CECILIA OSEI OWUSU V. AKOSUA MANSAH & JAMES OSEI AKWASI

ASARE-KORANG, J.A.

In the court below, the plaintiff/respondent (the plaintiff for short) who said she presently resides at 92 Higham Hill Road E176ES, London England, sued the defendants/appellants (1st and 2nd defendants for short) in the circuit court for

1. An order for the revocation of

2. Letters of Administration granted to the defendants in respect of the estate of James Osei-Owusu (deceased) on grounds of fraud

3. General Damages.

The 1st and 2nd defendants jointly filed a Statement of Defence after entering appearance and counter claimed for:

"(a) A Declaration that 1st Defendant is the only lawful spouse of the said James Osei-Owusu (deceased) and as such the grant of Letters of Administration was lawful

(b) Perpetual injunction restraining the plaintiff, her agents, heirs, workmen, privies, personal representatives from interfering with the Defendants right to administer the said estate.

The plaintiff testified that she got married to James Osei-Owusu (deceased) in London on 17th June 1989 under the marriage Act of 1949. A certified copy of an entry of marriage in proof of the marriage was issued.

Plaintiff stated that the original of the marriage certificate got lost and upon an application, she was issued with another one. The original of the new certificate and a photocopy of the lost one were tendered in evidence as Exhibits A and B respectively.

Plaintiff lived with the deceased in London but occasionally paid visits to Ghana after her marriage with her deceased husband.

Plaintiff said while in London, she used to correspond in writing with the 2nd defendant whom she knew as the son of her late husband. Of the 1st defendant, she stated that she had heard that she had a female child with the deceased.

It was the case of the 1st defendant that she was customarily married to the deceased and during the subsistence of the customary marriage had a child—a daughter, who has now attained the age of majority, with him. After the marriage, she moved from her hometown, Nkawie-Mim to stay with her late husband at Nkawie in a house belonging to the family of her husband.

According to the 1st defendant, before the deceased travelled to live in London, their customary marriage was registered at the Nkawie District Assembly and a certificate marked Exhibit 1 was issued.

1st defendant said she did not know the plaintiff and considered herself as the only surviving spouse of the deceased.

2nd defendant also gave evidence and denied that the plaintiff was the spouse of the deceased. He said at the time of the death the deceased who was his father, he knew the 1st defendant as the only woman to whom the deceased was married.

In essence, the defendants denied that they had obtained by fraud Letters of Administration to administer the estate of the deceased. They explained that the deceased could be said to be living both in Ghana and the United Kingdom and that whenever he was in Ghana, he lived at H/No. AA/6 Community 11, Tema, or H/No. 3A/35B Tabora, Accra.

In both her statement of claim and her reply to the defendants statement of defence, the plaintiff positively asserted that the 1st defendant is the divorced wife of the deceased. And while testifying plaintiff said she could not tell if ever there was any marriage between the deceased and the 1st defendant. All that she knew was that the 1st defendant had a child with the deceased.

The learned trial judge, having noted in his judgment that the plaintiff had stated that she resides at 92 Higham Hill Road E176ES, London, England and also at H/No. 3A/35B, Tabora, Accra, rightly observed that the plaintiff gave no indication before the court that the marriage between her and the deceased was Published in Ghana as having been celebrated in the U.K, making it extremely difficult for relatives and associates of the deceased, James Osei-Owusu to know about it. Having so neatly and flawlessly found on the evidence, the learned trial judge curiously held that he was inclined to believe that the plaintiff was lawfully married to the deceased and for that matter she falls within rule 7 of the Probate and Administration Rules, 1991, L.I. 1515.

The trial judge proceeded from there to revoke the Letters of Administration obtained by the 1st and 2nd defendants on 7th July 2000 and to dismiss the plaintiff's claim for general damages and the defendants counter claim. The defendants have appealed against that judgment to this court, the original grounds of appeal being:

"(a) That the trial judge failed to adequately evaluate the evidence of and for the defendants before arriving at his decision

(b) That the judgment was against the weight of the evidence."

Additional grounds of appeal were later filed and they read:

"(a) The learned trial judge erred when he failed to make a finding against the plaintiff for failing to prove that the 1st defendant was the divorced wife of James Osei-Owusu (deceased) before her marriage to him.

(b) The learned trial judge failed to make any findings of fact on the main issues at the trial."

Having regard to the whole tenor of the grounds of appeal including the additional grounds, it is clear that the defendants are inviting this court to take over the responsibility abdicated by the trial judge and to once again examine and evaluate the evidence led in this case and to make proper findings thereon. In other words, the appeal in substance is against the evaluation of the evidence on record at the trial and the findings made thereon by the trial judge.

In his submissions in reply to the defendants' statement of case, counsel for the plaintiff citing a number of authorities argued that the trial judge is not bound to make findings of fact on irrelevant matters even if the parties led evidence on them. Counsel for plaintiff submitted that the findings of fact, which the learned trial judge made, were those necessary to establish the claim of the plaintiff. Therefore the trial judge was right in arriving at the conclusions made by him.

This submission is precisely the point from which the defendants take up their appeal as they complain that their case was not adequately evaluated and their counterclaim was not considered by the trial judge.

One of the grounds of appeal is that the judgment was against the weight of the evidence and it is a ground that gives this court the jurisdiction to examine the totality of the evidence in this case and come to its own conclusion on the admitted and undisputed facts. See AKUFFO-ADDO v. CATHLINE (1992) 1GLR 377 at page 403, S.C.

But in BONNEY v. BONNEY (1992-93) GBR part 2 page 799 S.C. it was held that

"Where an appellant contended that judgment was against the weight of evidence, he assumed the burden of showing that this was in fact so. And the argument that an appeal was a rehearing and therefore the appellate court was entitled to make up its own mind on the facts and draw inferences might well be so, but an Appeal Court ought not under any circumstances interfere with the findings of fact by the trial judge except where they were clearly shown to be wrong."

It is argued by counsel for the plaintiff in the instant case that the learned judge did identify what he considered to be the main issues as gathered from the pleadings and set out to determine same. And according to counsel for the plaintiff, this the learned judge did when in his judgment he delivered himself as follows:

"Plaintiff's main claim is for an order of revocation of letters of Administration in respect of the Estates of James Osei-Owusu (deceased) on the grounds of fraud."

Then as regards the same function of determining the issues raised, the trial judge stated:

"One other issue, which confronts this court is whether or not the defendants obtained the Letters of Administration by fraud."

In my view, the allegation of fraud was not the only primary issue to be determined by the trial judge. He also was confronted with other core issues clearly stated as the issues settled in the summons for directions and these were:—

(a) Whether or not the plaintiff is the only surviving spouse of the deceased James Osei-Owusu, and

(b) Whether 1st defendant is a divorced wife of James Osei-Owusu (deceased).

Following from these, I think the trial judge also had to decide, assuming he found that the 1st defendant and the deceased were married under the customary law, whether or not the plaintiff and the deceased could contract a valid marriage under the ordinance during the subsistence of the customary marriage between 1st defendant and the deceased.

I think these issues were amply highlighted in the address of counsel for the defendants in the court below and yet the trial judge either failed to adequately arrive at any conclusions or drew the wrong ones on them.

The trial judge made no findings on the issue of fraud or whether or not plaintiff is the sole surviving spouse of the deceased except to say that the plaintiff was lawfully married to the deceased and therefore she qualifies to apply for Letters of Administration under Rule 7 of order 2 of LI 1515.

It must, necessarily be made clear, however that it is one thing declaring that plaintiff is the sole surviving spouse of the deceased and another thing saying the plaintiff was lawfully married to the deceased. The two do not mean the same thing. The one connotes that the plaintiff, and nobody else, could claim to be the spouse of the deceased and the second could mean that the ceremony entered into by the plaintiff and the deceased conferred on them the status of a married couple. And yet the trial judge failed to explain or make a reasoned assessment why he chose to believe that plaintiff and the deceased were lawfully married.

It was equally important for the trial judge to have made a finding whether or not 1st defendant is the divorced wife of the deceased. The status of the 1st defendant as a divorced wife was raised by plaintiff in her pleading and the onus was on her to prove that averment. She failed to do so and the only evidence she gave about the 1st defendant was that she (plaintiff) had heard that 1st defendant had a child with the deceased.

In view of the lack of proof from the plaintiff that the 1st defendant was a divorced wife, the trial judge ought to have believed and accepted the evidence of the 1st defendant that she was properly married to the deceased under customary law which marriage was registered under the "Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112), and that the marriage was subsisting at the time the deceased died in 1999 for which reason the 1st defendant, to the knowledge of the family of the deceased performed widowhood rites during the funeral rites of the deceased at Nkawie.

The learned judge ought to have found that while the deceased was married customarily to the 1st defendant, he could not, on the authority of GENFI v. GENFI (1965) c.c.1 and AZU and ANOR v. AZU and ANOR (1970) c.c. 56. have contracted the subsequent monogamous marriage with the plaintiff; that is to say, the learned judge should have held that because of the pre-existing customary marriage between the deceased and the 1st defendant, the subsequent marriage under English Law between the deceased and the plaintiff was null and void ab initio and of no effect, the said marriage being bigamous and criminal under Ghanaian Law. See section 262 of the Criminal Code, 1960 (Act 29) and the Marriage Ordinance, Cap 127.

Perhaps the only serious foray the trial judge made into determining the nature of the marriage between the plaintiff and the deceased was when he observed the marriage was not published as having been celebrated in England thus making it difficult for relatives of the plaintiff herself and the defendant to know of it.

If the marriage celebrated in England was not published in Ghana, then what was its legal effect? The learned trial judge did not say and yet he concluded that plaintiff and the deceased were lawfully married.

The Court of Appeal held in Re ARYEETEY (Decd), ARYEETEY v. OKWABI (1987-88) GLR that because the trial judge failed to support with reasons his important finding that the applicant herein was still married to the deceased when he contracted his monogamous marriage with the respondent in England, he could not have adequately discharged the duty which enjoined him by law to make a critical appraisal of the case before him and to say why he preferred the case of one party to the other. See also NUBOUR v. AMPADU, 31st May, 1960 (unreported and QUAYE v. MARIAMU (1961) GLR 93, S.C.

In the instant appeal the trial judge should have given sound reasons why he preferred to believe that the plaintiff was lawfully married to the deceased.

The letters written by 2nd defendant, Exhibits C, C1 and C2 in which he addressed the plaintiff as "My mother in London", "Dear Mum" and My stepmother" do not constitute an acceptable proof in law or any proof at all that the plaintiff was lawfully married to the deceased.

Again, if the finding of the trial judge that the witness of the 1st defendant, Nana Owusu Bempah, did not know the answers to most questions put to him or he did not remember them, formed the basis of his conclusion that the plaintiff and the deceased were lawfully married, then that finding was not borne out by the evidence on record. The evidence of the witness was that the family of the deceased did not know the plaintiff as the wife of the deceased. Plaintiff was known only as the friend of the deceased and the 1st defendant as the wife of the deceased.

In the circumstances, the only proper and valid conclusion the learned trial judge ought to have arrived at was that the marriage celebrated in England between the deceased and the plaintiff was bigamous and therefore null and void, the deceased and the 1st defendant having married previously under customary law.

The trial judge then ought to have dismissed the action brought by the plaintiff against the defendants.

I am therefore of the view that the appeal of the defendants succeeds.

The judgment entered in favour of the plaintiff in the court below is set-aside on the ground of want of capacity in the plaintiff to sue and failure by the plaintiff to establish that the defendants by fraud obtained Letters of Administration to administer the estate of the deceased.

In place of the judgment of the trial court, the counterclaim of the defendants is reinstated and judgment entered thereon in favour of the defendants.

This court enters judgment for 1st defendant on her Counterclaim. The court further grants her a perpetual injunction as prayed.

A. ASARE-KORANG

JUSTICE OF APPEAL

P.K. TWUMASI

JUSTICE OF APPEAL

E.K. PIESARE

JUSTICE OF APPEAL

Appearances

R.V.C. ADDAI FOR APPELLANTS; E.C. ANNAN FOR RESPONDENTS.