HIGH COURT, KUMASI
DATE: 15TH FEBRUARY, 1962
BEFORE: APALOO, J.
CASES REFERRED TO
(1) Sowa v. Sowa [1960] 3 W.L.R. 733; [1960] 3 All E.R. 196; [1961] 2 W.L.R. 313.
(2) Adjei v. Ripley (1956) 1 W.A.L.R. 62
(3) Nubuor v. Ampadu, Court of Appeal,May 31, 1960 (unreported)
(4) Craven v. Craven (1957) 107 L.J. 505, C.A.
NATURE OF PROCEEDINGS
Appeal from a judgment of the circuit court which found for the plaintiff in an action against the defendant for past and future maintenance.
COUNSEL
I R. Aboagye for the appellant
J.E.C. Lutterodt for the respondent.
JUDGMENT OF APALOO, J.
The plaintiff was the customary wife of the defendant. She bore him five children whose maintenance and education are the subject-matter of this action. The parties were divorced about four years before the action and lived separate and apart. All the children lived with their mother, the plaintiff. The latter’s complaint is that since the dissolution of the marriage, the defendant shirked his parental responsibility as father of her children and provided no money either for their education or maintenance. The sums which she said she spent in the past she claims in the present suit as debt and also sought an order against the defendant for future maintenance. The learned circuit judge found in her favour on both issues and rejected the defendant’s claim that he had in fact provided for these children.
The defendant appeals against that judgment to this court on many grounds. I had the benefit of listening to a very able and interesting argument urged on his behalf by Mr. Aboagye.
The first and most serious argument put forward, and which counsel said was fatal to the suit was that the circuit court had no jurisdiction to entertain the suit. Founding himself on section 39 (1) (a) (iii) of the Courts Act, 1960,1(1)
(1) it was urged that as no legal custody was claimed nor awarded of the children to the plaintiff, an award of maintenance was not competent. Counsel contended that jurisdiction to award maintenance was ancillary to an order for custody and that legal custody as distinct from de facto custody was a sine qua non to a valid maintenance order. In support of this argument counsel referred me to Stone’s Justices Manual, (93rd. ed.) Vol. 1, p. 1263 and to Tolstoy on Divorce (3rd ed) p. 322. Contrariwise, Mr. Lutterodt for the respondent argued that de facto custody was sufficient and that once paternity was admitted the burden lay on the defendant to prove that he has maintained his children. Had the marriage of the parties been contracted under the provisions of the Marriage Ordinance,2(2)
(2) then the incidents of English law would have applied wholesale to this case, and Mr. Aboagye’s forceful argument would have been wholly unanswerable. English law does not recognise marriages contracted under our native custom on the ground that such unions are potentially polygamous and does not accord parties married under that system English matrimonial relief (see Sowa v. Sowa3(3)
(3) nor children begotten of that marriage. In those circumstances it would, in my opinion, be wholly wrong to decide questions relating to the matrimonial rights and obligations of persons married according to custom by the application of the rules of such law.
[p.84] of [1962] 1 GLR 82
In customary law all children whose paternity is acknowledged by their father are, as I understand the law, children for the purpose of imposing obligations on their father. In English law, children born out of wedlock and other issues of irregular unions are filii nulii and are cared for by the Bastardy Acts.
In this country, it is a principle of native customary law that a father is primarily responsible for the maintenance and education of his children. This principle has now been crystallised by a decision of the High Court in Adjei v. Ripley.4(4)
(4) Where husband and wife live together no question is likely to arise as to maintenance of his children since in normal cases the father would provide for himself and the family. A dispute normally arises where, as in this case, the parties are living apart or where the child is begotten as a result of a casual union. In either of these cases, a claim against the father for maintenance would arise only if the children live with their mother or some person who stands as mother to the children. Accordingly, an order for maintenance against a father is and can only be made on the assumption that either their mother or someone else had custody or control of the children. I am not aware of any rule of native custom which obliges a mother to seek an order of legal custody in court as a condition of making a claim against their father for maintenance. The researches of counsel produced no such law. In my opinion, de facto custody in the mother is sufficient basis for a claim against a father for the maintenance of his children. Section 39 (1) (a) (iii) on which counsel for the appellant relies is an enabling section. It empowers the court to make orders for the custody of infants obviously in those cases where the right to custody is an issue before the court. I cannot see that it imposes an obligation on the mother who has custody of the children to seek a purposeless court order for custody as a condition for making a claim for maintenance against a father. Since, as counsel himself concedes, an order for maintenance is a relief ancillary to a custody order, and as the circuit court has jurisdiction to make a custody order, it follows, a fortiori, it has jurisdiction to make an order for maintenance.
In my opinion, this jurisdiction exists even if a custody order was not sought or made. I find support for this view in the very case of Adjei v. Ripley5(5) (1956) where the court made an order for past and future maintenance although no custody order was sought or made. With regard to the claim for past maintenance, since it is in the nature of a debt which does not exceed the sum of £G500 the circuit court has jurisdiction under section 39 (1) (a) (i). In my opinion, the circuit court was seized with jurisdiction over the whole case and this ground of appeal fails.
The second ground of appeal argued is that the learned circuit judge was wrong in entering judgment for the plaintiff for the amount claimed for past maintenance as that sum has not been strictly proved. I feel some sympathy for the defendant on this ground since a debt must be strictly proved. But this claim is not in its true sense a debt, but a personal obligation imposed by customary law on a father on the principle that child bearing and responsibility must go hand in hand. To require it to be proved strictly as an ordinary contract debt would defeat the object of the law.
In a sense, judgment on a claim of this nature lends itself to some degree of arbitrariness as the court awards not what is proved on the evidence but what it considers fair and reasonable. But one ought to
[p.85] of [1962] 1 GLR 82
depend, in a large measure, on the good sense of the tribunal. In this case, the claim for £G5 per month as maintenance for five children seems to me entirely reasonable. One great snag about them, however, is that claims for past maintenance are by the very nature of things, stale claims and one can only that the legislature would one day consider the desirability of limiting the time within which claims for past maintenance should be brought. I see no ground for interfering with the aggregate amount awarded for the past four years or the £G20 awarded in respect of uniforms, books, etc. This ground of appeal equally fails.
The only other ground of appeal which was argued seriously is that the judgment was unsatisfactory inasmuch as it wholly consisted of a recital of the evidence of both parties without any finding of fact. I was referred to the case of Nubuor v. Ampadu.
(5) In that case the Court of Appeal basing itself on the English case of Craven v. Craven said among other things: “if the question what were the facts found could not be answered with precision and particularity the judgment ought to be held to be unsatisfactory”. I confess that, I would have been happier had the learned circuit judge felt able to put the reasons for his conclusions on paper more fully than he did and I was at one time rather inclined to remitting this case for a retrial. I have however come to the conclusion that no real justification exists for
doing so in this case.
The only real issue which the learned circuit judge was asked to determine is whether the defendant who was proved to be a man of means had shirked his parental obligation of maintaining his children.
The judgment of the court shows that that question was answered in the affirmative. The court said: “In this particular case plaintiff has proved that since the dissolution she has been responsible for the maintenance of the children”. I think this ground of appeal must also fail.
The appellant also complains against two orders made by the court. One is: “Defendant to take over the responsibility of Kofi Tome in the secondary school”. Kofi Tome, a boy, seems to be the eldest child of the plaintiff. The evidence is that he was at the time of the action living with his uncle, the plaintiff’s brother, and attending secondary school at Sekondi. He gave evidence for the father and said his uncle with whom he was living was well to do and looked after him very well. In fact he said he went to live with that uncle at the latter’s own request and with the defendant’s prior approval. It is wholly in keeping with Ghanaian habits for children to live with and be cared for by wealthy relations who sometimes find it a pleasure to educate them. I can see no ground for disturbing the harmonious relationship which, on the evidence, seems to exist between Kofi Tome and his uncle by a mandatory court order that the defendant should take over responsibility for his education. In my opinion, the learned circuit judge was not justified in making that order. The defendant is entitled to have it expunged and I hereby expunge it from the judgment.
The defendant also complains that the order for the payment of maintenance is ambiguous and unsatisfactory. That order reads: “I hereby order that defendant do pay to plaintiff the sum of £G10 every month beginning from the end of this month towards the maintenance and education of the children. Payment of £G10 per month to cease when
[p.86] of [1962] 1 GLR 82
each child attains 21 years.” It is against the second limb of the order that the charge of ambiguity is made. Counsel for the respondent frankly admits that he also found that limb of the order difficult to construe. I share that difficulty. The learned circuit judge was making an order for £G10 per month for the education and maintenance of five children. That works out at £G2 per head per month. I think what he means in the second limb of the order is that the payment pro rata in respect of each child shall cease if and as each child attains the age of 21 years. Put in this way I think the order is unobjectionable. I consider however that liability to maintain up to full age is much too long. A child passes out of parental control long before attaining majority. In England, a maintenance order ceases at sixteen. In all the circumstances I think the father’s liability to maintain ought to cease at seventeen in this country. I will accordingly substitute seventeen years for the age of 21. Kofi Tome will be
seventeen years this year and I consider that there should be no mandatory order against the defendant for his maintenance. In any event he is comfortably settled with his uncle in Sekondi and it would not be right to saddle the defendant with liability for his maintenance. I will reduce the sums awarded to the plaintiff for future maintenance and education pro rata by £G2. I accordingly vary the order as follows: “The defendant shall pay to the plaintiff the sum of £G8 every month for the maintenance and education of the four children of the marriage. A sum proportionate to the share of each child shall cease to be payable if and when each child attains the age of 17”. Save as varied the judgment of the circuit court is affirmed and the appeal is dismissed. I hereby discharge the order of stay of execution granted by this court on the 18th December, 1961. The appellant will pay the costs of this
appeal.
DECISION
Judgment of circuit court affirmed save as varied.
