JUDGMENT OF LAMPTEY J.
In the court below the plaintiff-respondent (hereinafter called the plaintiff) sued the defendants-appellants (hereinafter called the defendants) jointly and severally and claimed the sum of ¢200 being damages for breach of marriage agreement. The particulars of the claim were set out in extension language following:
"The first defendant agreed to marry the plaintiff and upon this agreement directed the plaintiff to consult the second defendant, the father of the first defendant, who also agreed that the first defendant should marry the plaintiff and accepted all the required head moneys from the plaintiff in accordance with customary marriage rules. That after the plaintiff had offered all the required expenses, the first defendant refused to come to the plaintiff as his wife upon the advice of the second defendant."
He also claimed the sum of ¢137 being head money and expenses made on the first defendant.
After the trial magistrate had heard all the evidence he entered judgment for the plaintiff against the defendants and condemned the defendants in general damages of ¢100 and special damages of ¢134. The plaintiff was also awarded costs of ¢20.85. The defendants, aggrieved by the judgment, appealed to this court. The judgment of the lower court was attacked on a number of grounds which raised serious issues of law.
The first ground of appeal complained that the trial magistrate failed to make a finding on the issue of the capacity of the first defendant to marry. Mr. Amesimeku contended that there was evidence to show and establish that the first defendant was at all material times a married woman and not a femme sole. The first defendant therefore lacked capacity to contract another marriage when there was in existence a valid marriage between her and one Togbolo. Counsel for the defendants submitted that if the trial magistrate had made a finding that the first defendant was a married woman, he would have found further that any agreement on the [p.418] part of the first defendant to marry was contrary to customary law and therefore unenforceable.
In my view the issue whether or not the first defendant was a married woman at the material time is crucial to the success or failure of the plaintiff's claim. The trial magistrate was in duty bound to resolve that issue one way or another. It is trite law that marriage can only be contracted between two parties each of whom has capacity to contract that marriage. Whether or not
