DVL C. 15/08 2008 K. NO 2

IN THE HIGH COURT OF SIERRA LEONE

(DIVORCE JURSDISCTON)

BETWEEN: -

ADIHAN BATILO KAMARA           - PETITIONER

AND

YATTA KAMARA                              - RESPONDENT

O .Jalloh Esq., for the Petitioner C.C.V. Taylor Esq., for the Respondent

JUDGMENT

The Petitioner herein ADIHAN BATILO KAMARA is by a petition dated 25 February 2008 seeking the dissolution of his marriage to YATTA KAMARA, the Respondent herein. The parties were married on the 8th November 1990 at the Registry, Roxy Building, Walpole Street, Freetown. After the said marriage the parties lived and cohabited at 36A, Newcastle Street, Kissy Mess Mess Freetown, later at New England, Freetown and then at 25 Dougan Street, Murray Town Freetown. There are four children of the marriage. The Petitioner is presently a student and resides at 3, Caulker Street, Wellington Freetown and the Respondent is a spiritualist and resides at 25 Dougan Street, Murray Town. Both parties are domiciled in Sierra Leone and there has been no previous proceedings in any court in Sierra Leone relating to the marriage. The Petitioner alleges that the Respondent has committed various acts of adultery during the subsistence of the marriage and has treated her with cruelty since the celebration thereof.

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In the particulars of adultery, the Petitioner alleges that immediately after the marriage the Respondent introduced one BRIMA MANSARAY to him as a friend of her family and thereafter he paid regular visits to the matrimonial home. He alleged that the Respondent had an adulterous relationship with the said BRIMA MANSARAY during their marriage to the knowledge of the wife of the said BRIMA MANSARAY. He further alleged that he discovered that the said BRIMA MANSARAY bought two cars for the Respondent, a white Nissan Sunny Car and a red Mercedes Benz Car and that when he made this discovery he told the Respondent to return the cars which she refused to do and since then she became quite rebellious and quarrelsome and fought and abused the Petitioner on several occasions. He averred that she was also in the habit of going out with the said BRIMA MANSARAY and staying out late returning to the matrimonial home drunk and very confrontational. Further that this conduct of the Respondent caused him unhappiness and emotional trauma to the children.

He further alleged that the children reported to him that the Respondent was in the habit of bringing a certain Dr. Frank Nyuma to the matrimonial home whenever the Petitioner was out and that when he confronted her with this report she became quite defiant and ungovernable. He told the court that she subsequently left the matrimonial home with the children of the marriage without the Petitioner's consent and went and lived with her elder sister at New

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England. He said he used to visit her there but on several occasions he found her out and was told she had gone to visit the said BRIMA MANSARAY. He said he later found out the address of the said BRIMA MANSARAY which was at Banana Water Murray Town. He went there once but was unable to gain entrance and eventually the Respondent went and lived with the said BRIMA MANSARAY, much to his, the Petitioner's distress.

The Petitioner further testified about the relationship the Respondent had with her driver, called Papa and also testified about another relationship with one KANU, a Soldier attached to the Naval Wing of the Military. He stated that whenever he confronted the Respondent they would quarrel.

With regards the allegations of cruelty, the Petitioner testified that he and the Respondent occupied a dilapidated Government Quarters at 25 Dougan Street Murray Town and that they were able to renovate and refurbish it. He testified that after the Respondent left the matrimonial home, she wrote to the Chairman, National Assets Commission a letter dated 15th August 2003 alleging that the Petitioner was an illegal occupant of the said premises at 25 Dougan Street and asking that he be asked to vacate therefrom. He stated that she signed the letter using her maiden name. He stated that he was later evicted from the premises and he left with only his personal belongings. He said as a result of his eviction he was left homeless and had to sleep in

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his car for 5 nights as his elder brother was away and had to await his return.

He further told the court that several attempts were made by friends and family members to effect reconciliation between himself and the Respondent but that she failed to respond. He said she attended one of such meetings called but walked out after she had told the people gathered there that she was no longer interested in him and that he should look out for someone else. He denied that he neglected her or refused her rights of consortium but said that on the contrary it was the Respondent who refused him his conjugal rights for a period of two years and that she refused his advances.

With respect her cross-petition, the Petitioner denied that he ever impregnated her niece or that he subjected her to verbal abuse, provocation and so on which caused her mental stress. He told the court that she took him to the Ministry of Social Welfare for maintenance for herself and the children just to embarrass him as he behaved to his children as a responsible father should. He tendered in evidence several receipts in respect of payments he made for the children's school fees and bills. He denied taking her vehicle away and maintained that the car a Nissan Bluebird with Registration No. AAY 620 belongs to him and he tendered in evidence a bill of lading in his name, as Exh "E" and the vehicles identification certificate was also tendered as Exh. "D". He denied taking away the Respondent's furniture and maintained that he left the matrimonial home with just his

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personal belongings. He further denied depriving the Respondent of love and affection and stressed that he maintained his family throughout the marriage and gave the Respondent the whole of his salary and would ask her for money as and when needed.

The Petitioner told the court that he had worked for the Special Court on a contract for a period of time and on completion of the contract was now a student and he produced and tendered his Student Identity Card as Exh."F".

The Petitioner testified that a result of the Respondent's cruel treatment of him he was so distressed particularly when he was asked out of the matrimonial home and he had to stay in his car. He told the court that he was still living with his brother at Wellington.

Under cross-examination, the Petitioner admitted that he had been living with his brother for the past 5 years and that he did not live off him, but contributed financially and rendered service to him in return. He denied ever having a love relationship with one ASHMIRE KALLAY or ever working for her or driving her vehicle. He stated that he had only ever driven his car and that of his brother and that he had purchased his car from a friend called EDWARD TAMBA and had paid Le 1 million for it. He denied that the car was given to the Respondent in consideration for services rendered by her to the EDWARD TAMBA who was a client of his wife's. When shown Exh "B" the letter written by the Respondent to the National Assets

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Commission requesting his eviction, he told the court that he still gave the Respondent the whole of his monthly salary even after she had written such a letter. He admitted that when she took her case to the Ministry of Social Welfare he was asked to pay Le 100, 000 as monthly contribution for the children and he tendered in evidence Exh. "G" which was the Agreement he signed to that to that effect. He told the court that he paid the said amount regularly to the Respondent for the period 2002 to 2003 and that he paid her directly by cash payments at her address at 25 Dougan Street, Murray Town.

The Petitioner further told the court that he is not laying claim to the property situate at Thunder hill Kissy Freetown. He also denied having a fight with his brother-in-law, JOSEPH MUSA the Respondent's brother and that it was by the said brother-in-law's goodwill that he gained possession of premises No25 Dougan Street, Murray Town but that it was with the aid of the Chairman National Assets Commission, MR. HENRY TUCKER who allocated the home to him and the Respondent. He stated that they had applied for the house in writing and denied that the property was assigned to his brother-in-law. He also denied beating up the said brother-in-law in 2002 and that it was because he had beat him up that he had them evicted from the premises.

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The Petitioner denied that one FANNY COKER lived with him in 1996 and said he had no idea that FANNY COKER was the niece of the Respondent, nor did the Respondent accuse her of impregnating the said FANNY COKER. He also denied that a family meeting was called as a result of that accusation.

He told the court that in 1988 he was a student at MMTC and it was at the said College that he met the Respondent when she went to visit her sister there. He denied that the Respondent made financial contribution to his education and maintained that he had a scholarship which met all his needs. He also denied that the Respondent paid him to have sex with her and that she gave him Le 50,000 on two occasions for sex. He stated that he left the house in 2003.

He admitted knowing DR, FRANK NYUMA but stated that it would come as a surprise to him to learn that he was the father of the Respondent's three children whom she had had before the marriage, He stated that the only quarrels they used to have was about her adultery and that they were married for 18 years but after the first five years she changed from being a loving wife. He asked the court to grant the divorce on the grounds of the Respondent's adultery and cruelty.

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That ended the case for the Petitioner.

The Respondent gave evidence on her own behalf and told the court that she is a spiritualist who prays for people and is given gifts in return usually when their prayers are answered. She told the court that she knew BRIMA MANSARAY who is a family friend. She stated that he was brought to her for prayers in 1980 and he was cured as a result of her prayers. She stated that her husband did business with him and on one occasion when they had a visitor he let them use his vehicle to take the visitor around. She denied having a love relationship with him. She admitted knowing DR. FRANK NYUMA and told the court that he was the father of her three children born before her marriage. She told the court that they gave the children the Petitioner's surname at his suggestion. She also said she had four children with the Petitioner, the first aged 20 and the last 12 years.

The Respondent testified that she was able to pray for one MR. EDDIE who was brought in sick from the U.K. She said in gratitude he gave her a motor vehicle which he shipped to Freetown. She said the Petitioner collected the vehicle from the quay and from that day drove the car around.

She testified that her elder sister, MARIAMA MUSA helped them pay the rent and helped her financially when the Respondent had her last child. Additionally she bought clothes including underwear for the Petitioner and she also helped pay the children's school fees.

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The Respondent denied that the Petitioner had to leave their bedroom for the Respondent's sister to occupy and he was forced to sleep in the sitting room. She recalled that once when he returned home quite drunk, she and her elder child had to remove him from the car and puthim in the living room. She testified that he continued to sleep in the said living room for a year in 2002.

The Respondent further told the court that she knows one FANNY COKER who is her cousin's daughter. She said that the said FANNY COKER used to visit them often and would come to the Respondent for prayers. She said that she lived in Wellington and recalled the year 1996 when she learnt that the Petitioner had impregnated the said FANNY COKER and had given the baby his mother's name, HAJA BINTA KAMARA. She testified that when she confronted him with this information he admitted that it was a mistake. She said she complained about this to her elder brother and the Petitioner went and pleaded for forgiveness and promised not to repeat the act.

The Respondent further testified that sometime in January 2002 the Petitioner came from work and asked her whether she knew what love was. She answered in the affirmative and he then proceeded to tell her that there are three kinds of love and she was in the category where someone only tolerates the other partner as he cannot escape from the relationship. She said he told her that that was the kind of love he had for her. The witness told the court that she fainted and had to be taken

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to the Good Shepherd Hospital where she was informed she suffered from high blood pressure. She said he would call her semi-illiterate.

With regards the letter she had written to the National Assets Commission, the Respondent explained that the quarters had been leased to her brother and he had allowed them to occupy it and that when she moved out and lived with her brother, he then asked her to write the said letter to get the Petitioner out of the premises. She denied that when he moved out he only took his personal belongings, she said he took all the furniture, television and other items and she had to buy a new set of furniture when she moved back into the house.

The Respondent told the court that the Petitioner did not maintain the children and she had cause to take him to Social Welfare for their maintenance where he was ordered to pay Le 100, 000 and she referred to Exh. "G". She said he only paid the said allowance twice. She further told the court that she met the Petitioner in 1987 when he was a student at MMTC and she had her first child in 1988 when he was unemployed. She said that she helped him financially and also got her sister MRS. MARIAMA BENDA to help pay his fees and they gave him Le300, 000. She said it was not true that the Petitioner gave her his whole salary but that she opened a Bank Account for him and herself and paid Le 50,000 each at a time into the accounts. She stated that she helped pay his college fees when he pursued a course in Adult Education at FBC for the first two years and for his final year, her sister MARIAMA helped him get a scholarship. She told the court

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that the property at Thunder Hill Road, Kissy is in both the Petitioner and her name but the house was built with her own funds. She prayed the court to dissolve the said marriage.

Under cross-examination, the Respondent admitted that she could not read but was able to identify Exh "B", her letter addressed to the Chairman, National Assets Commission as well as the receipts for payment of school fees paid by the Petitioner. She stated that she provided virtually everything for the Petitioner but said she did not have control over him. She told the court that she and the Petitioner stopped having sexual relations since 2002 and she denied starving him of sex.

The Respondent denied that she committed adultery with DR. NYUMA during the subsistence of her marriage but admitted that he is the father of three of her children before marriage. She stated that they carried the Petitioner's surname though the said DR. NYUMA was responsible for their maintenance and welfare. She identified and tendered in evidence exhibits "H, J and K" which bore evidence of the children's names and she stated that during period 1989 to 2002 DR. NYUMA was out of the jurisdiction but that he maintained the children.

She did not agree with Counsel for the Petitioner that her family had considerable influence over her marriage but admitted that her brother influenced her to write the letter asking the Petitioner to quit the premises. Finally the Respondent told the court that the Petitioner does

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not have good relationship with his children and that when he saw the last child once he did not recognise her but had to be told that she was his child. She stated that one of the children had stopped going to school because of lack of funds. For all these reasons, the Respondent urged the court to dissolve her marriage with the Petitioner.

The Respondent's brother, CHIEF JOSEPH MUSA also gave evidence on her behalf. He testified that the Respondent is his younger sister and that he knew the Petitioner. He stated that the premises No25, Dougan Street, Murray Town was Government Quarters allocated to him. He said that when the parties became displaced from Kissy as a result of the war, he allowed them to move into the premises at Dougan Street, Murray Town in 1999. He said they lived with him in New England before they moved into the house at Dougan Street. He said he knew about the parties relationship even before they got married and that it was he who handed over the Respondent to the Petitioner at their wedding. He recalled that once the Respondent fell ill whilst buying at the Congo Market and she was taken home to New England. He said he informed the Petitioner of the Respondent's illness by telephone and asked him to come and see her, but he failed to do so. He said he wrote a letter to him about a day or two later and again he failed to come and see the Respondent. He then wrote a second letter and this time he responded and came with the letter in his hand. The witness said that he asked him why he had not come earlier and instead of giving a reason he put up an argument with him and did not discuss the Respondent's illness but talked about a vehicle. He then left

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together with the person he came with. The witness told the court that as a result of the Petitioner's attitude to the Respondent at the time, he then asked her to write the letter giving him notice to quit. Later he had to write to the Chairman, National Assets Commission and he tendered the commission's reply to the said letter as Exhibit "L". He told the court that as a result of his letter the Petitioner was evicted from the premises. He said that when he went to the Petitioner with the letter Exh "L" he was beaten up by the Petitioner and dragged out of the house. He said that it was after this treatment by the Petitioner that he took steps to have him evicted from the premises.

Under cross-examination, the witness stated that it was not true that he never liked the Petitioner and that by having him evicted from the premises; he was depriving his children of their father.

That ended the case for the Respondent.

In his written submission, counsel for the Petitioner submitted that there was sufficient evidence to establish the grounds of adultery and cruelty alleged against the Respondent. He referred to the letter Exh "B" and submitted that the said letter is dated 15th August 2003 at which date the Respondent was still married to the Petitioner but she used her maiden name MISS. YATTA MUSA to sign the said letter seeking to have the said Petitioner evicted from the matrimonial home which they had both refurbished. He submitted that this was most cruel. Counsel relied on the case of Jameson v. Jameson {1952} 1 All E.R. 875.

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Counsel further submitted that with regard the testimony of the respondent there are material inconsistencies and he referred to Exh. "C1- 31" receipts in regard of payment of school fees by the Petitioner for his children in contrast to the evidence given by her that he failed to maintain the children. He also referred to Exh. "D and El -2" the life card and bill of lading of the car which are in the name of the Petitioner but which car the Respondent alleges she purchased. Further Exh. "H, J and K" which are documents showing the names of her 3 children given the names of the Petitioner KAMARA. Counsel submitted that no evidence of substance was led to controvert the matters stated on the said exhibit.

In further support of the allegation of cruelty, counsel for the Petitioner referred to the evidence of DW2, the Respondent's brother that he was very much involved in the marital affairs of the parties and also to the evidence of the Respondent that her brother influenced her to write the letter Exh "B". He submitted that such evidence established that the Respondent and her family treated the Petitioner cruelly throughout the course of the marriage and also that the Respondent did not only act with the intention of treating the Petitioner cruelly but with the knowledge that her treatment of the Petitioner was cruel. He submitted that the testimony of the petitioner in regard the Respondent's cruel treatment of him is corroborated by the testimony of both Respondent and her witnesses.

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Counsel submitted that in response to the Respondent's allegation that the Petitioner when he was evicted carted away the Respondent's furniture and other household equipment, the Respondent in her testimony had said that she was not present when the Petitioner was evicted. Counsel further submitted that the Respondent's evidence that in 1988 her sister gave the Petitioner Le 300; 000 was preposterous as she was working as an accountant at the Ministry of Information and could hardly afford that kind of money then.

With regard the Respondent's allegation of adultery committed by the Petitioner, counsel submitted that the Petitioner vehemently denied the said claim and referred to the Respondent's evidence that they still continued to live together as he pleaded with her and said he would not report the act again.

Counsel conceded that the Petitioner's testimony about his eviction from the premises on the basis of the Respondent's letter was inconsistent with the facts stated in Exh "L' but stated that that the inconsistency is not material to detract from the Petitioner's cause and did not go to the substance of the Petitioner's allegation of cruel treatment by the Respondent.

Counsel finally referred to the demeanour of the Respondent during the course of the trial and submitted that she was always smiling even when asked what she wished the court to do in respect of her marriage. He therefore concluded that she was not a witness to be taken seriously.

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For all the above submission counsel urged the court to grant the reliefs prayed for in the said Petition.

Counsel for the Respondent in his written closing submission relied on the evidence adduced in the cause and submitted that on the totality of the evidence the Petitioner has not discharged the requisite burden of proving his allegations of adultery on the part of the Respondent. He relied on the case of George vs. George and Lewis 1970 - 71 ALRSL" where it was held that strict proof of adultery is necessary and the proof must be higher than the proof necessary in civil suits and requires corroboration. He also relied on Lansana vs. Lansana 2008 unreported High Court decision.

He submitted that the unfounded allegations of adultery were designed to embarrass the Respondent and subject her to public ridicule and contempt, which act amounted to cruelty.

With respect the allegations of cruelty; counsel submitted that both parties have alleged cruelty on the part of the other. He further submitted that the allegations of cruelty made against the Respondent are unsubstantiated and the Petitioner as the sole witness must not be believed. Counsel then referred to several inconsistencies in the evidence of the Petitioner. He gave as an example the Petitioner's testimony that the Respondent moved out of the matrimonial home to live with BRIMA MANSARAY after a quarrel with him about the said

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relationship whereas the respondent's testimony corroborated by a witness DW2 was that she fell ill and was taken to her family home where the Petitioner abandoned her. He also gave instances showing that the Petitioner is not a credible witness and invited the court to draw its conclusion as to the credibility of the one party against the other. He urged the court to grant the Respondent's cross-petition and the ancillary reliefs for the benefit of the children of the marriage.

I have carefully and lengthily set out each party's case in this suit. The Petitioner has made allegations that the Respondent committed adultery with four men during the subsistence of the marriage. Apart from making the allegations, there is a need to examine the evidence in support of these allegations. In the case of BRIMA MANSARAY, the Petitioner has alleged that he was introduced to him as a family friend. The Respondent on the other hand explained that he was brought to her for prayers and was cured as a result of her prayers for him and that her husband did business with him. No concrete evidence has been adduced relating to these vehicles allegedly bought by the said BRIMA MANSARAY for the Respondent. With respect the allegation of adulterous relationship with DR. FRANK NYUMA, Respondent has testified that he is the father of her three children born before the marriage. No evidence was put before the court relating to the other relationships he accused her of.

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As counsel for the Respondent has contended and shown authority to the effect that strict proof of adultery is necessary and in the absence of corroboration by a witness, there must be strong surrounding circumstances establishing the adultery. I must say that those elements are clearly lacking here.

In this case there is only the Petitioner's ipse dixit and the Respondent has been able to satisfactorily explain the relationship between herself and the two men BRIMA MANSARAY and DR. FRANK NYUMA. The allegations about the relationship with the driver and the soldier arc without foundation. It is my view that the ground of adultery against the Respondent is therefore not established.

The Petitioner also alleges that the Respondent treated him with cruelty throughout the marriage. The main thrust of this alleged cruelty is his eviction from the matrimonial home. Counsel for the Petitioner has himself admitted that there are inconsistencies in the testimony of the Petitioner about his eviction.

The Respondent's and her brother's version of events therefore seem more credible and by their testimony they justify the reason for having the Petitioner evicted since he had abandoned the Respondent at the period of her illness and paid no attention to her at that crucial time. It is my view that it is he who has treated the Respondent with cruelty.

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There is also the Respondent's evidence that he failed to maintain the children and had to be taken to Social Welfare. In answer to this allegation, the Petitioner produced receipt for payment of school fees. It is my view that the complaint is that the Petitioner failed to maintain the children and as a result of that complaint, Exh. "G' the child welfare agreement was signed. I believe that that agreement would not have been necessary to be made if the Petitioner had satisfied the officials at the Ministry that he fulfilled his responsibility towards his children completely. Further there is the Respondent's evidence that he only made two payments thereafter and counsel for the Respondent has pointed out the inconsistencies in the Petitioner's evidence relating to the payments he made to the respondent and his method of payment. It is clear that the Respondent's version is more credible than the Petitioner.

It is my view that the Respondent has proved the contents of her cross-petition that the Petitioner has treated her with cruelty since the celebration of the said marriage. I therefore pronounce a decree nisi in her favour. The petition is dismissed with costs to be taxed if not agreed upon. It is further ordered that the Petitioner conveys the property presently in their joint names and situate at Thunder Hill Kissy Freetown to the Respondent.

SIGNED: - A. SHOWERS J.