GRAHAM v. GRAHAM [1965] GLR 407

• DIVISION: HIGH COURT, ACCRA

DATE: 27 MAY 1965

BEFORE: KINGSLEY-NYINAH J.

CASES REFERRED TO

(1) Coleman v. Shang [1959] G.L.R. 390, C.A. (2) Re Otoo (1927) D.Ct. ‘26-’27, 84.

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NATURE OF PROCEEDINGS

RULING upon a motion as to the competence or otherwise of the Accra-Tema City Local Court to grant a dissolution of a customary marriage which had subsequently been converted by marriage under Cap. 127 .

COUNSEL

Kudjawu for the applicant.

I. Amoo-Lamptey for the respondent.

JUDGMENT OF KINGSLEY-NYINAH J.S.C.

On or about 14 November 1954 the parties in this instant motion were lawfully married at St. Peter

Claver’s Roman Catholic Church, Dzelukofe, Keta, by a reverend father of that denomination. Prior to and at the time of that church ceremony, there had been, and was, subsisting between the two contractors, a customary law marriage.

Some ten years after that marriage in church (i.e. on 8 December 1964) proceedings were instituted by the husband, the respondent herein, for a dissolution of that prior and subsisting customary law union between himself and his wife, the applicant herein. That action was taken before the Accra-Tema City

Local Court at Tema, and this motion is now brought by the defendant-wife who prays for an order of this court directing “that the Accra-Tema City Local Court is not the proper forum for the hearing and determination of the dissolution of a marriage under the Marriage Ordinance, Cap. 127 . . .”

In the application, now before this High Court, it is not disputed or denied by either party that long before this interlocutory matter they were both married in accordance with customary law. Nor is it denied, either, that both parties to that earlier customary marriage, subsequently went through a marriage ceremony in a Roman Catholic church, that church being St. Peter Claver’s, of Dzelukofe, Keta.

Be that as it may, while it is vehemently contended for and on behalf of the respondent that since nothing has been done by the applicant herein to upset, by way of appeal, a finding and decision of Smith Ag.J.

(as he then was) in suit No. Misc. 18/55 (a matrimonial matter which touched, involved and concerned the very same parties now before this High Court), that decision and finding still stands and, therefore, that prior marriage must, to all intents and purposes, be taken, considered and regarded as still valid and subsisting, customary law union. And it is further and also strenuously contended for and on Leonard

Graham’s behalf, that in those circumstances, not only is his customary wife, Juliana Nutakor, estopped from arguing to the contrary, but also, and equally important, that the

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Accra-Tema City Local Court is vested with full power and jurisdiction to entertain, hear and determine the matrimonial matter now pending before it because it involves a question of customary law.

A photostat copy of the judgment mentioned above of Smith Ag.J. was tendered for and on behalf of the respondent under a certificate of authentication from the National Archives of Ghana. That judgment, be it noted, upheld a caveat filed by Juliana Graham, the applicant herein, as caveatrix. In that judgment

Smith Ag.J. said: “I am concerned only with the caveat against the intended marriage of Leonard Yaw Graham.

I am perfectly satisfied that Leonard Graham and the caveatrix contracted a customary law marriage and that subsequently a Roman Catholic priest licensed to solemnise a marriage did marry the parties according to the

Roman Catholic marriage ceremony. The marriage is still subsisting. There is no evidence that it has been dissolved. It is unnecessary for the purpose of dealing with this caveat, to enter into the matter of the

Marriage Ordinance . . .”

Arguing to the contrary, it is stoutly submitted for and on behalf of the applicant that their prior customary marriage, its effect and consequences ceased and determined as far as the contracting parties were concerned as soon as they underwent that ceremony in accordance with the rites of their church and denomination, namely, the Roman Catholic Church. That, by that ceremony and rite, their marriage had become one under and subject to the Marriage Ordinance1 and that, therefore, the Accra-Tema City Local

Court is not vested with proper competence to hear and determine the matter of the dissolution of their marriage because that marriage is not governed exclusively by customary law but by the provisions of the

Marriage Ordinance.

The questions for consideration and determination in this instant motion are, therefore:

(i) Whether or not a customary law marriage with all its incidents and effects upon the contracting parties, ceases to be and becomes a marriage under the Marriage Ordinance once the contracting parties have undergone a church marriage according to the rites or usages of marriage observed in such church, denomination or body; and

(ii) Whether or not the Accra-Tema City Local Court has proper jurisdiction to entertain, hear and determine the matrimonial suit pending before it and now sought to be heard and determined by the

High Court.

[p.410] of [1965] GLR 407

Or otherwise stated: Whether or not the marriage now subsisting between Leonard Graham and Juliana

Graham (nee Nutakor) is such a union as comes under the Marriage Ordinance, wherefore the jurisdiction and competence of the Accra-Tema City Local Court is at once ousted; or, whether or not that marriage, being a customary law one, its bond can and ought properly to be loosened and dissolved by the Accra-Tema

City Local Court.

Concerning this present motion, the following is the civil jurisdiction of our local courts, as defined by section 98 (1) (b) of the Courts Act, 1960,2 “suits for divorce and other matrimonial causes, . . . where the law applicable is exclusively customary law.”

Customary law marriages, though essentially polygamous, are nonetheless accepted and recognised by the courts of this land. Needless to say, therefore, any two persons, man and woman, who elect to be and are in fact joined together in matrimony as man and wife in accordance with customary law are, to all intents and purposes, and if all the necessary and essential requisites and rites have been complied with and performed, lawfully married and that marriage is recognised as valid in the eyes of the law.

It is in recognition of this fact, for example (of validity), that our laws provide that upon the death intestate of a person, one-third part of his estate shall go to his surviving widow in accordance with customary law.

But a marriage under the Ordinance is strictly and essentially monogamous. It is a tight union confining the male-contractor to one woman to the exclusion of all others for as long as both parties shall live and the marriage subsists and is not dissolved. That is not the case with a marriage under customary law where the union is comparatively loose and the man is not precluded for taking unto himself as many wives as he can harmoniously live with and conveniently manage. Both these types of marriage are not only in peaceful and harmonious co-existence in this country, but they are also known to and accepted by our laws, and they each attract certain rights, privileges and obligations for the contracting parties as regards their children, their property, and in the matter of death and divorce. Thus, whereas illegitimacy is strictly unknown under customary marriages, it is known to marriages under the Ordinance. Under customary marriages, one of the things that must be done to legalise the right of children to their father’s property is for the father to acknowledge paternity of the children. The necessity is not demanded

[p.411] of [1965] GLR 407 of any form of marriage between the parents of those children. But in marriages under the Ordinance, children born out of wedlock are classified as illegitimate and they have no right to their father’s inheritance. For unions under the Ordinance, marriage is essential and necessary to make legitimate the children and so invest them with a right to their father’s inheritance.

As to illegitimacy, although it is not strictly known as such to customary law, there are exceptional cases which must be noted. Thus, for instance, when a man, regularly married under the Marriage Ordinance (a statute that enjoins the principle and practice of “ one man—one wife”), begets children by another woman whom he subsequently takes to wife by customary marriage, even if that subsequent marriage satisfied all the pre-requisites of customary law that union will neither be accepted nor recognised as a valid marriage. It will be considered as absolutely no marriage at all and the children born to that woman will be categorised and regarded as illegitimate: see Coleman v. Shang.2

Marriages by customary law do not require any certificate to show for them. A person wishing to contract a customary law marriage does not apply for a certificate from a registrar for the purposes of that intended customary marriage. One essential is publicity, an advertisement to the whole world that both parties thereto have agreed to live, and have been living together as husband and wife. Marriages under the

Ordinance, do, however, require certificates and the provisions of the Marriage Ordinance are clear and explicit as to what must be done by the persons involved in, and those officiating at, the ceremony.

But these several distinctions and differences notwithstanding, a person who is subject to customary law may also marry under the Ordinance. But he must beware, for he cannot eat his cake and have it. In that connection the headnote to Coleman v. Shang3 confirms the law and declares as follows4:

“(3) that a person subject to customary law, who marries under the Marriage Ordinance, remains subject to customary law in all matters save those specifically excluded by the statute and any other matters which are necessary consequences of the marriage under the Ordinance. Thus, . . . (ii) a man married under the Ordinance cannot claim the benefit of the provisions of customary law for divorcing his wife.”

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It is provided by section 9 of the Marriage Ordinance that:

“Marriage may be solemnised under the authority of−

(1) A registrar’s certificate;

(2) Marriage officers’ certificates, or one such certificate, when sufficient;

(3) A special licence from the Principal Registrar.”

For the purposes of the Marriage Ordinance this country has been divided into several marriage districts.

Under section 6 (1) ministers appointed marriage officers by Gazette Notices are listed in the Laws of the

Gold Coast, Vol. VIII “Subsidiary Legislation,” marriage districts are given and the list shows the ministers appointed to be marriage officers for those districts. At p. 1010 of the said Vol. VIII

(“Subsidiary Legislation”), there occurs the following, amongst others, under the Keta Marriage District:

“The several Roman Catholic Priests working under the auspices of the Roman Catholic Mission Society and for the time being ministering at Keta, Dzelukofe . . . in the Keta Marriage District.”

This brings the Catholic Church of St. Peter Claver’s right into the picture and makes it quite clear that the reverend father who officiated at the ceremony touching, concerning and involving Leonard Graham and Juliana Graham, the parties herein, was a “marriage officer” as provided by the Marriage Ordinance, and that he was fully empowered to join consenting parties in matrimony pursuant to the requirements of the said Ordinance and the rites and usages of his denomination.

Section 10 of the Marriage Ordinance provides that a signed notice be given by the parties wishing to marry under a registrar’s authority. From the registrar’s certificate (photostat copy) marked A and referred to in the applicant’s affidavit (dated 23 January 1965), it stands to reason and cannot be gainsaid, that the provisions of section 10 were followed by the parties herein. The requisite notice was entered by the applicant on 12 October 1953. That certificate speaks for itself and shows also that no caveat was entered against its issue. The certificate was issued on 6 November 1953. Eight days later (as admitted by both parties herein and shown upon the marriage certificate marked B and referred to in the applicant’s affidavit of 23 January 1965), Leonard Yaw Graham and Juliana Awo Nutakor, both of Dzelukofe, were married as aforesaid at Dzelukofe, in St. Peter Claver’s Church, a licensed place of worship, by a reverend father of the Roman Catholic Church, a marriage

[p.413] of [1965] GLR 407 officer, as aforesaid, upon the strength of the registrar’s certificate (exhibit A).

The fact that the marriage was celebrated as aforesaid gives clear indication and convincing proof not only that the registrar’s certificate was delivered to the reverend father by the parties, but also and equally compelling, that he knew of no just impediment to hinder the celebration of that marriage: see section 31 of Cap. 127.

And the parties to that marriage being either or both of them Roman Catholics, it is needless to say that the provisions of section 30 of Cap. 127 were also complied with and that they were married according to the rites and usages of marriage observed in the Roman Catholic Church. They must be taken, therefore, to have intended to submit themselves formally and publicly to the authority of that church and to be governed by canon law as far as their marriage was concerned.

Marriage, no matter how or where celebrated, whether under customary law, or by a church ceremony, or at a registry, is of its very nature, a holy institution. It is a union which is at once most sacred and most serious. It is not, in my view, a mere civil contract. Being a means of mutual help for husband and wife, marriage is a sacred contract which must not be entered upon capriciously or thoughtlessly, or recklessly.

At the time that the marriage between Juliana and Leonard was celebrated at St. Peter Claver’s Church, they were both of mature age, sound judgment and clear intellect. Leonard was then 27 years, a clerk, and

Juliana, 23 years, a teacher. And both of them were possessed of sound educational backgrounds. Having therefore chosen that church ceremony, they must be taken to have fully realised the necessary implications of that step, and to have appreciated the full and serious import of that ceremony in general, and of their respective responses, namely, that they will each take the other as husband and wife according to the rites of their Holy Mother, the Catholic Church, in particular—more especially as

Leonard or Juliana, or both of them were, before and at that time, fully baptised Catholics.

And what are the rites and usages of marriage observed in the Roman Catholic Church? They cannot be essentially different from what obtains in other denominations. In order that a marriage be contracted validly in the eyes of the Roman Catholic Church, the church’s general law governing the celebration of marriages (canon law) dictates, amongst other things, that the contracting parties be personally present with their nuptial rings and that they openly express matrimonial consent in words. The church further requires that the officiating priest instruct both parties on the

[p.414] of [1965] GLR 407 sanctity of the sacrament of matrimony, the mutual obligations of husband and wife, and the duties of parents towards their children. The parties are also exhorted to make careful confession of their sins before the marriage.

The indications and the circumstances of this matter, then, as I view them, loudly proclaim that that open and public consent which is a sine qua non of the marriage ceremony was in truth and in fact uttered and given by both Juliana and by Leonard and that everything that ought properly to be done was regularly done to make their marriage effective according to Catholic rites and usages. I am fortified in this view by the issue to the parties of the certificate marked B herein which shows that Leonard Yaw Graham and

Juliana Awo Nutakor were properly married in church on 14 November 1953, and in the presence of at least two witnesses as provided by section 30 of the Marriage Ordinance.

What was the effect of that church marriage ceremony, seeing that the respondent Leonard Graham, depending strongly upon the judgment or ruling of Smith Ag.J., contends that although he did take an active part therein and was immediately concerned and involved in it, it did absolutely nothing to change the customary status of himself and Juliana Nutakor; his wife Juliana Nutakor taking a stout stand to the contrary?

Let us now take a closer look at the judgment of Smith Ag.J. in the suit between the self-same parties herein. The judgment upheld Juliana Nutakor’s caveat. Since the entry of a caveat is a proceeding taken to prevent a certain step being taken, the success of a caveat entered, necessarily means and declares that the act, deed or thing sought to be prevented or stopped, cannot and must not, be done at all. In view of the fact, then, that by the suit before Smith Ag.J. Juliana Graham (nee Nutakor) sought to prevent and stop an

“intended marriage” by Leonard Graham to another woman; and the fact, furthermore, that she did succeed, by reason of her caveat being upheld, in preventing and stopping that marriage (which Graham now owns in his affidavit was to have been one under the Ordinance), I am led to the irresistible conclusion that the learned judge was satisfied that there was just impediment and lawful cause to bar, to hinder and to prevent that other marriage intended by Leonard Graham with a woman other than Juliana

Nutakor. The necessary and legal consequence of the caveatrix’s success was that the registrar of marriages was restrained from issuing his certificate for that “intended marriage,” the just cause and lawful impediment thereto being in my view, that later marriage, a holy sacramental

[p.415] of [1965] GLR 407 union, at the Roman Catholic Church. My reading, understanding and interpretation of the judgment of

Smith Ag.J. therefore, taking it in the light of the peculiar circumstances of this matter, is that that judgment acknowledged and confirmed the legal and factual subsistence of that church marriage as being in accordance with the rites and usage of the Catholic Church and that, therefore, it was a marriage under the statute.

In the circumstances, I am of the view, and I so hold, that when Leonard Graham and Juliana Nutakor said “I will,” the one to the other, before the reverend father and in the sight of the witnesses, they had, each and both of them intended, by that ceremony, to change their status as man and wife under customary law for that of husband and wife under the Marriage Ordinance, a completely new union which could confer obligations, rights, and privileges totally different from those under a customary law marriage.

It is not unknown in this country for couples legally and validly married in accordance with customary law, to go before a reverend minister to have their customary union blessed in church. This is what

Graham says he did. In those cases, the consent of the parties is not necessarily asked for by the officiating priest who invokes a blessing upon the couple before him. Banns are neither announced nor read, nor published, and no detailed explanation and instructions are made or given as to the respective duties of husband to wife and vice versa, the responsibility of parents to their children, and to the church.

And as to the loosening of the tie that binds the parties, all that need be done to make it effective is that the parties appear before the elders of the church that “blessed” the marriage.

The effect of such merely ceremonial “blessing” is rather limited. That church “blessing” merely gives a religious approval or sanction to the already valid and subsisting union. To all intents and purposes, therefore parties to such a church-blessed customary marriage still remain subject to al the consequences, incidents and effects of a customary marriage. Not only does the “blessing” not determine or end the valid native customary marriage it also does not extend it one jot or title, or invest the parties with rights beyond those known to customary marriages. The parties to such a church-blessed customary union still remain subject to the obligations, privileges and rights incidental to customary law marriages. That is an exceptional ceremony; it is merely tolerated by our churches, and it must be carefully distinguished from a marriage ceremony “according to the rites or usages of marriage observed in such church, denomination or both.” Let not what is tolerated as an exception be taken seriously as the rule.

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It is my considered view therefore, and I so hold in this instant application, that it was not because they wanted a mere “blessing” of their customary union that Leonard Graham and Juliana Nutakor went through that church ceremony at St. Peter Claver’s Roman Catholic Church, Dzelukofe, in November

1953. All the facts, the evidence and the circumstances are against that and I find and hold that if it had been a mere church “blessing” that Graham and Nutakor had desired, sought and wanted, they most certainly would not have gone to the trouble and extent of, amongst other things, giving due and requisite notice of their intended marriage as witnessed by the registrar’s certificate marked A, or having entered upon the register of marriages kept at St. Peter Claver’s Church, Dzelukofe, as witnessed by the certificate marked B, the fact of their said marriage. Had the parties herein merely sought a “blessing,” they would not have done everything requisite and necessary to fall in line with and to satisfy the provisions of the Marriage Ordinance, as indicated above.

In the circumstances, therefore and for the reasons above stated, I hold and declare that the union, the joining together of Leonard Yaw Graham and Juliana Nutakor by the reverend father Hanshaden at St.

Peter Claver’s Roman Catholic Church, Dzelukofe, was a truly Christian and valid marriage and according to the rites, the usages of the Roman Catholic Church, a sacrament. By going through that ceremony in accordance with the rites and usages of marriage observed by their mother, the Roman

Catholic Church, Leonard and Juliana Graham intended to change, and in fact and in law, changed their status, and their marriage became one under the statute. There is no doubt whatsoever, in view of the available evidence that the conduct of Leonard and Juliana was clearly indicative of a definite, considered and decisively irrevocable step towards a marriage under the Ordinance and a new status; a considered step well away from their previous marital status under the customary marriage: see Re Otoo.5

It has been argued and submitted for and on behalf of the respondent herein, relying upon a copy of a letter from the Registrar-General’s Department and dated 2 February 1955, that the marriage at St Peter Claver’s Church, has not been registered, as required by section 39 of the Marriage Ordinance. In view of the overwhelming and convincing evidence available to show that that marriage was in fact and in truth celebrated between Juliana and Leonard, that submission, lacking in substance and in merit as it does, avails the

[p.417] of [1965] GLR 407 respondent absolutely nothing. I will therefore not permit him to make any song-and-dance of it.

The provisions of section 39 are purely administrative, giving directives as to what should be done after the celebration of a marriage. If then, the certificate in this instant matter was either not sent on at all by the proper official to forward it; or if it was sent but, for some unaccountable reason it cannot be traced, that is not sufficient reason, or reason at all, why section 39 should be invoked and used against Juliana

Graham (or, for that matter against Leonard Graham), she having had neither act nor part in the non-forwarding of the marriage certificate. It is only where there is absolutely no evidence available to prove and establish the celebration of a marriage that section 39 can, and ought to, be called into play.

Certainly not in a case like this present one where the facts and the circumstances so clearly satisfy the understanding and convince the reason that a marriage was in fact regularly celebrated by a marriage officer.

In view of the foregoing, therefore, and since all the evidence, the facts and the circumstances are matters more in cogent and reasonable support of a valid Christian marriage seriously entered upon by both parties thereto, than a loose customary union, I hold and declare that the marriage of Leonard and Juliana

Graham at St. Peter Claver’s Roman Catholic Church, Dzelukofe, was, and still is, and shall continue to be, until regularly dissolved, or determined by nature, a statutory marriage with all its necessary consequences.

And I further hold that the respondent Leonard Yaw Graham, having married under the Marriage

Ordinance, thus renouncing his rights, obligations and privileges under customary law, “cannot now claim the benefit of the provisions of customary law for divorcing his wife” Juliana Awo Graham, a statutory spouse.

Finally, then, I hereby and accordingly declare and rule that since the matrimonial cause now pending before the Accra-Tema City Local Court is not a matter “where the law applicable is exclusively customary law,” but a matter strictly under the Marriage Ordinance, the Accra-Tema City Local Court is not a court of competent jurisdiction to hear and determine suit No. 1075/64 entitled:

“Leonard Yaw Graham etc., … … … Plaintiff v.

Juliana Nutakor (Alias Graham) etc., … … … Defendant”

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Let nothing further be done in the said suit by the Accra-Tema City Local Court, Division II, but let the pendency of the said suit No. 1075/64 be reported to the High Court, Accra.

The motion of the applicant accordingly succeeds, but I make no order as to costs.

DECISION

Order accordingly.

E. A.-A.