AFRIFA v CLASS-PETER

[1975] 1 GLR 359

Division: COURT OF APPEAL, ACCRA

Date: 3 MARCH 1975
Before: LASSEY, SOWAH AND FRANCOIS JJ.A.

Contract—Breach of promise—Ordinance marriage—Parties from different ethnic groups cohabiting

after engagement ceremony where Bible and ring presented to girl’s family—Date for formal marriage
ceremony constantly postponed by man—Girl suing for breach of promise—Whether promise referable to
Ordinance or customary marriage—Significance of gifts of Bible and ring—Defence that parties already
customarily married—Postponements referable only to Ordinance marriage even if customary marriage
established.

Customary Law—Marriage—Inter-tribal—Ashanti man presenting Bible and ring to family of Ga

woman—Subsequent cohabitation—Existence of different forms of both Ashanti and Ga
marriages—Whether any marriage proved—Whether by Ga custom man in breach of promise to
marry—Duty of man to ascertain requisite formalities.

Contract—Consideration—Sufficiency—Man agreeing to marry woman at future date—Woman giving up

her avocation and cohabiting with man while waiting for marriage—Several postponements of marriage
by man with woman agreeing to new dates—Woman not commencing action for breach of promise
immediately—Whether woman’s reciprocity after each postponement sufficient consideration to support
fresh or continuing promise—Whether her delay in commencing action tantamount to a waiver of her
rights under the agreement.

Contract—Frustration—Self-induced—Promise to marry—Parties in pursuance of promise to marry at

future date cohabiting together—Constant postponements of marriage at behest of man—Woman not
suing for breach of promise immediately but accepting new dates—Woman discovering fiancé in embrace
of girl friend created a scene and left joint home—Whether conduct of woman amounted to frustration of
agreement to marry—Defence of frustration—Need to plead specifically.

HEADNOTES
A. an Ashanti businessman met C. P. a Ga schoolmistress and eventually proposed marriage to her. They
became formally engaged with the consent of C. P.’s family to whom A. presented gifts of money, drinks,
a ring and a Bible. On the evidence the nature of the proposed marriage was to be Christian and
monogamous. The parties set up home together and in anticipation of the marriage ceremony, C. P. gave
up her employment. Between 1969 and 1972 A. fixed several dates for the wedding, but each was
postponed at his instance. In the meantime he freely consorted with other women and had a child with one
of them. C. P. became aware of A.’s infidelities, and finally followed him to a rendezvous where she
caught him in the arms of another woman. She accordingly left the joint home and sued for damages in
the circuit court for breach of promise to marry. She was awarded ¢2,000.00 damages.
A. appealed, urging that he was already customarily married according to Ga custom and was not
therefore in breach. In the alternative it was argued that since C. P. had not sued when the marriage was
first postponed she had waived any rights that the breach gave her; and further, by creating a scene

[p.360] of [1975] 1 GLR 359

when she discovered her fiancé with a girl friend she had herself induced the breach or had introduced the
element of frustration.
Held, dismissing the appeal:
(1) the postponements of the marriage at A.’s behest implied a willingness to marry at a future date. If
A. was in fact already married to C. P. according to Ga customary law, the logical conclusion to be
drawn from the facts was that the postponements were in relation to marriage under the Ordinance.
(2) In fact the parties were not married according to custom. The gifts of a ring and a Bible were
unknown in customary marriage and no marriage custom had been performed. Mere cohabitation
was not conclusive of the fact of marriage. There were at least six forms of valid customary
marriage among the Ashanti and various forms of Ga customary marriage also existed. A man
seeking to marry a woman from a different ethnic group should ascertain the formalities requisite
for validating his marriage. A failed to do this and even by Ga customary law he was in breach of
his obligation to marry. Asumah v. Khair [1959] G.L.R. 353, C.A. and Re Sackitey’s Caveat [1962]
1 G.L.R. 180 applied.
(3) C. P. had not waived her rights. The postponements occurred between 1969 and 1972 and the time
lag did not suggest waiver. After each postponement there was a new reciprocal promise and C.
P.’s willingness to marry on the day ultimately fixed was sufficient consideration to support a fresh
or continuing promise by A.
(4) Where a course of conduct, calculated to shock and distress was relentlessly pursued in, it was pure
humbug to disclaim any part in the eventual outcome. If there was frustration at all in this case it
was self-induced by A. himself and it lay ill in his mouth to crave the benefit of a course of conduct
of his own making. Furthermore, for the defence of frustration to avail A., he should have pleaded
this with particularity but he failed to do that. Maritime National Fish, Ltd. v. Ocean Trawlers, Ltd.
[1935] A.C. 524, P.C. and Mount v. Oldham Corporation [1973] 1 All E.R. 26 at pp. 29-30, C.A.
cited.

CASES REFERRED TO
(1) Asumah v. Khair [1959] G.L.R. 353, C.A.
(2) Re Caveat by Clara Sackitey [1962] 1 G.L.R. 180.
(3) Maritime National Fish, Ltd. v. Ocean Trawlers, Ltd. [1935] A.C. 524; 104 L.J.P.C. 88; 153 L.T.
425; 79 S.J. 320; 18 Asp.M.L.C. 551; 51 LI.L. Rep. 299, P.C.
(4) Mount v. Oldham Corporation [1973] Q.B. 309; [1973] 2 W.L.R. 22; [1973] 1 All E.R. 26; 71
L.G.R. 105, C.A.

NATURE OF PROCEEDINGS
APPEAL against the judgment of a circuit court condemning the appellant in damages for breach of
contract to marry. The facts are set out fully in the judgment of Francois J.A

COUNSEL
Ahenkora for the appellant.
J. C. Armah for the respondent.

JUDGMENT OF FRANCOIS J.A.

This is an appeal from the decision of the Circuit Court, Accra, whereby the appellant was condemned in
damages in the sum of ¢2,000.00 for breach of his promise to marry the respondent. The facts may be
shortly stated.

[p.361] of [1975] 1 GLR 359

The respondent is a school teacher and the appellant a businessman. After an initial attraction for each
other they exchanged vows to seal their relationship in marriage. The appellant appears to have been the
prime mover in this attempt to regulate their relationship into something of permanence. To this end, he
sent to the family of the respondent, gifts of money, drinks, a ring and a Bible. There is no denial that
thereafter the respondent allowed herself to be seduced by the appellant. The couple later set up a home
and cohabited together. The respondent abandoned her avocation as a teacher of domestic science and
waited expectantly for the joyful day. There were four postponements of the marriage ceremony, all at the
instance of the appellant. In each case a plausible excuse was given for fixing a new date in futuro,
meanwhile the appellant disported with fair damsels. Unfortunately this dalliance was not discreet. An
outcome was the birth of a child for the appellant by a woman living next door. But there were other
equally serious indiscretions. The respondent learnt of an address where the appellant held clandestine
court. She hied to the rendezvous and caught her loved one in another’s embrace. There was a scene. The
load of indignities had reached the zenith. The respondent packed bag and baggage and left the joint
home. Not long after the proceedings which have culminated in this appeal were commenced.
An initial issue for determination in this appeal, is whether there was a promise from the appellant to
marry the respondent in accordance with the western monogamic concept of marriage, that is, one man to
one woman to the exclusion of all others, as reflected in marriage under our Marriage Ordinance, Cap.
127 (1951 Rev.). The pleadings make no attempt to clarify the position. This is unsatisfactory. Deficient
though the respondent’s pleadings are in this respect, the evidence she led, supported by her witnesses,
consistently throughout, was to the effect that the agreement was to marry under the Marriage Ordinance.
The reception of this evidence was not questioned at the trial and was accepted by the court below. There
is no reason why this court should differ on this issue.
When this appeal was argued, counsel for the respondent essayed to defend his pleadings by asserting that
breach of promise of marriage was unknown in customary law and therefore a suit for breach could only
refer to a common law breach. Consequently it was unnecessary to relate the breach to marriage under the
Ordinance. After propounding such a profound legal point, counsel’s subsequent diffidence in advancing
the submission, was to say the least, disappointing. No serious foray was made to support the argument
with authority, and the forensic spring dried up even before it could well up.
The point, however, is interesting and worth fuller consideration at a more opportune occasion.
Meanwhile it will suffice to say that it is arguable. For Sarbah in his Fanti Customary Laws (3rd ed.) at p.
46 states:
“He who desires a woman, whether maiden or widow, in marriage, must apply to her family, or person or
persons, in loco parentis, for consent, and without such application and consent there can be

[p.362] of [1975] 1 GLR 359

 no betrothal. Nor is there any remedy for breach of promise of marriage. If a man fail to marry a woman for
whose hand he had applied, or if such woman refuse to marry him, or her family withdraw their consent, no
action arises, and no damages are incurred by the person in default, who, however, forfeits any consawment
or anything given to the other.”

(The emphasis is mine). The older authority of Sarbah is however challenged by the recent researches of
Professor Allott. In his Essays in African Law, published in 1960, the learned author says at p. 223.
“Breach of a bare promise to marry which has not led to the establishment of the betrothal-status often
involves no legal liability to compensate.

Ghana customary laws conform to the general pattern in this respect. Actions for breach of promise of
marriage are found in the native court records. In one such case, the claim was for compensation for
special expenses incurred as a result of the promise. In another case the plaintiff was a man who had been
disappointed of his future bride . . .
The native court held that there was insufficient evidence of a promise to marry.”
(The emphasis is mine.) Further discussion of this issue will be purely of academic relevance as there is
overwhelming evidence that the marriage contemplated by the parties was of the Christian monogamic
variety. The debate must therefore be left for a future occasion.
Turning then to the issue of the form of marriage the parties intended to celebrate, it would be observed
that the appellant led evidence in the court below of the gifts he sent to the respondent’s family alluded to
before. He claimed however that their subsequent cohabitation was evidence of marriage under Ga
customary law. But neither the appellant nor his witnesses appeared to know the requisite formalities of a
Ga customary marriage. The appellant’s witness, Emma Akrofi, was honest however to admit that the
ceremony she took part in, amounted to no more than an engagement. There is unassailable evidence that
the family of the respondent kept pressing not only the appellant but also his messengers to nominate the
day for the marriage. These importunate demands for a wedding date were neatly side-stepped by pleas of
ignorance of the appellant’s intent, and promises to convey the wishes of the respondent’s family to the
appellant.
The gifts of a ring and a Bible are also significant, for rings and Bibles are unknown in customary
marriages. They are essentially Christian symbols and in concept denote an intention to marry in a
Christian monogamic fashion.
The postponements of the marriage at the appellant’s behest imply a willingness to marry at a future date.
If the appellant claimed he had already married the respondent according to Ga customary law then the
logical conclusion to be drawn from the facts was that the postponement was in relation to marriage under
the Ordinance.

[p.363] of [1975] 1 GLR 359

It should be seriously asked if marriage had been concluded and no obligation remained to be performed
by the appellant, what further promise was the appellant making and in relation to what ceremony?
It seems to me appropriate to consider at this stage the constituents of a valid Ga customary marriage
through two cases. First, Asumah v. Khair [1959] G.L.R. 353, C.A. The report gives the first holding at p.
354 as follows:
“(1) that where a man desires to marry, he applies to the woman’s family for consent, taking to them
certain customary gifts which vary according to his means. If the family give their consent by
accepting the gifts, that concludes a marriage valid in customary law.”
That holding is the learned editor’s paraphrase of the judgment and I would respectfully state it goes
wider than the actual judgment. For at p. 357 of the report the Court of Appeal stated that a necessary
inference of marriage would arise: “Where a man has obtained the consent of a girl’s family, and has
completed the marriage by making the token gift ... “ (The emphasis is mine.) Short as the passage is, it
cannot be said to discount the various steps including the betrothal, which lead to marriage. I do not think
either that the dividing line between engagement and marriage under customary law should be blurred. In
Asumah v. Khair (supra) A. had performed all the necessary customary rites of marriage, so the issue was
whether K. stepped into A.’s shoes in relation to the marriage after paying the expenses borne by A. at the
insistence of the girl’s family and with the consent of A. The decision that K. was validly substituted for
A. cannot be doubted as right. “
The other case that may with profit be discussed is Re Caveat by Clara Sackitey [1962] 1 G.L.R. 180. The
question in the Sackitey case revolved around the issue whether there was a subsisting customary
marriage to bar a prospective Ordinance marriage to another woman. The requisite of a valid customary
marriage were considered by Ollennu J. (as he then was). He gave the following essentials at pp. 181-182:
“(a) consent by the two parties that they would live together as man and wife;
(b) consent by the family of the man that he should have the woman to his wife; that consent may be
actual, i.e. by the family of the man going to the family of the woman formally to ask for her hand, or
it may be constructive, i.e. by the family of the man recognising the woman as a wife of the man and
admitting her and her family to performance of customary rites for their family, e.g. funeral rites when
there is bereavement in the man’s family.
(c) consent of the family of the woman that she should have the man for her husband, this consent too
may be actual, ie. where the family of the woman accept drinks offered by the family of the man, or it
may be constructive, i.e. by acknowledging the man as husband of the woman, and admitting him and
his

[p.364] of [1975] 1 GLR 359

family to perform customary rites for their family, e.g. funeral rites on occasion of bereavement in the
woman’s family, and
(d) consummation of the marriage by cohabitation.”

In the Sackitey case there was evidence of the performance of the Adangbe Fiapun ceremony which
allegedly constitutes a valid marriage by Krobo custom.
In the present case the evidence is overwhelming that the family of the respondent kept asking when the
marriage was to be concluded. No marriage custom had been performed. Mere cohabitation of the parties
therefore was not conclusive of the issue of marriage.
The impression that customary marriages require very little ceremony and are only a shade above
concubinage must be decried. With very great respect this interpretation of the custom is not in accord
with the older authorities. There are clear lines of cleavage, discerned in the authorities, between
concubinage, friendly alliances, engagement or betrothal and marriage. In any of these cases cohabitation
may take place with the consent of parents, and yet not necessarily amount to marriage. Sarbah carefully
draws the distinction between betrothal and marriage. (See Sarbah, Fanti Customary Laws (3rd ed.) at p.
45). That these distinctions are necessary, becomes apparent when issues relating to status, and succession
arise for determination as many persons have found to their grief.
In Ghana there are various forms of marriage within the various ethnic groups. In Ashanti where the
appellant belongs, there appears to be at least six forms of a valid customary marriage: see Rattray,
Ashanti Law and Constitution (2nd impress. 1956) at p. 23. In Asumah v. Khair (supra) at p. 356 it was
even there acknowledged that various forms of Ga customary marriages exist: see p. 356 of the report. It
would seem prudent therefore for a man seeking the hand of a woman from an ethnic group different from
his own, to inquire about the formalities requisite for validating the marriage of his adoption. That this
was not done and furthermore since no further ceremony was performed, one is left without any doubt
that even by Ga custom the appellant was in breach of his obligation to marry.
Counsel for the appellant, quite undaunted by the facts, raised two issues. First he, argued that in so far as
there had been postponements of the marriage by the appellant and the respondent had restrained her hand
and not sued immediately, she must be deemed to have waived any rights which any breach gave her. The
inconsistency of approbation and reprobation, was urged against her. The second argument was that since
the respondent created a scene when she discovered the appellant in the compromising embrace of a girl
friend, she must be held herself to have induced the breach or at any rate to have introduced the element
of frustration.
As to the issue of waiver, it must be recalled that after each postponement the appellant fixed a new date.
The respondent in the tolerant

[p.365] of [1975] 1 GLR 359

frame of compromise to which women are wont to succumb when the marriage carrot is dangled before
their eyes, accommodated the appellant, trusting that he would honour the new dates. The postponements
occurred between 1969 and 1972. The time lag does not suggest waiver. Again, after each postponement,
there was a new promise to marry or an affirmation of the agreement to marry. The respondent’s
willingness to marry on the day ultimately fixed is a sufficient consideration to support a fresh promise or
a continuing promise by the appellant, to marry her on that day. The reciprocity was sufficient
consideration. In my view the justness of the respondent’s cause would have been sadly punctured if she
had sued the first time the appellant failed to fulfil his obligation to marry. Emotions were involved and
the spirit of compromise which the respondent demonstrated in accommodating the appellant was
commendable and could not amount to a waiver.
The second argument of counsel for the appellant was that the scuffle a trois which took place on 17 June
1972 and which led to the respondent leaving the joint home, brought the relationship of the parties to an
end. The marriage could therefore not be celebrated as that desired object had been frustrated. The proper
application of the doctrine of frustration is in commercial contracts. But even stretching the doctrine to
this case, the evidence on record, adumbrated before, shows that the appellant was of a flirtatious
disposition. Though no moral judgment is passed on his promiscuity it must be underscored to show that
the chain of circumstances leading to the scuffle were of the appellant’s own making. The scuffle was
only the culmination of a course of conduct which showed a callous disregard of the affections of an
intended spouse. That it happened so very early in their relationship must give the lie to the seriousness of
purpose of the appellant to marry the respondent; the fact that the appellant pursued his other affections
with irresponsible zeal is a further index of the quality of his affections towards the respondent. Where a
course of conduct, calculated to shock and distress is, relentlessly pursued in, it is pure humbug to
disclaim any part in the eventual outcome. The argument of frustration lies very ill in the mouth of the
appellant. If there was frustration it was self-induced and cannot avail the defendant. See Maritime
National Fish, Ltd. v. Ocean Trawlers Ltd. [1935] A.C. 524 at p. 530, P.C. where it was held that “the
essence of `frustration’ is that it should not be due to the act or election of the party.”
Even in the best regulated households, fights and disagreements do occur; they cannot be said to be so
fundamental as to frustrate a marriage agreement. Furthermore for a defence of frustration to lie, it must
be expressly pleaded and with particularity. As was said by Edmund Davies L.J. in Mount v. Oldham
Corporation [1973] 1 All E.R. 26 at pp. 29-30, C.A.: “In my view, on the exiguous evidence presented, no
proper foundation was laid for a finding that frustration of the contract had been established by the
defendants, on whom lay the burden.”
I can see nothing on the record that remotely suggests that the respondent has been guilty of a
fundamental aberration going to the root of her relationship with the appellant and destroying it, to entitle
the appellant

[p.366] of [1975] 1 GLR 359

to hold himself as discharged from any further obligation. Both contentions are clearly unmeritorious.
As to damages, I would have thought that in these egalitarian days of women’s liberation, a modest sum
taking account of the changed status of the fair sex, would have been a fitting solatium. The law,
however, evolves slowly, always a step behind modern thought. It cannot be rushed. The principle on
which the circuit judge assessed damages cannot be faulted; perhaps it is for that very reason that no
formal appeal was lodged against damages. In those circumstances it would be wrong to impeach the
assessment.
I would accordingly dismiss the appeal and affirm the judgment of the court below.

JUDGMENT OF LASSEY J.A.

I agree.

JUDGMENT OF SOWAH J.A.

I also agree.

DECISION
Appeal dismissed.
S. E. K.