HIGH COURT, CAPE COAST
Date: 3 MARCH 1975
BAIDOO J
CASES REFERRED TO
(1) Quinn v. Leathem [1901] A C. 495; 70 L.J.P.C. 76; 85 LT. 289; 65 JP. 708; 50 WR. 139; 17 T.L.R. 749, H.L.
(2) Lumley v. Gye (1853) 2 E. & B. 216; 22 L.J. Q.B. 463; 17 Jur. 827; 1 W.R. 432; 118 E.R. 749.
(3) Lough v. Ward [1945] 2 All E.R. 338; 173 L.T. 181; 89 S.J. 283.
(4) Winsmore v. Greenbank (1745) Willes 577; 125 E.R. 1330.
(5) Butterworth v. Butterworth and Englefield [1920] P. 126; 89 L.J.P. 151; 122 L.T. 804; 36 T.L.R. 265.
(6) Place v. Searle [1932] 2 K.B. 497; 101 L.J.K.B. 465; 147 L.T. 188; 48 T.L.R. 428, C.A.
(7) Gottlieb v. Gleiser [1958] 1 Q.B. 267n.; [1957] 3 All E.R. 715.
(8) Smith v. Kaye (1904) 20 T.L.R. 261.
NATURE OF PROCEEDINGS
APPEAL from the judgment of a district court grade II, awarding the plaintiff damages for unlawful dissolution of the plaintiff s customary marriage to the defendant’s granddaughter. The facts are fully stated in the judgment.
COUNSEL
Ampiah for the appellant.
Sampson for the respondent.
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JUDGMENT OF BAIDOO J.
The plaintiff-respondent (hereinafter referred to as the plaintiff married one Adjoa Twumasi, a granddaughter of the defendant under customary law. For some three years they lived together happily and had two issues, one of whom eventually fell ill and was taken to hospital by the plaintiff for treatment. The child unfortunately died the next day and because a priestess has told the plaintiff and his wife that six witches were haunting the sick child, the plaintiff s wife, suspecting her grandmother to be a witch, went and beat her up. An arbitration subsequently held on the conduct of the wife found as a fact that the said priestess never mentioned the assaulted grandmother’s name nor disclosed the identity of any of the persons she professed to have found to be witches and so the plaintiff s wife Adjoa Twumasi was pronounced guilty of unwarranted assault.
As far as the plaintiff was concerned, there was no trouble or dispute of any sort between him and his wife. Furthermore, he was not proved to have been guilty of any misbehaviour towards any member of his wife’s family or relations yet the defendant-appellant (hereinafter referred to as the defendant) purported to dissolve the plaintiff s marriage by preventing Adjoa Twumasi from continuing to live with the plaintiff or performing any further marital duties to the plaintiff as is required of her even though the wife and even the assaulted grandmother, according to the plaintiff, were opposed to the dissolution of the marriage proposed by the defendant. According to the plaintiff, the arbitrators, who probed certain charges preferred against him by his wife’s father, dismissed all the said charges except one accusing him of not attending church, but that was held to be no ground for dissolving their marriage.
Despite all this, the defendant wrote to the plaintiff a letter by which he purported to dissolve the marriage between the plaintiff and Adjoa Twumasi, his granddaughter. He then dispatched to the plaintiff, a bearer with the said note plus the sum of 09.50 which he stated was dissolution fee. The plaintiff refused to accept the money contending that it was contrary to custom to dissolve a marriage without first holding an arbitration between the spouses to find out whether any of them had committed any marital offence. The defendant persistently refused to permit an arbitration to be held over the matter and, absolutely disgusted over the defendant’s conduct, the plaintiff filed this action in the District Court Grade II, Asikuma claiming:
“0500.00 damages from the defendant for unlawfully, unreasonably and forcibly divorcing the plaintiff’s lawful marriage with his defendant’s granddaughter Adjoa Twumasi with whom plaintiff has no case.”
In his evidence at the trial the defendant did not deny sending a letter per bearer to terminate the marriage. The relevant portion of his evidence was as follows:
“The plaintiff has behaved in a way I do not like and as a result I have taken my granddaughter, his wife, from him, that is, have dissolved the marriage. (1) The plaintiff does not speak the truth.
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(2) He was able to tell the father of his wife that he would pass him through certain channel. (3) What I have not said, the plaintiff would insist that I had said it. (4) At one time before an arbitration, he asked his witness to stop giving evidence, so that he could explain matters, but when he was questioned about this assertion, he denied having said anything to that effect, and stated that he only blew away something from his cloth. Such a lie also surprised me. When his child died, he said the death was caused by members of the wife’s family, because of this the grandmother is now not on speaking terms with the wife, her granddaughter. I asked the plaintiff to let me see the fetish priest who informed him that the child was killed by members of the family of the wife but the plaintiff told me that the fetish priest had gone to Tema and that he (the plaintiff) did not know his house nor where he (the priest) was staying.
I sent people to go and dissolve his marriage with my granddaughter, but he said he would not allow it because he had something to ask me before any dissolution could take place to enable him to put forward any claim at all. The plaintiff sent to ask me to go along with my granddaughter (his wife) so that they all could sit down to arbitration before the dissolution could take place, but I sent to tell him that the wife would not go, for, she had nothing to say and that I was the one who was dissatisfied with the marriage, and that I was the one who was bent on taking the wife from him to dissolve the marriage.”
When cross-examined by the plaintiff, the defendant said:
“You have not quarrelled with your wife and there is no misunderstanding between you and her. You have not fought her either. It is correct that you sent to tell me to come with your wife for a discussion or arbitration before the dissolution of the marriage, but I refused to bring her. I did not bring the wife as you requested. You did not engage your wife by letter. It is correct that I sent Kofi with a letter to you plus 09.50 dissolving the marriage and the amount as the necessary customary dissolution fee.
It is correct that I would not be able to know if the woman (your wife) had something with you, hence I asked my messengers to inquire from you any such things. It is not in conformity with our native custom that marriage should be dissolved by means of letter.”
On the evidence, the defendant’s conduct is difficult to justify. Even though a man normally goes to the father of the woman he intends marrying to formally ask for her hand in marriage, that does not mean the father or any relation of the wife can unilaterally and capriciously terminate the marriage. The marriage can be terminated only after an arbitration (to which must be invited members of the family of each spouse and neutral persons) has been conducted to find out whether any of the spouses
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has committed any marital offence. If an offence is proved, it is the duty of the arbitrators to try their utmost to effect reconciliation between the spouses in a genuine attempt to salvage the marriage especially where there are issues of the marriage. Dissolution or divorce is resorted to as a last measure when the circumstances of the case either show a total breakdown of the marriage or warrant it. After the arbitrators have ruled that the situation calls for divorce, the spouses must then be given an opportunity to show whether the other spouse owes any amount or has any property belonging to him or her. After settling all legitimate accounts between the spouses, the final act of divorce is then performed by the husband releasing her from her conjugal obligation, either by chalking her or saying so in the presence of the gathering. The growing practice of writing a letter commonly referred to as “a free note” to terminate a customary marriage is absolutely repugnant to native custom and totally ineffective. In his Fanti Customary Laws (3rd ed.) at p. 52, the illustrious John Mensah Sarbah has this to say:
“Notwithstanding the vague ideas in the coast towns about divorce of native marriage, there is no doubt that, save and except the competency of a native tribunal to decree the dissolution of a marriage, the right of divorce is marital only. The wife cannot declare her marriage void, nor can her family give her permission to remarry in the absence of the consent of her husband, signified by his releasing her from her conjugal obligation, either by chalking her, or saying so in the presence of competent witnesses.”
Since the letter or free note despatched by the defendant per special bearer to the plaintiff purporting thereby to dissolve the plaintiff s marriage is null and void in law, this means the said marriage is still subsisting and not dissolved. There is only a state of desertion induced by the defendant’s illegal conduct. His action in taking the plaintiff s wife from him and preventing her from performing her marital duties as required under her contract of marriage with the plaintiff is a violation of the plaintiff s legal right justifying the institution of an action by the plaintiff for damages. To quote the familiar dictum of Lord Macnaghten in Quinn v. Leathem [1901] A.C. 495 at p. 510, H.L.:
“a violation of legal right committed knowingly is a cause of action, and . . . it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference.”
This principle of law has been applied by the courts to give relief by way of damages or injunction or both to a master for the loss of the services of his servant (vide the case of Lumley v. Gye (1853) 2 E. & B. 216); to a father for the loss of the services of his daughter, an infant, who had been enticed by the defendants and harboured in their religious institution, an abbey for the training of nuns (vide Lough v. Ward [1945] 2 All E.R. 338); to a husband for the loss of the services of his wife who
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has been procured, enticed or persuaded to leave him (vide the cases of Winsmore v. Greenbank (1745) Willes 577; Butterworth v. Butterworth and Englefield [1920] P. 126 and Place v. Searle [1932] 2 K.B. 497, C.A.).
In the case of Gottlieb v. Gleiser [1957] 3 All E.R. 715, Denning L.J. (as he then was) expressed the opinion that an action of enticement does not lie against parents-in-law. In that case a mother-in-law, soon after her daughter’s marriage to the plaintiff, started paying the couple frequent and long visits. She interfered so much in the affairs of her daughter that there was always tension between her and the plaintiff, who eventually therefore asked her to leave the marital home. He agreed to his wife leaving with her mother. Ultimately the wife refused to return to the plaintiff especially as he had contrived to remove their elder child away from her custody. After protracted disputes, the wife petitioned for divorce on grounds of cruelty and the plaintiff also sued his mother-in-law and also his father-in-law claiming damages for enticement. The wife’s petition was dismissed. Subsequently the plaintiff s action was heard by Denning L.J., who while dismissing the plaintiff s claim for damages for enticement, made the following observation at pp. 716-717:
“Although the law of England does not permit an action for alienation of affections, it does, however, allow an action for enticement. Even this action is not in keeping with the times; it is a survival from the days when the wife was considered to be the property of her husband. She was regarded as little better than the servant in his house. If anyone deliberately and maliciously persuaded her to leave him, the husband could recover damages for the loss of her services and companionship. That is still the law in this respect. The husband can still sue the wife’s paramour who entices her away from him. That was established by the Court of Appeal in Place v. Searle ([1932] 2 K.B. 497), where the doctor said to the wife: ‘Come on, Gwen. We will go.’ The converse has since been held; that the wife can sue the husband’s mistress if the mistress entices the husband away. But this action for an enticement is an anomaly which the House of Lords have said should not be extended. They said so in Best v. Samuel Fox & Co., Ltd. ([1952] 2 All E.R. 394). I do not know that the rule has ever been extended so as to enable a husband to sue his mother-in-law for enticement. An action against parents-in-law has been allowed in America, but, so far as I am aware, not in this country, and I do not think that it should be started now. When a man takes to himself a wife, he takes her parents to be his parents and they become his parents-in-law; he becomes part of their family. In his new situation the infirmities of human nature are such that stresses and strains are often set up without any malice on either side. The mother-in-law may be unduly possessive of her daughter and seek to protect her from the unkindness, as she regards it, of the husband. The wife may be immature and unduly reliant on her mother, instead of placing her trust in her husband, as she
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ought to do. These psychological defects may break up the marriage, and cause the wife to leave the husband; but I do not think that this should be made the subject of an action for damages . . . Even if an action for enticement did lie against the mother-in-law, however, it would, I think, be a good defence for her to show that all that she did was done, as she believed, for the good of her daughter and not out of any malice towards her daughter’s husband. She may have been unduly possessive, interfering and unreasonable, but so long as she was honestly acting, as she believed, for her daughter’s good, she is not liable for an action in law. The husband could not succeed against her in any case unless he could prove that she was actuated by express malice, a thing very difficult to prove.”
(The emphasis is mine.)
In the above quoted portion of the judgment emphasized, Denning L.J. clearly conceded that in a case where there was evidence establishing that the parent-in-law “was actuated by express malice” the husband could succeed in his claim for damages for enticement. That being the case there is no difficulty in awarding the plaintiff in this instant case damages for enticement as there was ample evidence in the defendant’s own testimony proving that the defendant was actuated by malice. I have already quoted in extenso his evidence-in-chief in which he specified his five reasons for purporting to terminate the plaintiff s marriage; viz:
(i) The plaintiff does not speak the truth.
(ii) The plaintiff was able to tell the father of his wife that he would pass him through certain channel.
(iii) What he (the defendant) has not said, the plaintiff would insist that he had said it.
(iv) At one time before an arbitration he (the plaintiff) asked his witness to stop giving evidence so that he could explain matters, but when he was questioned about this assertion, he denied having said anything to that effect and stated that he only blew away something from his cloth.
The four reasons specified above are too flimsy and afford no ground for dissolving a marriage. The only ground worthy of consideration is the fifth one alleging that the plaintiff said his child’s death was caused by members of his wife’s family. There was no proof that the plaintiff accused any member of his wife’s family of being a witch. The evidence established that it was rather Adjoa Twumasi, the plaintiff ‘s wife, who believing what a priestess had alleged as to the cause of her child’s death, went and beat up her own grandmother. The defendant persistently refused to allow arbitrators to probe the matter to ascertain the truth. Acting out of spite he capriciously purported to terminate the marriage and prevented the plaintiff s wife from continuing to perform the marital duties imposed on her by her contract of marriage. This was a clear case of direct inducement to break her marital contract and the plaintiff is
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entitled to damages for this unlawful interference. The case of Smith v. Kaye (1904) 20 T.L.R. 261 may be cited as an authority in favour of the plaintiff. In that case it was a brother of the plaintiff s wife who induced or incited the wife to leave the plaintiff and it was held that the plaintiff was entitled to his claim for damages against the said brother-in-law.
The trial magistrate, Mr. J. M. Awotwi, ably discussed the customary law governing the dissolution of marriage and I see no justifiable reason for interfering with his award of damages in favour of the plaintiff. The note written by the defendant purporting thereby to dissolve the marriage is contrary to custom, void, and absolutely incapable of terminating the marriage. This of course means, as I have already pointed out, that the marriage between the plaintiff and Adjoa Twumasi is still subsisting and the plaintiff can sue anyone who marries her or flirts with her.
The sum of 0220.00 awarded by the trial court in favour of the plaintiff is hereby supported as damages for inducing Adjoa Twumasi to leave the matrimonial home and stop performing the services required of her under her marital contract. I am aware that the plaintiff did not specifically state in his summons that he was claiming the sum of 0500.00 endorsed on his writ as damages for enticement or for inducing his wife to break her marital contract, but that technical requirement is not vital since this was a summary hearing before a district court grade II, where rules of pleading do not apply. The endorsement on the writ of summons and the evidence adduced sufficiently disclosed the nature of the claim before the court. The wife was not cited as a party and it would be illogical therefore to treat the action as a suit calling upon the court to dissolve the marriage. From the size of the amount claimed as damages it is reasonable to infer that the plaintiff is not suing under customary law but wants to claim damages under common law for the flagrant violation of his legal right.
I see no merit in the appeal which is therefore dismissed. Costs to the plaintiff fixed at 060.00 inclusive of counsel’s fee.
DECISION
Appeal dismissed.
S. Y. B.-B.
