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October 27, 1959
COURT OF APPEAL
CORAM
JUDGMENT OF OLLENNU J.
This is an appeal by the defendant, with a cross-appeal by the plaintiff, from the judgment of a Commissioner of Assize and Civil Pleas, delivered in Accra on the 12th February, 1959. On the 13th October, 1959, we allowed the appeal, and we dismissed the cross appeal. We now proceed to state our reasons for those decisions.
(His lordship stated the facts and continued:—)
No evidence was produced by the plaintiff to show that there was any abnormality about the girl’s pregnancy which could account for a pregnancy lasting fifteen or sixteen months. In these circumstances, the presumption is that the gestation took the normal period of nine months, and that the evidence of the defendant that the girl became pregnant in September, 1956 should be preferred to that of the plaintiff. However, as will appear presently, it is immaterial (for purposes of determining whether or not the defendant was married to the girl according to customary law) whether the pregnancy took place before, or after, the payment of the customary fees of marriage.
The learned Commissioner, dealing with the case for the defence, stated:
“The main ground of the defence is that the defendant admits he has a child by the daughter Hannah Asumah but at the time the girl was his wife: it is for him to prove that the girl was his wife [p.356] having married her according to custom or otherwise. But he has failed to prove that the necessary rites constituting engagement and marriage have been done by him; and taking the evidence of his own witness the girl herself, Hannah Asumah, it is clear she is not married to the defendant.”
While the Commissioner properly directed himself on the onus of proof, we are of the opinion that, upon the evidence before him, he erred in the conclusion which he reached, viz., that the onus had not been discharged.
The question of marriage vel non is a question of law, which must be determined upon the facts before the court. Moreover, a person on whom the onus lies to establish certain facts need not lead further evidence of the facts necessary to prove his case if his opponent admits those facts, whether in his pleadings, or in evidence given in-chief or in cross-examination. In such a case the party must be deemed to have discharged the onus.
When cross-examined on the customary law relating to marriage, the plaintiff made the following admission:
“If a girl is engaged to be married and the man had made expenses on the girl and is p
AI Generated Summary
In this appellate judgment authored by OLLENNU J and joined by VAN LARE J.A., C.J., and GRANVILLE SHARP J.A., the court reviewed a decision of a Commissioner of Assize and Civil Pleas arising from a dispute between the plaintiff, father of Hannah Asumah, and the defendant, who admitted paternity of a child born to Hannah. The Commissioner held the defendant failed to prove customary marriage. The appellate court explained that under Fanti customary law, valid marriage may be formed by family consent with a token present, by pregnancy paired with acknowledgment and a further gift, or by refunding a prior husband’s fees so that the paying suitor steps into the former husband’s shoes. The plaintiff’s own testimony accurately captured this custom, and the defendant’s evidence showed payment of £40 several months before pregnancy. The timing of conception was immaterial. The court concluded Hannah was the defendant’s lawful wife, allowed the appeal, and dismissed the cross-appeal.