IN RE KWANTSIWAH (CAVEATRIX); KWANTSIWAH v. EFFIRIM-BOTCHEY AND ANOTHER

JUDGMENT OF OLLENNU J.A.

This appeal is from an order of the High Court, Sekondi, removing a caveat entered by the appellant against a marriage intended to be celebrated under the Marriage Ordinance, Cap. 127 (1951 Rev.), in the Methodist Church, Sekondi, between the respondent and one Madam Beatrice Mensah. The caveat was entered in pursuance of section 24(1) (a) of the Marriage Ordinance, Cap. 127 (1951 Rev.), by notice served upon the superintendent minister of the church. The grounds of her objection to the marriage are contained in an affidavit sworn to by the caveatrix on 4 April 1966, a copy of which was served upon the respondent.

Section 25 (1) of the Ordinance provides that whenever a caveat is entered, the marriage officer, in this case the superintendent minister of the Methodist Church, Sekondi, "shall without delay refer the matter to a Judge." It is not clear on the record how the caveat came to the notice of the court . However the endorsements [p.1116] on the affidavit of the caveatrix show that a copy of it was to be served upon the superintendent minister of the Sekondi circuit of the Methodist Church, and copy of it upon the registrar of the High Court. On 3 May 1966, the respondent filed in the High Court, an affidavit sworn to by him on the same day, in opposition to the caveat. On the same 3 May 1966, the High Court, acting in pursuance of section 25(3) of the Ordinance, issued summons upon the parties to the intended marriage and upon the caveatrix, the appellant, to appear on 5 May 1966, and calling upon the caveatrix to show cause why the marriage should not proceed.

In his return of service, the bailiff stated that he was unsuccessful in effecting service upon the caveatrix, and that he was told by an inmate of her house at Apam that she had travelled and it was not known when she would return. Upon the case being called, the learned judge removed the caveat, and said: "It is strange that the caveatrix has not found it fit to prosecute her caveat. If she were keen she would have followed it up. I removed the caveat."

Two grounds of appeal were filed, and were argued together they are:

"(a) That the learned judge was wrong in removing the caveat without hearing both parties.

(b) The learned judge having been made aware that the caveatrix had not been served with a hearing notice he ought not to have heard the case. The hearing was therefore a nullity."

Section 25(2) and (3) of the Marriage Ordinance, Cap, 127, provide tha