TSOGBE v. TSOGBE [1971] 2 GLR 69

DIVISION: IN THE HIGH COURT, HO

DATE: 27 MAY 1971

BEFORE: FRANCOIS J.

CASES REFERRED TO

(1) Gillooly v. Gillooly [1950] W.N. 524; 94 S.J. 778; [1950] 2 All E.R.1118n, C.A.

(2) Filmer v. Filmer (Practice Note) [1959] 1 W.L.R. 492; 103 S.J. 329; [1959] 2 All E.R. 219n.

(3) Coleman v. Coleman [1955] 1 W.L.R. 1235; 99 S.J. 815; [1955] 3 All E.R. 617, C.A.

(4) Williams v. Williams and Harris [1966] P. 97; [1966] 2 W.L.R. 1248; 1 10 S.J. 287; [1966] 2 All E.R. 614, C.A.

(5) Hanslip v. Hanslip, C.A. (1953) No. 301, unreported.

NATURE OF PROCEEDINGS

RULING on appropriate time to examine on adultery where discretion statement filed by petitioner.

COUNSEL

Amaney for the petitioner.

Ockiyah for the respondent-cross-petitioner.

JUDGMENT OF FRANCOIS J.

The question for a decision is whether a petitioner for divorce can be examined on her adultery where a discretion statement has been lodged. This issue has no doubt arisen because of the paucity of matrimonial causes originating in this court with the correlated difficulties attendant on procedure. In fact, this is the first divorce suit that has come before me in this court for the past three years. The question is however resolved by reference to Rayden on Divorce (10th ed.), and I regret I have to embark on a lengthy exercise. I start with the following quotation appearing at p. 324:

[p.70] of [1971] 2 GLR 69

“It is the duty of solicitors to ask the party seeking relief in a clear and unequivocal terms if he or she has been guilty of adultery. But it is frankness at the hearing which is required of the petitioner; this consideration outweighs a failure fully to disclose acts of adultery in a discretion statement.” The case of Gillooly v. Gillooly [1950] 2 All E.R. 1118n, C.A. where a complete disclosure was made only after the case had been adjourned is in support of this point. Rayden makes the added point that where discretion is sought the petitioner should deal with the fact of her own adultery in the place in which that fact chronologically appears. Again at pp. 616-617 the learned author says: “The proper time at which to put in the discretion statement is at the point in the petitioner’s evidence of the history of the marriage where the fact of his own adultery chronologically appears. The Court of Appeal has deprecated the practice of deferring the production of the statement until after the completion of the petitioner’s evidence. (Lewis v. Lewis [1958] P. 193; [1958] 1 All E.R. 589, C.A.) The petitioner must himself give evidence on oath at the hearing as to the contents of his own discretion statement, even though the suit is proceeding on the prayer of the respondent’s answer, if the statement is to be admissible as evidence of his adultery. (Filmer v. Filmer [1959] 2 All E.R. 219.)”

If, as Rayden says, the question of the exercise of discretion can only arise where the court is satisfied on the evidence that the case has been proved, there clearly must be the evidence first for the rule to be applicable. In short, no evidence, no discretion.

I believe the problem has arisen mainly from the interpretation of rule 28 (5) of the Matrimonial Causes Rules, 1957 (S.I. 1957 No. 619), which states:

“(5) Neither the fact that a discretion statement has been lodged or that such notice as aforesaid has been given nor the contents of the discretion statement or notice shall be given as evidence against the party lodging or giving the same in any matrimonial cause or matter except when that party has put the discretion statement or notice or the contents thereof in evidence in open court.”

This rule merely postpones the time when matters connected with the discretion statement can be ventilated in open court, until the admission in evidence of the statement. The Law and Practice of Divorce by Tolstoy (6th ed.) was cited to me where at pp. 286-287 this interpretation is put on rule 28 (5): “The last words mean that as soon as the discretion statement has been put in evidence by the petitioner its contents become part of the evidence and the respondent is free to make such use of it as he can.” [p.71] of [1971] 2 GLR 69

Where a prayer seeks the court’s discretion, an admission of adultery is immediately implied. This prevents the other spouse from raising it or making capital out of it. But the court will not exercise its discretion until the discretion statement is in evidence. It is at this stage that the respondent may question thereon to see whether a fulsome disclosure has been made. It seems to me that since a paramount consideration is the candour or lack of it on the part of the suitor who seeks discretion to be exercised in his favour, the mere lodging of the discretion statement cannot provide the test of frankness unless it is coupled with equally frank testimony after the statement has been admitted.

In Coleman v. Coleman [1955] 3 All E.R. 617, C.A. a wife petitioned for divorce asking for the discretion of the court, to be exercised in her favour. The court however felt she had not been completely frank and refused to grant a decree. Denning L.J. as he then was said at p. 619 that, “On the wording of the

[Matrimonial Causes Act, 1950] in order to refuse a decree, it is plain that the only adultery on which the commissioner can act is adultery which he ‘finds’ to have been committed, i.e. adultery which is proved or admitted before him.” The case of Williams v. Williams and Harris [1966] P. 97, C.A. settles the issue beyond controversy. That was a case in which a husband was most promiscuous and profligate in his adulterous associations yet sought the court’s discretion to be exercised in his favour. It was of course denied him on a number of grounds. What concerns us however is the comparison which all the judges felt compelled to make of the facts of adultery in the discretion statement as against the evidence of adultery adduced before the court. Among other things a full and frank disclosure of adultery was demanded. Willmer L.J. giving the facts of the case at p. 102, C.A. stated, “The husband’s discretion statement is silent as to any adultery committed during this period [1957-1958], but when he was asked in the course of his evidence whether he had again committed adultery he said that he could not remember.” Pausing for a moment, I must say that if this passage suggests anything at all, it shows that such questions as were sought to be asked in the instant case are permissible at their proper time. Willmer L.J. continued at p. 103:

“So far as the facts are concerned, the commissioner made it clear both by his remarks during the hearing of the evidence and by what he said in the course of his judgment that he thought there were significant discrepancies between what the husband had said in his discretion statement and what he said on oath in the course of giving his evidence.”

Davies L.J. at p. 110 concurring in the judgment of Willmer L.J. quoted Hodson L.J. in Hanslip v. Hanslip, C.A. (1953) No. 301, an unreported case which starts with the trial judge’s observations: “ ’Now [counsel] for the wife says however badly she has behaved her adultery was condoned by the husband . . . The only adultery

[p.72] of [1971] 2 GLR 69 of which I have any knowledge was condoned by the husband; that is perfectly true, and condonation is, of course, a powerful factor in assisting the court on the problem as to whether or not it should exercise its discretion in favour of the party seeking the exercise of that discretion, but on all the facts of this case I have come to the conclusion that the wife’s evidence is so unreliable, so untrustworthy, that despite the undoubted condonation of the adultery . . . in the light of her own conduct I am unable to grant her a decree.’ Nothing seems to be plainer than that the learned judge was utterly dissatisfied with the petitioner’s evidence, and in considering her evidence he was considering in particular whether he could feel sure that she had made a proper disclosure.”

My ruling consequently is that questions sought to be asked by the respondent relating to the petitioner’s adultery cannot be allowed at this stage when the discretion statement has not been put in. This hardly affects the respondent’s case as without the discretion statement the petitioner may as well say farewell to any chances of success in this suit.

DECISION

Hearing to proceed.

J. D.