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  • appeal
  • 1982-09-21
  • 2 GLR171-175
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Husband and wife?-Maintenance or alimony order?-Application for modification?-Divorced wife gave birth to a child after decree absolute?-Ex-husband not the father of the child?- Whether variation of maintenance order justified?-Unfettered discretion of court?-Supreme [High] Court (Civil Procedure) Rules, 1954, Order 55, r. 42?-Administration of Justice (Miscellaneous Provisions) Act, 1938 (1 2 Geo. 6, c.63), s.14.


H. applied to the High Court for, inter alia, cancellation of an order for alimony or permanent maintenance on the ground that W.'s circumstances had changed in that since the order was made she had given birth to a child of which H. was not the father. H. further alleged that one Mr. Sam was the father of the child and that W. was cohabiting with him. The trial court found that while there was no proof of the allegations concerning W.'s relationship with Mr. Sam, since H. had not had access to W. since March 1958, H. could not possibly be the father of the child born in December 1960. The court therefore ordered a reduction in the maintenance order. H. appealed.


APPEAL by the husband from a judgment of Scott, J. which reduced an order for alimony payable by the husband to the wife, on the ground that the wife, since the making of a decree absolute of divorce, had given birth to a child of which the husband was not the father. The husband appealed and argued that in the circumstances the order for alimony should have been discharged. The facts are fully set out in the judgment of Scott, J. reported in [1961] G.L.R. (Pt. II) 764.


Sarkodee-Addo J.S.C. delivered the judgment of the court. The wife (the respondent in this appeal) petitioned for the dissolution of her marriage on the grounds of adultery and cruelty. She further claimed alimony, [p.172] custody of their two male children and maintenance for the children in the petition which was heard by Mr. Commissioner Attoh, in the Divisional Court, Cape Coast.

The husband (the appellant in this appeal) filed a belated answer denying the charge of cruelty but there was no denial of the commission of adultery with the woman-named. The husband and the woman-named filed separate affidavits in respect of their means and condition.

Mr. Commissioner Attoh in his judgment delivered on the 21st January, 1959, stated the facts, granted the wife a decree nisi on the ground of adultery and continued:

"On the question of alimony, i.e. permanent maintenance of the wife, I am of the opinion that the petitioner should be given G21 a month by the respondent by way of alimony and maintenance while she has the custody of the three and half-year-old boy until he is seven years when the custody shall be transferred to the respondent. In the meantime the respondent shall have access to the three and half-year-old boy. On custody of the three and half-year-old boy being transferred to the respondent as above the alimony shall be reduced to G200 per annum. Custody and maintenance of thirteen-year-old boy shall be vested in the respondent. Petitioner shall have costs assessed at 30 guineas."

The decree nisi was to be made absolute after the expiration of one month from the date of delivery of the judgment, but the record discloses that it was not until the 9th April, 1959, that is, nearly three months after, that the decree nisi was made absolute, and no reason was assigned for the delay.

On the 24th January, 1961, the husband filed an application for a modification order in pursuance of Order 55, rules 3 (3), 42, 47 and 48 of Supreme [High] Court (Civil Procedure) Rules, 1954, for the court:

"to make orders modifying the orders of alimony or maintenance and of custody of the infant child of the marriage made by the Commissioner of Assize and Civil Pleas on the 21st January, 1959, to the effect that:

(a) The respondent no longer pay alimony or maintenance to the petitioner, and

(b) Custody of the said child Alexander Edward be given to the respondent, and for any other or further orders as to the court may seem meet, upon the grounds set forth in the accompanying affidavit."

The husband in his supporting affidavit recounted the history of the divorce proceedings and alleged that he lived at Tamale and the wife lived at Cape Coast, separate and apart from each other and that they had never had sexual intercourse together since she left him at Tamale on the 10th March, 1958, for Cape Coast; that in December 1960, she gave birth to a baby girl by one Mr. Sam who was a tenant in the house where she lived; and that she and the said Mr. Sam lived and cohabited as husband and wife and that Mr. Sam also provided maintenance and necessaries for her and the child. He further alleged that the said Mr. Sam has assumed paternal authority over Alexander Edward their male child of whom the wife was granted the custody and that the child had been ill-treated by the said Mr. Sam.

The wife by her affidavit in answer and in opposition to the application denied the husband's allegations: she emphatically denied that the said Mr. Sam was the father of the baby girl, and contended that she left [p.173] Tamale with an undeveloped pregnancy but by the prayers of Mrs. Morris, the husband's sister who claims to be a prophetess, God gave her the baby girl who is the exact image and likeness of the husband. She also denied the alleged ill-treatment of Alexander Edward by the said Mr. Sam, who, according to her, had since August 1958 removed from the house where the said Mr. Sam was a tenant and she also lived, and that they had never lived and cohabited together as husband and wife at anytime.

Upon the matter coming up for hearing before Scott, J., evidence was taken from the parties and their witnesses, and after an exhaustive hearing the learned judge in the course of his ruling reviewed the evidence, and found that the charges against Mr. Sam were not proved. He further held that:

"On the evidence of the respondent herself and on the authorities in particular that of Preston-Jones v. Preston-Jones [1951] A.C. 391, 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 . . . 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."

From this ruling the applicant appealed to this court and the only ground argued by learned counsel for the appellant in support of the appeal is as follows:

"In view of the finding of fact by the learned trial judge that the infant Nyamekye born in December 1960, is not the child of the appellant, the learned judge erred in varying the order of alimony by merely reducing and not altogether cancelling it."

Learned counsel in his brief argument in support thereof submitted that where the circumstances have changed an order for variation may be made and that the respondent's circumstance has changed by the birth of a child of which appellant is not the father.

It is true that the learned judge did not accept the wife's story of the husband being the father of the baby girl but similarly the learned judge found that the allegations against the said Mr. Sam were not proved and that he could not be held to be the father of the child.

The application was based on the assumption that the birth of a child increases the wife's means and alters her condition on the hypothesis that in the nature of things her paramour will provide her with maintenance and necessaries: on the contrary, experience teaches that that has not always been the case and as clearly disclosed on the evidence the birth of the child is more of a liability and in no way an asset to the wife. In this case, there was no dum sola et casta vixerit clause nor were there circumstances to warrant a variation of Mr. Commissioner Attoh's order.

It will be observed that the variation made by Scott, J., rested mainly upon his observation and the finding as contained in his ruling, is thus:

"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 [p.174] of gestation which the respondent testified she had and with which Mrs. Morris professes to be so familiar. On the evidence of the respondent particular that of Preston-Jones v. Preston-Jones [1951] A.C. 391, 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."

As this was the only reason upon which the learned judge grounded his variation it is as well that before concluding our reasons reference be made to the principles and some of the authorities on the powers of the court in modification of orders.

By the Administration of Justice (Miscellaneous Provisions) Act, 1938,1 section 14, the court may, at any time after the making of an order for payment of alimony pending suit, permanent alimony, periodical payments, maintenance (except as to secured maintenance), or maintenance of the children, vary, discharge, or temporarily suspend the provisions of such order, or revive the operation of any provision so suspended. In dealing with an application of this kind, the court has an unfettered discretion to consider all the circumstances of the case including the increase or decrease in the means of either of the parties to the marriage. Where periodical payments have been secured, any deed executed by the parties in obedience to the order must be regarded as part of the order, and the court has the same power to vary the deed as it has to vary the order. The fact that an order was made by consent does not prevent it from being varied. The court may have regard to the conduct of the parties including the re-marriage of the wife, in the same manner as in the hearing of the application for the order in the first instance.

We now refer to some of the authorities enunciating these principles. In Perkins v. Perkins2 an order by consent was made that the husband should pay to the wife during their joint lives and until further order such a sum by way of maintenance as after deduction of income tax should amount to 500 per annun. At the time the decree absolute was made the husband had an income of 3,000 per annun and the wife one of less than 100 per annum. The husband claimed that his position had become worse by reason of the fact that he had made two voluntary settlements upon his daughter by a previous marriage. The wife had re-married and her present husband had an income of 580 per annum after deduction of tax, and a furnished house, and would in four years be due to retire on a pension of 400 per annum. The husband's application for the reduction of maintenance payable to the wife upon the ground of the improvement of her financial position on re-marriage was dismissed. On appeal from the order of dismissal, it was held that;

(1) the husband's financial position could not be considered as having become worse by reason of the voluntary settlements made by him; (2) the wife's financial position had been improved, as she was saved the expense of maintaining a separate establishment of her own, and the maintenance ought on that ground to be reduced to 350 per annum free of tax, until further order, and to that extent the appeal was allowed.

In Bellenden (orse. Satterthwaite) v. Satterthwalte,3 it was held that a husband's re-marriage reduces his means and that is a good ground for consideration regarding the reduction of the maintenance to the former wife. [p.175]

These cases and others are merely illustrative; they are not exhaustive. They depict due exercise of the power the court now has under the Administration of Justice (Miscellaneous Provisions) Act, 1938, whereby the court has now an unfettered discretion to consider all the circumstances of the case.

As to appeals from the exercise of the court's discretion, it is a rule of law deep rooted and well established that the Court of Appeal will not interfere with the exercise of the court's discretion save in exceptional circumstances. In Wickins v. Wickins4 the view of the Court of Appeal, expressed by Swinfen Eady, M.R. nearly half a century ago, was that:

"where Parliament has invested the court with a discretion which has to be exercised in an almost inexhaustible variety of delicate and difficult circumstances, and where Parliament has not thought fit to define or specify any cases or classes of cases fit for its application, this court ought not to limit or restrict that discretion by laying down rules within which alone the discretion is to be exercised, or to place greater fetters upon the judge of the Divorce Division than the legislature has thought fit to impose."

In Blunt v. Blunt5 where the judgment of the House of Lords on appeal from the Court of Appeal was delivered by Viscount Simon, L.C. it was held that:

"An appeal against the exercise of the court's discretion can only succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of fact, in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matter into account; but the appeal is not from the discretion of the court to the discretion of the appellate tribunal."

In the light therefore of the principles and the authorities above referred to, we are of the view that the argument in support of the appeal was without foundation. The application should have been dismissed by Scott, J. The appeal is therefore dismissed and the judgment of the court below set aside. In lieu thereof we substitute a judgment of dismissal of the husband's application for the modification of the order for permanent alimony and restore the original order made by Mr. Commissioner Attoh.


<P>Appeal dismissed.</P> <P>Judgment of the High Court set aside.</P>

Plaintiff / Appellant


Defendant / Respondent

Dr. de Graft Johnson


(1) Perkins v. Perkins [1938] P. 210

(2) Bellenden (orse. Satterthwaite) v. Satterthwaite [1948] 1 All E.R. 343, C.A.

(3) Wickins v. Wickins [1918] P. 265, C.A.

(4) Blunt v. Blunt [1943] A.C. 517, H.L.

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