QUARTEY v. QUARTEY [1963] 1 GLR 58

DIVISION: IN THE SUPREME COURT

DATE: 6TH FEBRUARY, 1963

BEFORE: KORSAH C.J., CRABBE AND BLAY JJ.S.C

CASES REFERRED TO

(1) Keelson v. Mensah (1957) 2 W.A.L.R. 271

(2) Sokpui II v. Agbozo III (1951) 13 W.A.C.A. 241

(3) Chapman v. Ocloo (1957) 3 W.A.L.R. 84

(4) Re Squires Settlement [1946] W.N. 11; 115 L.J.Ch. 90; 174 L.T. 150; 62 T.L.R. 133

NATURE OF PROCEEDINGS

APPEAL from a judgment of Acolatse J. in the High Court, Accra, delivered on the 3rd June, 1960.

COUNSEL

I. Amoo-Lamptey for the defendant-appellant.

J. Arthur for the plaintiff-respondent.

JUDGEMENT OF KORSAH C.J.

A resume of the history of this case may be briefly stated thus: R.S. Boi Quartey, deceased, was the younger brother of the plaintiff; their mother Mrs. Kate Quartey and two sisters have also survived the deceased; Mrs. Kate Quartey, aforesaid, who has taken important part [p.60] of [1963] 1 GLR 58 in the proceedings was prevented by an erroneous order from becoming a party in the suit; she was, however, a witness for the defendant at the trial.

In the year 1952, S.R. Boi Quartey attempted to marry the defendant under the Marriage Ordinance,11 but he was prevented by one Magdalene Adjojo Tengey as caveatrix, who claimed to be the wife of the deceased according to native custom. It is contended by the defendant that in 1953, the customary marriage between the deceased and Tengey was dissolved according to custom, and also that Tengey and the deceased had not lived together as husband and wife, or in the same town, since 1952. Although Tengey and the plaintiff admit that Tengey and the deceased had not lived in the same house or town since 1952, they deny that the marriage according to native custom has been dissolved. By virtue of a licence obtained in accordance with the provisions of the Marriage Ordinance, Samuel Rodger Boi Quartey deceased married Joco Quartey, the defendant herein, on the 23rd January, 1958. The certificate of marriage issued by O.N. Oku, Deputy Registrar of Marriages is exhibit A. Samuel Rodger Boi Quartey died in July 1958, after which date David Isaac Quartey, plaintiff-respondent herein endeavoured to induce Beatrice Joco Quartey, defendant-appellant herein, as widow of the deceased to join him to obtain letters of administration in respect of the said estate.

Under cross-examination, David Isaac Quartey said:

“I approached the defendant upon my brother’s death to join me to apply for letters of administration for the personal estate of the deceased but she refused. I approached her to assist me in obtaining joint letters as my brother’s wife under the Marriage Ordinance.

I inserted in the Graphic a notice of the memorial service on the 17th July, 1958, in respect of my brother’s death in which I described the defendant as Mrs. Rodger Boi Quartey. I did not put in the name of Madam Tengey. The deceased never lived with Madam Tengey during the deceased’s residence at Nsawam up to the time of his marriage. He was resident at Nsawam where he took ill and returned to Accra and died. To my knowledge I knew nothing of the dissolution of the native marriage between the deceased and Tengey. The defendant is the administratrix of the deceased’s personal estate. She obtained letters from this court on the 17th June, 1959, upon her caveat against my application for letters. I was the plaintiff in that matter. Madam Tengey did not apply for letters. She did not join me in my application. She gave evidence in the administration suit”

In his judgment in that administration suit, Gwira, Commissioner of Assize and Civil Pleas, inter alia, referred to section 43 of the Marriage Ordinance which reads: “All marriages celebrated under this Ordinance

[p.61] of [1963] 1 GLR 58 shall be good and valid in law to all intents and purposes.” He further discussed the whole of the evidence, and concluded thus:

“. . . under the circumstances I give judgment for the defendant and sustain the caveat that she is the proper person to be granted letters of administration of the estate of her late husband Samuel Boi Quartey deceased.” In the present case, pleadings were filed in which the plaintiff-respondent in his statement of claim stated the capacity in which he instituted the originating summons thus: “The applicant is the head of the deceased’s family, and a person beneficially entitled in the estate of the deceased.” The defendant-appellant denied this allegation in her defence, which was supported by affidavit filed in the suit by Mrs. Kate Adoley Quartey, mother of both the plaintiff- respondent and the deceased. In the summons for directions the first issue set down for trial was, “Whether the plaintiff is the head of the deceased’s family or not.” On this issue, Acolatse J. in his judgment said:

“I am unable, upon the evidence before me, to declare the plaintiff as the head of the deceased’s family under Ga native law and whether the elder brother in Ga native law of succession automatically succeeds to his brother’s personal estate. It is a question within the jurisdiction of the local court.” It is unfortunate that this primary issue in the case does not appear to have been regarded by the trial judge as important. In fact, failure to determine the issue has, as I shall show in the course of this judgment, resulted in a serious miscarriage of justice.

On the question of the headship of the deceased’s family, I would refer to the affidavit of Mrs. Kate Quartey:

“(1) That I am the mother of the late Samuel Rodger Boi Quartey.

(2) That I am the head of the deceased’s family and the natural successor to the estate of my son Rodger.

(3) That at no time have I authorised the plaintiff to act for me as head of the family nor have I at any time surrendered my position as successor to the deceased.

(4) The plaintiff to this suit is my son and he has not my authority whatsoever to act in the capacity he has assumed in instituting this action.”

In Keelson v. Mensah,2 it was held:

“Except in very limited circumstances only the head of the family may sue and be sued in an action involving family property. Where a defendant, sued as head of his family, puts the headship in issue, proof of defendant’s headship becomes an essential ingredient of the plaintiff’s case.”

In this case the headship of the family is in issue, and the plaintiff’s mother’s affidavit filed in support of a motion asked that the suit be

[p.62] of [1963] 1 GLR 58 struck out. This motion was adjourned by Minnow, Commissioner of Assize and Civil Pleas, for the following reasons:

“As the applicant is a defendant in the suit and there has not been any denial of the fact that she is an old lady, the court considering the matter raised as going to the root of the suit, orders that the application be adjourned and the evidence of the applicant be taken. The evidence to be taken on the 17th February, 1960.” When, however, the matter came up for hearing before Mills-Odoi J. it was summarily dismissed thus: “It is now abundantly clear that the question whether the plaintiff is the head of the family or not is an issue which must be tried by way of evidence. The plaintiff-respondent in his affidavit denies the status of Mrs Kate Quartey as head of the deceased’s family. The application is therefore dismissed. No order as to costs. Substantive suit adjourned to 31st March, 1960, for hearing.”

The learned judge having stated that the question whether plaintiff is the head of the family or not is an issue which must be tried by way of evidence, the proper order was to have tried that issue, and if necessary to have made the applicant a party to the suit.

In any case, apart from the application of Mrs. Kate Quartey, aforesaid, the issue “whether the plaintiff is the head of the deceased family or not” remained an essential issue in this case, in order to determine the locus standi of the plaintiff in the proceeding; and the fact that the plaintiff failed to adduce satisfactory evidence to discharge the onus on him was sufficient ground upon which the summons should have failed.

In Chief Sokpui II v. Chief Tay Agbozo III3 the headnote reads:

“The plaintiff-appellants sued in a representative capacity in the Native Court for themselves and on behalf of the general community of Dzelukope. The Native Court had to determine whether the plaintiffs were duly authorised to sue in a representative capacity and came to the conclusion they were not, and dismissed the claim.

After appeal to the Native Court of Appeal and to the Land Court the case came on appeal to this Court, where the manner in which the Native Court should determine the right to sue in a representative capacity was considered . . . Held: Where the authority of persons to sue in a representative capacity is challenged the onus is on them to satisfy the Court that they have been duly authorised. Further, that the manner in which persons can be authorised is a matter peculiarly within the province of a Native Court to determine.” In Chapman v. Ocloo and Kporhanu,4 it was held:

“(i) where a party to an action sues in a representative capacity, on behalf of a stool or a family, and his authority so to sue is put in issue by the defendant, the burden of establishing authority is upon the plaintiff.

[p.63] of [1963] 1 GLR 58

(ii) save in exceptional circumstances the proper person to sue on behalf of a family, in respect of family interests, is the head of the family. The burden of proof where authority is challenged will thus be discharged, by establishing headship. Where the person challenged is not the family head the burden will be discharged only where the express authority of the family is established by that person.” The fact that the plaintiff initiated these proceedings by an originating summons does not in my view alter the principles laid down in the above cited cases with regard to the burden of proof necessary to determine the primary issue raised in the proceedings.

The learned trial judge, however, appears to have regarded this primary issue, as if it was unessential, and went on as if he was exercising jurisdiction in divorce proceedings and made the following declarations: “I therefore declare that the deceased, at the time of his death and his intended and contracted marriage to the defendant herein, under exhibit A, was married by native law or custom to Magdalane A. Tengey. The said marriage to the defendant is bigamous and has no validity in law as it conflicts with the provisions of the Marriage Ordinance. The caveat still remains on the file.”

It will be observed that these proceedings were initiated by an originating summons under Order 54, r. 4 of the Supreme [High] Court (Civil Procedure) Rules to determine questions, (1) “arising in the administration of the estate of Samuel Rodger Boi Quartey (deceased),” and (2) “In the matter of the Marriage Ordinance Cap. 127.” It will be observed that there is no absolute right to proceed by originating summons, and a plaintiff or applicant by originating summons must be prepared to show that this use thereof is required or permitted by a rule or statue; see Re Squires Settlement.5 In this matter, the applicant adopted the inter partes form whereby the parties are described as plaintiff and defendant and their names included in the title to the summons. This form is used for an application for relief under the inherent jurisdiction of the court when no other form is prescribed, for example, in administration matters or construction of trusts or statutes. But where the claim alleges the commission of a crime under a statute, it seems hardly the appropriate method to adopt in asking the court to determine if a crime had been committed under the Marriage Ordinance or any other statute. Bigamy is an offence under criminal law, and is a ground for divorce or nullity of a marriage; but the offence must be strictly proved in the appropriate proceedings or a certificate of conviction produced.

It will also be noted that the statement in the judgment, that “The caveat still remains on the file” relates to a previous application for licence by the deceased in 1952, which matter had been determined in that year in favour of the caveatrix at the time. It has nothing to do with the special licence obtained in 1958, and by virtue of which the marriage between

[p.64] of [1963] 1 GLR 58 the deceased and the defendant took place. In this again the learned judge was misled, and was influenced to arrive at a conclusion, based on erroneous facts not relevant to the issue before the court. With regard to the declaration made by the learned trial judge that, “The said marriage to the defendant is bigamous and has no validity in law,” it is clear from the views I have already expressed, that such a declaration was beyond the competence of the court having regard to the nature of the proceedings initiated before it. Such an issue could be determined only if the trial had been initiated by an appropriate action.

In the result, I would allow this appeal, and set aside the judgment of the court below, together with the order as to costs. Upon the grounds already stated I would dismiss the plaintiff’s summons with costs for the defendant in this court and of the court below.

JUDGEMENT OF CRABBE J.S.C.

I agree.

JUDGMENT OF BLAY J.S.C.

I also agree.

DECISION

Appeal allowed.

Summons dismissed with costs.

J. D.