RUTH ARTHUR V. JOHN HECTOR ANSAH & NAOMI OWUSU

OWUSU ANSAH, J.A.

This is an appeal from the Judgment of the High Court, Cape Coast, delivered on the 16th June, 2000.

The Plaintiff/Respondent ("Respondents") issued a Writ of Summons against the Defendants/Appellants (hereinafter referred to simply as the "Appellants") claiming the following reliefs.

a) A declaration that the Ordinance Marriage celebrated between the 1st and 2nd Defendants on the 13th March, 1998 is unlawful, null and void and of no effect in the light of the existing customary marriage subsisting between the Plaintiff and 1st Defendant which has not been dissolved.

b) An order setting aside the Ordinance Marriage between the Defendants.

c) A declaration that the 1st Defendant's conduct in contracting an Ordinance Marriage whilst a customary marriage subsists between him and the Plaintiff constitutes bigamy.

d) An order compelling the 1st Defendant to restore the conjugal rights of the Plaintiff. It is not disputed that the Plaintiff and the 1st Defendant contracted a Customary marriage about 30 years prior to the institution of the Proceedings. They had seven children; five of whom survived.

According to the Plaintiff, the 1st Defendant introduced the 2nd Defendant to her as the wife of his friend who had travelled abroad. Plaintiff subsequently got to know (and this was confirmed by a search Exhibit 1) that the 1st Defendant had married the 2nd Defendant under the Ordinance at the offices of the Cape Coast Municipal Assembly, in spite of the subsistence of the Customary marriage between her and the 1st Defendant. The 1st Defendant admits being married to the Plaintiff in or about 1973 and has five children with her.

The case for the 1st Defendant, however, is that the said customary marriage was dissolved sometime in 1988 as a result of a misunderstanding over the loss of ¢1.75 million which eventually 1st Defendant said was ¢2.75 million meant for his petroleum business.

It is thus admitted that the 1st Defendant purported to marry the 2nd Defendant under the ordinance on the 13th March, 1998.

The learned High Court judge Cape Coast found in favour of the Plaintiff on the 16th June, 2000 and concluded that "the customary marriage between John Hector Ansah and Ruth Arthur is still valid and subsisting" and declared that "the ordinance marriage contracted between John Hector Ansah 1st Defendant and Naomi Owusu the 2nd Defendant on the 13th March 1998 is illegal, null and void and is set aside."

The court ordered that the relevant marriage certificate be brought to the Court on or by the 23rd June, 2000 for it to be destroyed.

The court however declined to grant reliefs (c) and (d) as endorsed on the Writ of Summons.

It is against this judgment that the Defendants have appealed to this court. Since there is no cross appeal against the refusal of the High Court to grant relief (c) and (d) the least said about that the better. The main ground of appeal by the Appellants is as follows:—

"The trial judge erred in holding that the marriage contracted between the Plaintiff/Respondent and the 1st Defendant/Appellant is still subsisting in spite of the clear evidence that the marriage was dissolved before the Ordinance marriage was contracted."

It seems to me therefore that the sole issue for resolution in this appeal is whether or not the customary marriage between the Plaintiff and 1st Defendant was dissolved before the purported ordinance marriage between the 1st and 2nd Defendants.

The Plaintiff therefore assumed the initial burden of persuasion to prove:

1. That there was a prior customary marriage between the Plaintiff and 1st Defendant in 1972.

2. That there was a subsequent Ordinance Marriage between the 1st and 2nd Defendants on the 13th March, 1998;

3. That the customary marriage still subsists and has not been dissolved at any rate prior to the celebration of the purported Ordinance marriage on the 13th March, 1998.

From the pleadings, the evidence, and indeed, the written submissions of both Counsel there is a clear unambiguous admission of the first two issues as regards the celebration of the customary marriage and the Ordinance marriage, and this is amply supported by the Summons Directions in which the major issue set down for trial was

(a) "Whether or not the customary marriage between the Plaintiff and 1st Defendant had been validly dissolved."

The fact that the 1st Defendant is pleading that the marriage has been validly dissolved logically presupposes the existence of a valid customary marriage prior to its alleged dissolution.

Furthermore under cross-examination the 1st Defendant said:

"It not correct that the Plaintiff is still my wife. The marriage has long been dissolved."

According to Section 14 of the Evidence Decree, 1975, NRCD 323,

"Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact, the existence or non-existence of which is essential to the claim or defence on that issue."

The Plaintiff's evidence as supported by witnesses and as found by the Judge was such as to shift the burden of persuasion on to the Defendants to show that the customary marriage was "validly dissolved" before the purported ordinance marriage. He who alleges must prove.

The plaintiff insists that the families of both Plaintiff and 1st Defendant met at the local Council School in connection with an allegation of theft of 1st Defendant's money. The meeting was from 4.00 p.m. to midnight that day; but it had nothing to do with the alleged dissolution. The Plaintiff denied the suggestion that the dissolution of the marriage was at her instance and that she has remarried another man.

Under cross-examination she describes the procedure for customary divorce. Although that was challenged, there was no evidence to the contrary. The Plaintiff called two witnesses in support of her case.

The gist of the 1st Defendant’s case is that following the 1st Defendant’s complaint about his missing ¢2.75 million cedis meant for his petroleum business, the plaintiff not only refused to go with him to look for the missing money but she also said she could not marry the 1st defendant anymore and prevented him from entering her room.

An attempt by both sides of the family to effect an amicable settlement of the matter was futile and barren of all material results. Consequently the marriage was dissolved not at the local council school but in the family house in 1988. The break down of the marriage was attributed by the Plaintiff to the 1st Defendant's alleged flirtation with the 2nd Defendant. Disappointing though it may sound, all panel members from the 1st Defendant's side, according to him, have died and therefore, none could be called as witnesses.

The 1st Defendant, however, apart from giving evidence denying the continuing existence of the marriage, called four witnesses, one of whom was a son of the Plaintiff and the 1st Defendant. Another witness D.W.2 was emphatic that because there were children of the marriage the 1st Defendant decided to forgo the refund of the dowry. That notwithstanding, the marriage was duly dissolved — a fact which is vehemently and consistently denied by the Plaintiff.

Under cross-examination the 1st Defendant was asked:

Q. Where did the dissolution of the marriage take place?

A. In the house of the Plaintiff's mother in Elmina.

It would appear that the Plaintiff was being rather economical with the truth in view of his earlier claim that the dissolution of the marriage took place at the Local Council Office.

Quite clearly the learned trial judge properly adverted her mind to and carefully considered the issue before her. After reviewing the facts and analysing the evidence the learned trial judge went on:

"The issue is whether they were still husband and wife as at the 13th March, 1998. From the evidence on record, both John Hector Ansah and Ruth Arthur are from the Akan tribe. Thus a particular procedure is followed when marriage is to be dissolved."

It is well settled customary law that when there is a declaration of intention to seek divorce, both families of the couple meet together for the dissolution of the marriage. They try to reconcile the couple. When reconciliation fails, they find out if either party owes the other. Then libation is poured, and Kaolin is smeared on the body of the woman in the presence of both families and other neutral and responsible persons. Where it is the wife who seeks the divorce she is requested to return the dowry paid. Where it is the husband who seeks the divorce he is normally to give some lump sum to the wife as some kind of alimony or compensation.

In this case the 1st Defendant, who alleges that the marriage had been dissolved has the burden of persuasion as to that fact, the existence of which is essential to the defence — albeit on the preponderance of probabilities.

Some assistance may be sought from John Mensah Sarba's Fanti Customary Law 3rd Edition at page 52. The learned author states:

"Notwithstanding the vague ideas in the coast town about divorce of native marriage, there is no doubt that, save and except the competence of a native tribunal to decree the dissolution of marriage, the right of divorce is marital only.""The wife cannot declare her marriage void, nor can her family give her permission to remarry in the absence of the consent of her husband, signified by his releasing her from her conjugal obligations, either by chalking her or saying so in the presence of competent witnesses."

There is no satisfactory evidence that this procedure was followed and the learned trial judge so found.

In the further grounds 3 and 4 it is contended by the 1st Defendant that the Ordinance marriage was contracted after the marriage banns had been duly published for the requisite 21 days in Cape Coast and no caveat was filed to stop the solemnization of the marriage.

It is noteworthy in this connection that the parties cohabited in the house gifted to the Plaintiff and her siblings in Elmina where the Plaintiff apparently continued to live. The 1st Defendant on the other hand lived with the 2nd Defendant in Cape Coast, a short distance from Elmina. As the learned judge observed, the notices were put up on the Notice Board at Cape Coast Municipal Assembly and on the house of the 1st Defendant only. Consequently, the Plaintiff never became aware of the then impending Ordinance Marriage though that is notice to the world.

Moreover, the condition of exhibit '1' the notice in question, left a lot to be desired. In the result, in all the circumstances, the banns made no significant impact on the evidence before the court.

Indeed, the 1st Defendant admitted that the Plaintiff's mother refused to allow the dissolution of the marriage. It is also significant to note that John Hector Ansah, the 1st Defendant herein is described in exhibit '1' as is "single" instead of being described as a "divorcee". Was this deliberate or was it the result of inadvertence. That is anybody's guess!

Until the marriage is properly dissolved one party cannot validly marry under the provision's of the Ordinance Cap.127.

In the ultimate analysis I find, as did the learned trial High Court Judge, that Ruth Arthur has been able to prove relief a (a) and (b) on a balance of probabilities that the customary marriage between her and the 1st defendant John Hector Ansah has not been legally and validly dissolved, according to the requisite custom.

As a matter of fact, the learned judge's findings of fact are amply supported by the evidence. The well-established rule is that an appellate Court is not entitled to interfere with the findings of fact made by a trial judge, unless those findings are not supported by the evidence on record, or that the judge did not take all the circumstances into account, or that he misrepresented the evidence or drew wrong inferences where there was no evidence in support thereof.

There are numerous authorities in support of this proposition including:— Darkwa v. Denteh 1972 2 GLR 303 CA. In Re Yendi Skin Affairs: Yakubu v. Abdulai (No.2) 1984-86 2 GLR 239 SC; Log and Lumber Ltd. v. Oppong 1977 2 GLR 263 CA; Praka v. Ketewa 1964 GLR 423 SC; Kyiafi v. Wono 1967 GLR 463 CA;

If I may obtrude an opinion, I think it is obvious that the parties were content to leave the marriage to die a natural death, until one of them, for whatever reason, suddenly decided to resurrect the issue.

Unfortunately for them, however, the legal effect of a marriage cannot just be wished away, or disappear, without complying with the necessary and prescribed formalities and procedures. I don't think that on the facts, the parties ever contemplated seriously coming together to resume their conjugal rights as husband and wife.

What is now left of this marriage is a mirage, a shell, or a skeleton or a shadow of its former self. To all intents and purposes, this marriage appears to be dead though not buried and it is still ruling the parties from its death bed if not from its grave. It is up to the parties to do the right thing as soon as practicable either by putting the last nail in its coffin, or by providing the necessary antidote; it may rise again from the dead, who knows!

Meanwhile, I share the learned trial judge's conclusions in their entirety. I would dismiss this appeal and affirm the judgment of the court below.

Appearances

MR. E. B. ODRO FOR RESPONDENT MR. PETER BOSOMPEM FOR APPELLANTS