A Critique Of Gyan v Gyan: A Perspective On Consent And Capacity At Common Law (2)

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: ‘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 contracts, 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 contracts and statutes 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 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 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 was wrong, it was not a case of relevance 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.’