JM Montimbi Siwo v P Amesi Siwo ((1970 HP/D No. 4)) [1970] ZMHC 7 (21 July 1970)

JM MONTIMBI SIWO v P AMESI SIWO (1970) ZR 79 (HC) HIGH COURT DOYLE CJ 40 21st JULY 1970 (1970 HP/D No. 4) Flynote Family law - Marriage - Validity - Marriage contracted without Registrar's certificate or special licence as required by Marriage Ordinance, s. 32 (2) - Party ignorant of requirement - Whether marriage null and void. 45 DOYLE CJ Headnote The petitioner and respondent agreed to marry and a lobola of K120 was paid to the girl's parents. However no mention was made of a customary marriage and no customary ceremony took place. The marriage took place in church in the manner and according to church rites. There 5 was no certificate or licence issued and the petitioner did not know it was necessary. The issue was whether this marriage was null and void since it was entered into in contravention of the Marriage Ordinance. Held: 1970 ZR p80 (i) Under s.32 (2) of the Marriage Ordinance a marriage is null and 10 void if both parties acquiesce in its solemnisation without the Registrar's certificate or licence. Where one of the parties or if both parties are ignorant of the requirement, then the marriage is valid. (ii) In the instant case since the petitioner was ignorant of the 15 omission, her marriage was not invalidated by the Marriage Ordinance. Legislation referred to: Marriage Ordinance (Cap. 132), s.32 (2). Matrimonial Causes Act, 1965, s. 39. 20 Judgment Doyle CJ: This is a petition under s. 39 of the Matrimonial Causes Act, 1965, seeking a declaration that a marriage performed on 17th October, 1965, between the petitioner and the first respondent is a valid marriage. The petition has arisen following previous proceedings brought by the petitioner against the respondent in the subordinate court. In that 25 court, the magistrate gave the petitioner maintenance order, despite the fact that the respondent claimed that his marriage was a customary marriage. On appeal to the High Court that decision was set aside, the High Court ruling that as the validity of the marriage was in question the subordinate court was without jurisdiction. In consequence these 30 proceedings have been brought by the wife so that the validity or otherwise of the marriage may be determined. The evidence given by the petitioner was that she and the first respondent decided to marry. She claims that a lobola of K120 was paid to her parents, but no mention was made of a customary marriage and no 35 customary ceremony took place apart from the payment of the lobola. She is a religious girl and comes from a religious family, and she wished to be married in church She thought that all that was necessary was going to the Minister, registering with him and arranging with him for the marriage. She says that this was done and that three weeks before the marriage on 40 17th October an announcement of its happening was made in church and the banns were announced. She says that at no time was customary marriage considered between herself and the respondent. Her mother gave evidence as well. She agreed that lobola was paid, and possibly chimalo as well. The latter is a preliminary payment which in African custom is made 45 by the prospective groom in order that he may make a first approach to 1970 ZR p81 DOYLE CJ his prospective wife. She also says that no question of a customary marriage arose, and that if there had been a customary marriage it would have included the normal celebration and formal handing - over of the girl by either a close friend or relative who would lead her at the conclusion of the feast to the bridegroom's house. Another witness for the petitioner was 5 the Rev. Wakunguma, a licensed marriage officer, who said that the Rev. Siame who performed the ceremony was also a licensed marriage officer. The Rev. Siame has since died. The marriage was performed in a licensed church, and so far as the Rev. Wakunguma was concerned, it was performed in the way that any valid marriage would be performed. A 10 certificate referring to the Marriage Ordinance was signed by the parties to the marriage and by two witnesses to the marriage. He did not know whether any preliminaries, such as marriage certificate or special licence, had been undertaken. Subsequently, when the Rev. Siame died, he took over the church and in the course of going through the church papers in 15 1966 he came across the signed marriage certificate. Knowing it should be registered, he took it to the Boma for transmission to the Registrar-General. Subsequently in 1968 the petitioner came to him because trouble had arisen in the marriage, and wanted a copy of the marriage certificate. She enlisted the help of Rev. Wakunguma, and he went to the Registrar - General, 20 but they found no sign of the marriage certificate. He then went to the Boma and instituted a search, and after an exhaustive search the marriage certificate was found in the Boma files. He took the marriage certificate to the Registrar -General and had it registered. The respondent's evidence was that at no time had he intended to 25 be married other than by customary law. He had mentioned this to the petitioner before the marriage. He went through the ceremony only on a religious basis. He had no intention of binding himself under the Marriage Ordinance and, according to him, the petitioner only wanted a church marriage because it was fashionable and because it gave her 30 the opportunity to display her trousseau. He admitted that on 17th October, although lobola and chimalo had been paid, he was not up to that day married, prior to the ceremony in church. He agreed that, when he came away from church, he thought he was married. He was in some difficulty about the fact that no customary ceremony had taken 35 place other than the payment above mentioned, but eventually he said that the mere fact of living together, together with the payment of money, constituted a valid customary marriage. He agreed that ordinarily in a customary marriage the girl was led to the bridegroom's house. This, of course, never occurred. He had a friend, Mr Lichilano, who 40 had been brought up with him. Mr Lichilano said that he discussed many subjects with the respondent, including that of marriage. The respondent's attitude, according to this witness, was that he longed for the days of yore, the days of his grandparents, when a man could have many wives, and lived a rollicking life. He admitted however that 45 present day conditions produced two difficulties in the way of living this sort of life. First of all the expense was too great, and secondly modern girls did not take kindly to this attitude on the parts of their 1970 ZR p82 DOYLE CJ husbands. This witness also said that the respondent had told him that he was not going to the Boma because he did not want to be bound by the Marriage Ordinance. In fact there was not a great conflict in the evidence given before 5 me. Where there is such conflict I prefer the evidence on behalf of the petitioner. I am satisfied that a marriage took place on 17th October, 1965, between the petitioner and the respondent, that it was performed by a marriage officer in a licensed church after banns and according to the rites of the church concerned. I am also satisfied that there was no 10 marriage certificate or registration certificate issued in respect of this marriage. I have some doubt if either of the parties in this marriage had in October, 1965, the somewhat detailed knowledge of the Marriage Ordinance which they now appear to have acquired. I am fully satisfied that the petitioner did not know that a marriage certificate from the 15 Registrar was necessary or that one could be obtained. I find that her attitude was that she wished to be married in church, her parents wished it and she thought that such a marriage was a valid marriage. She thought that it was only necessary to arrange the marriage with the Minister and that this complied with the law. She at no time contemplated a 20 customary marriage. I consider that the husband's attitude was that he was also getting married in church. He was a Christian, but not practising. So far as he was concerned he would have preferred to have been married by customary law, but of necessity he accepted the church marriage. He thought that 25 the consequences of such a marriage would be no more than those incurred by a customary marriage. I am satisfied that although he knew that arrangements should be made at the Boma, he probably did not fully appreciate the effect and necessity of a registrar's certificate. He wasn't interested in completing the formalities. Possibly the somewhat cavalier 30 attitude adopted by him was partly due to the fact that he was accustomed to seeing friends married in church, and until November, 1963, this had not really affected them because the Marriage Ordinance did not apply to Africans. In November, 1963, the Marriage Ordinance was amended, and therefore it did apply to Africans and fully bound them. 35 The question therefore is whether this marriage entered into by the parties in contravention of the Marriage Ordinance is a legal and valid marriage. As I have said, I have no doubt that the petitioner herself was an innocent party in such a marriage. The respondent was a reluctant participant and if he had chosen was in a position to fully appraise 40 himself of the necessary formalities of such a marriage. He deliberately did not do so. Section 32 (2) of the Marriage Ordinance reads as follows: "32 (2): A marriage shall be null and void if both parties knowingly and wilfully acquiesce in its solemnisation 45 .... (c) without the Registrar's certificate of notice or special licence having been duly issued:" 1970 ZR p83 DOYLE CJ This section clearly states that if both parties knowingly and willingly enter into a marriage with no Registrar's certificate or licence, that marriage is void. It equally follows that if one of the parties is ignorant, or both parties are ignorant of this omission, then the marriage is valid. There are numerous cases in English law to this effect. Mr Chaane 5 has quoted to me a Ghana case, Setse v Setse, which appears to be contrary to that fact. I do not know whether the law of Ghana has a section in its Marriage Ordinance equivalent to s. 32 (2), but I cannot see how, if it has, that decision could be correct. Mr Chaane has argued vigorously that the law is not really appropriate to marriages between Africans 10 and that therefore the English cases should not be applied. He may be right in the first part of this proposition, but it is an argument that must be addressed to the Legislature and not to this court. The Legislature made this law, not the courts. I am satisfied, as I have said, that the petitioner did not know that no marriage certificate had been obtained, 15 and she did not know it was necessary. She went through a form of marriage before witnesses which clearly would have been valid at common law. I am satisfied therefore that her marriage is not invalidated by the Marriage Ordinance. I therefore declare that this is a valid marriage. I may say that I am happy to have come to this conclusion. If I 20 had come to the conclusion that the marriage was void and that the respondent and his witness had signed a certificate, which clearly referred to the Marriage Ordinance, knowing that this was so, I would have had to send the papers to the Director of Public Prosecutions for consideration whether or not a criminal offence had been committed by them under 25 s. 38 of the Marriage Ordinance. In conclusion, I hope that, now that the marriage has been declared valid, it will be possible for the parties of this marriage to be reconciled. Whether or not this is possible I do not know. However, if in fact reconciliation is not possible, there are, in the course of time, other steps 30 that can be taken. Costs to be paid by respondent. Marriage declared valid