must have collected 04,640. 00. Whilst I must be careful not to grant any astronomical sum that may impoverish the man for after all he also has his own financial responsibilities I think, I have to consider a figure that may assist the woman to make a fresh start in life. According to the age on the marriage certificate, Mrs. Happee is now about 50 years and her chances of re-marriage are almost nil.
Taking all these matters into consideration I think a sum of 02,500. 00 will be adequate in the circumstances, and I order that the petitioner pay this sum of money to the respondent within two weeks from today. I accordingly discharge the order for the payment of alimony pending suit. No order as to costs.
DECISION
Marriage dissolved, no order as to costs.
Alimony pendente lite discharged.
S. E. K.
