AFRIFA vs. CLASS-PETER [1975]DLCA9275

Date	1975-03-03
Suit No.	[1975] 1 GLR 359
Citation No.	[1975]DLCA9275

LASSEY J.A

SOWAH J.A

FRANCOIS J.A.

AHENKORA FOR THE APPELLANT

J. C. ARMAH FOR THE RESPONDENT

[1975]DLCA9275
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													<main id="main" class="content" style="min-height: 60rem" ><div class="WordSection1">

AFRIFA<o:p></o:p>

vs.<o:p></o:p>

CLASS-PETER<o:p></o:p>

<o:p>&nbsp;</o:p>

[COURT
OF APPEAL, ACCRA]<o:p></o:p>

[1975] 1 GLR 359&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
3RD MARCH, 1975<o:p></o:p>

</div>

COUNSEL:<o:p></o:p>

AHENKORA
FOR THE APPELLANT.<o:p></o:p>

J. C. ARMAH FOR THE RESPONDENT.<o:p></o:p>

</div>

CORAM:<o:p></o:p>

LASSEY
J.A, SOWAH J.A, FRANCOIS J.A.<o:p></o:p>

</div>

</div>

JUDGMENT OF FRANCOIS J.A.<o:p></o:p>

This
is an appeal from the decision of the Circuit Court, Accra, whereby the
appellant was condemned in damages in the sum of ¢2,000.00 for breach of his promise
to marry the respondent. The facts may be shortly stated.<o:p></o:p>

<o:p>&nbsp;</o:p>

The
respondent is a school teacher and the appellant a businessman. After an
initial attraction for each other they exchanged vows to seal their
relationship in marriage. The appellant appears to have been the prime mover in
this attempt to regulate their relationship into something of permanence. To
this end, he sent to the family of the respondent, gifts of money, drinks, a
ring and a Bible. There is no denial that thereafter the respondent allowed
herself to be seduced by the appellant. The couple later set up a home and
cohabited together. The respondent abandoned her avocation as a teacher of
domestic science and waited expectantly for the joyful day. There were four
postponements of the marriage ceremony, all at the instance of the appellant.
In each case a plausible excuse was given for fixing a new date in futuro,
meanwhile the appellant disported with fair damsels. Unfortunately this
dalliance was not discreet. An outcome was the birth of a child for the
appellant by a woman living next door. But there were other equally serious
indiscretions. The respondent learnt of an address where the appellant held
clandestine court. She hied to the rendezvous and caught her loved one in
another’s embrace. There was a scene. The load of indignities had reached the
zenith. The respondent packed bag and baggage and left the joint home. Not long
after the proceedings which have culminated in this appeal were commenced.<o:p></o:p>

An
initial issue for determination in this appeal, is whether there was a promise
from the appellant to marry the respondent in accordance with the western
monogamic concept of marriage, that is, one man to one woman to the exclusion
of all others, as reflected in marriage under our Marriage Ordinance, Cap. 127
(1951 Rev.). The pleadings make no attempt to clarify the position. This is
unsatisfactory. Deficient though the respondent’s pleadings are in this
respect, the evidence she led, supported by her witnesses, consistently
throughout, was to the effect that the agreement was to marry under the
Marriage Ordinance. The reception of this evidence was not questioned at the
trial and was accepted by the court below. There is no reason why this court
should differ on this issue.<o:p></o:p>

When
this appeal was argued, counsel for the respondent essayed to defend his
pleadings by asserting that breach of promise of marriage was unknown in
customary law and therefore a suit for breach could only refer to a common law
breach. Consequently it was unnecessary to relate the breach to marriage under
the Ordinance. After propounding such a profound legal point, counsel’s
subsequent diffidence in advancing the submission, was to say the least,
disappointing. No serious foray was made to support the argument with authority,
and the forensic spring dried up even before it could well up.<o:p></o:p>

The
point, however, is interesting and worth fuller consideration at a more
opportune occasion. Meanwhile it will suffice to say that it is arguable. For
Sarbah in his Fanti Customary Laws (3rd ed.) at p. 46 states:<o:p></o:p>

“He who desires a woman,
whether maiden or widow, in marriage, must apply to her family, or person or
persons, in loco parentis, for consent, and without such application and
consent there can be no betrothal. Nor is there any remedy for breach of
promise of marriage. If a man fail to marry a woman for whose hand he had
applied, or if such woman refuse to marry him, or her family withdraw their
consent, no action arises, and no damages are incurred by the person in default,
who, however, forfeits any consawment or anything given to the other.”<o:p></o:p>

(The
emphasis is mine). The older authority of Sarbah is however challenged by the
recent researches of Professor Allott. In his Essays in African Law, published
in 1960, the learned author says at p. 223.<o:p></o:p>

“Breach of a bare promise to
marry which has not led to the establishment of the betrothal-status often
involves no legal liability to compensate.<o:p></o:p>