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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
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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
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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
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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
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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
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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
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(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
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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
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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
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[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
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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