[1950] EACA 628

## **DIVORCE JURISDICTION**

### Before SIR BARCLAY NIHILL, C. J.

### PHILIP SIDNEY LE GEYT, Petitioner

v.

# FLORENCE LE GEYT, Respondent, and ALAN JAMES RICHARDSON, Co-Respondent

### Divorce Cause No. 1 of 1950

· Matrimonial Causes Ordinance, sec. 22-Petitioner's claim for damages against Co-respondent—Principles and considerations in assessing—Damages compensatory and not punitive—Actual injury sustained by husband—Injury to feelings and marital honour—Conduct of co-respondent—Means of corespondent not "a priori" material—Value of wife—Pecuniary—Consortium.

Petitioner was granted a decree *nisi* on the ground of his wife's adultery with co-respondent, from whom he claimed £5,500 as damages. The facts of the case are fully set out in the judgment.

Held (27-9-50).—(i) That damages against a co-respondent are compensatory, and not exemplary or punitive, based on the actual loss to the husband, depending on the actual value of the wife, the injury to his feelings, the blow to his marital honour, and the serious hurt to his matrimonial and family life.

(ii) That the value of the wife will depend on two aspects; the pecuniary aspect which<br>depends on the wife's fortune, or assistance in the husband's business, her capacity as a housekeeper, and her ability generally in the home; secondly, the consortium aspect; dependent on the wife's purity, moral character and affection, and her general qualities as a wife and mother.

(iii) That the means of the co-respondent are not $a$ priori relevant, but may be relevant where he has used his wealth to bring about the seduction of the wife.

(iv) That the character of the co-respondent becomes most material when considering the question of injury to the feelings and marital honour of the husband.

Butterworth v. Butterworth & Englefield (1920) P. D., L. R. 120 followed.

(y) That the character and conduct of the husband is as fully in issue as the character and conduct of the wife, in considering whether his neglect, harshness of language or cruelty have destroyed his wife's affection or sapped her matrimonial fidelity.

Keyse v. Keyse & Maxwell (1886) 11 P. D. 100 referred.

(vi) That the Court has an absolute discretion and need not award any damages at all.

Darbishire v. Darbishirė (1890) L. T. 664 referred.

Damages of £750 awarded.

Salter for the Petitioner.

Lane for the Respondent and Co-Respondent.

JUDGMENT.—In this suit the husband petitioner, Philip Sidney Le Geyt, prays for the dissolution of his marriage on the ground of his wife's adultery with the Co-respondent, Alan James Richardson, and claims damages against the corespondent in the sum of one hundred and ten thousand shillings.

Appearance has been entered only by the co-respondent who, in his answer, admits the adultery but claims that the petitioner has suffered no damage thereby.

As set out in my order of 22nd September the petitioner is granted a decree $nisi$ for the dissolution of his marriage which I ordered to be entered as from that date. I then heard the evidence of the co-respondent on the issue of damages and after listening to the arguments of the learned Counsel for the parties I reserved judgment. Cases in which a husband petitioner claims damages against a co-respondent are rare in this Colony and this is the first occasion on which I have been called upon to perform the difficult and invidious task of determining the amount of damages, if any, that should be paid to a husband in respect of the wrong done to him by a co-respondent who has committed adultery with his wife. Before coming to the facts of this case, therefore, it may be as well both for my own guidance and for assistance in future cases that I should state the principles which must govern the Court when faced with this issue.

This Court derives its power to award damages to a husband for adultery with his wife from section 22 of the Matrimonial Causes Ordinance. This Ordinance is a reflection of the English Statute Law on the same subject so that it is pertinent to consider the principles on which the Courts in England have moulded their decisions when applying this remedy to an aggrieved husband. I could have no better guide to the ascertainment of these principles than the exhaustive judgment of McCardie, J. in Butterworth v. Butterworth and Englefield, 1920 P. D. L. R. 126. In that case the learned Judge sketched the history of a husband's remedy in damages which originated in the old action of criminal conversation and he attempted with great success to cut a clear path through the jungle of case law on the subject which, because no doubt of the multiplicity and variety of differing circumstances which each different case must present, and possibly also the feelings and sentiments of different Judges as well, had left the law in a state where to quote the words of McCardie, J. at p. 128 "the relevant authorities reveal a striking conflict of opinion as to the principles to be applied and the considerations to be regarded".

First of all it is clear law that damages must be compensatory only and not exemplary or punitive. It is not the function of the Court to punish the immorality of the offending parties but to ascertain what damage the husband has sustained by reason of it. Secondly the Court has an absolute discretion and need not award any damages at all. If the wife is worthless it will be difficult for a husband to make out that he has lost anything by losing her. The extreme case under this head is *Darbishire v. Darbishire*, 1890 L. T. 664 where it was observed, "If a man's wife goes and walks the streets, the husband is not entitled to come here and recover damages against any man who goes and consorts with that woman". Thirdly it would seem that the means of the co-respondent are not *a priori* relevant. To quote McCardie J. again at p. 147 "A poor man cannot by the plea of poverty escape from the actual injury he has caused. A rich man should not, merely because he is a rich man, be compelled to pay more than a proper compensation to the husband. This follows from the rule that the damages are not punitive but compensatory". It would seem, however, that the means of the co-respondent may be relevant where he has used his wealth to bring about the seduction of the wife. In the view of McCardie, J. at p. 148 the mode in which a co-respondent has employed his fortune may be most material. "First, because it may assist in ascertaining the value of the wife; and secondly, because the mode in which the adulterer may employ his fortune in seducing the wife may greatly accentuate the outrage to the husband's feelings and the blow to his honour and family pride. The mode in which a co-respondent has used his wealth forms part of his conduct, and that conduct may aggravate the injury to the husband."

In short then what has to be ascertained is the actual loss to the husband. This will depend on the actual value of the wife to the husband to which may properly be added compensation to the husband for the injury to his feelings, the blow to his marital honour and the serious hurt to his matrimonial and family life. The value of the wife will depend on two aspects; the pecuniary aspect which depends on the wife's fortune, or assistance in the husband's business, her capacity as a housekeeper and her ability generally in the home. Secondly, there is the consortium aspect dependent on the wife's purity, moral character and affection and here general qualities as a wife and mother. McCardie, J., at pp. 142 and 143 points out that it is on the consortium aspect that the co-respondent's conduct becomes important because it helps to assess the value of the wife. If she was easily won or thrust herself at the co-respondent it is obvious that she could not have been of much value to the husband, whereas if she only yielded after the co-respondent had gained his wish by assiduous seduction it might be considered that the moral character and general worth of the wife was an asset of value to the husband.

The conduct of the co-respondent again becomes most material under the heading of injury to the feelings and marital honour of the husband. McCardie, J. at p. 144 puts it thus: $-$

"The blow to the husband and the shock to his feelings clearly depend to a large extent on the conduct of the co-respondent. It therefore follows that any features of treachery, any grossness of betrayal, any wantonness of insult and the like circumstances may add deeply to the husband's sense of injury and wrong, and, therefore call for a larger measure of compensation."

I also must not overlook that the character and conduct of the husband is as fully in issue as the character and conduct of the wife. If the husband by his own negligence or harshness of language or cruelty has destroyed his wife's affection or sapped her matrimonial fidelity, such conduct must be taken into account. In Keyse v. Keyse and Maxwell, 1886 11 P. D. 100 the wife left her husband who it seems made no real effort thereafter to find her or support her. The President in summing up to the jury said: "What can any husband expect who has separated from his wife, who he knows has no means? What will follow? Why, that in the ordinary course of things she may yield to the temptation of securing support from some other man".

I have now said enough to indicate the principles I shall keep in my mind in deciding the issue of damages in the present case. I have heard and seen both the husband and the co-respondent in the witness box. I have not had this advantage in respect of the wife so that my assessment of her general character as a wife is dependent only on the petitioner's evidence and on what I can glean from the correspondence which passed between the parties at various times.

The petitioner married the respondent in London on 19th March, 1939. He was, then 42 and the respondent was 34. Both of them had been married previously. In 1940 a son was born and a second child, a daughter, was born on 29th December, 1943. The petitioner has stated that up to 1944 his marriage was a reasonably happy one and although during the pregnancy of the first child and after the birth of the second his wife manifested a certain nervous condition which led to some trouble between them. In 1944 the Petitioner, who was then an officer in the Uganda Police Force, was stationed at Kampala and living with his wife and family. Apparently after the birth of the second child his wife's health so deteriorated that acting on medical advice he applied for leave and took her and the children to England. A point has been made that in doing so he incurred the displeasure of his superiors and this ultimately had an adverse effect on his career. I suppose the suggestion is that I should regard the petitioner in a favourable $\mathbf{I}$ light as a man who was prepared to put his wife's health and happiness before his own advancement. Be that as it may, the visit to England did not turn out well. Possibly owing to war conditions and the difficulty of obtaining accommodation in London the petitioner in the first few weeks after their arrival lived at his club and his wife and children in a hotel. At this stage I think some serious disargeement must have occurred because when the petitioner ultimately was successful in obtaining accommodation at the same hotel he found on moving in that his wife had taken the children off to stay with relations at Bath, and there they remained for some weeks, which included the Christmas season. On 29th December, 1944, the petitioner wrote to his wife the letter Ex. B. This letter would seem to indicate that at this time both the parties were contemplating a separation. It would also seem to indicate a certain hardness and a callousness in the wife's

nature because about this time the petitioner was seriously ill with malaria and she apparently made no effort to rejoin him. There is one other passage in this letter which I think must be noted and that is the one where the petitioner tells his wife that he no longer wants her love and that so far as the sexual basis of marriage is concerned he is reconciled to the position that they have parted as man and wife. However this disagreement must have been patched up because the respondent eventually returned to the petitioner's hotel in London and rejoined him subsequently with the children in Uganda probably at the first opportunity that she could bearing in mind the difficulties of securing sea passages in 1945. and 1946.

We now come to Uganda. On his return from leave the petitioner was stationed at Mbarara where his wife and children joined him some time in 1946. In December of that year the petitioner took leave preparatory to retirement. In the interval before retirement which was due to take place in June, 1947, he and his wife jointly managed the Mountains of the Moon Hotel at Fort Portal. It is during this period that the co-respondent first comes on the scene. He was an employee of the Uganda Company and managed a Tea Estate in the vicinity of Fort Portal. According to the petitioner the co-respondent became a great friend of his. The co-respondent has sought to minimize this friendship which he says was nothing much more than the kind of companionship which may spring up between men who have the odd drink together. In the light of what subsequently happened I am inclined to prefer the petitioner's evaluation of their relationship to the co-respondent's. At this stage however it does seem clear that nothing in the nature of an intrigue had begun between the co-respondent and Mrs. Le Geyt.

In June, 1947, the hotel at Fort Portal was sold and the petitioner was on the look out for another job and having received a letter from the proprietors of the White Horse Inn at Kabale he went there with his wife and the co-respondent apparently with the view that his wife and himself should become joint managers of the hotel and that the co-respondent who was also retiring from the Uganda Company should invest some of his capital in the hotel. I must confess that I find this part of the evidence puzzling and I doubt whether either the petitioner or the co-respondent have revealed quite all that they might have done about the situation at this time. Certainly I think I must conclude that the petitioner, the respondent and the co-respondent were on terms of considerable intimacy at this time. Whether the co-respondent had already formulated designs on the positioner's wife I do not know and I do not think that on the evidence I can infer against him that he had. I think it is probable that the petitioner genuinely liked the co-respondent as a friend and realized that as a man with money he • might be useful to him. Once at Kabale things began to happen quickly. The petitioner and his wife were offered an appointment as joint managers of the hotel and the contract, Ex. 2, was signed with Mr. and Mrs. Adamson the then proprietors and managers of the hotel on 13th July, 1947. Under this contract the Le Geyts were to take up their appointment on 1st September.

Now follows the incident of the cottage which is a second puzzling feature of this case. According to the petitioner he entered into verbal agreement with Mrs. Adamson for the purchase of a cottage adjoining the hotel for the sum of $£1,000$ . He admits that he could not pay this amount forthwith as he was waiting to receive the commuted portion of his police pension. Apparently the co-respondent, who I suspect is a much sharper man of business than the petitioner, also had talks with Mrs. Adamson about the cottage and the latter, possibly because the co-respondent could pay cash down, sold the cottage to him in spite of her previous promise to the petitioner. I should also add that at or about the same time the co-respondent bought a half interest in the hotel for $£8,000$ . All this being accomplished the parties separate, the wife returns to Fort Portal and the petitioner and the co-respondent repair to Kampala. Then follows a holiday in Kenya onwhich the petitioner and the co-respondent go off together. One of the difficulties

I find in this case is to conclude from the evidence when the intrigue began between the co-respondent and Mrs. Le Geyt. Was there a carefully thought-out design to get rid of the petitioner from the management of the White Horse Inn or did the co-respondent just fall into misconduct with the respondent because he was left in close proximity to her by reason of circumstances with which he had had little to do? If I thought that the evidence clearly established the former position I think this would be a case for heavy damages. After much thought I come to the conclusion that on the evidence I should not be justified in coming to such a conclusion and that the truth is probably nearer to the second alternative than the first. I consider that the fact that the co-respondent readily fell in with the suggestion that he should accompany the petitioner on his Kenya trip hardly suggests that at this time he was in love with Mrs. Le Geyt. It is more likely surely, if the intrigue had then started, that the co-respondent would have found excellent reasons for staying in Uganda.

Two things worthy of notice happened on the Kenya trip. Firstly the petitioner received a letter from his wife telling him that she could not live with him again and suggesting that her brother who was then in England should take over his job as manager of the White Horse Inn. Secondly, when in Nairobi the corespondent showed the petitioner the quite extraordinary document, Ex. 3, by which the co-respondent purported to give the Le Geyts a first option to purchase the cottage at Kabale in the event of his death or his leaving Uganda. I confess I can find no rational explanation of this document unless it was that in some way $\mathbf{I}$ the co-respondent had an uneasy conscience in regard to the cottage. The petitioner's reaction to the document seems to me equally strange. Instead of protesting that he had bought the cottage from Mrs. Adamson, or had contracted to buy it, he made the proposal that he, his wife and the co-respondent should each take a third share. It seems to me that at this time the petitioner was still contemplating that a kind of Three Musketeers relationship could continue between himself, his wife and the co-respondent. If so he had no fore-knowledge of what was in store for him.

He returned to Uganda with the co-respondent but the latter reached the White Horse Inn at Kabale two days ahead of him. When the petitioner arrived he found his wife and the children installed in the cottage together with the corespondent. As there was no room for him he had to take a room at the hotel. The co-respondent's explanation of this extraordinary situation is that as the cottage was his he had a right to be there and he could not turn Mrs. Le Geyt and the children out. Next day the blow fell. Mrs. Le Geyt told her husband that she had told Mrs. Adamson of her decision to leave him and that Mrs. Adamson had thought that their position as joint managers would be an impossible one. She also informed the petitioner that her brother was coming out from England to take over his job as manager. Mrs. Adamson confirmed this and almost before the day was out we find the petitioner accepting £75 in lieu of notice of termination of his employment which he had not even started to take up. The petitioner then leaves Kabale and except for a brief visit a few days later it does not appear that he has ever been back. He is now living at Nyeri where he is the secretary of the local golf club. On the occasion of this last visit according to the petitioner he made a final appeal to his wife but found her frozen and immovable.

It is significant that at this time the petitioner had no suspicions about the co-respondent whom he still regarded as his friend. On 10th September he wroteto the co-respondent the letter, Ex. C. In this letter which was written from the Kampala Club he asks the co-respondent if he can to find out the real reason for his wife's treatment of him and to let him know. The co-respondent answered this letter by a letter dated 21st September, Ex. 4. Between the dates of these two letters the petitioner wrote to his wife the letter, Ex. E, dated 17th September. In this letter he upbraids his wife for her unwifely conduct towards him and states

that if he does not succeed in obtaining a job in East Africa he will apply for a passage and she will then not hear from him again.

Two considerations I think arise from this letter. Firstly, it seems to me to provide evidence that so far as consortium is concerned the value to the petitioner of Mrs. Le Geyt's company was not very great. The following passage I regard as evidence of this: $-$

"Can you remember any occasion when you were kind and loving or seem friendly-perhaps I don't know how to express this-but the feeling I've had for years is a cold and wooden front which you've shown me."

It is only fair to the petitioner to add that there are other passages in the letter which I think clearly show that he did suffer great humiliation at Kabale, and that he was bitterly disappointed that the security to which he had looked forward to had been dissipated. The question, however, which crops up again and again in this case is how far, if at all, was the co-respondent responsible for this deplorable situation between the spouses? The co-respondent has admitted under crossexamination that his first act of misconduct with Mrs. Le Geyt occurred either just before or just after he wrote the letter (Ex. 4) on 21st September. Mr. Salter has submitted that the terms of this letter revealed treachery and gross betrayal because in it the co-respondent tried to convey to the petitioner that although sympathetic he was not going to allow himself to become involved in the private affairs of the Le Geyt family. Even on the most favourable assumption the intrigue with Mrs. Le Geyt must have started when this letter was written so that I feel bound to regard it is a dishonest document, and one that I must take into account when considering the co-respondent's conduct. Of the facts which I have felt obliged to set out in some detail nothing much more remains to be recorded except the rather strange fact that it was not until May, 1949, that the petitioner received direct from his wife proof of her infidelity. He answered his wife's letter by a letter dated 25th May, 1949. It would probably be unfair to read too much into this letter which may have been the effusions of an angry man, but I must confess that it confirms my general impression that the petitioner had not lost a great deal by the lack of consortium and that during the period September, 1947, to May, 1949, he had been fairly content to allow his wife to remain at Kabale with the children.

I must now come to my difficult task of assessing damages in the light of the above facts.

Firstly, the value of the wife. I have said enough already to indicate that I do not put her consortium value very high. Apart from the fact that there is nothing to suggest that she was not a good mother to her children I am left with the impression that she has not been a very good wife to the petitioner. No doubt there were faults on both sides and I have not had the advantage of hearing evidence from the respondent but nevertheless that is definitely my impression. Secondly, her pecuniary value to petitioner. The evidence on this point is vague but it would appear that she had small private means of her own and that she could on occasion rely on presents and support from wealthy relatives. Almost throughout their married life the petitioner 1 think must have relied to some extent on his wife's money. He has never 'paid anything towards the boy's education and on one occasion it was his wife who paid for an expensive operation to her daughter's ear. When the respondent was left behind in England in 1945 with the children the petitioner allowed her only £20 a month which could not possibly have met the monthly maintenance expenses. Under this head then I think the petitioner has lost something but not much because the children are still with the respondent and the petitioner is content, and I think rightly so, that they should remain with her for the present. The petitioner says he wants damages as some security for his children's education but I see nothing in the circumstances of this case which indicate that Mrs. Le Geyt will fail to continue to look after the

welfare of her children which she has done up to now without the help of the petitioner. The petitioner has of course lost his wife as a business partner and this fact for what it is worth I will take into account.

I now come to the injury to the husband's feelings. This I think has been considerable and I consider also that the co-respondent's conduct has to some extent contributed to it. As I have already indicated I incline to the view that it was the conduct of the wife rather than the designed conduct of the corespondent which brought about the break at Kabale, but nevertheless I am unable to hold that the co-respondent can escape all responsibility. He has profited by a situation which may have developed by reason of the former unsatisfactory relations existing between the Le Geyts and by his actions he has made it impossible for any reconciliation or reconstruction of the matrimonial home. In short then he is the rock upon which the Le Geyt marriage has finally foundered. There may have been bad navigation by both the spouses which has contributed to the wreck, but this cannot altogether free the co-respondent from some share in the responsibility. The petitioner in my view has not made out a case for anything like the damages he has claimed but he has satisfied me that this is a case in which some damages must be paid. Finally I must not overlook that the petitioner has lost the company of his children.

I assess the damages in this case at £750, which is Sh. 15,000, and I order that this amount be paid into Court by the co-respondent within 30 days from to-day. I also order that the co-respondent shall bear the costs of these proceedings. $\bullet$

I have seen Counsel for the parties in my Chambers on the question of the custody of the children and by consent I make the following order which I consider is an appropriate one to make in the circumstances of this case.

The children will remain in the custody of the respondent for the time being with liberty to the petitioner to apply. Pending any further order the petitioner is to have reasonable access and should be consulted as regards their education.