Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL-AP 18 of 2002

Grant v. Grant (CL-AP 18 of 2002) [2003] TCACA 1 (21 August 2003);

Law report citations
Media neutral citation
[2003] TCACA 1
Coram
Zacca, P
Rowe, JA
Mottley, JA

IN THE COURT OF APPEAL OF TURKS AND CAICOS ISLAND

CRIMINAL APPEAL NO. CL/AP-18/2002

BETWEEN:

William Garvey Grant                                            APPELLANT

V

Marjorie Gertrude Grant                                       RESPONDENT

BEFORE:

The Rt. Hon Edward Zacca          -               President

The Hon Ira D. Rowe                      -            Justice of Appeal

The Hon Elliott D. Mottley            -            Justice of Appeal

Guy Chapman for appellant

Clayton Green for respondent

2003: February 5 and August 21

JUDGMENT

Mottley, J.A.

1.             On 15 April 1979, the appellant and respondent were married in the Bahamas. On 14 August 2002, the respondent filed a petition seeking a divorce on the grounds that the appellant had deserted her for a period of at least three years immediately preceding the presentation of the petition.

2.             The appellant denied that he was guilty of the desertion alleged. Any separation which took place, he stated, was as a result of an agreement with his wife, who agreed that he would live in Providenciales where he sought and obtained employment.

3.             The grounds on which a divorce petition may be granted, as set out in section 21(1) of the Divorce Law Cap. 90, include a ground that “the respondent had deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition." S21 (1) (b).

4.             The learned Chief Justice, in his judgment, reviewed the evidence and concluded that, having had the opportunity of seeing the appellant and respondent give evidence, and having had the opportunity to assess the witnesses, he preferred the evidence of the respondent on most matters of fact. He went on to hold that, while he accepted the evidence of the appellant as to the frequency and times of his visits to Grand Turk, he preferred the evidence of the respondent as to what took place during the visits.

5.             The Chief Justice found that the last occasion when the parties slept together, as man and wife, was no later than Christmas 1994. He further found, that in the early days of the separation, the appellant intended to return to Grand Turk. An essential finding by the Chief Justice was that, at some point in time, the appellant decided to live in Providenciales without his wife. He identified the time when the appellant decided to make his home in Providenciales without his wife as sometime after the Christmas visit to Grand Turk and before his visit in September 1997. The long absence of the appellant from Grand Turk led the Chief Justice to this conclusion. We think that based on the evidence, the Chief Justice was justified in coming to this conclusion.

6.             Another significant finding by Ground CJ was that, when the appellant returned to Grand Turks after September 1997, he did so in the “exercise of his right to stay in the property and not to exercise his conjugal rights.” The Chief Justice considered that the appellant was “treating his former matrimonial home like a hotel simply for his own practical convenience.” He reached this conclusion because of the appellant’s “real attitude and his indifference to his wife or her wishes", which is demonstrated by his failure to give notice of his visit on at least two occasions.

7.             The Chief Justice concluded that, while he was unable to fix a precise date, he nonetheless found that by the end of 1997 the appellant had deserted the respondent.

8.             Counsel for the appellant submitted that the real issue was whether the ground of desertion had been established by the evidence. He accepted that the issue was whether on the primary facts, as found by the Chief Justice, he could draw the inference of desertion.

9.             He referred us to Halsbury's Law of England 4th Edition the “Matrimonial Causes" paragraph 419 where under the captioned “Meaning of desertion” it is stated that “desertion means the intentional, permanent forsaking and abandonment of one spouse by the other without the other’s consent and without reasonable cause. It is a total repudiation of the obligation of marriage."

10.          The Court was also referred to paragraph 425 of Halsbury under the caption “Elements of desertion; factum and animus" in which it stated:

“For desertion to exist there must both be the factum, or physical separation and the animus deserendi or the intention to desert in the sense of bringing cohabitation to an end. A de facto separation may take place without there being animus deserendi, as where there is a separation by mutual consent………but, if that animus supervenes, desertion will begin from that moment, whether or not that change of mind is communicated…….."

11.          As stated above, the Chief Justice expressed the opinion that, sometime after the appellant returned to Providenciales after his visit at Christmas in 1994 and before his visit to Grand Turk in 1997, he appeared to have decided on making his home Providenciates without his wife. As a result, he found that, at least by the end of 1997, the appellant deserted the respondent.

12.          The question which is to be answered is whether the appellant recognized and discharged the common obligations of the marriage?

13.          The appellant left the matrimonial home in July 1993 to attend a wedding in Providenciales. The respondent alleged that there was an argument over the appellant’s telephone calls to a certain woman. While the appellant did visit the matrimonial home from time to time, the Chief Justice found that this was not in the exercise of his conjugal rights but only to visit the property. Indeed, the Chief Justice says that he treated the home as a hotel. He visited the home without notifying his wife that he was coming. On one occasion, she returned from overseas to find that the appellant had visited the home without notifying her that he was coming.

14.          When his mother died in 1996, the respondent did not attend. The appellant did not get in touch with her to tell her about his mother’s death although when she heard she called him from overseas.

15.          The appellant did not return to Grand Turk to visit his wife on weekends. The telephone calls to his wife were infrequent and only made when he wanted money from her. These phone calls that were made were not solely for the purpose of ascertaining how she was keeping. It may be said from the evidence that he clearly intended to abandon his conjugal rights.

16.          Halsbury (4th Edition) Volume, at paragraph 419 desertion is defined as meaning:

“In its essence desertion means the intentional, permanent forsaking and abandonment of one spouse by the other without the others consent and without reasonable cause. It is a total repudiation of the obligation of marriage………………….Desertion is not the withdrawal from a place but from a state of things for what the law seeks to enforce Is the recognition and discharge of the common obligation of the married state, the state of things may usually be termed, for short, ‘the home’.”

17.          From the evidence, it is safe to conclude that the appellant’s conduct was such that he showed that he had completely renounced his conjugal duty and had evinced an intention to put an end to the marriage even though he had previously left the matrimonial home by consent. See Pulford v. Pulford (1923) P. 18.

18.          In our view, there was sufficient evidence which the Chief Justice could come to the conclusion that the appellant had deserted the respondent. He had the opportunity of seeing and hearing the witnesses and has weighed the evidence and stated the impression the witnesses made upon him. The role of a Court of Appeal in relation to the finding facts made by judges who have tried the case has been set out in many cases. It will suffice if we adopt the approach of the Court of Appeal of New Zealand in the case of Halton v. Palmer (1990) 2NR 260, a case cited to us by the Counsel for the Appellant.

19.          In delivering the judgment of the Court of Appeal, Somers J. having asserted that principles are not in doubt, went on to state at p. 268:

“An appeal such as the present is by way of rehearing and the Court has an obligation to come to its own conclusion. Running across that principle is another, namely, than an appellate Court is under the disadvantage that it has not seen or heard the witnesses. In a case which depends on an opinion as to conflicting testimony an appellate Court will not interfere unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage; it ought not to reverse the conclusions at which he has arrived merely from its own comparison and criticisms of the witnesses and its own view of the probabilities of the case; SS Hontestroom v SS Sagaporack [1927] AC 37, 47. Thus an appellate Court will interfere where the evidence accepted by the trial Judge is inconsistent with facts incontrovertibly established by other evidence or is patently improbable; Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, 39; Brunskill v Sovereign Marine & General Insurance Co. Ltd. (1985) 62 ALR 53.”

For the reasons stated above we did not think that this Court ought to interfere with the findings of the Chief Justice and consequently we dismissed the appeal.

 

ZACCA, P.

ROWE, J.A.

MOTTLEY, J. A.