HIGH COURT, ACCRA
DATE: 19TH MARCH, 1962
BEFORE: OLLENNU, J.
CASES REFERRED TO
(1) Asumah v. Khair [1959] G.L.R. 353
(2) Yaotey v. Quaye [1961] G.L.R. (Pt.II) 573
NATURE OF PROCEEDINGS
CAVEAT filed against issue of registrar’s certificate to the respondent under the Marriage Ordinance Cap. 127 (1951 Rev.) s. 25 (1).
COUNSEL
I. Amoo-Lamptey for the caveatrix.
N. A. Tham for the respondent.
JUDGMENT OF OLLENNU J.
This matter has been referred to the court by the registrar of marriages of the Accra City Council Marriage District under section 25 (1) of the Marriage Ordinance.1(1) It is a caveat filed by Clara Sackitey against the issue of the registrar’s certificate in respect of a marriage intended to be celebrated between Lawrence Kpabitey Kodziku, the respondent, and one Comfort Ama Chartey. The ground of the opposition by the caveatrix to the issue of the certificate is that a valid marriage by customary law exists between her and the respondent, and the existence of that marriage is a bar to marriage by the respondent under the Marriage Ordinance to any one except herself, the caveatrix, the respondent’s wife by customary law.
According to the caveatrix the said marriage under customary law was celebrated on the 23rd March, 1958. The respondent does not deny that a certain ceremony took place on that date, affecting himself and the caveatrix, but according to him that was an engagement ceremony, and not a marriage ceremony. He said further that whatever relationship that ceremony created between himself and the caveatrix, the same was determined by the two of them separating some time later.
Two issues arise for determination in this matter:
(1) whether the ceremony performed on the 23rd March, 1958, constituted marriage by customary law, and if it did,
(2) whether that marriage has been dissolved.
Marriage by customary law is a union of the family of the man and the family of the woman. To constitute such marriage the following essentials must be shown to exist:
(a) consent by the two parties that they would live together as man and wife;
(b) consent by the family of the man that he should have the woman to his wife; that consent may be actual, i.e. by the family of the man going to the family of the woman formally to ask for her hand, or it may be constructive, i.e. by the family of the man recognising the woman as a wife of the man and admitting her and her family to performance of customary rites for their family, e.g. funeral rites when there is bereavement in the man’s family;
[p.182] of [1962] 1 GLR 180
(c) consent of the family of the woman that she should have the man for her husband, this consent too may be actual, i.e. where the family of the woman accept drinks offered by the family of the man, or it may be constructive, i.e. by acknowledging the man as husband of the woman, and admitting him and his family to perform customary rites for their family, e.g. funeral rites on occasion of bereavement in the woman’s family, and
(d) consummation of the marriage by cohabitation.
See Asumah v. Khair2(2) and Yaotey v. Quaye.3(3) We shall now look at the facts in this case to see whether the respondent and the caveatrix ever got married.
The families to which the respondent and the caveatrix belong are branches of a larger family of which, all agree, P.W.1, Samuel Djabanor Nyako is the head. The evidence given by the said Samuel Djabanor Nyako as to the ceremony which was performed on the 23rd March, 1958, has not been challenged in any way. That evidence is briefly as follows: The family of the respondent and the family of the caveatrix met on an appointed day as they had previously arranged to do so; that joint meeting was presided over by him, the head of the wider family. A female elder of the respondent’s family, i.e. his branch of the family, stood outside the door of the room where the meeting was taking place, while an elder female of the family of the caveatrix, i.e. her branch of the family stood within the entrance of the room; the two women held opposite ends of a blade of grass. The elder woman of the respondent’s family then addressed the elder woman of the family of the caveatrix from outside as follows: “I want to marry your daughter, give her to me to marry”, and the elder woman of the family of the caveatrix replied as follows: “I give her to you with all my heart; take her away. If ever you should happen at any time to be no longer satisfied with her, bring her back to me do not leave her in the streets”. The family of the respondent then gave drinks and libation was poured; they then gave a customary fee of 8s. 8d. which the two officiating old ladies
shared equally, each having 4s. 4d.
This ceremony, the witness said, is called “Fiapun” in Adangbe, and constitutes valid marriage by Krobo custom. The witness further said that after the marriage ceremony had been completed the family of the respondent said that they would later want the marriage to be followed by marriage under the Marriage Ordinance, and in token of that promise they presented the caveatrix with a ring, exhibit A, and copy of the Holy Bible, exhibit B.
The caveatrix gave evidence, again not refuted, that she began to cohabit with the respondent from the day of the ceremony, and that she went from Kpone Bawaleshie where she worked as a teacher each week to Teshie, where the respondent then worked, also as a teacher, to spend the week-end with him.
[p.183] of [1962] 1 GLR 180
This evidence of the ceremony performed coupled with the evidence of cohabitation contains all the essentials of a valid marriage by customary law.
The evidence shows that a quarrel arose between the respondent and caveatrix sometime after they had been married. Now apart altogether from the evidence led on behalf of the caveatrix that the marriage has not been dissolved, there is the strong evidence led by the respondent himself and his mother that the only steps which have been taken towards dissolution of the marriage are unsuccessful attempts made by the families to effect reconciliation. They said that these attempts broke down, and no further steps have been taken to dissolve the marriage. There is further evidence that upon the attempted reconciliation proving abortive, the parties, as it were, mutually agreed to live apart, as indicated by letter, exhibit 1 which the caveatrix wrote to the respondent on the 12th June, 1961. The respondent set out those facts in paragraphs 3 and 4 of the affidavit which he filed in opposition to the caveat; he said:
“3. That as a result there was a family meeting on or about August, 1960, attended by the parents of both of us, in an attempt to settle the dispute but the meeting broke down.
“4. That as a result both of us separated and this fact was accepted by the caveatrix in writing — a copy of the said acknowledgement attached.”
In customary law dissolution of marriage is always preceded by attempts to reconcile the parties. If the attempts succeed and the reconciliation is effected the marriage continues; if it fails then further steps are taken to effect the dissolution; the failure of the attempts at reconciliation does not operate as dissolution of marriage.
At its best therefore the position between the respondent and the caveatrix is exactly the same as that which would exist between a couple married under the Marriage Ordinance who are living apart upon mutual understanding or upon mutual separation. The agreement to live apart from one another does not affect the legal status of the parties, they remain man and wife until their marriage is dissolved by a decree of the High Court. Similarly the marriage by customary law entered into between the parties will subsist until the same is dissolved by the family; the parties cannot ignore the family in this matter, the marriage being as much the concern of the two families as it is the concern of the two individuals.
It does appear that the parties cannot live together; the best thing for them to do therefore is to take proper steps to dissolve their marriage. Until that is done the respondent cannot validly marry under the provisions of the Marriage Ordinance any woman except the caveatrix as provided in section 42 of that Ordinance.
The caveatrix has shown legal grounds why the registrar should not issue his certificate. The prohibition against the issue of the registrar’s certificate is therefore sustained. The caveatrix will have her costs fixed at 25 guineas inclusive.
DECISION
Prohibition sustained.
