DIVISION: IN THE HIGH COURT, ACCRA
DATE: 19TH SEPTEMBER, 1963
BEFORE: PREMPEH J.
CASE REFERRED TO
Setse v. Setse [1959] G.L.R. 155
[p.332] of [1963] 2 GLR 331
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION. The petitioner sought the dissolution of her marriage to the respondent.
The respondent raised a preliminary objection to the court’s jurisdiction on the ground that the provisions
of the Marriage Ordinance were not complied with when the marriage was solemnised.
COUNSEL
Awoonor-Williams for the petitioner.
Arthur for the respondent.
JUDGMENT OF PREMPEH J.
On the 2nd March, 1962, the petitioner filed in this court a petition for the dissolution of her marriage
with the respondent herein and for other ancillary reliefs.
After the respondent had been served with a copy of the petition he filed a reply in paragraph 1 of which
he alleged as follows: “The respondent denies that the petitioner and the respondent were lawfully
married under the Ordinance and will contend that the court has no jurisdiction.” When the matter came
up before me on the 23rd August, 1963, for argument to settle this preliminary point, counsel for the
respondent admitted that there was in fact a solemnisation of the marriage between the petitioner and the
respondent by a minister of religion, but after referring to section 31 of the Marriage Ordinance,1 he
contended that the provisions of this section of the Ordinance were not strictly complied with before the
marriage was solemnised and that in those circumstances this court has no jurisdiction to entertain the
petition. [His lordship then read the provisions of section 31 of the Marriage Ordinance as set out in the
headnote and continued:] After considering the effect of this section and the submissions of counsel for
the parties, I took the view that this was a proper case in which I should admit evidence, and I ruled
accordingly and called upon the respondent to begin and to establish that this court has no jurisdiction in
the matter. In support of his contention the respondent called firstly the Reverend Henry Vincent Acquaye
Baddoo, a minister of religion.
It is not in dispute that in the year 1956 he was in charge of the Obuasi Circuit of the Methodist Church
and that he was the minister who celebrated the marriage between the petitioner and the respondent in that
church, and there can therefore be no question that his evidence in this case is very important indeed.
His evidence is to the effect that before he celebrated the marriage between the petitioner and the
respondent, which he did on the 19th February, 1956, he never obtained from any of the parties a
registrar’s certificate, nor a licence issued by the principal registrar of marriage, nor did he himself issue
any marriage officer’s certificate as required by section 31 of the Marriage Ordinance2 He emphasised
that since his ordination many years ago, he has never himself issued a marriage officer’s certificate prior
to the celebration of any marriage he had solemnised.
It is to be observed that according to Schedule 1 of the Marriage Ordinance, such a marriage officer’s
certificate is issued either on a Form I or a Form J. Continuing his evidence, this witness deposed that sometime before the 19th February, 1956, the date on which he celebrated the marriage between the parties, he received a notice of the intention of the parties
to go through a ceremony of marriage by a letter which the respondent sent to him through the petitioner,
and that although he saw on a receipt issued to the petitioner that banns of the marriage had been filed in a
court in Kumasi, yet the registrar’s certificate which he knew to be an essential requirement precedent to
the celebration of the marriage was not produced, but that he, nevertheless, celebrated the marriage upon
the word of the respondent (which he believed) who told him that when he went to the court for the
registrar’s certificate he was not given one, but was assured that since he (the minister) had published the
banns in his church on three consecutive Sundays, he could celebrate the marriage without that document.
He agreed that after the celebration of the marriage he issued a certificate of the marriage, a copy of
which has been admitted in evidence and marked exhibit 2. Now in so far as his evidence concerns the
issue whether or not he issued a marriage officer’s certificate prior to the celebration of the marriage, such
evidence has been seriously challenged by the petitioner who has put in evidence marked exhibit 1 a
marriage officer’s certificate purported to have been issued to her on a date prior to the solemnisation of
the marriage. This certificate is dated the 7th February, 1956, and although it is the duplicate of a
marriage officer’s certificate in the Form I in Schedule 1 of the Marriage Ordinance, yet it bears the
signature of the minister, and it is the contention of the petitioner that although this certificate was only
recently given to her, yet the date thereon bears evidence that it had been issued prior to the celebration of
the marriage.
It has been admitted by the minister who celebrated the marriage that the signature on exhibit 1 is his, but
he denied emphatically that he made and signed it prior to the celebration of the marriage and in
cross-examination by counsel for the petitioner he testified to the incident which led him to sign this
document. He said:
“A. Exhibit 1 was not issued and signed by me before the marriage was celebrated, although it bears the
date the 7th February, 1956.
Q. How did you come about to issue exhibit 1 to bear this date, the 7th February, 1956?
A. I have in my possession a letter from the father of the petitioner dated the 24th February, 1963. This
was tendered and marked exhibit A. He is called Mr. James Afuakwa. I received it in February 1963.
The letter speaks for itself, but the purport of it is that there is a dispute between the petitioner and the
respondent as to their marriage and that I would be required to give evidence. When I had this letter I
requested the brother of the petitioner to proceed to Obuasi and obtain all necessary documents in
connection with the marriage. Consequent upon this request, Mr. James Afuakwa brought me exhibit
1 duly
[p.334] of [1963] 2 GLR 331
completed but without my signature. Accordingly I signed it. At the time that I signed exhibit 1, I did
not know that I had made a mistake; but on the 4th June, 1963, after a sitting of this court I went to
the office of the Registrar-General to check up whether I actually issued this Form before I celebrated
the wedding at Obuasi. I went there to check up because exhibit 1 purports to be a copy from the
office and record of the Registrar-General. The Registrar-General showed me his record in connection
with this marriage. His record only showed the duplicate of the certificate of marriage which I issued
immediately after the celebration of the marriage. When I made this discovery at the office of the
Registrar-General, the petitioner and her brother, Mr. James Afuakwa, were present and they saw the
record themselves. Upon enquiry from them whether that was what they meant by this exhibit 1 they
said yes. It was then that I realised that I had made a mistake in signing exhibit 1. My doubts then
became clear that I never issued any marriage officer’s certificate prior to the actual celebration of the
marriage …
A. I think I received about two or three of the forms like exhibit 1; all had been duly completed but not
signed …
A. I did sign all these two or three of these forms …
Q. Why did you have to sign all?
A. They were brought to me by a young man who said he had been sent by Mr. Afuakwa.”
I have given very careful consideration to the evidence of this witness who has told the court everything
he knows about this case however adversely his evidence affected the case of the respondent who called
him. He has impressed me as a witness of truth and I accept his evidence as to how he came to sign
exhibit 1, and I do find that exhibit 1 was not made by the minister prior to the celebration of the
marriage.
I am fortified in this view upon the evidence of the respondent’s second witness, which I accept, that the
brother of the petitioner, Moses Afuakwa, went to him in October 1962 for the church’s marriage book,
exhibit B, from which exhibit 2 was issued and asked also for a blank form. He stated that upon giving
Afuakwa a blank form 1, he indicated that that was not the one he wanted, and he then referred him to the
district commissioner, but nevertheless Afuakwa took away from him that blank form of the type of
exhibit 1.
In the normal course of things, it would appear that it was improper for the resident Methodist minister in
charge of the Obuasi Circuit to have parted with these important official church records in that way, but
his explanation, whether plausible or not, is that he handed these documents to the petitioner’s brother,
Afuakwa, because he was at the time a school master of one of the Methodist Mission Schools in the
Obuasi area, and also one of the leaders of the church. In any event, this piece of evidence was not in any
way challenged by the petitioner.
The question may well be asked: Why did the petitioner’s brother want these blank forms, and to what
use did he put the one which he obtained from the resident minister of the Obuasi Circuit?
[p.335] of [1963] 2 GLR 331
Now if the minister who celebrated the marriage never received or made any of the documents required
by the provisions of section 31 of the Ordinance prior to the celebration of the marriage, the question may
again be asked, but what about the receipt which was produced and shown to the minister before he
solemnised the marriage?
In this regard the evidence of the principal registrar of marriages who was called by the respondent is
important. He stated as follows:
“Before someone can obtain a registrar’s certificate, he must first give notice of his intention to contract such
a marriage to the registrar. For giving that notice he pays a nominal fee of three shillings and six pence and is
given a receipt. Having given notice of his intention and having paid the fee, the notice is posted on the
notice board for 21 days. If no caveat is entered within that period of 21 days the party giving the notice must
swear to an affidavit that there is no lawful impediment or hindrance to such a proposed marriage. After he
has sworn to that affidavit the registrar issues a certificate to him. After the issue of the registrar’s certificate
the marriage should be celebrated within three months. If that is not done the certificate lapses.”
It can be seen from this evidence that even if the respondent produced and showed a receipt to the
minister who celebrated the marriage that is of no consequence whatsoever; what the minister should have
first obtained before the celebration of the marriage was the registrar’s certificate and not a mere receipt.
Counsel for the petitioner then made a last gallant bid to save the situation by referring to exhibit X which
is a copy of a record of marriage certified by the principal registrar of marriages, and submitted that by
virtue of section 41 of the Ordinance that was admissible evidence that there had been a marriage under
the Ordinance. There can be no doubt that this document, exhibit X, raises a presumption that there had
been a marriage under the Ordinance, but that is evidently a rebuttable presumption, and on the evidence I
am satisfied that this presumption has been rebutted.
I am satisfied on the evidence and I do find that no registrar’s certificate nor a principal registrar’s licence
was received by the minister as is required by section 31 of the Ordinance before he celebrated the
marriage, and I find further that he himself did not issue a marriage officer’s certificate in accordance
with the said section 31 of the Marriage Ordinance.
It has been finally contended on behalf of the petitioner that since after the celebration of the marriage a
certificate in Form C in Schedule 1 of the Ordinance (which is exhibit 2) was issued to her, that was proof
that their marriage was celebrated under the Ordinance.
In the case of Setse v. Setse3 there was just a blessing of a marriage between the parties, and after the
ceremony of the blessing the officiating minister issued to them a certificate of marriage under the
Ordinance, but upon a petition by one of the parties for an order for the restitution of conjugal rights, the
High Court, Ho, held that since the parties were not
[p.336] of [1963] 2 GLR 331
married under the Ordinance the fact that such a certificate had been issued could not change the
character of the marriage, and that it had no jurisdiction to hear the petition. In my view, that case was
rightly decided.
In this case, since the provisions of section 31 of the Ordinance were not complied with, it is my view that
the fact that after the celebration of the marriage, a marriage certificate was issued to the parties cannot
alter the position.
In the result I do hold that since the mandatory provisions of section 31 of the Marriage Ordinance were
not complied with before the marriage was solemnised, there was no marriage under the Ordinance and
that therefore this court has no jurisdiction to entertain the petition. The petition is accordingly dismissed.
I make no order as to costs.
DECISION
Preliminary objection upheld.
Petition dismissed.
K.T.
