HIGH COURT, TAMALE
DATE: 26 MAY 1971
KORANTENG-ADDOW J.
NATURE OF PROCEEDINGS
APPEAL from a decision of a grade II Magistrate’s court ordering the appellants to return their daughter in marriage to the respondent or else pay damages claimed by him. The facts are fully set out in the judgment.
COUNSEL
Y. Mahama for the appellants.
A. Luguterah for the respondent.
JUDGMENT OF KORANTENG-ADDOW J.
The respondent was married to the daughter of the appellants under the customary law of the Frafras. He had one child by his wife but for some reason the marriage broke down. According to custom, therefore, the girl brought the matter to the notice of her parents and requested them to go through the formalities for the dissolution of the marriage. The parents contacted the parents of the husband on the matter asking them, as custom demanded, for the return of their “calabash.” (This euphemism is the symbolic language for asking for the return of their daughter who in this graphic language is analogised to that common receptacle — the calabash.) According to Frafra custom, the return of the calabash constituted a dissolution of the marriage. The return of the calabash is a privilege of the husband, that is, the husband’s family, never that of the wife’s. If the request is met the marriage is brought to a peaceful end. But there are occasions when the husband may refuse to meet the demand for the return of the calabash. On such occasions, according to the custom, the wife, or in fact her family, may then unilaterally consider the marriage to have come to an end.
[p.418] of [1971] 2 GLR 416
Matters in this instant case would seem not to have taken the smooth course. The request for the return of the calabash was not met. The first appellant deposed in his evidence that, “when we informed the plaintiff’s father, he told us that he would contact the plaintiff. Later, the plaintiff’s father told us that the plaintiff did not accept the divorce.” This was the explanation he gave for the steps he took later by giving his daughter away in marriage to another man. This explanation meant that upon the refusal of the respondent to return the calabash the first appellant had considered the marriage between his daughter and the respondent to have been dissolved. He therefore considered himself free to give his daughter away once more.
This action was instituted by the respondent, the husband of the appellants’ daughter, against her parent claiming “N¢300.00 damages for giving his lawful wife in marriage to one Victor Shandow.”
The appellants pleaded liable with explanation. The explanation they gave is as follows: “That there was a case which ended and later the girl in dispute called me and told me that she was no longer interested to marry the plaintiff. I accompanied the wife of the plaintiff to the plaintiff’s father to inform him that she was no more interested in the plaintiff. Having heard that, I could not force her to marry the plaintiff, because the woman was interested in him and married him, but since, she has chosen to refuse him, and I cannot do anything. That is the reason why I gave her out in marriage. “
The trial magistrate did not find this explanation good enough and therefore entered judgment against the appellants. In his view “the defendant’s [appellants’] reason for giving the woman out for marriage [was] not in accordance with our traditional marriage.” He considered that the defendants’ action would have been justified only if “the plaintiff failed to give them dowries.” or “if the plaintiff came and told them that he would no longer marry their daughter.” He therefore ordered “the defendants to return plaintiff’s wife to him or pay the damages claimed by him so that they would compensate him for all inconveniences created by them by taking his wife from him uncustomarily.” He ordered the judgment to be executed within 21 days.
It is from this decision that an appeal was brought to this court. The appellants filed five grounds of appeal, argued grounds one and three and abandoned the rest. Ground one says, “the plaintiff failed to prove his case against the defendants” and ground three reads, “the learned magistrate erred in holding contrary to Frafra custom that the plaintiff is entitled to damages from the defendants who are the parents of Josephine Tenni.”
The argument of Mr. G. Y. Mahama, learned counsel for the appellants contended that at the time the appellants gave their daughter away the second time they regarded the first marriage, that is to say the marriage
[p.419] of [1971] 2 GLR 416
between their daughter and the respondent, to have been dissolved. The conclusion reached by the defendants, as contended, was in strict conformity with the customary law. The trial magistrate was therefore wrong in holding, as he did, that the appellants were liable. He submitted that, at worst, all the trial magistrate could have ordered was the payment of whatever expenses the respondent made in connection with his marriage. A claim for damages in these circumstances, learned counsel argued, is unknown to the customary law.
Mr. Luguterah, learned counsel for the respondent, in his reply accepted the principles of the customary law put forward by counsel for the appellants as stated above. But he argued that since the evidence or rather the explanation of the appellants made no mention of the “middle-man,” the customary go-between, as the person who conveyed the message of the appellants concerning the dissolution of the marriage to the respondent’s family, the message must be taken not to have reached the respondent.
The thin line of difference separating the rival claims or contentions of the parties, therefore, is the functions of that customary institution of the Frafra’s and, in fact, of most of the tribes of this part of Ghana, the “go-between.” A “go-between” is a person in the locality of the spouses who knows intimately the two families which are about to be united by the marriage. He is regarded (if one is to be pardoned for a little solecism) as the alpha and omega as far as the marriage is concerned. It is he who conveys the good tidings of the proposed marriage to the parents of the girl, the person who takes the dowry to the girl’s parents, the person through whom complaints are channelled, and the person through whom the ultimate evil news of the dissolution should pass.
Should the contention of learned counsel for the respondent be upheld, the defence put forward by the appellants would not be sustainable. I do not feel convinced, however, that the contention of learned counsel for the respondent is sound in law. In my view it offends against the ordinary norms of common sense. However useful this institution of “go-between” is, I do not see myself accepting a contention that if information is received by one party in these marital matters, such information should be regarded as not having been received merely because it did not pass through the lips of the go-between. The utility value of such an institution should, in my view, be weighed on the scales of expediency rather than on the adherence to mere formality.
The evidence on record shows that the request for the dissolution reached the parents of the respondent and that the message was conveyed to the respondent but that he refused to return the calabash. The appellants were therefore, in my view, justified in regarding the marriage as dissolved. The respondent, in my judgment, has himself to blame for his intransigence.
The conclusion reached by the trial magistrate would seem to be based on a rather truncated view of the customary law and must necessarily
[p.420] of [1971] 2 GLR 416
be wrong. It creates a situation under which the female spouse is never, under the customary law, permitted to initiate divorce proceedings. The message it bears is that no marriage can ever be dissolved under Frafra customary law unless it pleases the husband to dissolve it. That view cannot be correct.
The payment of damages by a losing party in a law suit is, in my view, a foreign concept: all the customary law knows is the payment of expenses incurred and the return, in appropriate circumstances, of all the personal things bought for a spouse. These are demanded at the dissolution of the marriage in addition to the return of the dowry. The claim made by the respondent and the judgment based upon it are therefore, in my judgment, both bad in law. The order made for the return of the wife or the payment of the damages within 21 days would seem to be blind to the fact that the wife is not a mere chattel but a human being with rights equal to those of the husband. The order for the payment of the damages awarded within that same period does not seem to appreciate that the function of a court is only to give its decision on a claim before it and to leave the winning party to pursue his remedies for the enforcement of the judgment.
The only other matter I should advert to is the question of the plea of the appellants. The plea of liability and the explanation given by the appellants, in my view, cancel themselves out. The trial magistrate should, therefore, in such circumstances, have allowed the trial to proceed and should have made the respondent prove his case normally.
The procedure of taking the plea of a defendant in a civil suit which was part of the procedure of the native courts has no place in the procedure of the English orientated courts of the country. There is in fact no provision for that in the procedure of the district magistrate’s court of which the grade II court is now a part.
On the above premise I would allow the appellants’ appeal, set aside the judgment of the trial magistrate together with the orders made (and discussed above) and the order for costs. In their place I would substitute a judgment for the appellants with costs in this court assessed at N¢40.00 and the costs at the court below at N¢12.20.
DECISION
Appeal allowed.
Judgment of trial court set aside. J. D.
