Division: IN THE COURT OF APPEAL
Date: 27TH OCTOBER, 1959.
Before: VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND OLLENNU J.
JUDGMENT OF OLLENNU J.
This is an appeal by the defendant, with a cross-appeal by the plaintiff, from the judgment of a Commissioner of Assize and Civil Pleas, delivered in Accra on the 12th February, 1959. On the 13th October, 1959, we allowed the appeal, and we dismissed the cross appeal. We now proceed to state our reasons for those decisions.
(His lordship stated the facts and continued:—)
No evidence was produced by the plaintiff to show that there was any abnormality about the girl’s pregnancy which could account for a pregnancy lasting fifteen or sixteen months. In these circumstances, the presumption is that the gestation took the normal period of nine months, and that the evidence of the defendant that the girl became pregnant in September, 1956 should be preferred to that of the plaintiff. However, as will appear presently, it is immaterial (for purposes of determining whether or not the defendant was married to the girl according to customary law) whether the pregnancy took place before, or after, the payment of the customary fees of marriage.
The learned Commissioner, dealing with the case for the defence, stated:
“The main ground of the defence is that the defendant admits he has a child by the daughter Hannah
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having married her according to custom or otherwise. But he has failed to prove that the necessary rites constituting engagement and marriage have been done by him; and taking the evidence of his own witness the girl herself, Hannah Asumah, it is clear she is not married to the defendant.”
While the Commissioner properly directed himself on the onus of proof, we are of the opinion that, upon the evidence before him, he erred in the conclusion which he reached, viz., that the onus had not been discharged.
The question of marriage vel non is a question of law, which must be determined upon the facts before the court. Moreover, a person on whom the onus lies to establish certain facts need not lead further evidence of the facts necessary to prove his case if his opponent admits those facts, whether in his pleadings, or in evidence given in-chief or in cross-examination. In such a case the party must be deemed to have discharged the onus.
When cross-examined on the customary law relating to marriage, the plaintiff made the following admission:
“If a girl is engaged to be married and the man had made expenses on the girl and is put in family way by somebody else the man pays all the expenses the man has made, it amounts to having married the girl. I brought the action because he has not been maintaining her after payment of the £40.”
In our opinion, that evidence given by the plaintiff is a correct statement of the customary law.
Borrowing the words of the learned author of Sarbah’s Fanti Customary Law, we say that the customary law relating to marriage in simple in the extreme. At pages 39 and 99 of the work cited, there appears the following statement of the essentials of valid customary marriage: it was made by the Chiefs to D.P. Chalmers, the Judicial Assessor in the case of Panin v. Duncan (Oct. 11, 1869):
“When a man intends to have a certain woman for his wife, he applies to her family, asks her to be given in marriage, by taking to the family, according to his means two flasks of rum, or two ackirs of gold dust (9/-) or 4 or 6 ackirs according to his means. Upon this, if the family approve, they agree to give the woman. This request and the consent with the first present alone make a valid marriage.”
But there are other forms of valid marriage. Thus a girl becomes pregnant, and her family upon discovering her condition ascertain from her who was responsible. They send to the man to enquire
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from him. If the man sends some drink, admitting liability, and sends a further drink or present (however small the drink or present may be – perhaps a small token sum of money), and if the girl’s family accepts the present in addition to the fee on admitting liability, a valid marriage is thereby concluded.
By custom, the sending of the additional drink or present amounts to a request by the man for the hand of the girl, and the acceptance of that additional drink or present amounts to consent by the family.
Where a man has obtained the consent of a girl’s family, and has completed the marriage by making the token gift, and another man interferes with his wife, two remedies are open to him. He may claim adultery fee from the offender and keep his wife, in which case any child born in consequence of that illicit relation is by customary law a legitimate child of the husband, and would be given a name by the latter. On the other hand, the husband may elect to break the marriage, and to claim the return of all the customary drinks or fees and presents which he has given to the family and to the girl. In the latter case, the family will refund those customary fees, and, in turn, claim the same from the seducer. If the offender pays the amount which the family had to refund, he steps into the shoes of the former husband and is deemed to be validly married to the girl.
Again, a woman who has been married according to custom may not have been cohabiting with her husband, and declines to cohabit with him. It is discovered that she is being induced by another man to break the marriage. If that other man is willing to marry her, the girl’s family would obtain the consent of the husband to break the marriage formally, and would refund to him all the expenses which he had incurred on the customary fees and presents. When that has been done, and the new suitor has paid that same amount to the family, he steps into the shoes of the original husband, and becomes the lawful husband of the girl.
In the instant case, therefore, even if the evidence of the plaintiff is believed that the defendant was responsible for the girl’s pregnancy in March, 1956, and that after Addo (the original husband) had agreed to accept his £40, the plaintiff claimed and recovered the same from defendant, then upon such an admission, the girl became the wife of the defendant, and no question of seduction can arise. The plaintiff can maintain an action against the defendant only if, after he (the plaintiff) had refunded the customary fee of £40 to Addo, the defendant refused to pay that amount to him.
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The evidence of the defendant, however, was that he had paid the customary fees and presents, calculated at £40, some four to five months before the pregnancy. In our opinion this evidence should have been preferred to that of the plaintiff. If it be accepted, then the girl was the defendant’s wife at the time she became pregnant, and no question of seduction, either under English law or under customary law, can arise.
DECISION
Thus, whichever of the two stories is accepted, the plaintiff s daughter is a lawful wife of the defendant, validly married under customary law, and the learned Commissioner, in our view, erred in holding that she was not.
