IN RE PRATT’S CAVEAT; BENTIL vs. PRATT [1989]DLSC607

Date	1989-07-31
Suit No.
Citation No.	[1989]DLSC607

LUTTERODT J.

NII ODOI ANNAN FOR THE APPLICANT.

DE PAUL FOR THE RESPONDENT.

[1989]DLSC607
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													<main id="main" class="content" style="min-height: 60rem" >IN RE PRATT’S CAVEAT; BENTIL <o:p></o:p>vs. <o:p></o:p>PRATT <o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1989-90] 2 GLR 476<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:
31
JULY 1987<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">

NII ODOI ANNAN 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;
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LUTTERODT J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LUTTERODT J.<o:p></o:p>The
applicant was on 22 May 1987 only a few hours away from going through a
marriage ceremony with one Miss. Sabina Annan under the Marriage Ordinance,
Cap. 127 (1951 Rev.) when he was served with an order for interim injunction
restraining him and the said Miss. Annan from going through with the marriage
ceremony. Then also, on 28 May 1987 he was notified of a caveat filed by the
respondent against the intended marriage. The caveatrix, who is also the
respondent in this present application and whom I shall hereafter describe as
the respondent, filed the caveat because she contends there is a valid
subsisting customary law marriage between herself and the applicant which said
marriage had not been dissolved in accordance with customary law. Before the
court could on its own remove the caveat or summon the parties and require the
caveatrix to show cause why the caveat should not be removed, the applicant
himself brought this motion praying for the removal of this caveat as, on his
part, he maintains the marriage between himself and the respondent had been
dissolved. The main issue which turned up for determination is whether or not
there has been a dissolution of this customary law marriage. Other subsidiary
issues flowed from this main issue. I would bring these out in the course of
the judgment. But these issues apart, counsel has raised two other important
legal points which, if upheld, would dispose of the application. I intend to
deal with these first before coming, if need be, to the merits of the
substantive case itself.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>One of
the points raised by the applicant’s counsel is that because the respondent
never registered her marriage in accordance with section 2 of the Customary
Marriage and Divorce (Registration) Law, 1985 (P.N.D.C.L. 112) there was no
existing marriage and the respondent’s caveat was therefore not properly before
this court. Counsel even urged the court to hold that she did not so register
the marriage because as a matter of fact there was no such marriage in
existence. The answer given by Mr. De Paul, counsel for the respondent, is
simply that the combined effect of sections 15 and 19 of P.N.D.C.L. 112 would
show that the legislative intent was to apply P.N.D.C.L. 112 to cases of
intestate succession. On this issue, I am in agreement with counsel for the
respondent and in sharp disagreement with the applicant’s counsel. I concede
that section 2 imposes a duty on all spouses to register their customary law
marriages. This court, and for that matter any other court, would be the last
to encourage citizens to break or disregard the laws of the State. But I do not
think non-registration of a customary law marriage invalidates the marriage. I
have read the P.N.D.C.L. 112 and found no provision stating either expressly or
by necessary implication that all marriages not registered in accordance with
the Law are either null and void or of no effect. I found from a study of the
Law that the only unpleasant consequences that might flow from non-compliance
with the relevant provisions of this Law are: (1) a spouse may not be able to
enjoy the rights and benefits conferred on him or her by the Intestate
Succession Law, 1985 (P.N.D.C.L. 111) on the death intestate of his or her
partner; and (2) spouse may find himself or herself facing the criminal
sanctions attached to non-compliance with this Law.<o:p></o:p><o:p>&nbsp;</o:p>But I
should think that if the lawmakers were desirous of enacting a law which
clearly invalidates a non-registered customary law marriage, they would not
have hesitated to do so. They did not fail to make their intentions clear in
the case of the Land Registry Act, 1962 (Act 122). Under section 24 (1) of this<o:p></o:p><o:p>&nbsp;</o:p>Act, it
has been clearly stipulated under the heading or title “Consequences of
Registration” that, apart from a will or a judge’s certificate, an instrument
which was first executed after the coming into force of the Act but which has
not been registered “shall be of no effect until it is registered.” The
sidenote to this section reads: “Registration necessary for validity.” In my
view, therefore, registration is not essential to the validity of a customary
law marriage. I would therefore not agree with counsel for the applicant that
the respondent must be shut out of the court. At worst what I think any court
of justice should do when its attention is drawn to the non-registration of a
marriage is to stay the proceedings to enable the offender to rectify the
position and comply with the Law. But even so I do not think in the nature of
things, as far as this particular case is concerned, this can be an effective
or a fruitful order, for the existence of the marriage itself is now being
questioned. The Law requires the filing of affidavit from each partner’s
family. When the applicant is vehemently denying the existence of any such
marriage how can the respondent succeed in getting the necessary data to enable
her formally register her marriage? I would therefore hold that
non-registration would not affect the validity of this marriage and the caveat
is therefore properly before the court.<o:p></o</main>