ASANTE vs. SARPONG [1961]DLHC1980

Date	1961-10-28
Suit No.
Citation No.	[1961]DLHC1980

APALOO J

HAYFRON-BENJAMIN FOR THE APPELLANT

AGYEPONG FOR THE RESPONDENT.

[1961]DLHC1980
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ASANTE

[HIGH COURT, KUMASI]

[1963] 2 GLR 359

DATE: 28TH OCTOBER, 1963.

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COUNSEL:&nbsp;&nbsp;

HAYFRON-BENJAMIN
FOR THE APPELLANT.

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APALOO J.

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&nbsp;

This is an appeal from a judgment of a circuit court which on the
28th January, 1963, dismissed a claim by the plaintiff against the defendant
for damages for seduction.

The plaintiff is the father of a young woman whose name is Lydia
Asante. She was born in 1943, and at the time material to this action, lived
with her father and attended school. She brought forth a child on the 17th May,
1961. That would indicate that she must have taken seed the previous August.
The plaintiff claimed that she was debauched by the defendant whom he claimed
was responsible for her pregnancy. Accordingly, he claimed damages against him
for seduction. Lydia herself gave evidence and said the defendant was her boy
friend. It was nothing like platonic friendship. It was clearly on the admitted
evidence, a lewd form of association. Lydia said she frequently had sexual
intercourse with the defendant. The defendant did not seek to dispute this.
Indeed, he himself called one Kwaku Dua who said the defendant passed the
nights with him and that, “Lydia comes to the defendant and sleeps with the
defendant.” The defendant, however, denies responsibility for the pregnancy and
claimed that his association with Lydia came to an end in January 1960.
Accordingly, he contended that he could not be the author of the pregnancy
which, on my reckoning, took place in or about August 1960. Lydia denied that
she had had sex relations with any other man, and there is, in fact, no
evidence that she associated about August 1960 with anyone else.

Accordingly, on this part of the case the issue which the learned
circuit judge was called upon to determine was: “Did the association between
the defendant and Lydia come to an end in January 1960, so that the defendant
could not in the ordinary course of nature have been responsible for Lydia’s
pregnancy which took place on or about August 1960?” The learned circuit judge
found for the defendant on this issue although he did not seem to me to have
formulated the issue so very clearly. As he decided this issue adversely to the
plaintiff, he thought it unnecessary to pronounce on the other issues and
proceeded to dismiss the action.

The plaintiff felt himself aggrieved by that decision, and
appealed to this court on two grounds. The first ground argued by counsel on
behalf of the appellant was that, “The trial judge misdirected himself as to
the issue involved in taking judicial notice of certain matters of which the
law did not permit him to do.” This ground was actually relied upon to attack
the reasons which the learned circuit judge gave for his decision. As I read
the judgment, the court founded itself on three reasons. Firstly, Lydia was not
able to produce a single letter or point to a single present to substantiate
her claim to friendship with the defendant. Secondly, Lydia was not able to pin
point the exact date or nearest possible date of last intercourse, and thirdly
the evidence of two young women who testified on the plaintiff’s behalf was too
sweet to be believed.

On the first of the reasons given by the learned circuit judge,
counsel for the appellant submitted that it was not necessary in seduction to
establish that presents or correspondence must be shown to have been exchanged
between the defendant and the girl seduced. On the second, counsel submitted
that the fact that the girl was unable to recollect the exact date of the last
sexual act does not mean that she must have been associating with other men.
The reasoning of the learned circuit judge was tantamount, it was contended, to
holding that pregnancy could only necessarily have occurred as a result of the
last act of intercourse. As to the learned circuit judge’s third reason, it was
submitted that the two female witnesses told a natural and probable story, and
the court failed to give any tangible reason why it thought that that evidence
was unworthy of credit.

Counsel for the respondent submitted in defence of the first
reason given by the circuit court that it amounted to no more than that the
burden on the plaintiff to establish seduction had not been discharged. Counsel
argued that the second reason given by the learned circuit judge was tangible
as Lydia ought reasonably to have recollected the date of her last menstrual
period prior to the pregnancy. Counsel for the respondent did not say anything
expressly in defence of the third reason given by the circuit court.

Having myself considered the evidence, I find myself constrained
to agree with counsel for the appellant that the three reasons on which the
learned circuit judge founded his judgment are basically unsound. Where the
friendship between Lydia and the defendant was admitted, I cannot see what
object the evidence of exchange of presents or letters would serve. Indeed the
learned circuit judge argued against himself for although he considered it
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