JEBEILLE AND ANOTHER V. ASHKAR AND ANOTHER

GRIFFITHS-RANDOLPH J.: On 21 January 1977, an originating summons was filed by Mr. Kwaw Swanzy on behalf of the plaintiffs claiming that a marriage celebrated between the second plaintiff and the first defendant was null, void and of no effect.

A search conducted by counsel on 2 February 1977, revealed that the defendants had been served with the originating summons on 21 January 1977, but that neither of them had entered an appearance; and so that very day, counsel filed an ex parte application for hearing of the summons.

Then on 11 February 1977 he drew the court’s attention to certain relevant sections of the Marriage of Mohammedans Ordinance, Cap. 129 (1951 Rev.), and pointed out that since the provisions of the Ordinance had not been complied with the marriage was not valid.

The first plaintiff also testified that almost a year after his sister, the second plaintiff, had gone through a marriage ceremony with the first defendant, which was celebrated by a Mohammedan priest, she had told him about it; also that although the celebration had been on 19 January 1976, the marriage had been registered on 13 February 1976. Further that she showed him a certificate of the marriage signed by a district magistrate; so that he saw Imam Abass who was the celebrant, and the registrar of the district court, who explained the provisions of Cap. 129 to them. Furthermore that when they realised that the marriage was not valid, the second plaintiff requested that they should take appropriate steps to have the marriage declared null and void, so that another marriage may be celebrated, and properly registered.

If the second plaintiff had not been indisposed, I would have preferred her evidence to that of her guardian or wali; but of course, a party to a suit need not testify, and I accept the uncontroverted testimony of the first plaintiff about the dates of the celebration of the marriage and its registration, i.e. 19 January 1976 and 13 February 1976 respectively, which are borne out by the certificate which was tendered in evidence.

Now the Marriage of Mohammedans Ordinance, Cap. 129 (1951 Rev.), which came into force on 30 December 1907 contains provisions for the registration of marriages and divorces among Mohammedans; and for the purposes of the instant application I shall confine myself to those relevant sections of it which deal with the former, i.e. the registration of marriages: (a) Section 5 provides that: “Every Mohammedan marriage celebrated in the Gold Coast after the commencement of this Ordinance shall be registered in manner provided by the next succeeding section.”

(b) Section 6 (1) reads:

“The bridegroom, the bride’s wali, two witnesses to the marriage, and a Mohammedan priest licensed under section 3 shall as soon as conveniently may be, and before the expiration of a week after the celebration of the marriage, attend at the office of the District Commissioner for the purpose of registering the same.”

(c) Section 2 says that the entry of the marriage is to be made in the Mohammedan marriage and divorce register kept by the registrar of Mohammedan marriages and divorces, who was formerly the district commissioner and now the district magistrate; and exhibit A is a photostat of the counterfoil certificate attached to the entry made in respect of this marriage.

(d) Section 6 (10) reads: “If the period of one week limited by subsection (1) shall have lapsed before registration of a marriage which should have been so registered as aforesaid, or if it shall prove impossible or impracticable to obtain the attendance of any person, other than a licensed priest, whose signature of the register is hereinbefore required, it shall be lawful for a Judge of a Divisional Court, on an ex parte application by the bridegroom or bride’s wali, supported by an affidavit stating the reason for the delay or non-attendance, as the case may be, to issue a certificate under his hand authorising any District Commissioner to register such marriage at any time within one month from the date of such certificate, and on such registration to dispense with the signature of any person, other than a licensed priest.”

(e) Section 9 is as follows: “No marriage contracted or divorce effected in the Gold Coast after the commencement of this Ordinance by persons professing the Mohammedan faith shall be valid unless registered under this Ordinance”; and (f) section 10 contains this provision: “On the death of a Mohammedan whose marriage has been duly registered under this Ordinance, the succession to his or her property shall be regulated by Mohammedan law.”

To all appearances, the marriage between the second plaintiff and the first defendant, who professed the Mohammedan faith was a Moslem marriage celebrated on 19 January 1976 by a well-known Mohammedan priest, Imam Abass; and it should have been duly registered by 26 January 1976, but for some inexplicable reason it was not so registered.

Having therefore failed to comply with section 6 (1) of the Ordinance, the interested parties should have sought to ameliorate the position by resorting to section 6 (10); but although they acted within the time limit under that subsection, they omitted to comply with an important requirement of it, viz. to obtain a certificate from the High Court of Justice authorising the district magistrate to make the late entry in the register, with the result that under section 9, the marriage is not to be regarded as a valid Moslem marriage. Hence as it is, under section 10, if either the first defendant or the second plaintiff should die his or her property will not devolve in accordance with Mohammedan law; and I fully appreciate the concern of the plaintiffs.

In the circumstances, I hereby declare the said marriage null and void, and of no effect; but there will be no order as to costs as both sides are to blame for the non-compliance with the rules.

Appearances

B. KWAW SWANZY FOR THE PLAINTIFFS; NO APPEARANCE BY OR FOR THE DEFENDANTS.