KOMBAT vs. LAMBIM [1988]DLHC622

Date	1988-06-28
Suit No.
Citation No.	[1988]DLHC622

BENIN J.

DAMALIE FOR THE APPELLANT

T. CODJOE FOR THE RESPONDENT.

[1988]DLHC622
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													<main id="main" class="content" style="min-height: 60rem" >KOMBAT <o:p></o:p>vs. <o:p></o:p>LAMBIM<o:p></o:p>HIGH COURT, TAMALE <o:p></o:p>[1989-90] 1 GLR 324<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:
28
JUNE 1988<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">

DAMALIE FOR THE APPELLANT<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">

BENIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BENIN J.<o:p></o:p>In the
north-eastern sector of the Northern Region of Ghana bordering the northwestern
section of the Republic of Togo live the ethnic group of people called Bimoba
or Bima. They have Bimoba or Muor as their language. The town of Bunkpurugu is
their administrative, traditional and commercial capital. The traditional
authority has the Bunkpurugu-Naba as the head, although they still owe
allegiance to the paramountcy of Mamprusi headed by the Nayiri. Like most
ethnic societies in this part of the country the Bimoba have their marriage
customs which vary widely from those of the people of the southern sector of
the country. Very little is known of the Bimoba by way of writing. Thus any
attempt to delve into their customs and practices must be based on tradition
and oral evidence.<o:p></o:p><o:p>&nbsp;</o:p>The
parties in this case are both Bimoba citizens and they reside and work in the
Bimoba Traditional Area. Thus they are subject to the Bimoba customary law. The
application of customary law in such a case is therefore imperative: see
section 49 of the Courts Act, 1971 (Act 372). Section 50 (1) of Act 372
categorically makes customary law a question of law for the court and section
50 (2) and (3) provides for some modes of ascertaining any rule of customary
law where the court is in doubt. Having regard to the dearth of writing on the
Bimoba and their customs and with both counsel unable to assist the court, it
behoved the court dealing with this appeal to invoke the provisions of section
50 (2) and (3) of Act 372 by inviting the Bimoba Traditional Authority to send
knowledgeable people to testify on these customs. In addition I managed with
great difficulty to lay hands on some pertinent decisions taken on some of
these customs by the then Bunkpurugu Local Council, and this I obtained from
the Tamale office of the National Archives. I am satisfied with these sources
and I believe the views I am going to express will actually do justice to those
aspects of Bimoba marriage laws which are in issue in this appeal.<o:p></o:p><o:p>&nbsp;</o:p>The brief
facts of this case giving rise to this appeal are as follows: The
plaintiff-appellant was customarily married to a lady who goes by the name
Suuk. They cohabited and had two children between them. The
defendant-respondent snatched this lady away and is still cohabiting with her.
All attempts to get the defendant to return the lady failed. The plaintiff
therefore took an action at the District Court Grade II, Nalerigu. The
particulars of his claim read as follows:<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">“The
plaintiff’s claim from the defendant is for the return of his lawful wife by name
Suuk whom the defendant eloped contrary to Bimoba marriage custom. The
plaintiff further claims ¢30,000 damages for seduction and unlawful detention
the plaintiff’s said wife.”<o:p></o:p><o:p>&nbsp;</o:p>The
undisputed evidence before the court was that truly the plaintiff was
customarily married to Suuk, and also that the defendant has snatched her and
has refused to return her. No pleadings having been ordered the case proceeded
to trial summarily. The defendant’s contention at the trial which found favour
with the trial magistrate was stated in his evidence-in-chief as follows:<o:p></o:p>“It is
true that I eloped his wife because he had eloped five of my wives. There is a
marriage debt between us ... if you are able to bring back my five wives, then
I too I am prepared to return your wife to you.”<o:p></o:p><o:p>&nbsp;</o:p>Looking
at the totality of the evidence on record, the defendant actually meant that
the plaintiff and members of his family or clan or both had at one time or
another taken five women married to the defendant and members of his family or
clan or both. The issue of the plaintiff’s family members having taken five
married women belonging to the defendant’s family members was suggested by the
defendant to Yambot Kombat (who is the plaintiff’s father) in
cross-examination. It is most unfortunate that the trial magistrate did not
record the cross-examination in the form of question and answer for us to know
how and what the question put was. The desirability of a trial court recording
cross-examination in a question and answer form need not be overemphasised; for
it enables the appellate court to know whether the witness was evading
particular questions, or was answering correctly to the point and able</main>