IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2016
BEATRICE ZIGA - (Plaintiff)
JOHN KWAKU ZIGAH CAVEATOR - (Defendant)
DATE: 12TH DECEMBER, 2016
SUIT NO: E4/109/2015
JUDGES: PATRICK BAAYEV JUSTICE OF THE HIGH COURT
LAWYERS: GODWIN KPORBLE FOR APPLICANT
The applicant, Beatrice Zigah filed this motion Ex-parte for the grant of Letters of Administration in respect of the estate of Simon Zigah. In the supporting affidavit the applicant deposed that she is the widow of Simon Zigah who died on 28/06/2011 at Korlebu Teaching Hospital and was buried at Dzodze on 2/7/2011. She also deposed that at the time of his death the late Simon Zigah was survived by a widow (applicant) and two children, Ruth Zigah 15 years old and Zigah Da Akpe, 12 years old. She also stated that the family of Simon Zigah accused her of killing her husband for which reason had refused to co-operate with her to obtain the letters of administration.
On 6th June, 2015 I granted the Letters of Administration to the applicant subject to 21 days' notice to be posted on the High Court notice board, Ho, the deceased family house at Dzodze and on John Kwaku Zigah who was said to be residing at Sunyani (the caveator herein).
On 30th June, 2015, John Kwaku Zigah entered a caveat and also filed an affidavit of interest. The applicant also filed an affidavit in opposition. After a careful study of the caveator's affidavit of interest and the applicant's affidavit in opposition, it became clear that he only ground for the caveat is that the applicant was not the deceased's wife in that they were not legally married hence the letters of administration ought not be granted her. In view of this I ordered that evidence be taken to proof whether or not the applicant was married to the late Simon Zigah during his life time.
The applicant gave evidence by herself and called two witnesses. These are Mrs. Josephine Garnet (Pwl) and Victor Ganusah (Pw2).
On his part the caveator appointed Rev. David Adegbedzi as his attorney and he gave evidence on behalf of the caveator and also called one witness (Dwl) Emmanuel Kofi Amanyo.
The applicant testified that she and the late Simon Zigah got married at Mr. Ganusah's house on 16th October 1999 in Ho and have two issues between; Ruth Zigah who is 15 years old and Da Akpa Zigah 12 years old. She said the late Simon Zigah was a teacher and was initially stationed at Ho Batume junction but later got transferred to Asankragwa Nkwantaman in the Western Region. Applicant said he did not follow the deceased to his new station but one day he called to tell her that he was ill and because of the illness he had moved to live with his brother at Sunyani. That one day he called to tell her that he was getting better and had moved to Accra so she (applicant) should bring the children to Accra for him to see them because he missed them. She therefore took the children to the deceased's sister's house in Accra where the deceased was residing. This was 2010. According to applicant for about a year after the visit there was no communication between them, apparently the deceased had returned to his station where there was no mobile network so she could not call him. She said the deceased got released to Western Region from Batume Junction in 2008. That before then he was drinking heavily and was also suffering from diabetes.
Eventually the deceased called one day in May 2011 and told her that he had been indisposed and had been admitted at Korlebu teaching Hospital. He also told her that he was taking his salary from Unity Rural Bank so she should go there and take GH¢70.00 which she did. Applicant said that was the last time they spoke before he died. That the deceased was buried within a week of his death and that she could not attend the funeral because the people who were to accompany her to the funeral were not available coupled with the short notice given. She however went to greet the family after the burial. Applicant tendered in evidence the deceased's personal record form from the Ghana Education Service. The applicant said during the marriage ceremony the deceased's family was represented by Mr. Emmanuel Amanyo, one Vera Adegbedzi, Mr. Nuworsu and others she could not remember. On her side the family was represented by Mr. Ganusah and his wife, her sisters Rebecca, Esi Atsupui and others. That the deceased's family presented six half pieces of cloth out of which 2 pieces were given to her mother and father, a brief case containing other items like foot wear, headgears ( scarf), mat, a basin and cash the sum of ¢150,000.00. (GH¢15.00).
On her part (pwl) Josephine Garnet told the court that the applicant is her sister and that she knew the deceased before his death. She said applicant and the deceased got married on 16th October 1999 at Ho Depot Down. She said on the side of applicant's family the people present were herself, her late sister called Rebecca Dagadu, Cathrine Dagadu, their late father Kojo Dagadu, Mr. Ganusah Robert Adzartor, Daniel Dagadu and others.
On the side of the deceased, the people who accompanied him were Mr. Nuwornu, Mr. Amanyo, Mr.
Adegbedzi and two ladies. That the marriage was a traditional one.
The last witness for the applicant is Victor Ganusah (Pw2). He told the court that the applicant's father is his uncle and that he also knew the deceased as the husband of the applicant. Mr. Ganusah said sometime in 1999, the applicant's father Kojo Dagadu who was his uncle came to him at Depot Down where he was living and told him (Pw2) that the deceased wanted to marry the applicant but he did not have enough space in his house to accommodate the visitors for the marriage ceremony. That Kojo Dagadu therefore asked him (Pw2) to seek permission from his (Pw2) land lord so that the marriage ceremony could take place there. Pw2 said his land lord was not living in the house but he sought permission from him and he agreed that they could hold ceremony there. That on 16/10/99 Simon Zigah and his people came to his house for the marriage ceremony. The applicant's father and his relations also came. Pw2 said the people he can remember who came with Simon Zigah were Mr. Adegbedzi (who was then a teacher and lived at Somey), Mr. Amanyo (Dwl), Cecilia, Kotsitse and others. That on applicant's side were his uncle Kojo Dagadu, Rudolf Dagadu, Kofi Dagadu, Rebecca Dagadu, Esi Dagadu, Atsupui Dagadu and many others. Pw2 said the items presented included 6 bottles of gin, Palm wine (which was replaced with money), 12 tubers of yam, one ram (which was also replaced with money), one portmanteau which contained cloths, head scarfs, beads and other women's items. He said the caveator; (John Kwaku Zigah) was not present at the marriage ceremony.
Pw2 testified that the couple had two issues before Simon Zigah died. He said one day the applicant came to inform him that her husband had died and she came to inform him (Pw2) to accompany her to the funeral but he had travelled. That by the time applicant got him the husband had already been buried so she could not go. According to Pw2 she asked applicant why she did not go to the funeral and she told him that before the death there was some misunderstanding between her and the husband's family so she needed to go to the funeral with him (Pw2) who is her father by custom. That if she went alone, she did not know what would have happened. That later he and the applicant went to greet the family and applicant also went to greet the deceased's mother and sister in Accra.
On his part the caveator's Attorney Rev. David Adegbedzi who gave evidence for the caveator told the court that the late Simon Zigah was his brother from the same father but different mothers. That the late Zigah completed his education in Togo in 1996 and came to Ho and was employed as a teacher. That he (caveator's Attorney) left Ghana in 1998 and returned in 2002 and was transferred to Donkor-Krom as a Pastor. That one day he came to visit the deceased and the deceased told him that his wife was working somewhere so he could not meet her and their child. That later he heard of a misunderstanding between the deceased and his wife (applicant) and that later the misunderstanding between the deceased and the applicant because so intense that they (deceased's family) arranged for his transfer to Batume junction. Caveator's Attorney said one day he visited the deceased at Batume Junction and the deceased told him that applicant was flirting with men so he advised the deceased to go and perform the marriage rites which he believed would solve the problem. Later the deceased was transferred to Wassah Amenfi in the Western Region. That after one year of the transfer to Wassa Amenfi he heard that the deceased came to take his salary (which had not been transferred) in 2011 and also to visit his children. At that time he and the applicant had two children. According to Rev. Adegbedzi he heard that the deceased came to meet a man with the applicant and there resulted a fight in which the deceased was beaten. That when the deceased got back to his station in the western region he fell ill after a week and was taken to hospital at Wassa Akropong. He was discharged but a week after his discharge he got paralyzed. He was therefore sent to Korlebu Teaching Hospital where he died on 27/6/2011. That the applicant and his family failed to attend the funeral of the deceased. After the funeral the family met and appointed the caveator, John Kwaku Zigah as the next of Kin and tasked him to go for letters of Administration.
Emmanuel Kofi Amanyo (Dwl) is the only witness called by the caveator. He testified that he is a pensioner from the Ghana Education Service. That while working with the GES, one day the late Simon Zigah came to inform him that he had been posted to Ho. This was in 1993 after he completed St. Mary Teacher Training Collage, Somanya. That the late Simon Zigah was his cousin (his father follows his, Dwl's father). That the deceased one day told him he had befriended a woman and has an issue with her. That one day the caveator told him. (Dwl) to inform the applicant of the deceased's sickness which he did. Later he got information that Simon Zigah had passed on. He (Dwl) also sent a message to applicant but she failed to attend the funeral. That after the funeral it was decided by the family that the issue between the deceased and applicant should be sent to her aunt at Sunyani but no action was taken on the matter. As far as Dwl is concerned the deceased had only one child with the applicant. Dwl denied that he was present at the marriage ceremony when the late Simon Zigah married the applicant.
As I have stated above the sole issue in this case is whether or not the deceased married the applicant or whether or not at the time of the death of Simon Zigah there was a valid subsisting marriage between them. Matters that took place after the death are not relevant. The evidence adduced by the applicant and her witnesses is to the effect that the deceased duly married the applicant customarily on 16/10/1999. That this marriage took place in the house of Mr. Victor Ganusah who was then living at Depot down Ho. Indeed all the witnesses of the applicant corroborated applicant's evidence that the marriage ceremony took place on 16/10/1999 at Mr. Victor Ganusa's house. It is important to note that Pwl Josephine Garnet and Victor Ganusah (Pw2) all corroborated the evidence of the applicant that there was a marriage between applicant and the deceased and that they were present. The evidence of (Pw2) Victor Ganusah is particularly of great importance. He told the court that applciants father Kojo Dagadu was his uncle and that Kojo Dagadu approached him to seek permission from his (Pw2's) landlord so that the marriage ceremony could be held in his house because according to Kojo Dagadu, his house was too small to accommodate the visitors. To this end he (Pw2) sought permission from his land lord and the ceremony duly took place in his house.
Applicant and his witnesses all mention one Adegbedzi and Emmanuel Amanyo (Dwl) as part of the people who came on the side of the deceased. Indeed Pw2 added that the said Adegbedzi was a teacher and lived at Somey town. The items presented for the ceremony included cash, clothing, drinks etc.
On their side the caveator's Attorney who gave evidence for the caveator told the court that he left Ghana in 1998 and returned in 2002. He went for further studied in Singapore. He said during those 4 years that he was away, he never communicated with any of his family members. If this marriage took place in 1999, then it means at that time caveator's attorney was not in Ghana and since he was not communicating with his family members he would not know until he returned. In his own evidence Rev David Adegbedzi, caveator's Attorney said;
“In 1998 I had the chance to travel out of the country. I returned in 2002. On my return I was told he (Simon Zigah) had an issue with a woman. I was transferred to Donkor know (Afraim plains). One day I came to visit Simon Zigah who was living on the C. K. road. Simon Zigah told me his wife was working somewhere so I could not meet her and the child. Later I heard of a misunderstanding between my brother and his wife”.
So from this piece of evidence, Simon Zigah himself told Rev. Adegbedzi that he had a wife (not a girlfriend or a concubine). It is therefore surprising for the self some caveator's Attorney to tell the court that when the misunderstanding between the deceased and applicant became more severe he advised the deceased to go and perform the marriage rites which he believed would solve the problem of applicant's alleged flirting with other men. If Simon Zigah already told Rev. Adegbedzi that he was married then why this advice?
The evidence of Emmanuel Amanyo (Dwl) who was said to have led the deceased's family to the marriage ceremony is a total denial. He says he did not attend any such ceremony. Indeed the demeanor of Emmanuel Amanyo in the witness box left me in no doubt that he was not a truthful witness. He said he and Simon Zigah were first cousins yet he did not even know that there are two issues in the relationship between Simon Zigah and the applicant. He was prepared to deny everything about the case. Even though he retired as an Education Officer of the GES, he carved a very poor image of himself in the witness box. In my view the caveator's family were simply aggrieved that the applicant did not attend Simon Zigah’s funeral but that is not evidence of non-marriage.
For customary marriage to be binding the commonest form is for the family of the man to present, drinks and other items to the woman's family and their acceptance by the woman's family constitutes the express consent of both families to the marriage that their family members have agreed to the marriage.
See IRENE GORLEKU VRS JUSTICE POBE 42 GMJ 53 (Appau JA). It is not the size of the items presented or the grandiose fanfare accompanying the presentation of the drinks that matter. Indeed in some communities what constitutes a valid customary marriage is the presentation of very small items. All other items are embellishments which have no real customary value.
Exhibit 'A' is a personal Record form of the Ghana Education Service. This document was filled and signed by the late Simon Zigah himself in his own hand writingon 03/07/2008. He stated in Exhibit ‘A’ that he was married but the form did not provide for the name of spouse but he named his two daughters as his children (Deakpe Zigah and Ruth Zigah). If the applicant was a concubine of the deceased I am sure Simon Zigah would have stated in Exhibit ‘A’ that he was not married and only name the two girls as his children. There is no evidence before me that Simon Zigah ever married another woman in his life time. In the light of this evidence, coupled with the evidence of applicant and her witnesses I do not see how one can challenge applicant's case as not being the wife of the late Simon Zigah.
In the circumstances I find as a fact that what took place in Victor Ganusah's house on 16/10/1999 constitute a valid customary marriage between the applicant and the deceased.
There is no doubt that the marriage along the line got estranged but that is not evidence on non-marriage or divorce. There is no evidence before me that the couple ever even attempted a divorce. It is true there was a sort of separation but there is no evidence of divorce. It means that at the time of his death, the later Zigah Simon was married to the applicant.
I hold therefore that there was a valid substituting customary law marriage between applicant and the late Simon Zigah at the time of his death.
The evidence shows that there are two issues of the marriage, Ruth Zigah aged 15 years old and Da Akpe Zigah 12 years old. The Interstate Succession Law, PNDC 111 provides in section 4(1) that on the death intestate of any person his wife and children should inherit the greater proportion of his property. It follows that in the instant case the applicant and the two children of the marriage are entitled to the greater proportion of the late Simon Zigah's estate. It was therefore wrong for the caveator to have obtained Letters of Administration without any reference to the applicant. It is therefore ordered that the applicant Beatrice Zigah and the Caveator John Kwaku Zigah be granted joint Letter of Administration to administer the estate of Simon Zigah.
In the course of this trial it came out that the caveator obtained Letters of Administration at a Sunyani District Court. I cannot imagin how the caveator could have validly obtained the Letters of Administration at Sunyani District Court when there is no evidence that Simon Zigah ever lived nor hailed from Sunyani. I say so because the jurisdiction of the district court is limited to the area it is sited. It was therefore wrong for the District Court, Sunayni to have granted the caveator the letters of Administration. Consequently the Letters of Administration obtained by the caveator John Kwaku Zigah and one Vincent Atsu Teklolo at Sunyani District Court dated 27th June 2013 is hereby struck out. If the caveator fails to take any action within two months, applicant should be granted the Letters of Administration without any further notice to the caveator. No order as to cost.