Avesi and Another vrs Johnson (HI/15/2004) [2004] GHACA 3 (12 February 2004);

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                                      IN THE SUPERIOR COURT OF JUDICATURE

                                        IN THE COURT OF APPEAL SITTING AT

                                           ACCRA ON THE 12TH DAY OF FEBRUARY,

                                                                   2  0  0  4  .

 

                                                                                                                            HI/15/2004

 

 

CORAM  -  LARTEY, J.A.

                     ANSAH, J.A.

                     AKOTO BAMFO (MRS)

 

 

            MAMA AVESI & III ORS.      ]   …   PLAINTIFFS/APPELLANTS

 

                         VRS.

 

         JOANA DE-GRAFT JOHNSON]  …   DEFENDANTS/RESPONDENTS

        ----------------------------------------------------------------------------------------------

                                      J  U  D  G  M  E  N  T

 

   AKOTO-BAMFO[MRS]JA – Theodore Kwao Ahortor died intestate on the 30th of March 2000.  Upon an application by the plaintiffs, Letters of Administration was granted to them.  The defendant caveated; when the parties failed to reach an agreement, the learned judge directed that a writ of summons be issued to determine the proper party to whom the grant should be made.

        After a full trial the learned Judge delivered himself thus:

                       “I will let the 1st plaintiff, that is a widow take out the Letters of

 Administration of the late Ahortor. I will let 2 children of the late Ahotor        Herty and Charity take out Letters of Administration jointly with their mother. Then I declare that unlike what the writ of summons said,

                         the defendant also a lawful widow and  should take out

                         Letters of Administration jointly with the 3 plaintiffs.  She also

                         has a locus in this case and that is taking joint Letters of Administration

                         with the 3 of the plaintiffs.”

             It is evident that both parties felt aggrieved by the decision of the learned     Judge; for on the 14th of August 2001, the plaintiffs filed a Notice of Appeal. They complained that:  (1)  the judgment was against the weight of evidence

  1.   that the judgment was perverse and  (3)  that the learned Judge erred in                                                                                                     

          finding that the defendant was a widow of Theodore Kwao Ahortor.

             Similarly and on the 27th of August 2001, the defendant also lodged an  appeal.  Her ground was that “the part of the decision complained of cannot be supported having regard to the evidence adduced.”  I must say that the formulation of this ground of appeal by the defendant was deficient in elegance.

            Even though 3 grounds of appeal were filed by the plaintiff; in his submissions, learned counsel subsumed them under one umbrella and argued that the decision of the learned Judge that the defendant was a widow of the deceased was perverse in so far as there was no evidence to support that finding and therefore that the judgment was against the weight of evidence.

            In a counter argument, learned counsel for the defendant submitted that there was sufficient evidence on record that the defendant was married to the deceased; according to him it was rather the plaintiff who failed to lead evidence on the existence of the marriage between her and the deceased; and therefore the learned Judge erred in finding that the 1st plaintiff was the widow.

           The central issue confronting this court in both appeals is whether both plaintiff and defendant were widows of the late Ahortor as found by the learned Judge or whether the learned Judge was wrong in so finding; and therefore the proper party to whom the grant should be made.

           The thrust of the 1st plaintiff’s case was that she was married to the deceased for about 50 years.  They initially lived together in Sokpoe.  Subsequently when the deceased was employed by the Judicial Service and had to be transferred to various parts of the country, she accompanied him.  When the deceased was eventually transferred to Tarkwa she stayed behind because she had then been made an elder of her family; according to her, she visited the deceased, but never met the defendant; neither was she ever introduced to her as her rival.  When the deceased Ahortor died, she provided items for the burial participated in the funeral and underwent the widowhood rites.  In support of                  her case, PW1, the head of family of the deceased testified that she was the wife and corroborated her evidence in every material particular on the issue of widowhood.  He averred that he once met the defendant in the house of the deceased but that the latter informed him that the defendant was a girlfriend.

         The defendant denied that the plaintiff was the widow.  According to her                  when she met the deceased and tried to find out why he was alone, he informed her that he had contracted several marriages but had divorced all the wives.  This is what the defendant said on the issue:

                        “I asked him why he is alone though elderly.  He explained

                         that he married with 7 children but he is now (sic) divorce.”

          Significantly the 1st plaintiff ‘s evidence that she had 9 children by the deceased but that 2 died was not controverted.  If the late Ahortor never married the 1st  plaintiff, he would not have told the defendant that he had divorced her.  I am therefore of the view that the fact of the marriage was never in issue and there was therefore no need for the 1st plaintiff to have led evidence on its contraction.  What was at issue was whether the late                   Ahortor was married to the 1st plaintiff at the time he was in Tarkwa, or,whether he had had the marriage dissolved and was therefore a divorcee, as he told the defendant.  For there is evidence that the 1st plaintiff and the deceased lived together for a considerable number of years and had children, therefore even if she said little about how the marriage was contracted, I would employ the words of Deane C.J. in Quaye v. Kuevi 1934 D. Ct. page 69 at 74 where he observed “Although it is highly desirable that a party seeking to establish a marriage should be able to point to the giving to the girl’s parents and  acceptance of the rum as evidence of their consent to the marriage, yet the inability to show that such a ceremony has taken place would not in my view of itself be sufficient to invalidate a marriage if the consent of the parties to the marriage were proved by other means and if it were also proved that the parties have lived together in the sight of the world as man and wife.                                                              

           There is no controversy as to the fact that the plaintiff and the deceased lived together for a considerable number of years; even though the 1st plaintiff claimed the period was 50 years, the defendant through her line of cross examination, put it at 17 years.  Having regard to the pieces of evidence by the PW1, the 1st plaintiff and the defendant; I have no hesitation in finding that the 1st plaintiff was married customarily to the deceased.  The issue is whether the marriage was subsisting at the time of his death and therefore the 1st plaintiff was a widow or whether she was a divorcee at the relevant time looking at the issues set down for trial, it is evident that the emphasis was on the fact of widowhood; for among the issues set down were  (1)  whether the 1st plaintiff was the sole widow  (2)  whether the defendant was a concubine (3)   whether the defendant was the sole widow  (4) whether the defendant had any locus in the estate of the said Theodore Ahortor and (5) whether or not the plaintiffs were the proper persons to take out Letters of Administration.

       According to the defendant, the deceased told her he married, had 7 children and  subsequently had other children by other women; but that the marriage was dissolved and that it was upon this information that she consented to live with the deceased who subsequently married her in accordance with custom and lived with her for a period of 14 years before his death.

        It is therefore my considered view that with regard to the 1st plaintiff, the issue is whether the marriage between her and the deceased was dissolved for she could not have been a widow if she was not married to the deceased at the time of his death.  In the case of the defendant, however, the issue is whether the deceased married  her in accordance with custom.

        The 1st plaintiff averred that after the deceased had moved to Tarkwa, she remained at Sokpe, visited him but never met the defendant.  That the defendant lived with the deceased at Tarkwa is not in doubt, the 1st plaintiff’s children testified that the defendant lived with their father; PW1 met her at the deceased’s house, but each claimed that she was not there as a wife, indeed the Head of family claimed that she was introduced as the girl friend.

            It is the defendant’s case that she was informed that the marriage     between the 1st plaintiff and the deceased had been dissolved.  What is the evidence on the issue?  He who asserts assumes the onus of producing  evidence on the issue.  Undoubtedly the late Ahortor had his fair share of the fairer sex, for it is in evidence that he had 13 children with 5 women.  It is my view that  when he moved to Tarkwa, met the defendant and fell in love with her, he did not make any attempt at dissolving the marriage between him and the 1st plaintiff, for like a marriage contracted under the Ordinance, there is a procedure for the dissolution of a customary marriage; the initial step being an attempt at reconciliation by members of both families, when all attempts at reconciliation fail, the marriage is dissolved; drinks are offered and compensation is paid where appropriate.    There is no evidence that the marriage between the 1st plaintiff and the deceased was dissolved.  Indeed PW1 testified that she was the widow; that upon the death of Ahotor, she provided items for the funeral and underwent the widowhood rites, surely if the marriage had been dissolved, PW1 would not have allowed the 1st plaintiff  to perform the task of providing the burial items which is normally done by wives neither would the family have allowed her to go through the widowhood rites.

          The attack levelled against the findings of the trial Judge by the defendant is without fire, I do not therefore feel able to disturb those findings.

               The appeal on that issue therefore fails and is dismissed.

               Was the defendant a concubine?

         According to the 1st plaintiff, the defendant was never introduced to her as the  rival, additionally and more importantly, PW1 testified that she was introduce                                                                                                                                           

 to him as a girl friend.  Even though 1st plaintiff lived with her and the father, according to her,she was at all material times known as Mrs Nyame and was therefore never married to her father.

       In contrast, the defendant averred that a delegation led by one Apotsi now deceased, a relation of Ahotor, met her family members and performed the marriage rites, drinks were presented and they there after lived together as man and wife.

         To determine whether the defendant led credible evidence on the issue, one has to have regard to the essentials of a customary marriage.  In Yaotey v. Quaye 1961 GLR 573, the essentials were set down as follows:  

(1) Agreement by the parties to live together as man and wife  (2)  Consent of the family of the man that he should have the woman to wife, that consent may be indicated by the man’s family acknowledging the woman as wife of the man; (3) Consent of the family of the woman that she should be given in marriage to the man; that consent is indicated by the acceptance of drink from the man or his family, or merely by the family of the woman acknowledging the man as the husband of the woman and  (4)  Consummation of the marriage that is the man and the woman living together in the sight of all the world as man and wife.”

       The defendant’s evidence that there was a marriage ceremony was corroborated in every material particular by the uncle of the defendant,who testified that he stood in for the parents of the defendant while the late Apotsi stood behind Ahotor.  Other members of the delegation were Kofi Agyiri, Kwadwo Tsen Roberkrom.  According to PW1,as head of family,he would have known of the ceremony; that Ahortor and the defendant were 2 adults is beyond doubt. Apotsi;s position as a member of Ahortor’s family was not denied by the plaintiffs 0besides as the learned Author Sarbah stated at page 2 of Fanti Customary Laws, where the parties “reside in such a distant place that it was impossible to obtain such consent a man and woman who voluntarily agree to live as man and wife for life can contract a valid marriage provided such agreement is expressly made in the presence of credible and responsible witnesses or in the presence of the chief or headman of the place followed by the man and woman living as husband and wife.” Again see in Re Dickson alias Appah (deceased) Aboagye & v. Quayson and Others 1989 – 90 1 GLR    147.

          There is sufficient evidence that the marriage was celebrated in the presence of witnesses, that they thereafter lived together as man and wife for 14 years.  She was nominated as a beneficiary by the late Ahortor of his death benefits.  I find no basis for disturbing the findings made by the learned Judge on the issue.

            It is evident that the defendant did not take part in the burial of Ahortor                neither did she send any delegation. 

           Widows have duties and responsibilities, they are required under custom to provide bathing items and pieces of clothing for the burial and to undergo widowhood rites; it is clear that the defendant did none of these things.  Having regard to hostile environment and to the fact that there was bad blood between her and the children, as clearly exhibited by the evidence of the 4th plaintiff and the PW1, the fact that she did not take part, in my view, did not detract  from the fact that she was a widow.

           Contrary to the assertions of the plaintiff that the judgment is against the weight of evidence, I would hold that the attack mounted against the decision on this leg is unjustified; dismiss same and affirm the decision of the High Court.

          In conclusion, I would dismiss both appeals and affirm the judgment  of the court below.  We however vary the orders of the court.  In substitution it is ordered that the grant be made to the 1st plaintiff, the defendant and the 1st child of the plaintiff.  Each party is to bear the costs of the present proceedings.

 

 

                                                                              V. AKOTO BAMFO (MRS)

                                                                                      JUSTICE OF APPEAL