Division: IN THE HIGH COURT, ACCRA
Date: 4 NOVEMBER 1964
Before: SOWAH J
JUDGMENT OF SOWAH J
The petitioner asks for a declaration that the marriage celebrated between the respondent and himself is null and void on the grounds that at the date of the celebration of the marriage there was a valid and lawful marriage subsisting between himself and one Rose Amoah.
The respondent disputed the averment in the petition and herself cross-petitioned for the dissolution of the marriage on the grounds of cruelty and adultery.
The petitioner, who struck me as a person of intelligence with a considerable grasp of the English language, told the court that on 7 November 1959 he went through a form of marriage with the respondent, the former Cecilia Akoto, at the offices of the then Municipal Council. He stated that the provisions of the Marriage Ordinance,1 which are normally read to persons entering into matrimony before the registrar were read to him before the marriage. He also told the court that he had already been married under customary law in 1950 to one Rose Amoah with whom he has had children and who continued to bear him children after the Ordinance marriage; this customary union not having been dissolved. In addition to the wife he kept a concubine who was also bearing him children. According to him, the respondent and her father were aware of all of these matrimonial incumbrances.
In spite of the petitioner’s legal incapacity in this respect, the respondent requested him to go through a form of marriage, which I have no doubt in my mind the petitioner knew to be bigamous and offended against the law of the country. He tendered a note to show that the respondent arranged what he termed a roster for the wives of the petitioner including herself. This note was tendered to show that the respondent was not only aware of the presence of a wife and concubine but also actively connived at a flagrant disregard of the law.
The petitioner was vigorously cross-examined by counsel for the respondent in order to show that the respondent was not aware at the date of the performance of the marriage of the subsistence at that date of the customary marriage to Rose Amoah and that the petitioner in fact made representations that the marriage between Rose Amoah and himself had been dissolved.
Unfortunately the respondent has declined to offer evidence in support of her cross-petition and the allegations contained therein.
I am constrained therefore to ignore the allegations in the petition and to accept the answers given in cross-examination in denial of the averments in the respondent’s answer and cross-petition.
Though I have borne in mind the possibility of collusion between the parties in view of the respondent’s conduct in not offering evidence, yet I find the evidence in support of the petitioner’s petition strong.
The petitioner has seven children by Rose Amoah and the interval between the births of the children appear to be between two to three years. The interval between the births of the fifth and sixth children follow the same pattern. The fifth child was born on 5 October 1959, a month or so before the marriage ceremony was performed between the parties herein. The sixth child was born on 1 November 1961, barely two years after the ceremony of marriage.
It appears from the above facts that the presumption of the continuance of marriage by custom of the petitioner to Rose Amoah is so strong that in the absence of evidence in rebuttal I am obliged to hold that the said marriage was subsisting when the petitioner and the respondent went through a form of marriage in the registry.
I do not consider it out of place to comment on this petition. As said before the petitioner is a man of considerable intelligence, of considerable means and with a considerable grasp of the English language. The petitioner at the time of going through the ceremony of marriage was nearly twice the age of the respondent. From his own account he was aware of the subsistence of the marriage, was without doubt aware that he was contracting a bigamous marriage, and further knew that his conduct offended the law on these points. He wants the court to believe that his partner in crime was his young paramour on whom he lavished well over a £G1,000 for her to be polished and fashionable. I have formed the impression that the petitioner was on these matters the lord and master of his household and imposed his will on all around him. One has just to look at the evidence: the duty roster and the affidavit in which the respondent
has shamelessly been made to advertise her promiscuity and repentance. No woman with any will power of her own and any sense of pride in her femininity could be made to swear to this affidavit. The respondent certainly appears to be under the influence of the petitioner. In my view the petitioner entered into the form of marriage recklessly and knowing it to be bigamous, but careless of the consequences. I consider the petitioner’s conduct in this affair blame-worthy and callous.
I have, however, no option but to grant the declaration sought. There will be a declaration that the marriage celebration between the petitioner and the respondent is null and void and of no effect. I will award costs of 40 guineas to the respondent. The issue of maintenance is adjourned sine die for an agreement to be recorded.
DECISION
Marriage declared null and void.
T. G. K.
