BARAKE V. BARAKE

JUDGMENT

BROBBEY J.

The petitioner and the first respondent were married on 25 March 1969. The marriage ceremony was conducted in the Sekondi-Takoradi City Council Marriage Registry.

They cohabited in various places after the marriage, notably Takoradi, London and Lebanon. There are four daughters born out of the marriage. They are Mouna aged twenty years, Nadia aged sixteen years, Amoula aged nine years and lastly Naya aged eight years.

On 13 August 1979 the first respondent instituted an action for a decree of divorce and custody of their first two children who were the only children they then had. According to the petitioner, the first respondent said that the 1979 petition was withdrawn and that was why she brought the instant petition. The first respondent’s attempt to have the instant petition struck out on account of the 1979 action was disposed of in the course of the trial. I do not need to take that issue up again, more especially since none of the counsel for the parties raised it in his written address.

In the instant case, the petitioner has applied for divorce and six other reliefs on the main ground that their marriage has broken down beyond reconciliation. Particularising that round, the petitioner averred, inter alia, that the first respondent had committed bigamy and adultery with the second respondent.

The case of the first respondent is that he first went through a Moslem marriage with the petitioner. The precise date of the marriage was uncertain. In his testimony in court, he said on one occasion that it was a few months before March 1969 and on another occasion he said it was in 1968. However, in the affidavit which he himself tendered in support of that averment, exhibit 2, the date of the marriage was given as January 1967.

The first respondent admitted that he went to the marriage registry of the Sekondi-Takoradi City Council but his father-in-law, ie the father of the petitioner, made him to understand that it was to register the Moslem marriage. In any case, he maintained that at the relevant time of the marriage in 1969 he was illiterate in the English language and did not understand the true nature and import of that marriage ceremony. He added that he was and has always been a Moslem, and that was a fact well known to the petitioner. The petitioner was originally a Christian. She converted to the Moslem faith after the marriage. It was the case of the first respondent that while he remained a Moslem and his wife, the petitioner, had converted to the Moslem faith, and he regarded the 1969 marriage as a Moslem marriage, he was entitled to take on another woman. He consequently married the second respondent on 15 April 1988. The first respondent maintained that that second marriage was indubitably consistent with the religious practice of the Moslem faith to which at the material time in 1988 he and the petitioner faithfully subscribed. Under that religion, marriage was essentially polygamous and therefore his taking on another wife was perfectly in order.

The petitioner’s explanation to the change of religion from Christianity was this: Some time after their marriage she had to live in the Moslem quarter of Lebanon where she stayed with the relatives of the first respondent. Unfortunately she found life there rather unpleasant because, among other things, the petitioner alleged that the relations of the first respondent who were all Moslems went to the extent of having to wash their hands with water whenever they had to shake hands with the petitioner. Apparently they regarded her as some sort of infidel as she was a Christian. To be able to live harmoniously with the first respondent’s people, she changed her religion and became a Moslem. The change of religion took place in Lebanon while the first respondent was in Ghana.

On the return of the petitioner to Ghana, she and the first respondent lived as Moslems and so did their children. The Moslem religion allows polygamy. The first respondent in due course, decided to marry another woman in addition to the petitioner. The petitioner at once objected to the marriage to another woman. The first respondent persisted in implementing his decision. The petitioner then reconverted to Christianity. Nevertheless, the first respondent went through a second marriage in the Moslem faith, not to a Moslem woman, but this time to a Roman Catholic, who is the second respondent. It is this second marriage which grounds the application for divorce of the marriage between the first respondent and the petitioner. The petitioner also applied for an order declaring the second marriage between the first and second respondents null and void on grounds of bigamy and adultery because it was her case that in 1969 the marriage which she contracted with the first respondent at the marriage registry of the Sekondi-Takoradi City Council was a monogamous one under the Marriage Ordinance, Cap 127 (1951 Rev) which did not permit the first respondent to marry another woman during the subsistence of that marriage.

This case raises a number of issues but I shall first deal with the issues relating to marriage. There are three different types of marriages on the basis of which the parties build their respective cases. The first marriage was the one relied on by the first respondent which he said took place before 1969. I shall refer to this as the pre-1969 marriage for convenience. The second marriage was the one celebrated in the marriage registry of the Sekondi-Takoradi City Council. I shall refer to this as the 1969 city council marriage. The third marriage was the one contracted in 1988 between the first respondent and the second respondent. I shall refer to this third one as the 1988 marriage.

The respective positions of the parties on the pre-1969 marriage are these: The first respondent maintains that before 1969 he went through a Moslem marriage with the petitioner. The petitioner does not admit this. The onus is consequently on the first respondent to establish his assertion that such a marriage was in fact contracted before 1969. Before considering the evidence in relation to proof of the Moslem marriage, it is essential to spell out the precise nature of a Moslem marriage under our laws.

In this country, it seems that a Moslem marriage can take one of two forms: One form is an unregistered Moslem marriage which at best can be equated to customary law marriage. That was the view held by Ollennu J (as he then was), as stated in the headnote, in the case of Kwakye v. Tuba [1961] GLR 720 at 721.

“A marriage by a Mohammedan according to Mohammedan law is at its very best a marriage by customary law, and does not affect succession to his estate, unless the said marriage is registered under the Ordinance.”

The learned judge of blessed memory reiterated the same observations in the case of Brimah and Cobsold v. Asana [1962] 1 GLR 118.

Such an unregistered Moslem marriage conveys similar incidents of customary law marriage and may be properly described as essentially polygamous. It is a marriage not registered under any statute but acquires the name “Mohammedan” or “Moslem” from the nature of ceremony performed to bring the marriage into being. In some sense, an unregistered Moslem marriage will acquire the status analogous to an unregistered church marriage which was rightly described in In re Canfor (Decd); Canfor v. Kpodo [1968] GLR 177 at 183 as follows: “... the church ceremony [of marriage] is nothing more than an act of recognition by the church of the marriage status of the parties for purposes of full membership of the church.” If the word “Moslem” or “Moslem faith” would be substituted in appropriate places in this passage for the word “church” it would aptly describe the status of an unregistered Moslem marriage.

The second type of Moslem marriage is one that is registered under the Marriage of Mohammedans Ordinance, Cap 129 (1951 Rev). Section 6 (1) and (10) of Cap 129 spells out what has to be satisfied before the marriage will be said to have been duly registered. The section provides that:

“6. (1) 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 ...(10) 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.”

Simply put, these subsections require that after the celebration of the Moslem marriage, the bridegroom, the bride’s wali or legal guardian, a Mohammedan priest and two witnesses should appear before the marriage registry to register the marriage. The priest must have been registered under section 3 of Cap 129 as a marriage officer. That registration should take place within one week from the date of the celebration. After the expiration of one week but within a reasonable time, an application can be made to the High Court to request the Marriage Registrar to register the marriage out of time. A Moslem marriage which is not registered under Cap 129 has consistently been held not to amount to marriage within the provisions of Cap 129. In Kwakye v. Tuba (supra) at 721, it was held that one Kwasi Kumah whose Moslem marriage was not registered under Cap 129 could not have his estate governed by Cap 129. Then there was the case of In re Marriage of Mohammedans Ordinance, Cap 129; In re Registration of Marriage Between Byrouthy and Akyere; Ex parte Ali [1980] GLR 872. In that case, one Abena Akyere was married in 1946 to Mohammed Sadallah Byrouthy, a Lebanese, in accordance with Islamic law. The marriage was never registered under Cap 129 till one of the parties died. In an application to register it posthumously, it was held that although the marriage should have been registered within one week of its celebration, the marriage could have been validated by an application brought within reasonable time under section 6 (10) of Cap 129. After the death of one of the parties the marriage was terminated and no marriage existed which could have been registered, however belatedly.

Indeed, once a Moslem marriage has been registered within the stipulated time, the issue of its validity is a matter of course. InRamia v. Ramia [1981] GLR 275, CA the parties had been married customarily for three years under Cap 129. A marriage certificate issued on the very day of the celebration was said to have rendered the marriage valid.

The first respondent said he went through a Mohammedan marriage with the petitioner in 1968 or 1969. That pre-1969 Moslem marriage was stoutly denied by the petitioner. It was therefore incumbent on the first respondent to have led evidence to establish his assertions relating to that pre-1969 marriage.

In his book Outlines of Muhammedan Law (1974 ed), p 91, Mr Asaf A A Fyzee described the Moslem marriage this way:

“The legal incidents of marriage in Islam are remarkable for their extreme simplicity ... The essential requirements are offer and acceptance. Marriage is legally contracted by a declaration made by one contracting party being followed by a corresponding acceptance from the other at the same meeting ...As to the form, the following conditions are necessary:(1) declaration or offer on the part of the one;(2) acceptance by the other (or by guardians, as the case may be);(3) before sufficient witnesses (i.e. in Hanafi law, two; in Shiite law witnesses are not necessary.”

Further elaboration of these may be found in Mulla Principles of Mohammedan Law (16th ed) by the Hon Mr Justice Hidayatullah (one time Chief Justice of India). He gave the essentials of a Moslem marriage at p 250 as follow:

“It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mohammedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage.”

In fact, a passage by Abdur Rahim in Muhammedan Jurisprudence (1911 ed) pp 328—329 emphasises these essential requirements and the consequences of not complying with item. It provides:

“... But, according to the Hanafis, the proposal and acceptance must, in a contract of marriage, be witnessed by two properly qualified witnesses; otherwise the marriage would be invalid.”

What is the evidence on the Moslem marriage relied on by the first respondent? All that he said on the marriage was this:

“I know the petitioner, I married her in 1968. It was a Moslem marriage. It took place in our house at Takoradi next to the Ghana Airways office in Takoradi. We were married in the Moslem way one month before the month of Ramaddan in 1968.”

He did not lead evidence on the specific factors which are required to prove a Moslem marriage such as offer, acceptance, the fact of the proposal and acceptance taking place at one meeting, two witnesses and the fact that they were Moslem witnesses. If any such Moslem marriage took place, he could have called witnesses to it or people who knew of it in support of it. Mere oral assertion was not sufficient to establish that the first respondent married the petitioner in a Moslem way.

The first respondent sought to buttress his point on the pre-1969 Moslem marriage by tendering affidavits sworn by the father of the petitioner, exhibits 2 and 11. In those affidavits no reference was made to any Moslem marriage. What is evident from the face of those affidavits is that the deponent referred to a customary marriage simpliciter. My conclusion on this issue is that the evidence on record does not satisfactorily establish that there was any pre-1969 Mohammedan or Moslem marriage contracted between the petitioner and the first respondent.

I shall next proceed to consider the 1969 city council marriage. The petitioner and the first respondent took conflicting positions on the issues raised on this point. While the petitioner contends that it was registration of marriage under Cap 127, the position of the first respondent is not quite clear. In the written address of his counsel, he submitted that the first respondent signed the marriage papers under the “mistaken impression” that he was registering his Moslem marriage. In any case, his counsel did not admit that the registration was under Cap 127.

If it is the case of the first respondent that it was a Moslem marriage they went to register, a Moslem or Mohammedan marriage cannot be registered under Cap 127, which regulates church and other civil marriages. The statute specifically enacted to regulate Mohammedan marriages is Cap 129. If the first respondent contends that the pre-1969 marriage was a Moslem one and further that when he appeared at the city council he was under the impression that he went there to register a Moslem marriage, that marriage should have been registered under Cap 129.

The requirements to be satisfied in order to register a marriage under Cap 129 have been set out under section 6 of Cap 129, as already discussed in this judgment. Under Cap 129, the marriage to be registered should necessarily be a Moslem or Mohammedan one. I have already ruled that no pre-1969 Moslem marriage ever took place. However assuming, for the sake of argument, that there was a Moslem marriage as maintained by the first respondent, section 6 of Cap 129 requires that that marriage should have been registered within one week of its celebration. The first respondent told the court that he married the petitioner by Moslem custom in 1968. The registration was in March 1969.

No application has up till now been brought under Cap 129, s 6(10) for extension of time within which to register that marriage. The first respondent led no evidence that after the celebration of the Moslem marriage he, the bridegroom, the wali or legal guardian of the bride, any Moslem priest or two witnesses went to the marriage registry to register that marriage as required by section 6 (1) of Cap 129. In fact, from the evidence of the first respondent, nothing emerged to demonstrate that between 1967, 1968 and 1969 any incident took place in connection with any Moslem marriage which can be said to have satisfied the provisions of Cap 129 for any alleged Moslem marriage to be said to have been registered under Cap 129. For the reason that Cap 129 has not been complied with, no registration can be said to have taken place under Cap 129.

Besides section 6 of Cap 129, additional authorities for this view will be found in the three cases on Moslem marriages already referred to, namely Kwakye v. Tuba (supra); In re, Registration of Marriage Between Byrouthy and Akyere (supra) and Ramia v. Ramia (supra). Further, section 9 of Cap 129 categorically invalidates any Mohammedan marriage which is not registered under Cap 129. The section provides:

“9. 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: the proof of every marriage or divorce under this Ordinance, when such marriage or divorce shall be in issue, shall be by the production of the register in which the same is entered, or of an extract therefrom certified under the hand of the District Commissioner, or of the certificate of such marriage or divorce.”

Because the validity of the marriage relied on by the first respondent is in issue, the section requires that, in order to prove the said Moslem marriage registration, the first respondent should have produced the marriage register in which the particulars of the marriage were entered or a certified extract from it or a certificate of marriage. None of these was produced by him. I have therefore no hesitation in concluding that the first respondent failed to establish that the registration of marriage which took place in 1969 was done under Cap 129.

The petitioner, on the other hand, maintained that the marriage between her and the first respondent was registered in 1969 under Cap 127. The first respondent does not admit that it was under Cap 127. In the same manner that the alleged registration of marriage under Cap 129 was treated, the petitioner who asserts that there was registration under Cap 127 assumes the onus of establishing that assertion.

It is obvious that for that registration to be said to have been under Cap 127, it should have complied with the provisions of Cap 127. For the purposes of this case, the relevant provisions under Cap 127 which must be complied with are sections 4, 6, 8, 10, 11, 13, 14, 16, 30, 31 and 34-37. In sum, these sections require that before the celebration of the marriage, notice of the intended marriage must have been given under section 10 of Cap 127 and when that has been done, the sequel is issuance of a registrar’s certificate under section 14 of Cap 127. The ceremony of marriage should be conducted at a place properly designated as a marriage district under section 3 of Cap 127, or licensed for the celebration of marriages under sections 8 and 30 of Cap 127. The official celebrating the marriage must have been appointed under sections 4 and 6 of Cap 127. Every such marriage celebration is finally climaxed with the issue of a marriage certificate in terms of sections 34-37 of Cap 127. After the celebration of the marriage and issuance of the certificate, there is a mandatory provision under section 46 of Cap 127 for the submission of returns of the marriages to the Principal of Marriages.

Apart from the mandatory terms in which the sections referred to have been couched, at least in one case, marriage which did not conform to the requisites of Cap 127 was held not to be marriage under Cap 127. That was the case of Setse v. Setse [1959] GLR 155. In that case, Presbyterian Church Minister, Rev Theophilus Kwadjo Setse, applied to have his marriage blessed by an officiating priest of the Presbyterian Church. That was duly done. He lived with his wife for some years and three children were born out of the marriage. The marriage was nevertheless declared by the High Court, Ho not to have been an Ordinance marriage for non-compliance with the provisions of Cap 127 such as the submission of marriage returns to the Principal Registrar of Marriages.

That case admittedly concerned a church marriage. None of the parties in the instant case alleged that theirs was a church marriage. The case is cited merely to illustrate the effect of non-compliance with the provisions of Cap 127.

In determining the validity of any marriage allegedly celebrated under Cap 127, it has been held that compliance with section 31 of Cap 127 is imperative. The section reads as follows:

“31. No minister shall celebrate any marriage if he knows of any just impediment to such marriage, nor shall he celebrate any marriage until the parties deliver to him either—(1) A registrar’s certificate; or ...”

In the marginal note of section 31 (1) of Cap 127 is a reference to Schedule 1 and Form A.

Section 31 of Cap 127 was applied in Carr v. Carr [1963] 2 GLR 331. In that case, a marriage was celebrated and a marriage certificate issued to the parties. Nevertheless, that marriage was declared null and void for non-compliance with section 31 of Cap 127.

What then is the evidence in this case? There is no denial by any of the parties that the pensioner and the first respondent appeared before an official of the Sekondi-Takoradi City Council at the marriage registry. They went through some ceremony. To evidence the nature of the ceremony the petitioner tendered exhibits A and C. Exhibit C is the marriage certificate. Exhibit A is the registrar’s certificate issued under sections 10 and 31 of Cap 127. On its face, exhibit A shows that the petitioner and the first respondent gave notice in writing of their intention to marry. Exhibit C indicates that the marriage was celebrated between the parties. The ceremony took place before the Registrar of Marriages in the Sekondi-Takoradi Marriage District. By exhibits A and C, the petitioner satisfied almost all the requirements under the sections in Cap 127 to which I have already referred in connection with the registration of marriages.

From the foregoing analysis of the law and evidence, I conclude that when the parties went to the marriage office of the Sekondi-Takoradi City Council in March 1969, whatever marriage they registered was in fact registered under Cap 127.

The law is well-settled now that when there is evidence of the ceremony of marriage which is followed by cohabitation like in the instant case, the validity of the marriage will be presumed, unless there is decisive evidence to the contrary: see Rayden on Divorce (10th ed), p 642 and D Tolstoy, The Law and Practice of Divorce (6th ed), p 106. This rule is sometimes rendered succinctly in the Latin expression: Omnia praesumuntur pro matrimonio. A case in point is Russell v. Attorney-General [1949] P 391. In that case, the parties went through a ceremony of marriage in a Roman Catholic Church and thereafter they cohabited as husband and wife for many years. On an issue arising as to the validity of the marriage because of possible non-compliance with the 21-day notice, it was held that in the absence of decisive and cogent evidence to the contrary, the validity of the marriage should be presumed, the court adding per Barnard J at 394 that: “it would be both tragic and chaotic if such a ceremony could, on slender evidence, be declared null and void.”

On the local scene a case in point is Ramia v. Ramia (supra). In that case, the parties were married customarily for three years. They later married under Cap 129. The marriage certificate showed that the marriage was registered on the same day that it was celebrated. The court held that the marriage certificate satisfied the presumption of validity and presumptions of legality in favour of the marriage.

In the instant case, the first respondent agrees with the petitioner that they went through a ceremony of marriage at the city council, the details of which I have already described in this judgment. In addition to that, the marriage certificate was tendered as exhibit C. It can therefore be said with some degree of certainty that the presumption of validity and legality of the marriage was duly established by the petitioner.

Once that presumption has been established, the onus shift to the party contesting it to establish the contrary. To discharge that onus in the instant case, it was incumbent on the first respondent to establish the invalidity of the 1969 city council marriage. What is required is cogent or decisive evidence as stated in Russell v. Attorney-General (supra) and Mahadervan v. Mahadervan [1962] 3 All ER 1108.

The first respondent said he did not sufficiently understand the English language in 1969 to have understood the marriage ceremony. No person can consent to what he did not understand. If he seeks to impugn that ceremony on account of lack of consent, the rule is that the burden of proof on a party seeking to impeach a marriage on the ground of want of consent is the same as the burden on a party in any other contract: see Scott v. Sebright (1886) 12 PD 21 at 23 and Mahadervan v. Mahadervan (supra) at 1117.

The onus on the first respondent will be heavier when the second holding of our Court of Appeal, as stated in the headnote, in the case of Ramia v. Ramia (supra) is considered. It held:

“The certificate [of marriage] therefore satisfied the presumption of validity and the presumption of legality. The presumption of the legality of a marriage was so strong that it could only be rebutted by proof beyond reasonable doubt.”

“Proof beyond reasonable” doubt is a rather onerous burden to place on a person required to prove a civil case. But that decision cannot be faulted, having been based on the English case of Mahadervan v. Mahadervan [1963] 2 WLR 271. That case expressly laid down the proposition at 272 that:

“... in all the circumstances, a strong presumption arose in favour of the validity of the marriage which could only be rebutted by proof beyond reasonable doubt that the proper formalities had not been complied with, and that such presumption applied equally to foreign as to English marriages.”

Where bigamy is alleged against a party as the petitioner does in the instant case, the party accused, like the first respondent herein, is required to lead evidence of the invalidity of the marriage. In Halsbury’s Laws of England (3rd ed), Vol 10 at p 664, para 1270 the principle on bigamy was stated this way:

“It is for the prosecution to prove the celebration of the first marriage and the identity of the parties. If the marriage is alleged by the accused to be invalid on the ground, for example, of consanguinity or informality, he must adduce evidence of the invalidity.”

This principle was applied in R v. Menahs (1922) FC ‘22, 61 on which counsel for the petitioner relied in his written address.

What then is the evidence led in the instant case to rebut the presumption of legality and validity raised in favour of the 1969 city council marriage? First, the first respondent maintained that in going to the marriage registry, he was induced by the father of the petitioner who was his father-in-law to believe that it was to register the pre-1969 Moslem marriage which he had already entered into with the petitioner. I have already held that no such pre-1969 marriage was established by the evidence. Assuming there was such a marriage, that line of reasoning would presuppose that the first respondent knew that he went to the registry to register a marriage, save that his intention was to register Moslem marriage. This was further emphasised by counsel for the first respondent who stated in his written address that the first respondent went through the ceremony in the city council under the “mistaken impression” that he was registering a Moslem marriage. In other words, it was the case of the first respondent that he went to the registry with the intention to register a marriage which was Mohammedan in character and therefore ought to have been under Cap 129 but it was registered under Cap 127. He did not consent to a marriage ceremony under Cap 127 and therefore the 1969 city council marriage was not binding on him for want of consent.

The possible reason why the first respondent canvassed the point about Moslem marriage is that it is polygamous in character and would have legalised his second marriage to the second respondent while marriage under Cap 127 is monogamous and would have had the effect of annulling the second marriage.

The plea of mistake put forward in this case is similar to the plea of non est factum in contract cases in that even though he signed the marriage papers he seemed to argue that his mind did not accompany his act of signing the papers because he thought he was signing papers on a Moslem marriage; and in any case, he was then illiterate in the English language. His plea in the instant case is rather weaker in that there were several actions constituting the ceremony of marriage in which the first respondent consciously participated. It was not just his signing of one or two sheets of paper. For a mistake to be capable of vitiating a solemn document or solemn event amounting to a contract of marriage or giving rise to marriage, it must be fundamental.

The strongest point made by the first respondent against the 1969 city council marriage is that he claimed to have been illiterate in the English language in 1969 when he went through the ceremony. No one explained the ceremony to him in the language he understood and therefore he could not be bound by the ceremony even though he physically took part in it.

In the first place, section 11 of Cap 127 provides a special format to be complied with where the party giving notice is unable to understand the English language. That format has an attestation clause to indicate that the ceremony had been “read over and interpreted” to that person. Exhibit A the registrar’s certificate which was signed by the first respondent, did not comply with the section. As was rightly stated in In the Estate of Park; Park v. Park [1953] 3 WLR 307 at 312 a contract of marriage is a very simple ceremony which does not require a high degree of intelligence or linguistic proficiency to comprehend.

The first respondent signed exhibits A and C. He did not thumbprint to give the semblance that he was illiterate. By signing in the presence of the marriage officer and in the presence of witnesses, he gave the unmistakable impression that he knew what he was doing and understood what he did. On the face of exhibits A and C, a presumption of regularity was created. The first respondent could have rebutted that presumption by adducing evidence to the contrary. This was imperative since his assertion of illiteracy in the English language was disputed by the petitioner.

Instead he went through the marriage ceremony, but he said he did so under the “mistake impression” that it was a polygamous Moslem marriage ceremony instead of a Christian monogamous marriage. In Kassim v. Kassim [1962] P 224 it was held that a belief by a party that he is entering polygamous marriage whereas in fact the marriage contracted was monogamous was not so fundamental as to vitiate consent to marry or establish mistake capable of annulling the marriage. That was a case in which a Moslem man married an African by customary law. He later went through another ceremony of marriage with the same women before a magistrate. Subsequently, he married another woman by Sunni Mohammedan law. He finally married a third woman in London in accordance with Roman Catholic marriage rites. On his argument that he being a Moslem thought that the ceremony before the magistrate was polygamous and not monogamous, it was held that his mistaken belief that the marriage was polygamous was not sufficient to vitiate the marriage. Reference may also be made to two cases cited in that report, namely Way v. Way [1950] P 71 and Kenward v. Kenward [1951] P 124, CA.

It is significant to point out that the first respondent led no evidence about his lack of or inadequate knowledge of the English language in 1969 when he went through the ceremony. In 1969 he did not live alone, neither did he live on an Island. He could have called witnesses who knew his level of the English language in 1969 in further proof of his standpoint. All these he woefully failed to do and without any explanation. Instead he chose to rely on his word only. It is obvious that the first respondent could not be said to have successfully established an averment which was stoutly denied and which was capable of proof in a positive way by merely mounting the witness-box and orally recounting that averment. I do not need to dilate on the law as enunciated in Khoury v. Richter, High Court, 8 December 1958, unreported; Majolagbe v. Larbi [1959] GLR 190 and the Evidence Decree, 1975 (NRCD 323).

This same first respondent who claimed to be illiterate in the English language in 1969 executed exhibit B, a deed of gift, in 1970, barely sixteen months after the marriage. In exhibit B there was no jurat or attestation clause to the effect that the contents were interpreted to him because he did not sufficiently understand the English language. There was no evidence that he went through such intensive education in the English language that within sixteen months he could read and understand the English language. Exhibit B is a document couched in technical legal language. The first respondent executed it and does not now say he did not understand it because it was in the English language. He has not sought to repudiate exhibit B on the ground that he did not understand the English language in which it was written when he executed it.

It is relevant to remark that when the first respondent testified before me in the trial of this case, I observed that he spoke flawless English language, save that, the incident in question took place some 21 years earlier than the time he testified.

It is also significant to point out that the first respondent relied on this 1969 city council marriage when he brought a petition of divorce in the High Court, Sekondi in 1979. In that petition of divorce in the High Court, Sekondi he did not argue that the 1969 ceremony was to register a Moslem marriage or that he did not fully appreciate the ceremony because of his low level of understanding of the English language.

The first respondent said the 1979 petition was drawn up by his lawyer and by implication it was the lawyer who referred to the marriage as an Ordinance marriage. That was rather a lame way to try to explain away the point. If his lawyer wrote “Ordinance marriage”, it was based on the instructions the first respondent gave to the lawyer. The first respondent never said he mentioned Moslem marriage to the lawyer who wrote down something else in the 1979 petition.

It is arguable that if the first respondent went to the city council to register a Moslem marriage it should have been under Cap 129, but he, not being a lawyer, did not understand that it was registered under Cap 127. My view is that ignorance of the law will not help the first respondent. The general rule used to be that ignorantia juris non excusat. That rule was later trimmed into shape and its connotations explained in Kiriri Cotton Co Ltd v. Dewani [1960] AC 192 in which an argument based on ignorance of the law was urged on the Privy Council. In the judgment, Lord Denning held at 204:

“The true proposition is that no man can excuse himself from doing his duty by saying that he did not know the law on the matter. Ignorantia juris neminem excusat.”

The pertinent question to be answered by the first respondent is this: Why did he not find out the right procedure to follow in order to register a marriage under Cap 129 before going to the city council? Is he trying to aver that he went to the marriage registry not knowing the correct ceremony and that he was prepared to go through any ceremony that those who took him there were prepared to get him to go through? The first respondent went with people who signed the marriage register as his witnesses. Were those witnesses too illiterate in the English language? If not, why did they not point out the fact that a ceremony purported to be a Moslem marriage was not what took place? If they did not, did the first respondent himself not realise that there was no Moslem priest around as required by Cap 129? If this kind of plea would be acceptable then anybody could go through any ceremony and when it suits him, all he will have to do is to get up and plead that he did not know what the law on the topic was. This kind of situation is what led Lord Ellenborough CJ to hold in Bilbie v. Lumley (1802) 2 East 469 at 472 that:

“Every man must be taken to be cognizant of the law; otherwise there is no saying to what extent the excuse of ignorance might not be carried. It would be urged in almost every case.”

From the foregoing, my conclusion on this issue is that the first respondent has not been able to establish satisfactorily that he was so illiterate in the English language in 1969 that he did not understand the 1969 ceremony of marriage in the city council. He fully understood the proceedings and he took part in them knowing pretty well the import and implications of the ceremony in which he participated.

Exhibits A and C establish without doubt that the 1969 city council marriage was under Cap 127. In his written address, Mr Lumor attempted to make capital out of the fact that the marriage certificate referred to Cap 105 and intimated that that underlined the confusion in the minds of the petitioner and the first respondent. I hope sincerely that that submission was made out of ignorance of the historical evolution of statutes on marriages in this country and that it was not made to deliberately mislead the court. Cap 105 was the 1936 Marriage Ordinance which was revised in 1951. In fact all the 1951 revised Ordinances of the then Gold Coast have, at the very beginning and in the marginal note of Cap 127, reference to Cap 105. The purpose is to indicate the original source of the 1951 revised statutes. If the marriage certificate referred to Cap 105, all it could mean would be that it was an old certificate which was used but that was not sufficient to vitiate the certificate.

The wording and format of exhibit C is the same as the wording and format of the marriage certificate as contained in Schedule L, Form C of Cap 127. In any case, the registrar’s certificate, ie exhibit A, was also the same as that provided in Form A of Schedule L of Cap 127, which indicates that it was issued under Cap 127. Since the 1969 city council marriage was contracted under Cap 127 it was Cap 127 which regulated the relationship of the petitioner and the first respondent at the time he married the second respondent in 1988.

Section 44 of Cap 127 provides:

“44. Any person who is married under this Ordinance, or whose marriage before the commencement of this Ordinance is declared by this Ordinance to be valid, shall be incapable during the continuance of such marriage of contracting a valid marriage under any native law or custom ...”

Besides this section, the Criminal Code, 1960 (Act 29), s 264 clearly renders the marriage between the first respondent and the second respondent bigamous. By reason of that second marriage the first respondent has been proved to have been guilty of adultery, which is sufficient to ground the petitioner’s averment that her marriage with the first respondent has broken down beyond reconciliation in terms of the Matrimonial Causes Act, 1971 (Act 367), s 2(1)(a). The marriage between the petitioner and the first respondent is consequently dissolved.

The first respondent applied for the marriage to be dissolved on the ground that the petitioner had behaved in such manner as to make it unreasonable to expect him to continue staying with the petitioner as a married couple. I dismiss that ground summarily because none of the single incidents alleged against her in relation to the foreign visitors was enough to establish that ground.

For the reason that the 1969 city council marriage created a monogamous marriage between the petitioner and the first respondent, the marriage of the first respondent and the second respondent on 15 April 1988 is indubitably bigamous and cannot stand. That 1988 marriage is consequently declared null and void. These orders however leave the first respondent the freedom to marry the second respondent in any form or fashion he desires.

The facts of this case disclose that the petitioner has not kept a constant religious faith. She was a Christian when she was married in 1969. She converted to the Moslem faith when she found it expedient so to do. Later she reconverted into Christianity when she found it no more tolerable to be a Moslem because of the first respondent’s insistence on marrying more than one wife.

The legal position is however that religion per se is incapable of totally transforming the status of parties married under Cap 127. Once the couple are held to have married under the Ordinance, they remain bound by all the incidents attached to that marriage and status created by that marriage until they take steps, according to the law, to rid themselves of the bond of marriage. Vicissitudes in a person’s religions life are incapable of obliterating marital status created under a statute. Therefore, the fact that the petitioner variously altered her religion according to the circumstances and surroundings in which she found herself did not obliterate the marital status created by the marriage under Cap 127 to give the first respondent freedom to take on another wife. The marriage he went through with the petitioner in 1969 at the city council was like marriage understood in Christendom which has been defined by Lord Penzance in Hyde v. Hyde and Woodmansee (1866) LR 1 P and D 130 at 133 as: “... the voluntary union for life of one man and one woman, to the exclusion of all others.”

Another issue which has been hotly contested by the parties is that of custody of the children. The petitioner applied to be given custody of them; so did the first respondent. Of the four children, one is almost an adult, aged twenty years. The second will soon attain the age of majority, she being about sixteen years while the trial raged in court in 1989. The real contest centres around the last two aged eight years and nine years, respectively and possibly the second child aged sixteen years.

The law with regard to custody of children has long been settled. To decide on issues of custody the Courts Act, 1971 (Act 372), s 16 (2) requires that: “The welfare of the infant shall be the primary consideration of the High Court ...” The word “primary” has been applied in a number of cases in the sense that connotes “paramount”: see for instances Gray v. Gray [1971] 1 GLR 422; Beckley v. Beckley [1974] 1 GLR 393;Opoku-Owusu v. Opoku-Owusu [1975] 2 GLR 349 and Braun v. Mallet [1975] 1 GLR 81.

Whether the consideration is primary or paramount, the most significant factor is the welfare of the children: I proceed with the decision in Re McGrath [1893] Ch 143 at 148, CA that the welfare of the child must be considered in its largest sense. Some of the factors to be taken into account in deciding on the welfare of the child have been spelt out in the case of R v. Gyngall [1893] 2 QB 232 at 243, CA as follow:

“The Court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the position of the child ... and the happiness of the child.”

In In re O (An Infant) [1965] Ch 25 at 29, CA it was held, inter alia, that: “... and the first consideration you have to take into account when you are looking at his [the child’s] welfare is: who are his parents and are they ready to do their duty?”

Stating with the last case, I will first consider the parents of the children. The natural mother is the petitioner. The natural father is the first respondent. In arguing the case for the first respondent, Mr Lumor contended that the petitioner had been changing her religion from Christianity to Mohammedanism, back to Christianity and even dabbled in spiritualism. She had agreed that the children should be brought up in a Moslem way but if she married a Hindu the next day she would convert to Hinduism. He finally submitted that the second respondent testified that although she was a Roman Catholic, she had studied Mohammedanism and would not interfere with the religion of the children.

It is undisputed that the petitioner agreed with the first respondent to bring up the children to be Moslems. Having regard to what has been said in this judgment about the changing character of the petitioner’s religious beliefs, I do not think that the comments of Mr Lumor are groundless. I do not however consider the religious life of either party to be decisive enough to tilt the scales in favour of one side or the other in determining the issue of custody. My reasons are these: The petitioner’s religious beliefs have been as fickle as the notations in colour of the proverbial chameleon dictated by surrounding circumstances. The petitioner’s religion oscillated to whatever direction circumstances would dictate. The petitioner was originally a Christian. She got married to a Moslem. She went to live in a Moslem community in Lebanon. She changed to Moslem to fit with the environment in Lebanon. She came back to Ghana. When it suited her, she changed her religion again into Christianity. The charge of spiritualism levelled against her by the first respondent was not seriously contested. She denounced Mohammedanism, describing it now as a “religion which walks over women.” She however did not say that she no longer wanted the children to grow up as Moslems. The rather volatile foundation of her religious beliefs does not warrant a decision of custody being given in her favour, if religion is the deciding factor.

The second respondent is in no better position. She is a Roman Catholic. She went through a Moslem marriage to a Moslem man. She said she had studied the Moslem religion and would not interfere with the Moslem life of the children. She had merely studied the Moslem religion. If that would suffice, then the petitioner could be said to be better qualified for custody than she is because the petitioner actual learned and practised the Moslem faith. The academic or theoretical knowledge of the second respondent cannot place her in a better stead than the petitioner with both theoretical and practical knowledge in considering which of the two will be of better use as far as practice of the religion of the children is concerned. Above all the order in this judgment that the marriage of the second respondent was bigamous will generate provocative psychological consequences which I will touch upon later. I do not believe that the second respondent has established such strong religious base for which a decision to allow the children to stay with her would be justifiable.

I find the claim of the first respondent for custody of the children based on his own religion unacceptable for the reason that he himself does not demonstrate by his marriage that he has any religious commitment to his Mohammedan faith, otherwise he would not firstly, have married a Christian, the petitioner, secondly, had that marriage registered under Cap 127 which regulates Christian marriages, and thirdly, when he wanted to marry again, take on a Roman Catholic as his second wife.

If he seriously wanted his wife or wives to help in educating his children in the Moslem faith, why on earth does he continue to marry non-Moslems? My view is that he himself did not consider religion as a serious factor in his marriage life otherwise he would have married Moslem women to facilitate the teaching of Mohammedanism to his children.

The first respondent further contended that custody of the children should be given to him because the petitioner once returned to Ghana from Europe with a white man whom she paraded here as the man she was going to get married to. All those happened when she was still married to the first respondent. Now that she was going to be free to select her next lover from the lot of men who would be going to her, she would be a bad influence on the children.

This argument is equally applicable to the first respondent. He claims to be a Mohammedan. Mr Abdur Rahim in his book Muhammedan jurisprudence at pp 327 and 328 stated the right of a Mohammedan man in relation to marriages to be as follows:

“The Muhammedan law undoubtedly contemplates monogamy as the ideal to be aimed at, but concedes to a man the right to have more than one wife, not exceeding four, at one and the same time, provided he is able to deal with them on a footing of equality and justice.”

Mr. Justice Hidayatullah in his book Principles of Mohammedan Law at p 251 stated the principle more classically thus:

“A Mohammedan may have as many as four wives at the same time, but not more. If he marries a fifth wife when he already has four, the marriage is not void, but merely irregular.”

I give these passages to illustrate that the first respondent has the potential to marry as many as four, and possibly more wives. If the children are left to stay with him, they may be witnesses to more women who may be coming and going as the first respondent also settles for the rest of his wives permitted by his religion. If the petitioner brought in a white man, the first respondent too married the second respondent in the teeth of opposition and remonstration by the petitioner. Polyandry is not permitted in this country and therefore when the petitioner has settled for a husband or one lover if she takes on another man, that may amount to prostitution which is a social stigma. To the first respondent however, it would be perfectly in order to take on more wives. With these potentials of the petitioner and the first respondent which of them would be a worse example to the children? I think it would be the first respondent. In any case, the incident with the white man happened eleven years ago. The first respondent condoned or connived at it. There is no evidence of a repeated similar incident. I do not consider that single occurrence as sufficient proof of moral depravity against her.

Further, the first respondent sought to establish that the petitioner joins clubs and plays golf to the detriment of the children. It was also alleged that she condoned with immoral associations of the first and second children with foreign nationals. I do not accept the view that her membership of clubs or playing golf or the association of the first and second daughters with foreign nationals are enough for me to conclude that she is guilty of moral depravity on the basis of which she should be denied custody of the children. The daughters are the children of the petitioner herself; from my observation of her as she testified and from my analysis of the evidence so far adduced before me, she did not appear to be so irresponsible a mother as would abandon her own children in pursuit of her interest in golf and social clubs. No specific incident was adduced in support of the first respondent’s allegation. In any case, I do not consider the moral background of the first respondent any better when he went through a monogamous marriage and yet proceeded to take on another wife under a pretended belief that he had married polygamously.

In the end, I find from the facts that this is a case in which the religious background of the petitioner is no better than that of the first respondent. I further find that the moral background of the first respondent is no better than that of the petitioner. In other words, I consider the factors canvassed by the parties for custody of the children equally balanced.

To buttress his case, the first respondent called the second respondent as a witness and she testified that she had given up her lucrative job with the Food and Agriculture Organisation to keep house for the first respondent. She added that she lives with the children and would love to have them and keep them in the matrimonial home.

The introduction of the second respondent into this issue worsened the case made on behalf of the first respondent. My reasons are as follows: The reality of the situation is that the petitioner is the natural mother of the children. The second respondent will be their stepmother. It is my considered view that when all other considerations are equally balanced as in the instant case and choice has to be made between custody to an unmarried natural mother and custody into a house with a stepmother the former should be preferable to the latter. Our society is replete with stories of discord created in matrimonial homes by the presence of stepchildren. Invariably access will be given to the natural mother. The exercise of that right sometimes generates confusion, conflicts and confrontations. The natural mother often carps at the least fault in her erstwhile matrimonial home in connection with the upbringing of her children. She quite often capitalises on the minimal of complaints from her children and reacts negatively. If the children are happy with the stepmother the natural another reacts out of jealousy that she is being deprived of fun from her own children. If the children are unhappy with the stepmother, they will provide grounds for the natural mother to unduly interfere in the marriage of the stepmother.

Another inescapable situation arises if the father shows much love and affection to the children. The stepmother tends to feel that she is not receiving the appropriate attention she desires as a wife. To her, the attention of her husband, divided as it were between the stepchildren and herself, would not be enough.

If the father pays much attention to the stepmother, or when the marriage of the stepmother becomes successful, the reaction of the natural mother is predictable, especially if she does not have a successful remarriage subsequent to the divorce. It may lead the natural mother to harbour ill-feelings towards the stepmother—ill-feeling borne basically out of the fact that the stepmother had usurped her own matrimonial home.

This ill-feeling is sometimes also borne by the children who may form view that but for the stepmother, their own mother would have been at the receiving end of the happy home. Should they see their natural mother not prospering so equally well in her life after divorce, the stepchildren blame it all on the stepmother whom they regard as a usurper of their mother’s position in their father’s home. Who can deny the fact that quite often the root cause of excessive nagging in many matrimonial homes have been blameable on the presence of stepchildren in that home? Whenever there is pressure or tension in the house with stepchildren, someone is bound to suffer. Invariably it is the children who are always worse off. If the natural mother and the stepmother are at loggerheads, the children lose out, for the anger may be vented on them. If the stepmother and the father are at logger heads, the children are the losers.

The position of these children who are always caught up in cross-fires, will be no different from the proverbial grass below the feet of two belligerent elephants: It is often said: “If two elephants engage in a fight who loses? The grass”, and in the instant case, the grass will be the children if they were to be left with the respondents.

The facts of this case in relation to all that I have said are as follows: The marriage between the petitioner and the first respondent went to the rocks and now has totally broken down almost excessively because of the second respondent. In other words, it was because the petitioner opposed this marriage of the first respondent to the second respondent that the petitioner could not continue her marriage to the first respondent, and her marriage was an anathema. How proper will it be for the court to ignore all these and to order the children of a hated mother to be in the hands of a woman who is hated by her? The petitioner will be given access. From the tenor of the evidence of the petitioner, I deduced that the petitioner blames the second respondent for all that has happened and she simply does not like the second respondent for all she is worth. I would not be surprised at all if the very sight of the second respondent invokes anger and hatred in the petitioner. What will happen when the petitioner goes to the matrimonial home to exercise her right of access or if the children send reports to the petitioner of alleged maltreatment of them by the second respondent?

Further, the finding in this judgment that the marriage between the first and the second respondents is null and void is likely to create several problems. As counsel for the first respondent pointed out in his written address, the first respondent can remarry the woman on the very day of the judgment after it has been read. Even if that were done, it cannot be denied that there may be questions raised some day about the status or position of the child being carried by the second respondent when she testified before me.

This is not a case in which the natural mother is dead. It is not a case in which the break down of the natural mother’s marriage was brought about by a cause unrelated to the second respondent. This is a case in which the second respondent is virtually the root cause of the collapse of the natural mother’s marriage. How easy would it be for the petitioner to live with the knowledge that her own children are in the hands of, not merely her arch rival, but her bane—ie the cause of her woes and misery? I do not think she will relish any kind thoughts or feelings of the second respondent and this inevitable attitude on her part will be sufficient to nurture fertile ground for discontent and discord between the two women.

The second respondent now knows that it was this court action instituted by the petitioner which has led to this declaratory order with deleterious effect on the status of her marriage, her child and herself. Nobody can expect the second respondent to take kindly to this. When the result of this judgment is the source of another ill-feeling by the second respondent and her child, is that not likely to mar the relationship between the second respondent and the stepchildren? The second respondent now knows that it is the mother of the children who has striven to ruin her marriage. It will not be in the interest of the children to be allowed to stay with a stepmother who may harbour such ill-feelings towards them and their mother.

Another factor which militates against the stepmother in the instant case is this: She was heavily pregnant when she testified before me, and presumably must have given birth to a child by now. She will give all the attention to her own child. She will give her attention to her husband, being only recently married. Why should more strain be placed on her attentions by being saddled with the additional care of three children—not one, not two? Secondly, the more her attentions are divided, the less concentrated the attentions will be and the more unsatisfactory and questionable that attention will be. To my mind, the natural mother with no husband or a fledgling baby to worry about would better serve the interest of the children than the stepmother. During the trial, no evidence was led that she had obtained a new lover, or was in the process or even intended to remarry to create another situation of a stepfather. She was not pregnant when she testified before me.

Another truism which obviously requires no proof and in respect of which I take judicial notice is that the father of the children, like most fathers in this country, is out of the house most times during working days as he struggles to find the daily bread of the household. Evidence was led to show that the first respondent is engaged on several business ventures and that confirms my view that the first respondent in particular will be away from home on business during working days. Even when he is at home, he will not spend as many hours with the children as the mother or stepmother. This will particularly be the case with the children in the instant case because they are all girls who are at fast growing ages. They are at ages when they have to be introduced to cooking, washing, house-keeping and such-like household chores. It is a notorious fact that the cultures of this country do not encourage our men folk to be involved in such chores. It may be attitudes will change in the future with all the talk of women’s liberation and the infusion of other cultures into ours. For the moment, however, it cannot be denied that such chores remain predominantly female domain. All these factors underline the fact that most times the children will be left more with the woman of the house than the man, if they were allowed to stay with the respondents. Would it not be better for the children, for their own good and welfare, to be left with their natural mother to introduce them to things and bring them up in her concept of the ideal woman instead of the stepmother whose concept of the ideal woman may differ from hers?

Finally, the female sexes of the children is another debilitating factor in the case made on behalf of the father. Even if it can be said that the father too has the right to bring up his children in his own concept of ideal woman, it cannot be gainsaid that there are certain occurrences in the lives of girls which can best be controlled by women and not men. There are some things about womanhood in respect of which men are totally helpless, however best our intentions may be. Such matters are best taken care of by women, whether we like it or not. I refer to the stage in the lives of girls, for instance, when they pass the ages of nine years and reach puberty, which the girls in the instant case will soon reach or have already reached. Again, everyone reading this judgment knows what I mean too well and I need not elaborate on them. If the natural mother is ready and willing to do these for her own children, why should they be left to their father who cannot help but leave the children to their stepmother but who is herself preoccupied with her own child and husband?

In the instant case, the natural mother has been provided with a house by the first respondent, the first respondent has undertaken to build her a three-bedroom house. The natural mother is not merely willing and prepared to have the children. She is indeed anxious to have them.

It is arguable that all these points about the stepmother may equally be applicable to a stepfather, should the petitioner decide to remarry. Even if that may be true, there was no evidence of an impending remarriage by her. I am dealing with the situation as I find it now, not as it may or will be in the future. If court cases, like the instant one, were to be decided on the basis of possibilities — however remote, speculative or imaginary, no case could be decided to finality. It is also possible to argue that the things I have written about have not risen yet and therefore may be speculative. My view is that the fact that they have not risen is irrelevant. I am concerned with the potential dangers which an order to stay with the stepmother, may provoke.

It is also possible to argue that heavy rule that as the 1988 marriage is null and void, there can be no stepmother. I am passing judgment about a situation which may involve the children staying with the second respondent who would remarry and not otherwise.

I am fully conscious of the fact that no evidence was led of what I described here as some of the probable consequences of allowing stepchildren to stay with their stepmother with access to their natural mother. The stark facts however are that the second respondent is a stepmother and the petitioner is the natural mother. We read about these incident, we see them on television, we hear about them on the radio; they are dramatised in theatrical plays so often that there is hardly any adult reader of this judgment who has lived in this country for the past couple of years and who, if he or she will be honest with himself or herself will be bold to assert that what I have written here are far-fetched or that they never happen. They do happen. They happen nowhere else but in our society. It is the society in which we live. We in the court will be deluding ourselves into believing that we can close our eyes to what goes on around us because no express evidence has been led on such incidents

If we should provide any meaningful service to the people of this society wherein our courts operate, it is imperative that we in the courts muster sufficient courage to take cognisance of the happenings in our society and ensure that our judgments duly reflect facts of common notoriety. Facts so notorious that everyone in our society can be deemed to be aware of, can be said to be matters in respect of which judicial notice can be taken. Mr G D Nokes in his book An Introduction to Evidence (4th ed), p 54 defines judicial notice as: “... the acceptance by a judicial tribunal of the truth of a fact without proof, on the ground that it is within the tribunal’s own knowledge.” NRCD 323, s 9(2) provides, inter alia:

“Judicial notice can be taken only of facts which are either(a) so generally known within the territorial jurisdiction of the court ... that the fact is not subject to reasonable dispute.”

In Barko v. Mustapha [1964] GLR 78, SC the second holding of the Supreme Court, as stated in the headnote, read, inter alia, thus:

“A court is not entitled to rely upon facts which have not been recorded in evidence, unless they are notorious facts of public interest of which judicial notice may be taken.”

These authorities sufficiently illustrate the rationale for adopting facts on the probable consequences of allowing the children to stay with their stepmother while their natural mother is alive, even though no evidence was led.

To conclude, I find the contesting claims to custody of the children to boil down to these: Religion and moral considerations of all the claimants are equally balanced: None of them provides decisive basis for ordering custody in favour of either party. When these have been eliminated and the parents are considered, I am faced with making an order in favour of the natural mother or the natural father, the latter of which will mean their stay with a stepmother as well.

In this exercise, I have necessarily to consider whether it would be in the interest of the children or in their welfare to grant custody of them to their natural mother with access to their father or to grant custody to their father assisted by their stepmother with access to their natural mother? It is my considered opinion that the children will profit better, and it will be in the welfare of all the children, to grant custody to the petitioner who is their natural mother, with reasonable access to the father who may visit them at any time he chooses or ask them to stay with him at weekends or on school holidays. I accordingly grant custody of all the three children in question to the petitioner.

In order to allow the father to know whatever is happening to the children, he is given reasonable access to the children at any time within the week and he is to be allowed to have the children at any weekend, ie Friday to Sunday, and on any school holiday or vacation that the father would desire. The petitioner should not place obstacles in the way of the father in implementing this order on access at weekends and on holidays since the children will be with her most times of the year in any case.

Having ordered that custody should be given to the petitioner, the next issue to be considered is maintenance of the children as per relief (4) in the petition. In the course of the trial evidence was led that the first respondent pays the children pocket money of ¢20,000 and ¢15,000 for the first and second children as well as some allowances to the other daughters. He is ordered to continue payment of those amounts to the second and third children as the first is no more in Ghana. In addition he should continue paying the ¢25,000 pocket money to the petitioner until her remarriage. All these were moneys which the petitioner averred were being paid by the first respondent and which the first respondent did not deny in his evidence or affidavits. The first respondent is additionally to be responsible for the educational and medical bills of the children. If the first respondent has that much of affection for the children as he professed in the course of the trial, it is not envisaged that any difficulties would be encountered in meeting the needs of the children.

The last issue is that of financial provision. Our law on financial provisions is contained in the Matrimonial Causes Act, 1971 (Act 367), s 20(1) and has been well settled in the case of Ribeiro v. Ribeiro [1989-90] 2 GLR 109, SC. In the majority decision of the Supreme Court, the issue of financial provision was considered this way, inter alia, by Amua-Sekyi, JSC at 115—116:

“It was suggested that the power of the court to vest immovable property under section 20(1) of Act 367 was contingent upon proof that the recipient was either the owner of the property or made a substantial contribution towards its acquisition. This view was supported by references to a number of English cases, among them: Cobb v. Cobb [1955] 2 All ER 696, CA; Appleton v. Appleton [1965] 1 All ER 44, CA; and Pettitt v. Pettitt [1969] 2 All ER 385, HL and to the decision of our Court of Appeal in Achiampong v. Achiampong [1982-83] GLR 1017, CA. The short answer to the submission is that all the cases cited are irrelevant to the matter now on appeal. Without exception, the English cases were concerned with the interpretation of section 17 of the Married Women’s Property Act, 1882 which laid down a procedure for resolving disputes between husbands and wives as to title to or possession of property. Our analogous law, the Married Women’s Property Ordinance, Cap 131 (1951 Rev), did not have a similar provision. In any case, it was repealed by the Statute Law Revision (No.2) Decree, 1973 (NRCD 228) as being obsolete or unnecessary.In Achiampong v. Achiampong (supra) there was evidence that the wife had been persuaded by her husband not to acquire a house of her own and that she had, in fact, financed extensions to the matrimonial home. She claimed to be a joint owner of the home and succeeded in an application under section 20(1) for a settlement of the property rights of the parties. But that is not all the power that section 20(1) confers. There is also the power to make orders for financial provision. On such an application, the court examines the needs of the parties and makes reasonable provision for their satisfaction out of the money, goods or immovable property of his or her spouse.”

By this passage, the law was clarified that in the first place an order for financial provision does not have to be based on proof of ownership or contribution towards acquisition of the properties to be awarded. The case now lays it down quite clearly that under section 20(1) of Act 367 the court has power to grant financial provision where married couples are divorced and the basic consideration is the requirement for the court to examine the needs of the parties.

In the instant case, the first respondent does not dispute the fact that the petitioner is entitled to be given something. In the course of the trial, almost all aspects of property issues were settled this way: The first respondent offered in writing to transfer his plot numbered as 308, Takoradi to the petitioner and build a three-bedroom bungalow type house thereon solely for the petitioner. In the alternative, the first respondent offered to buy a house for the petitioner in a good residential area in Takoradi. He also offered to furnish the house to the petitioner’s taste. In addition the first respondent gave the petitioner a Mercedes Benz car, No GN 6464. These offers were repeated in the evidence in-chief of the first respondent. It is hereby ordered that the first respondent carries out those promises on the car and house for the petitioner as part of the financial provision or property settlement.

In addition to all these the first respondent offered the petitioner ¢2 million. That offer was repeated in the written address of counsel for the first respondent. The petitioner on the other hand claimed ¢10 million. I take into account the fact that the first respondent has been made to pay some moneys in connection with his timber businesses. I however do not believe that the first respondent is so much impoverished that he cannot pay more than ¢2 million. For instance, I do not accept as correct his evidence that he earns ¢200,000 per month as salary when he conceded during the trial that he provided ¢150,000 house keeping money for the petitioner; ¢20,000 and ¢l5,000 as allowances to his children and ¢25,000 pocket money to the petitioner. The evidence was that all these were provided regularly per month. By simple arithmetical calculation his expenses alone were ¢210,000. He could not convince anyone that he earned ¢200,000 in the light of this fact.

On the other hand, after the offer of the car, ¢25,000 monthly pocket money and provision of a furnished house to the petitioner she surely can be said to have been adequately catered for. Her additional claim for ¢10 million is rather on the high side. In all the circumstances of the case, I am of the opinion that ¢4 million in addition to all that has been provided should suffice as financial provision. The first respondent is accordingly ordered to pay ¢4 million as financial provision which amount may be paid by agreed reasonable instalments but should not cover more than two years, unless the petitioner agrees to extend it beyond two years.

I consider all these orders to be adequate financial and property settlement for the near twenty years that the petitioner married the first respondent. I do not see any justification in a further order for a share in the family properties of the first respondent. That relief is consequently dismissed.

Appearances

DR EKOW DANIELS FOR THE PETITIONER; E D KOM (WITH HIM BODZA LUMOR) FOR THE FIRST RESPONDENT.