A Critique of Gyan v 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 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, in relation to the judgment of Gyan v Gyan, can be summed up with the greatest of respect as misdirection by non-direction on the element of ‘Consent’ in marriage as well as the common law distinction between ‘void’ and ‘voidable’ marriages.

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

b. Her Ladyship misdirected herself on the historical context of consent being essential for a valid monogamous marriage and 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.

d. 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.

g. 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 clearly provided for in a statute, the fact that a contract violates 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 so 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 draftmanship 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 in relation 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 be 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 same was void by reason 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 defence raised by Gifty Gyan in relation to that marriage. Her defence 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 the purposes of this Critique, I shall deal with the first part of the defence.

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 at 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, 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 was 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 is one that 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.
As previously discussed above both Canon Law and Common Law treated consent as playing a crucial role in the validity of a marriage. In canon law, which was adopted by English ecclesiastical law, a marriage could be void on the ground that there was no consent at the time of the marriage. Although the marriage could be ratified in certain cases by a consent voluntarily given subsequently, whereupon the consent was deemed to relate to the time of the marriage.

In the case of minors, the Ecclesiastical law and common law treated invalid marriages contracted by males below the age of fourteen years and females below the age of twelve years. This was because such persons were considered minors not capable of assenting to a contract of marriage.

The 1754 Marriage Act 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 answer is simply that the Common Law is part of our laws via Article 11 and is law unless explicitly undone by 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 Section13 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 with respect to 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 contract for marriage 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 by reason 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 in seeing 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 as 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 relying on the presumption of validity, proceeded to hold the marriage between Gifty Gyan and Eugene Odame 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 that Gifty Gyan was 17 years 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, it 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 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 being 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 Matrimonia 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 which 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 in 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 as 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 manoeuvring 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. By 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.