BILLA V. SALIFU

TAYLOR J.: The plaintiff-respondent (hereinafter referred to as the respondent) sued the defendant-appellant (hereinafter called the appellant) in the district court claiming the sum of N¢300.00 as damages, apparently for adultery with his, the respondent’s wife. His writ of summons at the District Court, Grade II, Tamale, contained the particulars of his claim formulated as follows:

“Plaintiff claims damages the sum of N¢300.00 against the defendant for intentionally and unlawfully having sexual intercourse with the plaintiff’s wife Muniratu whose child is under age which action is against Dagomba’s customary rites.”

It is clear from an examination of the respondent’s claim that he wants his claim to be decided in accordance with Dagomba customary law, namely, the rules of law which by custom are applicable to the Dagombas. This brings into consideration the provisions of paragraph 64 (1), Rule 6 of the Courts Decree, 1966 (N.L.C.D. 84), which provides as follows:

“Rule 6. Subject to the foregoing rules, an issue should be determined according to the common law unless the plaintiff is subject to any system of customary law and claims to have the issue determined according to that system, when it should be so determined.”

The applicability of this rule will be considered presently in this judgment. At the trial the district court grade II accepted the respondent’s case. He took the view that the case he had to decide was the seduction of the “complainant’s wife Muniratu while her child is young which is contrary to Dagomba customary rites.” He concluded after examining the whole evidence in the case that: “The plaintiff has ... proved his case by preponderance of evidence as against defendant” and he gave judgment for the respondent and ordered the appellant “to pay N¢260.00 damages to the plaintiff plus cost assessed at N¢11.00.”

It is against this judgment and order that the appellant appealed to this court. Eight grounds of appeal were filed as follows:

“(i) The judgment is against the weight of evidence.(ii) The learned magistrate is wrong to infer that the mere presence of Muniratu Imoru in the room of the appellant means that the appellant had sexual intercourse with her. (iii) The learned magistrate erroneously accepted the proof of custom as a point of law. (iv) The learned magistrate erroneously assumed that he could substitute a new claim for the plaintiff ‘s original claim.(v) The respondent failed to call a material witness.(vi) The learned magistrate erroneously admitted hearsay evidence.(vii) The learned magistrate erred in law in that he accepted conflicting evidence of the witness of the respondent.(viii) The respondent did not adduce any evidence at all to support the award of the N ¢260.00 damages.”

Before considering the grounds of appeal and even the central facts adduced in evidence by the respondent in proof of his case, it seems to me that a preliminary matter which must be decided is the law applicable to this case. Is it to be the common law or the customary law? At first blush it seems the question is unnecessary since the respondent would seem to have specifically stated in his writ that his customary law right has been infringed by the appellant. In my view however the matter is not that simple having regard to paragraph 64 (1), Rule 6 of N.L.C.D. 84. It must be noted that under that provision customary law applies only when the plaintiff is subject to a particular system of customary law and claims to have the issue determined in accordance with that particular system. It would seem therefore that for Dagomba customary law to be applied in this case the respondent must first show that he is subject to Dagomba customary law, and then secondly claim that he wants the case to be decided in accordance with the said customary law.

It is significant that in this case no direct evidence whatsoever was led to show that the respondent was subject to Dagomba customary law. Of course he gave evidence in Dagbani and took the oath in Dagbani and lodged his complaint to the chief of his village, a Dagomba village, and he said the appellant’s act was against Dagomba customary law. These inconclusive pieces of evidence lend some weight to the view and are circumstantial evidence of a sort that he is subject to Dagomba customary law. A civil appeal like this is in effect a rehearing of the substantive suit and I can reopen the case and hear evidence as to the tribe to which the respondent belongs and whether he is subject to Dagomba customary law or not in order to do substantial justice. Counsel assures me that the plaintiff is a Dagomba. I shall assume for the purpose of this judgment that he is in fact a Dagomba, and thus subject to Dagomba customary law. I am aware of course that under article 126 (2) of the Constitution, 1969:

“126. (2) The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.”

“Common law” as used in Rule 6 of paragraph 64 (1) of N.L.C.D. 84 is clearly in juxtaposition to customary law as also used in the said Rule 6 and is not so inclusive as to be indistinguishable from the “common law of Ghana” as that expression is used in article 126 (2) of the Constitution. Consequently the distinction between common law and customary law as spelled out in paragraph 64 (1), Rule 6, still remains and poses for this court a preliminary legal point to be decided as to the application of common law or customary law. I propose therefore to approach this case by yielding to the submissions of counsel for both parties that the appropriate law to be presumed to be applicable to this case is the customary law of the Dagombas.

Before considering the content of the applicable law it is necessary to consider the facts briefly. The respondent led evidence that he lives at Nyohini in Tamale with his wife Muniratu Imoru. They have a baby two years old. On 24 March 1970 he went to Paga. In the night of that day his younger brother heard their baby crying and when he went to the house the said brother found that the mother of the child was not in the room. He reported this to one Fuseni as well as the uncle of the said wife and they set out to search for the said wife. During the search and while the members of the search party were talking, the wife who was sleeping with the appellant, heard her uncle’s voice; she woke the appellant and told him that her father and others were talking outside. The appellant gave her N¢0.60 and asked her to go out. She came out and seeing her uncle and others she started to run away but she was chased and caught. She admitted that she was invited by the appellant to his room and that she went there and they slept. Her evidence was not challenged. Her baby was two years old and after delivery she stayed in her own parents’ house until the child started walking before she returned to her husband’s house seven months before the incident.

Although the appellant did not challenge the evidence of Muniratu he nevertheless denied the allegation that he had carnally known her or that she came to his room and slept with him and his counsel in addresses before the district court and before this court submitted that the evidence of the said wife that she slept with the appellant is not enough material from which the court should infer carnal knowledge. The magistrate had no difficulty in answering this submission. He said that “sleeping together in the native sense means seduction.” I think the district magistrate was right in the view he took of the facts. It seems to me that the evidence which the wife of the respondent gave can only mean that she was confessing to having been carnally known by the appellant and on principle the failure of the appellant to challenge her evidence must be taken as an admission of the allegation that he did indeed commit adultery with the respondent’s wife. This is the principle enunciated by the House of Lords in the case of Browne v. Dunn (1894) 6 R. 67 (which is set out at pp. 257-259 of Cockle’s Cases and Statutes on Evidence (9th ed.)), where Lord Herschell L.C. said at pp. 257-258:

“It seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit ... I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him.”

In the light of this it seems to me that the decision of the magistrate on the facts is unexceptionable and grounds (i), (ii), (v), (vi) and (vii) must fail. The appellant did indeed carnally know the respondent’s wife Muniratu Imoru.

Grounds (iv) and (iii) involve points of law and on ground (iv) counsel for the appellant argued that having regard to the statement of claim the ingredients of the respondent’s case which must be proved if the respondent is to succeed are two:

(1) The appellant had sexual intercourse with the respondent’s wife.(2) The respondent had a child by his said wife and the said child is under age.

He submitted that it was never established that the child was under age under Dagomba custom. He submitted that under Dagomba customary law a child is of age when the father has had sexual intercourse with the mother after the birth of the said child. He submitted that the sexual intercourse which thus takes place for the first time between a husband and wife after the birth of their child is called bia zugu yagbu, and it is only after this that a child is said to be of age. I shall later on in this judgment deal at some length with the true Dagomba customary law position in relation to a claim for bia zugu yagbu.

In arguing ground (iii) counsel for the appellant submitted that an action lies in the circumstance of this case having regard to the writ of summons and the customary law of Dagomba only if it is proved that a man had sexual intercourse with another’s wife when that other person had not yet had sexual intercourse with his said wife after she had given birth to a child. It is this action, an action for bia zugu yagbu, which the respondent instituted, and if he failed to prove it his claim should be dismissed and a lesser claim ought not to be substituted for the said claim. Counsel for the respondent submitted in reply to these customary law submissions that the fact that the wife had an infant child does not go to the root of the respondent’s claim for damages for adultery. He submitted that under Dagomba customary law if that fact is proved it aggravates the adultery, consequently; in a claim for bia zugu yagbu, before the husband takes back his wife he must make certain sacrifices to expel the evil spirits and thus prevent the child at hand and subsequent children from dying.

Unfortunately, and I can appreciate the difficulty of counsel, no authorities of any sort were cited in support of the propositions of Dagomba customary law which were propounded with so much confidence by counsel for the parties. I did not get the northern Sarbahs and Danquahs and as I found myself entertaining grave doubts as to the nature of the Dagomba customary law relating to adultery and the resultant rights and remedies of an injured husband in cases of adultery, I decided after I had heard the submissions of counsel and after I had consulted a few books as well as documents in the National Archives at Tamale, that it was necessary to hold an inquiry under paragraph 65 of the Courts Decree, 1966 (N.L.C.D. 84). Accordingly, after hearing counsel on the point, I decided to hear two persons, namely: the Wula-Na, who is the chief linguist in the court of the Gulkpe-Na, the Dagomba chief of Tamale; and the Zobogu-Na, a Dagomba sectional chief of the Tamale Traditional Area who is a highly educated chief who rose after more than 40 years in the field of education to the position of the Principal Education Officer of the Northern Region. These witnesses appeared on subpoena to tender their opinion, inter alia, on the nature of adultery under Dagomba custom and the remedies or penalties, if any, associated with it. After these two witnesses had given evidence and after hearing counsel, I formulated six sets of questionnaires which were forwarded to the Dagomba Traditional Council for its written opinion in accordance with the proviso to paragraph 65 (3) (b) of N.L.C.D. 84.

Quite clearly in order to be in a position to decide this case properly it appears to me that it is absolutely necessary to have a firm grasp of the customary law of the Dagombas with respect to adultery. As I indicated earlier the submissions which counsel made in the course of this appeal, unsupported as they were by any authorities, generated in my mind considerable doubt as to the nature and content of the said law. I must say that the witnesses who gave evidence at the inquiry., particularly the Zobogu-Na, have thrown considerable light on the customary law of adultery among the Dagombas and they have enabled me to find my way in the tangled confusion of the earlier works I consulted. They have also enabled me to appraise the submissions made by counsel for the parties on the Dagomba customary law and as I shall demonstrate in this judgment it seems to me that the submissions are substantially misconceived.

The difficulty with the works I consulted is that their authors were mostly expatriates who were generally anthropologists and educated men and were apparently not lawyers and in expounding the customs they climbed on a pedestal and condescendingly applied themselves to their tasks. In the process their vision appeared rather clouded and they thus disabled themselves from penetrating and thus expounding with clarity the material given to them by the indigenous inhabitants. With the possible exception of perhaps Capt. R. S. Rattray, who was a lawyer, the probable exception of Mr. H. A. Blair and the dubious exception of Dr. Fortes, most of the expatriate writers were neither deep nor profound nor were they able to bring to their task of expounding the customary law that analytical approach which any trained lawyer would have employed if he was engaged in carrying out an investigation into the customary law. The result is that in many of the works, many questions on customary law were unanswered which could have been easily elicited by simple questions.

Typical of the patronising writers is A. W. Cardinall who wrote The Natives of the Northern Territories of the Gold Coast: Their Customs, Religion and Folklore. In that book, illustrative of his approach, he commences his preface with a quotation from one Sir James Frazer:

“‘The savage does not understand the thoughts of the civilised man, and few civilised men understand the thoughts of the savage.’ I do not claim to be one of these few.”

He can hardly be in a position to understand the peoples, filled as he was with such notions. Later on in his preface he says of the people of the Northern and Upper Regions at p. x:

“The blackman here is a curious being.”

At pp. 54, 55, 79 and 81 he discusses adultery but it is so perfunctory and superficial as to be valueless. He practically dumped the people together and yet the compilation of customary laws initiated by Mr. W.J.A. Jones, the then Chief Commissioner of the Northern Territories, on 14 August 1937 (to be discussed presently), demonstrated that the laws of the various northern tribes differed in many respects on this matter of adultery. This practice of treating in one portmanteau the law of adultery as if it is a single law of general application in West Africa is characteristic of the approach of many of the early European writers. One such very early writer, the Rev. C. W. Thomas, in his book Adventure and Observations on the West Coast of Africa (1860) writes at p. 290 in a vein typical of the age that, “unlawful amours are constantly occurring notwithstanding the severity with which adultery is punished. The punishment of the woman, if her husband desire it, is mutilation; the nose, an ear, or a finger is taken off; the man, generally, is enslaved to the injured party.” This presumably applies in all West Africa! And yet the International African Institute published in 1953 a survey entitled Survey of African Marriage and Family Life. This survey edited by Arthur Phillips, a reader in law at the University of London, demonstrated that the customary laws of adultery in West Africa were by no means uniform and that even in the same territorial area they differed widely among the various tribes.

Mr. E. Foster Tamakloe, a Ghanaian of the Ewe tribe who lived among the Dagombas at the beginning of the century, wrote a monograph A Brief History of the Dagbamba People in 1931. The work is in the National Archives in Ghana. In that book he traced the history of the Dagombas, whom he called the Dagbamba people, as it was given to him by the traditionalists in Yendi from a period before A.D. 1416 during the reign of King Nyagse or Na-Nyagse to 1917 which was in the reign of Na-Abudulai II who became regent in 1917 on the death of Na-Alasan. In Tamakloe’s book it is shown at pp. 40-42 that the punishment for adultery with the wife of the Ya-Na, the King of Dagbon, was that both the female adulterer and her paramour were led to a famous baobab tree called na-data meaning the king’s rival and there they were beheaded by the Cheri-Lana (the chief executioner). In the reign of Na-Abudulai II, 1876-99, there were many such executions at na-data. So that as far as history is any guide, adultery with the wife of the Ya-Na, the king of the Dagomba people, was a criminal offence punishable with the only penalty known to Dagomba custom for that type of crime: death. This is very much like the position as it existed in England in the days of King Henry VIII.

In 1897 Mary H. Kingsley published her work Travels in West Africa. At p. 497 she wrote:

“The laws against adultery are, theoretically, exceedingly severe. The punishment is death, and this is sometimes carried out. The other day King Bell in Cameroon flogged one of his wives to death, and the German Government have deposed and deported him, [presumably she meant exiled not deported] as a general rule all along the Coast the death penalty for murder or adultery is commuted to a fine, or you can send a substitute to be killed for you, if you are rich. This is frequently done, because it is cheaper, if you have a seedy slave, to give him to be killed in your stead than to pay a fine which is often enormous.”

It is noteworthy that she did not confine these opinions to any one tribe — it is all along the coast; nor did she show that the death penalty is imposed as in the instance she gave in the case of a chief or king. No, her researches, such as they were, seem to reveal to her that all along the coast of West Africa this is the general punishment whether the injured husband is a commoner or of royal blood. Now these opinions, touching the customs relating to adultery, would have been valuable if the lady had actually studied the position all along the coast. She visited only Accra and Cape Coast and these two places cannot possibly be “all along the coast” of Ghana. Mary Kingsley wrote in 1897, the same year as John Mensah Sarbah, an indigenous writer from Cape Coast and a barrister-at-law, published his book described in the Times, 4 February 1897 as “excellent work.” She seemed to have written like the expatriate writers of the time in general terms dumping all West Africans together, unmindful of the obvious fact — obvious from a perusal of Sarbah’s 1897 work that like Europe, West Africa’s population is heterogeneous with peoples having different customs, laws and ways of life. In my view, as the lady did not visit the north of Ghana, her opinion is not reliable on the custom of the Dagombas. Indeed in 1898 she wrote to Sarbah as follows:

“I hope you will excuse a total stranger addressing you. My excuse is our mutual interest in law ... You have done more than any one by your valuable ‘Fanti Customary Law’ — which I continually advertise — to help,...”

(See Fanti National Constitution (2nd ed.), pp. 259-260).

And yet in Sarbah’s Fanti Customary Laws (1897 ed.) at p. 41 Sarbah expounded the customary law of adultery of the Fantis as follows:

“Where a married woman is seduced, her seducer is bound to pay to the husband, damages not less than the value of the consawment dowry money, and all the marriage expenses. And if, on account of such seduction, the former marriage is dissolved and he marries the woman, he cannot at any time recover from her family what he had so paid, even if the woman, without any cause whatever, refuse to live with him then or afterwards.”

It seems to me that I must ignore the lady’s opinion because, having regard to Sarbah, it is not even true of the Cape Coast of the time which she visited a Fante town.

At the regional office of the National Archives I came across a circular letter ref. No. 1665/26/36 dated 17 June 1936 addressed to all district and assistant district commissioners in the Northern Territories by the then chief commissioner of the then Northern Territories, Mr. W. J. A. Jones. The circular reads inter alia:

“[I]n view of the extension of the Supreme Court to the protectorate it would be advisable to compile a record of the native law and custom obtaining in the various native authority areas on questions which should not be governed by British law. Such a record would clearly prove of great value in the future in that it would ensure of due regard being paid to the law of the people themselves and therefore prevent misunderstanding of and dissatisfaction with the decisions of the courts. Those of us who have served in the colony will readily appreciate the extent to which the continuance of land dispute would have been prevented had such a record existed for the guidance of the courts.2. Given below are principal causes of disputes and litigation. I shall be glad if you will ascertain by means of careful inquiries the native law and custom governing them among the tribes under your control. Every care should be taken to check the information given to you. Having written up your record you should convene a full meeting of the chiefs and peoples, have interpreted to them your account of their law on each subject and request the chiefs to put their marks to the document if they agree as to its accuracy ...”

The list of matters submitted were as follows:

(a) land tenure;

(b) marriage;

(c) divorce;

(d) custody of children;

(e) inheritance; and

(f) right of succession to chiefship and other important posts.

Questionnaires were appended to each matter and the questionnaire for “(c) divorce” was as follows:

“(c) Divorce—(1) On what grounds is it obtainable.(2) What repayments, if any, have to be made by the family of the woman.(3) What is the actual ceremony of the divorce (in the colony the woman was marked with white chalk).(4) What is the position of the woman with regard to marriage after divorce.”

The statement of Dagomba customary law dated 15 May 1937 thus obtained relating to adultery to which all the Dagomba chiefs, including the Ya-Na, subscribed were the relevant answers to the questionnaire on divorce (c) above. The original document itself dated aforesaid, containing the customary law on all the matters listed above and subscribed to by all the Dagomba chiefs, is at present in the regional National Archives in Tamale. The relevant answers to the said questionnaire on divorce read as follows (the emphasis is mine):

“There is only one ground for divorce in Dagomba viz. adultery by the wife. Where the adultery occurs during the wife’s pregnancy or during the ritual period of separation after the birth of a child, the husband must divorce the wife. In this case the adulterer pays an agreed and invariably heavy penalty to the husband and takes the wife. No payment is made by the wife’s family ... After a divorce on grounds of adultery as described the woman becomes the wife of the adulterer. If the adulterer cannot be found, she may if she so desires take another husband; but the latter must then refund to the first husband his marriage expenses ...”

When the questionnaire on the Dagomba customary law was handed to Mr. H. A. Blair, then assistant district commissioner in Yendi, a man who had shown considerable interest in the customs and laws of the Dagombas and who had written an essay on the Dagomba people on 4 March 1931 the relevant portion of which will be discussed in this judgment, he conducted the inquiry and this is what he wrote as answers to the questionnaire on divorce as appears in file No. Adm. 2/15 in the archives at Tamale. On the first question, namely: “On what ground is divorce obtainable” Blair wrote:

“(1) A husband may never divorce his wife except for adultery. Even then he will generally not do so. [If she agrees to stay] unless—(a) the adultery occurred when the wife was pregnant.(b) the adultery occurred during the ritual period of separation after the birth of a baby, i.e. before husband has again had intercourse with his wife. Actually intercourse seldom takes place until the baby has ceased to feed at the breast. In these two instances divorce is inevitable, as failure to divorce the wife will cause the death of the child. The adulterer will pay the heavy penalty, take the wife and surrender the child.”

On question (2) “What repayments, if any have to be made by the family of the woman” Blair wrote further:

“(2) The wife’s family makes no repayments to the husband but the adulterer must do so. If however the wife either before or after marriage runs away to her father and says that she will not stay with her husband the father may say to the husband ‘I seize her by force.’ If he does so he must repay to the husband whatever he has spent as presents to the relatives in law.”

On question (4) “What is the position of the woman with regard to marriage after divorce” Blair wrote:

“(4) Where her father ‘has taken her by force’ he will find her another husband. In the instances described in (1) above she will remain with the adulterer and become his wife. If the adulterer cannot be found she may remain single amongst her own family or be taken by another husband. If the latter her new husband must then repay to the old husband his expenses.”

It would seem that there is no difference between the custom as was recorded by Blair and as was subsequently propounded by all the Dagomba chiefs, namely, that after a divorce on the grounds of adultery the woman becomes the wife of the adulterer on his payment of the husband’s marriage expenses not only in respect of the two specific cases during pregnancy or the ritual period of separation adverted to by Blair but in all cases of divorce on grounds of adultery. And it would seem that repayments and heavy penalty may very well be descriptive of the marriage expenses which the adulterer refunds to the husband before taking his wife. The word “penalty” as is used here and its choice instead of “repayment” may need further clarification later on in this judgment having regard to the customary law. The word occurs again in further minutes of the Dagomba chiefs.

The Dagomba chiefs met again at the Ya-Na Abudulai II’s palace on 25 and 26 March 1937 and stated, inter alia:

“That the sons of and grandsons of chiefs when found guilty for the first offence of fornication should be given 12 strokes and reprimanded.... Penalty for adulteress:(a) The Ya-Na’s wives £25-£35 and to be expelled from Dagbong.(b) Sub-divisional chiefs’ wives £12-£15.(c) Sub-chiefs’ wives £8-£12.(d) Headmen and commoners wives £6-£8.”

It does not appear that the colonial government accepted the additional stipulation that in the case against the Ya-Na’s wives the adulterer should be exiled or deported from the Dagomba Traditional Area (Dagbong) since this was deleted from the text which was submitted to the chiefs for their approval as a statement of Dagomba customary law dated 15 May 1937.

On 4 March 1931 as I have already indicated in this judgment H. A. Blair wrote: An Essay on the Dagomba People. The manuscript ref. No. Adm. 11/1/824 is at the National Archives in Accra. At p. 53 of this manuscript Blair dealt at some length with this question of adultery under Dagomba custom before the pax Brittanica. He writes under the heading “Adultery and Fornication”:

“Adultery with the Chief’s wife is punished with death or selling into slavery. Violation of other kinds falls into four classes:(a) Violation of a virgin; 200,000 cowries fine paid into Court.(b) Violation of a man’s wife, who has never yet borne and is not at the time with child; 120,000 cowries fine paid into Court.(c) Violation of a wife, when with child. If she tells at once the name of the offender, he is to be fined 300,000 cowries. If she does not at once confess she and the child will die. The offender will then not be liable to penalty even if he is known, for the penalty has been paid vicariously by the wife.(d) Violation of a wife, after bearing, before her husband has again slept with her (he is not permitted to do so for three to four months) fine paid into Court 300,000 cowries. If the woman returns to her husband and sleeps with him again after this offence, the child will die. If she does not do so, and remains as the adulterer’s wife the child will not die, but must be returned to the husband, when it is grown.”

At the time Blair wrote 1,000 cowries which were previously valued at 6d. had appreciated in value to one shilling (see Tamakloe, p. 63). Of the fines thus paid Blair writes at p. 52:

“all fines inflicted were technically the property of the Na. The larger part, or even the whole of these, was generally relinquished, as an act of grace, to the divisional Chief.”

At p. 48 Blair adverts to this matter of sexual intercourse with a man’s wife while his child by her is under age. He writes:

“There are also tabus in connection with childbirth. After a wife has borne her husband a child, if after it the next person with whom she has intercourse is someone other than her husband, the child will die. If again, a woman miscarries a male child, she must not have intercourse with her husband again for three months, if a female, for four months. Again, should a stranger have intercourse with her, after she has miscarried and before her husband has had intercourse with her again, it is a breach of the tabu. In either case, she will again miscarry. Tabu, in Dagomba, is thus seen to be a veto on the breach of certain rights ... This breach involves a mechanical retribution of a definite and unavoidable kind. Like Nemesis, ... the offence once committed, the doom is sure to follow, and only supernatural intervention can prevent it.”

It is a pity that Capt. Rattray, a barrister-at-law and an anthropologist and one of the most brilliant, meticulous and industrious of the expatriate writers on the north did not in his The Tribes of the Ashanti Hinterland published in two volumes in 1932 devote much thought to the customary laws of the Dagombas, as he did with the Ashantis.

It is, however, significant that by Order No. 43 of 1936 which came into force on 23 May 1936, an order made under section 8 (1) of the Native Courts (Northern Territories) Ordinance (Cap. 85), adultery with another man’s wife was statutorily made a criminal offence cognisable by the native courts, inter alia, in Dagomba in accordance with the native law and custom prevailing in Dagbon. This indeed is a recognition that under Dagomba native law and custom adultery with another man’s wife is a criminal offence. Now but for the text of the 1937 statement of Dagomba customary law on adultery as a ground of divorce which was subscribed to by all the Dagomba chiefs, the problem of the nature of adultery under Dagomba custom could hardly have created any difficulty. It is noteworthy however that in the text it was stated in the two cases where divorce is said to be inevitable that: “the adulterer pays an agreed and invariably heavy penalty to the husband...” This would seem to suggest that the adulterer is liable to pay heavy damages to the injured husband and that therefore under Dagomba custom the husband has a civil claim sounding in damages.

Now in the case of the Ya-Na it is clear that it has always been a criminal offence and Order 43 of 1936 can only be taken as giving statutory recognition to the customary law position; but the Order was not confined to the Ya-Na. It applied to all Dagombas in Dagbon. If this is so then it would seem that under Dagomba law adultery is both a criminal offence and a civil wrong. Is it so? I cannot conceive of any ancient native institution so sophisticated as to evolve in respect of a single act or omission of the individual this duality of sanctions which is thus by implication imputed here to the old Dagomba legal process. I apprehend though that it is neither impossible nor improbable that such a procedure can have been evolved. Once the criminal process has crystalised, a stage is easily reached where it is considered expedient and just that the victim of a crime be compensated and by the same procedure the criminal and the civil can be welded together to do substantial justice. Is that what happened with the Dagombas? Perhaps a consideration of the statement of Blair in regard to the customary position presented by the violation of a wife when with child can throw some light unto the problem. According to Blair if the wife confesses the paramour is fined 300,000 cowries which in present day reckoning is N¢30.00. If she does not confess she and the child will die and in that event the offender, even if he is known, will no more be liable to pay the penalty, and the reason for this non-payment is that by her death the wife has vicariously paid the fine.

Now this is curious. If the claim of the husband is a claim against the adulterer then the death of the wife for whatever reasons can hardly affect his civil claim. Before the death of the wife he has a subsisting claim against the husband; that claim must be based on damages actual or notional and once it has come to rest and is therefore notionally quantified, it is difficult to see why if it is a civil claim it can be destroyed by third parties. If it is a crime, call it a sin committed against the sanctity of the marriage state, then with the marriage itself determined by act of God there may be some sense in not pursuing the matter. Besides being criminal the matter is in the hands of the state and the state can afford to let sleeping dogs lie. The explanation that the dead woman has paid the fine does mean that the fine was never considered as compensation or damages but a sum meant to pacify perhaps ancestral gods. In which case the matter is clearly criminal or quasi-criminal and certainly not civil.

However, in his invaluable work a signed memorandum of which is apparently the original in the Tamale Regional National Archives, Marriage law among the Talensi Dr. M. Fortes discusses adultery pogambou thus (the emphasis is mine):

“This becomes a matter of public concern only when a married woman is involved. A married man’s sexual escapades with unmarried girls are of no interest to any one but himself and his wives, who may be jealous but can do nothing about it.When a married woman commits adultery and returns to live with her husband it is a grave sin. Sickness or even death may be visited upon her children, her husband or herself by indignant ancestor spirits unless she confesses. Hence a woman suspected of adultery is often subjected to magical or religious ordeals in order to extract a confession. Once she confesses the matter is finished as far as she is concerned. No man would dream of divorcing his wife for a single act of adultery. The action taken against the adulterer depends upon the kinship and political relationship of the husband’s family and clan with those of the adulterer. The idea of claiming monetary compensation from the adulterer, as in Ashanti, is completely foreign to Talensi custom which looks upon the woman as equally guilty with the man. If the adulterer’s clan or family are related by kinship or political bonds or by neighbourhood ties to the family or clan of the enraged husband a reconciliation has to be made between them. This is arranged and the rites carried out by the elders of the two groups. The adulterer supplies the fowls or the sheep or the goat which is slaughtered in the reconciliation ceremony. If the adulterer belongs to a settlement with which no connection whatever exist, his act does not upset friendly relations and the matter is simply dropped, the husband and his clansmen will try to take revenge by committing adultery with the wife of one of the adulterer’s clansmen at some future date.”

Commenting on Dr. Fortes’ view of the law of adultery the then district commissioner for Mamprusi, Mr. G. N. Gibbs, observed in a letter to the chief commissioner on 18 February 1937, a copy of which is in the National Archives, Tamale:

“The true Mamprusi chiefs, in common, I believe with their brother Dagombas consider that they are entitled to civil damages according to rank, from their wives seducers. This practice has never obtained North of the Volta but the Mamprusi and Dagomba are comparatively cultured peoples.”

The Talensi discussed by Dr. Fortes like the Dagomba belonged to the group of tribes classified by Rattray as “the Molle language group” and their customs are not widely dissimilar. (See Rattray: The Tribes of the Ashanti Hinterland, chaps. 1 and 33 et seq.)

Now the question which poses itself from a consideration of the material discussed above is this: Is adultery with another man’s wife a criminal case or a civil case or what? Dr. Fortes in discussing pogambou among the Talensi says:

“According to Talensi custom therefore while adultery is both a sin on the part of the married woman and a serious offence against friendly relationship it could harldy be described as a crime.”

But what is it at least among the Dagombas?

It was in an effort to seek an answer to this question that I conducted the inquiry which I did under paragraph 65 of the Courts Decree, 1966 (N.L.C.D. 84). The Wula-Na and the Zobogu-Na are unanimous in the opinion which they offered touching the customary law on adultery. The Wula-Na is quite an elderly man who says he was four years old during the reign of Na-Abudulai II (1876-99). The effect of their opinions is that before the coming of the British a husband whose wife had been carnally known by an adulterer sought redress by first going to lodge a complaint with the chief through an intermediary who had to be an elder of the skin. The lodging of the complaint was called ngame kuna nayili meaning to raise a cry at the chiefs house. He then presented to this elder guli meaning kola but of course it was not just literally kola as any gift would do. The complainant was then taken to the chief and after narrating his case he swore the oath of the chief’s dead father na-ba pori, and a sheep had to be provided by the accused adulterer. The provision of the sheep in all cases of na-ba pori is known as kolaa and at the conclusion of the case if the adulterer is exonerated then the complainant must refund the sheep to him since he is then said to have sworn the na-ba pori falsely. At the chief’s house the complainant asked the chief to punish the adulterer for him and he did this by asking the chief to “pull his ears” by saying darigim o tibli. When the case was gone into and the adulterer was found guilty he was ordered to pay an adultery fine: pan kobiga or vagina money. This money according to Dagomba custom is dagiri meaning dirty money and it was therefore not fit for the husband. There is this statement of Dagomba customary law which neatly sums up the legal position: “Na ndiri pan kobiga” meaning literally, “It is the chief who eats vagina money” that is adultery fines belong to the chief.

To illustrate the legal position, the Zobogu-Na gave the court in the course of the inquiry the case of Dawuni v. Neimdow-zie which was a case decided in 1929 by the chief of Tamale, Dakpema Lagimbu and his councillors. He was then the part-time court clerk and he recorded the proceedings. In that case Dawuni was the complainant. His wife was seduced by Neimdow-zie and he caught them in flagrante delicto. He seized the cloth of Neimdow-zie and lodged his complaint in Dakpema Lagimbu’s court. Niemdow-zie admitted that the cloth was his, the case was heard and Neimdow-zie was found guilty and fined 120s. The fine was paid into court.

The position therefore is that pan kobiga adultery fee is not damages payable to an injured husband. The further opinion of the witnesses is that if the husband divorces the wife because of adultery he can if he so chooses claim the expenses he incurred before marrying his wife as well as all the expenses he incurred during the marriage and these expenses will include funeral expenses which he incurred when a relative of his wife died. These expenses are called deen buni. They can be refunded by the adulterer and he can then marry the woman. The wife’s family however may refuse to allow the adulterer to marry their daughter in which case they pay the deen buni. The injured husband may not wish to divorce his wife in which case he may raise a cry at the chief ‘s house ngame kuna nayili and get the chief to exact pan kobiga from the adulterer as a punishment and he will keep his wife and receive nothing. Indeed from the evidence of these two witnesses it would seem that so repulsive is this idea of having anything to do with pan kobiga the dirty money of the adulterer that even if a Dagomba chief’s wife is carnally known by someone and his court fines the person the fine does not go to the chief as all fines normally do but rather to his elders. In some cases when the chief’s wife is involved he and his elders will not go into the case at all. He will rather delegate another chief to go into the matter so that that chief can keep the pan kobiga (the vagina money). This opinion of the witnesses would seem to accord with Dr. Fortes’ remarks in his Marriage law among the Talensi, “that the idea of claiming monetary compensation from an adulterer so prevalent among the Akans would seem to be as foreign to the Dagombas as it is among the Talensi and many of the tribes of the north.”

In the case before me it was submitted by the appellant that the claim is a claim for bia zugu yagbu which the respondent had failed to prove. At best he is said to have proved a case of simple adultery. I therefore considered it necessary to seek further guidance from the witnesses on adultery bia zugu yagbu. The witnesses deposed that in Dagomba custom after a man’s wife had delivered he is not supposed to have sexual intercourse with her until the child had walked. This is called bia naba tuubu meaning the child’s feet have come together, i.e. the child is able to stand on his feet. If however the husband does break this custom it is not a taboo and it is not serious. When the child begins to walk, the first sexual intercourse which the man has is called bia zugu yagbu. The term is also applied to the sexual intercourse which an adulterer has with a man’s wife after she has thus delivered and the baby is under age and her husband had not yet carnally known her. This is a taboo which automatically dissolves the marriage. It is believed among the Dagombas that in such a case divorce is inevitable because if the husband resumes cohabitation the child and all subsequent children to be born will die and so there is no need for the parties to continue the marriage. Furthermore when after a wife’s delivery the child dies or when the said wife miscarries, then in such cases if the child is a male child the husband is not supposed to have sexual intercourse with his wife until after three months and if the child is female until after four months. This is referred to as bihi-koba meaning the child’s bones and if before the husband has had sexual intercourse with his said wife after the three or four months’ period another person were to have sexual intercourse with her this type of adultery is called bihi koba wobbu and it is also a taboo and is equally as serious as adultery bia zugu yagbu and like it, it also determines the marriage. Thus under Dagomba custom it is the husband who must first have sexual intercourse with his wife after delivery or miscarriage and no matter how long he takes to have it, if any one were to have sexual intercourse with the wife it is a taboo and comes under either bia zugu yagbu or bihi koba wobbu. Of course in such cases of adultery bia zugu yagbu or bihi koba wobbu where the woman is shown to have waited long and the husband has neglected to have the sexual intercourse, the tribunal takes a very sympathetic view and the fine, the pan kobiga, is often a very nominal one but the offence is nevertheless a taboo and the marriage comes to an inevitable end.

Giving his opinion on adultery bia zugu yagbu the Wula-Na said the taboo can be neutralised to permit the parties to re-marry in this way: the adulterer produces three fowls and one goat and takes them to the injured husband’s house through the intermediary of the chief and these are sacrificed to pacify the injured husband’s family gods and his dead ancestors. The Zobogu-Na on the other hand maintained that there is no known antidote to neutralise these taboos and permit the parties to re-marry. According to him when a man divorces his wife and the wife after re-marrying comes back to marry her first husband again, then in such a case it is believed among the Dagombas that she is coming back with filth, and so sacrifices are made for her to be cleansed and the gods and ancestors of the husband pacified. This sacrifice is a private one and it is done in the night with the husband and the wife coming out naked during the ceremony of the sacrifice. After the ceremony the husband and wife are notionally considered to have been re-born and the master of ceremonies usually takes a stick and goes through the motions of chastising them without actually doing so. This sacrifice is called datari malibu. The animals used for the sacrifice are fowls and goats and the number depends on the request of the person conducting the ceremony. When the Wula-Na was recalled and this evidence read to him, he agreed that it is this which he has erroneously described as an antidote sacrifice to the taboo bia zugu yagbu and he agreed that it is not possible by sacrifice to neutralise the inevitable result of the taboo bia zugu yagbu.

Having regard to the opinion of the Wula-Na and the Zobogu-Na which I accept as a correct statement of Dagomba customary law, it seems to me clear that in the case before me adultery bia zugu yagbu was never proved since the respondent did not lead any evidence that he has not had access to his wife during the seven months that she had been with him when she returned to him after the delivery of her child who was, it would seem about two years old and was walking. I also accept in particular the statement of the said witnesses that apart from claiming deen buni his marriage expenses if an injured husband does divorce his wife on the ground of adultery, he has under Dagomba custom no claim for any damages or any sum of money if he intends to keep and not divorce his wife. His only rights being to raise a cry in the chief’s house for pan kobiga to be exacted from the adulterer. This would seem to be a quasi-criminal remedy and it is certainly not a claim sounding in damages.

However, as I have already pointed out it seems to me that the opinion of the Wula-Na and the Zobogu-Na would seem to indicate very clearly that a claim by an injured husband for damages for adultery is unknown to Dagomba custom as on the authority of Dr. Fortes it is also foreign to the Talensi. Mr. G. H. Gibbs, the then district commissioner of Mamprusi however expressed the view which I had referred to already:

“The true Mamprusi chiefs in common I believe with their brother Dagombas consider that they are entitled to civil damages according to rank from their wives’ seducers. This practice has never obtained North of the Volta but the Mamprusi and Dagomba are comparatively cultured peoples.”

Having regard to this opinion and coming as it does from a person who had worked among the people for a long time, it occurred to me that perhaps under modern conditions the Dagomba custom of yester years may have been modified and perhaps with the disappearance of the criminal remedy a new remedy to meet the changing conditions has by adaptation been evolved or forged to give redress of a sort to an injured husband. I was not unmindful of the opinion of Lord Atkin in the Privy Council case of Eleko v. Officer Administering the Government of Nigeria [1931] A.C. 662 at p. 673, P.C. where he remarked:

“An interesting question arose at the hearing as to the modification of an original custom to kill into a milder custom to banish. Their Lordships entertain no doubt that the more barbarous customs of earlier days may under the influences of civilization become milder without losing their essential character of custom. It would, however, appear to be necessary to show that in their milder form they are still recognized in the native community as custom, so as in that form to regulate the relations of the native community inter se.... It is the assent of the native community that gives a custom its validity, and, therefore, barbarous or mild, it must be shown to be recognized by the native community whose conduct it is supposed to regulate.”

It is clear for instance that under Dagomba custom before the British came the only redress a Ya-Na had when his wife was violated was to have imposed the death penalty on both the wife and the paramour. It seems under the influence of changed conditions this was changed to a fine and this would seem to be in keeping with the view expressed by Lord Atkin above. It is for the above reasons that I sought to confirm the current nature of the Dagomba customary law in relation to adultery by formulating and forwarding to the Dagomba Traditional Council on 21 February 1971 in accordance with the proviso to paragraph 65 (b) (b) of N.L.C.D. 84 the following questions:

“(1) What are the consequences of adultery under Dagomba custom?(2) What are the rights of a husband whose wife has been carnally known by an adulterer?(3) What does an injured husband do to vindicate whatever rights he has under Dagomba custom?(4) (a) Does an adulterer pay any money as a result of his adultery?Or (b) Does the money, if he pays any, go to the chief or to the injured husband?or (c) Does the money go to both the chief and the husband?Or (d) If money paid does not go to the chief or the injured husband to whom does it go?(5) (a) Are there categories of adultery in Dagomba custom?(b) Name the categories if any and state the consequence of each category.(c) Is bia zugu yagbu one of the categories? If yes what are its consequences.(d) Does a husband have any remedies in a case of bia zugu yagbu? If yes what are they?(6) Is it correct that under Dagomba custom money or fine if any is paid by an adulterer is termed dagri ligri and it is consequently not fit for the husband?”

In March 1971, the Dagomba Traditional Council forwarded the following opinion in reply to the questionnaire:

“(1) Adultery is grossly prohibited under Dagomba customary law.(2) A husband whose wife has been carnally known by an adulterer may first have to go and swear an oath before the chief of that village about the person he has found causing adultery on his wife. The adulterer shall then be summoned before the chief and asked to pay the sum of N ¢4.20 and one sheep to the chief to revoke the oath the husband had sworn. The adulterer shall also be asked to pay the sum of N¢ 40.00 to the chief as a fine under Dagomba customary law.(3) An injured husband may ask for the refund, from the adulterer through the chief, the total amount he had spent in marrying the woman and the cost fully paid by the adulterer.(4) There are four categories of adultery in Dagomba custom and these are:(a) pag-faa (confiscation of wife). This is whereby an adulterer takes away somebody’s wife and has been asked to pay the sum of N ¢100.00 by the chief and also refund the cost of marrying the woman to the former husband or returning the woman to the husband and paying the sum of N ¢100.00 to the chief as a fine under the Dagomba customary law.(b) pag-pulli pahibu: This is whereby a woman who has been pregnant is found carnally known by an adulterer. The husband goes to the chief of the village to swear an oath for the adulterer to be summoned before the chief and asked to pay the sum of N ¢ 4.20 and a sheep plus a fine of N ¢40.00 as under Dagomba customary law. (c) pag-bikoba wobbu: This is whereby a woman has brought forth a child and the child eventually dies and she goes home for some four or five months before she can get back to the husband and an adulterer carnally knows her. The adulterer is charged in the same manner under the Dagomba custom as in section(b).(d) bia-zugu yagbu: This is while a woman has brought forth with the legitimate husband and gone home to her parents for the child to be fully grown before she can get back to the husband and an adulterer carnally knows her. The child eventually is supposed to die if the woman gets back to the husband. Therefore the husband has only to seek through the chief the amount of money he had spent in marrying the woman from the adulterer and the full cost paid to the husband. The adulterer shall also have to pay N ¢ 100.00 to the chief as a fine under Dagomba customary law and take away the woman as his wife.(5) Under Dagomba custom money acquired from an adulterer as a result of the total amount spent by the husband in marrying the woman is paid to the husband, whereas money imposed on an adulterer as a fine goes to the chief who is the arbitrator.”

The answers of the traditional council only confirm the opinion of the Wula-Na and the Zobogu-Na in relation to the Dagomba customary law. It shows clearly that Mr. Gibbs, the ex-district commissioner of Mamprusi, was mistaken in his view of the matter and that the better opinions are those of Dr. Fortes and H. A. Blair. Of course Mr. Gibbs did not seem to be firm in the view he expressed. It seems to me that adultery per se does not give rise under Dagomba custom to a civil claim for damages, i.e. compensation for the violation of the husband’s marital rights. It would seem to only give rise to a criminal or quasi-criminal action according to Dagomba custom. The so-called heavy penalty referred to by Blair and the Dagomba chiefs, would seem to be nothing but a reference to deen buni. It will invariably be heavy as it will consist of not merely the actual expense which the husband incurred before the marriage, but all amounts which he had expended like funeral expenses on the wife’s relatives. It does not seem to me that the respondent is claiming deen buni here. Under Dagomba custom deen buni appears to be an ancillary relief which a husband can claim if he so wishes in the course but only in the course of divorce proceedings and when there is as in this case no divorce actual, pending, or contemplated there can surely be no question of a claim for deen buni under Dagomba custom. In any case an action for deen buni is an action not for general damages as the claim here is, rather it is a liquidated money claim and the plaintiff in such a case must show the actual expenses he has incurred which he is claiming. There was no evidence of any sort led as to such a claim or the amount of marriage expense and so ground (viii) of the grounds of appeal therefore succeeds.

For the reasons I have canvassed in this judgment I hold that the action of the respondent is misconceived and is an action unknown to Dagomba custom. I hold that the judgment of the district court grade II is therefore erroneous in law. I will therefore allow the appeal, set aside the judgment and order of the district court and enter judgment in favour of the appellant by dismissing the respondent’s claim. Since, however, the appellant did indeed commit adultery with the wife of the respondent I will make no order as to costs. The appeal is allowed. There will be no order as to costs.

Appearances

IBRAHIM MAHAMA FOR THE APPELLANT; R. I. ALHASSAN FOR THE RESPONDENT.