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  • 1961-12-08
  • GLR 764-768
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Divorce?-Variation of orders for alimony and custody on ground of wife's adultery.


Giving judgment in a divorce suit between the parties the court ordered the husband - respondent to pay G21 per month by way of alimony to the wife - petitioner. The wife was also given custody of their three and a half year old son [p.765] Alexander Edward. This was in 1959. In 1961 the husband applied to the court to cancel the payment of alimony and to give him custody of Alexander Edward on the grounds that the wife had committed adultery with a Mr. Sam and had as a result given birth to a child in December, 1960, and that the said Mr. Sam repeatedly maltreated Alexander Edward. It was agreed that the husband had had no sexual intercourse with the wife since March 1958, but the wife contended that she had been pregnant in 1958 as a result of the last intercourse she had with the husband, and that the husband-applicant is the father of the child born in December, 1960.


APPLICATION to vary orders for alimony and custody.

This is application for variation of an order of alimony and an order for the custody of a child named Alexander Edward made by the Commissioner of Civil Pleas on the 21st January, 1959, on the grounds that: "(a) the petitioner-respondent has been cohabiting with a man called Sam, and has had a child for Sam; and (b) that the child Alexander Edward has been repeatedly ill-treated by Sam."

In support of his application the applicant testified that he had been married to the respondent and that the marriage had been dissolved by decree absolute on the 9th April, 1959. He was an assistant store superintendent at the P.W.D. in Tamale, and in November 1957 his wife had left Tamale after having been involved in a fight with a woman called Auntie Mary, the co-respondent in the suit for divorce brought by the petitioner Ellen Crentsil.

According to the applicant from that time in 1957 he had no sexual intercourse with his wife. At the time his wife left Tamale in November 1957 he had sent one Tipoku a maidservant with the respondent to look after his son Alexander Edward. Tipoku had returned to Tamale in mid-1958 as her mother was ill.

He had filed his application for modification on 24th January, 1961, had appeared before the registrar on the 18th February, 1961, and on the 15th March, 1961 he had received a letter from the respondent dated [p.766] the 11th March, 1961 in which he was informed that the respondent had given birth to a baby girl in December, 1960. He maintained he was not the father of that child.

In cross-examination he admitted that his wife had in fact left Tamale in March, 1958 and that Tipoku had returned to Tamale in September, 1958. He however denied that his wife ever suffered from any trouble in her womb, that his wife had had irregular periods or had suffered any miscarriage. He denied knowledge of anyone carrying a child for three years and stated that he knew solely of the nine months period. He further testified that he was dependent upon Tipoku for knowledge of the respondent's sexual intercourse with Sam and of his child Alexander Edward being ill-treated by Sam. He also admitted receiving a letter from his sister a Mrs. Morris, who, he said, called herself a prophetess but this letter he insisted was received by him only after he had filed the present application.

The witness Tipoku called by the applicant testified that the child Alexander Edward had been beaten on at least three occasions by Sam, and on one of these occasions the beating had resulted in the child having a swollen eye. She also testified that she would see the respondent go into Sam's room at night and later return as the child would be crying and she would be awake. She later varied this by saying that she did not see when respondent went out of her room but would see when she came out of Sam's room.

The third witness Seidu Kotokoli in cross-examination stated that the old lady, mother of the respondent, had told him that the respondent had a female child with Sam who could look after her and that the applicant should be told so, which he accordingly did.

The respondent in her evidence on oath denied that she had ever had intercourse with Sam, who had left the house in August, 1958 and had never returned. She had left Tamale on the 10th May, 1958 with a broken arm and had to receive hospital treatment in Cape Coast. According to her Tipoku had returned to Tamale in May 1958. She also strenuously denied that her child had ever been ill-treated by Sam. According to the respondent, in December, 1960, she was delivered of a baby girl at the Cape Coast hospital and was attended by Dr. Doe. Before leaving Tamale in March, 1958, she had been experiencing irregular periods and from that time her marriage had been troubled with her womb. On her arrival in Cape Coast in March 1958, Mrs. Morris, a prophetess and sister of the applicant visited her and prayed for her.

At the beginning of 1959 she knew she was pregnant. The decree nisi was on the 21st January, 1959, and the decree absolute on the 9th April, 1959, but she never informed her husband of the fact that she knew she was pregnant. A baby girl was born in December, 1960, and she informed the applicant's aunt. The applicant was himself informed by letter dated the 11th March, 1961, at which time his present application was before the court. She maintained that the child born in 1960 was the applicant's child. [p.767]

In cross-examination she admitted that she had last had intercourse with the applicant in March 1958. She had had no intercourse with him since that time and the child had been born on the 12th December, 1960. She had been pregnant with the child for two years eight months. She had three children apart from this child. Her first child had been born after a long pregnancy but she could not remember how long, but thought it might have been a year. According to her between March 1958 and 1960 she had had periodical menstrual discharges, the blood not flowing freely. The two children after her first child were born in the normal period of nine months. She admitted writing the letter exhibit A informing the applicant of the birth of the child on the advice of Mrs. Morris. When the birth of the child was being registered the applicant was not informed. When the child was first registered the name Crentsil was not given, but it was added later to indicate that the child was the applicant's child. She had had to make a second application to have the name of Crentsil added. She had had no sexual intercourse with Sam or anyone else since leaving Tamale. The child had been given the name Nyamekye, meaning gift from God as the seed had been delayed and had been developed through prayer by Mrs. Morris. She had only been to Dr. Doe when the baby was about to be delivered.

Emmanuel Sam called by the respondent admitted he had lived in the house from 1954-1958. He, however, denied having sexual intercourse with the respondent. He stated he left the house in August, 1958, and knew nothing about the child born in December 1960 and denied having ever beaten the child Alexander Edward.

The third witness called by the respondent was Winefred Morris who described herself as a prophetess and a nurse. She testified that it was as a result of the efficacy of her prayers that the respondent had been delivered of a baby girl. She had been given that gift by God. She advised doctors and as a last resort when doctors and medicine failed she was called upon to pray. She had examined the respondent in 1958, found her pregnant but concluded that something was disturbing the growth. Her prayers had been necessary, God had answered her prayers and had been responsible for the birth of the child in December 1960. She knew that the respondent was pregnant in 1958 but she never informed the applicant as she wished the applicant to have a pleasant surprise.

The fourth witness Kodjo Annan supported the respondent and Sam in that he testified that there had been no sexual intercourse between the respondent and Sam and that Sam had never beaten the child.

The applicant's case rests largely on the witness Tipoku, whose evidence I consider to be highly unsatisfactory, teeming with conflicts and completely unreliable. As regards the attempt to prove that Sam is the father of the child born in December, 1960, it is clear from the evidence that Sam left that house in August, 1958, and there has been no evidence to suggest any opportunity for intercourse between himself and the respondent from that date onward, so that it would appear that on the strength of the authorities cited by counsel for the applicant himself [p.768] his application in regard to the variation of the order for alimony should fail dismally and signally.

Had this been the sole evidence in the application I would have had no hesitation or difficulty in refusing it. However, the respondent has herself testified that from March, 1958 she has had no intercourse with her husband and she attempts to explain away the period of gestation conceded by her counsel to be some 940 days by stating that her periods were irregular and that the child was born in answer to the prayer of her witness Mrs. Morris, the prophetess.

It is unfortunate that medical evidence which the court was given to understand at an early stage of these proceedings was to have been led on behalf of the respondent, was in fact never adduced, as it might have assisted to explain the protracted over-lengthy and highly abnormal period of gestation which the respondent testified she had and with which Mrs. Morris, prophetess seems to be so familiar. On the evidence of the respondent herself and on the authorities, in particular that of Preston-Jones v. Preston-Jones1 I consider I am bound to hold that with the non-access of the applicant, the applicant could not possibly be the father of the child born on the 12th December, 1960.

Having regard to the fact that I find the charge of the child Alexander Edward being ill-treated not proved and as the child will in any event be given to the father when it attains the age of seven years, I make no variation in respect of the order for custody of the child. In the circumstances the order of alimony will be varied as from today to the extent that the applicant will now pay G16 per month to the respondent until the child Alexander Edward attains the age of seven years. On the applicant obtaining custody of the child Alexander Edward, he will pay an annual amount of G150 towards the support of the respondent.


<P>Ordered accordingly.</P>

Plaintiff / Appellant

F. Brodie-Mends for J. Reindorf for husband-applicant.

Defendant / Respondent

Dr. J. W. de Graft-Johnson for wife-respondent.


Preston-Jones v. Preston-Jones [1951] A.C. 391; [1951] 1 All E.R. 124, H.L.

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