ADJETEY AND ANOTHER V. ADJETEY

SARKODEE J.

The petitioner Elizabeth Adjetey then a spinster and called Elizabeth Adwoa Piramang was married to Timothy Adjei Adjetey, the respondent, on 18 May 1966 at the marriage registry, Islington, London, England. The petitioner and the respondent are both Ghanaians. There is no child of the marriage.

Since filing the petition, and the issue of the registrar’s certificate subsequently, the petitioner has taken no steps to prosecute the case. The case was fixed for hearing on 9 August 1972 and adjourned three times on each occasion because the petitioner and her counsel were absent. The case was finally heard on 16 November 1972 in the absence of the petitioner, the respondent being permitted to prove his cross-petition. I do not think the petitioner has shown sufficient interest in prosecuting the petition and I accordingly dismiss same. In his cross-prayer the respondent alleged desertion and adultery committed by the petitioner with two persons, T.D. Baffoe and David Larbie. He stated further that by reason of the said desertion and adultery the marriage has broken down beyond reconciliation and prayed that it be dissolved.

In 1967 the petitioner and the respondent lived together in a rented house at Kanda estate. Whilst there the respondent put up his own house at Teshie. When the building was nearly completed the respondent and the petitioner decided to leave Kanda to live in the new house at Teshie. On the day they moved the petitioner packed her belongings in one car and the respondent in another. They left the house almost at the same time but the petitioner never arrived at the destination, the Teshie house, till after two months when her uncle took her to the respondent at Teshie. She remained in the house for some three months and disappeared again. With the assistance of the petitioner’s father the respondent unsuccessfully looked for the petitioner. Later the husband received information about his wife as a result of which he traced her to the house of T.D. Baffoe at Kanda estate. Since the wife left she has not returned to the matrimonial home.

Adultery must be proved to the satisfaction of the court and even though the evidence need not reach certainty as required in criminal proceedings it must carry a high degree of probability.

“Direct evidence of adultery is rare. In nearly every case the fact of adultery is inferred from circumstances which by fair and necessary inference lead to that conclusion. There must be proof of disposition and opportunity for committing adultery; but the conjunction of strong inclination with evidence of opportunity does not lead to an irrebuttable presumption that adultery has been committed; and likewise the Court is not bound to infer adultery from evidence of opportunity alone.”

(See Halsbury’s Laws of England (3rd ed.), Vol. 12, pp. 237-238, para. 446.)

When the respondent (the husband) was informed of where he could find his wife he, accompanied by one Justice Kwaku Agbekey, a police constable, went to the house of T.D. Baffoe, early one morning at about 6 a.m. They saw the petitioner with only a cloth around her chest preparing breakfast. They also saw a dog which the husband identified as his. The husband then told the wife that he had information that she was living with T.D. Baffoe as husband and wife and that he had gone there to find out whether it was true. The wife said nothing. The constable then asked her what she was doing in that house at that hour of the morning and the wife began to insult him. The constable then showed her his identity card but that made no difference to her and she continued raining insults on him. The wife has since not returned to the matrimonial home. The husband often saw her in the company of T.D. Baffoe. At one time the husband saw her and T.D. Baffoe travelling to Koforidua to spend a night there. In my view the nature of their association, and the opportunities offered for misconduct have been such that acts amounting to adultery must be inferred. The wife did not give evidence nor did T.D. Baffoe who did not even enter appearance. I have not had the benefit of hearing either or both of them in disproof of the charge.

Another charge of adultery was that the wife has had sexual inter- course with one David Larbie. The husband received information from the wife of David Larbie relating to improper conduct between her husband and the petitioner. David Larbie’s wife was not called by the respondent, rather the respondent sought to prove the charge by calling one witness to confirm that he confronted David Larbie with the allegation in the presence of his, David Larbie’s head of department. According to the husband David Larbie at first denied any familiarity with the respondent’s wife but when pressed he admitted the offence. It is my view that one who alleges adultery must show at least a prima facie case. If that is done the court may then, in the absence of evidence in disproof, come to the conclusion that adultery has been committed. In this case no evidence of opportunity and familiarity was led by the respondent. What David Larbie’s wife told the respondent is hearsay. I am therefore not satisfied that this charge of adultery has been proved.

The next point to consider and a very crucial one is the requirement of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367), whether the marriage between the respondent and the petitioner has broken down beyond reconciliation. That subsection provides that:

“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.”

On a proper construction of this subsection of the Act the court can still refuse to grant a decree even when one or more of the facts set out in section 2 (1) has been established. It is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one of the parties that the marriage has broken down will not be enough.

Bagnall J. in Ash v. Ash [1972] 1 All E.R. 582 at p. 586, in construing section 2 (1) of the English Divorce Reform Act, 1969, the language of which is similar to our subsection 2 (3) except that the English Act uses the word “irretrievable, whereas the Ghanaian Act uses the expression beyond reconciliation, posed this question: “... am I satisfied on all the evidence that the marriage has not broken down irretrievably?” In that case the husband to a divorce petition had said and he believed that what he and his wife faced at the time was a temporary difficulty attributable partly to his health and partly to his unemployment and that if the marriage had broken down nevertheless, it had not broken down irretrievably. The wife, on the other hand was adamant. She asserted that the marriage was at an end and stated very strongly and with conviction that there was no possibility of her contemplating living with the husband as his wife. Bagnall J. stated at p. 586:

“Simple assertion either way, it seems to me, cannot suffice. What I have to do is to examine the whole of the evidence placed before me, including and giving not inconsiderable weight to the assertions of the parties, and make up my mind, quite generally, whether it can be said that in spite of the behaviour of the wife, the marriage has not broken down irretrievably.”

In this case the respondent in his cross-petition asserts that the marriage has broken down beyond reconciliation and repeated this in his evidence. The petitioner did not give evidence. There is, however, evidence that she has often been seen in the company of another man and has been seen by the respondent travelling outside Accra to spend week-ends with that man. Her father following a report made by the respondent came to Accra to look for her but did not find her. The respondent located her and when he went to where she was she met him and his witness with insults. She has for three years refused to return to her husband. She still lives with T.D. Baffoe as husband and wife and has since filed a petition praying for the dissolution of her marriage with the respondent. With this behaviour of the petitioner the respondent cannot be expected to live with her. I therefore hold that the marriage between Elizabeth Adjetey and Timothy Adjei Adjetey has broken down beyond reconciliation.

I now turn to the claim of damages by the respondent. Diplock L.J. quoting McCardie J. in Pritchard v. Pitchard and Sims [1967] P. 195 at p. 211, C.A. said the damages recoverable has two aspects and went on “...the pecuniary aspect and the consortium aspect, and in both these aspects the damages recoverable by the husband must be affected by the erosion of his legal rights in respect of his wife.”

In assessing the pecuniary loss regard must be had to the services which the husband loses, for example, the wife as a housekeeper, mother to his children, partner or associate in his business. In this case, no specific pecuniary loss is alleged or proved. There are no children to the marriage. Further the husband is under no obligation to keep the wife now or in the future. Thus in terms of money the husband has lost only a housekeeper whom he has not yet found it necessary to replace. If anything, he is better off financially now that his wife has gone from home.

As regards assessment of the injury to feelings, honour and pride inflicted upon him by his wife’s adultery. Scarman J. at p. 216 of Pritchard v. Pritchard and Sims (supra) said:

“Here there is a risk of the law moving in the realm of fantasy, measuring that which is immeasurable. Different men react differently, and how can one put a figure on the injury sustained ... The sum must be reasonable so that the solatium offered is no mere empty show. It is to be a genuine balm to injured feeling, yet it must be modest; it is not intended as punitive or exemplary, and cannot, however large or small ever pretend to reflect accurately the injury inflicted.”

It seems to me therefore that the whole exercise must be looked at from the point of view of the impact upon this particular husband in the context of the times in which he lives and against the background of contemporary habits of thought, feeling and action. Finally one must not forget that for personal loss, such as we are now considering, time is a great healer.

I award ¢600.00 damages against the co-respondent. Costs ¢400.00 to be paid by the co-respondent. The marriage between the petitioner and the respondent is hereby dissolved.

Appearances

NO APPEARANCE FOR THE PETITIONER; E. M. A. ABLORH FOR THE RESPONDENT.