ESSILFIE AND ANOTHER v. QUARCOO

JUDGMENT OF LUTTERODT J.

Theophillia Alaba Codjoe died intestate on 28 November 1986. When the plaintiffs applied for a grant of letters of administration to administer her estate the defendant caveated. Because the parties could not come to an agreement between themselves as to the person or persons to whom a grant ought to be made, the plaintiffs were ordered to take out a writ for a determination of the usual question in cases of this kind, i.e. as to who is better entitled to a grant.

The plaintiffs herein base their claim for that relief and also for other consequential reliefs on the following:

(1) That they are the mother and head of the immediate family, and sister and customary successor to the deceased person.

(2) That the whole of the deceased's estate devolves on them.

(3) That the defendant being the deceased's concubine has no interest whatsoever in the estate.

The defendant on the other hand contends that:

(1) He was the husband of the deceased and that the two of them were married under Fanti customary law.

(2) The two children he had with the deceased, which fact is admitted by the plaintiffs, are in his custody and assuming even that he had no interest in the estate he is entitled to the grant as father of the said children.

In addition, he has counterclaimed for the sum of ¢13,000 being money had and received for the use of himself.

It is plain that one of the most serious and controversial issues for determination in this matter is whether or not the defendant was married to the deceased under Fanti customary law. Before I do so I would like to find out what in law amounts to marriage under customary law. The defendant's counsel has referred to a number of local cases which state [p.184] what the incidents of a customary law marriage are. The authorities are: Quaye v. Kuevi (1934) DCt '31-'37, 69 a decision dating as far back as 8 May 1934; Asumah v. Khair [1959] G.L.R. 353, C.A.; Yaotey v. Quaye [1961] 2 G.L.R. 573; Sackitey's Caveat, Re [1962] 1 G.L.R. 180 and Sarbah's Fanti Customary Laws (3rd ed.), p. 49.

It appears from these authorities that there are two forms of valid marriages known to our customary law. There is the ordinary case where a man seeks the hand of a woman from her family and with their consent the necessary ceremonies of the payment of drinks, customary fees, dowry, etc. are performed. But then there is this other form of a valid marriage where though the above customary marital rites have not be