YAKUBU MAHAMA V. BUKARI AWUNI

JUDGMENT

ANIN-YEBOAH, JA.

This is an appeal from the High Court, Bolgatanga presided over by Piesare, J. (as he then was), dated the 12/12/2001. The facts of the case appear to be simple. The Plaintiff/ Respondent (hereinafter referred to as the Respondent) sued the Defendant/ Appellant (hereinafter referred to as the Appellant) before the High Court, Bolgatanga claiming several reliefs which border on intestacy.

It is the case of the Respondent that he was married to one Laadi Mahama (deceased) under the Marriage of Mohammedans Ordinance Cap. 129 and both cohabited together as man and wife for over Forty-six years before the death of Laadi Mahama. Unfortunately, there was no issue out of the marriage. According to the Respondent, the marriage rites were performed at Kumasi before an uncle of the deceased who gave him her hand in marriage, as the deceased's father was living in Accra at that time. After the marriage, they both lived together as husband and wife till Laadi Mahama died intestate on 9/3/1996.

All the ceremonies that Mohammedans perform after the death of a married woman were performed by the Respondent. Indeed, the deceased Laadi Mahama was buried in the hometown of the Respondent.

Subsequent to that, the Respondent and the Appellant as husband and brother respectively of the deceased jointly applied for and obtained Letters of Administration from the High Court, Bolgatanga to administer the estate of the said Laadi Mahama who had died intestate. The Letters of Administration were granted on 23/4/97.

Pursuant to the grant of Letters of Administration, the Respondent proceeded to exercise his statutory rights under PNDCL 111 of 1985 in the distrubution of the estate. The appellant contended that the Respondent was never married to the deceased but rather they cohabited as concubines. He further contended that the Letters of Administration was procured after undue pressure had been brought to bear on him to jointly apply for it with the Respondent. He counter-claimed for several reliefs against the Respondent, and prayed for a declaration that the said Laadi Mahama and the Respondent were never married. The learned trial Judge granted the reliefs sought in the writ of summons by the Respondent and dismissed the counter-claim of the Appellant. It is against the said judgment of 12/12/2001 that this appeal was lodged by the Appellant.

Several grounds of appeal were filed by the Appellant in this appeal. It appears that the main issue for determination as rightly pointed out by counsel for the Appellant was whether or not there was a valid marriage between the Respondent and Laadi Mahama. This issue has in view been re-stated in ground 8 of the grounds of appeal.

The learned trial Judge resolved this issue in favour of the Respondent and this has attracted serious attack by counsel in his written submissions in this appeal. The Respondent, from the evidence on record, contended that he contracted a marriage with the deceased under the Marriage of Mohammedan Ordinance, Cap 129 of 1907. According to Respondent, the marriage took place at Kumasi before an uncle of the deceased.

Subsequent to the marriage, they lived together as husband and wife till she died on 9/3/96. As this assertion of the Respondent was denied both on the pleadings and the evidence, the onus of proof was certainly on the Respondent.

Under Section 9 of the Ordinance, the proof of every marriage shall be the production of register in which the said marriage was indeed recorded or the mere production of the certificate issued from the marriage.

Indeed the authorities on this section are numerous and the courts in this country have construed the said section strictly in cases like: KWAKYE V. TUBA and OTHERS [1961] 2 GLR 720, HAUSA V. HARUNA [1963] 2 GLR 212 and BARAKE V. BARAKE [1993-94] 1 GLR 635 which have declared that the non-registration of the marriage under the Ordinance makes the said marriage invalid. In this case, the Respondent did not produce any certificates or register showing that the said marriage was contracted under the Ordinance. In my view, as the onus of proof which lay on the Respondent was not discharged, the learned trial judge was right to hold that the said marriage was invalid for non-compliance with the law and mandatory provisions of the Ordinance.

The trial judge, however, proceeded to examine the other evidence on record in detail. At page 59 of the record of proceedings, he relied on the long cohabitation of the couple and the evidence of DW1 and PW1 and held at page 60 as follows:—

"I think that the important issue in the circumstance is whether the Moslem custom of marriage was, in fact performed at all.

In the instant case, having regard to the admitted evidence, which preponderates in favour of the respondent, I accept the Plaintiff's case that he properly and validly married Laadi Mahama (the deceased) in accordance with Islamic practice. Consequently, I declare that a valid Moslem marriage existed between the Plaintiff and the deceased before the deceased died on the 9th March 1996."

In keeping with the authorities on the subject which insist on strict proof of marriages, the learned trial judge proceeded to examine the degree of proof and held that the Respondent had satisfied him that there was a marriage between him and the deceased. The effect of decisions in the cases of ESSILFIE and ANOTHER V. QUARCOO [1992] 2 GLR 181 and YAOTEY V. QUAYE [1961] 2 GLR 573 establish that the consent of both parents of the marriage could be either actual and express or implied and constructive. In this case the evidence led, which swayed the trial judge, was clear that the parties had gone through a marriage ceremony before the uncle of the deceased and had cohabited together for over forty-six years. The deceased was also buried in the hometown of the Respondent as custom demands. I am therefore unable to accept the contention that there was no marriage between them. The learned trial judge's findings which derive ample support from the record of proceedings ought therefore not to be disturbed on this point.

Another point, which in my view should be fully addressed, is the fact that the parties had jointly applied for Letters of administration to administer the very estate, which is in issue. It is not in dispute that Letters of Administration were granted to the parties. Exhibit B4 is clear on this. Even though the Respondent claims, and indeed pleaded, that undue pressure was brought to bear on him to join in the application, he in my view, offered no evidence that he took legal steps to set aside the grant by any known process. Factors which in law would vitiate a grant of Letters of Administration were not placed before the trial judge for consideration. Assuming that there was evidence before him (which is denied in any case), the trial judge was clearly disabled from revoking the grant under the circumstances. A grant could only be revoked by a court of competent jurisdiction if the procedure set out in Order 6 Rule 2(3) of L.I. 1515, Probate and Administration Rules of 1991 has been complied with. The Appellant, in my view, was clearly bound by all the depositions in the various affidavits he swore before the grant was made to both parties by the High Court, Bolgatanga on 23/4/97.

In my view, to grant the reliefs prayed for in the Counter-claim of the Appellant would have had the effect of ignoring the Letters of Administration granted by the High Court by circumventing the rule above. The trial judge at page 60 of the record of proceedings rightly said as follows:

"In applying that principle to the instant case, the defendant having joined the administration with full knowledge of the Plaintiff's declared capacity as husband of the deceased without question; he cannot now be heard to say that the Plaintiff was only a concubine."

That in my opinion is sufficient to dispose of the appeal herein, but learned counsel for the Appellant has raised certain legal points to which I must now turn my attention. It has been urged on this Court that the trial judge offered no reasons for the dismissal of the counter-claim. A counter-claim has always been recognised as an action in itself and independent of the substantive claim. This was clearly stated by Brett L.J. in WINTERFIELD V. BRADNUM 3 QBD 324 at page 326 as follows:-

"A counter-claim is sometimes as mere set-off; sometimes it is in the nature of a cross action; sometimes it is in respect of a wholly independent transaction. I think the true mode of considering the claim and counter-claim is that they are wholly independent suits which, for convenience of procedure are combined in one action."

The learned trial judge gave reasons for allowing the Plaintiff's claim. He, however, dismissed the counter-claim in one sentence. In my view, inasmuch as I accept the proposition of law that reasons should be given for a judgment, the trial judge in this case was faced with a claim which was indeed on the same subject matter as the counter-claim.

The reliefs sought in the counter-claim could only be granted if the trial court had found that there was no marriage between the Respondent and the deceased. As the claim and the counter-claim on the facts were clearly interwoven, I am of the view that the trial judge was not bound to give separate reasons for the dismissal of the Counter-claim. He had indeed found that there was a marriage between the deceased and the Respondent and certainly, he could not have granted the reliefs sought in the counter-claim. That aside, since these proceedings are in the nature of a re-hearing it is legitimate for this court assuming that there was so such finding to examined the evidence critically with a view to discerning if the dismissal of the counter-claim was proper having regard to the evidence. A close examination of the record shows that the learned trial judge's findings in favour of the respondent was amply supported by the evidence and as such the complainant of the appellant on this point is without merit and the same is rejected. Claim 3(c) in my view was not proved and so could not be granted as no evidence was led on it to show the customary law which governed the deceased's estate.

Based on the evidence contained in the record before us, I am of the view that he proceeded to resolve the main issue in this case within the law and I find no reason to justify my intervention by way of setting aside his decision. For these reasons, I proceed to dismiss the appeal.

N.S. GBADEGBE, JA

My Lords, I have come to the conclusion that the appeal herein fails. In the first place, I am of the opinion that the appellant, who from the proceedings before us took out joint letters of administration with the respondent which representation is still subsisting cannot be heard denying the degree of capacity in which the respondent obtained his grant. I am of the thinking also that having regard to the challenge which the appellant mounted to the application of the respondent for the letters of administration which challenge was as required by the practice relating to such matters a caveat that he withdrew subsequently resulting in he being made a joint administrator with the respondent he is deemed by accepting the representation to have admitted the capacity or degree in which his co-administrator applied namely as the surviving spouse of the decedent. This being the position, I think that the learned trial judge came to the right view of the matter when he held that the appellant was estopped from asserting to the contrary. It is worthy to note that in so pronouncing the learned trial judge of the court below relied on the case of King V. Eliot [1972] 1 GLR 54. I have read the said decision of the Supreme Court which is binding on me in as far as the rights and responsibilities of an administrator under Act 63; the Administration of Estates Act are the same as those of an executor in respect of whom the decision turned. I also wish to add that since the circumstances in which the grant was obtained are similar to a grant probate in a common form for the appellant to succeed in dislodging the consequences flowing at law from the grant he must show that it was obtained by fraud or circumvention, none of which was set up in the contest in the court below. See (1) Nicol V. Askew [1837] 2 Moo PCC 88.

I would like to say further that for as long as the said letters of administration are subsisting the appellant cannot be heard denying that the respondent is the surviving spouse of the deceased. I think that this view of the matter is so plain that to assert to the contrary would be to undermine the nature of the proceedings which resulted in the grant of the letters of administration to them. I would add that if the appellant thinks that the representation that was granted jointly to them was as regards the respondent obtained by means of a false suggestion, he should have the courage to raise this in a competent action. As it is, it lies ill in his mouth to deny that his co-administrator is indeed the surviving spouse of the deceased. Then there is also the fact that if the view, which I have taken of the attributes which at law must be attached to the subsistence of the letters of administration were not to be so it would have been competent for the learned trial judge assuming that he accepted the appellant's version of the matters that the respondent was not the surviving spouse to have consequentially revoked the representation issued to him without the appellant having issued a citation to the respondent calling upon him to come and lodge the grant made to him in the registry of the court in which the grant was made without a compliance with the mandatory requirements of Order 6 Rule 6(1) of LI 1515. That such a result would be contrary to the state of the authorities regarding the conditions precedent to the issuing of a writ to have letters of administration revoked compels me to think that to come to a contrary view of the matter would not only be wrong but enable the appellant to as it were to come to court seeking a relied "through the back door."

There is also contained in the record of proceeding before us sufficient evidence to hold that the deceased and the respondent were regarded in the eyes of the sic would as man and wife. Regarding these, I may refer to their cohabitation for over forty years, the burial of the deceased in the hometown of the respondent herein, and the performance of the Islamic rites after the burial, "aduwa" at the direction of the respondent. It is significant to observe that the appellant was present at the performances of the burial rites but raised no issue over the recognition of the appellant's marital status even after the death of the deceased. I think that his silence was at a point in time when to speak was quite relevant having regard to what he subsequently asserted in respect of the legitimate inference placed on his silence and operates against him in favour of the appellant's claim that he is the surviving spouse of the deceased.

In the circumstances, there was a marriage within the contemplation of customary law as was held by Wood J (as she then was) in the case of Essilfie v. Quarcoo [1992] 2 GLR 180 at 184. In her judgment she observed of such a situation as follows:

"But then there is the other form of a valid customary marriage where though the above customary rites have not been performed, the parties have consented to live in the eyes of the world as man and wife and their families have consented that they do so and the parties actually live as such man and wife in the eyes of the whole world. In coming to this view of the matter, the learned judge in the Essilfie case was not alone in giving recognition at customary law to the situation which arose before her but was following earlier decisions on the point namely:

(1) In Re Sackitey's Caveat [1962] 1 GLR 189;

(2) Yaotey V. Quaye [1961] 2 GLR 573.

In my view, this being the case, I do not see any reason for impeaching the judgment of the court below in respect of its decision on the rival claims before it relating to the claim of the parties to these proceedings. I wish to observe that since the conflicting claims depended for their resolution on the same cause of action, the acceptance of that put up by the respondent necessarily meant the dismissal of that of the appellant as indeed was the case in the court below. I now turn to examine the reliefs as allowed by the learned trial judge. Regarding relief one which merely sought a declaration of the respondent's status as the surviving spouse of the deceased. In my opinion since the appellant is deemed by his conduct herein before alluded to in the course of this delivery to have accepted the respondent as the surviving spouse of the decedent he is entitled in that capacity to one of the two houses left behind by the deceased by virtue of the rules as to intestacy provided in Section 4 of PNDC Law 111. By his claim, the respondent's formulation of his demand in respect of this was that he should have the first choice of the Immovable properties. Unfortunately, this aspect of the matter was not clearly provided for in the applicable law namely, the intestate Succession Law, PNDCL 111. I have closely examined the claim in terms of the order of priority of grants in cases of intestacy as is provided in Order 2 rule 6 of the Probate and Administration Rules, LI 1515 that the surviving spouse in the eyes of the law takes priority to a brother and as such the demand of the respondent was right. I also think that to allow the surviving spouse to make the first choice regarding the two houses left behind by the deceased accords not only with common sense but equally with principle and for that matter; I allow his claim in relation thereto.

I now come to his other reliefs commencing from relief (3) which set out the claim of the respondent regarding the sharing of the estate left behind by the deceased. In my view since the deceased left behind only a surviving spouse and not a child, the mainder of the estate not distributed under Sections 3 and 4 of the Intestate Succession Law, PNDC Law 111 constitute the residue and fall to be distributed as provided in Section 6 of the said law as follows:—

"Where the interstate is survived by a spouse and not a child the residue of the estate shall devolve in the following manner:

(a) One-half to the surviving spouse;

(b) One-fourth to the surviving parent;

(c) One-fourth in accordance with customary law.

Provided that where there is no surviving parent one-half of the estate shall devolve in accordance with customary law."

In the instant case, I think that the other house which does not form part of the respondent's claim in relief 2 constitutes part of the residue as defined by Section 18 of the relevant law, PNDC Law, PNDC Law 111 therefore his claim to one-half of estate numbered 17 is right and I so allow it as was indeed the case in the judgment the subject matter of these proceedings. Now, there is also a claim dependent on customary law in respect of house number 17 but since no evidence was led to establish what applicable customary rules as to distribution are I am incumbent upon the respondent as the plaintiff to lead evidence on the alleged distribution scheme on which his said relief was planked but not having done so, I do not desire to embark on any act in the nature of a speculation. I then must also consider his claim regarding the household chattels and say that by virtue of section 3 of the law, as the surviving spouse he is entitled absolutely to the household chattels. Having been adjudged as entitled to House number 72, Bolgatanga, I think that the respondent is entitled to the possession order which he seeks thereto. That in my opinion should be sufficient to dispose of the instant appeal.

The result is that the appeal is dismissed, and the judgment of the lower Court is affirmed save as to the relief numbered as 3(c).

ESSILFIE-BONDZIE, JA

This is an appeal from the judgment of the High Court Bolgatanga delivered on the 12th day of December 2001.

In the action before the court the Plaintiff/Respondent (who will be hereinafter referred to as the Plaintiff) sued for the following reliefs.

(1) A declaration that the Plaintiff is the surviving husband/spouse of Laadi Mahama (deceased).

(2) A declaration that as the surviving husband/spouse of Laadi Mahama (deceased) Plaintiff is entitled to the first choice of the immovable properties (house) which form part of the estate of Laadi Mahama (deceased).

(3) An order of the court for distribution of the estate of Laadi Mahama a (deceased) as follows:

(a) House No. A72 (formerly A. 52) Bolgatanga to Plaintiff (surviving spouse/widower).

(b) 1⁄2 share interest in Estate House N-A17 to the Plaintiff surviving spouse/widower).

(c) A share of 1⁄2 share (interest) in Estate House No. 17 distributed According to customary law.

(d) Household chattels to Plaintiff surviving spouse/widower.

(4) A perpetual injunction restraining Defendant, his heirs, successors or agents from interfering with Plaintiffs possession and ownership of House No. A.72 (formerly A. 52) Bolgatanga.

(5) An Order granting possession of House No. A.72 (formerly A.52) Bolgatanga to the Plaintiff. The Defendant/Appellant (who will henceforth be called the Defendant) also counter-claimed for:

(a) a declaration that the Plaintiff has never been the husband of the late Laadi Mahama (deceased) (The emphasis is mine).

(b) A declaration that the Plaintiff is not entitled to any share of the estate of the late Laadi Mahama aforesaid.

(c) An Order for account.

It is necessary at this stage to recount the genesis of this suit. The Plaintiff claimed that he and Laadi Mahama (deceased) contracted a Moslem marriage in 1951 and lived together for a period of 46 years until she died in 1996. As to how he married Laadi Mahama (deceased) the Plaintiff said that he was a driver based in Kumasi. He used to go to Bawku where he met the late Laadi Mahama. He wanted to marry her and so he was directed to one Amadu, a brother of the deceased's father. The father of the late Laadi Mahama was then resident in Accra. He said he contacted Amadu who consented to the marriage. As he (Plaintiff) was living in Kumasi, he brought the late Laadi Mahama to Kumasi for the celebration of the Moslem marriage. They came to Kumasi where the deceased lodged with one Baba Yamba (deceased). According to the Plaintiff on the day of the celebration of the marriage the said Baba Yamba (the landlord of Laadi Mahama in Kumasi acted as the father of Laadi Mahama and that he (Plaintiff) performed the Moslem custom to him. That thereafter they lived in Kumasi Aboabo for eight years; North Suntreso for ten years and they finally came and lived in Bolgatanga in 1969 until the deceased died in March 1996.

The Plaintiff said that when the deceased's mother died he performed custom in his capacity as the husband of Laadi. Again when Laadi died he performed custom in his capacity as the husband by providing calico and other items for her burial. That as a husband of the deceased he buried his wife in his family house according to custom. Prayers were said at the funeral by the Moslem elders and community who recognised him (Plaintiff) as the husband of the deceased.

The Plaintiff contended in his evidence that after the funeral he aplied for Letters of Administration at the High court. The Defendant who is the brother of the late Laadi Mahama and some members of the deceased's family filed a caveat. However upon the order of the court the Defendant and his family joined the applicant. A joint Letters of Administration was therefore granted to the Plaintiff and the Defendant.

The Defendant's case was that there was no marriage between the deceased and the Plaintiff. In otherwords the Plaintiff never married Laadi Mahama (deceased) and that the relationship was that of concubinage. The Defendant contended that he joined the Administration because of undue pressure from the Court.

The learned trial judge, after hearing the evidence, gave judgment in which he decided in favour of the Plaintiff and dismissed the Defendant's Counter-claim. The Defendant has appealed to this court in several grounds but the grounds which I consider very crucial and pertinent for the determination of the appeal are:

Grounds 4 and 8 which I intend to deal with together.

Ground 4 reads "The learned judge erroneously considered a long period of cohabitation to be synonymous with a valid married." Ground 8 states "The learned judge misconceived the real issue before him namely whether there was a valid marriage between Plaintiff and Laadi Mahama and engaged himself in irrelevancies resulting in a perverse judgment against the Defendant/Appellant."

The record of proceedings reveals that the issues agreed upon between the Plaintiff and the Defendant for trial as per the Summons for Directions filed on the 2/4/02 are

"(a) Whether or not Plaintiff was married to the late Laadi Mahama (deceased) under the Moslem marriage rites.

(b) Whether or not Plaintiff was the sole surviving husband of the Late Laadi Mahama (deceased) at the time of her death on 9th March 1996.

(c) Whether or not the Plaintiff is entitled to a share of the Estate of the late Laadi Mahama (deceased) in accordance with sic love.

From the claim of the Plaintiff and the counter-claim of the defendant the main issue called upon the court below and this court is whether or not there was in law a valid marriage between the Plaintiff and the late Laadi Mahama. In otherwords during the lifetime of the late Laadi Mahama was she married to the Plaintiff under Moslem law?

The Plaintiff's claim apparently was a succession claim based on his alleged marriage with Laadi Mahama so that if in fact there was a valid marriage then the Plaintiff ought to succeed in his claim. If on the other hand it was established that there was no marriage, the Plaintiff ought to fail in his claim and the Defendant should succeed in his counter-claim. For the Plaintiff stranger and a non member of the family of the late Laadi Mahama has laid a claim to the estate of the latter. If truly he is the surviving spouse of Laadi Mahama as he claimed in the endorsement of his writ of summons, the Plaintiff is entitled to enherit Laadi Mahama who died without any issue under the provisions of the Intestate Succession Law 1985 (PNDCL 111).

The Plaintiff who is a moslem testified that he married the late Laadi Mahama in 1951 under moslem marriage and lived together as husband and wife for a period of 46 years until she died in 1996.

The Defendant denied the Plaintiff's positive assertion that he contracted a valid marriage with the late Laadi Mahama in 1951.

In paragraph 2 and 3 of the Defendant's statement of defence the Defendant pleaded as follows:

(2) "Paragraphs 3 and 4 of the Statement of claim are denied, and the Plaintiff put to strict proof of the averments therein contained.

(3) In further answer to paragraphs 3 and 4 aforesaid the Defendant says that if there was any relationship between the Plaintiff and the deceased Laadi Mahama at all during the lifetime of the deceased, it was one of concubinage not only frown upon by law but also conferring no legal right or rights on the Plaintiff."

It is trite that a party who makes a claim before a court of law has the onus to adduce evidence to meet the required standard of proof.

And by reason of Section 14 and 17(2) of the evidence Decree, 1975 (NRCD 232) the burden of proof of the marriage in issue rested with the Plaintiff.

In ZABRAMA V. SEGBEDZI [1991] at pa. 246, the position of. The Law on proof was re-echoed by Kpegah JA (as he then was).

" ............. a person who makes an averment or assertion, which is denied by his opponent has a burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he assets can properly and safely be inferred. The nature of each averment and assertion determines the degree and nature of that burden."

In this case the Plaintiff assets that he married Laadi Mahama under Moslem Law which is synonymous with the law of the Mohammedans.

The law which at the timed regulated affairs related to Marriages and Divorces among Mohammedans is the "Marriage of Mohammedans Ordinance Cap 129 [1951 Rev.] section 5 of the Ordinance states:—

"Every Mohammedan marriage celebrated in the Gold Coast after the commencement of this Ordinance shall be registered in manner provided by the next succeeding section." The Ordinance commenced or came into force on the 30th December 1907 and section (5) thereof quoted above was an amendment effected in 1935.

Section 9 of Cap 129 provides as follows: "No marriage contracted or divorce effected in the Gold Coast after the commencement of this Ordinance by persons professing the Mohammedan faith shall be valid unless Registered under this Ordinance; 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 there from certified under the hand of the District Commissioner or of the certificate of such marriage or divorce." (The emphasis is mine).

As said, the Plaintiff's claim is that he contracted a Moslem marriage with the late Laadi Mahama in 1951. It is to be noted that in 1951, Cap 129 was in operation. The law governing the Plaintiff's marriage in 1951 was therefore Cap 129.

There are a number of cases illustrating the application of Marriage of Mohammedans Ordinance (Cap 129) but I will however mention few which readily come to mind.

In KWAKYE V. TUBA and OTHERS (1961) 2 GLR 720 it was held that the Plaintiff's claim, should succeed because the Defendants had failed to prove that KWASI KUMAH'S marriage was registered under Cap 1219. Ollenu J (as he then was) said in p. 724.

"In the eyes of our law 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. Therefore if a Mohammedan died not having married or if married not having had his said marriage registered under the Marriage of Mohammedan Ordinance, the only law which can regulate succession to his estate is his personal law ie. the customary law of the tribe to which he belonged."

In his judgment the learned trial judge made the following findings of fact. He said "Now although the Plaintiff did not call any witness on the celebration of his said Moslem marriage with Laadi Mahama, I think, that in itself cannot conclude invalidity, after a long period of forty-six (46) of their cohabitation. He also said in course of his judgment:—

"Now, a fact which is not in dispute is that the Plaintiff said Moslem marriage with the deceased was not registered in terms of Section 9 of the Marriage of Mohammedans Ordinance Cap 129 (Dated 10/12/1907).

Under Section 9 of this Ordinance, any Moslem marriage which is not registered under this Ordinance is NOT VALID." (The emphasis provided).

Furthermore under cross-examination by Counsel for the Defendant, the Plaintiff admitted that he never, after his alleged Marriage to the late Laadi Mahama applied for registration of the same.

As already said according to our law the validity of a Moslem Marriage depends on its registration within one week of solemnisation as required by Section 6(1) of Cap 129. See JEBELLE and ANOR V. ASHKA and ANOR (1977] 1 G.L.R. 458. Again in the case of RE REGISTRATION OF MARRIAGE BETWEEN BYROUTHY AND AKYERE: EX PARTE ALI [1980] G.L.R. 872 at page 874 Cecilia Koranteng-Addo Mrs. J. said—

"The essence is not the fact of the ceremony but the registration that gives the marriage validity. Therefore the marriage between Abena Akyere and Mohammed Saddallah Byrouthy was invalid according to Islamic law and it must be so declared. It cannot be validated. To grant this application and issue a certificate would amount to validating a marriage which is invalid."

It would be noted from the above cited cases that the law makes the registration of a Moslem marriage the essence and not the fact of the ceremoney or of anything else.

I hold that when the learned trial judge found as a fact that the Plaintiff's marriage with the late Laadi Mahama "was not registered in terms of Section of the Marriage of Mohammedans Ordinance Cap. 129 (Dated 10/12/1907)," he should have dismissed the Plaintiff's claim since he failed to prove valid marriage which is a condition precedent to succeeding to the estate of the late Laadi Mahama a moslem.

In his judgment the learned judge further stated:—

"Now although the Plaintiff did not call any witness on the celebration of his Moslem marriage with Laadi Mahama, I think that in itself cannot conclude invalidity, after a long period of forty-six years of their cohabitation.

Tahiru [DW1] the alleged present head of the deceased's family was certain that he became aware of the Plaintiff's relationship with the deceased in 1968. The Plaintiff and the deceased came to Bolgatanga in 1969, and they were still in continuous cohabitation until the deceased died in 1996, although the marriage custom was not performed to the father of the deceased ........."

It is my view that the learned trial judge erred when he considered a long and continuous cohabitation of Laadi and Plaintiff to be synonymous to a valid moslem marriage. It is trite learning that when a Plaintiff's marriage is challenged in Court of law, the validity of the marriage must be proved strictly.

In the case of re BLANKSON-HEMANS [deceased]. Blankson-Hemans V. Monney and Others [1973] 1 G.L.R. 464 Koranteng-Addow J (as sic then was) also stated on page 467 as follows:—

"It is my considered view that when the fact of marriage is in dispute, it has to be proved strictly and affirmatively like any other disputed fact it does not have to be inferred."

In the instant case, it is my judgment that the length of cohabitation between the Plaintiff and the late Laadi Mahama never turned or ripened into Islamic marriage particularly so when Islam disapproves of CONCUBINAGE and the customary law also frown upon CONCUBINAGE.

In HAUSA V. HAUSA [1963] 2 G.R.L. 212 Lassey J (as he then was) also stated:

"The Plaintiff has failed to establish to my satisfaction that he was in fact married to the deceased according to Mohammedan law or religion. She and her husband may have belonged, and in fact did belong to the Mohammed religion or law but the fact that they were actually married must be strictly proved" (The emphasis is mine).

It must be emphasised that all these cases quoted (supra) establish the law that when in a court of law a marriage or its validity is challenged or is in dispute, evidence must be led to prove the marriage strictly.

In this case, I hold that the trial judge was in error when he inferred marriage between the Plaintiff and Laadi Mahama (deceased) simply because the Plaintiff and the Defendant obtained a joint Letters of Administration. Evidence should have been led to prove the Moslem marriage the Plaintiff claimed he contracted with the late Laadi Mahama.

In the concluding part of his judgment the learned trial judge further declared:

"In the instant case, the deceased died intestate. Their Moslem marriage was not registered under the Marriage of Mohammedan Ordinance Cap 129. The law which regulates succession to the deceased's estate, therefore is her personal law (Emphasis is mine). In Ghana the law on Intestate Succession which applies to all Ethnic groups in Ghanaians intestate Succession Law 1985 (PNDC Law 111).

This Court therefore declares that it is the PNDC Law which shall apply to the distribution of the deceased's estate.

" In the case of KWAKYE V. TUBA and OTHERS [1961] 2 G.L.R. 720. Ollenu J (as he then was) held that the Plaintiff claim should succeed because the Defendant had failed to prove that KWASI KUMAH'S marriage was registered under CAP 129. Ollenu also said at p. 72:

"In the eyes of our law, 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. Therefore if a Mohammedan died not married, or if married not having had his said marriage registered under the marriage of Mohammedan Ordinance, the only law which can regulate succession to his estate is his personal law ie. the customary law of the tribe to which he belonged." It is observable that in the learned trial judge's decision under review he found as a fact that the Moslem marriage between the Plaintiff and the deceased was not registered under the marriage of Mohammedans Ordinance Cap 129. And that the Law which in the circumstance should regulate succession to the deceased estate is her personal law. The question which needs urgent answer is:

What customary marriage did the Plaintiff and the late Laadi Mahama contract? If there was a customary marriage, which custom was it or which custom of which tribe in Ghana?

The evidence on record established that Laadi Mahama was of the Moshie tribe while the Plaintiff was of the Frafra tribe. The Plaintiff however failed to lead evidence to prove that the alleged marriage he contracted with the late Laadi was in accordance with the customs of any tribe in Ghana.

It is my judgment that in the absence of the proof of the performance of any customary marriage of the Moshie tribe to which the deceased belonged or the customary marriage of the Frafra tribe to which the Plaintiff belonged, the learned trial judge should have gone ahead to dismiss the Plaintiff's claim as there was no legal basis for it. There is ample evidence to support the finding that the Plaintiff neither married the late Laadi Mahama under the Moslem law nor under the customary of Ghana.

It is for these reason, I find myself unable to agree with the majority decision. I will allow the appeal, set aside the judgment of the High Court and give judgment to the Defendant on his counter-claim.