J U D G M E N T The plaintiffs claim against the defendant the following reliefs:  
i. An eviction order against the defendant from House No. WL 369/1, Kasoa (forming part of the estate of the late William Appiaenim Appiah).  ii.  A declaration that the said house belongs to the estate of the late William Appiaenim Appiah. iii. An order directed at the defendant to pay to the estate GH¢3,000.00 as cost of legal fees in defending the action against the burial ceremony.  iv.  An order for recovery of possession in favour of the administrators for the interest of the beneficiaries (children). v. An order directing the administrators to manage the disputed property and lease same for the best interest of the beneficiaries.  vi. Costs of legal fees.  vii. General Damages. viii. Costs.  ix. Any other reliefs that the court may deem fit in the circumstances. 
The defendant counterclaimed the following reliefs: 
i. The said Letters of Administration granted to the Plaintiffs be declared illegal and same declared a nullity. 
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ii. She as the surviving wife of the deceased is entitled to a grant of Letters of Administration in respect of the estate of her late husband.  iii. Declaration that the said House is the property of my (sic) late husband and our marital home.  iv. Cost. 
The facts of this case are that the plaintiffs are the administrators of the estate of the late William Appiaenim Oko Appiah (hereinafter the deceased). The 1st plaintiff is the uncle of the deceased and the 2nd plaintiff is his wife/widow. The defendant’s case is that she was married to the deceased and was living with him until his death so she is the surviving spouse.  
The plaintiffs called three witnesses. PW1, Grace Abiuw, the 1st plaintiff’s cousin, that is, PW1’s mother’s brother’s son. PW2, Irene Akweley Afriyie Appiah, a niece of the 1st plaintiff, and the twin sister of the deceased. PW3, Margaret Aba Kwaeba Anoful, a sister of the 1st plaintiff and mother of the deceased.  
The defendant called two witnesses. DW1 Zane Acquaye the jeweler from whom the deceased bought three marriage rings and DW2 Nii Shippi David Amon Ashie, the foster father of the defendant.   
The following are the issues for trial: 
1. Whether the defendant was/is a wife of the late William Appiaenim Appiah (either under customs or law). 2. Whether the grant of Letters of Administration to the deceased’s wife (Vivian Clottey) and representative of the deceased’s family (Richard Bentum) was lawful.  3. Whether it is reasonable and in the interest of justice and educational needs of deceased’s children to rent out his only landed property.  4. Whether the disputed property is a matrimonial home of the deceased and the defendant.  5. Whether the said property falls within the estate of the late William Appiaenim Appiah’s estate.   
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The defendant added the following as additional issues: 
1. Whether the deceased had the capacity to select a wife of his choice without resort to the plaintiffs. 2. Whether the 2nd plaintiff was married to the deceased at the time of his death. 3. Whether the 2nd plaintiff was married to the deceased under the Ordinance CAP 127. 4. Whether the deceased stayed with the defendant for eight years under the same roof in a rented premise. 5. Whether the defendant took care of the deceased’s medical bills when he was hospitalized until his death.  6. Whether the deceased and the defendant moved their marital home at Kasoa and stayed there till his death.  7. Whether the deceased had the intention to convert their marriage into an ordinance marriage.  8. Whether the deceased contributed to the funeral of the deceased.  9. Whether the plaintiffs have the capacity to select a wife for the deceased. 
On the issue of whether or not the defendant was/is a wife of the late William Appiaenim Appiah (either under customs or law), the 1st plaintiff stated that he knows the defendant and she was a girlfriend of the deceased. He said the defendant and the deceased had a child. He stated that the defendant is known to the deceased family. The 1st plaintiff asserted that the when the child between the defendant and the deceased was born, his family and he went to name the child but that cannot mean they are married by Fante Custom. According to the 2nd plaintiff she saw signs of the defendant’s relationship with the deceased in 2002 but when she asked the deceased he said there was nothing. Under cross- examination the 2nd plaintiff said it came to her attention that the defendant was the deceased’s girlfriend about seven (7) years ago.  PW2 gave evidence that sometime ago the deceased told her, he had had a child with a lady called Eunice and that she should visit her at the maternity ward and she did. She stated that when the deceased wanted to name the child, he gave her drinks to bring the baby from Sakaman. She said she went for the child at Sakaman for the naming ceremony. PW3 said the 2nd plaintiff her in-law as she was married to the deceased. PW3 said she knows the defendant. PW3 said she does not know whether the deceased married the defendant but as a mother to the deceased she would know if he did. She added that it would not be proper in their custom for 
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the deceased to get married without her knowledge. PW3 said she is called Aba Kwaaba which is also the name given to the daughter the deceased and the defendant have. Under cross- examination PW3 said she is not on speaking terms with the defendant. Under cross- examination PW3 admitted that Mr. Mensah led their family to the defendant’s family to present a drink to accept the pregnancy.  
The defendant stated that she was not the deceased’s girlfriend but his wife. She explained that she cooked for him, washed his clothes and did everything with him including going to church. She said they went out as husband and wife and have a daughter called Wilhemina Esi Kwaaba Appiah. She said the deceased’s family and his friends knew them as man and wife. The defendant stated that the deceased’s family members are saying she was not his wife because they are not on good terms with her. The defendant said her father and the deceased were members of the Men’s Fellowship of the Wesley Methodist Church, Asafoatse Nettey road. She stated that when her father died, the deceased and his friends assisted her in the burial. The defendant said when she got pregnant the deceased sent an elder of the family with a drink to her father and family members to indicate that his family had accepted the pregnancy as theirs. The defendant said the plaintiffs and their witnesses know that she was the wife of the deceased. She said she attends church with one of the deceased’s sisters, Grace Abbiw (PW1). Under cross- examination the defendant said she never accompanied the deceased to family and other functions because his family members did not like her. She said the deceased family members resisted their relationship. She contended that the deceased told her his mother said he should not marry her but he added that he had married her so they should move on. Under cross- examination the defendant said her father is deceased. She stated that before his death, her father was a member of the Men’s fellowship at their church. She added that the deceased herein was also a member of that fellowship. She said when her father died the deceased herein and some of his friends who were also members of the fellowship attended her father’s funeral. She contended that the deceased told her two of his aunties had performed the necessary customary rites on the deceased behalf as required of a son-in-law, but she did not see any relative of the deceased at her father’s funeral. Under cross- examination the defendant denied that the deceased and his friends attended her father’s funeral because they all belonged to the Men’s fellowship and stressed that it was because he was her husband.   
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DW2 said that the defendant was married to the deceased and they were all attending Methodist Church, Asafoatse Nettey road. According to DW2 there was a marriage ceremony between the defendant and the deceased. He said when the defendant got pregnant the deceased sent a drink, an amount of money, and two pieces of cloth to inform the family that the defendant is now his wife.  DW2 said when the deceased died, his family sent for them to come to Apam and four people from their family went. He said two of the said four people were in court and named them as Joseph Ayi Hammond and Yakuby Larbi. DW2 at Apam they were told the deceased was married and they gave the defendant’s family GH¢5.00 as a stamp to officially inform them that their in-law had passed on. DW2 said they were called to Zongo Junction, Russia in Accra by the deceased aunt and when they went they met the 1st plaintiff. He stated that they were asked to provide GH¢200.00 which they did and the deceased family also provided the same amount. DW2 insisted that the defendant and the deceased were man and wife and lived together. He said he used to visit them when they were at IBE around Mamprobi. He said the members of the men fellowship, elders and the then Presiding Bishop of the church knew the defendant was the deceased wife.   
Learned counsel for the plaintiffs submitted in her written address that there was no ordinance marriage between the deceased and the defendant herein as she the defendant admitted same. 
She cited Yaotey v. Quaye [1961] GLR 573 at 574, which laid down the ‘essentials’ of a valid customary marriage as follows: 
(a) Agreement by the parties to live together as man and wife; (b) Consent of the families of the man and woman to the marriage. Such consent may be implied from the conduct, e.g. acknowledging the parties as man and wife, or accepting drink from the man or his family; (c) Consummation of the marriage, i.e. the parties living together openly as man and wife.  
Plaintiffs’ counsel cited Essilfie v. Quarcoo [1992]2 GLR 180 where Lutterodt J. (as she then was) now Georgina Wood C.J. held as follows: 
   “ On the authorities, there are two forms of valid marriage known to the customary law; first the ordinary case when a man sought the hand of a woman from the family 
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and with their consent performed customary ceremonies of payment of drinks, customary fees and dowry; and secondly where although the customary marital rites had not been performed, the parties had consented to live in the eyes of the world as man and wife and their families had consented that they should do so and the parties actually lived as man and wife in the eye of the world as man and wife.” 
Learned counsel for the plaintiffs cited the Court of Appeal case of Irene Gorleku v. Justice Pobee & anor [2012]42 GMJ 53 which held that there are two major forms of customary marriages; one involves the presentation of drinks and the other is devoid of formalities like the presentation of drinks.  
Plaintiffs’ counsel submitted that from the facts and evidence there was no formal customary marriage between the deceased and the defendant herein. She stated that the defendant, and DW2 confirmed same and it was corroborated by the defendants lawyers WiLDAF in a letter (exhibit K) dated the 12th June 2013. Paragraph 10 of exhibit K stated that “under the laws of Ghana, Ms Pappeo (sic) accepts that because the deceased did not complete the customary marriage rites, that she is not his spouse. She stressed that the first kind of customary marriage which involves the presentation of drinks and the acceptance of same by the woman’s family was absent in this case.    
Plaintiffs’ counsel asserted that in the second kind of customary marriage the consent of the families is implied by their conduct. She stated that at page 76 of the Irene Gorleku v. Justice Pobee & anor case cited supra, the Court held that such includes but not limited to the following;  
   “attending funerals involving families of either party together and making donations in the eye of the public as man and wife without any hindrance, paying visits to relatives on both sides during occasions and other festivities, acquiring properties in joint names as man and wife, attending public functions together in the eye of the world as man and wife, attending public functions together in the eye of the world as man and wife, long co-habitation with or without children in the eye of the public as man and wife without any interference from any quarters (including both families) and express written statements acknowledged by both parties to that effect.”   
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Counsel for the plaintiffs contended that the defendant cannot claim to have been living as man and wife with the deceased in the eye of the public because the evidence adduced shows that she was never seen together with the deceased in any family or public functions including funerals, naming ceremonies, outdoorings or weddings except for a common church which they both belonged to even before the alleged marriage. She stated that there is evidence that there was a lot of interference and displeasure from the deceased’s family which cannot constitute implied consent from the family or amount to living as man and wife in the eye of the public. She commented that the defendant’s evidence that whenever the deceased attended funerals at Apam or Winneba, he tells her to remain at home and he will go alone because the deceased said if they both went to the funerals there would be nobody in the house is ridiculous. She invited the court to take judicial notice of our Ghanaian setting where whole families including children attend funerals of very important family members and it does not matter at all whether anybody remains in the house or not. She said the deceased attended the funeral of the defendant’s father together with other members of the church who belonged to the Men’s fellowship because the defendant’s late father was a member of that fellowship and not because he was the defendant’s husband. She emphasized that the deceased’s family including his mother (PW1), twin sister, uncle (1st Plaintiff) and aunt (PW1) all denied any knowledge or consent to any marriage between the deceased and the defendant.  She relied on Sections 11(1) and 17 of the Evidence Act, 1975 (NRCD 323), Faibi v. State Hotels Corporations [1968] 471; Yaotey v. Quaye, supra at headnote 2 that “the question whether the relationship between a man and a woman is one of marriage or of concubinage is a question of law to be determined from the facts and circumstances of the relationship.” 
Plaintiff’s counsel contended that the defendant seemed to be under a misapprehension that merely cohabiting with someone and performing domestic chores for the deceased made her the wife of the deceased. She cited In Re Caveat by Clara Sackitey [1962] 1 GLR 180, Badu v. Boakye (1975) 1 GLR 283 and Mintah v. Ampeyim (Civil Appeal No. J4/18/2013 dated 25th March 2015) which held that a concubinage relationship does not constitute or equate a valid customary marriage. She asserted that what existed between the deceased and the defendant was a concubinary relationship. She submitted that whatever drinks and cloth the deceased presented to the defendant’s family was to acknowledge the child he had 
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with the defendant and it was because of that the defendant’s role during the deceased’s funeral was limited to those roles undertaken on behalf of her daughter. She concluded that there was no marriage whatsoever exiting between the deceased and the defendant so she was not his wife. 
Learned counsel for the defendant submitted in his written address that in the book “Contemporary Principles of Family Law in Ghana” by Frederica Ahwireng-Obeng, Chief Justice Osborne was quoted in Re Sapara [1919] REN 605 at 607-608 “ I am unable to accept the proposition…..That the consent of a man’s family is  a legal essential to his marriage.” Defendant’s counsel submitted that the only essential element to validate a customary law marriage is when the man and the woman have agreed to live as husband and wife and so hold in the eyes of the world. He quoted an article “Essentials of a customary law marriage: A new approach” 1980 Vol XII RGL 40-52 which states inter alia that family consent is a mere ratification of the agreement between a man and a woman to live as husband and wife. It is desirable but not a condition precedent to the creation of a valid customary law marriage. The defendant’s counsel submitted that too much emphasis on family consent could lead to disastrous results, for example, a valid customary law marriage albeit informal could be declared invalid by a family and thereby prevent a legitimate widow or widower from benefiting under the Intestate Succession Law 1985, PNDCL 111. He cited Gorleku v. Pobee & Anor [2012] 42 GMJ and submitted that the Court of Appeal held that there was a valid customary law marriage (informal) even though no marriage ceremony had taken place between the deceased and the widow.   
The defendant stated that the deceased promised to perform the traditional marriage and ordinance marriage. Under cross- examination the defendant admitted that the customary and ordinance marriages promised by the deceased could not come off before he died. This puts the issue beyond doubt that there was no formal marriage ceremony between the defendant and the deceased. The issue to determine now is whether or not the informal kind of customary marriage existed between the deceased and the defendant. In Essilfie v. Quarcoo [1992]2 GLR 180, it was held that the consent of the family could be either actual and express or implied and constructive. From the evidence adduced the deceased and the defendant and the deceased lived together but did not have the consent of the deceased’s family with respect to their relationship. The evidence of the defendant and the deceased’s mother, PW3 all confirm that the defendant and the deceased’s family members were 
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not on good terms. The deceased’s family till date insist that the 2nd plaintiff is the only wife of the deceased they know and accept.  
The defendant maintained that she was doing everything for the deceased and they lived as man and wife. It is important to state that marriage is a Status and not a Role. This means that one is married because the law or custom says so and not as a result of the role the person plays. It is possible to have a married person who does not perform any of the roles expected of a married person but that alone will not make the person an unmarried person. In the same vein, one may be performing all the roles expected of a married person but that in itself or alone does not make one a married person. This is a big misconception people have and may account for the belief of the defendant that she was married to the deceased. The problem with the informal kind of customary law marriage is that because it depends on the people consenting to live in the eyes of the world as man and wife and their families consenting that they should do so, it is subject to all kinds of interpretations, for example, how long should the people be leading such a life for it to qualify as a valid customary marriage? It is therefore decided on a case by case basis depending on the peculiar facts of the case.  
I have deliberately reproduced at length the evidence of all the parties in this case and the detailed submissions made by both learned counsel herein on this issue because it forms the main issue on which most of the others issues relate. In fact this whole case turns on this one issue. I have evaluated the totality of the evidence adduced as it relates to the case law on informal customary marriage and come to the conclusion that the defendant was not the wife of the deceased. She is therefore not the surviving spouse of the deceased.    
With regards to the issue of whether or not the grant of Letters of Administration to the deceased’s wife (Vivian Clottey) and representative of the deceased’s family (Richard Bentum) was lawful, the 1st plaintiff stressed that the defendant could not have gone for Letters of Administration because she was the deceased’s girlfriend. He said they pasted notices for the Letters of Administration on the walls of the deceased building where the defendant lives. He asserted that it was the head of their family who gave them the authority to apply for Letters of Administration and tendered a copy of it as exhibit F. The 1st plaintiff prayed that the Letters of Administration should not be declared null and void.  
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The defendant said because she was the wife of the deceased who looked after him until his death, the Letters of Administration granted to the 2nd plaintiff should be granted to her. She said she will ensure that the beneficiaries of the deceased estate, his children and his mother are catered for.  
 Learned counsel for the plaintiffs submitted in her written address that the defendant was not the surviving spouse of the deceased and could therefore not be entitled to be granted Letters of Administration in respect of the deceased’s estate. She stated that the 2nd plaintiff was the wife of the deceased at the time of his death. Plaintiffs’ counsel submitted that Order 66, rule 13 of C.I. 47 provides that any surviving spouse is entitled to a grant of Letters of Administration when a person dies interstate, so the 2nd plaintiff as the surviving spouse of the deceased at the time of his death, was entitled to apply for Letter of Administration in respect of his estate and prayed that the court so hold. She states that the 2nd plaintiff was the proper person entitled to the grant of Letters of Administration.  
Learned counsel for the defendant submitted in his written address that the defendant was the surviving spouse of the deceased at the time of his death and she more than anybody else was entitled to the grant of the Letters of Administration. He stated that in the book “Law of Wills in Ghana” by Samuel Azu Crabbe, at Chapter 16 under the heading Revocation of Grant of Probate (or Letters of Administration) the eminent Jurist quoted In Re Agyepong (decd: Abosi v. Poku) (1982-83) GLRD 32 where the Court of Appeal held that “A grant obtained by fraud, malafide or by concealing information which should have been disclosed to the court might also be revoked.  
Considering the facts of this case and the evidence led, I am satisfied that the grant of Letters of Administration to the deceased’s wife (Vivian Clottey), the 2nd plaintiff and  a representative of the deceased’s family (Richard Bentum), the 1st plaintiff was lawful as it was in accordance with law.  
Concerning the issue of whether or not it is reasonable and in the interest of justice and educational needs of deceased’s children to rent out his only landed property, the 1st plaintiff asserted that they have decided to rent out the house so that they will use the proceeds to settle the debts. Under cross- examination the 2nd plaintiff said the indebtedness incurred after the deceased’s funeral was GH¢6,000.00, she said 
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she could not remember exactly how much it cost to organize the deceased’s funeral but the amount was huge. She stated that the deceased’s estate is indebted to the tune of GH¢21,157.00, and the funeral cost over GH¢14,000.00. She said she and the 1st plaintiff have not made any payment with respect to the indebtedness of the estate of the deceased. Later she changed her evidence to say she had forgotten how much of the indebtedness of the deceased’s estate is left to be paid. The 2nd plaintiff stated that nobody apart from the caretaker lives in the Kasoa property.     
Learned counsel for the plaintiffs submitted in her written address that the deceased remained married to the 2nd plaintiff and was never married to the defendant, so the disputed house is the matrimonial home of the 2nd plaintiff and it is only fair and just that the said property be rented out to cater for the needs of all of the deceased children especially where is includes the defendant’s child.   
The plaintiffs case is that the deceased left behind four children all of school going age and neither the estate nor their mother is able to see them through their education. The estate is in serious debt as the deceased left no property except a four bedroom apartment which plaintiffs are desirous of renting/leasing out so that proceeds there from can be used to settle the indebtedness of the estate as well as most importantly, continue the education of the children of the deceased.  
From the evidence adduced, presently there is only a caretaker living in the Kasoa property. Although the defendant lived with the deceased in the said house, it is not the matrimonial home of the deceased. It is also a fact that the 2nd plaintiff never lived with the deceased in the said house. Since the deceased had a wife, the 2nd plaintiff and four children which includes the defendant’s daughter with the deceased (Wilhelmina), it is best for them to decide what to do with the said house (whether to live in it, rent it out and share the rent or sell it and share the proceeds) as all the parties stated have an interest in the said house and their interest must be protected by the administrators of the deceased estate.   
With respect to the issue of whether or not the disputed property is a matrimonial home of the deceased and the defendant, under cross- examination the defendant said she lives at Mamprobi. She stated that the deceased family members sacked her from the Kasoa house and said they were performing custom and the doors will be opened on the 1st anniversary of the funeral of the deceased for her to return and she 
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is still waiting. She said all her personal effects are in the Kasoa house. Under cross- examination the defendant said her personal effects are in the room in which she and the deceased lived. DW2 said the defendant was living with the deceased at Kasoa. 
Learned counsel for the plaintiffs submitted in her written address that since the defendant was not the spouse of the deceased, the Kasoa house could not have been ‘a marital home’. She said the disputed house is the matrimonial home of the deceased and the 2nd plaintiff.   
From the reasons stated earlier in this judgment, I find as a fact that the Kasoa house is not a matrimonial home of the deceased and the defendant. 
Regarding the issue of whether or not the said property falls within the estate of the late William Appiaenim Appiah’s estate, the 2nd plaintiff stated that the deceased built a house on a plot she purchased at Kasoa. She said they used the money they received as gifts at their 1st child’s outdooring to purchase the plot. She contended that the deceased told her to take care of the home whilst he took care of the building of the house. She said she visited the site from time to time when he was constructing the house. She added that the deceased did not quite finish with the house before his death but it is habitable. 
Learned counsel for the plaintiffs submitted in her written address that the disputed property falls within the estate of the deceased. She stated that neither the 2nd plaintiff nor the defendant has claimed that the said house is her personal property as they both said it was built by the deceased. She contended that 2nd plaintiff said as the wife of the deceased he built the house with her support.  
The totality of the evidence led makes it beyond dispute that the said property is part of the estate of the deceased herein. 
On the issue of whether or not the deceased had the capacity to select a wife of his choice without resort to the plaintiffs, learned counsel for the plaintiffs submitted in her written address that the deceased had the capacity to select a wife of his choice without resort to the plaintiffs but the facts and evidence led is that he did not select a wife apart from the 2nd plaintiff who he chose/selected with the knowledge and consent of his family.      
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It is a fact which cannot be disputed that the deceased being an adult of sound mind had the capacity to select a wife of his choice without resort to the plaintiffs herein. This is because the deceased had a customary marriage with the 2nd plaintiff and that marriage is potentially polygamous so he could have married other wives apart from or in addition to the 2nd plaintiff herein.  
With regards to the issue of whether or not the 2nd plaintiff was married to the deceased at the time of his death, the 1st plaintiff testified that the 2nd plaintiff was married to the deceased customarily and their marriage was not dissolved. He said they had three children. The 2nd plaintiff gave evidence that the 1st plaintiff is her inlaw. She said she and the deceased were customarily married in 1990 in the presence of both families including the 1st plaintiff at Mamprobi, Bamboi in her father’s house. The 2nd plaintiff stressed that she never ceased to be the wife of the deceased. Under cross- examination the 2nd plaintiff said lawyer H. B. Apparten Plange is her uncle but he did not perform any legal services for her. She denied the contents of the letter, exhibit 1 that as at 10/09/200, the deceased had nothing to do with the 2nd plaintiff as a wife. She denied taking the deceased to court. Under cross- examination the 2nd plaintiff denied summoning the deceased per exhibit 2, a suit at the Family Tribunal, Community Centre. She also denied that as a result of the said suit the deceased was made to pay maintenance to her and the children into court. She denied never receiving any such monies paid into court. Under cross- examination the 2nd plaintiff said the deceased was hospitalized on Thursday, 22nd January, 2013 at Winneba. She said she did not take him to hospital but gave money to his mother who added some to pay for his medical expenses. 
PW1 said she was the “Okyeame” who led her family to perform the marriage rites of the deceased and the 2nd plaintiff and tendered pictures of the ceremony as exhibits G-G6. She stressed that the marriage between the deceased and the 2nd plaintiff was not dissolved and that if it was, she would have known because the items she presented on behalf of the family would have been returned to her. She stated that she was not aware whether the deceased married another woman but if he did her sister, the deceased mother would have informed her.  
According to PW2 the deceased married the 2nd plaintiff in 1990. She said she is in the photographs that is, exhibit G series. She contended that the marriage between the deceased and the 2nd plaintiff was not dissolved before his death. She said when 
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the deceased died, the 2nd plaintiff performed the customary rites as a wife and provided the items customarily required for bathing the corpse, and provided an ambulance and the coffin.  PW2 said the family and her still regard the 2nd plaintiff as the deceased’s widow.  
PW3 said the 2nd plaintiff her in-law as she was married to the deceased. PW3 said she knows the defendant. PW3 said in Fante tradition the mother of the groom does not attend her son’s traditional marriage so she delegated Grace Abbiw (PW1). PW3 said the marriage between the deceased and the 2nd plaintiff was not dissolved.    
Defendant tendered exhibits 9, 10 1nd 11notice of payment to court, receipts and hearing notice respectively as documents given to her by the deceased to indicate that he has no longer married to the 2nd plaintiff since 2001. Under cross- examination the defendant said she lived with the deceased as husband and wife for 10 years before he died. Under cross- examination the defendant stated that the deceased told her because he was no longer married to the 2nd plaintiff he paid maintenance into court. 
Learned counsel for the plaintiffs submitted in her written address that this issue could also be rephrased as “whether the marriage between the 2nd plaintiff and the deceased was ever dissolved.” She stated that the defendant contended that she was the wife of the deceased and not the 2nd plaintiff and tendered exhibits 8, 9 , 10 and 11 which are a letter headed “Re Your Marriage With Miss Vivian Clottey” dated 10th September, 2001, a notice of payment into court, receipts and a hearing notice respectively. She stated that these exhibits do not provide proof of the fact that the marriage between the deceased and the 2nd plaintiff had been dissolved. She relied on Sections 10 (1), 12 (1) and 12(2) of NRCD 323,   Barkers-Wood v. Nana Fitz [2007-2008] SCGLR 879 and  Tuakwa v. Bosom [2001-2002] SCGLR 61.  
Plaintiff’s counsel said counsel for the defendant sought to suggest that since the 2nd plaintiff and the deceased were not cohabiting, their marriage had ceased to subsist. She asserted that this argument is untenable in law. She cited In Re Amarteifio (Dec’d): Amarteifio v. Amarteifio [1999-2000] 2 GLR 781 CA which held that long separation does not constitute dissolution of the marriage especially where no steps were taken in that direction unless the couple clearly intended it to be so and did acts inconsistent with the marriage relationship. Learned counsel for the 
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plaintiffs stated that the witnesses for the plaintiffs testified that the marriage between the deceased and the 2nd plaintiff was never dissolved.  She said when the deceased died the 2nd plaintiff performed the customary rites as a wife. She asserted that the defendant has not discharged the burden of proving that the deceased and the 2nd plaintiff were not married at the time of the deceased’s death and submitted that the 2nd plaintiff had a subsisting marriage at the time of the deceased’s death. 
Learned counsel for the defendant submitted in his written address that the 2nd plaintiff has not been truthful to the court. He asked how a woman enjoying her marriage with her husband with whom she was living under the same roof be collecting her maintenance money from the court? He asserted that the 2nd plaintiff claimed under cross-examination that she left her husband’s residence at IBE in 2007 but before then she was collecting money in court. He submitted that the 2nd plaintiff was no longer in the marriage even though no formal ceremony has been done signifying that the marriage was over.  
He added that under cross-examination the 2nd plaintiff said she was not the one who took the deceased to hospital at Winneba and that she gave money to the deceased mother who added some at pay for the deceased’s medical expenses. The defendant’s counsel said it is curious that a woman who claimed she was in a marriage would send her alleged contribution to the mother of the deceased to cater for hospital bills. He concluded that the 2nd plaintiff was not the surviving spouse of the deceased at the time of his death.  
From the evidence adduced including exhibits tendered it is obvious that the 2nd plaintiff was not living with the deceased and they had serious marital issues which took them to lawyers and even to court for resolution. It is also a fact that their marriage was never formally dissolved. Learned counsel for the defendant’s submission that the 2nd plaintiff was no longer in the marriage even though no formal ceremony has been done signifying that the marriage was over cannot be accepted by the court. This is because marriage is a status and not a role as explained earlier in this judgment. Based on the reasons stated in this judgment, I find as a fact that the 2nd plaintiff was married to the deceased at the time of his death. 
Concerning the issue of whether or not the 2nd plaintiff was married to the deceased under the Ordinance CAP 127, under cross- examination the 2nd plaintiff said she 
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was not wedded to the deceased but that on the Sunday after the customary rites, they went to church and were blessed. She stated that the customary marriage was on the 30/11/1990 at her father’s residence in Bamboi, about 25-26 years ago. Under cross- examination PW2 said the deceased and the 2nd plaintiff had a traditional marriage. 
Learned counsel for the plaintiffs submitted in her written address that this issue was struck out on the 28/04/2014 at the application for direction stage. She stated that the 2nd plaintiff never alleged that she was married to the deceased under CAP 127. 
The facts and evidence adduced by all the parties indicate clearly that the 2nd plaintiff and the deceased were not married under CAP 127. 
With respect to the issue of whether or not the deceased stayed with the defendant for eight years under the same roof in a rented premise, the defendant gave evidence that she lived with the deceased at IBE (St. Mary’s) for eight (8) years before they moved to the house at Kasoa on the 15/05/11, 01/05/11 a Sunday, where he lived till he died. The defendant said the 1st plaintiff who is the deceased’s uncle, used to visit the deceased and her when they were at IBE. The defendant stated that she lived with the deceased from 2003 and had their daughter Wilhelmina in 2006 in the IBE (St. Mary’s) house so the 2nd plaintiff’s evidence that she left the said house in 2007 cannot be true. Under cross- examination the defendant denied that during her stay with the deceased none of his relatives’ saw her in the house. She said when they lived at IBE, the 1st plaintiff used to come to the house for visits but never greeted her. She stated that the deceased told the 1st plaintiff that she the defendant was his wife so if he, the 1st plaintiff would not greet her, he should not come to the house again. She added that the deceased told the 1st plaintiff that it was the defendant who took care of him to enable him go to work and get money to give them when they visited. According to the defendant since 2009 when the deceased said that to the 1st plaintiff, she never set eyes on him until when the deceased was admitted at Winneba.  Under cross- examination the defendant said by 2001, the 2nd plaintiff had left the deceased house, before she went to live with the deceased.  
The 1st plaintiff said he does not know how long the defendant lived in the house with the deceased nor how long she lived with the deceased. He asserted that the family did not have the right to ask the defendant anything whilst she lived with the 
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deceased. PW2 said she used to visit the deceased twice a week when he was at St. Mary’s but never saw the defendant there. 
Learned counsel for the plaintiffs submitted in her written address that the deceased’s twin sister Akweley and other family members who testified denied that the defendant lived together with the deceased in the same house for ten years.  She said the defendant failed to prove that she had lived with the deceased in the same house. She stated that the defendant’s evidence was discredited by the plaintiffs and their witnesses. She said the fact that the defendant had a child with the defendant alone did not satisfactorily prove that they were man and wife or that they lived under the same roof for as old as the child was. 
The evidence led indicates clearly that the defendant was living with the deceased for a period of time until his death but the court is not in a position to make any finding of fact as to whether or not the deceased stayed with the defendant for eight years under the same roof in a rented premise. 
To determine the issue of whether or not the defendant took care of the deceased’s medical bills when he was hospitalized until his death, the defendant tendered the receipts of the medications bought for the deceased as exhibits 5, 5A-5H. Under cross- examination the 1st plaintiff said he did not know that throughout the hospitalization of the deceased it was the defendant who took care of him at the hospital and in the house. He stated that they got to know through a relation who informed them that the deceased had been admitted to the hospital. It asserted that it was when they went to visit the deceased at the hospital that they met the defendant. Under cross- examination the 1st plaintiff admitted that the defendant took care of the deceased when he was hospitalized but added that their relations at Winneba also assisted by taking the deceased clothes home to wash amongst others. 
Learned counsel for the plaintiffs submitted in her written address that the defendant tendered some exhibits to show that she paid some medical bills during the period the deceased was hospitalized before his death. She added that the 2nd plaintiff and the deceased family also took care of the deceased when he was sick.   
The evidence led is that the defendant took care of the deceased’s medical bills when he was hospitalized until his death. 
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On the issue of whether or not the deceased and the defendant moved their marital home at Kasoa and stayed there till his death, the 2nd plaintiff stated that she never lived in that house because of her work but the children moved in and out. She said she could not tell whether the defendant lived with the deceased for some uninterrupted years or not. She asserted that she had no idea that the defendant lived with the deceased for two years in the house at Kasoa.   
Learned counsel for the plaintiffs submitted in her written address that since the defendant and the deceased were not married there could not have been a marital/ matrimonial home. I agree with learned counsel for the plaintiffs’ submission herein.  
The next issue is whether or not the deceased had the intention to convert their marriage into an ordinance marriage. The defendant stated that the deceased promised to perform the traditional marriage and ordinance marriage. She tendered in evidence the receipts for the marriage rings and the rings as exhibits 6, 7, 7A, 7B and 7C. According to the defendant, the deceased and she put the ring on each other’s fingers in their room and she asked whether the 2nd plaintiff would not be a problem and the deceased said no and gave her a letter dated 10/09/2001 tendered as exhibit 8. Under cross- examination the defendant said the deceased paid GH¢1,080.00 for the said rings. DW1 testified that the deceased came to his shop to buy a set of wedding rings at GH 1, 080.00 as per exhibit 6. He said the deceased brought his wife, the defendant and he took their ring size. He said exhibit 7 is exactly the ring he made. Under cross-examination DW1 said the deceased and defendant did not tell him anything when they came to the shop and the deceased said they wanted rings. Under cross-examination DW1 said parties who are already engaged buy just the wedding bands but those not engaged buy a third one.  
According to DW2 the defendant told him she and the deceased had agreed to have an ordinance marriage and when everything is ready she will tell him to inform the family but did not know whether the arrangement were set before the deceased died.   
Learned counsel for the plaintiffs submitted in her written address that the deceased may have had an intention to convert their relationship into a marriage, customary or ordinance but he never did. She said there was never a marriage of whatever form to have been converted into an ordinance one.   
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The evidence adduced indicates that the deceased may have wanted to perform the formal marriage ceremonies with the defendant but he did not until his death. 
On the issue of whether or not the deceased contributed to the funeral of the deceased, the 1st plaintiff said two days before the funeral of the deceased they received an order of injunction restraining them from the burial and tendered exhibits B and B1 as the Writ of Summons and motion on notice for an Order of Interlocutory Injunction, both filed on 17/4/13. The 1st plaintiff testified that the injunction was not granted and the court asked them to bury their dead. He said he incurred GH¢ 3,000.00 to defend that action and tendered exhibit C.  He contended that he took a loan and the GH¢ 3,000.00 from friends. He asserted that they decided to pay for the loan from the estate of the deceased. The 1st plaintiff said they invited the defendant, upon the death of the deceased since she was his girlfriend or concubine. The 1st plaintiff asserted that the defendant did not contribute in any way towards the funeral. He said the family spent GH¢21,159.00 on the funeral, on drinks, food, chairs, canopies etc. The 1st plaintiff said he had receipts on hospital bills and the lawyers’ fees as exhibits D and E.  Under cross- examination the 1st plaintiff admitted the family collected money from the defendant for the funeral and explained that in Fante custom there is a practice called “Adakansidu” that is an acceptance to bury one’s father and that was what the defendant paid. He stated that if one pays the “Adakansidu” it means the person has agreed to bury her son’s father. 
The 2nd plaintiff contended that upon the death of the deceased, she performed custom, bought the coffin at GH¢500.00, paid for half of the cost of the hearse and was given a list of items expected from the widow. She said she bought all of them and added GH¢500.00.  She said the defendant was part of the funeral celebration. She said the defendant was not assigned any role in the celebration and explained that where she and the deceased hail from, girlfriends do not perform any function in the funeral of a deceased man. 
PW2 gave evidence that when the deceased died, the defendant also performed the customary rites. She said the family demanded GH¢200.00 from the defendant on behalf of the child for her father’s burial. PW2 tendered a copy of the obituary prepared by the family as exhibit 2. PW2 said the defendant was not present at the deceased funeral ceremony.  
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Under cross- examination PW3 said the defendant had a child with the deceased so she had to contribute towards his funeral. She explained that the defendant paid as a girlfriend and not as a wife.  
The defendant said she contributed to the deceased funeral. She said she was told the coffin cost GH¢400.00 and the three children of the 2nd plaintiff paid GH¢200.00 whilst she paid GH¢200.00 on behalf of her daughter. She explained that she went to court for an injunction on the deceased funeral because as her husband she took care of him when he was ill at the hospital and paid the hospital bills but when he died the family excluded her name from the obituary.  
Under cross- examination DW2 said the misunderstanding that caused them not to attend the deceased funeral was that the deceased had divorced his wife and gotten a new woman who had stayed with him for 13 years and when he died the family did not put the name of the current wife on the obituary. DW2 said the defendant paid the said GH¢200.00 when the deceased died on behalf of her daughter Wilhelmina for the funeral. DW2 said at Zongo Junction the 1st plaintiff told them, the deceased family was only going to use the 2nd plaintiff’s name in the obituary and he refused hence he and the defendant took the matter to court to restrain the deceased family from carrying out the funeral. DW2 admitted that their attempt to restrain the funeral of the deceased failed in court, and they were upset hence they did not attend the deceased funeral. 
Learned counsel for the plaintiffs submitted in her written address that the defendant made no contribution towards the funeral of the deceased. She stated that the defendant only paid GH¢200.00 on behalf of her daughter to prove that her father had died and she had agreed that her father be buried. She stressed that the defendant took steps to prevent the deceased funeral so she could not have contributed positively to something she was against.    
From the totality of the evidence led, the deceased contributed very little to the funeral of the deceased and she did not attend the deceased funeral.  
With regards to the issue of whether the plaintiffs have the capacity to select a wife for the deceased, learned counsel for the plaintiffs submitted in her written address that the plaintiffs have not alleged that they selected a wife for the deceased or had the right or responsibility of doing so.  She stated that the plaintiffs being the wife 
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and uncle of the deceased, it was only proper in our traditional setting that if he wanted to marry another wife he would seek the assistance and support of the plaintiffs who are his family.  
It is obvious that the plaintiffs do not have the capacity to select a wife for the deceased. 
Learned counsel for the defendant relied on Sections 10(1), 10(2),11(1), 14 of the Evidence Act, Barkers-Wood v. Nana Fritz [2007-2008] SCGLR 879, Bisi v. Tabiri [1987-88] 1 GLR 386, Owusu v. Tabiri &Anor [1987-88] 1 GLR, Zabrama v. Segbedzi [19991] 2 GLR 221, Faibi v State Hotels Corporation [1968] GLR 47, Bank of West Africa Ltd v. Ackun [1963] 1 GLR 176, Ackah v. Pergah Transport Ltd. [2010] SCGLR 728, Mojolagbe v. Larbi [1959] GLR 190, Essilfie v. Quarco [1992] 2 GLR 180, In Re Dickson alias Appiah, Aboagye and anor v. Quayson and anor [1989-90] 1 GLR 147, Gorleku v. Pobee and Anor [2012] 42 GMJ, Ginbuuro and anor v. Kaba [1971] 2 GLR 416 and quoted Sections 16A and 17 of the Intestate Succession Law 1985, PNDCL 111 (as amended) and Order 66 of the Civil Procedure Rules, C.I. 47 (as amended) in support of their counterclaim. 
An evaluation of the evidence adduced indicates that the plaintiffs have discharged the burden of proof on them with respect to some of their reliefs as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). Judgment is therefore entered in favour of the plaintiffs against the defendant herein for only the following reliefs sought, i, ii and iv. For the avoidance of doubt the other reliefs, iii,v,vi,vii, viii and ix have not been granted or are dismissed. This is because the evidence led shows that both the 2nd plaintiff and the defendant have been put through much pain and expense with respect to their relationship with the deceased. The administrators of the estate are deemed to know their duties or responsibility and it is not for the court to give them orders as to what to do, unless it is made clear to the court that they have failed to perform their functions as required by law then the court will intervene to protect the interest of the beneficiaries.   
The defendant counterclaimed the following reliefs: 
I. The said Letters of Administration granted to the Plaintiffs be declared illegal and same declared a nullity. 
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II. She as the surviving wife of the deceased is entitled to a grant of Letters of Administration in respect of the estate of her late husband.  III. Declaration that the said House is the property of my (sic) late husband and our marital home.  IV. Cost. 
A counterclaim is a separate claim in which the defendant becomes the plaintiff or the party with the burden of proof with respect to the reliefs sought. The evidence of all the parties and the submissions made by their counsel with respect to the counterclaim has been discussed above in this judgment and I do not wish to repeat same. From the totality of the evidence adduced I have no option than to find that the defendant has not established her counterclaim and therefore same is dismissed.    
I have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and circumstances of this case and come to the conclusion that due to the relationship the deceased had with the 2nd plaintiff and the defendant it is in the interest of justice not to award any costs in this case.  There is no order as to costs with respect to both claims herein.   
                                                         (SGD.) 
GEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)   
Counsel:                                                                                   
1. Ms. Candy Frimpong Baidoo for Plaintiffs. 
2.  Mr. Nii Bi Ayi Bonte for Defendant.  