COURT OF APPEAL, ACCRA
Date: 3 MARCH 1975
LASSEY, SOWAH AND FRANCOIS JJ.A
CASES REFERRED TO
(1) Asumah v. Khair [1959] G.L.R. 353, C.A.
(2) Re Caveat by Clara Sackitey [1962] 1 G.L.R. 180.
(3) Maritime National Fish, Ltd. v. Ocean Trawlers, Ltd. [1935] A.C. 524; 104 L.J.P.C. 88; 153 L.T. 425; 79 S.J. 320; 18 Asp.M.L.C. 551; 51 LI.L. Rep. 299, P.C.
(4) Mount v. Oldham Corporation [1973] Q.B. 309; [1973] 2 W.L.R. 22; [1973] 1 All E.R. 26; 71 L.G.R. 105, C.A.
NATURE OF PROCEEDINGS
APPEAL against the judgment of a circuit court condemning the appellant in damages for breach of contract to marry. The facts are set out fully in the judgment of Francois J.A
COUNSEL
Ahenkora for the appellant.
J. C. Armah for the respondent.
JUDGMENT OF FRANCOIS J.A.
This is an appeal from the decision of the Circuit Court, Accra, whereby the appellant was condemned in damages in the sum of ¢2,000.00 for breach of his promise to marry the respondent. The facts may be shortly stated.
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The respondent is a school teacher and the appellant a businessman. After an initial attraction for each other they exchanged vows to seal their relationship in marriage. The appellant appears to have been the prime mover in this attempt to regulate their relationship into something of permanence. To this end, he sent to the family of the respondent, gifts of money, drinks, a ring and a Bible. There is no denial that thereafter the respondent allowed herself to be seduced by the appellant. The couple later set up a home and cohabited together. The respondent abandoned her avocation as a teacher of domestic science and waited expectantly for the joyful day. There were four postponements of the marriage ceremony, all at the instance of the appellant. In each case a plausible excuse was given for fixing a new date in futuro, meanwhile the appellant disported with fair damsels. Unfortunately this dalliance was not discreet. An outcome was the birth of a child for the appellant by a woman living next door. But there were other equally serious indiscretions. The respondent learnt of an address where the appellant held clandestine court. She hied to the rendezvous and caught her loved one in another’s embrace. There was a scene. The load of indignities had reached the zenith. The respondent packed bag and baggage and left the joint
home. Not long after the proceedings which have culminated in this appeal were commenced. An initial issue for determination in this appeal, is whether there was a promise from the appellant to marry the respondent in accordance with the western monogamic concept of marriage, that is, one man to one woman to the exclusion of all others, as reflected in marriage under our Marriage Ordinance, Cap. 127 (1951 Rev.). The pleadings make no attempt to clarify the position. This is unsatisfactory. Deficient though the respondent’s pleadings are in this respect, the evidence she led, supported by her witnesses, consistently throughout, was to the effect that the agreement was to marry under the Marriage Ordinance. The reception of this evidence was not questioned at the trial and was accepted by the court below. There is no reason why this court should differ on this issue.
When this appeal was argued, counsel for the respondent essayed to defend his pleadings by asserting that breach of promise of marriage was unknown in customary law and therefore a suit for breach could only refer to a common law breach. Consequently it was unnecessary to relate the breach to marriage under the Ordinance. After propounding such a profound legal point, counsel’s subsequent diffidence in advancing the submission, was to say the least, disappointing. No serious foray was made to support the argument with authority, and the forensic spring dried up even before it could well up.
The point, however, is interesting and worth fuller consideration at a more opportune occasion. Meanwhile it will suffice to say that it is arguable. For Sarbah in his Fanti Customary Laws (3rd ed.) at p. 46 states:
“He who desires a woman, whether maiden or widow, in marriage, must apply to her family, or person or persons, in loco parentis, for consent, and without such application and consent there can be
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no betrothal. Nor is there any remedy for breach of promise of marriage. If a man fail to marry a woman for whose hand he had applied, or if such woman refuse to marry him, or her family withdraw their consent, no action arises, and no damages are incurred by the person in default, who, however, forfeits any consawment or anything given to the other.”
(The emphasis is mine). The older authority of Sarbah is however challenged by the recent researches of Professor Allott. In his Essays in African Law, published in 1960, the learned author says at p. 223. “Breach of a bare promise to marry which has not led to the establishment of the betrothal-status often involves no legal liability to compensate.
Ghana customary laws conform to the general pattern in this respect. Actions for breach of promise of marriage are found in the native court records. In one such case, the claim was for compensation for special expenses incurred as a result of the promise. In another case the plaintiff was a man who had been disappointed of his future bride . . .
The native court held that there was insufficient evidence of a promise to marry.”
(The emphasis is mine.) Further discussion of this issue will be purely of academic relevance as there is overwhelming evidence that the marriage contemplated by the parties was of the Christian monogamic variety. The debate must therefore be left for a future occasion.
Turning then to the issue of the form of marriage the parties intended to celebrate, it would be observed that the appellant led evidence in the court below of the gifts he sent to the respondent’s family alluded to before. He claimed however that their subsequent cohabitation was evidence of marriage under Ga customary law. But neither the appellant nor his witnesses appeared to know the requisite formalities of a Ga customary marriage. The appellant’s witness, Emma Akrofi, was honest however to admit that the ceremony she took part in, amounted to no more than an engagement. There is unassailable evidence that the family of the respondent kept pressing not only the appellant but also his messengers to nominate the day for the marriage. These importunate demands for a wedding date were neatly side-stepped by pleas of ignorance of the appellant’s intent, and promises to convey the wishes of the respondent’s family to the appellant.
The gifts of a ring and a Bible are also significant, for rings and Bibles are unknown in customary marriages. They are essentially Christian symbols and in concept denote an intention to marry in a Christian monogamic fashion.
The postponements of the marriage at the appellant’s behest imply a willingness to marry at a future date. If the appellant claimed he had already married the respondent according to Ga customary law then the logical conclusion to be drawn from the facts was that the postponement was in relation to marriage under the Ordinance.
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It should be seriously asked if marriage had been concluded and no obligation remained to be performed by the appellant, what further promise was the appellant making and in relation to what ceremony?
It seems to me appropriate to consider at this stage the constituents of a valid Ga customary marriage through two cases. First, Asumah v. Khair [1959] G.L.R. 353, C.A. The report gives the first holding at p. 354 as follows:
“(1) that where a man desires to marry, he applies to the woman’s family for consent, taking to them certain customary gifts which vary according to his means. If the family give their consent by accepting the gifts, that concludes a marriage valid in customary law.”
That holding is the learned editor’s paraphrase of the judgment and I would respectfully state it goes wider than the actual judgment. For at p. 357 of the report the Court of Appeal stated that a necessary inference of marriage would arise: “Where a man has obtained the consent of a girl’s family, and has completed the marriage by making the token gift … “ (The emphasis is mine.) Short as the passage is, it cannot be said to discount the various steps including the betrothal, which lead to marriage. I do not think either that the dividing line between engagement and marriage under customary law should be blurred. In Asumah v. Khair (supra) A. had performed all the necessary customary rites of marriage, so the issue was whether K. stepped into A.’s shoes in relation to the marriage after paying the expenses borne by A. at the insistence of the girl’s family and with the consent of A. The decision that K. was validly substituted for A. cannot be doubted as right. “
The other case that may with profit be discussed is Re Caveat by Clara Sackitey [1962] 1 G.L.R. 180. The question in the Sackitey case revolved around the issue whether there was a subsisting customary marriage to bar a prospective Ordinance marriage to another woman. The requisite of a valid customary marriage were considered by Ollennu J. (as he then was). He gave the following essentials at pp. 181-182:
“(a) consent by the two parties that they would live together as man and wife;
(b) consent by the family of the man that he should have the woman to his wife; that consent may be actual, i.e. by the family of the man going to the family of the woman formally to ask for her hand, or it may be constructive, i.e. by the family of the man recognising the woman as a wife of the man and admitting her and her family to performance of customary rites for their family, e.g. funeral rites when there is bereavement in the man’s family.
(c) consent of the family of the woman that she should have the man for her husband, this consent too may be actual, ie. where the family of the woman accept drinks offered by the family of the man, or it may be constructive, i.e. by acknowledging the man as husband of the woman, and admitting him and his
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family to perform customary rites for their family, e.g. funeral rites on occasion of bereavement in the woman’s family, and
(d) consummation of the marriage by cohabitation.”
In the Sackitey case there was evidence of the performance of the Adangbe Fiapun ceremony which allegedly constitutes a valid marriage by Krobo custom.
In the present case the evidence is overwhelming that the family of the respondent kept asking when the marriage was to be concluded. No marriage custom had been performed. Mere cohabitation of the parties therefore was not conclusive of the issue of marriage.
The impression that customary marriages require very little ceremony and are only a shade above concubinage must be decried. With very great respect this interpretation of the custom is not in accord with the older authorities. There are clear lines of cleavage, discerned in the authorities, between concubinage, friendly alliances, engagement or betrothal and marriage. In any of these cases cohabitation may take place with the consent of parents, and yet not necessarily amount to marriage. Sarbah carefully draws the distinction between betrothal and marriage. (See Sarbah, Fanti Customary Laws (3rd ed.) at p. 45). That these distinctions are necessary, becomes apparent when issues relating to status, and succession arise for determination as many persons have found to their grief.
In Ghana there are various forms of marriage within the various ethnic groups. In Ashanti where the appellant belongs, there appears to be at least six forms of a valid customary marriage: see Rattray, Ashanti Law and Constitution (2nd impress. 1956) at p. 23. In Asumah v. Khair (supra) at p. 356 it was even there acknowledged that various forms of Ga customary marriages exist: see p. 356 of the report. It would seem prudent therefore for a man seeking the hand of a woman from an ethnic group different from his own, to inquire about the formalities requisite for validating the marriage of his adoption. That this was not done and furthermore since no further ceremony was performed, one is left without any doubt that even by Ga custom the appellant was in breach of his obligation to marry.
Counsel for the appellant, quite undaunted by the facts, raised two issues. First he, argued that in so far as there had been postponements of the marriage by the appellant and the respondent had restrained her hand and not sued immediately, she must be deemed to have waived any rights which any breach gave her. The inconsistency of approbation and reprobation, was urged against her. The second argument was that since the respondent created a scene when she discovered the appellant in the compromising embrace of a girl friend, she must be held herself to have induced the breach or at any rate to have introduced the element of frustration.
As to the issue of waiver, it must be recalled that after each postponement the appellant fixed a new date. The respondent in the tolerant
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frame of compromise to which women are wont to succumb when the marriage carrot is dangled before their eyes, accommodated the appellant, trusting that he would honour the new dates. The postponements occurred between 1969 and 1972. The time lag does not suggest waiver. Again, after each postponement, there was a new promise to marry or an affirmation of the agreement to marry. The respondent’s willingness to marry on the day ultimately fixed is a sufficient consideration to support a fresh promise or a continuing promise by the appellant, to marry her on that day. The reciprocity was sufficient consideration. In my view the justness of the respondent’s cause would have been sadly punctured if she had sued the first time the appellant failed to fulfil his obligation to marry. Emotions were involved and the spirit of compromise which the respondent demonstrated in accommodating the appellant was commendable and could not amount to a waiver.
The second argument of counsel for the appellant was that the scuffle a trois which took place on 17 June 1972 and which led to the respondent leaving the joint home, brought the relationship of the parties to an end. The marriage could therefore not be celebrated as that desired object had been frustrated. The proper application of the doctrine of frustration is in commercial contracts. But even stretching the doctrine to this case, the evidence on record, adumbrated before, shows that the appellant was of a flirtatious disposition. Though no moral judgment is passed on his promiscuity it must be underscored to show that the chain of circumstances leading to the scuffle were of the appellant’s own making. The scuffle was only the culmination of a course of conduct which showed a callous disregard of the affections of an intended spouse. That it happened so very early in their relationship must give the lie to the seriousness of purpose of the appellant to marry the respondent; the fact that the appellant pursued his other affections with irresponsible zeal is a further index of the quality of his affections towards the respondent. Where a course of conduct, calculated to shock and distress is, relentlessly pursued in, it is pure humbug to disclaim any part in the eventual outcome. The argument of frustration lies very ill in the mouth of the appellant. If there was frustration it was self-induced and cannot avail the defendant. See Maritime National Fish, Ltd. v. Ocean Trawlers Ltd. [1935] A.C. 524 at p. 530, P.C. where it was held that “the essence of `frustration’ is that it should not be due to the act or election of the party.”
Even in the best regulated households, fights and disagreements do occur; they cannot be said to be so fundamental as to frustrate a marriage agreement. Furthermore for a defence of frustration to lie, it must be expressly pleaded and with particularity. As was said by Edmund Davies L.J. in Mount v. Oldham Corporation [1973] 1 All E.R. 26 at pp. 29-30, C.A.: “In my view, on the exiguous evidence presented, no proper foundation was laid for a finding that frustration of the contract had been established by the defendants, on whom lay the burden.”
I can see nothing on the record that remotely suggests that the respondent has been guilty of a fundamental aberration going to the root of her relationship with the appellant and destroying it, to entitle the appellant
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to hold himself as discharged from any further obligation. Both contentions are clearly unmeritorious.
As to damages, I would have thought that in these egalitarian days of women’s liberation, a modest sum taking account of the changed status of the fair sex, would have been a fitting solatium. The law, however, evolves slowly, always a step behind modern thought. It cannot be rushed. The principle on which the circuit judge assessed damages cannot be faulted; perhaps it is for that very reason that no formal appeal was lodged against damages. In those circumstances it would be wrong to impeach the assessment.
I would accordingly dismiss the appeal and affirm the judgment of the court below.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF SOWAH J.A.
I also agree.
DECISION
Appeal dismissed.
S. E. K.
