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G. SHARPLES
V.
J. BARTON
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
15TH DAY OF MAY, 1951
2PLR/1951/56 (WACA)
OTHER CITATION(s)
2PLR/1951/56 (WACA)
(1951) XIII WACA PP. 198-203
LEX (1951) – XIII WACA 198-203
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
LEWEY, J.A.
DE COMARMOND, J.
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BETWEEN:
G. SHARPLES – Defendant-Appellant
AND
J. BARTON – Plaintiff-Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV.APP.3356.
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REPRESENTATION
Teesdale — for Appellant
Kayode — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
FAMILY LAW – ENTICEMENT:- Enticement is based on right of husband to consortium of wife – Insufficient to establish illicit relationship and that wife left husband – Plaintiff must prove wife’s departure direct result of defendant’s procuring, persuading or enticing.
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CASE SUMMARY
The plaintiff sued the defendant for enticing his wife to depart from the consortium of her lawful husband and was awarded £1,000 damages.
The Court considered the nature of the action and the degree of proof required to substantiate a claim of this kind. The essence of the action is procuring, persuading or enticing the wife to depart from the husband’s home. The Court is not concerned with the aspect of adultery or with questions of moral behaviour arising from an illicit relationship and something more than alienation of affection must be proved.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. It was not enough to prove that the wife committed adultery with the defendant and left the matrimonial home or that he alienated her affections.
2. There must be something definite established against the appellant, and his words and conduct, together with the circumstances leading up to, and attending, the wife’s actual departure, must be scrupulously weighed in order to determine the degree of responsibility which he ought to bear in law.
3. It has to be remembered that – as has so often been said – this is a Court of law and not of morals. The Court is not called upon – even on the proved facts of such a case as this – to subject the conduct of certain parties to condemnation, and to extend approbation or sympathy to others.
4. The Court is duty bound to take account of facts and considerations which go to the question of the respondent’s cause of action against the appellant, and how far – taken at its highest – they afford definite evidence that the wife’s final departure from her husband was induced by some procuring, some persuasion or some enticement by the appellant.
5. The required standard of proof was not satisfied at the trial. It was not shown there was any definite interference by the defendant, or any procuring, inciting, or that but for his persuasion the wife would or might not have left the matrimonial home and deprived the husband of her consortium.
Cases referred to:
(1) Elliott v. Albert (1934) 1 K.B. 622.
(2) Place v. Searle (1932), 2 K.B. 497.
(3) Winsmore and Greenbank (Willes), 577.
(4) Newton v. Hardy & Another, 149 L.T.R. 165.
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MAIN JUDGMENT
The following Judgment was delivered:
LEWEY, A.
This appeal relates to a rare form of action. The plaintiff claimed £3,000 damages from the defendant for procuring, enticing and persuading the plaintiff’s wife to depart from the consortium of her lawful husband, for harbouring and maintaining her in his (the defendant’s) house, and for depriving the plaintiff of her consortium and services: the plaintiff further averred that the defendant, in so doing, had acted in breach of his duty and obligations as a physician.
The action was tried at Jos by Ames, J., sitting as a Judge alone, and the learned Judge found in favour of the plaintiff and awarded him £1,000 damages against the defendant.
The facts are set out in the judgment, and it is unnecessary to recapitulate the detailed history of the whole case in its earlier stages. It is sufficient to say that the plaintiff – to whom I will now refer as the respondent – was employed by a mining company and that he and his wife had one small daughter, while the defendant – who is now the appellant – was a doctor and had his wife and three children living with him until shortly before the critical period in the case was reached, by which time they had gone to England.
From about March, 1949, onward, the two families seem to have been on terms of intimate friendship and to have seen a good deal of each other. In July, 1949, the respondent’s wife had an accident to her foot, and as a result suffered from a somewhat severe injury and from shock. She was attended to by the appellant, and as there appears to have been no suitable accommodation in the local hospital, she went for three days to the appellant’s house and there received treatment from him. After a few days at her own house the foot was still giving trouble, and the appellant seems to have thought that there was danger of gangrene: she again went – apparently by her own wish, and in preference to being admitted to hospital – to the appellant’s house and stayed there for two or three weeks, while she was given regular treatment by the appellant. She returned to her husband’s house about the end of August. It is to be observed that during both these periods when she stayed at the appellant’s house, the appellant’s wife was living there – she only left for England with her children at the beginning of September.
In September, the matters with which this case is concerned came to a head. The important dates are the 19th, 20th, 21st and 22nd September, the culmination being reached on the evening of the 22nd, when the respondent’s wife finally left her husband’s home. It becomes necessary, therefore, to examine in detail the evidence as to what took place on these days, together with the findings of the learned Judge thereon.
It is not disputed that the respondent, on the 19th September, spoke to the appellant as to his wife having been seen too much in the appellant’s company, and told him that this – and more particularly their having gone out together on occasions in the appellant’s car – was causing a certain amount of talk and gossip. He asked the appellant to discontinue these expeditions. The appellant in his evidence, says that it was then that he realised how strong was his feeling for the respondent’s wife: he also says that he told the wife, later that day, about his having to see less of her and that she was distressed, and said, that, in any case, she was leaving her husband and would not again live with him.
On the following day – the 20th – according to the appellant, he and the woman declared their love to each other, and decided that they must continue to see one another and that they would tell the respondent how things stood, but not immediately.
On the 21st September, there occurred the first scene with the respondent. This was the result of an incident in the bathroom of the respondent’s house where the appellant had taken the wife in order to examine her foot again. The respondent says that they were so long in the bathroom with the door shut that he went and looked through a crack in the door, and saw them in one another’s arms and kissing one another. The appellant’s version is that they were not kissing, that the door was not shut, that they were only in the bathroom for a very short time, but that they were having a whispered discussion as to telling the respondent how they felt for each other. The learned Judge came to the conclusion that the respondent was speaking the truth as to what he thought he saw, whether or not there was actually any kissing, and that his suspicions were not unnaturally aroused by the whispering and the attitude in which he saw his wife and the appellant.
Much more important, however, is the scene that followed this incident. The respondent’s story is that he ordered the appellant out of the house, and that the appellant said, “Peggy and I are in love with one another and I want to take her away now”, that his wife then declared her love for the appellant, and that the appellant after again insisting on taking her away that night, eventually went off without her, saying that he must see her every day. The respondent says that his wife also insisted that she must go on seeing the appellant. In conflict with this, the appellant’s evidence is to the effect that he told the respondent of his love for his wife and said that he wanted to marry her, and that the respondent must consent to a divorce; that the respondent then referred to former occasions when he had had trouble with his wife about other men, and that the wife then said that she loved the appellant, was unhappy in her married life and wanted a divorce, concluding by saying to the respondent, “I am not going to live with you in any case”.
The appellant further says that there was then a discussion as to divorce and the future of the respondent’s child, that he did not insist on taking the wife with him and that he went away leaving the matter to be thought over and discussed on the Friday. The respondent, in cross-examination, had denied that there had been any suggestions as to divorce, and the learned Judge accepted his evidence as against the appellant’s in that he disbelieved the story that there had been a discussion about divorce, and the appellant’s evidence that he had not wanted to take the woman away that night.
This brings us to the 22nd September. The respondent, as a result of what had happened, had made preliminary arrangements to secure an air passage to England for his wife; she said that she must first see the appellant, and the appellant did come, and saw her alone. Later, the respondent says, his wife sent to him at his work to tell him that the appellant wished to see him. When the respondent got to the house, his wife was there, and also the appellant. According to the respondent, the appellant said that it was completely out of the question for the respondent’s wife to go to England, but that she was coming back with him (the appellant) and there was nothing that the respondent could do about it. The wife then asked for her passport and inoculation papers, and the respondent said he would send them to her; he then left the house in great distress, and when he came back, his wife and child had gone. In cross-examination, the respondent admitted that he realised during the discussion, that his wife was going away with the appellant, but he maintained that it was not with his permission.
The appellant, for his part, admits that he eventually left with the wife and child that evening, but his account of what actually took place at the interview is in conflict with the respondent’s; for he says that the respondent began by asking: “Do you really want to take her away and marry her?” and that he (the appellant) replied in the affirmative, adding that they wanted to get married, and that the wife then confirmed this. According to the appellant, the respondent then said: “All right, take her away; I do not want to see her again. . . . I will divorce her as soon as possible.” All this was emphatically denied by the respondent, and the learned Judge rejected the appellant’s account of the interview as to these matters.
On the evening following these events, the respondent went to try to see his wife at the appellant’s house, and through the window, saw her in bed with the appellant; he broke into the house and there was a fight. Nothing of this is denied by the appellant. The respondent went twice more to the appellant’s house during the following days; on the first occasion he took away the child and on the second he had a brief and unsatisfactory interview with the appellant. Thereafter he did not see his wife again.
Those are the material facts. It remains to apply the law to them. Owing to the rarity of these actions, the authorities are not numerous, but the law as it appears from the leading cases, is abundantly clear.
It is important to remember that in actions of this kind the Courts are not concerned with the aspect of adultery or with questions of moral behaviour arising from an illicit relationship: as Scrutton, L.J., observed in the enticement case of Elliott v. Albert (1) :-
“It appears to me to be immaterial whether one of the elements which may be alleged to prove the loss of consortium is adultery. The cause of action has nothing to do with adultery, and can be proved without proving adultery.”
The primary consideration is that these actions are founded upon the violation of a legal right – the right which a husband has to the consortium of his wife. That right is based upon a duty which the law imposes upon the wife, and which is stated in Lush’s Husband and Wife (3rd Edition), page 3, in the following terms:-
“It is the duty of the wife to reside and consort with her husband. This is a duty which she owes to him, and a person who tempts or entices her to violate this duty commits a wrong towards the husband for which he is entitled to recover damages.”
That is a statement of the law which has received approval in various leading cases, and it follows that the question to be asked in these actions is whether the defendant can be proved to have done something which has brought about a violation of this right of the husband’s. Did the defendant procure, entice or persuade her to commit a wrong towards her husband by her ceasing to reside and consort with the husband; did he induce her to do an unlawful act which, but for his persuasion, she would, or might not, have committed? If the answer is in the affirmative, that is sufficient to make the defendant liable; for it has been well established that the older proposition is no longer good law, whereby it was considered necessary to show that the wife’s will had been overborne by the stronger will of the defendant.
The theory as to the overbearing of the wife’s will was finally disapproved in the judgments of the Court of Appeal in the leading case of Place v. Searle (2): that case confirmed that the old decision of Winsmore and Greenbank (3) was still good law, and enunciated the principles upon which subsequent cases, such as Newton v. Hardy 6- Another (4) have been decided. These principles can best be illustrated by a reference to certain passages in the judgments. In Place v. Searle, Greer, L.J., said at page. 520:-
“It appears to me that the proper test to apply in this case is: did the defendant induce Mrs. Place to do an unlawful act which, but for his persuasion, she would or might, not have committed?”
and again, at page 521:-
“As I have said, in considering whether there has been a violation of that right (i.e. the right to consortium) the test must be whether something has been done which, but for the interference of the defendant, would not have been done. The question whether what was done amounted to advice or persuasion may be one of degree.”
That is, then, the real test that we have to apply to the actions and conduct of the appellant in this case.
We know something of the history of his association with the respondent’s wife: we know that he and she came –l or possibly drifted into a situation where each had fallen in love with the other; and we know that the culmination of all this was that on the evening of the 22rid September, the wife finally left her husband’s house in company with the appellant. Is that enough – taken with the evidence as to what had passed during the interview with the husband on that evening, and on the previous evening – to fix the ultimate responsibility on the appellant; that is to say, was the wife’s departure the direct result of his procuring or enticing? In the course of his judgment in Newton v. Hardy, Swift, J., made some observations which are very much in point upon this aspect of the matter.
In that case it was the husband who was alleged to have been enticed from his wife. At page 169, Swift, J., says:-
“The cause of action must be based on what happened on the 8th October when the husband left his wife’s house. He must have been enticed to leave it or procured to leave it. … Procured or enticed to what? Not to commit adultery with her, which admittedly he did, not to go and stay with her at her cottage … but to cease from co-habiting and consorting with the plaintiff. … Does the evidence satisfy me that she procured, enticed or persuaded him to cease from co-habiting and consorting with the plaintiff, to break up the consortium and alienate his affections from the plaintiff. … She must satisfy me as to that … it is not enough merely for a woman to make another woman’s husband love her or even to alienate the affection of a husband from his wife. Before there can be a cause of action, she must go farther. She must satisfy me … before I can give her judgment, that it was the defendant who induced the situation, and I cannot say that. How can I say that Mrs. Hardy enticed Newton any more than that Newton seduced Mrs. Hardy”
What we have to decide, therefore, on this appeal is whether or not there was evidence before the learned Judge on which he could be satisfied – having regard to the law as expressed in the judgments referred to – that the wife’s departure from her husband’s house on the 22nd September was directly induced by the appellant; that it was only by his persuasion that she did an unlawful act which, but for his efforts and his interference, she would not have done; and that the part he played went beyond leading the wife into an adulterous intercourse and alienating her affections from her husband. If it were not for the authorities, that might seem to be putting the matter too high; but it is a statement strictly in accordance with the settled law. There is a further passage to illustrate this is the judgment of Swift, J., in Newton v. Hardy (4), where the learned Judge said this:-
“He must have been enticed to leave his wife’s house, and procured to leave it. The enticement and procurement may have been going on for a long time before, but in order that this case may succeed, I must be satisfied that his leaving the house on the 8th October was in consequence of some advice, some persuasion, some enticement by Mrs. Hardy. It is not enough that she says ‘I love you very much, come and be with me at Cloughton’. In order that this case may succeed, the plaintiff must prove that his finally leaving her house and breaking off consortium on 8th October was caused or procured or induced by some action of Mrs. Hardy’s as opposed to his own voluntary going in pursuit of Mrs. Hardy”
What we have to do, therefore, is to look at the evidence and to see what the appellant really did. By this I mean not so much what he did during the history of his association with the wife – for there is not very much detailed evidence as to that – but what he did when matters reached a climax on the 21st and 22nd September, at the two interviews, and, above all, when the wife actually left her husband’s home; for that is the all-important matter for consideration.
There was, of course, a conflict of testimony in some respects as to these matters, and it was necessary for the trial Judge to make up his mind, as he did, what to believe and what to reject. Taking account of what is common ground, and of the evidence which the Judge accepted, what is the result of it all upon the appellant in relation to the wife’s departure? We know that she did, in fact, leave the house with him on the evening of the 22nd September. We know that, according to the respondent’s evidence, the appellant on that evening and on the previous evening, had used expressions to the husband which clearly indicated that he wanted to take her away with him and that they were going off together. We have to take account of that, and we have also to take account of what we know of the wife’s character and of her attitude at these interviews. How far does all that give the respondent a cause of action against the appellant, and how far – taken at its highest – does it afford definite evidence that the wife’s final departure from her husband was induced by some procuring, some persuasion or some enticement by the appellant?
I do not think it is enough. I have given all these matters the most careful consideration, and I have come to the conclusion, in the light of the authorities, that the required standard of proof was not satisfied at the trial, and that the respondent cannot, therefore, be said to have made out his case against the appellant.
It is not enough that the wife committed adultery with the appellant or that she left the matrimonial home, or even that she left it in company with the appellant. There must be something definite established against the appellant, and his words and conduct, together with the circumstances leading up to, and attending, the wife’s actual departure, must be scrupulously weighed in order to determine the degree of responsibility which he ought to bear in law. It is necessary to take account of the suggestions that there had been occasions in the past when the wife’s behaviour had not been beyond reproach, and also that she had made up her mind to leave her husband in any event, irrespective of the advent of the appellant. And it is necessary to remember that by the 22nd September these two people had already drifted into a dangerous, and possibly illicit association and had openly declared their love for one another, so that there is always the possibility that before that date they had resolved to go off together: there is no evidence as to that, but it might well have been so, having regard to their relationship and to the fact that in the end they did go off. Admittedly the appellant appears to have had a great deal to say at the two critical interviews, but I am far from satisfied that anything that he said was the immediate cause of the wife leaving her husband. Apart from anything else, that does not seem to me to be probable from what can be gathered of her own attitude at the time: and it is not unreasonable to suppose that the appellant was merely doing the talking for both of them, and making himself – as the man — the mouthpiece of this woman and himself in declaring their common intention, formed we know not when or how. Be that as it may, it seems to me that the learned Judge had not before him sufficient or satisfactory evidence to justify a finding that the appellant by his actions and interference had enticed away the respondent’s wife in the strict sense in which the law interprets the word “enticed”.
It has to be remembered that – as has so often been said – this is a Court of law and not of morals. We are not called upon – even on the proved facts of such a case as this – to subject the conduct of certain parties to condemnation, and to extend approbation or sympathy to others.
We are to consider the facts as established by the evidence, and to apply the law to those facts. When one does that, it is quite clear, in my judgment that this appeal must succeed. For in my view, it has not been shown that it was any definite interference by the appellant, or any procuring, inciting or persuading by him which caused the actual departure of the wife from her husband’s house and from his consortium.
That conclusion is fatal to the respondent’s case and I would therefore allow this appeal with costs.
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JOHN VERITY, Ag. P.
I agree.
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M. DE COMARMOND, S.P.J.
I agree.
Appeal allowed.
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