Taylor v Taylor, 1972-73 ALR S.L. 32

SECTION 6 THE AFRICAN LAW REPORTS of the accident and show also that the result of the cause was inevitable. We have the evidence of the defendant himself and moreso that of the plaintiff's second witness who said that the accident occurred on a curve and that an animal jumped suddenly 5 on to the road and the defendant tried to avoid it and struggled with the vehicle until he came to a heap of stones which was in his lane and he drove over it. In this case you have the defendant having to contend with two things which should normally not have been on the road, the heap 10 of stones and the animal which jumped suddenly in front of the vehicle. I would therefore say that the defendant did all he could possibly have done to avert the accident but without success. I cannot therefore on this evidence hold that the defendant was negligent. The loss must lie where it falls. Having come to this 15 conclusion I see no point in going into the question of damages raised by counsel for the plaintiff. The action must fail. 20 25 . 30 35 40 The action is dismissed and costs are to be taxed in favour of the defendant. Suit dismissed. TAYLOR v. TAYLOR High Court (Tejan, J.): February 11th, 1972 (Divorce Case No. 26/71) [1) Family Law-divorce-desertion-consists of separation and intention to end cohabitation without reasonable cause or consent of spouse: Deser­ tion is the separation of one spouse from the other, with the intention of bringing cohabitation permanently to an end without reasonable cause and without the free consent of the other spouse (page 37, lines 21-25 ). [2] Family Law-divorce-desertion-constructive desertion-husband's per­ sistent sexual demands knowing wife finds them inordinate or revolting may be grave and weighty matter justifying reasonable wife leaving him: A husband's sexual demands on his wife may amount to constructive desertion on his part if he persists in them knowing that she finds them inordinate or revolting, and they amount to such a grave and weighty matter as to justify a reasonable wife in withdrawing from cohabitation (page 38, lines 9-13, lines 19-24; page 39, lines 7-20). The petitioner sought a decree of divorce from the respondent, his wife, on the ground of her desertion; she cross-petitioned on the ground of his constructive desertion. The parties were married in 1951 and shortly afterwards the 32 TAYLOR v. TAYLOR,l972-73 ALR S.L. 32 H.C. petitioner went to the United Kingdom to undertake medical studies. The following year, at the petitioner's request, the wife and her newly-born baby joined him, and they remained living together until July 1953, when the wife and baby returned to Sierra Leone. 5 The petitioner alleged that she chose to return home without reasonable cause, that she wrote to the Sierra Leone Office in London to attempt to arrange it, and that he only consented to their return home after receiving advice from the Dean of his Faculty that he needed to be able to continue his studies without 10 disturbance. He alleged that she did not go to live with his parents as he had instructed but lived with her mother against his wishes. He denied that they had lived together since she had left England. The respondent alleged that although she told her husband on her arrival in England that she had been medically advised not to 15 have another child, he made excessive sexual demands on her, becoming aggressive if she refused him. She told him that she was tired of his demands and asked to be allowed to return home and he consequently arranged for her to return to Freetown. She alleged that after her return, the petitioner was in regular com- 20 munication with her and that they lived together after the pet­ itioner's return to Freetown in September 1957. After she found him with another woman, she went to live with her mother and had not lived with the petitioner since. The court rejected the evidence adduced by the respondent and 25 granted the petition. Cases referred to: (1) Holborn v. Holbom, [1947]1 All E.R. 32, distinguished. (2) Jackson v. Jackson (1932), 146 L.T. 406, dictum of Lord Merrivale, P. applied. (3) Jamieson v. Jamieson, [1952] A.C. 525; [1952] 1 All E.R. 875. Minah for the petitioner; Miss Macaulay for the respondent. TEJAN, J.: This is a petition for divorce by the husband on the allegation that his wife had deserted him. The parties were married on July 26th, 1951, and there are five children of the marriage, namely, Eustace age 26 years, Ayodele age 24 years, Ade age 21 years, Beryl age 19 years and Joyce age 17 years. Apart from Joyce, the 33 30 35 40 THE AFRICAN LAW REPORTS rest of the children are in England, having been sent there by the husband who is responsible for their maintenance and education. In 1951, the husband went to Sheffield, England and in 1952 he wrote to his wife asking her to join him in Sheffield. The wife 5 gave birth to a child in May 1952 and then joined her husband in September 1952. According to the husband, while they were living together in Sheffield, he received a letter from the Sierra Leone Office in London, from which he found out that his wife had asked to be sent home. The husband discussed the matter with the 10 wife who, after having been persuaded by him, agreed to stay in England. After about a fortnight of this arrangement, the wife told the husband that she would kill him if he failed to make arrangements for her to return home. The wife then started a fight with the husband and during the encounter struck him with a hot 15 poker. The husband discussed the situation with the Dean of his Uni­ versity Faculty and, acting upon the advice of the Dean, and in order to be able to continue his studies, he wrote to the Sierra Leone Office and gave his approval to his wife's request to return 20 home. The wife eventually returned home with the two children who were with them in England but before she left for home the husband instructed her to go and live with his parents at 65 Soldier Street. Later the husband learnt that she was living at 30 Goderich Street. He wrote to her and asked her to return to his home. She 25 replied to say that she would never return to the home of his parents. The husband informed the Colonial Office of the situation and the Colonial Office ceased to pay the wife's allowance but continued to pay the allowance for the children. During this period the husband made efforts to persuade the wife to return 30 home and after nine months of useless persuasion, he requested the Colonial Office to pay the wife her allowance. He said that since July 1953 they have never lived and cohabited together, and he is now asking the court for decree of dissolution of the marriage and also for custody of the children. 35 In answer to Miss Macaulay under cross-examination, the hus- band said that his wife deserted him in July 1953. He denied that he accompanied his wife and children to Liverpool and said that he was sitting an examination the day his wife left Sheffield. He said that when he received the letter from the Sierra Leone Office, 40 he asked his wife why she wanted to return home and she replied that she was tired of living in England while he was engaged in his 34 TAYLOR v, TAYLOR,l972-73 ALR S.L. 32 H.C. studies. He denied that he wrote to tell the Colonial Office that the climate was unsuitable for the children and that he wanted his wife to take them home. He denied that he beat his wife and said that it was the wife who attacked him when he tried to get her to stay in England. He denied that his wife was pregnant when she 5 left England and that it was only after two years and four months after her return home, that she informed him she had given birth to a child. The husband said that after he had written Exhibit B he had no further correspondence with his wife but he agreed that that was a pleasant letter which disclosed a good relationship 10 between him and his wife and then went on to say that the re­ lationship between his wife and himself had always been cordial but not as a man and wife. He denied that his wife met him on board ship when he returned to Sierra Leone in 1957, and that he lived at 65 Soldier Street when he returned home. He said that he 15 stayed at the Brooksfield Hotel for nine days and not for a month, when he moved to a Government quarter at Gloucester Street. He denied that he moved there with his wife and five children and said that his wife had never been to the house at Gloucester Street. He denied that he kicked his wife down the steps and told her not 20 to set foot in the house. He again said that while they were in Sheffield, his wife struck him with a poker. He denied that the reason for Joyce living with a man was because he failed to support her. The evidence of the respondent is that two months after her 25 marriage to the petitioner on July 26th, 1951, the petitioner went to England. She was then living at 65 Soldier Street and that the petitioner advised her to stay with her mother as she was pregnant at the time. She accordingly went to stay with her mother at 30 Goderich Street until she gave birth to the child. Three months 30 after that the petitioner wrote and asked her to join him in England. In September 1952, she joined the petitioner in Sheffield. A week after her arrival she told the petitioner that her doctor had advised her not to have another baby but the petitioner told her that he was unable to wait. He then started to have sexual inter- 35 course with her during the day as well as at night with the use of contraceptives. She then told the petitioner that she was tired of his excessive demands for sexual intercourse and that she would like to return home. On one of her off-duty days, the petitioner asked to have sexual intercourse with her but at the time she was 40 two months pregnant and she told the petitioner that she was 35 THE AFRICAN LAW REPORTS tired. When she said this, he hit her on her side and she fell on the floor dazed. A week after this incident, she was admitted to the Royal Hospital, Sheffield, for three weeks, and after her discharge she told the petitioner that she wanted to go home because of his 5 excessive demands for sexual intercourse. She then copied a letter drafted by the petitioner, which she sent to the Crown Agents, and in which she stated that she wanted to return home because the climate was not good for the children. After having stayed in England for 10 months, she left for 10 Sierra Leone on July 28th, 1953. She came back to Freetown with two of their children and the petitioner saw them off at Liverpool. When the respondent arrived in Freetown, she wrote to the petitioner reporting their safe arrival. He replied to her letter and since then they had been in constant touch with each other. On 15 September 15th, 1957, the petitioner returned from England and before his return the respondent received through the petitioner's mother a letter written by the petitioner and addressed to her, informing her when the petitioner was expected to arrive in Free­ town. The respondent, the petitioner's sister and Mrs. Whitfield 20 met the petitioner on board the boat in which he travelled. After he had entertained them with drinks, they all went to 65 Soldier Street. Later the respondent and the petitioner stayed at the Brooksfield Hotel for nine days before they moved to a quarter at Gloucester Street. 25 One day after waiting late into the night for the petitioner to come and collect her from Soldier Street, she went to Gloucester Street to find out what was happening. The door was not locked and when she opened it she found the petitioner on top of a lady. She shouted and closed the door, whereupon the petitioner came 30 out of the room and pushed her down the steps. He told her to go away and leave him and said that he no longer wanted her. The next day, she went to Mrs. Whitfield and explained what had happened. Her pregnancy terminated as a result of this incident. She went to live with her mother and she and the petitioner never 35 lived and cohabited together again. This incident took place in 1957. The respondent said that Joyce was now seventeen and was three months pregnant. She said that she had five children by the petitioner and with the exception of Joyce, all were in England, having been sent there by the petitioner who was responsible for 40 them. Under cross-examination and in answer to Mr. Minah, the re- 36 TAYLOR v. TAYLOR,l972-73 ALR S.L. 32 H.C. spondent agreed that the petitioner left her at Soldier Street and that no specific instruction was given to her to go and live with her mother. She agreed that the petitioner wrote to her in 1952 asking her to join him. She denied that she refused to join him but said that she went to him in England in September 1952 after she had 5 delivered her child in May 1952. She said that she became pregnant two months after her arrival in England, and that the petitioner stopped using contraceptives after her first three months in Eng- land. She said that when she and the petitioner quarrelled one particular day, the petitioner hit her on her side, and that a week 10 after this incident, she started coughing up blood and was admitted to the hospital. She denied that she caught pneumonia while she was working at the hospital as a charwoman-indeed, she denied that she ever worked as a charwoman at all but said that she worked as a nurse. She agreed that she suggested thatshe wanted 15 to return home. She said that she kept away from the petitioner because he had driven her from the house at Gloucester Street. [The learned judge considered further evidence relating to the period after the petitioner's return to Sierra Leone and con- tinued:] 20 Attempts to define desertion have always been discouraged by the courts, but in essence desertion is the separation of one spouse from the other, with the intention of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse. From the 25 evidence, even though the petitioner agreed that the respondent should return home, could it be said that the petitioner freely gave his consent? When the respondent decided to return home, the petitioner persuaded her to stay. Shortly after, the respondent repeated her request to return, and this resulted in a fight. Upon 30 the advice of the Dean of his Faculty at Sheffield University and in order to be able to pursue his studies, the petitioner gave his consent. A consent given under such circumstances, I think, was not a free consent. It has been alleged that the petitioner wrote to tell the Colonial 35 Office that the respondent wanted to return home because the climate was unsuitable for the children. Now the petitioner was a Medical Student on Government scholarship. There had been friction in the matrimonial home between the petitioner and the respondent. Moreover, some people are not inclined to make their 40 domestic difficulties known to others. Was it then surprising that 37 THE AFRICAN LAW REPORTS the petitioner could have given the reason of "unsuitable climate" to the Colonial Office? I think not. The respondent has alleged constructive desertion, in that she had to leave the matrimonial home because of the petitioner's 5 excessive demands of sexual intercourse. Constructive desertion is where one spouse is forced by the conduct of the other to leave home. The spouse responsible for the driving out may then be guilty of desertion. The rule is that sexual demands which are known to be regarded 10 by the other spouse as inordinate or revolting may, if persisted in, show such lack of consideration, as, coupled with other conduct, amounts to such a grave and weighty matter as to justify with­ drawal from cohabitation. The respondent has complained that the petitioner was having sexual intercourse with her daily, during 15 the day as well as at night. Sexual intercourse is one of the conjugal rights to which either spouse is entitled. But the respondent says that the inordinate demands of sexual intercourse by the petitioner induced her to leave the matrimonial home and to come back to Sierra Leone. The acts of the petitioner must be judged in relation 20 to the surrounding circumstances, which include the physical or mental condition and the capacity for endurance or the peculiar susceptibilities of the innocent spouse, and the offender's know­ ledge of the actual or probable effect of his conduct on the other's health. See Jamieson v. Jamieson (3) [1952] 1 All E.R. 875. 25 Apart from the evidence of the respondent that she was tried by the daily and nightly demands of the petitioner there is no evidence that her health suffered or that there was reasonable apprehension of danger to her health. And to quote Lord Merriman in the case of Holborn v. Holborn (1) ([1947] 1 All E.R. at 32): 30 "No one can sit here as long as I have sat without realising that there is the greatest diversity of standards between one set of spouses and another as to what is or is not a normal standard of sexual intercourse. What will be regarded as grossly excessive demands by one wife (or by the husband, as the 35 case may be) will be regarded as quite normal and reasonable by another wife or husband". In Holborn v. Holborn, the wife complained that her husband was oversexed. She said that not merely was he insistent in his demands for sexual intercourse in season and out of season, but that, when 40 she expressed reluctance to have sexual intercourse in the ordinary way, he made certain revolting suggestions to her. It was held that 38 t TAYLOR v. TAYLOR,1972-73 ALR S.L. 32 H.C. the wife was justified in withdrawing from cohabitation. In the present case, there is no evidence that sexual demands were made in season and out of season, and no evidence was given that the petitioner at any time made any revolting suggestions. There is, however, one question which arises in this connection 5 and that is whether the conduct of the petitioner actually revolted the respondent so as to cause her to leave him. In answer to this, I must say that I have found no material in the evidence upon which I could say that the conduct of the petitioner so revolted the re~ spondent as to entitle her to withdraw from cohabitation. To 10 justify a wife in withdrawing from cohabitation by reason of mis~ conduct on the part of the husband, there must be some grave and weighty matter. Lord Merrivale in the case of Jackson v. Jackson (2) (146 L.T. at 407) said: "Is it right to say that the conditions imposed on the wife 15 were unbearable for her or any other wife, conditions which it was not competent for a reasonable husband to set up? Were they such conditions that a reasonable wife, being so treated by an unreasonable husband, could not be expected to proceed with the conjugal life?" 20 It is my view that the evidence presented in this case does not permit any affirmative ·replies to these questions. I find that the conduct of the petitioner with regard to the sexual demands com­ plained of by the respondent, was not sufficient to make the pet­ itioner a deserter under the doctrine of constructive desertion. By 25 her conduct, which I consider unreasonable, I find that the respon- dent withdrew from cohabitation without just and reasonable cause. [The learned judge then dealt with the evidence of the respon- dent and her witnesses as to the period after the petitioner's return 30 to Freetown, which he concluded he could not accept. He con­ tinued:] The petitioner filed a discretion statement asking the court to exercise its discretion in respect of adultery committed at various times from 1954 to 1970. Having looked at every aspect and 35 circumstance of the case, including the consequence which would ensue from the refusal of a decree, I ttiink this is a proper case in which I must exercise my discretion in the petitioner's favour. I therefore pronounce that the marriage had and solemnised between the petitioner and the respondent on July 26th, 1951 be dissolved 40 by reason of the respondent's desertion of the petitioner. The 39 THE AFRICAN LAW REPORTS respondent has asked the court to grant her the custody of the children and also to order maintenance for herself and the children. With regard to the custody and maintenance of the children, there is nothing much the court can do. With the exception of Beryl, 5 who is now 20 years old and Joyce who is now 18, the other children are all over 21 years of age. Beryl, according to the evidence, is in England having been sent there by the petitioner. She was to enter a hospital in January 1972 to start her nursing career. Considering the relative positions 10 of the petitioner and the respondent, I think it will be in the interests of Beryl to be in the custody of the petitioner. Joyce, who is 18 years old, presents a difficult problem. The evidence of the petitioner is that Joyce was pregnant and living with a man at Calaba Town. The respondent admitted in her 15 evidence that she was three months pregnant but said that she was living with the respondent's aunt in a low cost house in Kissy. The petitioner has expressed his willingness to have Joyce in his custody even though she is in a pregnant state. In cases of custody, the court has to consider the interests of the children and, after 20 taking all the circumstances into consideration, I think the granting of the custody of Joyce to the petitioner would be in Joyce's interests. The question is whether Joyce would want to leave the father of her unborn child and go to stay with her father. However, this is a question which may probably be settled by the parties. In 25 the circumstances I grant the custody of Beryl and Joyce to the petitioner. The only matter to be considered now is the maintenance of the respondent. I order that the petitioner pay the sum of Le15.00 monthly as maintenance to the respondent, payment to start from 30 the end of February 1972. Decree absolute may be applied for after six weeks. Petition granted and consequential orders accordingly. 35 40 40