ACCRA - A.D 2019
NAOMI DAMPTEY - (Defendant)

DATE:  5TH APRIL, 2019
SUIT NO:  GJ/159/2015

i. Introduction

[1] It is often said that Justice is like a river. Because all rivers are not the same so is justice. Some rivers run off quickly to their ultimate destinations whilst others take time, a long time to travel, winding to their ultimate destination with many twists and turns. The justice for the parties in this case has seen many twists including a change of venue from the Brong Ahafo Region to the Greater Accra and change of Counsel. This case has taken many years to reach its final destination; but today, finally, the end is here. For the parties it is judgment day.


[2] I am of the respectful opinion that the history of this case makes it appropriate to prefix this judgment with the quote by the respected former Chief Justice of this Republic, Wood CJ (as she then was) in the case of AGYEMANG (Substituted by BANAHENE & OTHERS v. ANANE [2013-2014] 1 SCGLR 241 when she stated:

“The oft quoted legal maxim “Justice delayed is justice denied”, coined by the British politician, William Gladstone (1809-1898), is no mere cliché. The right to fair trial in a timely manner is neither a courtesy nor a favour, but a fundamental right. Protracted delays in the administration of justice, impact negatively not only on those who access the courts, such as the victims of crime, accused persons who are acquitted at the end of their trial, parties in civil proceedings and their privies, lawyers who practice before the courts but indeed the entire justice system. The judicial history of this relatively simple family related land matter, which was commenced in the High Court Kumasi, as far back as the 4th of April 1974, provides an insight into the harmful effects of systemic delays in the administration of justice. Regrettably, it has taken forty long years, a whole generation, for this case to finally find its way into this court; the court of last appeal. We hope court business shall always be managed in ways that will not occasion a repeat of this parody of justice”


[3] Sadly, it is clear the Plaintiffs in the instant case did not hear the lamentations of her Ladyship, the former Chief Justice of this Republic. This simple case has taken over a decade since it was first filed at the High Court in Sunyani on February 11, 2009. The matter was transferred shortly after it was filed per the Order of the Chief Justice to the High Court, Accra on June 9, 2009. After the transfer all that the Plaintiffs’ Counsel did was to write letters for adjournments on many occasions on the grounds that he was not available. I note that the Plaintiffs only started coming to Court when the Court on October 22, 2015 threatened to strike out the suit for non-prosecution. I also note that even after the Plaintiffs changed Counsel the new Counsel was also on many occasions absent.


[4] So what is this case about? On February 11, 2009, the Plaintiffs caused their lawyer Kwaku Asomah-Cheremeh of Asomah-Cheremeh & Co Solicitors to issue a writ of summons in the registry of the High Court, Sunyani claiming against the Defendants the following judicial reliefs:-

a. An order of the Honourable Court that the 1st and 2nd Defendants alone cannot apply for Letters of Administration to administer the estate of the deceased, Dr. Emmanuel L. Anaglate who died intestate on 31st March, 2008 as the Plaintiffs are also surviving wives/spouses.

b. An order of the Honourable Court directed at the 3rd Defendant bank not to release any monies belonging to the late Emmanuel L. Anaglate to the 1st and 2nd Defendants alone without the notice and consent of the Plaintiffs and before the estate of the late Emmanuel Anaglate is distributed in accordance with the PNDC L 111.

c. An order of Perpetual Injunction restraining the Defendants, their servants, assigns, etc from in anyway dealing with the estate of the late Emmanuel Anaglate till final determination of the suit.

A 17 paragraph Statement of Claim accompanied the writ of summons.


[5] Upon service of the process on the Defendants, Mr. D.K. Ameley entered appearance for the 1st and 2nd Defendants and filed a statement of defence in September 2015 for them. The 1st and 2nd Defendants denied substantially, all the allegations and claims of the Plaintiffs. The Plaintiffs filed a reply in answer to the statement of defence on December 9, 2015, to rebut the averments contained in the statement of defence and in particular the averment that the Plaintiffs were not married to the late Dr. Anaglate. It was averred by way of a reply that the Plaintiffs were customarily married to the Deceased before his death.


ii. The Issues

[6] At the close of the pleadings, the issues set out in the Application for Directions filed by the Plaintiffs were set down for determination by the Court. The Plaintiff formulated five issues all of which were adopted by the Court. The issues filed were as follows:-

1. Whether or not the Plaintiffs are entitled to the reliefs they seek.

2. Whether or not the Plaintiffs were customarily married to the deceased Dr. Anaglate.

3. Whether or not the Plaintiffs were still wives at the time of death of the deceased.

4. Whether or not the 2nd Defendant was the only wife of the deceased at the time of death?

5. Whether or not the Plaintiffs be joined in the application for letters of administration to administer the estate of the deceased.


iii. Brief facts of the case:

[7] According to the Plaintiffs they were both customarily married to the late Dr. Emmanuel Anaglate of the blessed memory who was a medical doctor and was at a time the Regional Medical Officer of Sunyani Government Hospital and based in Sunyani. They contend that after the demise and the funeral rites of Dr. Anaglate the 1st and 2nd Defendants colluded to clandestinely obtain Letters of Administration without their knowledge and consent. They further contend that after obtaining the Letters of Administration the 1st and 2nd Defendants have refused to distribute the estate of the deceased in accordance with the Intestate Succession Law, PNDCL 111 and have also refused to join them as administrators of the estate. They are by this action praying the Court to join them as lawful wives to be co-administratrix of the estate of Dr. Emmanuel Anaglate deceased.


[8] As can be expected the 3rd Defendant, Barclays Bank (Ghana) Sunyani did not file appearance and also did not file any defence to contest the suit, for after all it is a nominal Defendant. The 1st and 2nd Defendants are however contesting the suit. The 1st Defendant who is the brother and the customary successor of the deceased denied that the deceased during his life time married the two Plaintiffs. He admitted that the deceased had children with the two Plaintiffs but said he did not marry them. The 2nd Defendant also defends the action on the basis that she was the only wife of the deceased during his lifetime. She also conceded that the Deceased had children with the Plaintiffs and told the Court that she has been the primary caregiver of the eldest child of the 1st Plaintiff. In a nutshell it is the case of the 1st and 2nd Defendants that the Plaintiffs cannot be the wives of the late Dr. Emmanuel Anaglate deceased after his death, since he never married them under custom.


iv. The Evidence, the Court’s Evaluation & Analysis: I proceed to determine the issues - Issues 2 & 3

[9] I have chosen to combine issues 2 and 3 and deal with them first because in my opinion the resolution of those issues would ultimately determine the others. Giving evidence on oath in support of the claim for the Plaintiffs, the 1st Plaintiff, Grace Adu said she knows the 2nd Plaintiff as the wife of the late Dr. Anaglate. She told the Court that the Deceased met Dzigbordi Egbenya when he was transferred from Sunyani to Bechem and was also performing extra duties at Goaso. According to her the 2nd Plaintiff was then staying at Goaso. She also said she knows the 1st Defendant as the elder brother of the deceased doctor but he was not present “at my marriage ceremony but he however visited us when I was staying with my husband at New Town Sunyani”. According to Madam Adu the “1st Defendant knows me as the 1st wife of Dr. Anaglate”. According to Madam Adu the 2nd Defendant is the 2nd wife of Dr. Anaglate.


[10] She said at the time Dr. Anaglate was going to marry the 2nd Defendant she had been admitted at a hospital at Nkwabeng and was pregnant with her 2nd child for the late Dr. Anaglate. She also said she only got to know of the marriage of Dr. Anaglate to the 2nd Defendant through a friend called Atta after she was discharged from the hospital. Madam Adu told the Court that she confronted her late husband through a long distance friend of Dr. Anaglate called Laloku but the deceased said the 1st Plaintiff “was not the one who took him to school and can’t stop him from marrying another wife”.


[11] According to the 1st Plaintiff she has two children with the late Dr. Anaglate who she met at a hospital in Sunyani. On the story of her own marriage this is what she said:

“I met him at the Municipal Hospital Sunyani when I was going to seek medical attention. After he took care of me he told me he will bring me some medication at home. He asked where I was staying and came to my house that evening. He proposed love to me and promised to marry me. He visited me at home frequently from that day. I also visited him at his house at the doctor’s quarters, Sunyani. Our relationship started from the day one we met. I fell in love with him too. I became pregnant for him. Doctor went to see my family to perform the knocking ceremony. After I gave birth he went to perform the engagement ceremony. My father was deceased by then and my uncle who succeeded him gave me to Doctor to marry. My mother Naomi Twiwaa was present, Elvis Damoah, my father’s younger brother Kodii and some family members were all present. Doctor came to perform my marriage rites with one Mr. Annor. After the ceremony I came back home with Doctor as I was already staying with Doctor. At the engagement ceremony Doctor presented 2 bottles of Schnapp and monies to my mother, father and brothers. After the death of Doctor I performed the widowhood rites. Dr. never divorced me before he died. He died when he was transferred to Ho. During the funeral rites of Dr. his family told me they will have to provide me with a cloth for me to wear to perform the widowhood rites. The family bought the cloth for me. The family added GH¢50.00 to the cloth. The family told me that cloth was the only cloth I will wear”.


[12] The 1st Plaintiff tendered in support of her evidence, the following exhibits:

i) Exhibit A- A two page letter titled “Dear Head of Family of Madam Afua Adu”and signed by Martin Anaglate the first Defendant;

ii) Exhibit B – The Obituary Notice of the late Dr. Anaglate.


[13] Under cross examination by the 1st and 2nd Defendants’ counsel, Madam Grace Adu stood by her testimony and again reiterated that even though after the deceased married the 2nd Defendant she was forced out of the main house to the boys quarters and later left the house, she insisted that she remained a wife and was never divorced before the deceased passed on.


[14] In further cross-examination in regards to how the marriage itself was performed, this is what the 1st Plaintiff said as captured in the proceedings of 12th June, 2017.

Q: At your alleged marriage ceremony was any of the deceased family present?

A: No, the deceased came with one doctor called Mr. Annor, there was no family member present.


Q: Your alleged family marriage did you take any pictures?

A: There was no picture.


Q: And you see in your witness statement you said that they brought you two bottles of schnapps and money?

A: Yes.


[15] The 1st Plaintiff called Elvis Damoah as a witness. His evidence in so far as the above issues are concerned is that in 1992, Dr. Anaglate came to him to ask for the hand of the 1st Plaintiff, his niece in marriage. He said he told Dr. Anaglate that the father is deceased and so it is the customary successor he should go to. He said he accompanied Dr. Anaglate to the late Yaw Mensah who was also the chief of Adom and said “When we went to Yaw Mensah we went with 1 bottle of Schnapp, we told him of our mission, he agreed and gave us a date to come back to perform the marriage rites. On the day he gave us, it was a Friday I went with Dr. Anaglate. Doctor came with another man also. At the ceremony Dr. Anaglate presented 2 bottles of Schnapp and an amount of money to the family, her mother, father and brothers. After we performed the ceremony Dr. Anaglate came home with his wife. At that time my niece had given birth for Doctor and was already staying with him”.


[16] Under cross examination by the Defendant’s counsel, Mr. Damoah was challenged on the key parts of his testimony on such matters as when the marriage took place and who was present and whether drinks were presented before the marriage etc. He denied that what took place was “nkwasiabuo nsa” and insisted that what took place was a marriage ceremony. Below is a snippet of the cross-examination on February 22, 2017.


“Q: You have told this Court that in 1992 Dr. Anaglate came to see you for the purposes of going to marry Grace Adu that is correct.

A: That is correct.


Q: Can you tell the Court when in 1992 he came to see you.

A: My Lord I was in the house and he came to inform me that he has a child with my niece, Grace Adu and even the child has started walking so I should go with him to see the father of my niece to ask her hand in marriage.


Q: And that was in 1992.

A: My Lord, it has been a long time so I cannot say that it really happened in 1992.


Q: So, when you indicated in paragraph 10 of your Witness Statement that this was in 1992, you were not telling the Court the truth.

A: I was telling the Court the truth.


Q: You know Grace Adu has a first child with Dr. Anaglate.

A: Yes, the first child is a girl and the second child is a boy.


Q: You see, you told this Court that Doctor came to tell you that the child was walking or has started to walk, that is also correct.

A: She had started to walk.


Q: Do you know when the first child, the lady you are talking about was born.

A: My Lord, I cannot tell.


Q: I am putting it to you that the child was born in November 1992.

A: My Lord I did not give birth to her so I do not know the date.


Q: I am suggesting to you that Dr. Anaglate did not come to see you in 1992 to go and ask your niece’s hand in marriage.

A: My Lord, he came to see me.


Q: I am also suggesting to you that because the child was born in 1992 if Dr. Anaglate came to see you at all, he came to see you to go and pay the ‘nkwasiebuo nsa’

A: My Lord he did not tell me that.


Q: If the Court will permit me, how old are you.

A: My Lord, 64 years.


Q: And in your Witness Statement you did not allude to any prior giving of drinks by Dr. Anaglate to the family before the one we are talking about.

A: That is correct, yes there was no prior presentation of drinks before the one he gave to the father.


Q: You see, I suppose you are Akans.

A: Yes my Lord I am a Bono.


Q: You know that when you put a woman in a family way without prior introduction to the family, you are required to give ‘nkwasiebuo nsa’.

A: Some family will accept the ‘nkwasibuo nsa’, others will require you to perform the customary marriage rites.


Q: I am suggesting to you that the alleged ceremony you performed if at all was the ‘nkwasiebuo nsa’

A: My Lord that is not correct.


Q: You told this Court that Dr. Anaglate came to you in the company of one person, is that correct.

A: That is correct.


Q: What is the name of this person?

A: It has been a long time so I cannot recall.


Q: Do you per chance know whether he came from his village.

A: My Lord I cannot tell if he is one of his family members or not but if you are going to ask someone’s hand in marriage, you do not go alone, you go with somebody.


Q: Do you know where the alleged man is currently.

A: My Lord I do not know where he is because he came with Doctor.


Q: And at the alleged ceremony he was also not introduced.

A: My Lord there were a lot of people and introduction will be done, you cannot keep everybody’s name in mind.


Q: We are talking about someone who accompanied Doctor to go and perform a rite and not about any other person.

A: Yes, I know that.


Q: You have told this Court that Grace Adu was the wife of Dr. Anaglate that is correct.

A: Yes, that was the wife and they gave birth to two children before he died.


Q: Do you know that Dr. Anaglate was transferred several times to various hospitals in Ghana before his demise.

A: Yes


Q: And you just indicated that some monies were donated.

A: Yes, my Lord, they gave money and drinks.


Q: You do not know how much.

A: My Lord it has been a long time so I cannot remember.


Q: And the only thing you remember is two bottles of schnapps.

A: I remember.


Q: I put it to you that you have come to this Court to misrepresent to the Court what happened on that day.

A: My Lord, I am giving a true representation of what happened on that day.


Q: And your testimony before this Court is not true.

A: My Lord, I am speaking the whole truth”.


[17] The evidence of the 2nd Plaintiff Dzibordi Egbenya in regards to the combined issues under discussion was that she knows the 1st Plaintiff as the 1st wife of her husband. She also said she knows the 1st Defendant as the brother of Dr. Anaglate and the 2nd Defendant is also known to her as the 2nd wife of the late Dr. Anaglate. She told the Court that “I was lawfully married to Dr. Anaglate. I got married to him under the customary law in the year 2006 after he paid in full my dowry in the presence of the two families. We were declared husband and wife after prayers had been said by the two families who attended the customary marriage”. She further testified that after the marriage they were blessed with a baby girl by name Ama Bernice Anaglate. According to her the child was 15 years in June, 2016. According to the 2nd Plaintiff she was never divorced by the late Dr. Anaglate before he died. She also said “I was still his wife when he died on 31st March 2008 at the Regional Hospital”.


[18] On October 26, 2017 when the 2nd Plaintiff was cross-examined by Counsel for the Defendants, the following evidence was elicited

Q:   You also indicated that after the marriage you were blessed with a baby girl that is correct

A: That is correct


Q: And the girl Bernice Anaglate, how old do you say she is?

A: She is now 16


Q: I am suggesting to you that if you had a child after the marriage she cannot be 16 years I put that you.

A: I gave birth to Bernice before I got married


Q: So your statement that your marriage was celebrated and after you had a child is incorrect

A: I gave birth before he came to perform the traditional rites.


Q: Bernice is now 17years old not 16. I am putting that to you

A: That is not correct. She is 16 years old


Q: You had the baby in the year 2000, I am putting that to you

A: That is not correct it was in 2001


Q: Then where was Dr. Anaglate posted in the year 2001?

A: He was posted to the Bechem Government Hospital


Q: So by your own showing you had the child with him and he married you after 5 odd years that is correct

A: That is correct. I met Dr. Anaglate in Bechem in 1991. And I became pregnant in the year 2000.

So I did not give birth to my daughter in the year 2000.


Q: Where was this marriage celebrated?

A: At Sogakope


Q: You would agree with me that in the year 2006 Dr. Anaglate was the medical doctor of Sunyani Hospital

A: I will not agree with you, he was at Krachi East


Q: You see, Dr. Anaglate was at Dambai Hospital that is Krachi East in the year 2007.

A: That is not correct 2007 he had come to Ho


Q: Your alleged marriage ceremony, were there any family of Dr. Anaglate in attendance

A: Yes


Q: Who were they?

A: Dorothy Anaglate he only came with Dorothy Anaglate although he informed his other brothers but they could not make it


Q: You know Martin Anaglate as the head of the Anaglate family

A: I know Martin Anaglate to be Dr. Anaglate’s brother but I don’t know him as the head of family the head family is Akuvor Anaglate”


[19] The 2nd Plaintiff called Prosper Egbenya as a witness. His evidence was that he was the head of his family. He said Dzigbordi is a family member and his niece. He also said he knows the late Dr. Anaglate who “came to marry my niece”. According to him Dr. Anaglate “married my niece under the traditional marriage in 2006”. He also said he was present at the ceremony and Dr. Anaglate “paid her dowry price in full and after the two families prayed for them they were lawfully declared husband and wife”. He also said the 2nd Plaintiff gave birth to a baby girl after the marriage. He further said Dr. Anaglate never left his niece before he died. Mr. Egbenya was cross-examined by Mr. Ameley, Counsel for the Defendants. The following evidence was elicited. 

“Q: You have told this Court that the 2nd Plaintiff had a baby with Dr. Anaglate?

A: That is correct.


Q: What is the name of the girl, if you know?

A: She is called Bernice Ama Anaglate.


Q: In your Witness Statement, you have said that Dr. Anaglate got married to your niece in 2006 that is correct.

A: That is correct.


Q: Was Bernice Ama Anaglate born before the alleged marriage?

A: Bernice Ama Anaglate was born before the marriage.


Q: Do you know for how long after she delivered before she was allegedly married to Dr. Anaglate?

A: My Lord I do not know the number of years after the birth of Bernice Ama Anaglate before the marriage.


Q: When Dr. Anaglate had a child with your niece at the time that they were not married, did the family do anything about the situation?

A: The family asked him to perform the traditional rites to marry her.


Q: You see, Bernice was delivered five (5) clear years before the alleged marriage.

A: At that time Dr. Anaglate told the family that he was making preparations towards the marriage while they were living in Sunyani and our family was also in Sogakope and that was why it took him such a long time to marry my niece.


Q: You see, I am suggesting to you that there was never a marriage celebrated between Dr. Anaglate and your niece.

A: That is not correct.


Q: Your Witness Statement, was it signed in Sunyani or Kpone?

A: I signed it at Sogakope.


Q: You see, so I suggest to you that the Witness Statement adopted by the Court is not yours.

A: It is my Witness Statement.


Q: You have told this Court that the marriage was celebrated at Sogakope that is what you said.

A: That is correct.


Q: Do you know whether any pictures of the ceremony were taken?

A: The marriage was performed at the village and so no photographs were taken. Her father asked that because he was a farmer at the village, they should come to the village to perform the rites.


Q: Sogakope is the village you are talking about.

A: My Lord it is not Sogakope, it is a village in Sogakope area.


Q: What is the name of that village?

A: Awusakpe.


Q: You have told this Court that you know Martin Anaglate?

A: That is correct.


Q: At the alleged marriage ceremony, was Martin Anaglate present?

A: No, my Lord.


Q: Can you tell whether any family member of Dr. Anaglate attended the ceremony?

A: His sister was present.


Q: Do you know the name of the sister?

A: I have forgotten her name but my niece knows her name.


Q: Do you know whether any other person came with Dr. Anaglate to perform the alleged ceremony.

A: He came with the sister only.


Q: Look, I am putting it to you that neither Dr. Anaglate nor his sister came to you to perform the alleged marriage ceremony.

A: My Lord that is not correct, they came and the rite was performed.


Q: You know where Dr. Anaglate come from?

A: Yes, my Lord.


Q: Where does he come from?

A: Mepe.


Q: You will agree with me that from Mepe to Sogakope is very close, they are in the Volta Region?

A: That is correct.


Q: So, you see, I am suggesting to you that if indeed Dr. wanted to marry your niece, he would have come with a lot of family members because they are close by.

A: That is not correct. Dr. lives in Sunyani, his sister came to meet him at Ashaiman and I also came to meet them at Kpone Barrier and we all continued to Sogakope I know Doctor could not bring relatives from various places.


[20] The Plaintiffs closed their case by contending that they are lawful wives of the deceased Dr.

Anaglate and therefore have the legal right to be administratrix to his estate.


iv. The Defendants’ Case

[21] The 1st and 2nd Defendants testified in their own defences and also called Patience Anaglate as a witness. Mr. Martin Anaglate said he is a retired Headmaster of a School. He presently resides at Badwease. He testified that the late Dr. Emmanuel Anaglate was his brother and a member of the Mepe Family in the Volta Region and he Martin Anaglate is the head of family. He also said he knows the 2nd Defendant as the surviving wife of the late Dr. Anaglate and also know the Plaintiffs. According to him “they are women who had issues with the deceased but were not married to him”.


[22] He further testified that at the time of his death, the deceased had five children, two (2) with the 2nd Defendant, two (2) with the 1st Plaintiff and one (1) with the 2nd Plaintiff. Mr. Martin Anaglate further testified that “after my brother’s death, I was appointed by the family as the customary successor of my brother. The family also nominated the 2nd Defendant and myself as persons to apply to court for the grant of letters of Administration”. A copy of the Letters of Administration granted by the Court was tendered as Exhibit1” at trial. According to Mr. Anaglate before his brother married the 2nd Defendant, Naomi Damptey “the 1st Plaintiff had taken seed for Dr. Anaglate. He was informed about the pregnancy and he accepted responsibility. He took a bottle of schnapps called “Kwasiabuo nsa” to her family in acknowledgment of the pregnancy. After the child was born and weaned, Dr. Anaglate took the child from Grace Adu and put her in the care of his niece at Ashaiman”.


[23] Mr. Anaglate also testified that he was part of the delegation who went to Odumase to perform the customary marriage rites between Dr. Anaglate and Noami Damptey. He said they “took along some money, drinks, clothes and a ring among others, for the ceremony. After the marriage rites were concluded we all marched to the Sunyani Airport for refreshment”. His further evidence was that “when Grace Adu became pregnant the second time, my brother denied responsibility of the pregnancy. However, after being advised by some relatives and friends, he accepted and named the child when the child was born in 1995”. He also said “I know the 2nd Plaintiff also had an issue for my brother but I am not aware of any marriage ceremony between my brother Dr. Anaglate and the 1st and 2nd Plaintiffs”. In a nutshell that was Mr. Anaglate’s evidence in chief.


[24] The testimony of Naomi Damptey, the 2nd Defendant was that she is a teacher by profession and resides at Baatsona in Accra. She said the late Dr. Emmanuel Anaglate was her husband. According to her they met when she was studying at the teacher training college. She said “the late Dr. Anaglate had just come out of his marriage with Patience Ketor when I met him. Dr. Anaglate told me that one of the reason why his first marriage broke down was the fact that their marriage did not bear any issues”. Ms. Damptey said she was married in or about 1992 after knowing the deceased for a while. She said after the late husband had presented drinks to her parents “I travelled with the late Dr. Anaglate to Accra to spend some time there, during which time I was introduced to some of his family members. We returned to Sunyani after the short visit to Accra”.


[25] With regards to how she met the 1st Plaintiff, Ms. Damptey had this to say:

“One evening after our return to Sunyani, a lady, who I later came to know as the 1st Plaintiff; Grace Adu came to the residence of Dr. Anaglate and asked to see him. I informed her that Dr. Anaglate was asleep and suggested that she came back later. I related the event of the previous night to Dr. Anaglate, who then told me that the lady in question, Grace Adu was pregnant for him. He explained to me he had an affair with her after his first marriage broke down and further said that he had accepted responsibility for the pregnancy and was relieved that after his childless first marriage, he would become a father after all. Dr. Anaglate told me that notwithstanding the pregnancy, he did not intend to marry Grace Adu and that he was still committed to marrying me when I successfully complete my education”.


[26] Ms. Damptey further said for the period up to the delivery of the first child of the 1st Plaintiff the deceased brought her to live in his house in Sunyani. According to her “Dr. Anaglate discussed this with me and convinced me that in view of the fact that this was his first child, he needed to monitor Grace Adu at close quarters and to ensure that nothing went wrong with the pregnancy. I did not have any objections to this. For all that period, I visited the house of my late husband and stayed over on several occasions. Grace Adu moved out of the home of the late Dr. Anaglate sometime after she delivered the first issue of my late husband. Dr. Anaglate never, to my knowledge, married Grace Adu”. Ms. Damptey further said the 1st Plaintiff’s daughter Wosime Anaglate came to live with her and Dr. Anaglate when she was three years old. According to her Dr. Anaglate brought her to live with them because the 1st Plaintiff threatened to poison the child after an argument she had with Dr. Anaglate. She said the child still lives with her, the 2nd Defendant.


[27] Ms. Damptey further testified that she was married under customary law by the late Dr. Anaglate in May 1994. The ceremony was attended by members of his family including; Martin Anaglate, Jeff Akator and Patience Anaglate. Her further evidence was that “about a year and a half later, my late husband came to visit me at my parents’ house and informed me that he was travelling to Bodwease to see his brother; Martin Anaglate. Unfortunately, Dr. Anaglate was involved in a motor accident on his way back to Sunyani and was admitted at the Komfo Anokye Teaching Hospital in Kumasi for about three (3) months”.   


[28] Ms. Damptey further testified that “in the course of time, I found pregnancy test results bearing the name of Grace Adu in the glove compartment of my husband’s car. When I confronted him about it, Dr. Anaglate told me that he was not responsible for the pregnancy, as he had had no consortium with Grace Adu around that time. He informed me that Grace Adu claims that she had conceived as a result of a sexual encounter she and Dr. Anaglate had on one occasion when my late husband was drunk. My late husband told me that he would conduct a paternity test as soon as the child was born to ascertain the truth or otherwise of Grace Adu’s claims. He was however dissuaded from undertaking the test and was impressed upon to accept the child, which he did”.


[29] The 2nd Defendant further testified that whilst reading her late husband’s Master’s degree dissertation she came across the name of “Bernice Ama” named as a child of his in the “dedication” section of the academic work. According to her she was surprised that the name appeared as “daughter” because “I knew that name as that of his mother. I asked my late husband about it and he confessed to me that he had fathered a daughter with the 2nd Plaintiff, Dzigbordi Egbenya. He subsequently requested that I accompany him to bring the child to our home to live with us. I declined to grant his request and suggested that he went with his siblings. He informed me subsequently that he had placed the child into the care of his niece; Patience Anaglate”.


[30] Ms. Damptey testified that her late husband never married Dzigbordi Egbenya. She however conceded that she is aware that just before the demise of Dr. Anaglate he co-habited with Ms. Egbenya at his station in Ho.


[31] The further evidence of Ms. Damptey was that “following the death of my late husband, Grace Adu and Dzigbordi Egbenya emerged claiming that they were widows of the late Dr. Anaglate, My late husband’s family however refused to recognize them as widows. According to the family of my late husband, though their late son and brother fathered children with the Plaintiffs, he did not marry them and consequently, they could not hold themselves out as widows. The Plaintiff, nonetheless, with the support of one Vita Anaglate printed and circulated funeral posters for the funeral of my late husband, on which the Plaintiff’s names appeared together with mine as “widows” of the late Dr. Anaglate. Ms. Damptey concluded her evidence by stating that “the family of my late husband did not and have never recognized the Plaintiffs as widows of the late Dr. Anaglate”.


[32] Patience Anaglate is the next witness called by the 1st and 2nd Defendants in their defence and answer to the Plaintiffs’ claim. She said the late Dr. Anaglate was her uncle. According to her “sometime round 1994, my uncle came to my house with a child, about a year and a half old, whom he claimed was his daughter. He left the girl in my care for some time. That was the first child that Grace Adu bore for him”. When the child was about three (3) years of age, my uncle came for her and took her home to his wife, Naomi Damptey. He has since been in the care of Naomi Damptey.


[33] Madam Anaglate further testified that “my uncle called me after some time requesting that I meet someone. He told me that he had a child with this person he wanted me to meet. When I met the person, it was Dzigbordi Egbenya, the 2nd Plaintiff and she had a little girl in her company. The little girl was introduced to me as my uncle’s daughter. She was left in my care by my uncle. At the time, the 2nd Plaintiff was living at Bechem where my uncle had been transferred to. In 2006, my uncle was transferred to Ho in the Volta Region, whilst there, the 2nd Plaintiff left Bechem to live in Ho. I advised my uncle to inform her parents of the fact that their daughter Dzigbordi was staying with him. My uncle later told me that he had done so. I am however not aware of any marriage between the 2nd Plaintiff and my deceased uncle”. That was the end of Madam Anaglate’s evidence. I note that a witness statement was filed in the name of one Jeff Akator but he was not called at trial to testify. In a nutshell, this is the evidence before the court.


The Court’s Opinion and Analysis:

[34] The law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by virtue of sections 10,11 and 12 of the Evidence Act 1975 [NRCD 323). The stated provisions have received judicial blessing as the Supreme Court has pronounced on them in the past to be the nature and standard of proof in civil cases.


[35] One of such decision is the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:

“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.


[36] By the above statement of the law Aikins JSC reiterated the position of Kpegah JA. (as he then was) in ZABRAMA V. SEGBEDZI. [1991] 2GLR 221. See also the Supreme Court case of ACKAH V. PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728 as well.


[37] In proceeding to evaluate the nature of the evidence adduced at the trial I need to caution myself that this suit concerns Dr. Emmanuel Anaglate who is now deceased and is unavailable as a witness in terms of S. 116(e) (iii) of the Evidence Act, 1975 (NRCD 323) and therefore cannot appear to tell his side of the story as to whether he indeed married both Plaintiffs. The settled rule of law is that the evidence involving a deceased person is always received and treated with extreme circumspection and suspicion. The policy rationale is that the deceased, unlike the Biblical Lazarus, cannot come out of his grave to tell his side of the story, to assert any claim or disprove one. Proof must therefore be strict and utterly convincing from the living witnesses. See: MOSES v ANANE (1989-90) 2 GLR 694 C/A as adopted and applied by Brobbey JSC in APEA v ASAMOAH (2003-2004) SCGLR 226 at 241.See also GRACE ASANTEWAAH v. MARK AMANKWAH ADDO [2008] 1 GMJ 2009 @ page 212.


[38] The principal argument of Mr. Ameley Counsel for the 1st and 2nd Defendants per his written legal submission to the Court is that both Plaintiffs were not customarily married to the deceased Dr. Anaglate. Learned Counsel relied on Ollenu J (as he then was) decisions in ASUMAH v KHAIR (1959) GLR 353 and RE CAVEAT by CLARA SACKITEY (1962) 1 GLR 180 to submit that the question of the marriage of the Plaintiffs to the deceased is both a question of law and fact. Counsel referred to what Ollenu J referred to as the essentials of a valid customary marriage as listed by Ollenu J and applied same to the facts before the Court that in the case of the 1st Plaintiff, no marriage took place and that whatever may have taken place as narrated by Madam Grace Adu was the payment of “nkwasiabuo nsa” and not a marriage properly so-called.


[39] Learned Counsel further submitted that even if a marriage ceremony took place same did not meet the requirement of the law “in view of the fact that the union of marriage is one between the families of a man and the woman, the consents of both families are necessary for the purpose of contracting a valid marriage under custom”. Counsel further submitted that such consent ought to be either actual or constructive. In this case Counsel submitted that the 1st Plaintiff said the late Dr. Anaglate is said to have attended the ceremony with one Mr. Annor (friend) but there was no mention of the presence of a family member of the late Dr. Anaglate at the alleged ceremony.


[40] Counsel further submitted that “a friend, no matter how long he or she is kept, cannot metamorphose into a family member by reason of length of years”. Counsel therefore submitted that “on the facts and evidence before the Court, in the absence of the members of Dr. Anaglate’s family attending the alleged ceremony, both the 1st Plaintiff and her uncle, have failed to demonstrate to this Court, actual consent by the family of the late Dr. Anaglate that he should have the 1st Plaintiff to be his wife, as required by law”. Counsel also submitted that the law is that a man’s family presents the drinks to the family of the prospective wife and not the man himself. Counsel relied on the case of DJARBENG v TAGOE (1989-90) 1 GLR 155 wherein Ampiah J (as he then was) stated in an obiter that:

“Customary law required the consent of the two families concerned to any marital relationship between a man and a woman. When a man desired to marry a woman customarily he applied to the woman’s family through his own family for their consent taking to them certain gifts which would vary according to his means. The family of the woman would give their consent by accepting the gifts”


[41] Mr. Ameley further submitted that “the law as espoused in Djarbeng v Tagoe, is unambiguous on the role the family of the man is to play for the purposes of contracting of a valid customary law marriage, i.e. to take the gifts to the family of the woman, on behalf of the man, for the purposes of seeking the consent of the woman’s family”. Counsel continued that the presentation and acceptance of the items are usually done on behalf of the man and the woman by their respective families, and not by themselves because it is the families that establish a union among themselves and not just the man and the woman.


[42] In view of the above Learned Counsel submitted that the account of both the 1st Plaintiff and her uncle that it was Dr. Anaglate who presented the 2 bottles of schnapps and some monies, and not the Dr. Anaglate’s family does not satisfy the requirement of giving consent by the man’s family and therefore it did not meet the requirement of the law. Counsel further submitted that “the requirement of consent which ought to have been given by Dr. Anaglate’s family fails, since same is absent”. The other arguments of Counsel in regards to the 1st Plaintiff are contained in the written submission filed.


[43] I note that similar argument above was made in regards to the 2nd Plaintiff by Mr. Ameley. Counsel submitted that “the 2nd Plaintiff and her witness have both testified that the family of the late Dr. Anaglate were not present at the alleged ceremony with the exception of one Dorothy Anaglate”. Counsel submitted that because the law is clear on the role of family for the purposes of contracting a valid customary law marriage the absence of the family makes the alleged marriage not valid. Counsel submitted that in the case of the 2nd Plaintiff, the alleged marriage took place in Sogakope and the late Dr. Anaglate hails from Mepe. According to Counsel because both towns are in the same region “if Dr. Anaglate wanted to marry the 2nd Plaintiff, he would have gone there with a lot of family members as required by law, especially because the said towns are close”. Mr. Ameley further submitted that based on all of the evidence and the law there was no marriage celebrated between the deceased Dr. Anaglate and the 2nd Plaintiff before his demise. Counsel therefore prayed the Court to dismiss the Plaintiffs claims.


[44] Having laid out the central/essential argument of Counsel, I now proceed to consider the matter and the main issues before the Court, which is whether or not the Plaintiffs are wives of the late Dr. Anaglate. It is not in any serious contention that all the parties agree that the 2nd Defendant, Naomi Damptey was a wife of the late Dr. Anaglate. It is also not disputed that the late Dr. Anaglate had children with the Plaintiffs herein. He had two children with the 1st Plaintiff and a child with the 2nd Plaintiff. What is in issue is are the Plaintiffs wives of the deceased Dr. Anaglate? Since both Plaintiffs say they were married under customary law, it is important to start the analysis with what constitute a valid customary marriage in Ghana?


[45] Ollenu J defined a customary marriage in the case of the YAOTEY v QUAYE [1961] GLR 573 as “a union of the man’s family and the woman’s family. It imposes rights and duties upon the two families. The woman’s family gains the right to perform certain rites in the man’s family in certain eventualities and the man’s family also gains the right to perform certain rites in the woman’s family in certain eventualities.” He opined that whether a customary marriage subsists between two people is a question of law to be determined from the facts. He further set out the essentials of a customary marriage as:

i. Agreement by the parties to live together as man and wife;

ii. Consent of the family of the man that he should have the woman to his wife; that consent may be indicated by the man's family acknowledging the woman as wife of the man; 

iii. Consent of the family of the woman that she should be joined in marriage to the man; that consent is indicated by the acceptance of drink from the man or his family, or merely by the family of the woman acknowledging the man as the husband of the woman; and

iv. Consummation of the marriage, i.e. that the man and the woman are living together in the sight of all the world as man and wife


[46] The above essentials were reiterated in the case of RE CAVEAT BY CLARA SACKITEY: RE MARRIAGE ORDINANCE, CAP 127 [1962] 1 GLR 180 – 183. According to Ollenu J. the above essentials go to the root of any valid customary law marriage and their absence would invalidate such a marriage.


[47] In my respectful opinion, the above Ollenu J position is however not universally endorsed by all academics and Judges. One of such individuals is Oti Adinkrah who in his article titled “Essentials of a Customary Marriage: A New Approach (1980) Vol. XII RGL 40-52” stated that the so-called essentials of a valid customary law marriage are merely the stages, procedures and phases of the customary marriage process and not essential requirements as so described.


[48] In IN RE DICKSON ALIAS APPAH (DECEASED); ABOAGYE AND ANOTHER v. QUAYSON AND ANOTHER [1989-90] 1 GLR 147-149, the Applicants claimed they were married to the deceased, a Fanti, under Akan customary law; both had four children each, all minors. They applied to the court to be joined as co-administratrixes to the estate of the deceased on their own behalf and on behalf of their infant children. The Respondents—the customary successor and a child of the deceased (who had already been granted letters of administration by the court presided over by Hayfron J.)—opposed the application. They contended that the head of family of the deceased considered the applicants as mere concubines and not widows because no relative of the deceased joined in the performance of the alleged marriage ceremonies as Fanti custom demanded.


[49] Omari Sasu J, sitting at the High Court Accra granted the application and relying on the writings of Sarbah stated that:

(1) “A man desiring to marry would apply to the woman’s family for consent, taking to them certain customary gifts, which varied, according to his means.

(2) If the family gave their consent by accepting the gifts that concluded a marriage valid under customary law.

(3) It had never been an essential requirement that a Fanti man marrying a non-Fanti woman should of necessity go with a relative of his or be present at the marriage ceremony before the marriage could be valid”.


His Lordship then stated that “This passage from Sarbah which was originally applicable to Fantis has now been given universal application by our Court of Appeal as the essential requirements of a valid customary marriage in Ghana”: see Asumah v. Khair [1959] G.L.R. 353, C.A.


[50] Also, in ESSILFIE AND ANOTHER v. QUARCOO [1992] 2 GLR 180-194 where the brief facts were that the deceased Theophillia Alaba Codjoe died intestate on 28 November 1986. When the Plaintiffs applied for a grant of letters of administration to administer her estate the Defendant caveated. The Plaintiffs, the mother and head of the immediate family, and sister and customary successor to the deceased person claimed that the estate should devolve on them and not on the Defendant because he was just a concubine and had no interest in the property. The Defendant on the other hand claimed he was the husband of the wife and that the two of them were married under Fanti customary law. He also contended that the two children he had with the deceased, which fact is admitted by the Plaintiffs, are in his custody and assuming even that he had no interest in the estate he is entitled to the grant as father of the said children.


[51] The main issue for determination was whether or not the Defendant was married to the deceased under Fanti customary law? Lutterodt J (as she then was) opined after that:

It appears from the authorities that there are two forms of valid marriages known to our customary law. There is the ordinary case where a man seeks the hand of a woman from her family and with their consent the necessary ceremonies of the payment of drinks, customary fees, dowry, etc. are performed. But then there is this other form of a valid marriage where though the above customary marital rites have not been performed, the parties have consented to live in the eyes of the world as man and wife and their families have consented that they so do and the parties actually live as such man and wife in the eyes of the whole world.


[52] From the above review of the judicial positions it is evident that the essentials outlined by Ollenu J in Yaotey v. Quaye (supra) which seem to be the anchor of the Defendants’ Counsel Submission are not absolute and straightjacketed. To determine whether there is a valid customary marriage depends on the circumstances or facts of each case. Although the Omari Sasu J and Lutterodt J (decisions) above were given by a High Court, a court of co-ordinate jurisdiction, the present court sees no reason why it should not adopt the reasoning since in my view, the statement of law is a sound legal proposition and meets the exigencies of our time. To that extent, it is my holding that the absence of any of the proposed essentials by Ollenu J will not invalidate a marriage.


[53] On the issue of parental or family consent, Sarbah in his book, FANTI CUSTOMARY LAWS wrote: "When there has been a marriage in fact, the validity thereof is presumed, and where the caprice, avarice, or ambition of a parent has not been excited to force on a marriage, it will be found by careful study of the people and examination of the local marriage institution, that marriage entirely rests on the voluntary consent of a man and a woman to live together as man and wife; which intention, desire, consent, or agreement, is further evidenced by their living together as husband and wife."


[54] Kofi Oti Adinkrah in his article ESSENTIALS OF A CUSTOMARY MARRIAGE: A NEW APPROACH [1980] VOL. XII RGL 40—52 affirmed the above position when he stated,

“There could have been no better and more explicit repudiation of parental consent to marriage than the above. If it could be said that even at the close of the nineteenth century when Sarbah wrote, parental consent to marriage was not a legal necessity, it can only be modestly said that it would be even less so in our vastly changed social circumstances today. Today's observable social fact also points to the conclusion that parental consent amounts to no more than the passive ratifications of a relationship— marriage—that is a fait accompli for all intents and purposes. This is often the case if the spouses live in the cities and towns while their parents live in the rural areas. For in that event as many informants narrated during this project, lady and gentleman take each other for husband and wife and then visit their villages to "introduce" their husbands or wives as the case may be, to their respective parents…”


[55] I have relied on the above quotes not in any way, shape or form to conclude that Sarbah’s writings are applicable to every custom in Ghana. This is because I am conscious of the writing of the late Professor and Jurist Kludze JSC who took issue with what in his view appeared to be the trend of judicial extension of customary concepts peculiar to particular customary communities to other minority communities [1].


[56] I also wish to state that my position above is not meant to adopt the position referred to by the learned Professor of Law, Professor Mensa-Bonsu as “akanisation of customary law” when she wrote that:

“Customary law has always been an area of the law with which the Court seem to be ill at ease….Another issue that arises is what may be described as the “Akanasing approach whereby rules of custom are held to exist in non-Akan communities merely because Sarbah wrote about their existence among Fantis. This attitude which has been criticized over a long period by scholars gives cause for concern not only because it shows disrespect for the customs of the non-Akans but also because it creates rules which have never been known by the people who are supposed to practice (sic) them[2]”.


[57] I have only relied on the above stated positions just to demonstrate that there is a common trend now based on academic writings and judicial pronouncements which is acceptable to all customs with regards to what constitute a valid customary marriage in Ghana. I note that though from the evidence the parties herein are Ewes and persons from the Brong Ahafo Region, Counsel chose to rely on the Ollenu’s decision for his submissions. I have therefore gone to the extent of laying out the various positions above just to reiterate that the Ollenu J’s position cannot by any stretch of imagination be said to be the conclusive law when it comes to a valid customary marriage in Ghana in the midst of social change and dynamics in our present dispensation.


[58] Applying the law to the facts and on the evidence in this case, I wish to state that I accept as a fact that in the case of the 1st Plaintiff Dr. Anaglate presented customary drinks to her family in the presence of one Mr. Annor for her hand in marriage. I am of the respectful opinion that the 1st and 2nd Defendants position on the validity of the marriage cannot be justified. Also, I reject the position of the 1st and 2nd Defendants that what was presented was “nkwasiabuo nsa”. That piece of evidence by the 1st Defendant in my opinion is without any basis but pure speculation. Indeed, can it be said that an adult male who was well-educated as a medical doctor needed the approval of his family in order to have his marriage legitimized or made valid? I do not think so. In my respectful opinion if the woman’s family who are to “accept” the drinks and other customary gifts do not participate in the marriage, then it is fatal but not when the man’s family does not participate in the marriage.


[59] My conclusion is based on the whole evidence heard at trial. Whilst I wish to be respectful of the memory of the deceased; in my view it is clear that in dealing with the Plaintiffs the late Dr. Anaglate’s actions were unorthodox and did not follow ordinary acceptable ways of doing things. For instance it is not normal for a Medical Doctor to visit a patient who he attends to at the hospital at home with the idea of delivering medication. According to Madam Grace Adu that was how their relationship started, at the end of the trial that piece of evidence stood unchallenged. Clearly, the deceased doctor even after marrying the 2nd Defendant continued to have other relationships but was not always truthful with Ms. Damptey. The 2nd Plaintiff’s daughter for instance was born after the deceased’s marriage to Ms. Damptey. To my mind, a logical inference can be drawn from his lifestyle to conclude that it is not surprising that he chose not to inform any family member to join him when he went to see the family of the first Plaintiff.


[60] I also reject the evidence of the 2nd Defendant that the late husband said he was not responsible for the 2nd child of Madam Grace Adu and wanted to request a DNA test. In rejecting that piece of evidence, I wish to state that it is not normal, reasonable and indeed plausible for the late Dr. Anaglate to have “the pregnancy test results of Grace Adu in the glove compartment of his vehicle” if indeed he was no longer in a relationship with her at the time the 2nd Defendant says she found the pregnancy test results. It is important to state that only the late Dr. Anaglate knew why he chose to take the first child away from the 1st Plaintiff when she was born, even though from the 2nd Defendant’s evidence it can be deduced that it was because the child was very much loved and cherished by the late Doctor as his first child and not because the 1st Plaintiff threatened to poison her.


[61] In accepting the evidence of Madam Grace Adu and her uncle and thus coming to the conclusion that the 1st Plaintiff was customarily married to Dr. Anaglate, I must be quick to state that it does not mean that Madam Adu’s evidence was without challenges as the cross-examination showed. She indeed prevaricated on some parts of her testimony but I am of the view that on the essential issue of the marriage, she was credible and therefore I am satisfied that her evidence was reasonable. It is important to state that as a Judge I am not required to reject all of a witness’ testimony because I do not believe and accept part of same. A Court can reject part of the evidence proffered and accept part in doing justice to parties in a litigation. In this case I am of the view that the 1st Plaintiff and her witnesses’ evidence on the crucial aspect of the claim are acceptable and I do accept same.


[62] My analysis above is equally applicable to the 2nd Plaintiff. In her case the evidence was that a family member of the deceased, Dorothy Anaglate represented the late Dr. Anaglate to ask for her hand in marriage. Again, the 1st and 2nd Defendants contest same on the ground that the late husband’s family did not participate in the marriage and therefore it either did not take place or was not valid. Taking a cue from my analysis above I again reject both grounds and reiterate my earlier position that the non-participation of the man’s family cannot invalidate the marriage because it has never been the law that an adult male should of necessity go with a relative or his family in order for a marriage ceremony to be valid. On the argument that because the late Dr. Anaglate comes from Mepe and the 2nd Plaintiff comes from Sogakope Dr. Anaglate would have gone there with some of his family members, my view is that the submission is speculative because as stated earlier, Dr. Anaglate had the prerogative as to who he wanted to be present at his marriage. In the case of Madam Egbenya, from the evidence the deceased lived at both Bechem and Ho with her and this evidence was accepted by the Defendants.


[63] It is noteworthy that like the 1st Plaintiff, I am of the view that though parts of the 2nd Plaintiff’s testimony such as the age of her daughter and whether the marriage took place before or after the birth of the child was seriously challenged, the core area being the marriage and who was present was unimpeachable and I accept same. I also note that the Defendants’ own witness Madam Patience Anaglate’s testimony to some extent corroborated the performance of the marriage. Under cross-examination on Thursday, June 7, 2018 this is what Madam Patience Anaglate said as captured in the proceedings of the day.

Q: You have stated in your witness statement that the 2nd Plaintiff was staying with your uncle and you asked your uncle to go and see her parents or family, is that so?

A: Yes, my Lord.


Q: And your uncle later informed you that he had gone to see her parents, is that so?

A: That is correct. The 2nd Plaintiff also informed me that my uncle had seen her parents and offered drinks to them….


Q: I am suggesting to you that your uncle performed the customary rite for the 2nd Plaintiff that was why she was living with her at all materials times in Ho.

A: That is not correct. If a woman is living with a man it does not mean the man has performed rites.


Q: You told the Court a minute ago that your uncle informed you that he had gone to see the parents of 2nd Plaintiff and the 2nd Plaintiff also confirmed it to you that your uncle the late Dr. Anaglate came with drinks or drink to see the parents. Could you tell this Court the significance of the drinks that you say your uncle told you he presented to the parents? 

A: Per our custom if a man give birth with a woman without marrying the woman, the man has to present drinks to the parents to signify that he is the father of the child, that is why my uncle presented the drinks.


Q: You are aware that when the late Dr. Anaglate passed, his brother Martin Anaglate who is the 1st Defendant in this court wrote a letter in the year 2010 inviting all the ex-wives of the late Dr. Anaglate to attend a meeting, are you aware or not?

A: Yes I am aware”.


From the above exchange it is clear that Madam Anaglate after telling the Court what in the Court’s opinion was the true facts later went into a damage control mode because the “true facts” are not in sync with Defendants’ position that the Plaintiffs were not married to the late Dr. Anaglate.


[64] Apart from the above analysis, it is also of particular interest to observe that both ExhibitsA” and “B” support the Plaintiffs claim and seriously undermine the 1st and 2nd Defendants’ defence in this case. ExhibitA” is a letter authored by the 1st Defendant. It is dated January 4, 2010 and addressed as “Dear Head of Family of Madam Afua Adu” and titled “INVITATION”. The relevant part of the latter is as follows

“I write on behalf of the Anaglate Family of Mepe on the authority and order of Togbe Kuvor Ladzagla, Head of the Anaglate Family Togbe Kuvor hereby invites all the below-mentioned persons and your good self in particular, to meet him at Ashiaman, near Tema, on Saturday, January 30, 2010 at the residence of Mr. Dzigbordi Anaglate, brother of Dr. E.L. Anaglate, your late husband. TIME: 9am

It is a fact that since the death of Dr. Anaglate in 2008 we have been unable to settle his affairs to the satisfaction of all of us. This situation must not persist.

Therefore, it is with a view to finally finishing up this matter that Togbe Kuvor wishes to convene this important meeting to which all the interested parties are hereby invited.

To this end, Madam Afua Adu of Sunyani, BA, Madam Naomi Damptey of Accra and Madam Dzigbordi Egbenya of Sogakope, V/R, ex-wives of late Dr. Anaglate, are specially invited for a thorough discussion and consideration of each party’s stake. Inclusive of the discussion will be the education and maintenance of Dr. Anaglate’s children as well as the interest of his ex-wives.

For an elaborate and a conclusive settlement, the Head of Family wishes to advise that each ex –wife comes along with at least one senior member of her family….. We look forward to a fruitful discussion.


Sincerely Yours


Martin Anaglate

Bawjiase – C/R” [Emphasis Mine].


[65] Exhibit B” is the Obituary Notice prepared after the death of Dr. Anaglate. Under the section of Widows, it was stated:

“AFIA Boatengma Anaglate (Grace Adu) 

Naomi Anaglate (Naomi Damptey)

Dzigbordi Anaglate (Dzigbordi Egbenya)”


[66] In my respectful opinion, though the above exhibits speak in plaintive language and admit to no ambiguity, the 1st Defendant who admitted to writing the said letter (Exhibit “a”) attempted to explain the contents away. This is reflected in his evidence to the court as captured in the proceedings of June 6, 2018. In the course of his cross examination by Counsel for the Plaintiff, the following evidence crucial and relevant to the issue under discussion was elicited.

“Q: You have told the court you know the meaning of wife, could you tell us in your own words the meaning of wife.

A: A wife is somebody married from a family and to the man’s family and known to both families


Q: Please take a look at Exhibit “A” what do you have in your hand

A: Invitation


Q: Look at the signature. Is that your signature?

A: Yes my lord


Q: So you are the author of that invitation letter, is that not so?

A: Yes my lord


Q: Could you read paragraph 5 of that letter to this court 

A: Witness reads


Q: As the author of this letter you recognise the Plaintiffs as wives of the late Dr. Anaglate, is that not so?

A: No please my lord.


Q: Could you tell the court the meaning from your own paragraph 5 of the invitation letter, if they were not wives who they are?

A: They are women who had issues with our late brother and are not customarily married from their family into our family.


Q: Does your own invitation letter in any way suggest what you are saying?

A: My lord after the death of our late brother this is the terminology they used by themselves ‘ex-wives’, this is the reason I wrote to them to inform them that they do not belong to our family because they were not customarily married.


Q: Which part of your letter suggest that you wrote to them that they are not customarily married and they do not belong to your family, could you direct the court to any paragraph that say so?

A: My lord that is the reason we had invited them to inform them


Q: At the time you authored this letter you were not the head of family but you wrote on behalf of the head of family

A: I wrote on behalf of the extended family head and not the close family


Q: Tell this court when a member of family dies the obituary of the final funeral rites is prepared by the family, is that not so?

A: Yes my lord


Q: And everything that is put on the obituary notice is double checked and approved by the head of family before it is sent out

A: Yes my lord


Q: And in your community when a man dies it is only his wife that appears on the obituary notice and not concubines

A: Yes my lord


Q: When your brother’s obituary notice or posters were prepared as a former head teacher you read through, Is that not so

A: Yes my lord


Q: So if there had been any mistake it would have come to your notice and corrected, is that not so

A: Yes my lord


Q: You approved your brother notice without any objection

A: No my lord


Q: What did you do then?

A: When we saw that the widow side was wrongly inserted we took our time to rob off the two Plaintiffs who are not his wives known to the family.


Q: Do you as you sit in this court have any evidence backing your assertion you just made

A: My lord the evidence is with our lawyers”


[67] As a general rule, a witness whose evidence on oath is contradictory of a previous statement made by him whether sworn or not is not worthy of credit and his evidence is not worthy of any importance in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradictions. I need to stress, however that, that rule is contingent upon giving such a witness the platform to explain the inconsistencies as provided for in Section76 of the Evidence Act, 1975 (NRCD 323). See also ANKRAH v ANKRAH (1966) GLR 60. In the instant case Counsel for the Plaintiffs gave Mr. Martin Anaglate, the 1st Defendant who is educated and in fact a retired head master to explain the contents of his letter of January 2010 and his evidence. To my mind, there was no air of reality to his explanation because with respect it did not make sense and was indeed not reasonable, plausible and acceptable. Consequently, his evidence that the Plaintiffs are not wives of the deceased Dr. Anaglate is not worthy of any credit. The contents of ExhibitA” speak in plaintive and eloquent manner such that it admits to no ambiguity at all.


[68] The 2nd Defendant was also cross-examined on the obituary notice and this is what transpired during the cross-examination on April 18, 2018.

Q: Obituary notices are prepared by the family of the deceased or head of family, is that not so?

A: That is so my Lord.


Q: So all the information that is contained on that notice is verified, is that not so?

A: My Lord I do not think because it is prepared by the family, it is so or it is true.


Q: The notice will normally contain only the widows and not concubines of the deceased if married, is that not so?

A: That is so my Lord.


Q: Look at Exhibit “B” and look at the widows, will you please mention the names listed there?

A: Afia Boatengma Anaglate (Grace Adu), Naomi Anaglate (Naomi Damptey) and Dzigbordi Anaglate (Dzigbordi Egbenya).


Q: As you sit in this Court, do you have any other obituary notice apart from Exhibit “B” which I have shown to you covering the death of Dr. Emmanuel Anaglate?

A: My Lord I do not have any obituary notice. I have seen this obituary notice, when it was prepared my in-laws came to me that there has been a mistake. According to them, they listed the children of my deceased husband and their mothers and they took the list to be printed but the Printer in connection with another man in the family called Vita Anaglate who is my deceased husband’s half-brother prepared this obituary notice. And so they brought them to my house, the whole lot and used correction fluid to clean the name of Grace Adu and Dzigbordi Egbenya thinking that it will not cause any harm. I advised them to do another one because it can cause problems in the future but because of financial constrains during that time, they advised that it will not do anything so we should use it.


Q: You told the Court that correction fluid was used to clean Grace Adu and Dzigbordi Egbenya’s name, do you have the one that was cleaned in this Court, as part of your evidence.

A. My Lord, I gave one to my lawyer but I do not have one here now.


Q: You see, you are just being economical with the truth, there is only one and one obituary notice and that is Exhibit “B”.

A: That is not true my Lord”.


[65] Again, in my respectful opinion, Ms. Damptey like the 1st Defendant attempted to explain away what was obvious – being the fact that the Plaintiffs are ex-wives of the late Dr. Anaglate. That fact was admitted by the 1st Defendant and I have held so elsewhere in this judgment. As a matter of law, the 1st and 2nd Defendants cannot approbate and reprobate at the same time in the teeth of the contents of both ExhibitsA” and “B”. In IN RE: ASERE STOOL AFFAIRS (2005-2006) SCGLR 637 the law was stated that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct. I therefore do hold that the 1st and 2nd Plaintiffs were customarily married by the late Dr. Anaglate and are therefore his ex-wives as stated by the 1st Defendant.


Conclusion & Disposition:

[70] Based on the law and the evidence heard and my analysis above, I hereby resolve the two main issues (Issues 2 & 3) set out above in favour of the Plaintiffs against the Defendants. Also, based on the above analysis and my resolution of the two main issues, I answer the issue 4 in the negative, that the 2nd Defendant was not the only wife of the deceased Dr. Anaglate.


[71] Consequently, I hold that the Plaintiffs are entitled to the reliefs they seek. I hereby cancel the Letters of Administration (Not with Will Annexed) issued by the Circuit Court, Tema to Naomi Damptey and Martin Anaglate and order that a new Letters of Administration (Not with Will Annexed) be granted to Naomi Damptey, Martin Anaglate, Grace Adu and Dzibordi Egbenya.


[72] I cannot conclude this judgment without expressing my disappointment in Mr. Patrick Justice Ennin, Counsel for the Plaintiffs for his failure to provide the court with his written legal submission even though the suit was adjourned on few occasions to enable him do so. In my respectful opinion, it is important for Barristers to be reminded that they owe a duty to the Profession, the Court and their Clients. He certainly failed in his duty as Counsel in that respect and he deserves my condemnation but I trust that he will not repeat this.


[73] In view of my statement above in regards to how the Plaintiffs have prosecuted this matter and the undue delay caused mainly by the Plaintiffs and their Counsel, even though the Plaintiffs have been successful with the claim, I shall exercise my discretion not to award them any costs against the Defendants. Accordingly ordered.


Cases referred to:

AGYEMANG (Substituted by BANAHENE & OTHERS v. ANANE [2013-2014] 1 SCGLR 241

ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774



MOSES v ANANE (1989-90) 2 GLR 694 C/A

APEA v ASAMOAH (2003-2004) SCGLR 226 at 241

GRACE ASANTEWAAH v. MARK AMANKWAH ADDO [2008] 1 GMJ 2009 @ page 212.

ASUMAH v KHAIR (1959) GLR 353


DJARBENG v TAGOE (1989-90) 1 GLR 155

YAOTEY v QUAYE [1961] GLR 573



 ANKRAH v ANKRAH (1966) GLR 60


[1] Kludze A.K.P, Modern Law of Succession in Ghana (Foris Publications, Dordrecht Holland 1988) @ 150 - 156.

[2] Mensa-Bonsu H.J.AN. ‘Avuugi v Abugri: Some Customary Law Issues [1993-95] Vol XIX Review of Ghana Law 252-262 @252.