A critique of Gyan versus Gyan: A perspective on consent and capacity at common law

This paper critiques the judgment of Her Ladyship, Hafisata Amaleboba (Mrs) in
the case of Gyan v Gyan, a multifaceted legal dispute involving the validity of
marriage, the age of consent, and the legitimacy of marriages contracted for
convenience or other collateral purposes. This critique aims to provide a
comprehensive analysis of the case and the legal principles involved, and with
respect, would engage in questioning the Court’s reasoning and interpretation
of the law. It is hoped that the critique will illuminate the complexities of the case and stimulate further discussion on the legal principles at play.

Synopsis:

Gyan v Gyan was a complex family law case where Mr. Asamoah Gyan sought
to annul his marriage to Gifty Gyan. The marriage had been in existence for ten
years at the time of judgment and had been preceded by a decade-long courtship. The core of the claim by Mr. Gyan was that Gifty Gyan had lawfully married a man named Eugene Odame Antwi, a year before meeting Asamoah Gyan, which made her subsequent marriage to him void. Asamoah Gyan also argued that the marriage was void due to deceit and false misrepresentation.

Gifty Gyan's contentions:

Gifty Gyan acknowledged while known as Sandra Gifty Gyamesi, and before meeting Asamoah Gyan, she had married Eugene Odame Antwi. However, she asserted that she had informed Asamoah Gyan about her previous marriage, which was contracted to facilitate treatment abroad due to her health challenges. As a result of these contentions, a key matter in issue was the validity of the marriage between Gifty Gyan and Eugene Odame Antwi and whether it was still in effect at the time she married Asamoah Gyan.

Judicial reasoning and findings:

Her Ladyship ruled that the marriage between Eugene Odame Antwi and Gifty
Gyan was valid. The reasoning upon which that ruling was built was that a
marriage voluntarily contracted for convenience or immigration purposes is
valid and binding on the parties, unless any statute specifically renders such a
marriage void, as per the authority of Boateng v Serwaa.

However, Her Ladyship also proceeded to determine that Gifty Gyan was underage at the time of her marriage to Eugene Odame Antwi. This led to further deliberations on whether the marriage was void due to Gifty Gyan not being of marriageable age. Her Ladyship then considered Section 59(b) of the Marriages Act, which mandates parental or judicial consent for minors to marry, and found as a fact that such consent had not been provided or sought as Gifty Gyan had misrepresented her age to the registering officials. The Judge further found that the Children’s Act prohibits all marriages by persons below the age of eighteen years.

Presumption of validity and consummation:

Despite these findings, Her Ladyship again relied on Boateng v Serwaa, by
interpreting it as creating only two kinds of marriages: valid and invalid. Her
Ladyship then reasoned that the illegality of a marriage does not render it void
in the absence of specific provisions in the statutes nullifying it. Based on the presumption of validity under Section 31 of the Evidence Act and Section 74(3) of Cap 127, Her Ladyship then concluded that the marriage between Gifty Gyan and Eugene Gyan was merely voidable and required judicial intervention
to annul.

Critique of the judgment:

The judgment by Her Ladyship in Gyan v Gyan is respectfully submitted to be
flawed due to errors of law, a lack of or insufficient proper Common Law
the foundation rests on an improper fettering of judicial discretion and fails to
properly understand or apply the ratio in the case of Boateng v Serwaa. The
fundamental sin of Her Ladyship, about the judgment of Gyan v Gyan,
can be summed up with the greatest respect as misdirection by non-direction on the element of ‘Consent’ in marriage and the common law distinction between ‘void’ and ‘voidable’ marriages.

In short:

Her Ladyship erred in how she interpreted and applied the legal principles
from the Boateng v Serwaa case in Gyan v Gyan.

Her Ladyship misdirected herself on the historical context of consent being
essential for a valid monogamous marriage and the same was not sufficiently
considered and further failed to appreciate that Ghanaian common law recognizes the same importance of consent, in relation to Ordinance Marriages, as the legal system is built upon principles inherited from British common law.

The age of consent defined in statutes and common law is also relevant for
deciding the validity of Gifty Gyan's first marriage. Thus, reading all related laws together, as the rules of statutory interpretation require, the age of consent to marry is eighteen as defined in the Children's Act.

Since Gifty Gyan was only seventeen at the time, she lacked the legal
capacity to consent to the first marriage under common law. That meant the
first marriage was void ab initio, or invalid from the very beginning, rather than just voidable. Her Ladyship therefore erred in finding it was a valid or merely voidable marriage instead of void due to lack of capacity.

Errors in the Application of Boateng v Serwaa on the Face of the Record
In the case of Gyan v Gyan, the interpretation and application of the principle
established in Boateng v Serwaa by Her Ladyship could potentially be seen as
an error of law. The principle in Boateng v Serwaa stated that "as a general
principle of the law of contract, except provided for in a statute, the
fact that a contract violates the provisions of a statute does not automatically
make it void".

However, the Court added "Where there is no nullifying provision in the statute the legal consequence of violation of a provision is a matter of construction by a court, but it would not be ipso facto void.

This principle is well founded in the Common Law, where the Courts treat a
contract, including contracts of marriages, made freely as binding and will
enforce its terms. In Printing & Numerical Registering Co. v. Sampson, L. R. 19 Eq. 462, 465 (1875), Jessel MR stated the common law principle as follows "If
there is one thing which more than another public policy requires it is that men
of full age and competent understanding shall have the utmost liberty of contracting and that their contracts when entered into freely and voluntarily
shall be held sacred and shall be enforced by Courts of Justice. Yet, even in this free-range liberty offered by the Court, the Courts have intervened to regulate contracts made in abuse of the right to contract, statute, that are legal yet immoral or are simply illegal.

In discussing the power of the Court to interfere, Lord Justice Denning said
in British Movietonews v. London & District Cinemas, Ltd. [1951] 1 K.B. 190,
202 that "the day is gone when we can excuse an unforeseen injustice by
saying to the sufferer". It is your folly. You ought not to have passed that form of words. You ought to have put in a clause to protect yourself. "We no longer credit a party with the foresight of a prophet or his lawyer with the
draftsmanship of a Chalmers. "That is simply because & ex dolo malo non oritur
actio" no court will lend its aid to a man who founds his cause of action upon
an immoral or an illegal act.

The duty the Supreme Court therefore imposed in Boateng v Serwaa was an
exercise of judicial discretion based on the unique facts of each case in
determining whether contracts that have been made in breach of a Statute
should be enforced by the Court. The import of that principle, as it relates to
marriages was to prevent the creation of a blanket rule which either voided or
validated all such marriages as that would have taken away the inherent
common law power of the Court to interfere with illegal contracts based on
the equities of each case and whether such interference furthers public policy.


This is in line with the dictum of Lord Mansfield in Holman v Johnson (1775) 1
Cowp. 341 on the inherent power of the Court to curtail freedoms of contract
and to do justice to immoral and illegal Contracts. In the unique case of Boateng v Serwaa, the Supreme Court was able to find the customary marriage as void, without undertaking any analysis based on the unique circumstances of the case because of the implication of Section 44 of the Marriage Ordinance 1951 which by effect voided the later customary marriage. Boateng v Serwaa therefore merely reaffirmed the Court’s attitude to the treatment of illegal contracts vested and guided by Public Policy considerations and the peculiarity of each case. However, in Gyan v Gyan, it must be submitted with the greatest of respect to Her Ladyship, that the unique facts of the case should have lent itself to judicial discretion in holding the first marriage to void.

Boateng v Serwaa however did not establish the conclusiveness of connection
marriages but only established their voidability with a presumption in favour of
its validity. Yet, even if that understanding of Boateng v Serwaa were wrong, it
was not a case of relevancy in Gyan v Gyan. The matter in issue was not merely that there had been ‘a connection marriage’ or indeed if the same was void because of the collateral purpose with which it had been contracted. But rather that marriage was void because Gifty Gyan had never consented to it. And that she could not have consented to the first marriage because she could not consent by law. On this score, it is submitted that Her Ladyship completely misunderstood the import of the defense raised by Gifty Gyan about that marriage. Her defense together with all the evidence on the record pointed to a lack of consent due to non-age or, in the alternative, a consent vitiated by duress. For this Critique, I shall deal with the first part of the defense.

Historical context of monogamous marriages:

To properly understand the importance of Consent in a Monogamous
marriage, it is necessary to first understand and delve into legal history. Before the English Reformation from 1529 to 1536, the law that applied to marriages in England was the ‘jus commune’ or ‘common law’ of the Western Church
compromising Roman Civil Law in the form of Justinian's Corpus Juris Civilis
and Catholic Canon Law perfected as Corpus Juris Canonici. Under the ‘Jus
Commune’ of England, marriage was founded on consent. Thus, ancient Roman Civil law stipulated consent as the basis for marriage in a variety of ways.

During the first four centuries of modern history, marriage was seen as a
private contract between a man and a woman. The wedding was celebrated at
the home of the bride and the need for a priest to bless the marriage did not
exist as a prerequisite for the validity of the marriage. A marriage could
therefore be formed per verba de prasenti, a present exchange of consent to
live as man and wife in front of witnesses or per verba de futuro subsequente
copula, some future promise sealed by sex¹. There was also marriage by
reputation and repute where the man and woman would have consented to live together for so long that the community began to deem them as a couple.

It thus became the position of the common law in that era, as advanced by
Edward Coke that ‘Consent, and not cohabitation, constitutes nuptials or
marriage and persons cannot consent before marriageable years.’ From around the 10th Century, the notion of marriage as forming part of the seven sacraments became popular in Western thought based on a positive reception of the views of Augustine, Bishop of Hippo. In 1439, the Council of Florence approved the notion that marriage was part of the seven sacraments of Christianity. Based on this view, the validity of a marriage, in addition to other matters such as consent, came to rest on whether the ceremony had been performed by a Priest laying the foundation for modern monogamous Christian marriages.

As a consequence of that view of marriage as a Sacrament, where marriage
was celebrated in facie ecclesiae (in the face of the Church), it was regarded as valid and could only be terminated either by death, or annulment due to impediments existing at the time of the marriage or later on by an Act of
Parliament¹. A petition for annulment could only seek either a decree declaring
a voidable marriage as void or a declaration of nullity, which was based on a
diriment impediment existing at the time of the marriage.

At the Reformation, s. 7 of the Act of 1533 (25 Hen. 8, c. 19), required the
submission of the clergy to the laws, statutes, and customs of the realm,
provided that the canons "which be not repugnant to the law, statutes and
customs of this realm nor to the damage or hurt of the King's prerogative royal
shall now still be used and executed as they were afore the making of this Act,’
pending the decision of the commission set up to examine and codify the canon law.

The commission's report never became law and, therefore, the pre-Reformation canon law continued in force save in so far as it could be shown to be repugnant to the law and customs of the realm. The Canon Law of England thus became part of the Common Law of England to the extent that it was not repugnant to the other customs existing outside it.

Void and voidable marriages:

After the Reformation, marriages were no longer considered part of the Seven
Sacraments of Christianity, and the exclusive jurisdiction of Ecclesiastical
Courts were abolished. The Common Law incorporated marriage via statute,
and while Ecclesiastical Courts still had jurisdiction in determining cases of
nullity, the Common Law Courts developed a doctrine of control over the
Ecclesiastical Courts. This was exercised when a party to the proceeding was
either dead or the impediment in question was merely a prohibitive impediment.

An impediment was a legal obstacle existing in canon law that prevented the
sacrament of marriage from being performed either validly or licitly(legally). An impediment could be prohibitive or diriment. While prohibitive impediments
merely made the marriage voidable, mostly by throwing into doubt some legal
non-compliance, diriment impediments went to the integrity of the marriage
itself and its roots.

Where a diriment existed, the parties to the marriage were entitled to treat
the marriage as void even absent of a judicial pronouncement and where a
declaration of nullity was granted, the Common Law Courts did not exercise
any jurisdiction in interfering with such an exercise even if a party to the
marriage had died. The logic of the common law is that as the marriage was
void ab initio, no decree could lie against but rather, where the Court is invited to intervene, the duty of the Court becomes to declare that the marriage never existed.

However, where the impediment was prohibitive, the marriage was merely voidable until a judicial decree for nullity was obtained. This led to the creation of "civil disabilities' and "canonical disabilities". A marriage under a civil disability (diriment) was void ab initio, and the parties could treat it as such even without judicial intervention. That further led to the distinction between a void and voidable marriage in Common Law.

In De Reneville v De Reneville 1948 Lord Justice Greene stated the distinction
at common law to authoritatively be that ‘A void marriage will be
regarded by every court as never having taken place and can be treated by
both parties as such without the necessity of any decree annulling it. A
voidable marriage, on the other hand, will be regarded by every court as a
valid subsisting marriage until a decree annulling it has been pronounced by a
court of competent jurisdiction.

Consent as a diriment:

by Lord Hardwicke was passed to require that persons who were above this common law age to consent, yet below the age of 21 years old, obtain the consent of their parents before they could marry. This made such marriages voidable where no parental consent had been obtained. This statutory intervention was aimed at preventing clandestine marriages by persons who were not minors, being above the age to consent to marry yet not recognized as adults at common law, not having attained the age of 21 years.

The common law thus created a distinction between marriages involving persons who did not meet the statutory age to consent to marry (which was void ab initio) and those who qualified to marry but had failed to meet certain statutory requirements such as obtaining parental consent.

Common law importation to Ghana:

The importation of common law into Ghana was a significant event in the
country's legal history which was achieved through the Supreme Court
Ordinance of 1874. The Supreme Court Ordinance of 1876 played a crucial role
in this process, establishing the common law, along with the doctrines of
Equity, and the statutes of general application that were in force in England at
the time, as part of the law of the Gold Coast.

The importation of the common law was done in a manner like the Henry importation of canon law whereby its operability was deemed to naturally flow “so far as local circumstances permit and subject to any existing or future Ordinances of the colonial legislature”. The Common Law has continued through every Republican Constitution as a part of the laws of Ghana and currently stands incorporated via Article 11 of the 1992 Constitution.

Therefore, in constructing the validity of any monogamous marriage under the
Ordinance reference must not be made to the Statutes setting out the various
legislation on marriage but also to the essential common law elements on the
validity or otherwise of monogamous marriages. For any want of reason, the
the answer is simply that the Common Law is part of our laws via Article 11 and is law unless explicitly undone by the statutory language. Secondly, in addition to no Statute undoing the common law, the statutory grounds for bringing a decree for nullity as set out under Section of the Matrimonial Causes Act does not pretend to be conclusive or mandatory but rather opens itself to a discretionary adoption and based on grounds both stated by the Statute itself
and drawn from other laws including the common law.

It could not therefore have been right for Her Ladyship to submit only a
Section 13 Application could result in a marriage becoming void for all
purposes. Indeed, a closer look at Section 13 of the Matrimonial Causes Act would reveal that nothing in that Section can be construed as ‘validating a marriage which is by law [including the common law] void but concerning which a degree of nullity has not been granted. The clear implication of Section
13(2) is that such void marriages do not by the operation of the Section
becoming voidable pending judicial intervention but are by themselves void
even absent of any process commenced under Section 13.

Further, authors like Zabel point out the influence of the common law in
shaping the Marriage Ordinance prepared for Accra and Lagos. For instance,
Section 59 of CAP 127 retained the requirement for parental consent in the
case of parties under twenty-one years of age who are not widowed¹¹. This
requirement is a carryover from the Hardwicke parental consent requirement.

If that were the only law, then perhaps, marriages in breach of this statutory
prohibition would have merely been voidable based on the application of Section 74(3) of CAP 127 which saves marriages despite statutory non-compliance. Those marriages become voidable and invoke the duties of the Court, if it does invoke any duties at all, as stated by the principle in Boateng v Serwaa as to their validity despite their statutory non-compliance.

However, Section 59 must be read together with Section 14 (2) of the Children’s Act 1998 which sets the minimum age of marriage of whatever kind to be eighteen years. As a principle of statutory construction, related statutes must be read in pari materia and interpreted together, as though they were one law. Also, based on the principles of lex posterior derogat (legi) priori, Section 14(2) of the Children’s Act 1998 must be deemed as amending Section 59 of CAP 127 to set the age at which parental consent is required at 18 to 20 years.

By necessary implication, any marriage contract entered by persons below
that age falls to be considered for validity based on the common law principles
of consent relating to capacity. Section 14(2) had amended the common law
age of capacity to consent to marry from fourteen years for males and twelve
years for females to 18 years irrespective of age. A person under the age of
eighteen therefore cannot lawfully consent to any marriage and any such
consent is void because of non-age.

The Policy rationale behind Section 14(2) was to deprive children, defined as
any person below the age of 18 years, from having the capacity to marry to
curb the incidence of child marriages which had become a menace in the
country. While the implication of holding all such marriages as void ab initio
and not merely voidable or capable of subsequent rectification may seem
harsh, the other side of the coin, in the grooming and abuse of minors for
marriage must scarce everyone sufficiently to see the policy rationale in
depriving every person below the age of 18, with or without parental approval,
from consenting to marriage.

From the above analysis, it was clear that Gifty Gyan was merely 17 years
old when she contracted the first marriage, that marriage was void on the
grounds that she was statutorily precluded from having the capacity to marry,
a civil disability that operated to void the marriage ab initio at common law.

Presumption of validity displaced:

Rather inexplicably, with respect, Her Ladyship relies on the presumption of
validity, proceeded to hold the marriage between Gifty Gyan and Eugene
Odame is valid. By so doing, the Judge appears to have confused the presumption of validity with a conclusion of validity. The presumption of validity simply refers to an assumption, in the absence of any evidence, that an administrative act has been regularly performed and the necessary statutory niceties have been met. However, the presumption is displaced once evidence of irregularity suffices.

The crucial finding is that Gifty Gyan was 17 years old at the time the first marriage was contracted, to my mind, did not invoke the need to search whether parental consent had been obtained which would have merely made the marriage voidable but rather whether she had legal capacity to contract the marriage at law, which would have made the marriage void.

As shown previously, while proof of the absence of parental consent would
have rendered the marriage voidable, proof that Gifty Gyan was not of the
marriageable age to consent, would have rendered the first marriage entirely
void ab initio. The finding by Her Ladyship that Gifty Gyan was merely 17 years old also displaced any presumption of regularity concerning that first marriage and automatically brought into issue the capacity of one of the parties to engage in the marriage. The capacity issue here is one of a civil disability rather than a canonical disability, the marriage that was built on it was incurably bad and void at common law as amended by the Children Act 1998.

However, Her Ladyship wrongly held the first marriage to be merely voidable
pending a judicial decree of nullity and then proceeded to fetter her common
law Judicial discretion by refusing to declare the first marriage a nullity on the wrongful basis that Gifty Gyan was required to make an Application under
Section 13 of the Matrimonial Causes Act, 1971 ( Act 367). However, it is instructive to note that Section 13 of the Matrimonial Causes Act merely creates a procedural avenue for voiding voidable marriages and for those who elect to seal a void marriage with a decree of nullity.

As previously discussed, a marriage was void at common law based on whether it had violated a canonical or civil disability. Where the canonical disability rendered the marriage void, there was a requirement to secure a Decree of Nullity in relation to voiding such a marriage during the lifetime of any of the parties. The Matrimonial Causes Act thereby simply created a procedure for enacting what had been a common law remedy in relation to void and voidable
marriages.

Notably, Section 13(4) of the Act provides that nothing in the section shall be construed as validating a marriage that is by law void but with respect to which a degree of nullity has not been granted. That statement of law aligns with the common law view as stated in De Reneville v De Reneville 1948 that such marriages were void ab initio and could be treated as such without the need for judicial intervention and further, that where they became a matter of issue, the Court hearing the matter obtained the mandate to make a declaration that such marriages were void which carried with it the equivalence of a decree of nullity.

By misdirecting herself on the essential principles of consent and capacity to
marry at common law, and by misinterpreting the ratio in Boateng v Serwaa,
her ladyship with the greatest respect fell into a fatal error of law by failing to declare the marriage between Gifty Gyan and Eugene Odame as void despite
making a finding of fact that at the time of the so-called marriage, Gifty Gyan
was merely 17 years old and precluded by virtue of the Children’s Act from a
capacity to contract marriage.

The advisement by her lady for Gifty Gyan to seek a further proceeding
declaring that marriage is void, which from all indications would be granted,
even if correct, only throws her lady’s ruling in Gyan v Gyan into jeopardy. Any
finding that the first marriage was void even if made by another Court would
operate retroactively in voiding the first marriage ab initio, which will
automatically restore the legality of the second marriage and damage the very
foundation of her ladyship’s conclusions in Gyan v Gyan.

Her Ladyship should have prioritized determining whether valid consent
existed based on factors such as age and capacity. If consent was absent, the
marriage is void ab initio as per common law, and no procedural maneuvering
can change this fact. While procedural avenues exist to formally recognize
voided status, they are not what determines the validity of the marriage, and
the common law has always recognized a distinction between procedural
formalities and essential validities of marriage.

As the critique notes, the Children's Act aims to curb child marriages, so
validating underage marriages as Her Ladyship did undermines that goal. Upholding that underage marriages lack true consent and are void, would have
given effective meaning to the protection of minors from early or forced
unions as the article notes.

Conclusion:

Based on all the above, it is respectfully submitted Her Ladyship committed
errors of law in her application and interpretation of the relevant principles.
That is, proper application likely would have resulted in declaring the first
marriage void. The critique raised in the paper highlights the need for Ghanaian courts to be mindful of their common law jurisdiction in adjudicating cases. Common law principles such as the distinction between void and voidable marriages are crucial in this case but were ignored or treated superficially.

It is believed that an appeal of the Gyan v Gyan case presents an opportunity
for a higher court to both clarify the proper common law analysis that should
have occurred and correct any errors in the judgment. The guidance would
settle issues like whether the prior marriage was indeed void or merits
annulment. This could prevent conflicting outcomes and uncertainties from
persisting in case precedent.