ARKU V. ARKU AND ABRAHAM

DJABANOR J.

In this divorce suit the petitioner John Henry Arku has petitioned this court praying that his marriage with the respondent, Ernestina Henrietta Arku, be dissolved on the two grounds that the respondent has deserted him and had committed adultery with one Mr. Abraham. He asked that the court may exercise its discretion in his favour in respect of his own adultery with one Miss Sabina Grant.

The respondent, while admitting her adultery with the said Mr. Abraham, and praying for the exercise of the court’s discretion in her favour because her husband’s conduct conduced to her adultery, also cross-petitioned that she may be judicially separated from the petitioner on the grounds of his adultery and desertion.

The learned counsel for the petitioner found five issues involved in this suit-two of which were admitted-these are:

(a) Whether the respondent committed adultery with Mr. Abraham-this was admitted.

(b) Whether the petitioner committed adultery with Sabina Grant-this was also admitted.

(c) Whether the respondent deserted the petitioner.

(d) Whether the petitioner deserted the respondent.

(e) Whether the petitioner committed adultery with a Miss Paulina Eshun.

I will first deal with the charges of desertion one against the other. It is easier because both parties are relying on the same facts or incident. From the evidence it appears that one evening in 1957 (according to the petitioner) or 1955 (according to the respondent) the respondent left the house to visit Madam Ama Nyame - the aunt of the petitioner. According to the petitioner she returned very late. But the respondent said she returned just after dark, and certainly before the close of evening church service. I do not attach much importance to the time when she returned, because the petitioner admitted that he got to know that the respondent had been to his own aunt - the woman who apparently had asked the hand of the respondent in marriage for the petitioner. When she came back to the house the husband was very resentful and I believe that there was a quarrel and he beat the respondent. The petitioner was almost boastful of the fact that he frequently fought with the respondent. I do not think that one can in fairness describe these brawls as fights. It was a beating of the wife at all times. The evidence as to what led to the brawl on this night was given by the two parties. From their demeanour I had no hesitation in my assessment that the respondent impressed me as truthful and that the petitioner was the reverse. From her evidence and the impression I got from the petitioner he must have been most unreasonable. Even if that very night he did not know that the respondent had been with his aunt, there could be no excuse for his persistence in the quarrel after he had learnt that she had been with his aunt. If he locked her out and she left the matrimonial home because of that disgrace, surely when he knew that she had all the time been with Mami Nyame, the petitioner should, if that was the sole cause of the differences, have sent for the respondent. But apparently this alleged late night would not appear to be the sole cause. The petitioner did not say that the respondent had been over indulgent in these late nights, and no other reason has been given for the departure from the house by the respondent. Although the petitioner talks of them having been fighting as he said “since time immemorial” he refrained from describing the cause of this unhappy state of affairs.

The respondent’s story is that since 1953 and 1954 when Miss Sabina Grant came into their married life she had had no peace or happiness. She suspected that there has been a clandestine and an improper association between her husband and Miss Grant and confessed that there had been incidents whenever she met her in their matrimonial home. In effect she said that up to 1955 she had been hard put to it fighting Miss Grant to keep out of her marriage and that her husband did not improve matters when he too continually beat her on flimsy pretexts. She was able to show a scar on her arm which the petitioner agreed could have been inflicted on her during one of their many pugilistic encounters. According to her she was driven out of the house that night in 1955 and had never returned again. She said many efforts had been made to effect a reconciliation, all motivated by her, but to no avail. These the petitioner denied but he did not say that he had ever attempted to effect a settlement. As I have already observed, if, as according to him, the respondent left the matrimonial home because he locked her out on the wrong assumption that she had been gallivanting, there was a perfect opportunity to bring her back when he learnt that in fact she had been with the aunt. He attempted no reconciliation since 1955 or 1957. In fact the 1958 attempt at reconciliation was also at the instance of the wife’s people.

Perhaps it is important to ascertain when (1955 or 1957) this incident occurred that made the respondent go away? The petitioner said in evidence that on one evening of August 1957 the respondent left the baby in the house and went out and came back after midnight. Theodora Arku was born on 22 February 1954. In August 1957 she was three-and-a-half years. In 1955 she was just a year old. In my view Mr. Arku must have been thinking and anxious about the one-year-old baby rather than the three-and-a-half years old child. I have also said that the respondent impressed me as truthful. I therefore accept her date 1955 and not 1957 as the year of this incident. That means that the respondent left home in 1955.

According to the petitioner the respondent left the matrimonial home on 14 February 1958 and has since never returned. His story was that after the fight in August 1957 when the respondent went away to her mother there was an arbitration on 13 February 1958 which was held in Mr. Winney’s house. According to the petitioner they ran into difficulties from the very preliminaries and the arbitration broke down. Next day the wife’s relatives and the wife came to him and said they wanted to take away the wife’s properties. He allowed them to do so and the wife has not lived with him again. His was the only evidence relating his version of the occurrences of that morning.

On the other side, i.e. the respondent’s side, Mr. Boham gave evidence of what happened at the arbitration, and both Boham and the wife gave evidence of the occurrences of that 14 February morning. According to Boham it was not the quarrel about the absence of the respondent that brought the arbitration to an end but rather the intransigence of the petitioner. He said that the petitioner did not give them a chance-the petitioner insisted that if the respondent would not agree to the arrangement that he married Sabina Grant as second wife then the respondent should collect her belongings from his house and go. He would not continue with the marriage.

According to the petitioner Boham was not present at the arbitration, and according to Boham the petitioner was not present when the preliminary matters were being discussed, but he came in the middle, walked out on them when he was told of the arbitration, and returned to make the statement that he did not want the respondent again. I am not satisfied that Boham was not present.

I am not impressed by the suggestion that because he was not a member of either family he could not have been present. Boham said he was invited to accompany the respondent’s side of the arbitrators, and I know that that is not against custom. I am also not impressed by the evidence that because the respondent was not in the party the petitioner’s people would not start the arbitration.

While it is customary to include the respondent in such a mission I know that she can also properly be excluded and that the problem of her absence could not in itself prevent the arbitration. It may not bring its deliberations to a conclusion. Of the two versions I was impressed by that of Mr. Boham. I accept the invitation to ignore that part of the respondent’s evidence as to the report made to her concerning the arbitration. As to what happened on the next day there cannot be much conflict. It is admitted that the respondent had never lived in the 11th Street house of the petitioner. This living apart from 1955 to February 1958 was not apparently considered by the petitioner as the beginning of the respondent’s desertion. There is no doubt that her property was taken out of the room where it had been kept by the petitioner and given to the respondent and her followers, and that the petitioner did not then exhibit any unwillingness for cohabitation to come to an end. In Rayden on Divorce (9th ed.), p. 165, para. 120, desertion is explained as follows:

“The Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. But in its essence desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party. Desertion is not a withdrawal from a place, but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state.”

Upon the facts it is clear that the respondent left the petitioner’s house that 14 February 1958 because the attempt at a settlement motivated by her people had failed, and that she left with the consent of the petitioner. The petitioner’s counsel referred to the case of Church v. Church [1952] P. 313, where the following appears:

“Lord Macmillan is reported as having said this ([1939] 3 All E.R. 448): ‘In fulfilling its duty of determining whether, on the evidence, a case of desertion without cause has been proved, the court ought not,’ in my opinion, to leave out of account the attitude of mind of the petitioner. If, on the facts, it appears that a petitioning husband has made it plain to his deserting wife that he will not receive her back, or if he has repelled all the advances which she may have made towards a resumption of married life, he cannot complain that she has persisted without cause in her desertion’.”

In fact, according to Boham, they were sent early on the morning of 14 February to ascertain from the petitioner whether or not he meant it when he said the previous day that the respondent should come and remove her things. The petitioner confirmed that he meant it, and when later they went to collect the things the petitioner willingly gave them away. In those circumstances I find that the respondent did not desert the petitioner without reasonable cause, or without his consent. I do not find desertion proved against the respondent.

It is the respondent’s case that there was constructive desertion on the part of the petitioner. Halsbury’s Laws of England (3rd ed.), Vol. 12, p. 246, para. 459 defines the doctrine of constructive desertion as follows:

“Desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife, and the case of a man who compels his wife by his conduct, with the same intention, to leave him.”

In constructive desertion the spouse charged must be shown to have been guilty of conduct equivalent to driving the other spouse away. Halsbury states further that the conduct relied upon may be the conduct of the offending party with a third person. What is the respondent’s story? It is admitted that by 1953 and 1954 the petitioner knew Sabina Grant. I am not prepared to say that they were serious friends at the time. But it is admitted that there were one or two incidents between the respondent and Sabina Grant in 1954 once in the petitioner’s home, and once at the entrance outside. The cause of those incidents was no doubt the friendship, suspected or real, between the petitioner and this lady. I believe that after or during these incidents brawls followed between the spouses. In 1955 an incident occurred as a result of which the respondent was locked out of the matrimonial home. By that time the fights-or rather beatings - had become more and more frequent. The petitioner said that he heard one woman shouting to the respondent not to stay in the house otherwise “this man will kill you.” When the respondent left the house that night she did not return again. But from that day up to February 1958 she made several attempts at reconciliation all to no avail.

Eventually came this arbitration of 13 February 1958 at which the petitioner stated that he did not want to continue with his marriage to the respondent and declared his intention of taking Sabina Grant to Conakry or Bamako. He admitted that he now lives with Sabina Grant. Is this not a clear and unmistakable expression of his intention to bring the matrimonial life to an end? On 14 February the respondent’s people called on the petitioner to learn his real intentions. He confirmed his intentions. Later they went with the respondent and he gave her things to them and they left. In my view he clearly wanted to bring the matrimonial life to an end. I find that he drove the respondent away by his conduct. Since February 1958 he has never expressed any desire to have the respondent back and he has not given her money. I find that the petitioner is guilty of constructive desertion.

The petitioner says that if he was found guilty of desertion then this court should not grant the respondent’s prayer because she had delayed unreasonably in presenting a petition. This ground was not pleaded in the petitioner’s answer, but I shall deal with it. In her reply to cross-examination on this point the respondent said she did not come to court because she still loved her husband. Delay by a wife was often considered meritorious by the ecclesiastical courts in dealing with petitions for divorce, and the court since then has excused long delay by a wife because she had hoped for a reconciliation: see Fullerton v. Fullerton (1922) 39 T.L.R. 46. The law as I understand it is that to be fatal to a petition the delay must be culpable, something in the nature of connivance or acquiescence. I would in the circumstances of this case exercise my discretion in favour of the respondent and grant her prayer on the ground of her husband’s constructive desertion.

The petitioner was also charged with having committed adultery with one Paulina Eshun. He denied it, and Paulina Eshun also denied it. This charge was sought to be proved by the alleged admissions of the said Paulina Eshun herself. I must confess that a very strong case was made by the respondent in this regard, but as in a criminal trial I would give the benefit of the doubt to Paulina Eshun, although I did not think she was telling me all the truth. The question of the paternity of a child is not only a serious matter but also a matter concerning the parents more than anybody else. If Paulina Eshun states, as she had done, on oath that the child is not the child of Mr. Arku, I accept it. In the circumstances I find that the charge that the petitioner has committed adultery with Paulina Eshun has not been proved and she is entitled to costs against the respondent which I assess, in all the circumstances, at 10 guineas.

The result is that I find adultery proved, as admitted, against the petitioner and the respondent, and desertion proved against the petitioner.

The respondent is asking this court to say that the petitioner’s prayer for divorce on the ground of her adultery be not granted on the ground that the petitioner has been guilty of such wilful neglect or misconduct as had conduced her adultery. According to the facts the respondent left the petitioner in 1955 and she made several unsuccessful attempts at reconciliation from then till February 1958.

Her first adultery was some nine months (accepting that as the usual gestation period) before January 1959, i.e. March or April 1958. She said she was not maintained by the petitioner and that in the circumstances she gave in to Mr. Abraham with whom she had these children. The case of Jeffreys v. Jeffreys and Smith (1864) 3 Sw. and Tr. 493 was cited. The headnote reads:

“The husband is bound to give the wife the security and comfort of his home and society so far as his position and business will admit, and if the Court is satisfied that the husband has failed in this duty it will, in the exercise of its discretion, refuse to dissolve the marriage by reason of the wife’s adultery.”

After reviewing the facts which are not much different in substance from the facts here, the court concluded:

“The wife has a right to the comfort and support of the husband’s society, the security of his home and name, and the first protection of his presence, so far as his position and avocations will admit. Whoever falls short in this regard, if not the author of his own misfortune, is not wholly blameless in the issue; and though he may not have justified his wife, he has so far compromised himself as to forfeit his claim for a divorce.”

I am persuaded by this principle which I think contains sound common sense, as well as justice. It seems to me that the petitioner had more concern for Sabina Grant than for the respondent. I will therefore refuse his prayer for divorce on the ground that his wilful neglect of the respondent and his conduct, conduced to her adultery.

Both parties have prayed for the exercise of the court’s discretion in their favour. The cases of Blunt v. Blunt [1943] A.C. 517 and Moor v. Moor [1954] 1 W.L.R. 927 were referred to. In the latter case the case of Blunt v. Blunt was considered. This is what Evershed M.R. said:

“It is clear that, in arriving at his decision, the judge had in mind Blunt v. Blunt [1943] 2 All E.R. 76). In effect, he referred to it because he said: ‘I think I remember a case in the House of Lords which said that the maintenance of marriage as an estate is just as strong a ground of public policy as the happiness of the individuals concerned.’ That is a reasonably accurate reference to the well-known passage in the speech of Viscount Simon L.C., where, he said ([1943] 2 All E.R. 78): ‘To these four considerations I would add a fifth of a more general character, which must indeed be regarded as of primary importance, viz., the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.’ I think that sometimes it is assumed that the utter break-down of the union is so strong an element in the matter that the discretion ought always to be exercised in the petitioner’s favour whenever that has occurred. I cannot accept that view. It seems, indeed, to me to be in conflict with what Lord Simon says, namely, that that consideration must be ‘balanced’ against the public policy which upholds the sanctity of marriage. I ask the question which, I think, the judge asked: If the wife says: ‘We had a lot of quarrels, the marriage was a failure, and so I walked out and started association with somebody else,’ is the court then to say: ‘It is a long time ago, the marriage has broken down, so I will exercise my discretion.”

I cannot say that the judge was wrong when he said: ‘No, I will not. If I do, I am just putting a rubber stamp on this discretion’.”

In this case by persistent conduct calculated to estrange and drive away this woman who has borne him three children, the petitioner gradually and progressively made life unbearable for her in order to have for wife his new girl friend. If at length he has succeeded in driving her away I do not think I should confirm and sanction his plans by giving it, legal backing. There are children of the marriage about whom nothing has been said either in the prayer or in evidence concerning their future maintenance and education.

In these circumstances in order to protect their and the wife’s interest, at least as far as it lies in the court’s power to do so, I think it would be wrong for me to exercise my discretion in favour of the petitioner, and so I refuse it. I have already held that the respondent’s own adultery was conduced to by the petitioner’s neglect and conduct. I will therefore exercise my discretion in her favour.

In the result I will dismiss the petitioner’s prayer for dissolution of the marriage, and grant the respondent’s prayer for judicial separation and I will so decree. Decree nisi is hereby granted to the respondent and the petitioner’s petition is dismissed.

The respondent will have her costs assessed at 60 guineas against the petitioner and the woman cited. I have already awarded the woman named ten guineas against the respondent.

Appearances

AMUA-SEKYI FOR THE PETITIONER; BRITE GAISIE FOR THE RESPONDENT.,ATTA ERSKINE FOR THE WOMAN-NAMED.