MRS. MARY AGYEMAN & ANOR. vs. KWASI BOAKYE & ANOR. [1999]DLCA6533

Date	1999-05-20
Suit No.	CIVIL APPEAL NO. 52/97
Citation No.	[1999]DLCA6533

LAMPTEY J.A. (PRESIDING)

WOOD J.A.

BROBBEY J.A.

DAPAA FOR APPELLANT

BRUCE THOMPSON FOR ATTA POKU RESPONDENT

[1999]DLCA6533
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													<main id="main" class="content" style="min-height: 60rem" >MRS. MARY
AGYEMAN &amp; ANOR.<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>KWASI BOAKYE
&amp; ANOR.<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL NO. 52/97&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: 20TH
MAY, 1999<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">BRUCE THOMPSON FOR ATTA
POKU RESPONDENT <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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WOOD J.A. AND BROBBEY J.A.<o:p></o:p>

</div>LAMPTEY
J.A. <o:p></o:p>I
agree that the appeal against the judgment of the High Court, Kumasi dated 31st
October, 1995 be dismissed. I would add a few words on two issues raised in the
notice of appeal. These issues deal with:— <o:p></o:p>1.
The validity of the marriage between the late Agyemang and Mary Agyemang, and: <o:p></o:p>2.
The ownership of the house in dispute. <o:p></o:p>In
the notice of appeal, the defendants complained that the trial Judge erred in
law in accepting Exhibit ‘B’ as a valid marriage certificate issued under the
Marriage Ordinance, 127. The thrust of the complaint was that there were
serious differences between Exhibit ‘A’ and Exhibit ‘B’. The differences
effectively destroyed the legal validity of Exhibit ‘B’. In reply, counsel for
the plaintiffs contended that the differences were not material and did not
impeach the validity of Exhibit ‘B’. I have carefully and critically looked at
the contents of Exhibit ‘A’ and Exhibit ‘B’ I find that the differences to
which attention was drawn do not I support the conclusion that the document
Exhibit ‘B’ is not legally valid. The case of the defendant in fine was not
that the marriage did not take place in that church on that date. Indeed the
defendants admitted and conceded that Agyemang and 1st plaintiff got married on
that date. This was pleaded at paragraph 6 (ii) of the statement of defence and
counter-claim as follows:— <o:p></o:p>“6(ii)
The plaintiffs misrepresenting that the 1st plaintiff was a widow when she had
in fact been divorced long before the death of the deceased”. I understand this
pleading to mean that during the lifetime of the late Agyemang he was lawfully
married to the 1st plaintiff. The pleading means further that Agyemang lawfully
divorced 1st plaintiff before he died. On the contrary it is the case of 1st
plaintiff that the marriage between herself and late Agyemang was a marriage
contracted under Cap. 127. She pleaded further that her marriage to the late
Agyemang was never dissolved in his lifetime. In the circumstances, the
defendants were enjoined to prove and establish that the marriage they put
forward in the statement of defence was not a marriage contracted under Cap.
127. The defendants woefully failed and or omitted to prove and establish that
the marriage between late Agyemang and 1st plaintiff was not contracted under
Cap. 127. Counsel for defendants in desperation sought through fruitless
cross-examination to find fault with Exhibit ‘B’ by pointing to clerical errors
on the face of it. I find that the trial judge came to the right decision that
Exhibit ‘B’ fully met the requirements spelt out in Cap 127. Exhibit ‘B’ is a
valid marriage certificate. <o:p></o:p>On
the issue whether or not late Agyemang was married to 1st plaintiff, there was
overwhelming evidence that proved it. The 2nd defendant admitted that at the
time she claimed late Agyemang married her, 1st plaintiff was already a wife of
late Agyemang. She gave evidence as follows:— <o:p></o:p>“I
know the 1st plaintiff. The 1st plaintiff was the wife of my uncle by name
Opoku Agyemang. Their marriage was a customary marriage”. <o:p></o:p>1st
defendant did not adduce evidence to prove and establish that the marriage
between the parties was a customary marriage. He was enjoined to strictly prove
the customary marriage in view of the case put forward by the plaintiffs. The
bare assertion that the marriage was a customary marriage was not proof in law.
See Majolagbe’s case. Be that as it may she left the court in no doubt that 1st
plaintiff was a lawful wife of Agyemang at the date of his death. <o:p></o:p>The
next issue raised for the determination by the court is whether or not the
marriage between late Agyemang and 1st plaintiff was ever dissolved. The onus
fell on the defendan</main>