ERSKINE V. ERSKINE

TWUMASI J.

This is an action for the dissolution of the marriage contracted on 29 September 1973 by Mr Kwamina Atta Erskine, barrister-at-law, who has his permanent place of abode at No 55 Chapel Hill, Takoradi, and Mrs Justina Gyanba Erskine, the supervisor of Planned Parenthood Association of Ghana, stationed at Takoradi. It is the husband, Kwamina Atta Erskine, who petitioned for an order to dissolve the marriage. The main ground for which divorce was sought was that since January 1975 the wife had been guilty of desertion and from all indications the marriage had broken down beyond reconciliation. In her answer to the petition the wife admitted desertion but gave reasons for her conduct. The petitioner disputed the validity of those reasons and challenged the wife to substantiate her allegations. When the case became ripe for hearing counsel for the wife stated that his instructions were that the wife had no objection to the dissolution of the marriage but was prepared to pursue her cross-petition that the custody of the eight-year old son under the wrecked marriage be granted to her. As if he was under a reciprocal obligation the husband renounced this contest for the custody of the son. Under the circumstances, the court spared no time in ordering immediate dissolution of the marriage and granting custody of the son to the wife and, intuitively, proclaimed that there would be no order as to costs.

At this stage counsel for the wife submitted that his client was entitled to costs because, as he put it, the practice in matrimonial causes had been that the husband was obliged to pay his wife’s costs. He referred to Tolstoy on Divorce (5th ed), chap 12, pp 204-205 on costs between husband and wife and also to Halsbury’s Laws of England (3rd ed). Vol 19, paras 1401 and 1427 on costs of proceedings for divorce or judicial separation. The husband in person disputed this proposition and in reply referred to Miller, Family Property and Financial Provision. p 4 of the introductory chapter and submitted that the legal position was that husband and wife were placed on an equal footing with regard to financial provision and a husband was no longer bound to pay his wife’s costs in matrimonial proceedings. I would endeavour to restate the legal position as it was some years ago and to ascertain its development up to date.

It is well-known that where no provision is made by our High Court (Civil Procedure) Rules, 1954 (LN 140A), then under the provisions of Order 74 the practice and forms in force for the time being in the High Court of Justice in England have, so far as can be conveniently applied, been in force in our High Court. Unfortunately there does not seem to be a single reported local case dealing with the issue of costs between husband and wife on dissolution of their marriage. The practice in England before the enactment of the Matrimonial Proceedings and Property Act, 1970 had been this: Since the relationship between husband and wife was based on the economic dependence of the latter on the former upon marriage the common law imposed a duty on the husband to maintain his wife during cohabitation and this enabled the wife to pledge the husband’s credit for her necessaries if the husband failed in his duty. A wife’s costs in divorce proceedings reasonably incurred were regarded as necessaries: see Abrahams (M) and Sons and Co v. Hoffe-Miles (1923) 40 TLR 2; Wright v. Annandale [1930] 2 KB 8, CA; and J N Nabarro and Sons v. Kennedy [1954] 2 All ER 605. But if the wife committed adultery or other misconduct her right to pledge her husband’s credit for necessaries was lost: see Durnford v. Baker [1924] 2 KB 587, CA; and Arnold v. Amari [1928] 1 KB 584 and her solicitor could not recover costs whether she was the petitioner or respondent. This practice had persisted even after the coming into force of the Married Women’s Property Act, 1882 (45 and 46 Vict, c 75) which established the principle of separation of property between spouses and abolished the ecclesiastical rule that upon marriage a wife’s property became vested in her husband. Also where it was proved (and the onus lay on the husband) that the wife had a separate estate the husband’s obligation to pay costs ceased (see Tolstoy on Divorce (supra) at 205). If therefore we were to proceed on the law as it existed before the enactment of the Matrimonial Proceedings and Property Act, 1970 (c 45) of England, the wife in the instant case would have been deprived of her right to pledge her husband’s credit for her solicitor’s costs because she would have been guilty of misconduct, to wit wilful desertion of her husband since January 1975.

But the law in England as at 1970 would clearly place her in a worse position. Section 41 (1) and (2) of the English Matrimonial Proceedings and Property Act, 1970, provided as follows:

“41 (1) Any rule or law or equity conferring on a wife authority, as agent of necessity of her husband, to pledge his credit or to borrow money on his credit is hereby abrogated. (2) Section 20 (4) of the Matrimonial Causes Act, 1965 (which provides that if in a case of judicial separation alimony has been ordered but has not been paid by the husband he shall be liable for necessaries supplied for the use of the wife) shall cease to have effect.”

In view of the provisions of the English Matrimonial Proceedings and Property Act, 1970, it is quite clear that as at 1970 the rule of practice for the time being in force in England and which was also applicable to Ghana by virtue of the provisions of Order 74 of our LN 140A was that a wife had no authority to pledge her husband’s credit for costs in matrimonial proceedings whether she was the petitioner or respondent. Now husbands and wives are placed on an equal footing and are subject to the general discretion of the court respecting award and payment of costs. This rule of law remains the same even after 1970 because section 24 of our Matrimonial Causes Act, 1971 (Act 367) places a statutory stamp upon the English practice by providing as follows:

“24 At any time after the commencement of the proceedings, the court may require either party to the marriage to pay to the other party such sum or sums of money as are reasonable to enable that party to maintain or defend the suit.”

The policy rationale behind the institution of costs in litigation has been judicially articulated in SCOA Motors v. Koranteng [1967] GLR 263, CA where Azu Crabbe JA (as he then was) said at 273:

“The real object of awarding costs is to recoup a plaintiff who had successfully established his right to maintain the litigation which he had commenced or the defendant who had been wrongly dragged into court and harassed with litigation.”

In order not to frustrate the policy rationale behind the award of costs in litigation it is of paramount importance that every court, superior or inferior, takes the question of costs seriously to ensure that justice is done to the parties not only in respect of the merit of the issues but also with regard to expenses incurred by them in the prosecution of the case. Unless the parties themselves reach a compromise on the quantum of costs it is the duty of the court to conduct or cause to be conducted a thorough inquiry into the expenses incurred by the parties and use it as a guide in awarding costs bearing in mind that unreasonable and unnecessary expenses are not to be countenanced. The court must exercise its discretion in a judicial manner and this requires that all relevant factors should be taken into consideration and impartially adjudicated upon in fairness to the parties involved in accordance with reason and justice and not according to a feeling of hostility or sympathy. Thus in Mackenzie v. Yeboah, Court of Appeal, 2 February 1970; digested in (1970) CC 103 the Court of Appeal drastically reduced costs awarded in the court below on the ground that the learned trial judge allowed his sense of shock (which the evidence of an accident gave him) to penalise the appellants in costs. Care must be taken by the court to avoid misapprehension of the facts relevant to the assessment of costs as such misapprehension often leads to injustice: see Worbi v. Asamanyuah (1955) 14 WACA 669.

Upon a careful reading of some textbooks and a number of decided cases, I have arrived at a few factors or guidelines for the award of costs and these are:

(1) The fact that a party has unduly delayed the trial by causing unnecessary adjournments: Guardian Assurance Co, Ltd. v. Khayat Trading Store [1972] 2 GLR 48, CA;(2) Costs should normally bear a relationship to the trial and its incidents and not to the measure of damages awarded. Since costs are in the discretion of the court and the law requires that such discretion should be exercised reasonably, it is wrong for a court to award costs on the basis of a so-called ten per cent of the damages awarded: Guardian Assurance Co, Ltd. v. Khayat Trading Store (supra);(3) The fact that the point which forms the main basis of the judgment or decision was raised not by counsel but by the court: Asamoah v. Koufu (1958) 3 WALR 315;(4) Costs must neither be excessive nor ridiculously low but must be reasonable having regard to the circumstances of the case, eg. the fact that the issues were simple and the trial took no considerable time and energy in its preparation and disposal: Bank of Ghana v. Nyarko [1973] 2 GLR 265, CA and Sasraku v. David [1959] GLR 7, CA;(5) a party can, in the discretion of the court exercised judicially, that is to say by giving sufficient and good reasons, be deprived of his costs in exceptional cases, otherwise a successful party is always entitled to costs: London Welsh Estates Ltd. v. Philip (1931) 100 LJKB 449, for instance if the court is satisfied that the conduct of the party has involved the defeated party unnecessarily in the expense of litigation;(6) insolvency or impecuniosity of a defeated plaintiff is not a sufficient ground upon which a court can deprive a successful defendant of his costs, nor is the insolvency or impecuniosity of a defeated defendant a good ground for depriving a successful plaintiff of his costs: Amalgamated Press Ltd. v. Independent Press Ltd. [1960] GLR 113; and(7) Where each party is only partially successful, eg. Where a plaintiff is successful on his claim and the defendant is also successful on his counterclaim, costs are apportioned proportionately in terms of the issues and incidents in each action or where appropriate each party bears his own costs: Gariba v. Ibrahimah (1951) 13 WACA 171.

In a matrimonial proceeding such as the case before us where one spouse succeeds in the action for dissolution of the marriage on some ground of misconduct committed by the other spouse, the successful spouse shall be entitled to costs against the unsuccessful spouse but the latter would not be entitled to costs on the ground that he or she has been successful in a claim for custody of a child under the marriage. The reason is that the claim for the custody was only subservient to the main action for the dissolution and equity would not permit a guilty spouse to gain advantage by way of costs in a matrimonial cause. I would therefore refuse the wife’s application for costs. On the other hand I order no costs for the husband because he waived costs by his conduct.

Appearances

KWAMINA ATTA ERSKINE IN PERSON; EBO BENTSI-ENCHILL FOR THE WIFE.