IN RE KWANTSIWAH (CAVEATRIX); KWANTSIWAH v. EFFIRIM-BOTCHEY AND ANOTHER [1968] GLR 1114

DIVISION: COURT OF APPEAL

DATE: 16 DECEMBER 1968

BEFORE: AKUFO-ADDO C.J., OLLENNU AND AMISSAH JJ.A.

NATURE OF PROCEEDINGS

APPEAL against the removal of a caveat. The facts are sufficiently set out in the judgment of Ollennu J.A.

COUNSEL

J. Arthur for the appellant.

A. Forson for the respondent.

JUDGMENT OF OLLENNU J.A.

This appeal is from an order of the High Court, Sekondi, removing a caveat entered by the appellant against a marriage intended to be celebrated under the Marriage Ordinance, Cap. 127 (1951 Rev.), in the Methodist Church, Sekondi, between the respondent and one Madam Beatrice Mensah. The caveat was entered in pursuance of section 24(1) (a) of the Marriage Ordinance, Cap. 127 (1951 Rev.), by notice served upon the superintendent minister of the church. The grounds of her objection to the marriage are contained in an affidavit sworn to by the caveatrix on 4 April 1966, a copy of which was served upon the respondent. Section 25 (1) of the Ordinance provides that whenever a caveat is entered, the marriage officer, in this case the superintendent minister of the Methodist Church, Sekondi, “shall without delay refer the matter to a Judge.” It is not clear on the record how the caveat came to the notice of the court . However the endorsements [p.1116] of [1968] GLR 1114 on the affidavit of the caveatrix show that a copy of it was to be served upon the superintendent minister of the Sekondi circuit of the Methodist Church, and copy of it upon the registrar of the High Court. On 3 May 1966, the respondent filed in the High Court, an affidavit sworn to by him on the same day, in opposition to the caveat. On the same 3 May 1966, the High Court, acting in pursuance of section 25(3) of the Ordinance, issued summons upon the parties to the intended marriage and upon the caveatrix, the appellant, to appear on 5 May 1966, and calling upon the caveatrix to show cause why the marriage should not proceed. In his return of service, the bailiff stated that he was unsuccessful in effecting service upon the caveatrix, and that he was told by an inmate of her house at Apam that she had travelled and it was not known when she would return. Upon the case being called, the learned judge removed the caveat, and said: “It is strange that the caveatrix has not found it fit to prosecute her caveat. If she were keen she would have followed it up. I removed the caveat.” Two grounds of appeal were filed, and were argued together they are:

“(a) That the learned judge was wrong in removing the caveat without hearing both parties.

(b) The learned judge having been made aware that the caveatrix had not been served with a hearing notice he ought not to have heard the case. The hearing was therefore a nullity.”

Section 25(2) and (3) of the Marriage Ordinance, Cap, 127, provide that:

“(2) If a Judge is of opinion that no legal ground has been disclosed in the caveat for forbidding the issue of the certificate, he may remove the caveat in manner hereinafter prescribed without requiring any of the parties to appear.

(3) In other cases the Judge shall summon the parties to the intended marriage, and the person by whom the caveat has been entered, and shall require such last-named person to show cause why the registrar or marriage officer, as the case may be, should not in due course issue his certificate.”

Learned counsel for the appellant submitted that the summons to the parties must have been issued by virtue of section 25(3), and is an indication that the learned judge was satisfied upon the affidavits that there was a triable issue which he must resolve upon hearing the parties. We agree with that view. Counsel for the appellant then submitted that since by the return of service made by the bailiff, it [p.1117] of [1968] GLR 1114 was made to appear to the court that personal service could not be conveniently effected upon the caveatrix, the court should have availed itself of the powers given to it by Order 10, r.1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), suo motu, to make an order for substituted service. He submitted that the failure of the court to have the appellant served with notice to prosecute her caveat rendered the proceedings a nullity; and the order removing the caveat, void. He cited Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. to support his submissions. Whilst conceding the force of the submissions advanced by his learned friend, learned counsel for the respondent contended that those weighty arguments are irrelevant, because the caveat was not before the court, and therefore the issue of the summons under section 25(3) was null and void. He drew attention to the mandatory provision of section 25(1) that:

“25. (1) Whenever a caveat is entered against the issue of a registrar’s or marriage officer’s certificate, the registrar or marriage officer, as the case may be, shall without delay refer the matter to a Judge of the nearest Divisional Court.”

He pointed out that there is nothing on the record to show that the superintendent minister with whom the caveat was lodged referred the same to the judge of the High Court, therefore the High Court had no jurisdiction to issue the summons, consequently the summons itself and all subsequent proceedings thereon are null and void.

Though ingenious, this submission of learned counsel for the respondent is misconceived, because this is a case in which the maxim omnia praesumuntur rite esse acta applies, for the following reasons: it is shown on the face of the affidavit which constitutes the caveat, that a copy of it was addressed to the registrar of the High Court; this, followed by the filing of the respondent’s affidavit in opposition, and the issue of the summons under section 25(3), the right procedure to be followed if the matter had been properly brought before the High Court, leads to the conclusion that the caveat was in one form or the other brought to the notice of the High Court. The intention of the legislature as disclosed upon reading of section 25 of the Ordinance as a whole is that when a caveat is entered against a marriage, the same should be brought before the court in an informal manner, and be dealt with summarily and with due dispatch. That being the case, reference of the caveat by a party to the intended marriage, and not by the registrar or a marriage officer, as the case may be, with whom the caveat was lodged is a non-compliance with the procedure under section 25(1) amounting to an irregularity, and not an illegality. [p.1118] of [1968] GLR 1114

For these reasons the proceedings are not null and void by reason of non-compliance with the rule in section 25 (1) of Cap. 127 to refer the caveat to the judge of the High Court. On the contrary, to remove the caveat when the summons to the caveatrix calling upon her to justify her objection to the marriage has not been served upon the caveatrix, that is when she has not been given the opportunity of a hearing, is an illegality not an irregularity, and renders the whole of the proceedings subsequent to the summons null and void. The appeal is therefore allowed, the order of the court below removing the caveat is set aside. The matter is remitted to the court below for the summons to be duly served, and the matter dealt with summarily as provided under section 25 (4). The appellant will have her costs in this court fixed at N¢80.05.

DECISION

Order accordingly.

Appeal allowed with costs.

L. F. A.