Sammah and Brathwaite v Sammah

• Jurisdiction: Trinidad & Tobago
• Judge: Furness-Smith, P.,C.J. Trinidad,Tobago,Collymore, C.J.,Barbados,Worley, C.J.
• Judgment Date: 09 March 1948
• Neutral Citation: TT 1948 HC 1
• Docket Number: 1 and 2 of 1947
• Court: High Court (Trinidad and Tobago)
• Date: 09 March 1948

High Court

Furness-Smith, P. ( C.J. Trinidad and Tobago); Collymore, C.J., Barbados; Worley, C.J. British Guiana

1 and 2 of 1947

Sammah and Brathwaite

and

Sammah

Husband and wife - Dissolution of marriage — Petition for — Adultery Proof of — Must be beyond reasonable doubt.

APPEAL by Dora Sammah and Irving Brathwaite from a judgment of the Supreme Court of Trinidad and Tobago finding on the petition of Abel Ruthven Sammah that Dora Sammah and Irving Brathwaite had committed adultery with each other, and granting Abel Ruthven Sammah a decree nisi of dissolution of marriage against his wife Dora Sammah.

Adultery must be approved beyond reasonable doubt.

Churhman v. Churchman [1945] All E.R. 195 , and Ginesi v. Ginesi [1947] 2 All E.R. 438, applied.

1 The judgment of the President was as follows:

2 This is an appeal by the co-respondent Brathwaite and the respondent Dora Sammah from the decision of the learned trial judge granting to the petitioner, Abel Sammah, a decree of divorce by reason of the adultery of the respondent and co-respondent at the house of the respondent at Arima on the 21st January, 1945. The petitioner and respondent were married in April, 1925, but separated in March, 1931, and have not since lived together. A previous petition for divorce failed in 1940, and the respondent then obtained a maintenance order against the petitioner for seven dollars a week and two dollars a week in respect of each of her two children.

3 In the present petition two acts of adultery were charged, one on the 18th January, 1945, and the other on the 21st January, 1945, both alleged to have occurred at the respondent's home at Arima, where she was living with her two daughters, aged at that time eighteen and sixteen years respectively. The trial judge found that the evidence adduced in regard to the incidents of the 18th January was insufficient to establish adultery. The case presented in proof of adultery on the 21st January was such that, if believed, no other inference was possible. The Judge accepted that evidence, and it is in respect of this finding of fact that the Present appeals are made.

4 The principles governing the functions of an appellate Court in regard to issues of fact are well settled. In the argument before us, the judgment of Lord Sumner in s.s. Hontestroom v. Sagaporack [1927] A.C. 37 was, I think, principally relied upon by both sides for the enunciation of those principles. I have care, fully considered that judgment and numerous others, including those of Lord Loreburn in Kenlock v. Young (1911) S.C. H.L1 & 4, Lords Simon and Thankerton in Watt v. Thomas [1947] 1 All E.R. 583 and the decision of the West Indian Court of Appeal in Roberts v. Battoo Bros. (1939). The view which I take in the present case is, I believe, in full accord with the principles there enunciated.

5 Before proceeding to examine the facts in issue in this case and the quality of the evidence adduced to establish them, if seems material to observe that at the close of the case before the trial judge, counsel on neither side thought fit to address the Court in regard to the salient features affecting its decision in the complicated circumstances presented by the conflicting testimony adduced. This, I think, imposed an unfair burden upon the trial judge, and the great advantage which we have had by reason of the close analysis of the evidence and the arguments submitted on each side outweighs, in my estimation, that which the trial judge had, and we have not, by reason of seeing and hearing the witnesses and studying their demeanour and the drift and conduct of the case. In Churchman v. Churchman [1945] 2 All E.R., at page 195, it is stated by Lord Merriman as a mule of law that the same strict proof is required in the case of a matrimonial offence as is required in connection with criminal offences properly so called, and this rule is cited with approval in Ginesi v. Ginesi [1947] 2 All E.R. 438. I assume, of course, that the trial judge was aware of the rule, and that he carefully analysed the oral evidence in all its implications and with full regard to its discrepancies which have been canvassed in argument in this Court before he reached the conclusion which he did. But, having regard to the fallibility of human judgment, I cannot assume that every material consideration necessary to reach the assurance that adultery took place beyond reasonable doubt was present to his mind, since no argument was addressed to him concerning them.

6 The fact of adultery on the 21st January, 1945, was deposed to by the petitioner and by four other witnesses, namely, Rivero, Singh, Atherley, and Flemming. Their story is that, on the night of that date, the petitioner, Rivero, Singh and Atherley met together at Rivero's house for the purpose of proceeding to the house of the respondent in the hope of discovering her in adultery with the co-respondent, whom they knew to be a frequent visitor there.

7 I pause here to observe that there is no evidence to show that they knew at that time that the two daughters of the respondent, who live with her in the house and share her bedroom, would not then be at home. I also observe that according to the evidence of the petitioner, Rivero and Atherley, a man named Carlton Ali, was one of the party, but according to the evidence of Singh he was not.

8 The petitioner and his friends reached the respondent's house at about 9.30 p.m. and there separated, Rivero and Singh to watch the front of the house in King Street, and the petitioner and Atherley the back in Lopez Street. The petitioner and Atherley hid themselves behind a hedge or fence, and shortly afterwards the co-respondent arrived and entered the house. The lights inside the house were on when he entered, but were soon extinguished. Atherley went off to the front of the house, where he saw and spoke to Rivero and presumably told him that their quarry was inside. Atherley returned to the back, and he and the petitioner then saw approaching them the witness Flemming, who was a complete stranger to both of them.. The petitioner persuaded Flemming to accompany them into the house, telling him what they expected and wished to discover there. The house was then in darkness and, for all any of them knew at that time, they might have to break open the door to get in, and might find the girls sleeping there as well as the respondent and co-respondent. In those circumstances, it was indeed a surprising and embarrassing adventure for a complete stranger to the parties, such as Flemming, to have embarked upon. At the best he would become, surely, a reluctant witness in Court proceedings, and at the worst he might find himself the object of violence at the hands of the co-respondent, and perhaps be involved in a criminal charge arising out of his unjustified intrusion at that late hour upon the privacy of a stranger's home. The petitioner's fortune in finding this amiable witness ready to hand continues, and they find the back door unfastened, and, with the aid of Flemming's torch lamp, they immediately find their way into the respondent's bedroom and the respondent and co-respondent in bed together. It is most fortunate for their purpose, too, that the two girls were not at home at that time, for it would have been, surely, difficult to persuade belief that adultery occurred in that small house while they were there. That they were not there that night is deposed to by Rivero and Singh, who say that they saw them leave and walk along King Street to attend an Indian dinner being held there. The absence of these girls from the house seems to have been necessary for the successful issue of the petitioner's venture in entering the...