DIV. C. 136/ 16                 201 6                            S.                                        NO. 1 3

 

IN THE HIGH COURT OF SIERRA LEONE

(FAMILY AND PROBATE DIVISION)

 

 

 

BETWEEN:

 

 

DR. ALIE AMIN SESAY                            - PETITIONER AND

CHRISTIANA M. SESAY                       - RESPONDENT

 

 

 

 

 

 

 

Counsel:-

 

H. Dabor Esq.                                              - Petitioner

 

 

G.B. Konneh Esq. &

M. Charley Esq.
 

-- Respondent

 

BEFORE THE HONOURABLE MS. JUSTICE F. BINTU ALHADI J. JUDGMENT DELIVERED ON THE 27TH DAY OF JUNE 2018

 

 

J U DGME NT

 

The   Petitioner 's  action  commenced   by  a  Petition  for  the  dissolution   of  the marriage  between  him  and  the  Respondent  solemnized  on  the   l41h    day  of October  2006.  It  was  filed  on  the  26lh  day  of  October  201 6  praying  for  the following reliefs:

 

1 . that the said marriage between the Petitioner and the  Respondent solemnized  on the  1 41h  day of  October  2006  be dissolved;

1. that the Respondent continue to have custody of the child of  the marriage with reasonable access granted to the Petitioner;
2. that the Petitioner shall give a monthly maintenanc e of Lel,000,000 (One Million Leones) for the Respondent and the said child;
3. that the Respondent to surrender to the Petitioner the original of the title deed to the matrimonial property that is in the joint names of the Petitioner and Respondent situate lying and  being  at  Mork  Street, Hastings, Freetown. That the Respondent continues to dwell  in  the apartment of the said property with the child and the Petitioner to be in control of the shops at the frontal portion of same;
4. any further Order that the Court deem fit and jus t in the circumsrances;
5. that the costs of this application be borne by the Respondent.

 

On the 9th day of November 2016 the Respondent filed an answer to t11e petition and a Cross-Petition  on the ground of cruelty; and thus for the following  reliefs:

 

1. .  that  the  marriage  solemnized  on  the   l41h    day  of  October-   2006   be dissolved;
2. that the Respondent be granted custody of the child of the mrnriage:
3. that the Petitioner be ordered to maintain the Respondent and the child with the sum of Le 5,000,000 (Five Million Leones) per month excluding school charges and medical'
4. that   both  the  Petitioner  and  the  Respondent   make  a  Deed  of  Gift ( Settlement ) of their  matrimonial  property situate at  Mark  Street, Hastings in Freetown in favour of the only surviving child Esther Harrison Michael Sesay;
5. that the Petitioner give one of the cars to ease transportation  o+ their child to school at Allen Town;
6. that the Petitioner be ordered to pay adequate compensa1ion to the

Respondent for the misery and suffering she went through of   surgery;

1. that the Petitioner be ordered to provide the Respondent with olimony;
2. any other ancillary reliefs the court may deem fit and just;
3. that the Petitioner be ordered to pay costs.

 

 

On the 5n, day of January 201 7 the Petitioner filed an answer  to  the  cross­ petition  praying  that  the  cross-petition  be rejected as  a  mere fabrication.

 

On the 25th day of May 2017 the Court granted the Petitioner a Decree Nisi ofter the Respondent foiled to attend court on numerous occasions to testify viva voce. It was later discovered that the Respondent was  not receiving notices from the Court as expected from the bailiff 's office. It was decided later that the Decree Nisi ordered by this Court be set aside on grounds of irregularity and the Respondent testified viva voc e on the 23rd of October 201 7 and on the 2nd of November 2017 respectively.

 

SUBMISSIONS BY COUNSEL FOR THE PETITIONER - H. DABOR ESQ.

 

Mr. Dabor informed the court that the petitioner,  Dr.  Amin  Sesay,  had experienced cruelty in the hands of the Respondent and was therefcre seeking a divorce on this ground. He explained how the behaviour of the Respondent caused the Petitioner to abandon his mother and his relatives. He argued that the  respondent  caused stress  and undue  anxiety  to  the  petitioner  thc t affected

his health.

 

Counsel for the petitioner opined that the respondent's case was baseless, that her experience of undergoing three caesarean surgeries and losing all three children made her paranoid, unstable, superstitious and dogmatic. He maintained that the petitioner 's late nights were as a result of his work, in order to fend for his family and not desertion as claimed by the respondent.

 

SUBMISSIONS BY COUNSEL FOR TH E RESPONDENT - M. CHARLEY ESQ.

 

In his submissions to the court, Mr. Charley pleaded with the court to Jphold the prayers of the respondent in her cross-petition. He asserted that the respondent was  treated with  cruelty  and was  deserted  by the petitioner.

 

DECISION OF THE COURT

 

I have carefully  considered  the  matter  before  me and these  are my fi:1dings:

 

The petitioner, Dr Alie Sesay, has complained about his wife' s behaviour. He told the Court that she has been cruel  to  him  and  he  finds  her  conduct reprehensible. He has asked that the court dissolve his marriage to the Respondent, Mrs Christiana Sesay on the ground of cruelty. In law, cruelty/ the respondent ' s behaviour is defined as : the cumulative effect of a series of acts which  might  well  amount  to  behaviour  which  the  Petitioner  cannot  reasonably

 

be expected to put up with, even though each of them taken separc tely might be too trivial; Stevens v Stevens [ 1979] 1 W LR 885.

 

The questions that arise therefore are: whether Mrs Sesay ' s behaviour has been such that Dr Sesay can no longer be expected to live with her? Or w ,1ether the petitioner, Dr Sesay, finds it intolerable to live with the Respondent, Mrs Sesay?

 

In responding to these questions, the court  must have regard to the  personalities of the individuals before it; and must assess the impact of the respondent ' s conduct on the particular petitioner in the light of  the  whole  history  of  the marriage  and  their  relationship;  Livingstone  - Stallard   v   Livingstone   - Stallard [ 1 9741 Fam 47, 54; [19741 2 All ER 766, 771.

 

Spelled  out  more fully  in: Ash  v   Ash   [ l9721  Fam   1 35,   140,   [ l9721  1 All  ER  582,  585 one  has  to  consider   not  only  the   behaviour   of   the  respondent   .....but  the c haracter,  personality, disposition  and  behaviour  of  the  petitioner. The  general question  may  be  expanded  thus:  can  this  petitioner,  with  his  charcic ter  and personality  with   his  faults   and  other  attributes,  good  and  bad,  and  having regard  to  his  behaviour  during  the  marriage,  reasonably  be  expecred  to  live with this respondent?

 

In my opinion and when one considers the history of this marriage, the main challenge has been coping with the death of three (3) children, all dying within a short space of time between eac h other. 1 think that these events teak a huge psychological toll on the health of the marriage; and both parties have suffered as a result of these  unfortunate and tragic  events.

 

The aspect of the petitioner not being expected to reasonably live with the respondent or finds her intolerable to live with, has been (or would have been) triggered by the beliefs, suspicions and utterances of Mrs Sesay; that is, that the deaths were caused by the witchcraft of her mother-in-law. That her behaviour, belief and suspicion caused Dr. Sesay to cast aside hls own mother and even stopped speaking to her. I think  that  when  you add up all these  events in the life of the marriage, they together as a  series  of  events, destroyed  the  soul  of the marriage  and  eventually  the  compatibility  of  the couple.

 

I am therefore satisfied that the psychologic al state of both parties i'., such that they cannot be reasonably expected to live together in harmony. I do not however think that the respondent has been cruel to the petitioner and on that ground the petitioner has failed.

 

The respondent filed a reply and also cross-petitioned. She explained the types of medical interventions she underwent in order to have children and the devastating  effects  of  losing  three  ( 3)  children. Both parties were  so concerned

 

that they enlisted traditional and religious interventions. Then ultimately, the petitioner told her that they should adopt a child and when that fell through, he canvassed contracting a sec ond marriage to another woman. This contributed in buttressing the Court's view that, both parties have been psychologically scarred by the tragic incidents that occurred in their home and has irretrievably broken up their marriage.

 

In her cross petition, the respondent also complained about the petitioner' s behaviour towards her. She saw a change in him after he qualified as a medical doctor. She stated that he became II pompous", "harsh", "nagging"  and demeaning of her and dismissive. This catalogue of behaviour in law constitutes cruelty; Gollins v Gollins [ 1 9641 AC 644.

 

She explained the events surrounding the death of their children in the marriage. That there was a lack of conjugal relationship and to compound that, he expressed a desire to contract a second marriage with another woman,  since he needed more than one child. When she refused to entertain the idea, his behaviour towards her worsened and he deserted the home for long period in time: and would make calls to other women in her presence.

 

I find the respondent ' s explanation of events  more compelling  and persuasive; and this would  have certainly compounded her psychological stress and health. I am of the view that a woman who has experienced multiple child deaths is entitled to more considerate treatment from  her  husband.  I am in no doubt  that the impact of the petitioner ' s conduct on the respondent, would have had an adverse effect on her psychological and  emotional  state  of  mind.  The petitioner 's temperament, behaviour and disposition cannot  therefore  be ignored.

 

I therefore do not think  that  the  respondent, from  all that  she  has told the court in evidence, can endure the petitioner 's  behaviour  nor  has  she  the  capacity any more. I am satisfied that the respondent has proven the ground of cruelty and I shall grant her the divorce. I think that Dr. Sesay 's behaviour to his wife has been such that Mrs Sesay can no longer be reasonably expected to live with him.

 

Custody of the child

 

Custody of a child determines where the child is to live.  It  settles  the arrangements as to the person with whom the child is to live. It is based on the fundamental principle that changes in the child's residence should interfere as little as possible with his/her relationship with both parents; that eoch parent retains full parental responsibility; Bromley and Lowe ( supra)  at p 351 .

 

The argument that a child needs a single settled home is a strong o:1e in most cases. From the facts of the case, the child of the marriage lives with her mother and has always been. This in the estimation of the court will continue to give the child a settled base. Furthermore, this  view  is buttressed  by the  application  of the  petitioner/father  which states  that  the child should  remain with its mother.

 

On the other hand, the court cannot consider the  custody/residence  of the child of the marriage, without considering access to the child by the absent parent. Access to the child of the marriage or contact entails, the person with whom the child lives, to allow the child to visit or stay with the person named in the Order or for that person and the child otherwise to have contact with each other.

 

It must be appreciated that while the child is with the parent, that parent may exercise her/his parental responsibility subject  to  not  acting  incompatibly  with the  Order of  the Court.

 

The Court is of the view that the c hild, Esther Alison Michael Sesay is to continue to remain in the custody of the Respondent, Mrs Christiana Sesay. However, Dr Alim Sesay, the Petitioner is permitted to have the child, Esther  Alison Michael Sesay to spend some weekends  and holidays with  the  Petitioner  as and when  it is convenient or an agreement is reached by the parties. The agreement must not be unreasonably withheld by the parent with  custody.  Where  this  happens, the Petitioner will be at liberty to apply to the court for  a variation  of  the    Order.

 

The Matrimonial  Home

 

The critical importance of the home requires that it  be  given  separate treatment. This is because it may have two func tions: primary purpose  is  to provide shelter for the parties and their family. At the same time, if it is held in freehold, it will constitute the most valuable asset that most  couples own and is thus an extremely  valuable  investment.

 

The   general   principles   to   be  applied   when   making   an   order   for   financial provisions   or   the   adjustment   of   property   rights   on   divorce,   the   :::::ourts   are directed to exercise their powers as : giving priority to the welfare  of any child of the family. lt tends  to have regard to all the circumstances of  the case, with first consideration  being  given  to  the  welfare,  while  a  minor,  of  any  child  of  the family who  has  not  attained  the  age  of  eighteen;  Bromley   &   Lowe   ( supra)   at 758.  This   means  that  the   child's  welfare   is  not  the  overriding  consideration, though  of  course it is an important  one; Suter v Suter and  J ones   [ l9871 Fam  1 1 1 , [ l987]  2 All  ER  336, C A.  This  reflects the well established  principle that  orders  for c hildren  should  be related  to  their  dependency  and should not in the absence of  special  needs  such  as  mental  or  physical  handicap,  provide  for  continuing

 

support during adulthood;  Lilford v   Glynn  [ l9791  l All ER  441 , C A;   Chamberlain  v Chamberlain   [19741 l All ER 33, CA.

 

As  such, in dealing  with  the  matrimonial  home, the  court  has  options  to  make several  orders.  From the  facts  of  the  case,  the  property  is jointly  owr·ed  by  the parties  utilized  as  a   home  and  the   shops   at  the  front   as  investment.  The matrimonial  home  is  therefore   settled  on  the  spouses  as  a  trust  for  sale  for themselves  as  beneficial  tenants  in  common;  Martin   v   Martin   ( l9781   Fam   1 2, [ 1 9771 3 All ER  7 62, C A.

 

Considering  the  circumstances  of  the  case,  both  spouses  shall  keep  or  acquire an interest in the house as equitable tenants in common,  which  will  involve settling it on them as a trust f or sale; only that the sale is deferred until the child of the marriage attains eighteen ( 18) years old.  Af ter  that  stage,  the  parties have  an  option   on  whether   to  sell  or  not  or  whether   one  party  decides  to  buy

another out or not.  Jn  the  meantime,  the  Respondent  is  given  exclusive possession.

 

CONCLUSION

 

In view of the above, I make the following Orders:

 

1. .  That  the marriage solemnized  between the  Petitioner and the Respondent on the 141h day of October 2006 is dissolved forthwith.
2. That the Respondent is to have custody of the child of the marriage; with reasonable access being given to the Petitioner and to take the child to spend some weekends and holidays with same as and when possible.
3. That the Petitioner do pay monthly maintenance of Le 2,500,000 [Two Million Five Hundred Thousand Leones) monthly to the Respondent for her upkeep and that of the child and transportation. School fees and medical expenses excluded.
4. That the Respondent and the  child  do !ive in the  matrimonial  home  until the c hild is 18 years old. A f ter which the  Petitioner  and the Respondent are at liberty t o decide whether they want to sell the property ::ind share the proceeds of sale equally or not.
5. The monthly or yearly rent from the shops at the front of the property to be shared equally. The Petitioner and Respondent to have equal control.
6. Costs to be borne by the Petitioner; to be taxed if not agreed upon.
7. Liberty to apply.

 

'TT'                         I  .

           ( [ _; c .,.·z , ·;L-                                           

Hon. Justice  F.  Bintu Alhadi   J.

Judge  of the  High Court