ADOTEVIE-AKUE vs. ADOTEVIE-AKUE [1974]DLHC2248

Date	1974-02-15
Suit No.
Citation No.	[1974]DLHC2248

SARKODEE J.

DR. A. K. FIADJOE FOR THE APPLICANT.

Y. N. A. AGBESI FOR THE RESPONDENT.

[1974]DLHC2248
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">ADOTEVIE-AKUE <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">ADOTEVIE-AKUE <o:p></o:p>[HIGH COURT,
ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 1 GLR 307<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
15 FEBRUARY 1974.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DR. A. K.
FIADJOE FOR THE APPLICANT.<o:p></o:p>

Y. N. A.
AGBESI FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE J.<o:p></o:p>In this
application brought under Order 55, r. 25 (1) (a) and (b) of the Supreme [High]
Court (Civil Procedure) Rules, 1954 (L.N. 140A), the applicant (who is
petitioning for divorce in the substantive suit) prays for an order that his
viva voce evidence be dispensed with and that his evidence be taken on
affidavit on the grounds that he is abroad and that because his income is small
it will be impossible for him to travel to Ghana for the present hearing of the
petition. The applicant is at present on the staff of the Ghana Embassy in
Bonn, West Germany, where he is likely to be until September 1975, when his
tour will end.<o:p></o:p><o:p>&nbsp;</o:p>It seems
to me that leave to give affidavit evidence under Order 55, r. 25 should be
granted only in exceptional circumstances. The court will readily grant leave
for evidence to be given either wholly or partially on affidavit in undefended
cases and will do so in defended suits where the petitioner is to give only
formal evidence and no allegation about his conduct has been made or he on his
part has nothing to explain in his conduct: see Gayer v. Gayer [1917] P. 64,
C.A. where it was sought to prove adultery by affidavit in an undefended suit.
In Ex parte Armitage (1858) 27 L.J.P. &amp; M. 4, in a petition for dissolution
of marriage, the judge dispensed with oral evidence and heard the case on
affidavit. The respondent did not appear and even though the co-respondent
appeared he did not object to the affidavit evidence. Also in Ling v. Ling and
Croker (1858) 1 Sw. &amp; Tr. 180 upon the application of the petitioner, other
parties consenting, the judge directed that the cause should be heard on
affidavit. Mrs. Ling appeared but put in no answer.<o:p></o:p>Above all
the court must examine the case before it and decide whether to admit affidavit
evidence if the absence of the deponent is not likely to damage the ends of
justice. For a court which dispenses with oral evidence deprives itself of the
opportunity of first-hand experience of a witness’s demeanour and much of the
force of cross-examination is lost if it does not take place before the
tribunal which has to accept or reject the evidence.<o:p></o:p><o:p>&nbsp;</o:p>This
divorce suit is seriously contested. The applicant husband in this case is
relying on three main grounds to prove that his marriage with the respondent
has broken down beyond reconciliation. First, that the respondent wife has
behaved in such a way that the applicant cannot reasonably be expected to live
with her. As particulars he alleges various acts of cruelty on the part of the
wife as a result of which he says he has suffered considerable mental distress
and humiliation. Secondly, he says that the wife has committed adultery by
reason of which he finds it intolerable to live with her. Adultery must be
proved to the satisfaction of the court and even though the evidence need not
meet the certainty required in criminal cases, a high degree of probability is
required. Thirdly, that he and the respondent have not been able to resolve
their differences.<o:p></o:p><o:p>&nbsp;</o:p>These are
matters which require proof. The respondent, no doubt, would want to and ought
to be given an opportunity to cross-examine the applicant. The court must also
have the benefit of seeing the parties. The respondent on her part alleges that
the applicant has committed adultery. The applicant vigorously denies this in
his reply. The fact that the parties say that the marriage has broken down
beyond reconciliation and may be dissolved does not by itself end the matter,
for whether or not the marriage has broken down beyond reconciliation is a
matter for the court: see Adjetey v. Adjetey <o:p></o:p><o:p>&nbsp;</o:p></main>