GRAHAM vs. GRAHAM [1965]DLHC1807

Date	1965-05-27
Suit No.
Citation No.	[1965]DLHC1807

KINGSLEY-NYINAH J.

KUDJAWU FOR THE APPLICANT.

I. AMOO-LAMPTEY FOR THE RESPONDENT.

[1965]DLHC1807
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													<main id="main" class="content" style="min-height: 60rem" >GRAHAM <o:p></o:p>vs. <o:p></o:p>GRAHAM <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1965] GLR 407<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
27 MAY 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KUDJAWU FOR THE APPLICANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KINGSLEY-NYINAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KINGSLEY-NYINAH
J.S.C.<o:p></o:p>On or
about 14 November 1954 the parties in this instant motion were lawfully married
at St. Peter Claver’s Roman Catholic Church, Dzelukofe, Keta, by a reverend
father of that denomination. Prior to and at the time of that church ceremony,
there had been, and was, subsisting between the two contractors, a customary
law marriage.<o:p></o:p><o:p>&nbsp;</o:p>Some ten
years after that marriage in church (i.e. on 8 December 1964) proceedings were
instituted by the husband, the respondent herein, for a dissolution of that
prior and subsisting customary law union between himself and his wife, the
applicant herein. That action was taken before the Accra-Tema City Local Court
at Tema, and this motion is now brought by the defendant-wife who prays for an
order of this court directing “that the Accra-Tema City Local Court is not the
proper forum for the hearing and determination of the dissolution of a marriage
under the Marriage Ordinance, Cap. 127 . . .”<o:p></o:p><o:p>&nbsp;</o:p>In the
application, now before this High Court, it is not disputed or denied by either
party that long before this interlocutory matter they were both married in
accordance with customary law. Nor is it denied, either, that both parties to
that earlier customary marriage, subsequently went through a marriage ceremony
in a Roman Catholic church, that church being St. Peter Claver’s, of Dzelukofe,
Keta.<o:p></o:p><o:p>&nbsp;</o:p>Be that
as it may, while it is vehemently contended for and on behalf of the respondent
that since nothing has been done by the applicant herein to upset, by way of
appeal, a finding and decision of Smith Ag.J. (as he then was) in suit No.
Misc. 18/55 (a matrimonial matter which touched, involved and concerned the
very same parties now before this High Court), that decision and finding still
stands and, therefore, that prior marriage must, to all intents and purposes,
be taken, considered and regarded as still valid and subsisting, customary law
union. And it is further and also strenuously contended for and on Leonard
Graham’s behalf, that in those circumstances, not only is his customary wife,
Juliana Nutakor, estopped from arguing to the contrary, but also, and equally
important, that the Accra-Tema City Local Court is vested with full power and
jurisdiction to entertain, hear and determine the matrimonial matter now
pending before it because it involves a question of customary law.<o:p></o:p><o:p>&nbsp;</o:p>A photostat
copy of the judgment mentioned above of Smith Ag.J. was tendered for and on
behalf of the respondent under a certificate of authentication from the
National Archives of Ghana. That judgment, be it noted, upheld a caveat filed
by Juliana Graham, the applicant herein, as caveatrix. In that judgment Smith
Ag.J. said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“I am
concerned only with the caveat against the intended marriage of Leonard Yaw
Graham. I am perfectly satisfied that Leonard Graham and the caveatrix
contracted a customary law marriage and that subsequently a Roman Catholic
priest licensed to solemnise a marriage did marry the parties according to the
Roman Catholic marriage ceremony. The marriage is still subsisting. There is no
evidence that it has been dissolved. It is unnecessary for the purpose of
dealing with this caveat, to enter into the matter of the Marriage Ordinance .
. .”<o:p></o:p><o:p>&nbsp;</o:p>Arguing
to the contrary, it is stoutly submitted for and on behalf of the applicant
that their prior customary marriage, its effect and consequences ceased and
determined as far as the contracting parties were concerned as soon as they
underwent that ceremony in accordance with the rites of their church and
denomination, namely, the Roman Catholic Church. That, by that ceremony and
rite, their </main>