OPOKU BOATENG v. ADUNA [1963] 1 GLR 445

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 13TH MAY, 1963

BEFORE: APALOO J.

CASES REFERRED TO

(1) Marshall v. Dawson (1885) Sar.F.C.L. 111

(2) Neizer v. Dontoh (1874) Sar.F.L.R. 109

(3) Adjei v. Ripley (1956) 1 W.A.L.R. 62

NATURE OF PROCEEDINGS

APPEAL from ajudgment of the Amansie Local Court delivered on the 14th March, 1962, in an action for damages for seduction. The facts are stated in the judgment.

COUNSEL

Appiah Menka for the appellant.

D. S. Effah for Amankwa for the respondent.

JUDGMENT OF APALOO J.

This is an appeal from the judgment of the Amansie Local Court delivered on the 14th May, 1962. The judgment awarded in favour of the plaintiff against the defendant damages for what I paraphrase to be seduction. The court also ordered in favour of the plaintiff, maintenance in respect of the plaintiff’s daughter who has been adjudged to have been made pregnant by the defendant.

The facts of this case are extremely simple and have been found by the local court with extreme clarity. I do not understand the findings made by the local court to be in issue on this appeal. The plaintiff is the father of

[p.446] of [1963] 1 GLR 445 a young woman called Hanna Oppong. In 1961 she was attending a secondary school at Sanfo. She was in form four. The defendant was, at any rate in 1961, a teacher in the Seventh Day Adventist primary school at Sanfo. He seemed to have been a pupil teacher and was certainly someone who did not appear to have received the benefit of secondary school education.

In September 1961 Miss Oppong’s school was on holidays and she went to Sanfo to spend the vacation with her father. She there met the defendant. As the latter appears apparently to have been studying for an examination, he invited her to teach him geography. To this invitation, Miss Oppong responded. Accordingly, Miss Oppong visited the defendant’s house on about four evenings. After the teachings, both then did a little bit of love-making. The inevitable happened and when Miss Oppong returned to college, she found herself with child. In due course, she brought this fact to the defendant’s knowledge. The evidence which the local court magistrate accepted, was that the defendant offered to give Miss Oppong medicine in order to procure a miscarriage. She refused and informed her father about it. When the defendant was confronted with this matter, he gave evasive replies. The local court found it established that the defendant was the person responsible for Miss Oppong’s pregnancy and accordingly made the orders I have recited.

The defendant claiming to be aggrieved by that judgment appeals to this court on three grounds. The first ground of appeal complains that, “The plaintiff’s writ of summons coupled with the evidence does not disclose any known or reasonable cause of action.” On this ground, it was submitted that as the action was seduction it ought to have failed as there was no evidence of loss of service. It was said that plaintiff’s daughter was at school and did not live with her father and therefore did not render her father any service such as would ground an action in seduction. In founding his argument wholly on the common law fiction of service for what is really an invasion of parental honour, counsel wholly lost sight of the fact that the law which ought to apply to this matter and which was determined in the local court was customary law and not the common law. Had counsel made the most cursory investigation as to what the customary law is on this matter, he would have been the first to acknowledge that his argument cannot hold water. At pages 40 and 41 of his invaluable book Fanti Customary Laws Sarbah states the customary law as follows: “If a man seduce an unmarried woman, he is liable to pay to her family damages for the wrong so done her and the disgrace brought on her family.” The case of Marshall v. Dawson1 decided by Mr. Justice Macleod shows that the proper person to institute an action of this sort is the girl’s parent or somebody in loco parentis to her. Accordingly, customary law does not require any such fiction as the common law requires to give a remedy for what is in truth the infringement of family or paternal honour. In the case of Neizer v. Dontoh2 decided by Marshall, Judicial Assessor, [p.447] of [1963] 1 GLR 445 on the 5th March, 1874, it was expressly stated that “loss of service is no ground for compensation.” It was also contended in ground three of the grounds of appeal that “there is no legal basis for the award of the damages of £G80 and or other damages awarded.” I have already answered the complaint about the general damages for seduction. The other sums awarded and against which counsel complained, are the sum of £G2 per month as maintenance for Miss Oppong during pregnancy and a declaration that the defendant is liable to maintain the child begotten of his liaison with Miss Oppong.

In my judgment, far from there not being any legal basis for them, each is fully justified by customary law and by authority. The case of Marshall v. Dawson3 to which I have already referred, decides that the father of an illegitimate child is liable to pay for the expenses incurred on the seduced girl during confinement including her maintenance and to maintain the child during minority. The liability of a father to maintain his child however begotten was put on firm basis as recently as 1956 by the decision of the High Court in Adjei v. Ripley4

In my judgment, the damages awarded for seduction and the other consequential orders made by the local court were right and are fully supported by authority. It is counsel’s view of the matter that it is unorthodox. Yet counsel for the respondent felt himself persuaded by the wholly untenable argument urged on behalf of the appellant and conceded to the allowance of this appeal. I cannot help the observation that in conceding to an argument of this sort, he did rather less than his duty to his client. In my opinion, there is no merit in either of grounds one or three of the grounds of appeal. The second ground of appeal argued was that, “The trial was irregular in that the local court magistrate assumed the position of the plaintiff and unduly interfered with the defendant in presenting his case.” The argument urged on this ground of appeal is a mere repetition of that verbose ground of appeal. The ground for that complaint was that while giving evidence the defendant said certain things contrary to the case he put to the plaintiff’s witnesses in cross-examination. The magistrate therefore called his attention to the case he sought to put to the witnesses in cross-examination and its conflict with his own evidence in chief. On another occasion, the defendant sought to tender a paper which he said contained the subject he took for his examination to prove that Miss Oppong did not teach him mathematics. The magistrate considered that paper irrelevant and rejected it in evidence.

I entirely fail to see how either of the two incidents or a combination of them can ground the serious charge that the magistrate constituted himself into a plaintiff and so interfered with the proceedings as to justify an order for new trial. In my opinion, there is no merit in this ground of appeal also. [p.448] of [1963] 1 GLR 445

This appeal must fail as indeed I hold that it has. It is dismissed with 30 guineas costs to the respondent.

DECISION

Appeal dismissed.

J. D.