HIGH COURT, ACCRA
DATE: 30 JANUARY 1967
BEFORE: AMISSAH J.A.
CASE REFERRED TO
Smith v. Smith [1965] G.L.R. 730; digested in (1966) C.C. 45.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION by the defendant against the plaintiff’s action for damages for breach of promise to convert a customary marriage into a marriage under the Ordinance before Amissah J.A. sitting as an additional judge of the High Court.
COUNSEL
Okine for the plaintiff.Annancy for the defendant.
JUDGMENT OF AMISSAH J.A.
The short point raised in the preliminary objection of the defendant is whether a spouse married under customary law
[p.35] of [1967] GLR 34
could, while that marriage subsists, sue the other spouse for breach of promise to marry under the Marriage Ordinance, Cap. 127 (1951 Rev.). For the purposes of an answer, the question ought to be subdivided as follows. In the first place, is a spouse to a customary marriage capable of bringing an action against the other, while the customary marriage subsists? If so, is breach of promise of marriage under the Ordinance an action which could be brought by such an injured spouse? As to the first question, the decision of Archer J. in Smith v. Smith [1965] G.L.R. 730 is of great assistance. That case was one where a woman married under the Ordinance sued her husband in tort. The circuit judge had non-suited the woman on the ground that “at common law no action lies between husband and wife.” But Archer J. upon consideration of the Married Women’s Property Ordinance, Cap. 131 (1951 Rev.), held that the action by the wife was maintainable. That being so, I think the woman married under customary law is in a stronger position in this regard. Because the English common law would apply far less to her than it would to the woman married under the Ordinance. I do not think that our customary law ever toyed with the fiction that husband and wife were one. Accepting that the wife married under custom could bring an action against her husband, I do not see why, if she could prove a breach of promise to marry her under the Ordinance, she should be denied this remedy. The incidents of a marriage under the Ordinance are quite different from those in a customary marriage. And if a woman has given consideration for the promise to transform the one under custom into the other under the Ordinance, it would be harsh to stop her from recovering for the breach. The only ground on which an action by a wife, married under custom, against her husband or vice versa, might be excluded is one of public policy. But I would like to hear a lot more on this case before I hold that this is the position here.
I overrule the preliminary objection. The case must proceed.
DECISION
Objection overruled.
S.O
