ANING

V.
KINGFUL
(1979) JELR 65676 (HC)
HIGH COURT · 4 JUL 1979 · GHANA
·
OTHER CITATIONS

[1980] GLR 404

AMUAH AG. J.
The plaintiff claims against the defendant the sum of ¢10,000 as damages for breach of
promise of marriage. In her statement of claim she averred that the defendant in November
1970 approached her father and her family at Bomfa Ashanti and applied to them for consent
to marry her under custom. The family agreed. He presented a Bible and a ring to her and she
was formally engaged with the consent of her family. Both mutually agreed to have a “church
wedding.” Thereafter they lived as husband and wife for nearly six and a half years in
anticipation of the marriage ceremony. During this period he was not gainfully employed and
she had to feed and maintain him. However, in March 1976, when he secured employment,
he left her premises without a just reason and has since refused to marry her under the
Marriage Ordinance, Cap 127 (1951 Rev.). He has set up a home with a woman by name
Mary Akosua Yeboah and there has been a birth of a child by her to him.

The defendant in his statement of defence averred that he actually married her by performing
the necessary customary rites to her father. He went on in paragraph (3):

“(3) After the customary marriage the defendant and the plaintiff agreed to formalise their
marriage in the future by a church wedding if and when the defendant’s financial position
would allow, as is the practice among many Ghanaians and hence the presentation of the
Bible and ring.”
He averred that he lived together with her in the same house provided by her from 1970 to
March 1976 when he decided to move and stay in his rented quarters as “it was customarily
improper for a man to live in a wife’s house.” He had no intention of breaking off the
marriage and the engagement, and a visit from her was welcome. He averred that from June
1973 when he secured employment he has been maintaining her. He denied that since he left
her he had been living together with a woman by name Mary Akosua Yeboah. He maintained
that she is still his wife and that he is willing to receive her into his arms provided she returns
to him.

The main issue which was set down for trial was whether he was in breach of his
promise to marry her. An action of this nature where the parties are already married under
customary law is not against public policy: see Appiah alias Acheampong v. Acheampong,
High Court, Accra, 27 November 1967, unreported; digested in (1968) C.C. 24.

At the trial the plaintiff deposed that in 1970 he promised in the presence of witnesses to
marry her within three months in a church. Up to the present moment he has not fulfilled his
promise. He did not visit her when she was sick and is now living with another woman. At an
arbitration held he stated that he would not marry her. He has stopped maintaining her since
1977. She further explained that even if his financial position (as he stated) had not improved,
she would not have been aggrieved if he were living in the same house with her and had not
taken to another woman. She denied that she took the ring from his portmanteau.

The defendant on the other hand deposed that he is a liaison officer to one Sam B. Donkor, a
building contractor. He engaged and married the plaintiff under custom in 1970. They there
lived together as husband and wife until April 1976 when there was a misunderstanding
between them because he found himself flirting with another woman. She would not take it
lightly and issued this present writ against him even though at an arbitration he was asked to
pacify her and had done so. He said that since then he has been maintaining her. In December
1978 she told him that he should not step in her house because she was married and that if he
dared visit her she would wound him.

At the close of their evidence it became clear that it was a fact that she was already
married to him under customary law and that the promise to marry was in respect of a
marriage under the Ordinance. Church wedding is not a blessing of a subsisting customary
union. Married couples under customary law can also marry under the Ordinance but, as
stated in the headnote in Coleman v. Shang [1959] G.L.R. 390 at p. 391, C.A.:

“that a person subject to customary law, who marries under the Marriage Ordinance, remains
subject to customary law in all matters save those specifically excluded by the statute and any
other matters which are necessary consequences of the marriage under the Ordinance.”

Thus a man married under the Marriage Ordinance, Cap. 127 must be attached to his wife as
a shell fish to a rock all his life to the exclusion of all others. The new relationship will, as
stated by Kingsley-Nyinah J., as he then was, in Graham v. Graham [1965] G.L.R. 407 at p.
410: “attract certain rights, privileges and obligations for the contracting parties as regards
their children, their property and in the matter of death and divorce.”

By the Evidence Further Amendment Act, 1869 (32 and 33 vict., c. 68), s, 2 “... no plaintiff in
any action for breach of promise of marriage shall recover a verdict unless his or her
testimony shall be corroborated buy some other material evidence in support of such
promise.” Even though she did not call any of the witnesses in whose presence he made the
promise to marry her within three months, paragraph (3) of the statement of defence which
states:

“After the customary marriage the defendant and the plaintiff agreed to formalise their
marriage in the future by a church wedding if and when the defendant’s financial position
would allow, as is the practice among many Ghanaians and hence the presentation of the
Bible and ring.”
Is sufficient to satisfy the section as by this the defendant admitted that he made a promise at
least. A promise on her part may be presumed, from such circumstances as attend the
acceptance of an offer of marriage. Her consent when asked by her parents without her
making any objection, her subsequent reception of the defendant into her house, maintaining
him from 1970 to 1976 when he was not gainfully employed and promoting sexual relations
generally proved that there was a reciprocity constituting the consideration: see Harrison v.
Cage (1988) 5 Mod. 411. There was therefore a binding agreement.

The next question is whether there has been a breach. Assuming that the defendant promised
to perform the “church wedding if and when defendant’s financial position would allow” can
it be inferred from the circumstances that his financial position has improved and that it will
now allow him to marry her? The plaintiff deposed that in March 1976 when the defendant
was employed as a foreman by Mr. S. B. Donkor, a contractor, he moved from her house and
that he is now married to another woman and has had an issue with her. She further said that
when she visited him he told her that he would not marry her. The point she was making was
that she was maintaining him when he was not employed but that immediately he secured
employment in 1976 he left her to rent a room in which he is now staying with his wife. She
therefore established a prima facie case that his financial position has improved, that he is in
a position to marry her but that he is refusing to do so.

A promise to marry generally is in law a promise to marry within a reasonable time. The
defendant apart from disclosing that he was maintaining her and that on an occasion in
December 1978 she asked him not to step in her house, did not give any particulars about his
financial inability to marry. It follows that on the preponderance of evidence, the plaintiff has
succeeded in proving that his financial position allows him to marry her but that he is
refusing to do so without any just cause.

The next question is, did he promise to marry her within three months as she alleged? In this
case the special promise to marry at a particular time must be proved in evidence. Since she
did not call witnesses before whom the promise was made, it is necessary that, her testimony

is corroborated by some other material evidence in support of such evidence. The falsity
of evidence will be held to constitute corroboration. Lies of a certain type told in the evidence
of the defendant should have a similar effect: see Cross on Evidence 3rd ed.), p. 179. In
cross-examining her, he made a case that he had not promised to marry her in church, but
then he averred in paragraph (3) of his statement of defence that he made, such a promise.

Further cross-examination of the defendant provides affirmative proof of the untruth of his
denials:
“Q. I put it to you that if you decide to make a church wedding you present Bible and ring?
A. That is correct.
Q. It is a fact that after your marriage customarily you promised to make a church wedding?
A. It was my intention to make a church wedding because we are Christians, Methodists.
Q. I suggest to you that you promised to do it within three months?
A. I did not say so.
Q. Did you indicate to her when you were to make the church wedding?
A. No ...
Q. Did you promise to make a church wedding?
A. I did not promise but it was my intention.
Q. Is it not true that both of you agreed to finalise the marriage with a church wedding?
A. We did not discuss but it was my intention I would make church wedding after my
financial position has improved.
Q. How long have you been in full employment?
A. About a year ago.
Q. This statement of the defendant was prepared by a lawyer?
A. It was prepared by me.
Q. [Paragraph (3) of the statement of defence read] Did you agree.
A. It is not correct. We did not agree. It is a mistake.”
The untruth of his denials confirm the evidence against him and to implicate him in the
allegations made against him. His lies furnished corroboration against him. After denying
vehemently the averment she made in paragraph (9) of her statement of claim that he has
taken to another woman, in court and on oath, he admitted her version on the issue.

I believe her and hold that he promised to marry her within three months after engagement
but failed to fulfil his promise, that he is in a position to marry her, and that he is refusing to
do so. I am satisfied on the preponderance of evidence that his financial position will allow
such marriage. If she is not compromising at this stage of the union and has been demanding
a church wedding then he is to be blamed. In Afrifa v. Class-Peter [1975] 1 G.L.R. 359 at p.
360, C.A. it was held, as stated in the headnote, that:

“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 plead this with particularly but he failed to do that.”
This holding applies to this case. I hold him in breach of his promise to marry within three
months.
As to damages, I will take into account the fact that he is now in gainful employment and the
injury to her feelings. As she said, the promise to marry under the Ordinance was made
before and simultaneously with the performance of the marriage under custom and it does
seem to me that it is marriage under the Ordinance that she is yearning for. Once marriage
under the Ordinance has failed it is not likely that the customary marriage will be pursued by
both of them. At least from the look of things he does not intend to take her as his wife any

more. In the circumstances, I will award against him ¢1,500 damages. I would have
ordered that the ring should be returned to him but in this case since he wrongfully refuses to
marry, he cannot demand its return: see Cohen v. Sellar [1926] 1 K.B. 536.

I will also not order her to return the other properties with her. Costs against the defendant
shall be ¢200.

APPEARANCES
E. OKYERE-DARKO FOR THE PLAINTIFF; THE DEFENDANT IN
PERSON.