Div.22/03                                                   2003                                     M. No.2

IN THE HIGH COURT OF SIERRA LEONE

(CIVIL JURISDICTION) BETWEEN:

WILLIAM R. MOSES                           - PLAINTIFF

AND HANNAH M. MOSES                - DEFENDANT

BEFORE THE HON. MR JUSTICE S.A. ADEMOSU DATED TUESDAY 19^TH APRIL, 2005

JUDGMENT

This is a husband's petition against his wife for the dissolution of their marriage celebrated at Samaria West Africa Methodist Church, Freetown on the 27th of November, 1993 as evidenced by their Marriage Certificate. Exhibit 'A' on the sole ground of cruelty. The wife filed an answer and cross petition that the prayer of the Petitioner be rejected but that the marriage be dissolved on the grounds of Petitioner's cruelty to her; constructive desertion and adultery.

The various allegations on cruelty are contained in paragraph 7 (a) to (t) and 8 inclusive of the petition but the allegations are generally denied by the Respondent and states her allegations on cruelty and desertion as are contained in paragraphs B,C, D,E, F,G and 7 inclusive of the answer and cross-petition.

The acts of cruelty alleged included that the Respondent is a woman of uncontrolled temper and drug habit and habitually used violence and obscene language on the Petitioner; inflicting a deep laceration on Petitioner's chest with a razor blade; inflicting grievous wound on the left finger of the Petitioner; leaving the matrimonial home and returning home in the early hours of the morning; unprovoked attack on the Petitioner; throwing stones at him and wounding him on the face; leaving the Petitioner alone to care for one of the children who was extremely ill; leaving the matrimonial home without the consent or approval of the Petitioner and making false allegations against the Petitioner that the Petitioner wanted to kill her thereby causing the Petitioner to be temporarily detained.

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The Petitioner testified subsequently in support of the allegations contained in paragraphs 7(a) to (0 and 8 of his petition.

Under cross-examination, the Petitioner told the court inter alia that the Respondent stopped cohabiting with him since about six years ago. That he did not ask her to quit from the bed room and that she stopped sleeping with him in April of 1998.

Petitioner's birthday is 30th May. He admitted knowing one Theresa Siesay but denied that she is his sweetheart. He denied that he did not spend his birthday at home in the year 2001. He denied that he and Theresa spent his birthday at the Stadium Hostel. After being confronted with a photograph Petitioner admitted that it was he and Theresa that are in the picture but denied that it was taken on his birthday. He agreed that he lost his father in July 2001 and had funeral rites. He denied that Theresa attended the funeral rites. The Petitioner was shown another picture of himself and a lady. He said the lady is the daughter of a Mr. Aku Macaulay his fellow church goer. He reiterated that since six years ago her and the Respondent had been living separate and individual lives. He denied the suggestion that he had not been giving Respondent's money or money for herself. He admitted removing the television from the parlor to his room for safe keeping. He admitted that the Respondent was not allowed to be using the inside toilet and/or bathroom and that she goes outside for toilet and bath. He denied stopping Respondent from using any of the cooking utensils. He also denied beating up the Respondent and/or kicking her on her stomach. He said he and the Respondent always talked about anything concerning the children. He stated that he did not know whether Respondent had cause to go for medical treatment. He strongly denied beating up the Respondent on 30th June 2003 and or that the Respondent collapsed at Howe Street. Petitioner denied meeting his daughter and the Respondent at anytime watching Television. He denied the suggestion that he prevented the Respondent from using the inside facilities and/or removing her things from the room. He said the last chop money he gave her was Le6, 000.00 per day. He said for six months he had not been giving the Respondent her chop money and he would not remember how much he gave as maintenance. Concluding he denied the suggestion that he was the one who excluded the Respondent form the matrimonial bedroom and added that she made the decision. This then is the Petitioner's

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 case against the Respondent save that his evidence and the Petitioner revealed that there are two children of the family and one of the marriage.

The Respondent testified and specifically denied all the allegations on cruelty made against her and testified substantially in support of the allegations contained in her Answer and cross petition. Respondent's allegations included the following:

"That the Petitioner is a man of depraved character, adulterous, fetish, demonic, boisterous, cruel, aggressive and pathological liar; driving Respondent of the bedroom, removing the Television and sound system from the parlour, deprived Respondent of using toilet and cooking utensils; flirting with a Theresa Seisay and catching them with her at the National Stadium and beating up the Respondent."

The Respondent's evidence is substantially what is contained in her allegations against the Respondent as she said inter alia that on 8th of February, 2003 she went to her Church - Holy Temple of Faith with he son. Christian Moses and before they left she had told the Petitioner that she and her son would be going to church in the evening. That on their return Petitioner has locked the door and had to wait for some time before he opened the door. She said the Petitioner snatched Christian from her as he opened the door and pushed her outside. That when he asked Christian where they had been and the latter replied Church service. The Respondent strongly denied attacking the Petitioner with stones at anytime and/or wound him. She denied going to the C.l.D. on the 7th of March, 2003. She also denied leaving home on 2611 October 2003 and/or leaving the Petitioner at home with a very sick child. She told the court that the Petitioner ill-treated her driving her out of the room and by depriving her from sitting on the chairs and removing the T.V. and the sound system from the parlour. She said he also deprived her from using cooking utensils and had to be cooking outside. What is more she complained that she had to be using outside toilet and that whenever she felt pressed to go to the toilet and whenever she were to release herself. Petitioner would lock her outside and she would have to sleep in the toilet till day break.

Still continuing the Respondent further told the Court that on Petitioner's birthday she caught him with another woman at the National Stadium Hostel and she gave the woman's name as Theresa. She described Theresa as the girl friend. The photograph of Petitioner and

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the woman Theresa was tendered by the Respondent, it is in evidence as exhibit 'A' 1 and 2 for the negative and the print respectively. It would be recalled that the Petitioner reluctantly admitted that exhibit A1 and 2 is the photograph he took with Theresa although he would want the court to believe that he was not caught with her on his birthday. Respondent further stated that sometime in June 2003 she caught the Petitioner with another girl friend by the name of Francess Macauley who she claimed to know very well because they belonged to the same St. John's Church. Wellingtonand more over because they had been friends. She said the Petitioner fought her along Howe Street to the extent that she claimed to have collapsed:

She produced and tendered but only for identification the photograph of the Petitioner with Francess Macauley. That as a result of the beating her brassiere got turn together with her polo. She said she had to be treated at the Connaught Hospital. I pause here to observe that no medical paper was tendered by either the Petitioner or the Respondent in respect of the injuries they claimed to have sustained. Concluding Respondent stated that as a result of all what Petitioner has done to her she felt bad. She is asking the Court to dissolve the marriage; but to reject all what the Petitioner had said about her; that he is condemned in costs and that she be given custody of the children. She is also asking for alimony but I regret to say that as it was not pursued with any seriousness the claim must fail.

Under cross-examination, Respondent denied the suggestion that she was beaten up because of Francess Macauley. She explained that she saw her husband and Miss Francess Macauley walking along Howe Street when she approached them at about 1.30 p.m. She denied the suggestion that Francess Macauley was their family friend. She denied that she had been violent and vicious throughout their marriage. She strongly denied that the Petitioner had never laid his hand upon her. She admitted that she and the Petitioner had not been sharing bed and not been cooking for him.

This is the Respondent's case. At the end of the Respondent's case Counsel for the parties addressed the court on both the law and the facts. One important point which emerged from the evidence of the Petitioner and which he never pleaded is that for about six years before presenting the petition, he and the Respondent had not been sharing the same bed and/or food. Bearing in mind the rule that what is not pleaded goes to no issue. I shall therefore

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ignore the point but only to say that both parties have refused to put before the court the root cause of their marital problem.

On the issue of violent attitude attributed to the Respondent having seen and observed both parties whilst testifying I have no doubt at all in my mind that it is difficult to find a wife who will be happy living with a flirtatious husband issue so when such husband in company of some other woman the wife is acquainted with. The photograph of the Petitioner and Theresa Siesay is to me evidence that the Petitioner had transferred his love for the Respondent to another woman. I hold the view that if the love and relationship between the Petitioner and Theresa had not been so deep he would not have gone to the extent of taking their photograph to the matrimonial home. The relationship between him and Theresa must have blown bad breath into the matrimonial life of the Petitioner and the Respondent. In saying this. I have taken into consideration the fact that the Petitioner apart from accusing the Respondent of being a drug addict among other things he did not accuse her of adultery. I believe as a fact that the Respondent caught the Petitioner and Theresa Siesay at the National Stadium which can only be as a result of the Petitioner's indiscreet way of doing his. business. I cannot entertain any doubt that the Respondent had been very violent to the Petitioner but not without Petitioner doing things that will not provoke violence. In coming to this conclusion, I have taken cognizance of the fact that the complainant in the petition against the Respondent started in November of 2001 whereas the first child of the family was born in 1987 followed by the second one in 1990. The child of the marriage was born in November of 1994. I believe that there is truth in the saying that there is no smoke without fire. People react differently when their feelings are injured. If the Petitioner is having his extra-marital affairs with another woman and makes no secret of them, I don't think any reasonable man would expect the Respondent to allow someone else to take her love away.

I must confess that if this matter has not been contested so seriously by the Respondent, I would have readily concluded as I did in the abortive judgment that the Respondent was the guilty party.

The evidence before me has disclosed that it was the Petitioner who removed the T.V. and the sound system from the parlour to his room. He also admitted that he did not allow

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the Respondent to use the inside toilet and bathroom but denied stopping her from using any cooking utensils. This admission by the Petitioner is a clear evidence of intention to drive the Respondent out of the matrimonial home, and to show that their marriage is useless to him.

The Respondent was cross-examined but I find her evidence unshaken which is to the effect that it was the Petitioner who had ill treated her and not she as alleged by the Petitioner. The sum total of the evidence before me is that both parties want to get out of this marriage. They want it dissolved but only that each party is accusing each other for the breaking down of the marriage.

The general rule in all questions of cruelty is that the whole of the matrimonial relationship must be considered and the rule is of special value when cruelty consists Not of violent acts of injuries, reproaches complaints, or accusations. As Lord Reid said in Gollins vs Gollins (1963) 3 W.L.R. 176 (H.L.) and (1963) 2 All E.R. at p.969 no one has ever attempted to give a comprehensive definition of cruelty and it appears it is not easy to reconcile some of the decisions on cruelty.

In the case of Gollins vs Gollins (supra) an extensive examination of the authorities was made. The earlier cases of cruelty dealt in the main with acts of physical Violence and were not concerned with motives and intention. The case of Kelly vs. Kelly (1970) L.R.2 P & D. 59 was described by Lord Merriman in Jamieson v Jamieson (1952) 1 All E.R. at p. 881 as "the leading case in England on the subject of cruelty without physical violence." In the Kelly vs. Kelly ( supra) Lord Penzeance at page 72 said - "the husband said he had no desire to injure her (the wife) and It has never been asserted that he does."

After that case various cases have shown that intention to injure or to be cruel. In Squire vs. Squire (1948) 2 All E.R. 51 the court observed that without the intention of being cruel some intentional acts may amount to cruelty. In Jamieson vs. Jamieson (supra) Lord Norman said:

"In cases of mental cruelty the guilty spouse must either intend to hurt the victim or at least be indifferent as to the consequences to the victim."

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the law is settled that whether a spouse has been guilty of cruelty to the other spouse must be determined as an issue of fact.

I opine that an accumulation of minor acts of ill-treatment causing or likely to causes the suffering spouse to break down under strain may constitute the offence of cruelty. On the totality of the evidence before me and being guided by the principles stated above, in my own considered opinion, the Petitioner is move to blame for the break down of the marriage than the Respondent on the ground of their cruelty to each other. In the circumstances, I hereby order a decree nisi of the marriage solemnized between the Petitioner and the Respondent on the 27th of November, 1993 at Samaria West African Methodist Church, Freetown on the ground of Petitioner's cruelty to the Respondent. The result is that the cross-petition succeeds. The petition is dismissed.

Mr. Caesar: We are asking for costs of the action and that we adjourn to Chambers for ancillary matters on a date. We are asking for Le5 million costs. Court: Costs to the Respondent assessed at Le 1.5 million and for ancillary matters. At this stage Mr. F. Carlton-Hanciles announces that he is deputizing Mr. Nylander. Mr. Carlton Manciles: On the issue of costs I ask you to be very lenient. Court: Cost to the Respondent assessed at Le1.5m. Mr. Caesar: 1 ask for Wednesday the 4th of May. Court: Adjd. to 4/5/05.

(Sgd.) S.A. ADEMOSU