Certificate of divorce under Marriage of Mohammedans Ordinance (Cap. 107)-Proof of Mohammedans Law of Marriage and Divorce as practised by Moslems of H anafi School in Syria and effect of law of Syria on such Marriage-Competency of expert witness.

This was a claim for damages for obtaining an invalid certificate of divorce under Cap. 107 of the Gold Coast Laws and refusal to complete a marriage contracted in Syria. A Mohammedan" priest" was called to prove as facts the Mohammedan law of marriage and divorce as practised by Moslems of Hanafi sect in Syria and the effect of such marriage by the law of Syria; no other expert evidence as to tne law applicable was given.

Held. the competency of an expert witness is a question of law for the judge and the fact that the expert has not proved himself up to standard goes to weight and not admissibility. The weight to be attached to the evidence of a Mohammedan . priest" in the Gold Coast as expert in Mohammedan law practised by Hanafi sect in Syria is doubtful: he is certainly not a competent expert witness as to law in Syria. Further no claim for damages under local law was established. Appeal allowed and judgment for plaintiff in Court below set aside.

[Note.-It is probable also. though not stated, that the witness belonged to the Maliki Sect.]

K. A. Bossman for Appellants.

No appearance by or for Respondent.

The following judgments were delivered :­FUAD, J.

This is an appeal from the judgment of Barton, J. who gave judgment in favour of plaintiff-respondent for the sum of £99 15s. and costs against defendants-appellants.

It is apparent from the pleadings filed in the case, that it was common ground between the parties who are Moslems of the Hanafi second formerly residents of Syria, that respondent was married in Syria to second appellant who is the daughter of first appellant according to Mohammedan Law; that the marriage ~as not consummated; that respondent came out to the Gold Coast followed by the first appellant and later by the second appellant and that attempts made to bring respondent and second appellant together as husband and wife proved abortive.

It was upon this failure that first appellant accompanied by two witnesses and supported by Imam Mohammed Abass, appeared before the District Commissioner of Accra, on the 18th of June, 1938 and   declared that a divorce had taken place between second appellant and respondent on the 6th of June, 1938. It i3 in evidence that on the 17th of July, 1938, second appellant married one Abdo Sabeh of Accra.

On 23rd of July 1938, respondent instituted these proceedings against the appellants claiming £200 damages" for the defendants without the plaintiff's knowledge or consent obtaining certificate of divorce of the second defendant (daughter of the 1st defendant) from the plaintiff on the 6th of June, 1938 under the Mohammedan Marriage Ordinance whereby the second defendant has refused to complete her marriage with plaintiff contrary to a marriage contract entered into between plaintiff and defendants at Latakia, Syria, on the 6th of October, 1934."

Although the claim is vague and ambiguous yet it is clear from the pleadings and from the statements made by counsel on both sides on the day fixed for the hearing of the case that marriage between the parties was admitted and the only two issues they desired the Court to adjudicate Upon were (1) was there a valid divorce between the parties and (2) if not, is plaintiff entitled to damages and amount.

Upon this it became necessary to prove as facts the Mohammedans Law of marriage and divorce as practised by the Moslems of the Hanafi school with particular reference to any local law or custom peculiar to the inhabitants of Syria and the effect and consequence of such marriage by the law of Syria.

For this purpose a certain Alhaji Ahamadu Futah was called as an expert to expound the Mohammedan La w. He described himself as a Mohammedan Priest a term used in the Mohammedan Marriage Ordinance. He told the Court that he was a teacher of Arabic and that he had been to Mecca. His evidence was not objected to at the time by counsel for the appellants and questions were put to him in cross-examination further to elucidate the law, but at the close of the case for the respondent, counsel for the appellants submitted that the respondent should be non-suited since Syrian Law applied to the case and there was no evidence as to Mohammedan Law opera ting in Syria.

Apart from his evidence, no attempt was made to give any expert evidence as to the law applicable to this case. I would like to point out that the competency of the expert is a question of law for the Judge and the fact that the expert has not proved himself to be up to the standard set for experts or that he has not acquired his knowledge professionally goes merely to weight and not to admissibility. (R. v. Silverlock 2 L.R. (1894) 2 Q.B. 766).

Counsel for the appellants submitted that Alhaji Ahamadu Futah should not have been treated as an expert and cited several cases in support of his contention. The' sum total of the decisions on this point referred to by Counsel is that in foreign law, an expert may be either a professional lawyer or holder of a position which requires and therefore presumes knowledge of a particular law.