OPOKUA VRS OWUISU - ANSAH (A2/32/24) [2023] GHADC 771 (19 December 2023)

19/12/24 IN THE DISTRICT MAGISTRATE COURT HELD AT AKROPONG ASHANTI ON MONDAY THE 19TH DAY OF DECEMBER, 2023. BEFORE HIS WORSHIP ROCKSON A. K. KPODO ESQ. DISTRICT COURT MAGISTRATE. --------------------------------------------------------------------------------------- SUIT NO. A2/32/24 AGNES OPOKUA PLAINTIFF VRS. KOFI OWUISU - ANSAH **** DEFENDANT --------------------------------------------------------------------------------------- JUDGMENT: Plaintiff is seeking an order the honorable court: 1. To compel the defendant who is a teacher at Kumasi Girls’ Senior High School to pay cash the sum of GHC70,000.00, being compensation for breach of promise to marry. 2. Cost. Plaintiff’s claim as per her witness statement is that she has been in a relationship with the defendant for the past 4 years and that she moved into defendant’s home to cohabit with him because he promised to marry her and that one day, without any provocation whatsoever, defendant sacked her form his house. The plaintiff added that after she did all she could to let defendant rescind his decision in order to accept her back, she reported the conduct of the defendant to his Reverend Father but all attempts by the priest to let defendant rescind his decision was unsuccessful and that after she rendered several apologies to the defendant through her brother, Stephen Awuah Nyarko but all to no avail. Plaintiff concluded that she knows that all defendant is doing is a deliberate attempt to put all blames on her in order to forcibly push her away from the relationship. PW1 added that about four (4) years ago, plaintiff and defendant visited him in Kumasi and plaintiff introduced defendant to him as her boyfriend whom she would get married to very soon and that one day when he visited her sister, plaintiff, he realized that she had moved to live with defendant in his house. PW1 added that as the parties realized that they did they wrong thing by living together without marriage they pleaded with him to forgive them for not doing the right thing and he accepted their apology and he advised them to take all necessary steps to get married as early as possible but to his surprise defendant called him on the 23rd day of August, 2023, to inform him that he has severed the relationship with plaintiff as plaintiff is not caring enough because she made him pound fufu for him while he was sick. PW1 concluded that he did all he could to make defendant rescind his decision to accept plaintiff back into the relationship but all proved futile. In his defense as per his witness statement defendant says that he cohabited with plaintiff for three (3) years without a child and that it is not true that he sacked plaintiff from his house as she claims. Defendant added that during their relationship, plaintiff has behaved in an unfaithful manner by telling the registrar of the court of Appeal, Kumasi that he is her brother when they visited him in his office and that in addition to that plaintiff asked her to help her son to pound fufu while he, plaintiff was sick and could not do anything. According to defendant, upon all the treatments plaintiff meted out to him he sold his car at the cost of GHC8000 and gave GHC3000 to plaintiff to rent a shop at the race course, Kumasi but after that he was sick and put some money on the table for plaintiff to cook and plaintiff refused to use the money to cook for him for four (4) days, knowing very well that he needed to eat in order to take his medicines, with the excuse that she cannot continue to do the slave job as she is not yet married to defendant. Defendant added that plaintiff later told him that her father has asked her to vacate plaintiff’s house so his brother was coming to pack all her belongings, while plaintiff was aware that his wife has filed a suit against him at the court for alimony. Defendant concluded that it was plaintiff who abandoned the relationship and rather blaming him for sacking her from his house, hence she does not merit any compensation from him. Upon hearing the parties herein, the court hereby identifies the following issues for determination: 1. Whether or not it was plaintiff who abandoned the relationship as alleged by defendant? 2. Whether or not it was defendant who caused plaintiff to leave his home as alleged by plaintiff? 3. Whether or not plaintiff is entitled to her claims? Plaintiff’s case is that defendant breached the promised he made to marry he after cohabiting with her for four (4) years, with any provocation whatsoever by exhibiting unfriendly behaviors which forced her to leave his home. Defendant, on his part, denied the allegations made by the plaintiff and says that it was plaintiff who abandoned the relationship after maltreating her by starving him for four days, exhibiting unfaithful behaviors, forcing him to pound fufu while he was sick and not caring for her when she knows very well that he has to divorce his wife properly before he could marry her, though he has divorced his wife customarily. From the totality of evidence before this court, the parties have cohabited for about four (4) years and they tried to have a baby during the period their cohabitation but this has not been possible due to the inability of defendant to impregnate plaintiff for medical reasons. According to Halsbury, in his book entitled the Laws of England, a contract to marry is a contract between a man and a woman by which they mutually promised to marry one another, the promise of each being the consideration for the promise of the other. In pages 768 – 769 of volume 19 of the laws of England, Halsbury stated that: It is not necessary that the contract to marry should be evident by writing, nor even that the mutual promises should be made by express words. The conduct of the parties such as the giving of rings, the fixing of a date for marriage or their behavior towards each other, may justify an inference that they have mutually promised to marry, and in the case of the woman, it is sufficient to show that she acted in such a way as to indicate her consent to, the man’s promises which an action can be founded unless it is communicated to the other party by the authority of the declarant. From the above it is clear that the defendant has gone beyond the definition in the above citation to take plaintiff to her brother to declare his intentions to marry plaintiff within the shortest possible time. In addition to the above, defendant has gone further to ask plaintiff to cohabit with him in his home, without the consent of plaintiff’s. Again, pages 768 – 769 of volume 19 (supra) says: If one of the parties to a contract to marry is, to the knowledge of the other party, already married, the contract is void as being contrary to public policy, and will not support an action for damages, at the suit of either party, for not fulfilling the contract even after the death of the existing wife or husband. From the above it is clear that plaintiff is entitled to damages. This is because there is overwhelming evidence before this court that at the time defendant met plaintiff, he told him that he has divorced his wife customarily, hence plaintiff believed him and move into his home and cohabited with him, not knowing that defendant has not yet done the ordinance divorce. In fact, the only remedy for breach of a contract to marry is an action for damages. Either the man or the woman may sue for the breach. According to page 20 of the second edition of Bromley Family Law, the breach may take the form of: a. Nonperformance when the time of performance has arrived or b. An anticipatory breach before that time. The anticipatory breach before the time is in two forms, namely; i. When before the contractual date for the performance has arrived, defendant repudiates his contractual obligation and makes it clear that he has no intention of carrying it out when that time arrives. The repudiation give the plaintiff immediate right of action and he needs not wait for the contractual time for the performance before he sues. ii. If the defendant by his own act puts it out of his power to perform the contract, for by doing so he just as effectively repudiates the contract if he had expressly done so in words. From the above the court is of the view that defendant’s behavior during the cohabitation falls within the second form of the anticipatory breach. This is because defendant has told this court that he has decided not to continue with the contract to marry plaintiff because she has exhibited acts of unfaithfulness and even forces him to pound fufu for him when he fell sick. Again, plaintiff has been able to show material evidence by attaching medical reports to her claim to prove that he has attempted to get pregnant but it did not work and also called his brother as witness to testify to this court that defendant has come to see him and promised to marry plaintiff in the shortest possible time and also proved that he pleaded on behalf of plaintiff for defendant to accept him back but to no avail, which is in consonance with the provisions outlined on page 770 of the 3rd edition of vol. 19 of the Laws of England, to the effect that: In order to maintain an action for breach of promise to marry it is necessary that the testimony of the plaintiff should be corroborated by other material evidence in support of the defendant’s promise…… In fact, defendant’s only defense to the action against him is that plaintiff has been unfaithful which falls under paragraph 1231 of page 771 of vol. 19 of Halsbury’s Laws of England (supra), sub-titled, Bad character, to the effect that: ‘When the plaintiff is a woman, the fact of her having been unchaste, whether before or after the making of the contract, constitutes a good defense, provided in the case of previous unchastity, that the defendant was not aware of it at the time of his promise.’ But defendant has not been able to prove that plaintiff has been unfaithful or unchaste. Defendant claimed that a certain man has been calling plaintiff on phone. Plaintiff admitted the allegation and added that she was the one who told defendant about it and that if there was any amorous relationship between, she and the man, he wouldn’t have told defendant about it, hence defendant has no defense whatsoever. Again, another defense of defendant is that plaintiff left his home without his consent, hence she is not entitled to any damages but the court is of the view from the totality of evidence adduced so far that plaintiff has every right to pack out of defendant’s home on grounds that: a. plaintiff went to the house and met a lady in defendant room and defendant admitted same during cross examination. b. Defendant has failed to submit himself to medical examination for his sperm counts to improve so they would be able to have a child. c. Defendant has failed to see plaintiff’s parents in order to perform the necessary customary rites. Thus, plaintiff has been able to adduce sufficient evidence in consonance with section 11 (1) of the evidence decree, NRCD 323 OF 1975, to the effect that: ‘For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue’. The court is therefore of the considered view from the totality of evidence adduced so far that plaintiff has been able to prove on the preponderance of probabilities that she is entitled to damages from defendant, as he has indeed breached the promise to marry her. The court hereby enters judgment for plaintiff for defendant to compensate plaintiff in the sum of GHC30000 instead of the GHC70000 she claimed. This is because plaintiff has indicated her intention to reduce the damages to GHC30000 when the court proposed a reconciliation between the parties. No orders as to cost. ………………………………….. H/W ROCKSON A. K. KPODO