Who is the widow? – Kwame Boafo Akuffo Esq. writes

Who then is the Widow?

It suffices to state that the recent dispute as to who is the surviving spouse of the legendary Charles Kojo Fosu A.K.A. Daddy Lumba (deceased) has reached every nook and cranny of the Republic.

I prefer to state at the outset that my considered conclusion is to the effect that “Odo Broni” has a distinct legal remedy available to her. Perhaps there is also another remedy which is independent of the distinct remedy and may be pursued in the alternative. I have reached this conclusion by analysing the facts which are not in dispute. I shall return to a fuller discussion of the matters presently.

Needless to say, the dispute essentially centres on whether or not one “Akosua Serwaa”, who is wielding a Marriage Certificate vis-à-vis “Odo Broni” who is wielding a Customary Law marriage, is the surviving spouse of the deceased. These disputes are not new to the Republic and the law for that matter.

I must cut straight to the chase. During his lifetime, the deceased openly held out “Odo Broni” as his wife in the full glare of the general public. Apart from presenting her as his wife, he had children with her. These facts were so notoriously known that, in the end, every Ghanaian citizen was capable of taking “Judicial Notice” of the relationship and the alleged matrimony between the parties.

There is no evidence on the public record as of the date of writing this opinion that “Akosua Serwaa” protested the conduct of Daddy Lumba or challenged “Odo Broni” for holding herself out as his wife in a manner that reached prominence on a level comparable to the conduct of the deceased and “Odo Broni”. In recent times, we have seen a letter in which “Akosua Serwaa” gave notice of an intention to divorce Daddy Lumba because of his association with “Odo Broni”. We do not have any evidence that this letter came to the attention of “Odo Broni” during the lifetime of the deceased.

Much more to the point, the Registry of the Courts did not receive a claim for jactitation against “Odo Broni”. Jactitation refers to an allegation that someone is falsely pretending to be a wife and, in the process, damaging the reputation of the lawfully married person. Alternatively, there is no record of any injunction having been filed by “Akosua Serwaa” to restrain “Odo Broni” from holding herself out as a wife.

According to the “bush radio”, “Akosua Serwaa” has resurfaced after the death of Daddy Lumba and now claims that her marriage to the deceased has been subsisting all this time. However, there is no good reason within the matrix of facts to suggest that “Odo Broni” did not hold the honest belief that she was married to the deceased at the material time.

There is an arguable position (though not conclusive) that “Odo Broni’s” honest belief is one that has been seeded, nurtured, and cultivated by “Akosua Serwaa’s” cemetery-like silence towards the conduct of Daddy Lumba in holding out “Odo Broni” as his wife. I use the word “silence” in the context that “Akosua Serwaa” has not made out the case that she challenged “Odo Broni”, and neither is there any evidence of a letter from “Akosua Serwaa” or her lawyers which put “Odo Broni” on useful notice at the material time. There is also the absence of the allegation that “Akosua Serwaa” ought to have had constructive knowledge of a subsisting marriage between Daddy Lumba and “Akosua Serwaa”.

We have since viewed several videos circulated on social media platforms which show “Akosua Serwaa” attending the residence of the deceased which he shared with “Odo Broni” to enable her to meet mourners who are minded to console her. Ingress to the said house, however, is controlled by “Odo Broni”. The facts are, indeed, unique.

It is instructive to note that the right to widowhood, or the contest over it, is not necessarily anchored in the personal bond with the deceased, so to speak. Sometimes, it comes down to the spoils of nature – the estate of the deceased. A heavily endowed estate invariably breeds dispute. The question then arises: what are we to do with this contention between the grieving women – “Akosua Serwaa” v. “Odo Broni”?

It is my respectful submission that on the basis of the information presently available, a prima facie case exists that the deceased impliedly warranted to “Odo Broni” that he was in a position to marry her. It is a fact that he subsequently went through a ceremony of marriage with “Odo Broni”. However, the disclosure by “Akosua Serwaa” that she celebrated a civil marriage with the deceased, and the allegation that the same was subsisting until the death of Daddy Lumba, raises the question as to the validity of the customary marriage which is being touted by “Odo Broni”.

We are therefore to contend with a situation that if “Akosua Serwaa” is right, the deceased deceived “Odo Broni” by his lack of capacity and was thus in breach of the implied warranty to marry her. Be that as it may, it is abundantly clear that “Akosua Serwaa”, by remaining mute in a manner where her protests did not reach the ears of “Odo Broni”, sealed this deception which was carried out by the deceased.

I proceed to say that under the circumstances, “Odo Broni” relied on the conduct of Daddy Lumba and “Akosua Serwaa” to her detriment. Under Section 26 of the Evidence Act of Ghana, 1975 (NRCD 323), a party who suffers such detriment is entitled to plead estoppel against the parties who have put her in such a circumstance. Sections 24 and 26 of the Evidence Act state as follows:

“24. Conclusive Presumptions
(1) Where the basic facts that give rise to a conclusive presumption are found or otherwise established in the action, no evidence contrary to the conclusively presumed fact may be considered by the tribunal of fact.
(2) Conclusive presumptions include, but are not limited to, those provided in sections 25 to 29.

1. Estoppel by own Statement or Conduct
   Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between
   (a) that party or the successors in interest of that party, and
   (b) the relying person or the successors in interest of that person.”

I take the matter a step further and submit that the distinct remedy available to “Odo Broni” is an action against the Administrators of the Estate of Daddy Lumba for damages for breach of a promise of marriage made to her by the deceased. This action will only succeed if “Odo Broni” can establish that she was unaware that Daddy Lumba was married, or that he remained married to “Akosua Serwaa” during the material time.

The matter is covered by authority. I refer the reader to the decision of the Court of Appeal in the case of In Re Markham (Decd) Markham vs. Afeku IV & Ors [1987-1988] 1 GLR 34 at page 38, where the unanimous Court, speaking through Amua-Sekyi JA (as he then was) in dealing with a similar matter, had this to say:

“Mr Brown suggested that Phyllis’ remedy was an action for breach of warranty and he cited Shaw v Shaw [1954] 2 All ER 638, CA in support. In that case Shaw left his wife. He later met the plaintiff and they went through a ceremony of marriage. Shaw’s wife did not die until twelve years later. When two years after that Shaw died his son and daughter who were administrators of his estate made it known to the plaintiff that she and the deceased had not been married. The plaintiff sued the administrators for damages for breach of a promise of marriage made to her by the deceased. The action was dismissed on the ground that as the deceased’s lawful wife was then alive, the agreement between the plaintiff and the deceased was unenforceable. On appeal, it was held that since the plaintiff was at all material times unaware that the deceased was married, the action was maintainable. Singleton LJ said at 642: “It appears to me that, on the authorities which have been cited to the court, there is a great difference between the case in which there is an effort to enforce a marriage when both parties know that the defendant is not able to go through a lawful form of marriage and a case in which that fact is known only to one of them.””

It is, therefore, clear that the remedy for damages can be made if “Odo Broni” can clearly show that she was unaware of the subsisting marriage between Daddy Lumba and “Akosua Serwaa” at the material time. It is clear from the case law, In Re Markham (supra), that the ambit of an award of damages will be the forfeiture to “Odo Broni” of that which is due “Akosua Serwaa” as her inheritance from the estate of the deceased. In Re Markham (supra) the Court stated as follows:

“In Shaw v Shaw (supra) the damages recovered represented the whole of the widow’s share in the estate. If Mr Brown is right then Phyllis would be entitled in an action to claim as damages the whole of that portion of the estate which under PNDCL 111 ought to go to Markham’s widow. That is a result which Joyce would hardly welcome.”

The alternative remedy (Second Remedy) available to “Odo Broni” is hinged on the conduct of “Akosua Serwaa”. We are aware that she gave notice of intent to dissolve the marriage. At the moment, there is no evidence that she commenced the proceedings. However, if she did so, and evidence is subsequently led to show that the deceased believed that the same was completed and the relevant orders for dissolution had been made, then it means that the deceased died under the honest belief that he was divorced from “Akosua Serwaa”. But of course, all of this will depend on the entirety of evidence which we do not have at the moment.

If it turns out on the evidence that Daddy Lumba died believing that he was divorced from “Akosua Serwaa”, the argument will be made that in the past she was content to stay aloof and thus allow innocent third parties to disregard the legal effect of the marriage she now wields. Needless to say, foreign missions even issued visas to “Odo Broni” on the basis that she was the spouse of the deceased – Daddy Lumba. It is improper for one to approbate and then to reprobate, especially when an Act of Parliament is at stake.

In In Re Markham (supra) the Court of Appeal at page 38, referencing the aloof conduct of the wife, had this to say:

“…Now having taken the benefit of the divorce for sixteen years, can Joyce now be heard to say that her marriage continued to subsist and that the subsequent marriage to Phyllis was a nullity? The judge in the court below was of the opinion that she could not. He regarded her conduct as fraudulent and minced no words in describing it as such.”

This other remedy will therefore speak to the validity of the alleged marriage between “Odo Broni” and the deceased. I can do no better at this stage than to call in aid the words of Amua-Sekyi JA (as he then was) at page 39 of the judgment, In Re Markham (supra), where he stated as follows:

“I think that this court ought to apply Djomoa v Amargyei [1961] GLR 170, SC to bring this unhappy litigation to a speedy end. In that case, the defendants were not permitted to rely on the provisions of the Concessions Ordinance, Cap 136 (1951 Rev) to defeat the title of their grantees as it would amount to lending support to a fraudulent practice. For the same reasons, the provisions of Cap 127 notwithstanding, this action ought to fail. Before I end, let me say that I find it odd that this lady who in 1968 wanted no part of her husband’s properties should, after his death sixteen years later, come forward to claim that.”

The last part of the quotation clearly explains my thinking that if “Akosua Serwaa” began divorce proceedings or, on the evidence led, Daddy Lumba was led to believe that the civil marriage between them had come to an end in a lawful manner, and not by the return of drinks, then the decision in In Re Markham (supra), where the divorce proceedings were not completed but the deceased believed them to have been completed, will be applicable to “Odo Broni’s” case and add a balm of legality to the customary marriage ceremony that she went through with the deceased.

In conclusion, I am minded to state that on the information available to me at this stage, the best relief to pursue from “Odo Broni’s” angle will be the claim for damages for a breach of promise to marry against the Administrators of the deceased’s estate. It is easy to make out the same on the facts, especially when the thrust of “Akosua Serwaa’s” case amounts to deception on the part of the deceased. Above all, “Akosua Serwaa” is not alleging that “Odo Broni” was aware of a subsisting marriage between her and the deceased. This is why the distinct remedy is attractive. The second remedy, which will go to the validity of her marriage, must be founded on further evidence.

I have nothing further to add.

The writer is Kwame Boafo Akuffo, Esq. of Akropong Akuapem