HIGH COURT, CAPE COAST
Date: 9 MAY 1975
EDWARD WIREDU J
CASES REFERRED TO
(1) Halmond v. Daniel (1871) Sar.F.C.L. 182.
(2) Amissah-Abadoo v. Abadoo [1974] 1 G.L.R. 110.
(3) Carr v. Carr [1963] 2 G.L.R. 331.
(4) Graham v. Graham [1965] G.L.R. 407.
(5) In re Estate of Canfor (Decd.); Canfor v. Kpodo, Court of Appeal, 5 August 1969, unreported; digested in (1970) C.C. 19.
(6) In re Kofi Antubam (Decd,); Quaico v. Fosu [1965] G.L.R. 138.
NATURE OF PROCEEDINGS
ACTION by originating summons to determine whether by the nature of the marriage contracted by the deceased intestate, the distribution of his estate ought to be governed by customary law rules of intestacy or by the Marriage Ordinance, Cap. 127 (1951 Rev.).
COUNSEL
J. B. Short for the plaintiff.
Dr. A. K. Fiadjoe for the defendant.
JUDGMENT OF WIREDU J
The plaintiff is the customary successor of one John Owusu Appiah late of Akim Swedru who died intestate on or about 17 May 1974, and the defendant is his widow. On 27 January 1975 letters of administration in respect of the deceased’s estate was by consent granted to the plaintiff and one Mrs. Ernestina Tekpetey, the eldest daughter of the deceased.
The present controversy between the parties is about the distribution of the deceased’s estate. By his originating summons, the plaintiff calls for determination whether by the nature of the marriage contracted by the deceased and the defendant, the distribution of the deceased’s estate ought be governed by customary law or the provisions of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.).
It is the plaintiff s case that the marriage between the deceased and the defendant was contracted customarily. He therefore contends that that being the case, the established canons of customary rules of intestacy should govern the devolution of the deceased’s property.
The defendant resists the plaintiff s claim and for her part relies on the following facts raised in her affidavit:
“(2) That I have been duly served with the plaintiff ‘s affidavit herein. I say that I was originally married to my late husband according to customary law in 1939 when I was only nineteen years old.
(3) That on 11 March 1944 my husband and I had the said customary marriage blessed in the Methodist Church in accordance with the rites of the Marriage Ordinance.
(4) That our intention was to convert our customary marriage into an Ordinance Marriage and we were duly advised by the officiating minister that such was the case having regard to the following matters:
(a) He himself was a licensed priest for purposes of the Marriage Ordinance and therefore a marriage officer.
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b) The ceremony took place in the Akim Swedru Methodist Church which was a licensed place of worship for the purposes of the Marriage Ordinance.
(c) We were issued with a marriage certificate thereafter.
(d) We were instructed and advised that my late husband could not contract any further marriage. Indeed, till his death, the deceased remained married to me only.
(e) Banns were duly published to which no one raised any objection or impediments thereto.
(f) Thereafter, I was made to use the title of ‘Mrs.’ by which I am still known in Akim Swedru up till today.
(g) The marriage was celebrated before witnesses.”
She therefore contends by paragraphs (5) and (7) of the same affidavit that:
“(5) That having regard to the intention of the deceased and myself and having regard to the nature and content of the marriage ceremony and viewed against the background of our subsequent conduct, I say that the only fair assertion is that we contracted a monogamous marriage in accordance with the rites of the Marriage Ordinance.
(7) That in all, seven children were born to this marriage. I say that by virtue of the foregoing, the determination of the destiny of the deceased’s properties must be in accordance with the provisions of section 48 of the Marriage Ordinance, Cap. 127.”
The events which seemed to have provoked this action as contained in the plaintiff s affidavit reads as follows:
“(3) That some time between 1943 and 1945, the deceased sent me to convey a Holy Bible and a hymn book to the Mission House.
(4) That subsequent thereto the customary marriage between the deceased and the defendant herein was blessed in accordance with the rites of the Methodist Church as the deceased was a circuit steward of the Akim Swedru Methodist Church.
(5) That the defendant now claims that by virtue of that blessing she is entitled to invoke the provisions of the Marriage Ordinance, Cap. 127, s. 48.
(6) That in the circumstances I swear to this affidavit asking the court to decide the law applicable to the devolution.”
The controversy raised by these rival claims reveals a fundamental clash between statutory law on the one hand and customary law on the other hand. Under the former, the defendant and her children will be entitled to two-thirds of the deceased’s estate leaving the family represented by the plaintiff with the remaining one-third. Otherwise (under the customary rule of law in its original purity) all the deceased’s estate (save the self-acquired house which the deceased left and in which he stayed with the wife and children) vests immediately in his successor. I have excepted the self-acquired house because the family’s title to this is subject to the
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widow’s and the children’s prior possessory right of occupation: see Halmond v. Daniel (1871) Sar.
F.C.L. 182 at pp. 182-183 and Amissah-Abadoo v. Abadoo [1974] 1 G.L.R. 110 at pp. 127-132. The widow’s right to household goods including items like furniture, frigidaire, television sets, etc. is also now recognised: see the Abadoo case (supra). So is the right of the eldest male child’s right to the father’s sword and instruments of trade.
The conflict raised by the rival claims as recited above raises issues of fact determinable only on evidence. I therefore on 24 March 1975 heard evidence from the parties and their witnesses. The star witness for the plaintiff was one Ampofo. This witness on the undisputed evidence, is not related to any of the contestants to this suit. He claimed to be of the same clan as the defendant but is incapable of inheriting her. He is a class leader of the Akim Swedru Methodist Church, leader of the local singing band and a local lay preacher. It is significant to note that the deceased and the defendant as well as the plaintiff belong to the same church. This witness testified that some time in 1944 one Rev. Markin, the then superintendent minister in charge of the Swedru District, resolved with the church leaders to appoint the deceased a circuit steward. According to this witness, it was a condition that to qualify for the post the deceased should have his marriage with the defendant blessed. The witness testified that the deceased accepted the offer and arranged for the blessing of his marriage with the defendant. He testified that this was made known to them in the church but the actual ceremony took place in the Mission House in his presence as well as some of the church members. He testified that the ceremony was an informal one with the reading of the Bible and saying of prayers.
The case for the defendant was presented by herself. She testified that following a decision taken by the deceased and herself to contract a monogamous marriage, they informed the superintendent minister, the Rev. Markin, who caused this to be announced in the church on three Sundays. According to her a formal marriage ceremony took place in the church building itself after which they were issued with exhibit 1 as their marriage certificate. She testified that thereafter, she assumed the name Mrs. Dora Appiah and this was her proper name known to the whole world and that her husband thereafter did not also contract any further marriage with any other woman up to the time of his death in compliance with the advice given them by the officiating minister.
It is not in dispute that the original marriage contracted by the deceased and the defendant was in accordance with customary law. It is the defendant who is now contending that this customary marriage was subsequently converted into one under the Ordinance. She therefore assumes the burden of establishing this.
In order to invoke section 48 of Cap. 127, the following pre-conditions must be satisfied:
(a) the deceased must have been a person ordinarily subject to rules of customary law,
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(b) the deceased must have in his lifetime contracted a marriage whether within or without the Gold Coast (Ghana) in accordance with the provisions of the Ordinance (Cap. 127) or any other enactment relating to marriage, or prior to the coming into force of the Ordinance, he must have contracted a marriage which was validated by the provisions of Cap. 127,
(c) the deceased must have left a widow or husband or any issue of the marriage, and
(d) the deceased must have died intestate.
Once the above pre-conditions are satisfied, devolution of the intestate deceased’s property must of necessity be governed by section 48 of Cap. 127.
We shall now examine the facts of this case to see how far the claim by the defendant satisfy the above requirements. The undisputed evidence shows that (a) the deceased was a person ordinarily subject to rules of customary law, (b) he died intestate leaving a wife and children. The only issue which remains for determination is whether the church ceremony satisfies the conditions of a valid marriage under the Ordinance ? This also brings us to the question what constitutes a valid marriage under the Ordinance? Cap. 127 has a number of formalities but for our purpose, we shall confine ourselves to marriages celebrated by ministers of religion.
The provisions of Cap. 127 are conveniently divided into two main categories, namely, provisions relating to formalities and those relating to essential validity. Even though the essential characteristic of a marriage under the Ordinance is its monogamous nature, in order to celebrate a valid marriage under it, the parties must have capacity as provided by sections 14 and 42 of the Ordinance and in addition, the formalities for the ceremony must comply with such requirements as are recognised by the Ordinance otherwise the marriage will be null and void: see sections 30-32 and 42 of the Ordinance.
The ceremony on which the defendant is relying was seriously challenged on its formal validity. The plaintiff contends that it was just a formal blessing of the already existing customary marriage between the defendant and the deceased whilst the defendant contends the ceremony was a conversion of the former into one under the Ordinance. The plaintiff relies on the evidence that the idea which motivated the ceremony was the decision by the church to appoint the deceased a circuit steward and the fact that the ceremony took place in the Mission House informally. The defendant for her part relies on the evidence that the ceremony took place in the church building itself after banns have been published, as a result of the intention of the parties to contract a monogamous marriage and the fact that the officiating minister was recognised as a marriage officer.
It was submitted on behalf of the plaintiff that exhibit 1, the documentary evidence of what took place, shows on its face that the ceremony was a church blessing of a customary marriage and that the evidence produced by the defendant did not comply with the mandatory provisions of section 31 of Cap. 127. Counsel contended therefore that the defendant had failed to bring herself within the provisions of the Ordinance
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so as to invoke the aid of section 48 thereof. Learned counsel cited the case of Carr v. Carr [1963] 2 G.L.R. 331.
For the defendant it was submitted that having regard to the intention of the parties to the ceremony, the nature and content of the ceremony weighed against the background of their subsequent conduct, one could not help holding otherwise than that the parties contracted a monogamous marriage in accordance with the Ordinance. Learned counsel contended that little regard should be given to the form of the ceremony since the intention was clear. For authority he cited the cases of Graham v. Graham [1965]
G.L.R. 407 and In re Estate of Canfor (Decd.); Canfor v. Kpodo, Court of Appeal, 5 August 1969, unreported; digested in (1970) C.C. 19.
In order to resolve the issue raised for consideration in this case, we first have to examine exhibit 1, the documentary evidence of what actually took place, and consider it alongside with the oral testimony to see which of the two rival stories reflect the probable picture of what actually happened. In this regard a critical examination of exhibit 1 is necessary. It is in the following form:
“METHODIST CHURCH
GOLD COAST DISTRICT
CHRISTIAN BLESSING OF
MARRIAGE ACCORDING TO
CUSTOMARY LAW
Certificate
This is to certify that John Owusu Appiah of Akim Swedru and Dora Ohenewa of Akim Swedru, duly married aforetime in accordance with the customary law of this country, have this day solemnly promised before God and in the presence of His people to observe the Christian law respecting marriage, and that we have recognised and blessed their union in the name of the Father and of the Son and of the Holy Ghost.
Signed, this 11 March 1944.
Ben Markin, minister
Kweku Adoo II, witness
MARRIAGE No……………….. Isaac Tandoh, witness
REGISTER No…………………. Akim Swedru Church
19…………………………………… Akim Swedru Circuit.”
It shows on its face that no new marriage was celebrated between the deceased and the defendant. Its contents show clearly that the ceremony it evidenced was just a church blessing of an already existing customary marriage between the parties. Unlike the Graham case referred to by learned counsel for the defendant, exhibit 1 does not show that the existing customary marriage had been converted by the church ceremony into one under the Ordinance. The evidence also does not show that the mandatory provisions of section 31 of the Ordinance which requires the delivery to the minister of (a) a registrar’s certificate; or
(b) two marriage officers’
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certificates in the Form I in Schedule 1, one in respect of each party, or one marriage officer’s certificate in the Form I in Schedule 1; or (c) the principal registrar’s licence, were complied with: see Carr v. Carr [1963] 2 G.L.R. 331. In this connection I think the evidence of the plaintiff s first witness as to what actually occurred which is substantially corroborated by the contents of exhibit 1 must be preferred to that of the defendant. I therefore accept the evidence of the plaintiff s first witness that the ceremony was an informal one in the Mission House and reject the defence case to the contrary. The plaintiff s first witness is not only an independent disinterested witness, his position in the church was not challenged; he gave a vivid account of what took place and gave the relevant years when the two ceremonies (the first customary marriage and its blessing by the church) took place. He was positive about the years and this is supported by exhibit 1. If what took place was what the defendant would want the court to accept, I think it would not have been difficult for her to have provided supporting evidence documentary or otherwise. If the intention of the parties was to convert their customary marriage into one under the Ordinance and this was made known to the reverend minister as testified by the defendant, I do not think that as an officiating minister (who should be presumed to be conversant with such practices) he would have committed such a serious blunder to defeat that intention by issuing the parties with a certificate which strikes at the root of their avowed aim.
The reliance placed solely on the alleged advice given by the officiating minister as contained in paragraph (4) of the defendant’s affidavit and its obedience by the deceased to support the monogamous nature of the church’s ceremony are not enough to bring what took place within the provisions of the Marriage Ordinance and therefore do not advance the defendant’s case. I think in this regard I can safely take judicial notice of the fact that Christian churches in Ghana, notably the protestants, recognise customary marriages of their followers or converts which receive church blessing and restrict the parties to such marriages by placing an injunction on the man from contracting any further marriage. In fact they do not know of divorce, but this does not necessarily make these marriages monogamous in the sense as understood under the Ordinance. Disobedience of the injunction carries no legal sanction because the law does not recognise such church blessings legally. Sanctions of ex-communication or suspension may however be enforced by the church against the disobedient husband.
Neither are the mere intentions of the parties to contract a monogamous marriage enough to satisfy the provision under the Ordinance as appeared to have been urged on behalf of the defendant. The true position of the law is that intention operates in equity. Equity unlike statutes looks to the intent rather than the form. Where therefore as in the instant case a statute has provided a type of marriage for the purpose of conferring on a party to that marriage certain rights (as under section 48 of Cap. 127) one does not come to court to seek rights under the marriage by merely asserting an original intention to go through the type of marriage envisaged
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by the statute. In order to benefit under the provisions of that statute there must be strict compliance with all the mandatory provisions of the statute which confers the benefit: see section 42 of Cap. 127.
My findings above determine this case in favour of the plaintiff. But before I end this ruling, I must mention that the impact of social and economic changes on this aspect of the customary law is to recognise the widows and the children of the intestate husband right to personal chattels enjoyed in common with the deceased in the matrimonial home. Such items include beds, beddings, private cars, etc. For it is unreasonable and therefore uncustomary to deprive them of the use and enjoyment of things they have been brought up with and got used to: see the Abadoo case (supra) and also In re Kofi Antubam (Decd.); Quaico v. Fosu [1965] G.L.R. 138. Subject to the above and the widow’s and her children’s right to maintenance out of the estate all other properties vest in the plaintiff.
DECISION
Distribution of estate to be governed by customary law rules of intestacy
S. Y. B.-B.
