Case of week: Akosua Serwaah Fosuh v. Abusuapanin Kofi Owusu & 2 Others

Introduction:

Can a spouse who has lived apart from her husband for nearly two decades, and who claims a foreign civil marriage, still be recognised as the “only surviving spouse” entitled to perform widowhood rites under Ghanaian customary law?

This case tested the validity of a German civil marriage in Ghanaian courts, the proof required for foreign marriages, and the recognition of customary marriages formed through long cohabitation and family acceptance.

Facts:

The Plaintiff, Akosua Serwaah Fosuh, claimed to be the only lawful surviving spouse of the late celebrated musician Charles Kwadwo Fosuh, popularly known as Daddy Lumba. She asserted that they had contracted a customary marriage in Ghana in 1991 and later a civil marriage in Germany in 2004, which remained valid until his death in 2025. She sought a declaration that she alone was entitled to perform the widowhood rites and an injunction restraining the family and the 2nd Defendant from treating the 2nd Defendant as a surviving spouse.

The 1st Defendant, Abusuapanin Kofi Owusu, head of the family, denied the subsistence of the Plaintiff’s marriage, contending that it had been dissolved customarily. The 2nd Defendant, Priscilla Ofori, claimed to have been customarily married to Daddy Lumba since 2010, lived with him for over 15 years, borne him six children, and cared for him during his prolonged illness. She counterclaimed for a declaration that she was validly married to the deceased and was his surviving spouse.

The 3rd Defendant, Transitions Funeral Home, played a neutral role as the custodian of the body.

Issues for Determination:

1. Whether the Plaintiff was the only surviving spouse of Daddy Lumba.
2. Whether the Plaintiff, if deemed a surviving spouse, was exclusively entitled to perform widowhood rites.
3. Whether the Plaintiff’s long absence constituted abandonment.
4. Whether the 2nd Defendant was validly married under customary law.
5. Whether the Plaintiff’s German civil marriage was validly proven.
6. Whether the marriage between the Plaintiff and Daddy Lumba had broken down.

The Court’s Holding:

The High Court found that:

1. The Plaintiff failed to prove her German civil marriage due to lack of authentication and certification of the foreign marriage certificate as required by the Evidence Act. The court presumed German law to be the same as Ghanaian law but found the documents inadmissible and lacking probative value.

1. The Plaintiff was customarily married to Daddy Lumba in 1991, but customary marriage is potentially  polygamous and does not preclude another customary marriage.
2. The 2nd Defendant was validly married to Daddy Lumba under customary law in 2010, evidenced by credible witness testimony, family recognition, cohabitation, children, and public acknowledgment by the deceased.

1. Both the Plaintiff and the 2nd Defendant were recognized as surviving spouses of Daddy Lumba.

• Widowhood rites are determined by the deceased’s family in accordance with custom, not by mere entitlement. Both spouses were permitted to perform the rites.

• The Plaintiff’s long separation from the deceased did not amount to legal abandonment sufficient to dissolve the marriage, but it demonstrated a breakdown of the marital relationship.

Accordingly, the court dismissed the Plaintiff’s claim to be the sole surviving spouse and granted the 2nd Defendant’s counterclaim declaring her a surviving spouse. The family was ordered to allow both women to perform widowhood rites.

Implication of the Decision:

The decision clarifies that foreign marriages must be strictly proven in Ghanaian courts through properly authenticated documents and, where necessary, expert evidence on foreign law. It also reaffirms that customary marriages can be established through conduct, cohabitation, and family acceptance, even without formal ceremony. The ruling emphasizes that widowhood rites are governed by family and custom, not by civil marriage status alone.

Significant Quote:

“The performance of widowhood rite is not an entitlement as it is not incidental to being married to the decease.  Widowhood is thereby a rite and who has to perform that rite is determined by custom and in this case the matrilineal family of the deceased through the head of family in consultation with the elderly women in the family.”

– Dr. Dorinda Smith Arthur, Justice of the High Court

Commentary and Insight:

The decision of the Court establishes a significant jurisprudential distinction between marital status and ritual entitlement under Ghanaian customary law. This distinction is not merely cultural, but carries substantive legal implications for the interpretation of spousal rights, family authority, and the hierarchy of norms in personal law disputes.

The Court explicitly delineated that the right to perform widowhood rites is not an automatic incident of marriage. This clarifies a common point of contention in matrimonial custom litigation: while the Intestate Succession Law (PNDCL 111) protects a surviving spouse’s proprietary interests, it does not govern ceremonial or ritual privileges. Ritual participation remains under the domain of the family and under the Ashanti Custom, it is exercised through the head of family in consultation with elder women.

By vesting the power to determine who performs widowhood rites in the family, the Court reaffirms the constitutional and judicial respect for customary law as a living source of law under Article 11(3) of the 1992 Constitution. It also implicitly acknowledges the doctrine of non-interference in internal family governance, provided such governance is exercised in accordance with natural justice and customary due process.

Emmanuel K. Owusu-Asare, Esq and Nana Nti Ofori-Debrah, Esq contributed to this article.