YAKUBU MAHAMA vs. BUKARI AWUNI [2004]DLCA6783

Date	2004-02-19
Suit No.	CA. 83/2004
Citation No.	[2004]DLCA6783

ESSILFIE-BONDZIE [PRESIDING]

GBADEGBE J.A.

ANIN-YEBOAH J.A.

[2004]DLCA6783
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													<main id="main" class="content" style="min-height: 60rem" >YAKUBU
MAHAMA<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>BUKARI AWUNI<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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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83/2004&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; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 19TH FEBRUARY, 2004.<o:p></o:p>

ESSILFIE-BONDZIE [PRESIDING], GBADEGBE
J.A., ANIN-YEBOAH J.A.<o:p></o:p>

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</div>ANIN-YEBOAH,
JA. <o:p></o:p>This
is an appeal from the High Court, Bolgatanga presided over by Piesare, J. (as
he then was), dated the 12/12/2001. The facts of the case appear to be simple.
The Plaintiff/ Respondent (hereinafter referred to as the Respondent) sued the
Defendant/ Appellant (hereinafter referred to as the Appellant) before the High
Court, Bolgatanga claiming several reliefs which border on intestacy. <o:p></o:p>It
is the case of the Respondent that he was married to one Laadi Mahama
(deceased) under the Marriage of Mohammedans Ordinance Cap. 129 and both
cohabited together as man and wife for over Forty-six years before the death of
Laadi Mahama. Unfortunately, there was no issue out of the marriage. According
to the Respondent, the marriage rites were performed at Kumasi before an uncle
of the deceased who gave him her hand in marriage, as the deceased's father was
living in Accra at that time. After the marriage, they both lived together as
husband and wife till Laadi Mahama died intestate on 9/3/1996. <o:p></o:p>All
the ceremonies that Mohammedans perform after the death of a married woman were
performed by the Respondent. Indeed, the deceased Laadi Mahama was buried in
the hometown of the Respondent. <o:p></o:p>Subsequent
to that, the Respondent and the Appellant as husband and brother respectively
of the deceased jointly applied for and obtained Letters of Administration from
the High Court, Bolgatanga to administer the estate of the said Laadi Mahama
who had died intestate. The Letters of Administration were granted on 23/4/97. <o:p></o:p>Pursuant
to the grant of Letters of Administration, the Respondent proceeded to exercise
his statutory rights under PNDCL 111 of 1985 in the distrubution of the estate.
The appellant contended that the Respondent was never married to the deceased
but rather they cohabited as concubines. He further contended that the Letters
of Administration was procured after undue pressure had been brought to bear on
him to jointly apply for it with the Respondent. He counter-claimed for several
reliefs against the Respondent, and prayed for a declaration that the said
Laadi Mahama and the Respondent were never married. The learned trial Judge
granted the reliefs sought in the writ of summons by the Respondent and
dismissed the counter-claim of the Appellant. It is against the said judgment
of 12/12/2001 that this appeal was lodged by the Appellant. <o:p></o:p>Several
grounds of appeal were filed by the Appellant in this appeal. It appears that
the main issue for determination as rightly pointed out by counsel for the
Appellant was whether or not there was a valid marriage between the Respondent
and Laadi Mahama. This issue has in view been re-stated in ground 8 of the
grounds of appeal. <o:p></o:p>The
learned trial Judge resolved this issue in favour of the Respondent and this
has attracted serious attack by counsel in his written submissions in this
appeal. The Respondent, from the evidence on record, contended that he
contracted a marriage with the deceased under the Marriage of Mohammedan
Ordinance, Cap 129 of 1907. According to Respondent, the marriage took place at
Kumasi before an uncle of the deceased. <o:p></o:p>Subsequent
to the marriage, they lived together as husband and wife till she died on
9/3/96. As this assertion of the Respondent was denied both on the pleadings
and the evidence, the onus of proof was certainly on the Respondent. <o:p></o:p>Under
Section 9 of the Ordinance, the proof of every marriage shall be the production
of register in which the said marriage was indeed recorded or the mere
production of the certificate issued from the marriage. <o:p></o:p>Indeed
the authorities on this section are numerous and the courts in this country
have construed the said section strictly in cases like: KWAKYE V. TUBA &amp;
OTHERS [1961] 2 GLR 720, HAUSA V. HARUNA [1963] 2 GLR 212 and BARAKE V. BARAKE
[1993-94] 1 GLR 635 which have declared that the non-registration of the
marriage under the Ordinance makes the said marriage invalid. In this case, the
Respondent did not produce any certificates or register showing that the said
marriage was contracted under the Ordinance. In my view, as the onus of proof
which lay on the Respondent was not discharged, the learned trial judge was
right to hold that the said marriage was invalid for non-compliance with the
law and mandatory provisions of the Ordinance. <o:p></o:p>