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INTRODUCTION
THE absence of documents
evidencing a customary marriage
presents the courts with difficult
problems when they are faced with
the question whether or not a
customary marriage exists. Such
questions arise most often in, but
not limited to, situations
involving succession and
inheritance,1 suits to establish
paternity and maintenance,2
seduction actions3 and in caveats
objecting to the celebration of
Christian monogamous marriages by
a party who claims to be already
married to one of the intending
celebrants.4 The approach of the
courts has invariably been to test
the assertion of marriage against
certain so-called essentials of a
customary law marriage. And
towards this end they have
proceeded purportedly upon the
authority of text writers—mainly
anthropologists and sociologists.
On closer examination, however, it
often turns out that the so-called
essentials are nothing more than
the stages, procedures and phases
of the customary marriage process
as seen and described by these
writers. In any case, as one would
expect, the various authors, with
different objectives and
consequent relative emphases or
omissions (as the case might be)
hardly have a common position on
many important issues. Paying
little heed to the different aims
and approaches of these authors,
the courts have nevertheless, upon
reliance on their material,
erected these descriptions into
rigid requirements against which
customary marriages are legally
tested.5
One also has an inkling that the
courts have been misled by western
concepts of marriage which are not
only heavily influenced by
Christian morals but are also
mainly statutorily governed.6 It
seems ironic in this respect that
the common law marriage which has
some important similarities with
our customary marriage especially
in its informality and could
therefore have provided guidance
in this area has often been
forgotten in situations where
reliance on them could have been
most apposite. This article is
intended to challenge the
so-called essentials of a
customary marriage underlying the
basis of court decisions, and to
suggest that the muddle and
uncertainty have largely been
generated through over-reliance on
formality instead of content. It
seeks to achieve this by looking
critically at the social science
material, the cases and current
observable social fact. It then
suggests a better approach by
showing that it is not that the
so-called "essentials" or
"requirements" of a customary
marriage are wholly irrelevant but
that they are no more than a small
part of the totality of evidence
which a court should consider in
arriving at a finding whether or
not an alleged marriage in fact
exists.
METHODOLOGY
This article is a by-product of
empirical research for a Ph.D.
thesis in 1977 into the operation
of Ghana's Marriage Ordinance of
1884.7 The research was conducted
over a six-month period in the two
towns of Cape Coast in the Central
Region and Berekum in the
Brong-Ahafo Region. Although
peripheral to the main objectives
at the time, impetus for a closer
examination of when and how
customary marriages were effected
arose from administering a
questionnaire on married persons
for the above project. It was
anticipated from the start that
the great majority of the would-be
respondents would be customarily
married. But then that led to a
further problem and hence, this
work. For it became obvious that
the real or married status of
respondents be authenticated from
the start or such information as
they gave might emanate from a
doubtful source.
Doubts had always existed among
some skeptical minds about the
legal requirements of a customary
marriage as enunciated by the
courts.8 With that skepticism in
mind, it was however intended to
proceed using the court's rules as
guidelines and to admit as valid
only those marriages that met the
case law requirements of a
customary marriage. Had that
rigidity been adhered to, perhaps
the entire work would have had to
be abandoned for it turned out
early in the research that the
overwhelming number of customary
marriages failed under the court's
criteria. It became only sensible
to relax the "legal" standards and
therefore a person's declaration
that he was married was taken on
its face value. This method, as it
was later discovered, was not
novel for in the 1970 Census of/or
Ghana, the census planners and
field enumerators had adopted the
same position, i.e. they accepted
the declarations of persons who
said they were married without
challenge.9 Even though it may be
realistic for other purposes, such
a situation is clearly
unsatisfactory for legal purposes
especially in situations where the
case turns solely or substantially
upon the basic question whether
one was married or otherwise. It
was thought worthwhile undertaking
a project of this nature and with
apologies to the informants
therefore, further inquiries were
directed at finding out how their
marriages were contracted. As said
before, answers produced a dilemma
in the sense that it showed a
clear discrepancy between what
most informants thought
constituted marriage and what the
courts hold out to be such
marriages in law. The obvious
question that came to mind was,
what was the nature and cause of
this discrepancy? Whose position
is the better one—the courts or
the informants? And has the
divergence arisen because of
ignorance or prejudice by one
party? Or is it simply because, as
so often happens, the social
situation has changed but the law
has lagged behind?
In trying to elucidate, and make
some modest suggestions, the
article will proceed under three
main headings:
(A) Formalities and procedures for
contracting the customary marriage
which in turn will be further
subsumed under four headings,
viz.:
(i)
agreement of the intending spouses
themselves;
(ii) consents of the would-be
parents-in-law;
(iii) drinks; and
(iv) consummation.
(B) The question of time when a
customary marriage becomes
effective.
(C) The question whether there are
different systems of customary
marriage in the same ethnic
community.
FORMALITIES AND PROCEDURES FOR
CONTRACTING CUSTOMARY MARRIAGE
Under this heading we discuss what
are usually represented as the
essentials of a customary marriage
by the courts. In this regard in
Yaotey v. Quaye which is widely
regarded as the locus classicus on
the point, these essentials were
listed as10:
"(1) agreement by the parties to
live together as man and wife;
(2) consent of the family of the
man that he should have the woman
to be his wife; that consent may
be indicated by the man's family
acknowledging the woman as wife of
the man;
(3) consent of the family of the
woman that she should be joined in
marriage to the man; that consent
is indicated by the acceptance of
drink from the man or his family,
or merely by the family of the
woman acknowledging the man as the
husband of the woman; and
(4) consummation of the marriage,
i.e. that the man and woman are
living together in the sight of
all the world as man and wife."
If these are essentials, then the
presupposition is that failure to
establish any of them renders the
alleged marriage ineffectual. But
is such a position consistently
maintained by the courts?
Agreement by the Parties
This need not detain us for long
for on the whole not much is
likely to turn on agreement of the
parties themselves. The only
problem we can foresee arising
here is in regard to that nebulous
marriage called betrothals
especially and as often is the
practice, where a young girl is
given in marriage to an older
person. Such girls of course are
too young to give consent one way
or the other and it does not help
much to use legal contractual
principles to say that if she
attains the age of majority and
does not repudiate the marriage,
she must be deemed to have
affirmed the marriage. The
customary law had no such age
requirement even though specific
modern enactments now forbid such
practices11 and in any case, even
in their absence, the courts can
on their own annul such marriages
on public policy grounds if a
party can show he was forced into
the marriage.12 Apart from this,
one can safely infer the requisite
agreement from the fact of the
parties living together.
The Consent of the Spouses'
Families
It does not appear that any case
has directly pronounced on the
consent by one or both families of
the intending spouses. We may
however draw a comparison with the
Nigerian case of In re Sapara13
where the point was directly
canvassed but was rejected on the
ground of repugnancy against
"natural justice, equity and good
conscience." Ghanaian courts are
likely to reach a similar decision
by refusing to uphold any such
contention under the rubric of
public policy.14
But even in examining the cases,
such parental or family consent is
strangely noticeably never argued.
Were parental consent to be a true
legal essential, it should be
strenuously argued by or for the
party in whose favour such issue
was raised when the opportunity
presented itself. This however
does not seem to be the case.
Typical of this is the case of
Asumah v. Khair.15 There a girl
who had a valid subsisting
marriage deserted her first
husband and came to live openly
with the defendant, becoming
pregnant by him. The plaintiff
here was the girl's father and he
sued the defendant for seduction.
This of course implicitly ruled
out his ever consenting to the
defendant's alleged marriage to
the girl. The court nevertheless
went ahead to find a customary
marriage between the defendant and
the girl proved. It is not so much
the result of the case that
interests us here as the curious
but significant omission with
regard to consent. For the
question of parental consent was
silently passed over by the
plaintiff, by the defendant and by
the court. Is parental consent a
legal essential then?
Turning to writers, we have the
authority of Sarbah's invaluable
book, Fanti Customary Laws16 to
cast further doubt on the validity
of any such requirement. On the
contrary, it seems that even in
earlier times when parental
authority and influence over their
wards was unquestionably greater,
parties sui juris could validly
marry in the absence of such
consents. This they could do even
if parental consent had been
refused for in that event, they
could agree to marry before
"respectable" witnesses or before
a chief of the village or the
tribe.17 Thus Sarbah further
writes18:
"When there has been a marriage in
fact, the validity thereof is
presumed, and where the caprice,
avarice, or ambition of a parent
has not been excited to force on a
marriage, it will be found by
careful study of the people and
examination of the local marriage
institution, that marriage
entirely rests on the voluntary
consent of a man and a woman to
live together as man and wife;
which intention, desire, consent,
or agreement, is further evidenced
by their living together as
husband and wife."
There could have been no better
and more explicit repudiation of
parental consent to marriage than
the above. If it could be said
that even at the close of the
nineteenth century when Sarbah
wrote, parental consent to
marriage was not a legal
necessity, it can only be modestly
said that it would be even less so
in our vastly changed social
circumstances today.
Today's observable social fact
also points to the conclusion that
parental consent amounts to no
more than the passive
ratifications of a
relationship—marriage—that is a
fait accompli for all intents and
purposes. This is often the case
if the spouses live in the cities
and towns while their parents live
in the rural areas. For in that
event as many informants narrated
during this project, lady and
gentleman take each other for
husband and wife and then visit
their villages to "introduce"
their husbands or wives as the
case may be, to their respective
parents. The situation does not
seem much different in the rural
areas according to research
recently done in Kwahu by a Dutch
anthropologist.19 The conclusion
therefore seems inescapable that
it is an adult person's right to
conduct all the necessary
negotiations for his marriage
without the knowledge or consent
of his parents or family even if
the right is seldom exercised. And
here we reach accord with the then
Chief Justice Osborne when in a
similar situation he said, "I am
unable to accept the proposition
... that the consent of a man's
family is a legal essential to his
marriage."20
Drinks
Drinks in this sense is equated to
the dowry or marriage
consideration21 for it seems to be
general among African peoples that
some kind of property passes to
the woman's family on the coming
into effect of the marriage. What
concerns us here however is the
nature and legal significance of
the transaction. Some authors seem
to have erected this into an
inflexible requirement, indeed a
sine qua non to the conclusion of
a customary marriage.22 While it
may be common practice and is
important, the question is whether
failure to give drinks invalidates
a marriage. As one of the
"essentials" of a valid marriage
listed in Yaotey v. Quaye, one
might too readily be tempted to
answer in the affirmative. It was
found in the modest research for
this work that many apparently
valid marriages in Ghana today
would fail if this were the
position for in many of them, no
drinks have been given or
received.
But is that the true position? To
talk of prevailing social
circumstances and practice first,
we see that occasions for
gift-giving are numerous in the
marriage relationship for the
largesse of an intending husband
is a quality approved of as also
meanness is condemned. The
difficulty however is whether any
meaningful distinction can be
drawn between the presentation of
drinks meant to be a dowry or
bride-price to satisfy this
so-called essential and the other
occasions for gift-giving which
may be merely desirable. Is the
distinguishing mark of the
"dowry-drink" to be that of the
solemnity and formality of the
occasion on which it is presented
or the special declaration that
has to accompany it? We would only
say here that if in the past
formality was the norm, such
occasions are the exceptions
today. If the drink is to be
distinguished by its specificity,
it runs into a different problem.
For customarily, there has always
been a fixed scale of fees or
payments by people, mainly
according to their position of
life, to different recipients in
the bride's family in accordance
with the latters' relation to the
bride.23 If today a sum of money
is given to the family as is
invariably done, is the donor to
expressly state that it is the
"essential drink" and therefore
that it should be distributed in
accordance with custom? Is it the
old customary scales that apply or
has a new tier of scales arisen
which though not having roots deep
in antiquity is easily
ascertainable and stable enough to
be accorded legal recognition?
A
further problem with drink as an
essential of a customary marriage
arises with the question of the
principal person who is entitled
to demand and receive it. Normally
this person is the father in
patrilineal communities and father
or uncle or both in matrilineal
communities. It is this person who
gives his ward in marriage and
receives the drinks who is also
said to be responsible for
refunding the same on divorce. The
problem arises where in these
modern days, mothers or sometimes
brothers not in loco parentis but
acting on their own initiative
give away brides or tacitly
acquiesce in the already formed
relationship and receive drinks
from the suitor. Do they in such
cases act ultra vires if it is
shown they are not in loco
parentis and that no such
authorisation was delegated to
them by the proper person? In such
circumstances, is drinks paid to
these unauthorised receivers
nevertheless enough to satisfy
this legal essential?24
It is respectfully submitted that
such cases as Engman v. Engman25
on which interestingly, the
learned justice relied on in his
summation of these essentials and
that of Asumah v. Khair26 show
that a marriage is perfectly valid
even if the payment of drink is
ignored. As Deane C.J. said in
Quaye v. Kuevi27:
"... although it is highly
desirable that a party seeking to
establish a marriage should be
able to point to the giving to the
girl's parents and acceptance by
them of rum as evidence of their
consent to the marriage, yet the
inability to show that such a
ceremony has taken place would not
in my view of itself be sufficient
to invalidate a marriage if the
consent of the parties to the
marriage were proved by other
means and if it were also proved
that the parties had lived
together in the sight of the world
as man and wife."
An examination of the opinions of
writers also shows that the
payment of drinks is not a legal
necessity in bringing the
customary marriage into effect.
Again the illustrious Sarbah
mentions that payment to the
bride's family is made according
to the means of the prospective
groom and that among the "poorer
classes" none is given and yet
their unions are perfectly
legal.28 When we turn to Rattray,
we find that among the six
different forms of marriage he saw
in Ashanti was what he thought at
the time was the least common—mpena
awadie—which he translated
literally as "mating of
lovers."29 We however observe
that this seems the most prevalent
and common form of marriage today
as people more and more assert
their own will effectively in the
choice of marriage partners. The
real point however is that the
author there expressly stated that
in this type of marriage, no
drinks pass.30 Any insistence
then that drinks be a legal
essential to a valid customary
marriage therefore, seems to stand
on doubtful legal and social
foundation.
Consummation
Our initial difficulty with
consummation as a customary
essential is what legal meaning to
assign to it. Does it have the
same meaning as in western family
law, i.e. copulation or sexual
intercourse? If it has, how is
sexual intercourse to be proved in
order to establish the marriage or
is it conclusively presumed from
the merely living together as the
court in Yaotey v. Quaye seems to
imply in the remaining part of
"essential (4)" ? Is the validity
of the marriage to be reckoned
from the day sexual intercourse
took place or from the time the
parties started living together?
At common law, non-consummation of
the marriage due to impotence is
ground for nullity.31 Should
non-consummation of a customary
marriage have the same
consequence? Here, inferring from
the fact that our society, typical
of all developing societies,
placed so much on having children,
and that inability to have
children was, and still is, a
ground for divorce,32 one may
conclude that impotence or
frigidity would incapacitate
persons from marrying. What
however is not so clear is whether
it necessarily invalidated such
unions. We find no clear authority
on this point but whatever the
position might have been in the
past, we urge that it should not
invalidate customary marriages
today. We reach this conclusion on
the basis that marriage today
should not be viewed in terms of
procreation only. The satisfaction
of the spouses from their mutual
companionship, we conclude, is as
worthy a cause as any other.
It is hoped that we have succeeded
in showing that while not
completely doubting the
significance of the various
procedures in contracting the
customary marriage, it is clear
that no meaningful and helpful
distinctions can be made between
those acts that are legally
necessary and those that are
merely desirable but with no legal
significance.33 And while this
discussion so far has dealt with
areas of the marriage that have
received judicial pronouncements,
there are some still remaining
areas of obfuscation about the
customary law marriage and to
these we now turn before making
our final conclusion.
EFFECTIVE DATE OF CUSTOMARY
MARRIAGE
Heroic efforts are sometimes made
to offer some specific event,
sometimes a proffered time or date
when a customary marriage is
effected.34 However, unlike in
Western statutorily-governed
marriages where perhaps the
effective time may be reckoned
from the time of the celebration
of the marriage and the signing of
the relevant documents in the
presence of the required persons,
attempts to find a precise time or
date when a customary marriage is
effected seems labour well lost.
Is it from the time when the
consent of parents is given or the
drinks offered and received
forgetting for the moment the
difficulties above enumerated
surrounding these? What if
consents have been given but
drinks have not passed? In that
event some hold the view that
payment of drinks can by agreement
be postponed and the union in the
meantime would be perfectly
legal.35 Such argument however
fails to consider whether the
marriage becomes invalidated when
the bridegroom later expressly
repudiates the obligation to pay.
A situation like that arising, is
the invalidity then ab initio,
i.e. the marriage a legal nullity
or is it reckoned from the date of
the repudiation of the obligation
to pay?
Similar difficulties surround the
requirement of consummation.
Suppose the requisite consents
have been sought and granted and
the drinks paid, but there has
been no consummation, actual or
notional, i.e. the parties have
neither had actual copulation nor
started living together. Is the
"marriage" then no marriage yet?
In sum, need we find any readily
identifiable singular act in time
or event which effects a customary
marriage?36 With all these
difficulties the best approach
here undoubtedly seems to point to
one conclusion—that we do not have
to decide any precise point of
time at which the marriage is
established. The only question
then becomes whether the parties
were married at the relevant time
and then it is sufficient to
decide that upon the facts the
marriage had been established
prior to, and existed on a certain
relevant date.
ARE THERE DIFFERENT CUSTOMARY
MARRIAGES IN THE SAME ETHNIC
COMMUNITY?
The confusion and uncertainty in
the approach to the customary
marriage is often fanned by the
frequent references to the
existence of different forms of
marriages within the one and same
ethnic group or community. Thus
Ollennu maintains, for instance,
that among the Gas there are at
least two types of marriage: (i)
the six-cloth marriage and (ii)
the ordinary customary marriage,
whatever the latter means.37
Rattray also purportedly found at
least six different types of
marriage in Ashanti.38 It is
indeed unfortunate that judicial
opinion in the recent case of
Afrifa v. Class-Peter39
unsatisfactory for other
reasons,40 seems to have lent
support to this erroneous
impression. Thus said the court
approving Rattray,41 "In Ghana
there are various forms of
marriage within the various ethnic
groups. In Ashanti . . . there
appears to be at least six forms
of a valid customary marriage . .
. [and] various forms of Ga
customary marriages exist."
The great question still begging
for answer is what is meant by the
differences? Does the difference
lie in incidents to the marriage
status of husband and wife, attach
to the issues42 of the marriage or
only concerns the laws that give
legal validity to the marriage
initially? We would reiterate, as
Kasunmu and Salacuse rationalise,
that in the formation of the
marriage, it may be "important to
distinguish those acts having
legal significance from those acts
having purely social, tribal, or
religious significance"43 and that
the law is concerned only with the
former. We urge that the act of
marriage may be preceded by
certain preliminary arrangements
and ceremonies which may be
differently done from locality to
locality and on occasion.
Perceived or imaginary differences
thus might lie in forms and
procedures only, not in any
substantive differences attaching
to the status, the completed
relationship, itself.
PROOF OF CUSTOMARY MARRIAGE—A NEW
APPROACH
Considering our discussions so far
it is evident that new directions
are called for. The so-called
"essentials" are not only obsolete
in today's circumstances, they are
likely to cause mischief by
misleading the courts into looking
for evidence which is irrelevant
and correspondingly disregarding
that which is appropriate. What
then are the alternatives? We must
proceed cautiously here for we are
on slippery grounds. Considering
that the society is in a state of
flux, that the administrative
machinery is rudimentary and weak
and that there is rampant
illiteracy among the bulk of the
population, radical suggestions
looking towards legislation might
only end up as dead statutes in
the books. Even a mild suggestion
such as that marriages be required
to be registered at the
appropriate district or local
council headquarters or even with
traditional chiefs of the various
ethnic communities throws up many
problems. It may be true that
registration has been advocated in
many instances because it
facilitates proof of the existence
of a marriage. Indeed as Philips
and Morris say44:
"Among the reasons advanced for
registration, perhaps the most
common is the need to facilitate
proof of marriage. Thus a proposal
for registration which was adopted
by the Ashanti Confederacy Council
in 1942 seems to have been
supported mainly on the ground
that it would 'enable the native
courts to decide without any waste
of time as to whether the union
between the man and the woman is
strictly in accord with native law
and custom, when another man is
accused of adultery with the
woman'."
What however will be the true
significance of such registration?
Does non-registration affect
validity? In other words, would
the provisions be held mandatory
or only regulatory or directory?
We would say that instead of
putting the obligation on the
citizens at the risk of rejecting
good marriages for non-compliance
with certain legislative
provisions, wise counsel would
suggest that we place it where it
is likely to cause the least
havoc—on the courts.
And the tool we would recommend
for the use of the courts is to
treat every such determination as
a matter of proof. In this
connection, use then can be made
of common law marriage analogies
where for instance, virtually no
formalities are required and the
precise time at which a marriage
arose is of no importance. Put
simply, the question whether a
marriage exists or otherwise would
then be a matter of evidence
including the declarations and
conduct of the parties and such
other circumstances as usually
accompany the marriage relation.
The one big argument against this
approach is the lack of certainty
it might breed. We agree that
although it may be good public
policy that a public record be
kept of marriages and that that
policy may be defeated by the
method we are advocating, it is an
equally or better public policy
also to promote, and encourage and
uphold marriage among others. A
record of marriage is not an end
in itself but a means towards
social order and surely it is not
wise to defeat social order for
the sake of orderliness in
method.45 Therefore, the
following incomplete suggestions,
based on a synthesis of the
author's research informants'
views, we recommend, should be
some of the factors that should
guide a court in arriving at a
finding or otherwise of a
customary marriage today:
(i)
the length of time the couples
have lived together and have held
themselves out as husband and
wife, the equivalent of the common
law repute and cohabitation;
(ii) closely related to above,
what their community thinks about
their relationship;
(iii) absence or presence of issue
of the relationship;
(iv) common ventures such as
farming or trading enterprises
undertaken in the belief that they
are married;
(v) how much they have commingled
their money and property, for
example, in a common budget or a
money savings plan;
(vi) whether they hold themselves
bound to attend and pay for
funeral expenses upon death
occurring in each other's family;
and
(vii) perhaps among the more
educated, enlightened and
"westernised" ones, if they submit
income tax returns claiming for
themselves benefits to which only
the married are entitled; if they
hold bonds and shares in their
joint names, and if they name each
other as beneficiaries in their
individual wills and any other
death benefits to which they may
be entitled.
We dare say that such factors are
a more reliable indicator that the
parties intend a more permanent
relationship than say a
meretricious one or concubinage,
and a determination based on them
has a more solid foundation in
present-day circumstances than the
present method which seems to put
a premium on formalities instead
of realities.
FOOTNOTES
LL.M. (Ghana), LL.M., J.S.D.
(California, Berkeley), Lecturer
in law, Faculty of Law, University
of Ife, Ile-Ife, Nigeria. The
writer wishes to express gratitude
to Dr. G. R. Woodman of the
University of Birmingham Law
Faculty for his useful comments on
this article which was first
presented as a paper at the joint
meeting of the American Law and
Society Association and The
Research Committee on Sociology of
Law held at the University of
Wisconsin, Madison, 5-8 June 1980.
1. See, e.g. Yaotey v. Quaye
[1961] G.L.R. (Pt. II) 573.
2. Adjei and Dua v. Ripley (1956)
1 W.A.L.R. 62.
3. Asumah v. Khair [1959] G.L.R.
353.
4. Under the Marriage Ordinance,
Cap. 127 (1951 Rev.), ss. 24-26.
See e.g. Re Caveat by Clara
Sackitey [1962] 1 G.L.R. 180.
5. Woodman's indictment of writers
might as well apply to the courts
here when he says, "Writers on the
law of marriage ... have sometimes
filled their pages with socially
interesting, but legally
irrelevant detail"—Woodman, G. R.,
"Judicial Development of Customary
Law: The Case of Marriage Law in
Ghana and Nigeria" (1977) 14
U.G.L.J. 115 at p. 118, footnote
4.
6. Cf. Woodman, above, at pp.
115-116 who opines that when
courts make decisions contrary to
prevailing social norms, it might
not necessarily be ". . . because
the judges are ignorant or
disapproving of the social rules,
but frequently because the
functions of the courts compel
them to apply rules which do not
fully correspond to any social
rules developed outside the
courts."
7. Laws of the Gold Coast, Cap.
127 (1951 Rev.).
8. See, e.g. Kludze, A. K. P., Ewe
Law of Property (Restatement of
African Law; Ghana 1): London,
Sweet & Maxwell (1973) esp. at pp.
312-313.
9. Government of Ghana, 1970
Population Census.
10. [1961] G.L.R. 573 at pp.
578-579; see also Ollennu, N. A.,
The Law of Testate and Intestate
Succession in Ghana (1966), esp.
p. 224.
11. Despite the fact that
betrothal and infant marriages
were disapproved of by the former
colonial powers no direct attempts
were made by the colonial regime
to abolish such practices.
However, the Criminal Code, 1960
(Act 29), contains provisions
designed to protect infants
against such practices. In this
connection the following are the
most important: sections 91-92
abduction of married female under
eighteen; section 102 defilement
of female between ten and fourteen
and section 108 causing or
encouraging the seduction or
prostitution of a girl under
fourteen. For more on this see
Salacuse, J. W., A Selective
Survey of Nigerian Family Law
(1965), esp. p. 12.
12. See note 5 above, Woodman's
article at p. 119.
13. (1911) Ren. 605.
14. Bennion explains the
exclusion, in Ghanaian statutes
since 1960, of the notorious
repugnancy "against natural
justice, equity and good
conscience" provisions against
which customary laws were hitherto
tested that, "It was considered
unfitting to the dignity of the
indigenous laws of the people of
Ghana to suggest that this
repugnancy might continue to
exist. For over one hundred years,
customary laws which were
considered to be repugnant to
natural justice, equity and good
conscience have not been enforced
because the law forbade their
enforcement. It seems reasonable
to assume therefore that such
customary laws as remain will not
offend in this respect,"—Bennion,
F. A. R., The Constitutional Law
of Ghana (1962), p. 416.
15. Note 3, above.
16. Sarbah, J. M., Fanti Customary
Laws (3rd ed. 1968), pp. 41-56.
17. Ibid. at p. 49.
18. Ibid.
19. Bleek, W., "The Position of
Marriage in Kwahu, Ghana" (1972)
Research Papers, Leiden,
Afrika-Studiecentrum.
20. See In re Sapara (1919) Ren.
605 at pp. 607-608. See also Obi,
S. N. C., Modern Family Law in
Southern Nigeria (1966), p. 162;
Allott, A., New Essays in African
Law (1960), P. 215.
21. The Ashantis and Brongs call
this tiri nsa (lit. head-drink;
tsir nsa among the Fantis).
Different terms are used by
various writers, generally
depending upon the particular
author's general attitude towards
African marriages. A few are:
bride-price, bride wealth, dowry
and marriage consideration. See
Opoku Kwame, The Law of Marriage
in Ghana: A Study in Legal
Pluralism (1976), p. 34 and at pp.
117-118.
22. Danquah, for instance, insists
that it is the payment of this
money ("Aseda") which "renders the
man paying and the woman in
respect of whom it is paid to be
recognized as properly and legally
married"—Danquah, J. B., Akan Laws
and Customs (1928). (The emphasis
is mine), p. 149; Obi, op.cit. at
p. 185 also asserts rather too
categorically that "a customary
marriage is void if not supported
by the payment or express waiver
by the bride's family, of a
bride-price." We can only say in
reply to him that it may be
Ghanaian and Nigerian law differ
on the point.
23. Ibid. at p. 149.
24. Allott, above, note 20 ibid.
raises similarly perplexing
questions in related areas of the
customary law and attempts no
answers.
25. (1911) D. & F. '11-'16, 1.
26. Above note 3.
27. (1934) D.Ct. '31, 69 at p. 74.
28. Sarbah, op.cit., at p. 48.
29. Rattray, R. S., Ashanti Law
and Constitution (1969), p. 30.
30. Ibid.
31. Harthan v. Harthan [1949] p.
115: see also Pettit v. Pettit
[1962] 3 W.L.R. 919 applying the
Harthan case but refusing in the
circumstances to grant petitioner
husband's prayer for nullity on
grounds of impotence.
32. Sarbah, note 16 above at p.
53.
33. Cf. Kasunmu, A. B. and
Salacuse, J. W., Nigerian Family
Law (1966), p. 32.
34. Allott for example says that".
. . the ceremony marking the
conclusion of a valid marriage is
the handing over, by the husband
to the person giving the bride in
marriage, of the tiri aseda . . ."
see note 20 ibid.; see also
Kasunmu and Salacuse, note 33
above, esp. pp. 81-83.
35. Sarbah, at p. 48; this is also
clearly implicit in Deane C.J.'s
judgment in Quaye v. Kuevi, above.
36. See Philips, A. and Morris, H.
F., Marriage Laws in Africa
(1977), p. 107.
37. Ollennu, above note 10, chap.
26 passim.
38. Rattray, op.cit., at p. 23.
39. [1975] 1 G.L.R. 359.
40. This is mainly in respect of
the amount of damages awarded to
the disappointed promisee-see
Daniels, W. C. E., "Defences to
Breach of Promise of Marriage"
(1976) 8 R.G.L. 55 esp. at p. 61.
41. [1975] 1 G.L.R. 359 at p. 364.
42. There appears to have been an
isolated instance when the
so-called Ga six-cloth marriage
may have influenced the courts in
finding special rights of
maintenance for the children of
the marriage: Vanderpuye v.
Botchway (1951) 15 W.A.C.A. 164.
But quare: whether this is not
obsolete today with the
development of the right of
maintenance for all children
irrespective of circumstances of
their birth: see Woodman, op.cit.
at p. 118.
43. Kasunmu and Salacuse, above
note 33 ibid.
44. Above note 36 at p. 109.
45. See Black,"Common Law
Marriage"(1928) 2 Cin.L.Rev.113
esp. at pp. 131-132.
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