DAABOA DAGARTI vs. DORNIPEA [1982]DLCA2114

Date	1982-05-11
Suit No.
Citation No.	[1982]DLCA2114

FRANCOIS JA

EDWARD WIREDU JA

COUSSEY J.A.

ADUMUA-BOSSMAN FOR THE APPELLANT.

NO APPEARANCE FOR OR ON BEHALF OF THE RESPONDENT.

[1982]DLCA2114
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													<main id="main" class="content" style="min-height: 60rem" >DAABOA DAGARTI <o:p></o:p>vs. <o:p></o:p>DORNIPEA <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1982-83] GLR 594<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:
11 MAY 1982<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">

ADUMUA-BOSSMAN FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE FOR OR ON BEHALF OF THE RESPONDENT.<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">

FRANCOIS, EDWARD WIREDU AND COUSSEY
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDWARD WIREDU J.A.<o:p></o:p>This
appeal is from the decision of the Circuit Court, Wa, dated 2 April 1980. The
decision upheld a claim by the plaintiff-respondent (hereafter referred to
simply as the plaintiff) for the custody of a child he claimed was born to his
deceased elder brother and the daughter of the defendant-appellant (also
hereafter referred to simply as the defendant). In that same decision the
plaintiff’s claim for the return of the dowry of the said marriage between his
deceased brother and the daughter of the defendant was dismissed for reasons
which cannot be justified by the evidence on record. But as there has not been
any appeal from that order by the plaintiff, we refrain from interfering with
same. The defendant’s daughter testified in the case as his second witness and
will in this judgment be referred to simply as the second defendant witness
when it becomes necessary to refer to her.<o:p></o:p><o:p>&nbsp;</o:p>The facts
which have provoked the present appeal as presented by the plaintiff may be
briefly stated as follows: The plaintiff’s deceased brother married the
defendant’s daughter, the second defendant witness, under customary law and the
couple stayed for some time at Bibiani. The exact period of their stay is
uncertain on the evidence but the undisputed facts reveal that in the course of
this stay the second defendant witness ran away from her husband. It is the
case of the plaintiff that at the time of leaving his brother’s house, the
second defendant witness was under pregnancy and he was instructed by his
brother to go and inform the second defendant witness’ uncle about the escape
and the fact also that the second defendant witness was carrying the baby of
the brother. The uncle of the second defendant witness to whom this message was
to be delivered is the elder brother of the defendant. He was also the person
to whom the dowry in respect of the marriage was paid. He testified in this
case as the first witness for the plaintiff and will hereafter be referred to
as the first plaintiff witness. The evidence of this witness, which confirmed
the plaintiff’s story, shows that when he received the information about the
second defendant witness’ escape from the plaintiff’s brother, he sent a
message to Wogu where he learnt the second defendant witness had gone to stay
with a man to whom she was betrothed. According to the first plaintiff witness,
the Wogu people on receiving his message returned the second defendant witness
to him in his village where the second defendant witness stayed and delivered
the child in dispute about three months after her return. The relevant portion
of his evidence reads:<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 was in
the house when the Wogu people to whom the child had been betrothed also came
with the daughter saying that the daughter was under pregnancy. They told me
they could not keep a woman under pregnancy. The Wogu people brought the
daughter to me. She stayed with me for three months when she delivered.”<o:p></o:p><o:p>&nbsp;</o:p>The
testimony of the first plaintiff witness further reveals that when the
defendant returned home from Jumasi (where he was staying) he informed him
about what had happened and advised him to acknowledge paternity of the child
to the plaintiff’s family but the defendant refused and that resulted in two
complaints being lodged first with the Bissa Na against the defendant by the
plaintiff, and a second one to the Wa Na. The evidence brought by and on behalf
of the plaintiff on the two complaints established that the defendant agreed
before the two chiefs to hand over the child to the plaintiff. This he later on
refused to do resulting in the action culminating in this appeal.<o:p></o:p><o:p>&nbsp;</o:p>In all,
three independent witnesses testified in support of the plaintiff. Apart from
the first plaintiff witnesses, the other two witnesses were the sons of the
Bissa Na and the linguist of the Wa Na, respectively. The evidence of the
second plaintiff witness (the son of the Bissa Na) was that he was the person
sent by the first plaintiff witness with a message to the Wogu people about the
plaintiff’s family’s claim that the second defendant witness was carrying their
child as a result of which the second defendant witness was returned to the
first plaintiff witness.<o:p></o:p><o:p>&nbsp;</o:p>