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    Home » Judgments » High Court Judgments » Stephanie A. Joseph v Selwyn P. Joseph

    1
    IN THE SUPREME COURT OF GRENADA
    AND THE WEST INDIES ASSOCIATED STATES
    GRENADA
    HIGH COURT OF JUSTICE
    CLAIM NO. GDAHMT 2013/0066
    BETWEEN:
    STEPHANIE A. JOSEPH
    Petitioner
    and
    SELWYN P. JOSEPH
    Respondent
    Appearances:
    Ms. Celia Edwards, Q.C. with Mr. Deloni Edwards for the Petitioner

    Mr. Derick Sylvester with Ms. Cathisha Williams for the Respondent

    2014: July 21, September 22

    DECISION
    [1] MOHAMMED, J.: On the 27th May 2013, Stephanie Joseph (“the Wife”) filed for
    divorce from Selwyn Joseph (“the Husband”) on the ground of the
    unreasonable behaviour of the Husband. The divorce which is now contested is
    still pending before the Court. In the meantime the Wife has filed two applications
    which have engaged the Court’s attention. They are the application filed on the
    15th April 2014 (“the committal application”) to commit the Husband to prison for
    breach of certain parts of an order dated 23rd January 2014 (“the Order”). The
    Order entered by both parties was in the form of an undertaking until the hearing of
    the substantive matter or until further order for each party to “refrain from
    2
    molesting, harassing, besetting, intimidating and/or threatening and carrying out
    physical or other abuse of the other”.
    [2] In the second application filed 26th May 2014 (“the injunction application”) the Wife
    is asking the Court to order the Husband to pay the arrears of electricity,
    reconnection fee and the monthly sum for the upper floor of the matrimonial home
    where the Wife and the children of the family reside. The Husband has vigorously
    opposed both applications.
    The Committal Application
    [3] The Wife contends that the Husband has breached two aspects of the Order:
    (i) By verbally harassing her on 30th January 2014; and
    (ii) By sexually molesting /abusing her on 5th March 2014.
    [4] The Husband has denied breaching the Order, instead contending that it is the
    Wife who has been verbally harassing him and that the Wife consented to sexual
    relations on the 5th March, 2014. The sole issue is whether the Wife has proven
    that the Husband has breached the aspects of the Order as alleged.
    [5] An undertaking given to the Court in pending proceedings on the faith of which the
    Court sanctions a particular course of action or inaction has the same force as an
    injunction made by the Court, and a breach of the undertaking is misconduct
    amounting to contempt. As in the case of disobedience to an order of the Court,
    the breach of an undertaking is punishable by committal or by sequestration1.
    [6] To show that a person is in contempt, it must be established that the alleged
    conduct was intentional and that the contemptor knew of all the facts which made
    that conduct a breach of that order2. The test which the Court is to apply in
    1 Halsbury’s Laws of England 4th ed Vol 9(1) para 482
    2 Blackstone’s Civil Practice 2012 at 1293
    3
    determining whether the Wife has proven that the Husband is in contempt was
    described in Blackstone’s Civil Practice 20123 as:
    “The court will not commit a person for civil contempt unless the allegations of
    contempt is proved beyond a reasonable doubt… Where more than one
    breach is alleged, the court must consider whether each of them has been
    proved beyond a reasonable doubt, but in deciding whether the breaches
    justify committal, the court must consider the whole picture to see whether it
    portrays a respondent seeking to comply with the Orders of the Court or one
    bent on flouting them (Gulf Azov Shipping Co Ltd v Idisi [2001] EWCA Civ
    21, LTL 16/1/2001, at [18]).”
    [7] The Wife set out the verbal assault at paragraph 7 of her affidavit filed 15th April
    2014 as:
    “7. On the 30th day of January 2014 the Respondent verbally harassed me in
    the following way:-
    a) About 1:00 pm I returned home to drop off empty food containers
    for my catering business having gotten a ride from a gentleman;
    b) I unpacked the gentleman’s van of the said container while the
    driver of the vehicle stood outside near to his van;
    c) He has to wait on me because I was also getting a ride from him
    to pick up my daughter at school;
    d) The Respondent came home at the same time and as I was
    stepping out of the house the Respondent uttered loudly in the
    presence of myself and the gentleman “Go with he, she is for
    sale, she is a fucking whore” and “She want to ride in big money
    van because she want big money man”.
    e) I said nothing to the Respondent and left.”
    [8] The Husband’s denial is set out at paragraph 7 of his affidavit filed 29th April 2014.
    According to the Husband, on the morning of the 30th January 2014, without any
    provocation from him the Wife made an insulting remark to him before leaving the
    house to attend to her catering business. He stated that he did not respond to her.
    However, when the Wife returned to the home he took the opportunity to reply to
    her with an equally disparaging comment. He denied calling the Wife a whore but
    3 At page 1293
    4
    he admitted that he did see a van parked at the front of the yard but he was
    unaware if the Wife had alighted from it. He denied mentioning anything about the
    van and admitted that he knew the gentleman who was in the van since they both
    went to school together. His position is the Wife instigated the verbal attack on
    30th January 2014 and his comments were made in response to the unprovoked
    verbal attack in an attempt to defend his honour.
    [9] Apart from the 30th January 2014 verbal attack, the Husband accused the Wife of
    initiating verbal attacks on him as early as two days after the Order.
    [10] The Wife brought forward her son, Tevin Joseph, who in his affidavit4 refutes
    allegations made by the Husband about the Wife and her friend Donna Baptiste who
    in her affidavit5 denies allegations made by the Husband about her and instead
    makes an allegation about another incident. However, their evidence is irrelevant
    since they were not present when the alleged verbal abuse of 30th January 2014
    took place and as such do not corroborate the Wife’s allegation. Indeed both the
    Husband and Wife have stated that the driver of the van was present on the 30th
    January 2014 when the alleged incident occurred but the Wife has not presented
    any evidence by this person to corroborate her evidence. In the absence of
    corroborating evidence of the incident complained of, I am not satisfied beyond a
    reasonable doubt that the Husband committed the said act of verbal abuse on 30th
    January, 2014.
    [11] The second breach of the Order which the Wife alleges is an incident of sexual
    molestation which happened on 5th March 2014. The Wife’s allegation is set out at
    paragraph 8 of her affidavit filed on 15th April 2014. She stated that on that day at
    about 11:00 am she was in the master bedroom of the matrimonial home, the
    children had left for school and she did not know that the Husband was home. The
    Husband came into the master bedroom while she was getting dressed. She
    immediately asked him what he was doing in her room since she was changing
    her clothes. The Husband then informed her that the wheels on her motor vehicle
    4 Filed 12th May 2014
    5 Filed 12th May 2014
    5
    needed “grooving” and he would “groove” it today since it was her birthday. She
    further stated that the Husband then told her “give me a suck on that salt fish” and
    she replied “leave me alone and get out of my bedroom”. The Husband then
    pushed her down on the bed used his hands to push her legs in the air over her
    head forcefully pushing his mouth on her vagina and she started to scream to “get
    off” her. The Husband then and forcibly inserted his erect penis into her. Although
    she was struggling and called for help, no one was home. She further stated that
    after several minutes the Husband finally took out his penis, she passed her hand
    over her vagina and realised that he had ejaculated over her vagina and stomach.
    She then told him that she was going to the police, to which he replied “Yes! Call
    your f…..g police man and tell him”, and “I took what is mine”. She further stated
    that she made a report to the police, which she exhibited, and at the General
    Hospital she was examined by a doctor who performed a rape kit and gave her
    antibiotics. She also exhibited a copy of the medical report.
    [12] The Husband has denied the allegation of rape6. He stated that he and the Wife
    have engaged in sexual intercourse on more than one occasion after the Order.
    He stated that a few days prior to the alleged rape the Wife complained to him that
    the tyres to her motor vehicle were smooth and since tyre repair is his field of
    expertise, he offered to repair them. On the day before the alleged rape he began
    work on the tyres. After making an assessment he went to the inside of the house
    to inform her that the work cost $120.00, but he did not intend to charge her. He
    proceeded upstairs where the Wife had left the master bedroom wide open and he
    could see from the hallway that the Wife was naked and lying on her back on the
    bed. He entered the bedroom and sat next to her. He told her that he had finished
    plugging the back tyre, and in response she touched him on his left leg.
    Afterwards they had consensual sexual activity which started around 11:10 a.m
    and finished at 11:30 a.m. After this the Wife got ready for work and left.
    [13] The Husband further stated that on the 5th March 2014, the date of the alleged
    rape, the Wife instructed him to finish “regrooving” the two front tyres, which he did
    6 See paragraph 8 of his affidavit filed 29th April 2014
    6
    in the yard while the Wife looked on from an upstairs bedroom window. When he
    was finished at about 11:10 a.m the Wife called him upstairs where the door to the
    master bedroom was again left wide open and the Wife was lying on her back on
    the bed naked. The lower half of her body was positioned near the edge of the
    bed. He entered the room and stood in front of her. The Wife sat up in the bed,
    grabbed his head and put it between her legs, where he performed oral sex. He
    tried to stand up but the Wife held his head to her vagina and told him she was
    about to have an orgasm so he should not stop. After the Wife climaxed, they had
    vaginal intercourse during which time the Wife told him not to ejaculate inside her
    because her attorneys advised her that if she got pregnant she would lose her
    case. As he was about to ejaculate he started to pull his penis out from the Wife’s
    vagina but he did not do so in time, resulting in some semen falling onto the Wife’s
    vulva region. This caused the Wife to become angry whereby she stated that if she
    became pregnant she would lose her case. They then got dressed and he went
    into the kitchen to help carry her food to the van and upon returning to the house
    for his second trip he observed the Wife on the telephone. After he placed the
    second batch of food in the van, the Wife told him she was leaving, and she left.
    The Wife did not return home at her usual time between 2:30 p.m to 3:00 p.m but
    between 5:00 p.m to 6:00 p.m. Before the Wife arrived home he received two
    phone calls from the Wife’s mother; in the first one she accused him of rape, and
    in the second she cursed him.
    [14] In response the Wife denied asking the Husband to do any work on the tyres of her
    van since she went to one Patterson Tyre shop to get a quotation; she denied the
    sexual activity as being consensual and of instructing her mother to do anything.
    She stated that the mother did call her while she was making the report at CID7.
    [15] An allegation of sexual molestation in any form is very serious and the onus is on
    the Wife to prove to the Court beyond a reasonable doubt that the Husband
    breached the Order by committing the acts of sexual molestation as alleged. The
    Wife has failed to discharge this burden for the following reasons:
    7 Paragraph 6 of the Wife’s affidavit filed 12th May 2014
    7
    (a) There was no evidence from any corroborating witness. The police report
    and the medical report do not amount to corroboration. The police report is
    not corroborating evidence since it is a record of the Wife’s version of the
    incident. At best it confirms the allegation and the fact that she made such
    a report. It does not go to the truth of its contents.
    (b) There was no evidence from the doctor who examined the Wife, so there
    was no medical evidence before the Court to support the Wife’s allegation.
    The maker of the report is the doctor, not the Wife. At best it confirms the
    fact of the medical examination but its contents were not explained.
    Further, the medical report does not conclude sexual assault. It states “I
    have examined the above-mentioned person and find the following –
    dangerous harm… Other remarks. 41 years old woman who alleged to have
    been sexually assaulted by her husband in the process of divorce around 11
    a.m today. Incident occurred as she was exiting the bathroom after bathing.
    She sustained minor bruise (indecipherable) thigh, swabs taken as per
    standard sexual assault.”
    (c) The veracity of the Husband’s version was not tested. Both parties chose
    not to cross-examine the deponents who swore to the affidavits in the
    committal application, depriving the Court the opportunity to determine the
    veracity of the Husband’s statements and his credibility. In the
    circumstances, the Husband’s version of the events on 5th March is equally
    plausible as the Wife’s.
    [16] For the aforesaid reasons, I do not find that the Husband is in contempt of the
    Order. I dismiss the committal application and order the Wife to pay the Husband
    costs in the sum of $750.00.
    The Injunction Application
    [17] In the injunction application the Wife has asked the Court to order the Husband to
    pay the arrears owing to GRENLEC for electricity supply with respect to the upper
    storey of the matrimonial home (“the upper storey”) which she and her children
    8
    occupy, in the sum of $1,696.00; for him to pay the reconnection fee of $369.00 to
    enable the restoration of the electricity supply; and for him to maintain the account
    at GRENLEC for the said upper storey. Although the Wife had paid some of the
    arrears at the date of hearing of the injunction application, she also seeks a
    reimbursement. Both parties have contended that due to their limited financial
    means and existing financial commitments they are unable to pay the arrears, the
    reconnection fee and to maintain the current payments.
    [18] The Wife stated that her gross monthly income from catering food is $4,000.00
    and after her expenses related to catering her profit is $1,200.008. She listed her
    monthly expenses9 as:
    (a) Insurance $ 190.25
    (b) Tevin School fee $ 325.00
    (c) Sierra School fee $ 217.00
    (d) Daily allowance for children $ 200.00
    (e) Loan payment for van $ 350.00
    (f) Groceries for family $1,000.00
    (g) Gas for vehicle $ 160.00
    Total expenses $ 2,442.25
    [19] She has denied the Husband’s assertion that her catering business has caused
    the electricity bill for the upper storey to increase since she stated that she
    purchases four cylinders of cooking gas per month. She has also denied that the
    Husband has given her the use of a RBTT credit card to purchase groceries. She
    stated that she constantly borrows money from family and friends to supplement
    her income. She contended that the Husband has not disclosed that he receives
    income from animals which he rears and has slaughtered weekly10, and income
    from two buses which he owns and operates, one in Grenada, registration number
    8 Paragraphs 4 and 5 of the Wife affidavit filed 30th June 2014
    9 Paragraph 11 of the Wife’s affidavit filed 30th June 2014
    10 Paragraph 16 of the Wife’s affidavit filed 30th June 2014
    9
    H4331 income of $250.00 per month, and one in Carriacou, registration number
    PJ 49911.
    [20] The Husband stated that he is the owner and manager of “Tyre Doctor”, a tyre
    repair business situate in Calivigny, St. George, where he works as a mechanic
    and tyre repair man. Like the Wife, he too is self-employed. He stated his gross
    monthly income as $2,000.0012. His approximate personal expenses are:
    (a) Groceries $800.00
    (b) Gasoline for vehicle $400.00
    (c) Two Water bills $300.00
    (d) Electricity bill
    (downstairs) $400.00
    (e) Internet and
    telephone bill (upstairs) $150.00
    (f) Cable bill (upstairs) $ 52.16
    (g) Repayment on mortgage
    loan (Communal Co-operative
    Credit Union) $2,205.00
    (h) Repayment of loan
    for purchase of tyres
    (CCCU) $ 973.00
    (i) Repayment on mortgage loan
    (Republic Bank) $2,000.00
    (j) Life insurance policy $ 96.27
    Total (approx.) $7,376.43
    [21] Apart from the aforesaid monthly expenses, he stated that he has three items of
    unpaid debts. The motor vehicle insurance for H4331 due on 28th July 2014 in the
    sum of $778.05 for half year. He also stated two other items, personal loan from
    RBTT for the purchase of tyres and personal loan with RBTT to extinguish credit
    card debt, for which he provided no sums.
    11 Paragraph 15 of the Wife’s affidavit filed 30th June 2014
    12 Paragraph 2 of the Husband’s affidavit filed 7th July 2014
    10
    [22] He has not refuted the Wife’s allegation that he rears animals from which he earns
    an income, and his position with respect to the bus (he stated bus and not buses)
    is it is not roadworthy and insurance is due.
    [23] On a balance of probabilities I accept the Wife’s evidence on her income and
    expenses and I find that the Husband has misstated his position and has been
    less than truthful to the Court about his income for the following reasons:
    (a) The Husband failed to disclose his income earned from the rearing of
    animals. Although this was raised by the Wife, the Husband remained silent
    and failed to deny this. I therefore accept that this is a source of undisclosed
    income.
    (b) The explanation provided by the Husband that he does not earn an income
    from the buses is not accepted by the Court. He did not initially disclose this
    but when confronted by the Wife his explanation of lack of roadworthiness
    was not accepted since the statement from the insurance company stated
    that insurance was due in July 2014 and January 2015 which, to me,
    suggests that insurance was being paid and therefore the vehicle was being
    used.
    (c) The Husband failed to disclose any savings yet his own evidence13 shows
    “collateral cash as $15,000.00”.
    (d) The Husband’s evidence was not consistent with the documentary
    evidence. Although the Husband stated the electricity bill for the upper
    storey has been increased due to the Wife’s catering business, the
    payments made in 2012 and 2013 for the upper storey and lower storey in
    total were $843.6214 and $739.1615 respectively, which is consistent with the
    Wife’s evidence that it has been approximately $300.00 for the upper storey.
    (e) The totality of the Husband’s evidence was not credible. He attempted to
    paint a picture of financial desperation yet he said he had a mortgage, loan
    to purchase tyres and has even entered into discussions with a bank to
    13 “C” to the Husband’s affidavit filed 7th July 2014
    14 Exhibit SJ 4 to the Wife’s affidavit filed 16th July 2014
    15 Exhibit SJ 4 to the Wife’s affidavit filed 16th July 2014
    11
    consolidate his debts. In my view, it was difficult to accept that a financial
    institution would lend the Husband funds for mortgage, loan to purchase
    tyres and to even enter into discussions with him for consolidation of debt
    where the repayment sum is at least double what he stated as his gross
    income.
    [24] For the aforesaid reasons, I grant the relief requested by the Wife in the injunction
    application and order the Husband to pay the arrears of electricity, reconnection
    fee and the monthly sum for the upper floor of the matrimonial home where the
    Wife and the children of the family reside. The Wife has already spent certain
    sums on securing the reconnection of the electricity, he is to reimburse this sum to
    her and any other related sums concerning the electricity.
    [25] I also order the Husband to pay the Wife the costs of the injunction application in
    the sum of $750.00.
    Margaret Y. Mohammed
    High Court Judge

    /stephanie-joseph-v-selwyn-p-joseph/
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