DANQUAH V. DANQUAH

OSEI-HWERE J.: On 2 September 1958 John Yaw Danquah, the petitioner herein, lawfully took to wife at the district registry of marriage, Tarkwa, Mary Dawson Amoah and thenceforth to be known as Mary Danquah the respondent herein. After the said marriage the couple lived and cohabited at Tarkwa, Dunkwa-on-Offin, and finally at Cape Coast. There are two female issues of the marriage both of whom have, according to the petitioner, had the benefit of university education and are now in employment. The petitioner is presently employed in the accounts branch of the University of Cape Coast whilst the respondent is a senior school teacher at Cape Coast. The husband has filed a petition for divorce disclosing the following facts:

“(4) That there have been proceedings previous hereto in this honourable court with reference to the said marriage and the children of the said marriage by the petitioner but the matter was settled, and an order made by the court for maintenance of the children.

(5) That in the year 1971, the respondent left the matrimonial home and has since refused to return. The respondent left home after a misunderstanding between her and your petitioner and all efforts to get her to return home failed. (6) That the respondent has frequently committed adultery with person or persons unknown, and that by reason of such adultery the petitioner finds it intolerable to live with the respondent.

(7) That from the time in 1971 when the respondent left the matrimonial home aforesaid, the respondent has been habitually committing adultery with person or persons unknown.

(8) That the said marriage has therefore broken down beyond reconciliation.

(9) That your petitioner has not in any manner been accessory to, or connived at or condoned the adultery alleged in this petition.

(10) That this petition is not presented or prosecuted in collusion with the respondent.”

Whilst admitting averments contained in paragraph (4) of the petition the respondent charged in her answer that the petitioner disobeyed the order for maintenance of the children and that this has been her sole responsibility. Her answer ran on:

“(3) The respondent vehemently denies the averments contained in paragraph (5) of the petition and will at the hearing put the petitioner to strict proof of those averments. In further answer to the said paragraph (5) the respondent states that some time in 1972, the elder daughter of the marriage became pregnant and the petitioner sacked her from the house as a result of which she went to live with her uncle in Accra. The respondent pleaded with the petitioner to bring back the girl to Cape Coast where she would be better cared for but the petitioner for no good reason whatsoever refused to allow the girl to return to the house. (5) In desperation, the respondent moved into another flat in the same house where the petitioner lived and then brought the girl from Accra to live with the respondent. (6) Some few days after the respondent had brought back her elder daughter from Accra the petitioner in his usual brutal and violent manner, quarrelled the whole night, threw stones into the bedroom of the respondent and threatened to kill the respondent and her children. (7) Next morning the respondent reported the incident to the then Regional Commissioner, Colonel Bernasko, who advised the respondent to leave the matrimonial home after all efforts at reconciliation had failed. (8) The respondent denies committing adultery as pleaded in paragraphs (6) and (7) of the petition. (9) The respondent rather states that some two weeks after she was forced to leave the matrimonial home the petitioner brought in one Grace Bennin with whom the petitioner has since committed adultery on several occasions. (10) The respondent admits that the marriage has broken down beyond reconciliation, but says that this is due solely to the conduct of the petitioner.”

The respondent in her turn cross-petitioned for a dissolution of the marriage upon her averments contained in paragraphs (5) to (10) of her answer.

At the hearing of the petition the respondent never appeared in court to testify. Her counsel told the court, without mincing words, that she does not intend to oppose the petition. The petitioner gave very brief and barren evidence and openly declined to prosecute his charge of adultery against the respondent. The respondent’s counsel also conspicuously omitted in his cross-examination any reference to the adultery charge the respondent has laid in her answer. The petitioner’s evidence in chief was lacking in that frankness and candour the court hopes in a petitioner praying for the dissolution of his marriage. In divorce proceedings the courts are under statutory and positive duty to inquire so far as it reasonably can into the charges and counter-charges alleged; and that duty cannot be performed by the court without the assistance of the parties and their solicitors.

It is thus that Sir Joselyn Simon P. declaimed in Allford v. Allford [1964] 3 W.L.R. 1057 at p. 1061 that “it is well understood that parties to matrimonial causes and their advisers are under a duty to act with the utmost good faith and candour.” All that the petitioner’s evidence revealed in chief was that in 1971 there was a misunderstanding between him and the respondent which resulted in her leaving the matrimonial home and that since then she has never come back. When the petitioner was cross-examined he revealed the root of their misunderstanding to have sprung from the pregnancy of one of his daughters. Because both the respondent and the daughter would not disclose to him the man responsible for his daughter’s condition he refused to live under the same roof with them and, according to him, he permitted them to live in one of his houses so that the daughter could feel free. The petitioner denied that he had rather forced the respondent to leave the matrimonial home and that he is thereby guilty of desertion. The respondent’s counsel concluded his short cross-examination thus:

“Q. All attempts at reconciliation failed because you would not agree? A. It is not for this reason, reconciliation failed because they would not tell me who had conceived with my own daughter. That was the only cause why we could not reconcile and I have documents to support my case.

Q. You will agree with me that in view of the bitterness engendered by your daughter’s pregnancy you are so embittered against your wife that you cannot live under the same roof with her? A. Yes.”

And to the question put to the petitioner by the court on what attempts at reconciliation there had been since the respondent left the matrimonial home in 1971 the petitioner said that neither of them had ever confronted each other in an attempt to reconcile as he claimed that whenever a meeting was called for that purpose the respondent refused to turn up. This can hardly be in consonance with his earlier reason that reconciliation failed because they would not put him in the picture as to the man responsible.

The petitioner who, in spite of the passage of time, still nurtures his self-righteous indignation against his wife to the extent (as he claims) that he cannot even now bring himself to live under the same roof with her, piously intoned his love for his two daughters (including of course the offending daughter) and stretched out to them his arm of reconciliation. He was earnest in telling the court that as they are his only issues he would wish that they visit him occasionally so that he consults a solicitor on how he can hand over to them one of his four buildings. I sincerely hope that his daughters will reciprocate his good gesture. But that bears no relevance to the petition before me. The Matrimonial Causes Act, 1971 (Act 367), which now regulates petitions for divorce makes the following pertinent provisions:

“1. (2) the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation. 2. (1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one or more of the following facts:—

(a) That the respondent has committed adultery and that by reason of such adultery the petitioner finds it intolerable to live with the respondent; or . . . (e) that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or . . . (3) Notwithstanding that the court finds the existence of one or more of the facts specified in subsection (1), the court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation.”

The requirements in section 2 (1) of Act 367 that the petitioner must “satisfy” the court of one or more of those five facts therein specified to prove that the marriage has broken down beyond reconciliation will mean those facts which a petitioner has both pleaded (in his petition) and proved. It will accordingly exclude facts pleaded but not proved or facts proved but not pleaded: see Rule v. Rule [1972] 1 W.L.R. 218. This must be the proper interpretation because the duty imposed by section 11 of Act 367 on a respondent to allege and prove the facts required by sections 1 (2) and 2 (1) before the court may give the necessary relief to the respondent must be reciprocal. That is why the respondent’s cross-prayer must be dismissed because she failed to prove those facts which she alleged against the petitioner in her answer.

The petitioner’s prayer for the dissolution of his marriage is, from his petition, based on an allegation of adultery against the respondent under section 2 (1) (a) and also on separation for at least five years under section 2 (1) (e) of Act 367. His allegation of adultery has of course not been proved and that must also be dismissed. Act 367 imposes on the court a species of restriction which is unique. For having established by section 1 (2) that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation and having by section 2 (1) laid down those facts, the proof of which shall, prima facie, show that the marriage has so broken down, section 2 (3) checks the court from rushing in to grant a petition for divorce unless the court is satisfied, on all the evidence, that there has been an irreconcilable breakdown of the marriage. In Mensah v. Mensah [1972] 2 G.L.R. 198 Hayfron-Benjamin J. in considering this restriction, said at p. 203:

“Our legislation [Act 367] seems to state that proof of one of the facts shows that the marriage has broken down beyond reconciliation, and yet the court can decline to grant the decree because it is not satisfied that the marriage has broken down beyond reconciliation. The Act seems to draw a distinction between appearance and reality. The petitioner after proving one of the enunciated facts would be held to have shown that the marriage has broken down beyond reconciliation. The court is then to find out whether in truth it has done so. Here the court is directed to conduct an inquiry as far as reasonable into the facts relied on by the parties. The court is then to consider all the evidence, that is, including what it has found on its inquiry, and if satisfied that the marriage has really broken down beyond reconciliation, decree a divorce.”

Section 8 (1) of the Act, indeed, enjoins in terms rather peremptory that on the hearing of a petition for divorce, the petitioner or his counsel shall inform the court of all efforts made by or on behalf of the petitioner both before and after the commencement of the proceedings to effect a reconciliation. Obedience to this requirement of the law will, no doubt, afford a convenient starting point for conducting that inquiry by the court. The petitioner, of course, failed to comply with the mandatory provisions in section 8 (1).

In Knudsen v. Knudsen [1974] 1 G.L.R. 133 Aboagye J. refused to decree a divorce because the petitioner had, inter alia, failed to give any evidence of unsuccessful attempts at reconciliation. The judgment was subsequently reversed by the Court of Appeal as reported in [1976] 1 G.L.R. 204, C.A. which ruled that the law did not expect that in every case there should be evidence of an unsuccessful attempt at reconciliation, and that that instant case was an example of a situation where formal evidence of an attempt at reconciliation was unnecessary. The decision of the Court of Appeal is, of course, binding upon this court and I do not wish to say anything which can possibly be thought to be derogatory of or in conflict with that decision. But I must say that that decision should confine itself to the special and limited facts of that case. The Court of Appeal, indeed, went on to recognise at p. 216, C.A. that:

“. . . in a state of affairs where the duty is placed upon the petitioner to show that the marriage has broken down beyond reconciliation, common prudence indicates that attempts at reconciliation be made whenever possible and that where such attempts have been made without success evidence of these be given to help the court arrive at the desired conclusion.”

It is accordingly inferrable from the decision that in some cases the law would demand evidence of an unsuccessful attempt at reconciliation before it would grant a petition of divorce. This must be one of such cases. I cannot help but think from the evidence that because of his daughter’s pregnancy the petitioner worked himself up to a terror whereby the respondent was forced out of their matrimonial home. His expulsive conduct, although by itself no bar to his petition, should have compelled him to attempt reconciliation before now. Hayfron-Benjamin J. was quick to remind us in Mensah v. Mensah (supra) at p. 204 that Act 367 is not a “Cassanova’s Charter.” Indeed in making the total breakdown of marriage beyond reconciliation as the sole key to divorce the law has shown the strongest desire as far as it can in maintaining the sanctity and indissolubility of the marriage bond. There being no proof before the court of a total breakdown of the marriage, I dismiss the petitioner’s petition and the respondent’s cross-petition. I make no order as to costs.

Appearances

A. H SACKEYFIO FOR THE PETITIONER; O. K. SAMPSON FOR THE RESPONDENT.