HIGH COURT, CAPE COAST
Date: 18 OCTOBER 1974
EDWARD WIREDU J
CASES REFERRED TO
| (1) | Addae v. Asante [1974] 2 G.L.R. 288. | |
| (2) | Wiafe v. Kom [1973] 1 G.L.R. 240. | |
| (3) | O’Connell v. Adams [1973] R.T.R. 150; [1973] L.R. 183, DC. | |
| (4) | Opoku Boateng v. Aduna [1963] 1 G.L.R. 445. | |
| (5) | Addison v. Acheampong, High Court, Sekondi, 16 July 1970, unreported; digested in 77. | (1970) C.C |
| (6) | Yanney v. Nyamekye, Court of Appeal, 22 December 1969, unreported; digested in 34. | (1970) C.C |
| (7) | Marshall v. Dawson (1885) Sar.F.C.L. 131. |
NATURE OF PROCEEDINGS
APPEAL from the judgment of a district magistrate grade II, in which the defendants, a father and his son, were jointly and severally found liable to the plaintiff in damages for seduction. The facts are sufficiently set out in the judgment.
COUNSEL
Amua Sekyi for the appellants.
No appearance by or on behalf of the respondent.
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JUDGMENT OF EDWARD WIREDU J
This appeal raises for consideration (a) the extent to which the customary law notion of a father’s responsibility for the immoral conduct of his son in our present day society is recognised, (b) whether there exists any justification for modifying this notion to meet present day social and economic changes in the society, (c) what acts constitute actionable seduction under customary law and (d) whether it is competent for a court to disbelieve evidence which has not been challenged in cross-examination and if so under what circumstances.
The present appeal is from the decision of the District Court Grade II, Assin Manso, dated 4 September 1973, which upheld a claim for damages by the plaintiff-respondent (hereafter referred to simply as the plaintiff) against the defendants-appellants (hereafter also referred to as the defendants) in a seduction action.
The facts upon which the plaintiff s action was founded are briefly nutshelled in his claim as follows:
“The plaintiff claims from the defendants jointly and severally the sum of 0200.00 damages for seduction. That the first defendant having seduced the plaintiff’s daughter Miss Elizabeth Dabrah an apprentice seamstress and put in the family way as a result of the seduction has denied any knowledge of the conception, but admits having had sexual connection with her, while the plaintiff’s daughter has named him, the first defendant, as the one responsible for her pregnancy, and the second defendant a father of the first defendant who is responsible for matters affecting the first defendant, has also refused to approach the plaintiff for customary rites to be performed after several demands. Thus damaging the plaintiff’s daughter’s career.”
In the court below the plaintiff called evidence by himself and three other witnesses including his seduced daughter. The case for the defence raised the following issues for determination:
(a) Whether the first defendant seduced the plaintiff ‘s daughter;
(b) Whether the plaintiff s daughter’s pregnancy is the result of the first defendant’s act;
(c) Whether the second defendant is the father of the first defendant and therefore responsible for the act of the first defendant.
Evidence was provided by the defence which joined issue with only the two latter issues since the first defendant admitted having sexually known the plaintiff s daughter. He, however, denied being responsible for the conception and provided evidence to the effect that one Nkrumah whom the plaintiff s daughter had earlier on approached was the author of the plaintiff s daughter’s present condition. There was the undisputed evidence also that the first defendant was at that material time a pupil teacher in another village staying by himself and in control of his own affairs.
In what strikes me as a well considered and reasoned judgment the trial magistrate very well directed himself properly on all the vital issues which called for determination and resolved each of them in favour of the
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plaintiff. He found as a fact that the first defendant was responsible for the pregnancy of the plaintiff s daughter and that the second defendant was the father of the first defendant. He concluded his judgment as follows:
“Since the second defendant and the defendants’ second witness failed to produce the father of the first defendant this court has accepted the evidence of the plaintiff that the second defendant is the father of the defendant. With these reasons, judgment is entered in favour of the plaintiff as against the defendants jointly and severally for the first defendant having seduced and conceived the plaintiff’s daughter Elizabeth Dabrah, and the second defendant a father of the first defendant who is directly responsible for matters affecting the first defendant. One hundred cedis damages awarded against the defendants jointly and severally for damaging the plaintiff ‘s daughter’s career. Costs to be taxed.”
It is apparent from the above that the present case itself has nothing unusual about it but the usual action for damages for seduction which normally comes before the courts. The appeal which was canvassed on two main grounds however brought in some innovations which have called for the above consideration.
The first ground of appeal urged on behalf of the defendants was:
“The action as against the second defendant was frivolous and ought to have been dismissed. PARTICULARS:
There is no recognised rule of customary law that a father is responsible for a seduction committed by his son.”
This was an additional ground which was filed later on behalf of the defendants and it is this contention which has sparked off the present debate. In developing his arguments on this ground Mr. Amua-Sekyi, counsel for the defendants, submitted in effect that in the present day permissive society where the youth had taken upon themselves the responsibility of seeking their own fortune and often outside their homes, it would not only be inequitable but also unreasonable to hold a father who no longer controlled the activities of his son responsible for his son’s immoral conduct. Learned counsel cited the case of Addae v. Asante [1974] 2 G.L.R. 288 as being the authority for the proposition that there does not exist any recognised customary rule of law that a father should be held responsible for seduction committed by his son.
I have read the judgment in the Addae case (supra) relied on by learned counsel for the defendants but regret to part company with him on his assertion that that case is an authority for the proposition detailed out in his additional ground of appeal.
The facts of that case in a nutshell were that the defendant in that case claimed that his sister had been seduced by the plaintiff s son. He therefore took the plaintiff to an arbitration where he (the defendant) was found not to have been able to substantiate his claim and costs of 020.10 was awarded against him. In an action in the District Court
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Grade II, Bibiani, to enforce the costs against him, he counterclaimed for damages for seduction thereby re-opening the issue of seduction again in court. In his judgment the trial magistrate dismissed the plaintiff s, claim for the costs and finding himself on Sarbah’s Fanti Customary Laws (2nd ed.) upheld the defendant’s counterclaim holding that the plaintiff as the father of the seducer was responsible under customary law for the seduction by his son.
On appeal Edusei J. reversed the decision of the trial court on the ground that the defendant was estopped by the arbitration decision from re-opening the issue of seduction by a fresh action in court and upheld the plaintiff s claim for his costs. In the course of the judgment his lordship noted at pp. 290-291 as follows: “In any case, arbitration apart, the defendant’s counterclaim for N03OO.OO damages from the plaintiff for his failure to obtain a wife for his son Addae is, in my view, untenable now in this latter part of the twentieth century when social conditions in this country have made some of our customs outmoded and incompatible with the social conscience of the community. The district magistrate who allowed the counterclaim and awarded N02OO.OO damages to the defendant based his decision on a passage in Sarbah’s Fanti Customary Laws (2nd ed.) at page 39 of that monumental work it is there stated: ‘Not only is a father liable to maintain his child, but if he fail to obtain a wife for his son on reaching the age of puberty, he is liable for damages arising from the son’s misconduct with any woman.’ A further reading on the same page shows that this custom was not, even in Sarbah’s days, of universal application, and each case had to be decided on the evidence of a particular district. Even if such a custom prevailed in the days of Sarbah, it is undoubtedly true to say that it cannot be the custom now for it is against good conscience to permit it to persist to the present times where present-day children are asserting their freedom of action and thought in diverse ways. If the son is old enough to know what is sex, and in these days when there is nothing esoteric about sex, I cannot see by what stretch of legal ingenuity that a parent should be saddled with the son’s irresponsibility.
In the result, the judgment for the counterclaim is also set aside, and it is dismissed. The costs of this appeal are fixed at N050.00 and the costs below to be taxed.”
It is clear from the above quoted passage from the judgment of Edusei J. on which learned counsel for the defendants relied on for his attack against the judgment appealed from, that the view expressed by Edusei J. on this aspect of the matter taken in its context, did not lay down any law upon which an authority can be founded to support the proposition being urged by learned counsel for the defendants. His lordship in the passage quoted above appears to have taken the literal meaning that the basis for holding the father responsible is solely due to his failure to marry
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for his son and therefore questioned its validity. A close examination of customary law view on this reveals otherwise.
Sarbah in his invaluable book on Fanti Customary Laws (2nd ed.) at p. 39 as noted above has, this to say on the subject:
“Not only is a father liable to maintain his child, but if he fail to obtain a wife for his son on reaching the age of puberty, he is liable for damages arising from the son’s misconduct with any woman.”
Dr. Danquah on Akan Laws and Customs sums the law in this regard at p. 193 as follows:
“[T]he father is always alone responsible for the charges connected with his son’s immoral conduct; for all other charges the maternal relations are equally responsible.”
Continuing the learned author states at the same page that:
“The principle seems to be that the father having brought his son into existence, is naturally liable to check him from getting loose on others’ wives, for the child’s image is the stamp of the father . . .”
Ollennu in his book on Testate and Intestate Succession in Ghana at p. 233 defines the term “son” as used by Dr. Danquah as implying a “child male or female in reasonable context. . .”
It is clear from the above passages from Sarbah and better still from Dr. Danquah that there exists a customary rule of law whereby a father is primarily held responsible for the immoral conduct of his son. It appears that the basis for this is based not solely on the physical control exercised by the father over his son but also on his responsibility to maintain the son yet considered under his tutelage and his duty in the moral upbringing of the son as the natural parent and to make provision for his future marriage. Customary law used a man’s marital status as a measure for determining whether he is still under age or not. This seems to be the true basis for the father’s responsibility. For it would be highly out of step with good conscience and indeed strange for the customary law to recognise the parent’s cause of action against the seducer of his unmarried daughter no matter where the daughter is staying (an area of the customary law where there is an agreement amongst both the text-writers and the case law on the subject), and then exonerate him of reciprocal responsibility for the immoral conduct of his son. The question here now is how far is this customary rule of law in consonance with our present day social and economic changes?
Whilst it is an undeniable fact that the present days’ events cannot be said to be the same as in the past when any talk of free love was intolerable, sex by the youth these days has become a common feature in our society and therefore justifies a call for a new look and consideration of this aspect of the custom; any move however which calls for a total disregard of parental responsibility in this regard as appears to be the view expressed by Edusei J. in the Addae case (supra) should with respect be strongly resisted. For not only is such a call undesirable but also unjustifiable. It
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would in the first place seek to advocate for a relaxation of parental duty to control the moral conduct of their children and secondly throw the whole society into chaos by encouraging unchecked moral degeneration in the youth generally. Even though the present society is less sophisticated that it used to be in the past, the basis upon which the custom of giving a father a say in marriage contracted by his son and sharing part of the responsibility is not only ideal but desirable.
The complaint of Edusie J. as I see it lies in the fact that modern, social and economic changes take sons out of parental control earlier that they used to be in the past especially when they have to travel outside their home to seek employment elsewhere. If I am right in this view then it is respectfully submitted that the solution or the answer to this problem is not a total abolition of the customary practice as is known but rather a modification of its application in each individual case which comes for determination. It is therefore suggested that where a father is sued jointly with his son for the latter’s seductive conduct, it should be open to the father to exonerate himself of liability by establishing that the son has been emancipated out of boyhood, attained the age of manhood and is in control of his own affairs. But a general statement that a custom which holds a father liable for the tortious acts of his son is “contrary to good conscience” with particular reference to his immoral conduct towards women is with respect too sweeping a generalisation to be accepted. What would be the situation if the son is obviously under the tutelage of the father and with this liability of the son, who should be held responsible for his tortious acts? It is not unknown even in our criminal law to hold irresponsible parent liable for the criminal acts of his juvenile child.
It is also significant to note that in the Addae case (supra) the arbitrators did not dismiss the defendant’s action on the basis of non-existence of any rule of customary law but rather on the insufficiency of the facts presented. Whether it is therefore justifiable to enforce this customary notion or not is dependent on the facts of each individual case and as is suggested above where it is not apparent on the face of the evidence that the seducer is responsible for his own affairs an opportunity should be afforded to the father to establish the same. Subject to this limitation therefore I hold the view that this is not one of the areas of the customary law practice which can safely be said to be contrary to “principles of equity, natural justice and good conscience.” The lament of Edusei J. on this aspect of the custom which is shared by learned counsel for the defendants therefore merely calls for a clarification in its application and not a call for a total abolition of the same.
In my judgment therefore I hold on the facts of this case that there is enough evidence to show that the first defendant as a teacher is staying by himself and in control of his own affairs. There is therefore no justification for holding the second defendant, his father who primarily would have been held liable customarily for his seductive conduct responsible on the facts of this case. His appeal is therefore allowed and is exonerated of any liability in respect of the first defendant’s act.
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This brings me now to the last point taken in this appeal. This was an attack on the findings by the trial court as being against the weight of evidence and what constitutes actionable seduction under customary law.
On this leg, learned counsel for the defendants submitted that, the unchallenged evidence produced by the defence overwhelmingly show that the first defendant was not responsible for the pregnancy of the plaintiff s daughter. Counsel contended that the evidence produced by the first defendant and the defendant’s first witness that one Nkrumah was responsible for the plaintiff s daughter’s condition was not challenged in cross-examination and in fact the defendant’s first witness was not cross-examined at all. Counsel therefore submitted that it was imperative for the trial magistrate to have accepted that evidence. The finding by the trial magistrate according to counsel against this unchallenged evidence which was a vital issue in the case was wrong in law.
This submission brings to focus the unorthodox attitude of illiterate litigants in conducting their own cases. More often than not they adopt the attitude whereby one party goes into the witness box and gives his version of the case whilst the other party caring little about cross-examination waits for his turn to put his case across. Under such circumstances as is in the present case, where in a summary trial parties are not represented a strict application of cross-examination rules will always defeat the ends of justice. This attitude of illiterate litigants provoked the following observation by Osei-Hwere J. in Wiafe v. Kom [1973] 1 G.L.R. 24O at p. 244:
“… where a witness testifies on oath on certain vital matters and the opposing side is silent in his cross-examination on those matters he may be implied to have admitted those matters. The strict application of this law, however, can appropriately be tempered in the case of illiterate litigants who are generally not versed in the art and intricacies of cross-examination. It is not uncommon to meet an illiterate litigant whose attitude of mind is to let the other party state his case to the court and bother less with cross-examination so that when his time comes he will also state his case and leave the court to choose which side to believe.”
See also the case of O’Connel v. Adams [1973] R.T.R. 15O, D.C.
The proper test to adopt under such circumstances is to find out whether there is a positive admission of a fact in issue and if not whether there is a contrary evidence from the opposing party’s side. Where there is an issue joined this becomes an issue of fact to be decided on the credibility of the parties and their witnesses. The duty of resolving the issue is one of the trial court’s exclusive prerogative which cannot be assailed if there is evidence to support it. The question to be answered at this stage is how far the findings made by the trial court against the first defendant constitute actionable seduction under customary law?
It is not clear from the case law on seduction what constitutes actionable seduction under customary law; whether it is mere carnal knowledge with
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an unmarried woman or that it should be accompanied by a resultant pregnancy. Almost all the known reported cases involve pregnant girls: see Opoku Boateng v. Aduna [1963] G.L.R. 445; Addison v. Acheampong High Court, Sekondi, 16 July 197O, unreported; digested in (197O) C.C. 77 and Yanney v. Nyamekye, Court of Appeal, 22 December 1969, unreported; digested in (197O) C.C. 34. If the basis for the action is the dishonour done to the family as was held in the Addison case (supra) and support for which is found in Sarbah, then seduction actions founded under customary law should be confined to cases where sexual intercourse results in pregnancy, because it is only then that the dishonour done becomes apparent. If as was held by Edusei J. in the Addison case (supra) seduction constitutes an invasion of the seduced girl’s legal right and therefore vests her with a cause of action then, with respect, seduction is wrongly being equated with rape where want of consent is the gravamen of the offence. This, with respect, cannot be the case because in all the known seduction cases, consent of the seduced girl is not denied. The confusion created by this uncertainty about what actually constitutes seduction actionable under customary law has made it impossible to determine whether one cause of action is maintainable or two. The Addison case (supra) seems to suggest that both the seduced girl and her family are entitled to sue but does not make it clear whether for the same relief or different reliefs. Lassey J.A. in the Nyamekye case (supra) appears to recognise the seduced girl’s cause of action and suggests that either the seduced girl or the family can sue: see Seduction Actions: The Ghanaian Experience by S. K. Date-Bah and A. K. Fiadjoe in (1971) 3 R.G.L. 29 at p. 35. It is respectfully submitted that where the seduced girl becomes pregnant as a result of the seduction falling short of rape, her only cause of action should be limited to her right for maintenance during the period of confinement and that for the child born as a result of it: see Marshall v. Dawson (1885) Sar. F.C.L. 131 and the Opoku Boateng case (supra). Being a consenting party to the act, she cannot complain of an invasion of her legal right, and damages for the dishonour done should be limited to the family.
The facts of this case present no such difficult problem as discussed above. They show beyond doubt that the seduced girl had been put in the family way. The dishonour done to the plaintiff is therefore apparent. The first defendant as the author of the pregnancy not having been able to assail the findings made against him in this appeal, was rightly found liable to the plaintiff in damages. His appeal therefore fails and the same is hereby dismissed with costs of 040 in favour of the plaintiff.
DECISION
Appeal allowed in part.
S. Y. B.-B.
