NYABILA vs. NAYINA [1987]DLHC2282

Date	1987-02-03
Suit No.
Citation No.	[1987]DLHC2282

ESSILFIE-BONDZIE J.

CODJOE FOR THE DEFENDANT-APPELLANT.

DERRY FOR THE PLAINTIFF-RESPONDENT.

[1987]DLHC2282
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													<main id="main" class="content" style="min-height: 60rem" >NYABILA<o:p></o:p>vs.<o:p></o:p>NAYINA<o:p></o:p>[HIGH
COURT, BOLGATANGA]<o:p></o:p>[1991] 1
GLR 583<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 3 FEBRUARY 1987<o:p></o:p>

</div>COUNSEL:<o:p></o:p>CODJOE
FOR THE DEFENDANT-APPELLANT.<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">

DERRY FOR
THE PLAINTIFF-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 1.0pt 0in">

ESSILFIE-BONDZIE
J. <o:p></o:p>

</div>JUDGMENT
OF ESSILFIE-BONDZIE J.<o:p></o:p>This is
an appeal from the judgment of the District Court Grade II, Bolgatanga dated 3
October 1986. In the action before the trial magistrate the respondent
(hereafter referred to as the plaintiff) claimed from the appellant (hereafter
referred to as the defendant) as follows:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1). “The plaintiff’s claim against the
defendant is for custody of two children, namely (1) Ama Tenkampuwom, and (2)
Teni Tenkampuwom whom the defendant is keeping unlawfully and who are aged nine
and six years respectively. <o:p></o:p><p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2). The plaintiff’s further claim from the
defendant is for ¢20,000 damages for unlawful detention of the said children.”<o:p></o:p>The brief
facts of the plaintiff’s case as appears in the record of appeal is that about
seventeen years ago, he approached the father of the woman who is the mother of
the two children in dispute for marriage. The father told him the woman was
already married. At that time the woman had deserted the husband and was living
with the plaintiff. Some time later, on hearing that the woman was living with
the plaintiff, the husband went to her father and demanded the return of
certain items of clothing and bowls which he bought for the wife when they were
together. The father contacted the plaintiff and the plaintiff paid for the
cloths and bowls. Thereafter, at the request of the father, the plaintiff
performed all the marriage rites and paid a dowry of four cows for the marriage
of the woman. The woman lived with the plaintiff for seventeen years, in the
course of which they had five children. Four survived. One day the woman left to
visit her parents taking with her two of their children. While, the children
were in the parents’ house, the defendant went there and collected them. This
provoked the action before the court.<o:p></o:p>The
defendant also maintained at the trial that since he lawfully married the woman
and had not divorced her, the marriage between her and the plaintiff was null
and void. All the children born to the plaintiff by the woman, were therefore
issues of an adulterous union and he is entitled to the custody of all of them.
The record of proceedings shows that the defendant did not give his evidence on
oath. His evidence therefore does not in law carry any weight. The evidence of
his only witness, the middleman in his marriage with the woman in question,
showed that he dowried the woman with a cow, four hoe-blades and nine sheep.
The said dowry is evidence of a marriage between the defendant and the woman.<o:p></o:p>The
evidence of the woman’s father showed that three years after the woman had
deserted the defendant and had evinced a clear intention to terminate her
association with the defendant, he advised the defendant to take action against
the plaintiff. The defendant refused to take the said action and instead
demanded the return of the things (i.e., cloth and basin) he bought for the
woman. This demand was satisfied by the father by obtaining the items from the
plaintiff. It is obvious, that since after meeting the demand of the defendant,
the father of the woman allowed the plaintiff to perform the full marriage
rites demanded. by Frafra custom for the marriage of his daughter, he
considered the marriage between the defendant and his daughter dissolved. I
think the father was entitled to assume the marriage dissolved as a result of
the conduct of the defendant in refusing to take action after he had been
requested so to do. Besides, at that time the conduct of his wife should have
indicated clearly to him that the marriage had broken down beyond
reconciliation. What the father did therefore in allowing the plaintiff to
marry his daughter was to regularise the plaintiff’s relationship with his
daughter.<o:p></o:p>In the
case of Ginbuuro v Kaba [1971] 2 GLR 416, Koranteng-Addow J (as he then was)
was faced with a similar situation and in allowing the appeal in the case held,
as stated in the headnote at 416 - 417:<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">