JOHN vs. JOHN AND ANOTHER [1973] 2 GLR 434

NATURE OF PROCEEDINGS

PETITION for divorce by the petitioner on the ground of breakdown of marriage due to the respondent’s cruelty and adultery, and a claim for damages against the co-respondent. The facts are sufficiently stated in the judgment.

COUNSEL

K. K. Dei-Anang for the petitioner.

No appearance by or for the respondent and co-respondent.

JUDGMENT OF ABOAGYE J.

The petitioner herein seeks dissolution of his marriage to the respondent on the ground that the said marriage has broken down beyond reconciliation owing to cruel conduct and adultery on the part of the respondent. The petitioner also claims damages against the co-respondent herein for committing adultery with his wife thereby causing the breakdown of his marriage.

Copies of the petition were served on the respondent and the co-respondent but they did not even enter appearance. In his petition the petitioner stated that the co-respondent had committed adultery with the respondent quite frequently and that since 30 September 1971, the two have been living together in the co-respondent’s flat at Kwabenya. It was further stated in the petition that the respondent had refused to move with the petitioner from Kwabenya where they previously had their matrimonial home to Tesano where the petitioner had been given new accommodation.

The petitioner gave evidence which clearly showed that on a number of occasions the co-respondent had gone out with the respondent and the latter had returned home very late in the night or in the early hours of the following day. He had seen the respondent and the co-respondent together at night in compromising situations and had remonstrated with the respondent against her association with the co-respondent but his remonstrations had always been met with abuses and insults from the respondent. On 6 July 1971, at about 4 o’clock in the morning, the petitioner could not find the respondent in her bed and when he went out he saw through a window of the co-respondent’s bedroom that the co-respondent was lying on his bed and the respondent was sitting on the bed dressing. The only inference to be drawn from that situation is that the co-respondent had committed adultery with the respondent.

The petitioner’s only witness, Dr. Margaret Earle of the University of Ghana, Legon, gave evidence that some time towards the end of 1970 the respondent told her that she had been having an affair with the co-respondent. She also told the court that some time in or about August

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1971, she went to the petitioner and respondent in their flat after she had noticed that the relationship between them had got strained and she was then told by the respondent and petitioner that there was no hope of their getting reconciled.

The evidence of the petitioner and his witness was unchallenged and I am satisfied therefrom that the marriage between the petitioner and the respondent has broken down beyond reconciliation as a result of an adulterous association between the respondent and the co-respondent beginning from the summer of 1970 and which still continues. I also find that the behaviour of the respondent in refusing the demands of the petitioner that she should discontinue her association with the co-respondent and her insulting and abusing the petitioner and refusing to go with him to his new matrimonial home were the main factors which led to the breakdown of the marriage.

As regards the damages against the co-respondent the Matrimonial Causes Act. 1971 (Act 367), is silent on a husband petitioner’s right to claim damages against an adulterer. Before the enactment of the Matrimonial Causes Act, 1971, the principal Act governing matrimonial causes in this country was the English Supreme Court of Judicature (Consolidation) Act, 1925 (15 & 16 Geo. 5, c. 49), as subsequently amended by English legislation up to the Divorce Reform Act, 1969 (c. 55). The Supreme Court of Judicature (Consolidation) Act of 1925 re-enacted section 33 of the Matrimonial Causes Act, 1857 (20 & 21 Vict., c. 85), which gave a husband petitioner the right to claim damages against an adulterer. That right was preserved by section 41 of the Matrimonial Causes Act, 1965 (c. 72). It was by virtue of the English statute referred to above that a husband petitioner in this country could claim damages against a man who committed adultery with his wife in a matrimonial cause.

By section 44 (1) of the Matrimonial Causes Act, 1971 (Act 367), “Any English statute relating to matrimonial causes which was in force in Ghana immediately before the commencement of this Act shall cease to apply.” The effect of the section just quoted is that the only Act governing matrimonial causes in this country is our own Matrimonial Causes Act of 1971, and since that Act does not give the right to a husband petitioner to claim damages against an adulterer, the court cannot assume jurisdiction over any such claim in a matrimonial cause and the petitioner’s claim for damages against the co-respondent must fail.

In the end I grant the petitioner’s petition for divorce and do hereby decree that his marriage with the respondent be dissolved. The co-respondent will pay the petitioners costs which I assess at ¢200.00.

DECISION

Petition for dissolution of marriage granted.

Claim for damages against co-respondent dismissed.

S.O.