MATE vs. AMANOR [1973] 1 GLR 469

CASES REFERRED TO

(1) Dapah v. Madzigbe, High Court, Ho, 30 June 1970, unreported; digested in (1970) C.C. 79.

(2) Mawusi v. Zottor, High Court, Ho, 21 November 1969, unreported.

[p.471] of [1973] 1 GLR 469 (3) Kyere v. Pokuaa, High Court, Kumasi, 27 November 1969, unreported.

(4) Nkrumah v. Manu [ 1971] 1 G.L.R. 176.

(5) Winsmore v. Greenbank (1745) Willes 577; 125 E.R. 1330.

(6) Smith v. Kaye (1904) 20 T.L.R. 261.

(7) Sanderson v. Hudson, The Times, 29 January 1923.

(8) Pritchard v. Pritchard and Sims [1967] P. 195; [1967] 2 W.L.R. 264; 111 S.J. 72; [1966] 3 All E.R.

601, C.A.

(9) Place v. Searle [1932] 2 K.B. 497; 101 L.J.K.B. 465; 147 L.T. 188; 48 T.L.R. 428, C.A. (10) Newton v. Hardy (1933) 149 L.T. 165; 49 T.L.R. 522; 77 S.J. 523.

(11) Elliot v. Albert [1934] 1 K.B. 650; 103 L.J.K.B. 305; 151 L.T. 13, C.A.

(12) Bryant v. Bryant, The Times, 4 July 1967.

(13) Sharples v. Barton (1951) 13 W.A.C.A. 198.

(14) Gottlieb v. Gleiser [1958] 1 Q. B. 267; [1957] 3 All E.R. 715n.

NATURE OF PROCEEDINGS

ACTION for damages against the defendant for the enticement of the plaintiff’s wife. The facts are fully stated in the judgment.

COUNSEL

K. A. Tabi (Ohene-Ampofo leading him) for the plaintiff.

J. O. Dadey for the defendant.

JUDGMENT OF ABBAN J.

In this action, the plaintiff is claiming from the defendant ¢5,000.00 damages for enticing one Margaret Dede Konotey who is the wife of the plaintiff.

The plaintiff is an accountant and was married to his said wife, in or about 1966, in accordance with Manya Krobo custom. Both the plaintiff and the wife come from Krobo Odumase. After the marriage, the wife came to live with the plaintiff in Accra where the plaintiff had been working and where they apparently set up their matrimonial home.

In April 1969, the wife left Accra for Krobo Odumase to spend the Easter holidays. On her return from the said holidays, she informed the plaintiff of her desire to take up employment at the defendant’s hotel called Liberty Hotel. She produced to the plaintiff an agreement which set out the terms and the conditions of service which were to govern her employment at the said Liberty Hotel. She asked the plaintiff for his approval. She also requested the plaintiff to sign the said agreement presumably, as a witness to her signature.

The plaintiff said, after perusing the agreement, he refused to sign it. The wife then left for Krobo Odumase, and some three days later, he had information that she was working at the defendant’s said Liberty Hotel at Krobo Odumase. So he wrote three letters to the wife. In those letters, he said he warned her to leave the hotel. But the wife did not pay heed to the warning.

[p.472] of [1973] 1 GLR 469

When the plaintiff realised that the wife was not prepared to leave the hotel, he went to Krobo Odumase to see the defendant. In an interview with the defendant in the defendant’s office, the plaintiff requested the defendant to release his wife from the services of the hotel on that very day of the interview. The defendant became offended and did not only refuse to countenance the plaintiff’s said request, but also drove the plaintiff away from the office. This was in the presence of one of the employees of the defendant who had then come to the office to see the defendant.

From the defendant’s office, the plaintiff went and lodged a complaint against the defendant with one Asafoatse Kpabitey Kwao who, after arbitrating on the complaint with his elders, decided that the defendant should release the wife from the service of the hotel. The arbitration took place on 14 June 1969, and the said release was to be effected by the defendant at the end of that month. That is, at the end of June 1969, the defendant was to pay the wife and then discharge her from her obligations under the contract of employment which she had entered into with the defendant.

It is the contention of the plaintiff that the defendant again refused to comply with the terms of the arbitration award, but continued to employ the wife and, above all, cohabited with her. The plaintiff therefore maintains that the defendant’s conduct on the whole amounted to enticement.

Stephen Obesi Narh, the first witness for the plaintiff, who was present at the said arbitration, agreed with the plaintiff’s evidence about the final award of the arbitrators, namely, the defendant was to discharge the plaintiff’s wife from the service of the Liberty Hotel at the end of June 1969. As regards the arbitration, the defendant admitted that the award, as stated by Stephen Obesi Narh, is correct. But he disputes the details as to what actually transpired at the arbitration before the said final award was made; and I will deal with the defendant’s version of the arbitration proceedings later on.

However, the defendant denied the plaintiff’s allegation of enticement. He said he is related to the plaintiff’s said wife, he being one of the uncles of the said wife; and that it was rather the wife who, during the Easter of 1969, approached him for employment. He said the wife made it clear to him that she had already informed the plaintiff about her decision to find employment, and the plaintiff had agreed to that decision.

Consequently, the defendant said he agreed to offer her a job at his Liberty Hotel at Krobo Odumase, and he gave her a document which embodied her conditions of service. He asked her to show it to the plaintiff who was in Accra. The defendant said the wife later returned from Accra to Krobo Odumase with the agreement and asked him to change one of the clauses of the agreement, her reason being that it was the plaintiff who, after going through the agreement, had asked that that particular clause should be altered. The change was duly made as

[p.473] of [1973] 1 GLR 469 requested by the plaintiff. Later the agreement was executed and a cousin of the wife, representing the plaintiff, signed as a witness for the wife. The wife then assumed duty at the defendant’s Liberty Hotel as a storekeeper on a salary of ¢38.00 a month. Under the agreement, the wife was given free accommodation on the ground floor of a building near the hotel.

The defendant stated that it was in June 1969, that he received a message from one Asafoatse Kpabitey Kwao to attend an arbitration to answer the plaintiff’s complaint that he, the defendant, had engaged the services of the plaintiff’s wife without the knowledge of the plaintiff. According to the defendant, the case was gone into and the plaintiff was found liable. But in order to avoid further misunderstanding, the arbitrators asked him to terminate the wife’s employment at the end of June 1969, which request he did comply with; and the wife left his employment. She also left the accommodation which was provided for her. He did not therefore see why the plaintiff should institute the present action against him.

The defendant denied persuading the plaintiff’s wife to leave the plaintiff, and he denied having had any carnal knowledge of the wife, whether during the time of her employment at the hotel, or at any other time.

The wife of the plaintiff gave evidence for the defendant. She also denied having been induced by the defendant to depart from the plaintiff. She said the decision to take up employment at the defendant’s hotel was a decision of her own and the defendant had no hand in it. She said while in Accra, she and the plaintiff could not make ends meet, and the plaintiff, having unsuccessfully tried to find her employment in Accra, both of them eventually agreed that she should go back to Krobo Odumase Training College, where before their marriage, she was employed as a cook. She went to the said college, and the authorities there informed her that there was no vacancy as her place had by that time been filled.

The defendant was then a proprietor of both a private institution and a hotel in the town, and so the wife said she approached him to find out if she could be employed. The defendant agreed to employ her at the hotel and the service agreement, which was given to her by the defendant, was shown to the plaintiff who approved of it, subject to one paragraph being changed. She said the defendant agreed to change the said paragraph, as demanded by the plaintiff, and after the said change had been effected, the agreement was signed by her and was witnessed by her own cousin, one Akumatey, on the instructions of the plaintiff.

She said while she was in the service of the hotel, the plaintiff used to visit her and it was in June 1969, when the plaintiff asked her to stop the work, as some members of his family were misinterpreting her working at the hotel to mean that the plaintiff had been unable,

[p.474] of [1973] 1 GLR 469 financially, to support her. She refused to stop the work, and advised the plaintiff to ignore the gossip. But the plaintiff, not being satisfied, lodged a complaint against her and the defendant with the Asafoatse.

The complaint was arbitrated upon by the Asafoatse and his elders, and the plaintiff was found liable and was asked to pacify her with ¢10.00. The wife said she agreed to accept only one cedi out of the ¢10.00. As between the plaintiff and the defendant, the arbitrators ruled that the defendant should release her from the service of the hotel at the end of June 1969. She averred that, in accordance with the terms of the arbitration award, her employment at the hotel was terminated by the defendant at the end of June 1969, and thereafter, she came to Accra to join the plaintiff. But she was compelled to return to Krobo Odumase after some two days, as they were still meeting financial difficulties. She has since been able to secure employment as a chief cook at the Krobo Odumase Training College. She emphatically denied the plaintiff’s assertion that she was enticed by the defendant. She also denied having committed adultery with the defendant, or having in any way misconducted herself with the defendant.

One fact which stands out clearly in this case is that Margaret Dede Konotey is still the plaintiff’s wife, and that the arbitrators decided that her employment at the defendant’s Liberty Hotel should be terminated at the end of June 1969. Both parties and their counsel also agreed that the said award was valid and binding on the parties.

It should also be noted that the arbitrators did not find that the defendant enticed Margaret Dede Konotey to leave the plaintiff. Indeed, the plaintiff’s complaint before the arbitrators was not that the defendant enticed his wife, but that the defendant engaged the services of the plaintiff’s wife without his (plaintiff’s) knowledge and consent. The evidence of Stephen Gbesi Narh is clear on this point. In his examination-in-chief he said, “the complaint of the plaintiff was that the defendant had employed his wife at the Liberty Hotel without the consent of the plaintiff.”

Before making my findings of fact, I have to determine, first of all, the proper law which is applicable in this case. The plaintiff, his wife and the defendant are all educated Ghanaians and they come from Krobo Odumase. The plaintiff and his wife, probably, being believers in the Ghanaian culture, preferred not to resort to the western form of marriage. They were, as I have said, married under Manya Krobo customary law.

The question therefore is, what law should be applied, the common law or the customary law? I must here observe that in customary law, a husband can bring an action in seduction for damages against any one who commits adultery with his wife: see Dapah v. Madzigbe, High Court, Ho, 30 June 1970, unreported; digested in (1970) C.C. 79. This may be the equivalent of the common law action which, before 1857, lay at the suit of the husband against one who had committed adultery

[p.475] of [1973] 1 GLR 469 with his wife. This tort started life as an action for criminal conversation. But it seems the tort of enticement, as has been known at common law, has not got its equivalent in our customary law: see Mawusi v. Zottor, High Court, Ho, 21 November 1969, unreported and Kyere v. Pokuaa, High Court, Kumasi, 27 November 1969, unreported, both cited by Date-Bah and Fiadjoe in “Seduction actions—The Ghanaian experience” (1971) 3 R.G.L. 29 et seq.

So that, unlike tort actions in seduction, there appears to be no customary law rules of enticement which can be ascertained or which are recognised. All the same, the plaintiff will not be denied a remedy and common law principles can be applied to determine this case. After all, the husband’s rights and obligations, appertaining to marriage contracted under the customary law, ought to be distinguished from his legal rights arising out of tort actions committed in respect of the said marriage. And the question as to what law should apply to a tort action, arising out of marriage relationship, should not depend upon the question whether the particular marriage concerned is one contracted under the common law or under the customary law.

That the common law can be applied in the present case has been made clearer by the new Courts Act, 1971 (Act 372). It may be remarked that this action was instituted at a time when the Courts Decree, 1966 (N.L.C.D. 84), was in existence. Paragraph 64 (1) r. 6 of that Decree, did govern tort actions, and under that said rule, customary law could not be applied automatically to tort actions, where even the parties were Ghanaians and their personal law was a system of customary law. That is, where a party was subject to a system of customary law he could not expect that customary law to be applied to his tort actions, unless he claimed the benefit of that law. This he could do by his writ, pleadings or through his evidence; and where he failed to make the choice, common law was applied: see Nkrumah v. Manu [1971] 1 G.L.R. 176.

In the present case, the parties did not claim the benefit of any system of customary law. On the contrary, the general purport or tenor of the pleadings and the addresses of counsel made it quite clear that the parties intended the common law to be the law applicable. Thus, if this action had been tried while the said Courts Decree, 1966 (N.L.C.D. 84), was still in operation, the common law would still have been the proper law applicable to the suit.

However, since September 1971, the situation has been reversed. The Courts Act, 1971 (Act 372), appears to have made obligatory the application of customary law to tort suits between Ghanaians whose personal law is a system of customary law. The relevant provisions are found in section 49 (1), rr. 5, 6 and 7. They are as follows:

“Rule 5, Subject to the foregoing Rules, the law applicable to any issue arising between two or more persons shall, where they are subject to the same personal law, be that law; and where they are not subject to the same personal law, the Court shall apply the

[p.476] of [1973] 1 GLR 469 relevant rules of their different systems of personal law to achieve a result conformable to natural justice, equity and good conscience.

Rule 6. In determining any issue to which the foregoing Rules do not apply, the Court shall apply such principles of the common law, or customary law, or both as will do substantial justice between the parties, having regard to equity and good conscience.

Rule 7. Subject to any directions that the Supreme Court may give in exercise of its powers under article 107 of the Constitution, in the determination of any issue arising from the common law or customary law the Court may adopt, develop and apply such remedies from any system of law (whether Ghanaian or non-Ghanaian) as appear to the Court to be efficacious and to meet requirements of justice, equity and good conscience.”

(The emphasis is mine.)

It will therefore be seen that by the provisions of rule 5 (supra), parties to tort actions whose personal law is a system of customary law do not need to claim the benefit of that particular customary law before it can be applied in their favour. The customary law in question will have to be applied whether they like it or not. The provisions of rule 5 seem to be mandatory. Nevertheless rules 6 and 7 of section 49 (1) of the Act have given the courts unfettered discretion, in any given case, to “adopt and apply” remedies from any system of law where no remedy is available under the customary law, with a view to achieving “substantial justice between the parties.” And since as I have already indicated, the tort of enticement does not seem to have well recognised principles in customary law, the principles and the remedies known to the common law tort of enticement must be adopted and applied, as that will be the only way to meet the “requirements of justice, equity and good conscience.”

What then is the nature of the common law tort of enticement, and the standard or the degree of proof required to substantiate this type of claim? It is an accepted fact that the tort of enticement does not seem to have filled a pressing need, because since its invention in 1745 in the case of Winsmore v. Greenbank (1745) Willes 577, there were only two reported instances of it before the case of Smith v. Kaye (1904) 20 T.L.R. 261. After this, was the case of Sanderson v. Hudson, The Times, 29 January 1923; and there have been, comparatively, very few cases since that time. The reason for this may be that claims of this kind are, probably, frowned upon as being distasteful or it may be because they are difficult to prove. For it has been more difficult to win such a claim than a claim for adultery in the divorce court.

It is also worthy to note that the common law tort of enticement, which has an element of a proprietary interest of one human being in another, has long been severely criticised as anomalous. It sounds rather odd and old-fashioned, these days, to speak of a husband having a right to his wife’s consortium and services, and I cannot agree more with Diplock L.J. when in Pritchard v. Pritchard and Sims

[p.477] of [1973] 1 GLR 469

P.195, C.A. he described such actions as “legal fossils.” In his judgment in that case, the learned lord observed at p. 209:

“Enticement and harbouring as giving rise to actions for damages however, are to be recognised as no more than legal fossils incapable of further growth beyond the point which binding precedent compels us to acknowledge that they had already reached…”

The action of enticement is clearly not in keeping with the times. It is therefore no wonder that in Britain this tort and other allied torts, like harbouring and seduction, have been abolished since 1 January 1971; see the Law Reform (Miscellaneous Provisions) Act, 1970 (c. 33). In Ghana we have not as yet taken any step towards abolishing this kind of tort. I think the time has come when the legislature should look into the matter with a view to abolishing it. Until then, the common law tort of enticement, as has been known in England, will continue to be applicable in Ghana, since the Law Reform (Miscellaneous Provisions) Act, 1970, has no application in this country.

I now come to the burden of proof. I need not emphasize that the burden is on the plaintiff to establish that his wife, Margaret Dede Konotey, was persuaded or induced by the defendant to depart from the matrimonial home and that the plaintiff lost her consortium. In the absence of such proof, the plaintiff cannot succeed. For, the essence of the action is persuading, inducing, inciting or procuring the wife to leave the plaintiff with the result that the plaintiff lost the society or the consortium of the wife. It is the violation of the plaintiff’s legal right to the wife’s consortium which gives the plaintiff the cause of action, and the whole of the defendant’s conduct must be taken into account in deciding whether or not the defendant enticed the wife.

In the classical case of Place v. Searle [1932] 2 K.B. 497 at p. 516, C.A. where the doctor said to the plaintiff’s wife: “Come on, Gwen. We will go.” the Court of Appeal in England held that the trial judge was wrong: (a) in placing the whole evidence of enticement on those words instead of also taking into account the conduct of the parties during the preceding six years and (b) in holding that the plaintiff must prove that the will of the wife had been overborne by the stronger will of the defendant. The Court of Appeal therefore reversed the decision of the trial judge and ordered a new trial. In reading his judgment, Scrutton L.J. at p. 514 said:

“In 1904 we find that in Smith v. Kaye 20 T.L.R. 261 R. S. Wright, J., who was probably one of the greatest masters of the law on the Bench, in considering a case where the brother and brother-in-law of a wife persuaded her to leave her husband, stated the law to the jury thus: ‘If the defendants persuaded her to leave, or induced her to leave, or incited her to leave, or procured her leaving, then they would be liable,’ and the jury returned a verdict for the plaintiff for £500. McCardie J., stated the law in the same way in Butterworth v. Butterworth [1920] P. 126.”

In the same case, Slesser L.J. in the last paragraph of his judgment, at p. 521, laid down the test to be applied in such cases. He said:

“As I have said, in considering whether there has been a violation of that right, the test must be whether something has been done which, but for the interference of the defendant, would not have been done. The question whether what was done amounted to advice or persuasion, may be one of degree, and it is for the jury to consider.”

On the evidence in the present case, can it be said that the defendant’s conduct offended against the principles which have been enunciated in the cases referred to above? There is nothing to show that before the date on which the wife brought the agreement to the plaintiff to witness, the defendant had been having any clandestine association with the plaintiff’s wife. The plaintiff’s complaint before the arbitrators, and the substance of his evidence before this court, is that his wife was employed by the defendant at the defendant’s Liberty Hotel without his consent, and that the defendant refused to terminate the said employment of the wife when the plaintiff requested the defendant to do so; and that the defendant, despite a subsequent arbitration award, persisted in his said refusal to discharge the wife from the service of that hotel.

Having weighed the evidence carefully, I think it was the wife who voluntarily applied to the defendant for employment, and the plaintiff approved of the wife taking up the said employment at the defendant’s hotel. And I accept the evidence of the plaintiff’s wife that the defendant never induced her to enter the service of the hotel. The wife went to work at the hotel on her own free will and with the knowledge and consent of the plaintiff, and with the sole purpose of earning money, however little that might be, to supplement the income of the plaintiff which alone could not support them.

Indeed, the plaintiff “sanctioned” the terms of the agreement; and some few days after the wife had left Accra for Krobo Odumase with the said agreements, the plaintiff, who was then anxious that the wife should work at the hotel, wrote to the wife to find out whether the agreement had been signed, and whether she had assumed duty: see exhibit 1.

Admittedly, in this letter, exhibit 1, the plaintiff expressed some fears that members of his own family might misinterpret the employment of the wife at the hotel to mean that they were facing a financial crisis in Accra. But I think that was exactly the position, and I do not see why the plaintiff should be afraid of such gossip and should not be bold enough to tell those members of his family the truth.

In any event, the plaintiff, in that letter, did not withdraw the consent which he had already given to the wife to work at the hotel. He gave her active encouragement to work at the hotel, and even advised her to discharge her duties properly and efficiently. This is more evident in

[p.479] of [1973] 1 GLR 469 the plaintiff’s second letter exhibit 2, addressed to the wife. This letter was dated 7 May 1969. Its contents are interesting and I will quote the portion relevant to this case. It reads as follows:

“Sister how is everything faring over at home! May be things are moving accordingly. Thanks to God. Please how is your health and how is baby Koleki? With me things are just fine and I have been able to place one young Koforidua boy called Danso, into the circle-kiosk who is doing very very well. The one near to our house also is [being] kept by a certain Krobo small-girl from Somanya who was brought by her mother who also works with Ebony Bar near our kiosk at the circle. Darling, look out for me on Saturday as I shall be coming to see you and sister baby Rita. Greetings to the two of you. I hope your work too is going on very smoothly. Thanks to God Most High! Try to study your work very carefully and judge for yourself if it is good or if otherwise.” (The emphasis is mine.)

In view of the contents of these letters, exhibits 1 and 2, how can it be said that the plaintiff was completely ignorant of how the wife came to be employed in that hotel? I think the plaintiff, to put it mildly, has not been straightforward with the court. I have no doubt, at all, that the plaintiff did not only urge the wife on to continue working at the hotel, but also visited her at Krobo Odumase at week-ends, and thoroughly enjoyed the comfort and companionship of his wife. Surely, this could not be the conduct of a man who had been bereft of a wife’s consortium and was therefore desperately anxious for her return to the matrimonial home.

It seems to me that it was some time in June 1969, when the plaintiff became anxious and protective of the wife, probably out of a sense of devotion to her. It was during one of his usual visits to the wife in the said month of June that he suggested to her to stop the work, because her employment at the hotel was causing a certain amount of talk and gossip among some members of his family. But the wife who had by that time settled down in her said new employment, refused to accede to the plaintiff’s request. I find that it was at this stage that the plaintiff, insisting on having his own way, lodged the said complaint against the defendant with the Asafoatse. From the plaintiff’s letters, already referred to, and from the evidence before the court, it is now clear that the allegations, as contained in that complaint, were false to the knowledge of the plaintiff.

The plaintiff, as I said before, contended that after the wife had refused to leave the hotel, and before the complaint was lodged with the Asafoatse Kpabitey Kwao, he called upon the defendant to discharge the wife from her contract of service. But the defendant refused to countenance that demand, and drove the plaintiff away from the

[p.480] of [1973] 1 GLR 469 defendant’s office. Assuming, for a moment, that the defendant refused to release the wife from the services of the hotel, I think that would not, by any stretch of imagination, amount to enticement. A refusal by an employer to discharge an employee, who is a married woman, from the employer’s service after a demand to do so has been made by the husband of the said employee, cannot by itself be evidence of enticement.

If I were to hold otherwise, I would be revealing a new vista of litigation. I would, indeed, be opening the floodgates of litigation of an undesirable and perhaps, dangerous character; and many an employer would sooner or later find himself defending enticement actions. And it would then not be surprising to find some unsuspecting employers who, anxious to avoid legal proceedings with their attendant publicity even though they may have a good defence, condescending to settle intended enticement actions on a basis which might be nothing but extortionate.

It is here that I have to echo the timely warning which was given by McCardie J. in the case of Place v. Searle already referred to above. In the course of his judgment, the learned judge at p. 504, made the following significant remarks:

“I may perhaps permit myself here to say that whatever may be the true basis of actions of enticement it seems clear that, unless carefully watched and checked by the Courts they may easily develop into recognised methods of wrongful pressure and improper extortion.”

I therefore hold that there was no legal obligation, whatsoever, on the defendant to terminate the service of the plaintiff’s wife, simply because the plaintiff had demanded it. In any case, I find that in compliance with the arbitration award, the defendant did discharge the wife from the service of the hotel at the end of June 1969, and it is not true that after the said date, the defendant continued to harbour the wife at the hotel or at any other place.

There is another point about which it is important that something is said. The plaintiff, in his evidence, accused the wife of having committed adultery with the defendant during the period of the alleged enticement. The plaintiff said, on one occasion, he visited the wife and while they were having discussions about the wife’s return to Accra, the defendant sent for the wife. The wife left him and went away. After some time the plaintiff also left for the defendant’s house to see what was happening. On his arrival at the defendant’s house, the plaintiff said he saw his wife and the defendant sleeping in one bed. He was extremely provoked by this sight, and in consequence thereof, he broke into the bed room where this adultery was taking place.

A fight then ensued and the plaintiff said he had the worse of it; and he later reported the adultery to his father and certain persons. The

[p.481] of [1973] 1 GLR 469 plaintiff never called any of those persons to whom he was supposed to have reported the incident, not even his father. His evidence, on this question of adultery, stood alone in all its glaring improbability. In his evidence-in-chief, he said the incident took place at twelve midnight and he left the defendant’s house, the scene of the incident at 1.20 a.m. However, under cross-examination he changed the time and said at the time he saw them committing the adultery it was 4.20 a.m.

The wife, contemptuously, denied the charge of adultery. She appeared to be astounded when the question of her having committed adultery with the defendant was first put to her. At the arbitration and in his pleadings, the plaintiff did not even suggest that the defendant committed adultery with the wife. It was during the hearing and for the first time, that the plaintiff came out with this story of adultery, and I find it difficult to believe him. It appears to me that the plaintiff was prepared to say anything which he thought would assist his case. In my opinion, there was not even any foundation for any such allegation and I hold that the defendant never committed adultery with the plaintiff’s wife.

I should point out that even if adultery took place, that alone would not be a ground for finding in favour of the plaintiff, so far as the present action is concerned. It must be borne in mind that the action for enticement is wholly independent of sexually immoral factors. So that it is not enough to show that the defendant committed adultery with the wife. To succeed in this type of action, it must be proved, as I have stated, that the wife was persuaded or procured by the defendant to cease cohabiting and consorting with the plaintiff, her husband.

In Newton v. Hardy (1933) 149 L.T. 165, the plaintiff, a married woman, claimed damages against the defendants who were husband and wife, for the alleged enticing away of the plaintiff’s husband by the female defendant. She contended, among other things, that the female defendant had committed adultery with her husband and had enticed him away. The plaintiff was able to prove that the female defendant had in fact committed adultery with her husband, but she failed to prove that the female defendant had induced the husband to cease from cohabitating and consorting with her. The action therefore failed.

In reading his judgment Swift J, at p. 168, said:

“Now I have emphasised the fact that this action does not lie on the part of Mrs. Newton merely because Mrs. Hardy has committed adultery with her husband. She must satisfy me—it is a very difficult situation for her, but she must satisfy me—before I can give her a judgment, that that it was Mrs. Hardy who induced the situation, and I cannot say that.”

The same view was expressed by Scrutton L.J. in Elliot v. Albert [1934] 1 K.B. 650, C.A. At p. 662 of the report the learned lord said:

[p.482] of [1973] 1 GLR 469

“The plaintiff proposes to prove that the defendant enticed her husband away from her whereby she was deprived of the consortium to which she is entitled under the common law. That cause of action can be proved without proving adultery at all; adultery is only one of the matters which may be relevant to establish the cause of action, which may be alleged to prove the loss of consortium is adultery. The cause of action has nothing to do with adultery, and can be proved without proving adultery.”

See also Bryant v. Bryant, The Times, 4 July 1967, and Sharples v. Barton (1951) 13 W.A.C.A. 198.

The plaintiff said the wife has not, up to date, returned to him and he does not even know where the wife is. Whether this is true or not, that has nothing to do with the defendant. For, the defendant carried out the terms of the said arbitration award. That is, at the end of June 1969, the defendant paid the wife and terminated her employment. The wife then left the defendant’s hotel to join the plaintiff in Accra. The plaintiff, in the circumstances, was estopped from making the present claim, even if he had a cause of action.

Presently, the wife is working at the Teacher Training College, Krobo Odumase, and the plaintiff may be well advised, in the words of Denning L.J. (as he then was sitting as an additional judge of the Queen’s Bench Division) in Gottlieb v. Gleiser [1958] 1 Q.B. 267 at p. 268, that the only thing for him to do now is to approach her in the spirit of reconciliation “as best he can to mend his broken life, a task in which these courts cannot help him.” But so far as the present action is concerned, he has failed to prove to my satisfaction that the defendant induced, persuaded, procured or enticed his wife away from him during the Easter of 1969. The wife left him entirely of her own accord and uninfluenced by any deliberate or unlawful act of the defendant. The claim must therefore fail.

Accordingly, the action will be dismissed and judgment entered for the defendant with costs fixed at ¢230.00, inclusive.

DECISION

Judgment for the defendant.

S. O.