HIGH COURT, SUNYANI
Date: 29 JANURAY 1973
OSEI-HWERE J.
CASES REFERRED TO
(1) Yaotey v. Quaye [1961] G.L.R. (Pt. II) 573.
(2) Quaye v. Kuevi (1934) D.Ct. ‘31-’37, 69.
NATURE OF PROCEEDINGS
ACTION by the plaintiff for general damages for an alleged breach of promise to marry at customary law and assault and battery and medical expenses. The facts are sufficiently set out in the judgment.
COUNSEL
Dr. Ohene-Djan for the plaintiff.
Defendant in person.
JUDGMENT OF OSEI-HWERE J.
By her amended writ of summons the plaintiff’s claim against the defendant is for:
“(1) General damages for fooling, deceit, breach of promise and customary push off as a result of the defendant’s total neglect of the plaintiff who is his customary wife, and claiming unreasonably to have divorced her in circumstances of any other law.
(2) For an order directing the defendant to pay the sum of ¢100.00 (one hundred cedis) to plaintiff being medical expenses.
(3) General damages for assault and battery.”
[p.285] of [1975] 1 GLR 283
At the close of pleadings the plaintiff’s counsel took out summons for directions and the issues filed were admitted for trial. The admitted issues are as follows:
“(1) Whether or not the plaintiff was the customary wife of the defendant during the periods they lived together.
(2) Whether or not the payment of ‘akotoagyan’ does not constitute a valid and unconditional promise to marry at customary law and breach of which constitutes an actionable tort.
(3) Whether or not the plaintiff fell sick during her marriage to the defendant and as a result she incurred medical expenses totalling ¢100.00.
(4) Whether or not the defendant has failed and neglected to maintain the plaintiff.
(5) Whether or not the defendant has validly divorced the plaintiff at customary law and practice as obtaining at Seikwa.
(6) Whether or not the plaintiff if she has been validly divorced by the defendant is not entitled to a customary push off money or compensation from the defendant.
(7) Whether or not the plaintiff is entitled to the remedies endorsed on the writ of summons.
(8) Whether or not the defendant has cheated, fooled or deceived the plaintiff or is in breach of promise of marriage to the plaintiff.”
According to the plaintiff she got married to the defendant around Easter 1969. The defendant put her under conception and he then went and presented the customary drinks to her family to marry her. Her family accepted the drinks and they put her into the hands of the defendant. Thereafter they lived together as husband and wife first at her home town, Seikwa, and subsequently at Adamsu where the defendant was transferred. Although she did not continuously share the same roof with the defendant (as the defendant already had a senior wife) yet she performed her matrimonial duties, like cooking for and sharing the same bed with the defendant, when it came to her turn. Some time in 1971 the plaintiff discovered that her husband was having an illicit affair with his maid-servant and, because she queried him about it, the defendant said he would no longer give her chop money for the day. She put the matter before one police inspector and the defendant made it plain to him that he wanted the plaintiff to leave.
The inspector advised the defendant to give her money and also to take her to her home-town. The defendant rejected the inspector’s advice and insisted that she should leave for her home-town that very day. The defendant threw out her personal belongings and when she tried to put the things back into her room the defendant assaulted her and kicked her lower abdomen. As a result of the assault she had contusions all over the face. The defendant himself then put her belongings on a vehicle and accompanied them to Berekum where he deposited them with her sister. Owing to her condition she stayed behind at Adamsu. The defendant returned to Adamsu the same day and on the following morning the
[p.286] of [1975] 1 GLR 283
defendant led her to Japekrom and advised her to go and stay with her sister at Berekum to attend hospital there and that after her recovery he would go with her to Seikwa so that they might go into the matter.
She stayed at Berekum where she attended the hospital for treatment. The doctor later decided to operate on her stomach, and when she informed her husband he also asked her to go with him to Seikwa to consult her parents for their consent. The defendant took the lead to Seikwa on a motor cycle whilst she followed up in the evening. When she got to Seikwa she discovered that the defendant had not been to see her parents. Instead, one Kwadwo Dwumoh, her younger uncle, came to inform her father that same evening that the defendant had asked him to tell the father that he was no longer going to marry her. Her father wrote to the defendant to the effect that if he wanted to hand her over he should come and do so personally and he further demanded that the defendant should first come and cure her of her illness. The defendant failed to turn up after her father had written and as her illness grew worse her father took her to Berekum hospital where she was operated upon. She paid ¢100.00 for the operation. The plaintiff later appealed to the Assistant Superintendent of Police, Berekum, under whose command was the defendant, but the defendant refused to pay the hospital fee of ¢100.00. The plaintiff denies that she was only a concubine to the defendant. She also denies that the defendant performed no customary rites of marriage to her parents except to pay akotoagyan.
The defendant admitted that he first met the plaintiff in 1969 and proposed love to her which she reciprocated. She then stayed with him as a concubine in the hope that if he found her conduct suitable he would marry her. After he had been with the plaintiff for about two months he sought advice from his two friends what customary rite one had to perform if one stayed with a girl to know her character before marriage and they said that the custom is akotoagyan. They advised that he should buy two half-size bottles of Lawyer gin and then provide ¢4.20 of which he would present one half-size bottle of gin and ¢2.10 to the father and the rest to the girl’s maternal family and that if thereafter he found the girl’s character suitable he could buy drinks to see the parents as her head-rum to settle the marriage. He accordingly complied with the instructions of his two friends and asked them to perform the akotoagyan custom on his behalf. This was accepted and after that he freely consorted with the plaintiff. When he was transferred to Adamsu he went with the plaintiff and rented a separate room for her. The defendant narrated the incident which led to the plaintiff leaving Adamsu. This was over a wig she had credited for which there remained a balance outstanding of ¢10.00 to pay. The plaintiff asked him to pay this balance which the vendor was demanding. He paid this amount and, in addition, gave ¢4.00 to the plaintiff to go and live with her parents at Seikwa as he was having no more money to feed her after making this payment.
The plaintiff collected this money and refused to go home. The defendant, in turn refused to give her chop money. He removed the plaintiff’s personal belongings from the room he shared with his senior wife and
[p.287] of [1975] 1 GLR 283
this incensed the plaintiff who destroyed his kerosene stove and bucket. The plaintiff later followed him to the office and held his tunic and demanded her chop money. The plaintiff had, at this time, got very aggressive and one Inspector Koomson and his landlord, Mr. Asiedu, had to hold her in check from hurling any missile that came her way at him. He later persuaded the plaintiff to bring out her belongings so that he could take her to her parents. She, however, refused to board the lorry that was to convey her.
The defendant himself, therefore, took her belongings to her sister at Berekum. The following day the plaintiff consented to leave and he instructed her to collect her belongings and go straight to Seikwa whither he would follow, if he obtained permission, for them to settle the matter.
The defendant’s complaint is that the plaintiff instead, of going to stay with her parents at Seikwa as he had instructed, had rather hired a room of her own at Berekum and stayed there. He confronted the plaintiff to go with him to Seikwa to go into the matter but she refused to go as she said she had divorced him. It was on 18 June 1971 that the plaintiff left Adamsu. In the month of July 1971, the defendant went to Seikwa and reported to one of the uncles of the plaintiff (Kye Kwaku) about the plaintiff’s refusal to come to Seikwa to settle the matter. From there he also went to complain to the plaintiff’s mother and grandmother as the plaintiff’s step-father (the plaintiff’s first witness) was not in the house. Kye Kwaku had undertaken to invite down the plaintiff and he had told the defendant also that if it was necessary to invite him down they would do so otherwise they would come to Adamsu to go into the matter. After he returned to Adamsu he waited in vain to receive a message from the plaintiff’s family. In the meantime whenever he came to Berekum he found that the plaintiff was trading there. He once went to Berekum with his landlord and when he gave money to the plaintiff to cook for them she threw the money at him saying that she would not do so as she had divorced him. The defendant became concerned about the security of his job on account of the plaintiff’s behaviour and so he went to the plaintiff again to go with him to Seikwa to hand her over to her parents. He went to Seikwa and the plaintiff later came to meet him there. He did not, however, meet the plaintiff’s first witness and so he put before the plaintiff’s younger uncle, the plaintiff’s first witness’s nephew and a younger brother of the plaintiff that he could not marry the plaintiff any more and they promised to inform the plaintiff’s first witness. That day was 1 November 1971. Later he received a letter (exhibit 1) from the plaintiff’s first witness informing him that the plaintiff was indisposed and that when she got well he would either send back his drinks to him or come to settle the matter.
It will be important, in order to resolve issue (1) to resolve the nature of the drinks and the money that the defendant sent to both the plaintiff’s first witness (the plaintiff’s step-father) and to the plaintiff’s maternal uncle. The plaintiff’s first witness admitted that the defendant brought, in the first instance, two bottles of beer. This drink was obviously intended by the defendant to introduce himself to the plaintiff’s first witness so that
[p.288] of [1975] 1 GLR 283
he might have free ingress to and egress of the house. According to the plaintiff’s first witness, the defendant’s spokesman, Fofie, explained to him that the defendant had seen his daughter whose hand he was intending to ask in marriage and that the defendant had therefore come to put him in the picture so that if he found the defendant in the house he would not be regarded as a trespasser. It is also admitted by the plaintiff ‘s first witness that a few days after the initial drink the defendant sent the two Fofies to present the drink (Aromatic Schnapps and a half bottle of akpeteshie according to the plaintiff’s first witness) and ¢2.10 to him and the same to the plaintiffs uncle. The defendant and his first witness, Fofie, said that this was presented as akotoagyan. The plaintiff’s first witness admitted that he was informed by the defendants messengers that they had come to present the drinks and the money as akotoagyan. As I entertained doubts about the custom called akotoagyan I requested the Regional House of Chiefs, Brong-Ahafo, to supply to the court their written opinion of the content of the marriage custom, if it is a marriage custom at all, called akotoagyan. The house complied and gave the following written opinion to the court:
“As an integral part of Akan custom it is a mockery for a woman to flirt with her male counterpart without her parents being officially informed by the man who so flirts with her. On the other hand it is similarly an offence punishable by serious customary rite by parents of a woman when a man keeps friendship with a woman but without informing the parents of the woman of his flirting with their daughter.
To avoid these instances it is duty bound and customary that any man who takes on a woman as a friend should approach the parents of such woman with either one half bottle of schnapps or a full sized one to make his keeping known to the parents of the woman. Such rum as provided for the information is known in Akan as akotoagyan. The meaning to this means a drink which is taken for nothing’s sake. This can otherwise be interpreted as a windfall.
If in the event the woman however decides later to bring the friendship to a halt the man providing this drink cannot claim his drink or the cost of it back from either the woman or her parents. This drink is not refundable. If on the other hand the man also wishes later in the course to break the friendship the woman as well cannot claim any damage from the man for breach of marriage, since the Akotoagyan provided does not bind the two as a married couple; nor does it serve as a token of promise to a marriage.”
Sarbah in his Fanti Customary Laws (3rd ed.) has this to say at p. 51:
“A woman living with a man as concubine, mistress, or friend, is not encouraged in the eyes of the Customary Law, which stamps the relationship as immoral, to be remedied as quickly as possible.” The word “friend” in the above passage is only the euphemistic description of “concubine.” Although concubinage is decried by our customary law it is not unknown to it and it seems to me that it is only to give it some
[p.289] of [1975] 1 GLR 283
respectability that akotoagyan is provided to the woman’s parents. It is clear from the above opinion that:
(a) Akotoagyan is the drink provided by a man to inform the parents of a woman with whom he cohabits about the fact of their concubinage.
(b) The drink provided may be either one half bottle or a full-sized bottle of schnapps and, as the name implies it means “bottle [taken] for nothing” or “drink [taken] for nothing.”
(c) The providing of akotoagyan creates no “legal” relationship between the man and the woman as,
(i) the drink is not refundable when the woman decides to bring to an end their concubinage;
( ii) t he woman cannot claim any damages for breach of promise of marriage if the man decides to break their relationship as it does not serve as a token of promise to marry.
As I have observed before, the plaintiff’s first witness, in his evidence, made no mistake about it at all that the schnapps and money the defendant brought to him represented akotoagyan. This is confirmed by his further evidence that when the defendant was leaving Seikwa on transfer to Adamsu the defendant came to ask permission from him to go along with the plaintiff to serve him there. The plaintiff’s first witness told the court, as a good measure, that when he accepted the drink and the money he asked the defendant’s messengers to tell him that he had from that time on entrusted the plaintiff entirely into his hands as far as marriage was concerned and that he had recognised the defendant as the only husband of the plaintiff. He said he again asked that it be made known to the defendant that what he had done was enough and that he needed nothing more from him. This latter message from the plaintiff’s first witness is strange in view of his settled opinion, which he made known to the court, that after the payment of akotoagyan there was no more custom to be performed according to the local custom at Seikwa, not even the payment of the head-rum or tiaseda. I think that the purpose for which the defendant provided the drink and the money is too plain for argument and no amount of gratuitous dispensation held out by the plaintiff’s step-father, the plaintiff’s first witness, could have displaced the avowed purpose of akotoagyan by any customary rite of marriage. The full force of the incidence of akotoagyan must attend the acceptance of the drink and the money as akotoagyan.
The essentials of a valid customary marriage have been laid down in the headnote of Yaotey v. Quaye [1961] G.L.R. (Pt. II) 573 at p. 574 be as follows:
“(a) agreement by the parties to live together as man and wife;
(b) consent of the families of the man and the woman to the marriage. Such consent may be implied from the conduct, e.g. acknowledging the parties as man and wife, or accepting drink from the man or his family;
(c) consummation of the marriage, i.e. the parties living together openly as man and wife.”
[p.290] of [1975] 1 GLR 283
The presence of these essentials must be real and not notional. So that where a man lives with a woman not as a real wife but only as a concubine with the consent of the woman’s parents that association cannot be translated into a valid customary marriage because the man and the woman are reputed to live as man and wife. Even though the defendant freely described the plaintiff as his wife and he also described their association as “marriage” this was no more than another euphemism for “concubine” and “concubinage” respectively. I think that it is well that we betake ourselves to the warning sounded by Dean C.J. in Quaye v. Kuevi (1934) D.Ct. ‘31-’37, 69 at p. 73, where he said, “we know that concubines often induce their paramours to treat them as nearly like wives as they can.” This warning may well apply to the stand the plaintiff’s first witness has now turned to take in the witness-box. I venture to say that if it were the defendant who had sued the plaintiff for some matrimonial wrong he would have been loudest in proclaiming that the defendant only provided akotoagyan to him and that it conferred no rights in him over the plaintiff.
I hold, therefore, that the plaintiff’s association with the defendant was short of any valid customary marriage and that they lived in no more than the status of concubinage. A woman living in concubinage cannot sue the man with whom she is so living for any maintenance: see Sarbah’s Fanti Customary Laws (3rd. ed.) at p. 50. As explained above, akotoagyan confers no right on the woman to sue for breach of promise of marriage. It follows, therefore, that issue (1) must be answered in the negative, and so also must issue (2). Even though the defendant abundantly admits that he failed to maintain the plaintiff I find, for the foregoing reasons, that the plaintiff can maintain no action for that and the whole of her first claim endorsed on the writ must fail. In regard to her third claim for general damages for assault and battery it is quite clear that the plaintiff’s allegations against the defendant amounted to allegations of a felony and not a mere misdemeanour. The allegations of a felony were that the defendant caused harm to her which necessitated the surgical operation. Where a tort is also a felonious crime, such as the offence of causing harm is under our Criminal Code, 1960 (Act 29), it has been recognised that the right of redress by civil action cannot be maintained until the crime has been prosecuted: see Halsbury’s Laws of England (3rd. ed.), Vol. 1, pp. 11-12. And where the allegations clearly pointed to a felonious crime I do not think that the plaintiff should be permitted to state a cause of action on a misdemeanour without alleging the felony. The plaintiff has failed to establish that the felony of causing harm has been prosecuted successfully against the defendant and her claim for damages for assault and battery must, therefore, fail.
I am satisfied from the conduct of the defendant that during the period the plaintiff lived at Berekum he still considered her as his wife to the extent that when he saw another policeman with the plaintiff he took offence and slapped him. Indeed, under cross-examination, the defendant admitted that at the time the plaintiff was operated upon she was still his wife as the parents had not come to see him. He also said that he intentionally refused to pay for her medical expenses and cater for her because
[p.291] of [1975] 1 GLR 283
of the misunderstanding between them which her family had refused to go into. Exhibit 1 bears eloquent testimony that at the time the plaintiff went to Seikwa she was in poor health. The defendant does not also challenge the claim that the ¢100.00 was paid towards the plaintiff’s medical expenses. Sarbah says at p. 51 of the opus cited that if a woman, living in concubinage with a man has a child by him he is bound to look after her during her illness only, and to pay any expenses attending her confinement. I do not think that the man’s obligation in paying her medical expenses is only limited to her confinement when she has a baby with him. The plaintiff should bear her medical expenses on the practical ground that as he had taken her from the parents in good health he must restore her as he took her. It is for this reason that I allow the second claim. All the other issues are inferentially answered by allowing claim (2) alone. I accordingly enter judgment on behalf of the plaintiff against the defendant for ¢100.00 with ¢100.00 costs against the defendant.
DECISION
Judgment for the plaintiff with costs in respect of claim for medical expenses.
S. O.
