AGGREY v. AGGREY AND ANOTHER [1966] GLR 726

Division: HIGH COURT, CAPE COAST

Date: 7 NOVEMBER 1966

Before: ARCHER J.

CASES REFERRED TO

(1) Baxter v. Baxter [1948] A.C. 274; [1948] L.J.R. 479; [1947] 2 All E.R. 886; 64 T.L.R. 8; 92 S.J. 25, H.L.

(2) Hughes v. Hughes (1866) L.R. 1 P. & D. 219; 35 L.J.P. & M. 94.

(3) Callister v. Callister [1947] W.N. 221; 63 T.L.R. 503, C.A.

(4) Dixon v. Dixon (1892) 67 L.T. 394.

(5) Plows v. Plows (1928) 44 T.L.R. 263.

(6) Richards v. Richards [1952] P. 307; [1952] 1 All E.R. 1384; [1952] 1 T.L.R. 1321; 116 J.P. 358; 96 S.J. 375, C.A.

NATURE OF PROCEEDINGS

PETITION for divorce based on adultery. The facts are fully set out in the judgment of the court.

COUNSEL

I. K. Abban for the petitioner.

T. D. Brodie-Mends for the respondent.

JUDGMENT OF ARCHER J.

The petitioner seeks dissolution of the marriage between herself and the respondent on the ground of the respondent’s adultery with one Adjowa Kwaboa. The respondent, in his reply and also at the trial, prayed that the marriage should be dissolved and a decree granted in his favour on the ground that the petitioner’s conduct was conducive to the said adultery which the respondent has admitted. [p.728] of [1966] GLR 726

The parties were married on 29 December 1956 and lived in the matrimonial home at Yamoransa, near Cape Coast in the Central Region of Ghana. At the time of the marriage the petitioner was an assistant mass education officer, stationed at Kumasi. Shortly after the marriage she resigned her job at the request of the respondent and lived with the respondent at Yamoransa. The respondent owned the matrimonial home at Yamoransa and kept a store. The petitioner also had a passbook with Messrs. S.C.O.A. and with the passbook acquired good business and earned profit, it was suggested that the respondent’s store should be converted into a commission store as a prelude to further expansion of the business. This was done after the petitioner had provided the necessary security. Later the petitioner was employed as a matron at the then Teachers Training College at Cape Coast and remained for some time unemployed when the Training College was temporarily closed down. Subsequently, she regained her employment as matron in the same institution now converted into the University College of Cape Coast. She is still employed there.

The respondent, early in 1964 found that his business as a mineral manufacturer had collapsed owing to scarcity of essential chemicals and the impossibility of obtaining import licences to purchase these chemicals from abroad. While at Yamoransa he had a farm at Anyan-Denkyira, his home town, and he therefore decided to transfer his abode from Yamoransa to Anyan-Denkyira and to concentrate on his farming. He also took up a job as a teacher with the Methodist School at Anyan-Denkyira. On the last of three visits which she paid the respondent at Anyan-Denkyira, the petitioner discovered that the respondent had become a father of a son born by one Adwoa Kwaboa, the co-respondent. The respondent admitted that he was the father. However, he maintained during the trial that the petitioner’s conduct towards him was conducive to the commission of the said adultery. The conduct complained of consisted of the petitioner’s refusal to join the respondent at Anyan-Denkyira to perform housewifely duties in consonance with her matrimonial vows and obligations. It was the opinion of the respondent that the petitioner considered the money she earned from her employment of greater importance than the attention and affection which she should have displayed towards him. Moreover, on one occasion, when the petitioner visited Anyan-Denkyira, the respondent was sick in bed but the petitioner did not minister to his needs to ensure his recovery and eventual segregation from the sick bed. Moreover, for nearly seven months the petitioner did not visit him at Anyan-Denkyira thus depriving him of the conjugal solace, succour, comfort and consortium and sexual satisfaction which all virile husbands expect from [p.729] of [1966] GLR 726 their wives. The respondent explained the circumstances leading to the commission of the adultery with the co-respondent in the following words:

“I had no responsible person there to care for me. I had to cook for the labourers on the farm as there was no woman with me. Where a person has no wife, he has to cook for the labourers. For about seven months, she had not come. So it became necessary that I should have somebody to care for me. I got the woman cited to assist me. I have a son a year old with the woman cited.”

The petitioner has refuted the charge that her conduct was conducive to the commission of the said adultery. Immediately she discovered the adultery, she questioned the respondent who simply exclaimed, “Ah well! And so what?” There is no doubt that the petitioner’s hours of duty as a matron involved early home-departure and late home-coming. The respondent himself has admitted that when they were at Yamoransa he used to query the petitioner whenever she got home late. She explained and he, the respondent, accepted her explanation. Even when she did not return to Yamoransa for the night he excused her because her father had a house in Cape Coast and it was safe to assume that she slept in the father’s house at Cape Coast. The respondent never indicated throughout his evidence that it was possible for the petitioner to cohabit with him at Anyan-Denkyira and at the same time attend work at the University College of Cape Coast. It seems to me that daily cohabitation would have been possible only if the petitioner had left her job by resignation in order to live with the respondent at Anyan-Denkyira. Her resignation would have been unfortunate and unreasonable in view of the fact that her financial position in the past had contributed to a large extent to the respondent’s variated career as a store-keeper, a petrol station proprietor and a transport owner.

There appears to be some conflict as to whether the respondent consulted the petitioner before he moved to Anyan-Denkyira. The petitioner has maintained that the respondent left that morning with a truck without informing her previously. For the purposes of my judgment it is not necessary for me to resolve the conflict because after his departure the petitioner also left for Cape Coast and appears to have accepted Anyan-Denkyira as the new matrimonial home by visiting the respondent there and sleeping there over week-ends on three occasions. Nevertheless, there is no evidence that the respondent made any attempt to visit the petitioner at Cape Coast although he was aware that, by the nature of her work, she could visit the respondent at Anyan-Denkyira some of the time but not all [p.730] of [1966] GLR 726 the time. In any case, I think that it would have been unreasonable on the part of the petitioner to have resigned a job carrying a decent salary in order to be a cook on a village farm for labourers. I would not only describe such a step as unwarranted condescension but also as the apogee of indiscretion and human folly.

So much time was taken by the petitioner’s evidence and the respondent’s evidence on the subject of a piece of foreign cloth which was found around the respondent’s loins one evening by the petitioner and by the petitioner’s maidservant in the morning. Unfortunately, this piece of evidence which the respondent has denied does not lead to the verification of any misconduct on the part of the respondent and I have decided to overlook it.

Considering the whole marriage from its inception to the time of the petition, one fact emerges—there is no issue of the marriage although the petitioner had a child with another man before the marriage and the respondent also had children with other women before the marriage. To demonstrate his juvenile virility and procreative prowess at the age of 57 years, the respondent had an issue with the co-respondent Adjowa Kwaboa during the subsistence of his marriage to the petitioner which illustrates the classic dictum of Viscount Jowitt in Baxter v. Baxter,1 “that the institution of marriage generally is not necessary for the procreation of children, nor does it appear to be a principal end of marriage as understood in Christendom . . .”

In the present petition, the respondent has failed to prove that the conduct of the petitioner was conducive to his commission of the said adultery. The petitioner has succeeded in giving a reasonable explanation as to why she was unable to join the respondent at Anyan-Denkyira and I think she should be exonerated completely from any charges of conduct conducing to the adultery. In all civilized countries, unmarried men who take unmarried housekeepers are expected to treat these housekeepers as housekeepers. If these unmarried men choose to commit adultery and indulge in sexual debaucheries with these housekeepers, no one can quarrel with their uninhibited immorality. On the other hand if a married man takes a housekeeper, society expects the married man to keep the house-keeper strictly as a housekeeper and not to confer on her privileges and opportunities which rightly and legally belong to the absent spouse. A married man who not only refuses to keep his eyes off the glamour of his housekeeper but also, girds up his loins and defies his sense of decency and chooses to regenerate his species with his housekeeper as if procreation of children with the lord of the house

[p.731] of [1966] GLR 726 was a concomitant incident to the profession of housekeeping, must face not only the wrath and indignation of society but must face the legal consequences.

I am therefore satisfied on the evidence that on the respondent’s own admission of the charge of adultery, the petitioner must succeed as the petitioner has proved that no aspect of her conduct was conducive to the commission of the said adultery. The respondent has prayed that a decree nisi may be ordered in his favour but as he had not cross-petitioned on one of the grounds known to the law for the disolution of marriage, I am unable judicially to consider that prayer. Any alleged conduct conducing to the respondent’s adultery can only be a discretionary bar to the petition and not a ground for the dissolution of the marriage in the respondent’s favour.

It is settled law that a husband accused of adultery may plead that his wife treated him with insolence and neglect and absented herself without informing him of her whereabouts: see Hughes v. Hughes.2 In the present case, the respondent knew of the whereabouts of the petitioner and the nature of her work which made it impossible for her to perform her daily housewifely duties.

It is also well known that refusal of sexual intercourse may amount to conduct conducing: see Callister v. Callister,3 Dixon v Dixon4 and Plows v. Plows.5 Considering the whole evidence, I am convinced that it is rather the respondent who refused the petitioner sexual intercourse. This refusal started at Yamoransa and continued at Anyan-Denkyira. The petitioner stopped going to the respondent at Anyan-Denkyira when she discovered the adultery and I am of the opinion that she was legally entitled to desist from visiting the respondent or having sexual intercourse with him after the discovery.

In Richards v. Richards6 Denning L.J. (as he then was) stated the principle as follows: “Conduct only conduces to adultery when it is such conduct ‘as is proved to have brought about the adultery’: see Herod v. Herod ([1939] P. 21). There must be conduct which is closely and directly connected with adultery, such as exposing a wife to known and obvious dangers.”

In the present petition, I find that the conduct of the petitioner was not conducive to the commission of the admitted adultery but the adultery was due to the respondent’s own weakness of character and [p.732] of [1966] GLR 726 also to the fact that after finding the co-respondent as a housekeeper, he decided to increase her duties in the house, that is to say, to indulge in concubinage, to sleep with her and to procreate. There is no evidence that before the respondent engaged Adjowa Kwaboa he had consulted the petitioner. The fact of non-disclosure in my view is evidence of the respondent’s intention to enter into this clandestine association without the knowledge and consent of the petitioner. When the parties were resident at Yamoransa, housekeepers were engaged with the agreement of both parties. It is therefore difficult to understand why the respondent did not consult the petitioner if he genuinely intended to engage Adjowa Kwaboa only as a housekeeper and not in another privileged capacity.

In conclusion the respondent’s charges against the petitioner are rejected and the petitioner is hereby granted a decree nisi on the ground of the respondent’s adultery with the co-respondent. The decree nisi may be made absolute after four weeks at the instance of the petitioner. One hundred guineas costs to petitioner to be paid before Christmas Day 1966.

DECISION

Decree nisi granted.

S. K. T.