Court name
Supreme Court
Case number
SC 34 of 1968

George v George and Lewis (SC 34 of 1968) [1970] SLSC 5 (21 January 1970);

Law report citations
1970-71 ALR S.L. 1
Media neutral citation
[1970] SLSC 5
Case summary:

Evidence-burden of proof-standard of proof-divorce-adultery must be strictly proved-Evidence-presumptions-presumption of law-legitimacy-child of married woman presumed legitimate unless spouses judicially separated-evidence of spouses living apart for three years, nine months rebuts presumption.

Coram
Tejan, J

GEORGE v. GEOHGE, 1970-71 ALH S.L. 1
GEORGE v. GEORGE and LEWIS
SuPREME CouRT (Tejan, J.): January 21st, 1970
(Divorce Case No. 34/68)
S.C.
[1] Evidence-burden of proof-standard of proof-divorce-adultery
must be strictly proved: Although an action for divorce is a civil suit,
the standard of proof of adultery is higher than that required in other
civil proceedings, and strict proof is necessary (page 2, lines
39-41).
[2] Evidence-presumptions-presumption of law-legitimacy-child of
married woman presumed legitimate unless spouses judicially
separated-evidence of spouses living apart for three years, nine
months rebuts presumption: There is a strong presumption of law
that the child of a married woman is her husband's child, and
this continues even though the spouses are separated unless by
a valid separation decree or order of court, but the presumption
will be rebutted to the satisfaction of the court by evidence
that the spouses have been living apart for three years, nine months
(page 4, lines 9-37).
[3] Family Law-divorce-adultery- definition: Adultery is consensual
sexual intercourse between a married person and a person of the
opposite sex, not the other spouse, during the subsistence of the
marriage (page 2, lines 37-39).
[ 4] Family Law-divorce-adultery-standard of proof-adultery must
be strictly proved: See [1] above.
[5] Family Law-divorce-desertion-consists of separation and intention
to end cohabitation without reasonable cause or consent of spouse:
Desertion is the separation of one spouse from the other, with an
intention on the part of the deserting spouse of bringing cohabitation
permanently to an end without reasonable cause and without the
consent of the other spouse (page 3, lines 31-34).
[6] Family Law- illegitimacy- child of married woman- presumed
legitimate unless spouses judicially separated-evidence of spouses
living apart for three years, nine months rebuts presumption: See [2]
above.
.
The petitioner sought a divorce in the Supreme Court on the 35
grounds of the adultery and desertion of the respondent.
The petitioner alleged that the respondent committed adultery
with the co-respondent and that he and a witness had discovered
them in the act of adultery. He also alleged that the respondent
had deserted him following a disagreement about one of their 40
children who had been sent away for medical treatment without his
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Sierra Leone-1
:tHE AFRICAN LAW REPOHTS
knowledge. He claimed that the respondent had left the house when
he insisted on seeing the child and had not returned since. Finally,
the petitioner maintained that he was not the father of the child
born to the respondent after she had left him as he had had no access
5 to her since that time.
Case referred to:
(1) Preston-Jones v. PTeston-]ones, [1951] A.C. 391; [1951] 1 All E.R. 124.
10 Miss Wright _for the petitioner;
Gelaga-King for the respondent;
Cwnmings-]ohn for the co-respondent.
TEJAN, J.:
15 The petitioner, Emanuel Modupeh Robert George was lawfully
married to the respondent, Marie Georgiana George on August 28th,
1951, at St. John's Church, Brookfields, and after the marriage, the
petitioner and respondent lived and cohabited in various places and
finally at 2 Water St. Freetown. There are four children of the
20 ·marriage, namely (a) Emanuel Adebeyi Benjamin, born on June 5th,
1953; (b) Ellen Letitia, born August 28th, 1955 (c) Roberta Georgiana,
born on May 7th, 1958; and (d) Beryl Maribell, born on August 28th,
1961. The respondent gave birth on May 31st, 1966 to a male child
by the name of Donald and whose paternity the petitioner is
25 disputing. ·
The petitioner presented a petition dated October 3rd, 1968,
for dissolution of the said marriage on the grounds of adultery and
desertion. The respondent aiso filed a cross-petition, and this crosspetition
I now dismiss for want of prosecution with no order as to
30 costs. I have taken this step to dismiss the cross-petition owing to
the continuous difficulties created by the absence of the respondent
and her counsel on the numerous occasions of the hearing of the
petition, and the cross-petition was adjourned merely for the convenience
of the respondent and her counsel.
35 In the petition, the petitioner alleges that some time in January,
1963 the respondent committed adultery with the co-respondent.
Adultery is the consensual sexual intercourse between a married
person and a person of the opposite sex, not the other spouse, during
the subsistence of the marriage. Although a divorce proceeding is a
40 civil suit, strict proof of adultery is necessary, and the proof must at
all events be higher than the proof necessary in civil suits.
GEUHGE v. GEOHGE, 1970-71 ALH S.L. 1
S.C .
. } ·- ~[The learned judge reviewed the evidence, which was as follows:
· Sometime in January 1963, the petitioner, acting on information
he had been given, went with one Jimmy Jarrett to No. 17 Campbell
St. Freetown. By standing on a table in one of the rooms he could
see through a gap between the wall and ceiling into the adjoining 5
room, and he saw the respondent and the co-respondent having sexual
intercourse. He went into the room and there was a struggle. The
co-respondent escaped but Mr. Jarrett saw him coming down the
stairs and recognised him. He ran after him, but was unable to catch
him.] 10
In adultery cases, the evidence of the petitioner is seldom
accepted without corroboration either by a witness or at least by
strong ·surrounding circumstances. I have given careful consideration
to the evidence of the petitioner and his witness with regard to the
alleged adultery. I have no doubt that both of them are truthful and 15
honest witnesses. I am satisfied from what I myself saw when the
court visited No. 17 Campbell St. that it was possible for the
petitioiH:ir to see into the room of the respondent through the openings
between the wall and the ceiling when standing on top of a table. I
believe the evidence of the petitioner that he saw the respondent and 20
co-respondent having sexual intercourse in the room of the respondent.
The petitioner also alleges that the respondent had deserted him
since September 15th, 1962. [The learned judge reviewed the
evidence of desertion which followed a disagreement between the
petitioner ' and the respondent over one of their children who had been 25
ill and sent away for treatment. The petitioner wanted to see the child
but was prevented from doing so by the respondent and an aunt. The
petitioner finally stated that he would not see the respondent until he
had seen the child, whereupon the respondent left the house and had
lived separately from the petitioner ever since.] 30
Desertion, in its essence is the separation of one spouse from the
other, with an intention on the part of the deserting spouse of bringing
cohabitatioi.1 permanently to an end without reasonable cause and
without the consent of the other spouse. As a ground of divorce, it
mt1st exist for a period of at least three years immediately preceding 35
the presentation of the petition. I have said earlier that I find the
petitioner to be a truthful and honest person, and I believe his story
about the incident which led the respondent to leave the house. But
the question is, was it unreasonable on the part of the petitioner to
insist that he wanted to see his child, who had been taken to an 40
unknown destination for further treatment without the knowledge of
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THE AF!UCAN LAW REPOHTS
the petitioner? I do not consider such conduct on the part of the
petitioner unreasonable, and such conduct in my view is not sufficient
cause to drive the respondent from the matrimonial home. I also find
that the respondent deserted the petitioner.
5 There is also an allegation in the petition that on May 31st, 1966,
the respondent gave birth to a male child by the name of Donald.
Evidence was given by the Registrar of Births and Deaths of the
registration of this child.
The petitioner is now disputing the paternity of the child. There
10 is a strong presumption of law that a child born in wedlock to a
married woman was begotten by her husband, and this is so even
though the spouses are separated, unless such separation is in
pursuance of a valid separation decree or order of a competent court.
The law is that where a child is born in wedlock, sexual intercourse is
15 presumed to have taken place between the husband and wife, until
evidence is adduced to prove to the satisfaction of the court that such
sexual intercourse did not take place.
The petitioner said that since the respondent deserted him in
1962, he had no access to her. What is to be considered in such cases
20 is the period of gestation. In Rayden on Divorce, 8th ed., at 157
(1960) it is said that:
"The mean duration of pregnancy, calculated from the cessation
of the last menstrual period, is from 275 days to 280 days, but even
where the lapse of time between possible coition with the husband
25 and the birth of the child was 331 days, the evidence of expert
witnesses showed that in the present state of medical knowledge
such an interval could not be said to be impossible. . . ."
See Preston-Jones v. Preston-Jones (1).
The respondent deserted the petitioner on September 15th, 1962.
30 The respondent gave birth to the male child Donald in May, 1966.
This covers a period of almost three years and nine months after the
respondent had deserted the petitioner when the respondent gave
birth to the child. Although in the light of advanced medical knowledge,
a period of gestation of 331 days has been found to be not
35 impossible, it is my view that a period of gestation could not under
any exceptional circumstances, be extended to a period of three years
and nine months. In the circumstances, I have no doubt that the
respondent committed another act of adultery during the subsistence
of the marriage. I hold that the petitioner is not the father of the
40 child Donald.
I have been asked by the petitioner to exercise the court's dis-
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MORLAI v. SEDULA, 1970-71 ALR S.L. 5
S.C.
cretion in his favour notwithstanding that he had repeatedly committed
adultery since January 1967. I have looked carefully into every aspect
and circumstance of this case, and I have come to the conclusion that
it is a case in which the discretion of the court ought to be exercised
in favour of the petitioner, and I do so exercise it. 5
I am satisfied that the respondent committed adultery with the
co-respondent in January, 1963, and that the respondent has deserted
the petitioner since September 15th, 1962, and I therefore pronounce
the decree that the marriage heard and solemnised between the
petitioner and the respondent be dissolved by reason of the respon- 10
dent's adultery and desertion. And I further order that the child
Donald is not the child of the petitioner, and that the children
Emanuel Adebeyi Benjamin, Ellen Letitia, Roberta Georgiana and
Beryl Maribell be in custody of the petitioner. The respondent shall
have access to the children twice monthly. Costs are to be paid by 15
the co-respondent.
Order accordingly