HIGH COURT, KUMASI
DATE: 12 NOVEMBER 1970
TAYLOR J.
CASES REFERRED TO
(1) Osei Yaw v. Nsiah, High Court, 23 October 1968, unreported; digested in (1969) C.C. 78. (2) Adjei and Dua v. Ripley (1956) 1 W.A.L.R. 62.
(3) Manu v. Kuma [1963] 1 G.L.R. 464, S.C.
NATURE OF PROCEEDINGS
MOTION by the defendant’s counsel for the determination of a preliminary issue whether or not an action for maintenance was properly before the court. The facts are fully set out in the ruling.
COUNSEL
William Prempeh for the plaintiffs.
A. Agyepong for the defendant.
JUDGMENT OF TAYLOR J.
In this case the plaintiffs’ claim against the defendant endorsed on the writ of summons is as follows: “(a) An order of the court upon the defendant to subsist and maintain and educate the second and third plaintiffs until they attain the age of manhood.
(b) An order of the court upon the defendant to pay to the first plaintiff the sum of N¢576 or £G288 representing expenses incurred by her in respect of second and third plaintiffs towards their living, maintenance and subsistence from the date of death of their father until the date of the action reckoned at N¢0.80 or 8s. per day (i.e. from 4 February 1966 to 28 February 1968).
(c) Mesne profit.
(d) An order of the court upon the defendant to maintain the first plaintiff as from the date of her husband’s death until she may get married or in the alternative until her death.”
[p.58] of [1971] 1 GLR 56
The defendant is admittedly the customary successor of one J. E. Appiadu (deceased) the husband of the first plaintiff and the father of the second and third plaintiffs. The claim of the plaintiffs is substantially a claim to be maintained by the defendant from the date of the death of the said Appiadu in the case of the first plaintiff for life or until she marries and in the case of the second and third plaintiffs until they are of age. It is not necessary to go into the pleadings at all. One of the issues formulated in the statement of defence and filed by the defendant at the summons for direction and on the basis of which inter alia the action was to proceed to trial is: “Whether or not the plaintiffs’ action is in law premature or misconceived.”
Proceeding apparently under Order 25, r. 3 of the Supreme [High] Court (Civil Procedure) Rules 1954 (L.N. 140A), counsel for the defendant has moved this court to set down this issue for hearing on the ground that it will substantially dispose of the matter. Of course in the affidavit in support of the motion it was conceded that the claim of the first plaintiff for maintenance in her own right as the wife of the deceased J. E. Appiadu is outside the scope of the motion. Accordingly claim (d) of the writ of summons was excluded from the present application.
The mainstay of the argument of counsel for the defendant is the Maintenance of Children Act, 1965 (Act 297). Under section 1 of that Act it is provided as follows: [His lordship here read the provisions of the section as set out in the headnote and continued:] The minister is enjoined if he considers it necessary to appoint a committee consisting of fit and proper persons to enquire into any application and make recommendation to him. Thereupon the minister, with the welfare of the child as his first and paramount concern can make his ruling on the application in accordance with the yardstick provided in section 4 of the Act. Under section 6 of the Act, it is provided that proceedings should not be instituted in court under the Act until the minister has had an opportunity of considering and ruling on the application.
Citing these provisions counsel referred to the case of Osei Yaw v. Akua Nsiah, High Court, Kumasi, 23 October 1968, unreported; digested in (1969) C.C. 78, decided by Annan J. In that case which was an appeal from a district court, the plaintiff-respondent had claimed at the district court arrears of maintenance and an order for future maintenance in respect of three children of her marriage with the defendant-appellant. She contended that the defendant-appellant had neglected to maintain the children for five years. After trial, judgment was given in her favour and the defendant appealed challenging the jurisdiction of the district court to hear the case in the first instance. He referred the appellate court to the Maintenance of Children Act, 1965 (Act 297), and submitted that the entire proceedings were a nullity.
Having regard to the provision of the Act already referred to Annan J. expressed a view with which I concur:
“It is clear from the statutory requirements [of Act 297] that the making of an application to the Social Welfare Department is a
[p.59] of [1971] 1 GLR 56
condition precedent to the exercise of jurisdiction by the district court in terms of Part II of the Act. There has to be a precedent application and a ruling thereon by the Department of Social Welfare and where an application is made under Part II of the Act the burden is on the applicant to show that these conditions have been satisfied.”
He therefore felt obliged to allow the appeal and set aside the judgment and order of the trial court holding that the trial was a nullity and advised the mother to make her application to the Social Welfare Department first before instituting an action. Counsel for the defendant therefore submits that the action of the plaintiff is premature and like the case decided by Annan J. the first plaintiff should be advised to make the application on behalf of the second and third plaintiffs to the Department of Social Welfare.
Furthermore counsel referred to section 25 of Act 297 which defined “court” as “the District Court” and submitted that the present proceeding before the High Court is misconceived and that the High Court has no original jurisdiction in the matter and that under section 24 of the said Act the jurisdiction of the High Court is merely appellate.
Attractive as these arguments are, I think they are misconceived. It seems to me that sections 1 and 8 of Act 297 would seem to be directed inter alia at a father who wilfully neglects to provide reasonable maintenance for his infant child. Obviously it will be stretching language too far to interpret “father” in this context as “father or any person in loco parentis or personal representatives of the father” as counsel suggested when I drew his attention to the wording of the sections. This is an action against the defendant as personal representative of J. E. Appiadu deceased the father of the second and third plaintiffs. It is not an action brought against a father who has wilfully neglected to maintain his infant child. It would seem
therefore that the case of Osei Yaw v. Nsiah (supra) may be distinguishable. That case is very short and it is not clear whether the plaintiff-respondent brought her action under Part II of Act 297. This raises the further question as to whether the right under customary law of a child to be maintained by his father exemplified in a case like Adjei and Dua v. Ripley (1956) 1 W.A.L.R. 62 has been superseded by a statutory obligation contained now in the Maintenance of Children Act, 1965 (Act 297). If this is so, and if “father” in Act 297 were to be construed to mean “personal representative of the father,” then it would seem that the contention of the defendant must succeed and the district court and not the High Court must be the proper forum having regard to the definition of “court“ in section 25 of Act 297. I think however that generally speaking the customary law right of a child remains unaffected by the Act. And if by any process of reasoning it can be argued that the child’s rights have been affected, then it is my view that the Act cannot have affected the child’s rights adversely and if anything the Act was designed, and a close study of its provisions shows that it was meant, to improve and ameliorate’ not derogate from, the child’s rights: section 6 of Act 297 states:
[p.60] of [1971] 1 GLR 56
“No proceedings shall be instituted under Part II or III of this Act unless an application has first been made and a ruling made thereon in accordance with the provisions of this Part.”
Throughout the Act the expressions: “Proceedings under … this Act,” and “application under … this Act” appear so profusely and so persistently as to suggest that a new procedure and a new remedy additional to existing remedies exigible at the district court, are being forged for the benefit of neglected children. Now under customary law the amount which the father or the successor is to spend for the maintenance of the children is a reasonable sum the quantum of which is limited in the case of the father by a consideration of his means and in the case of the successor by the amount of money he has inherited. Now under section 9 of Act 297 the amount of maintenance payable is an amount not exceeding N¢10.00 a month. The sum under customary law because it has no upper limit would therefore seem to be more beneficial to the children than the sum under the Act. Is it to be taken that the legislature has abrogated the more beneficial customary right by a provision which merely regulated procedures by which a new remedy was given? I think not.
I am fortified in this view by a consideration of the Supreme Court case of Manu v. Kuma [1963] 1 G.L.R. 464, S.C. In that case the widow claimed from the customary successor a sum of £G2,500 being the amount she had spent for the education and maintenance of four children of the deceased. The Commissioner of Assizes and Civil Pleas at the High Court in Kumasi on 16 June 1960 dismissed her claim. She appealed and the Supreme Court, van Lare, Akufo-Addo and Ollennu JJ.S.C. allowed the appeal. van Lare J.S.C. delivering the judgment of the court in favour of the appellant concluded at p. 471 that:
“Having regard to the cost of living and of educating a child up to the middle school we are of opinion that the sum of one thousand Ghana pounds (£G1,000) would not be an unreasonable sum to award as a contribution by the defendant to the plaintiff in this case.
We accordingly allow the appeal. The judgment of the court below is set aside. We enter judgment for the plaintiff in the sum of one thousand pounds.”
It is noteworthy that the order which the court is empowered to make aforesaid under Act 297 is a maintenance order for the payment of such sum not exceeding N¢10.00 a month for the maintenance and education of the child as, having regard to the means of the father and of the mother, the court thinks reasonable. It is also worthy of note that the Act is silent as to the refund to the mother of any sum she may have spent on the maintenance and education of the child before the institution of proceedings. This is understandable. The Act was designed principally to make provision for the maintenance of neglected children. It was forward-looking and as the proviso to section 4 thereof puts it, the “welfare of the child”
is “the first and paramount consideration. “The legislature did not go debt collecting for the mother or applicant in respect of past maintenance. That is something in the interest of the mother or the applicant
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and they are adult enough to look after their own interests. That did not concern the child. Is it to be supposed that the legislature by Act 297 intended to deprive the widow of her right to have the sum she had expended on the children refunded to her by the customary successor? I think not. Claim (b) of the first plaintiff is therefore clearly not within the contemplation of the Act and in my view this claim analogous as it is with the claim in Manu v. Kuma (supra) is a strong argument in favour of the view that Act 297 has not abrogated existing rights under customary law. Indeed it is my view that if in Osei Yaw v. Nsiah (supra) the plaintiff-respondent was proceeding under customary law and not under the statute then the dismissal of her claim implicit in allowing the appeal of the defendant-appellant is difficult to understand. But of course the decision seemed to have been based on the assumption that the plaintiff-respondent instituted her action under the Act. With that as a base the decision is clearly unexceptionable although the fact that it was arrears of maintenance the widow was claiming would seem to indicate that the claim can’t possibly be under the Act. This will with respect cast some doubt on the validity of the ratio decidendi in the case.
Where for instance a plaintiff in an action for maintenance of a child is claiming say N¢12.00 a month as reasonable sum having regard to the means and condition in life of his father and conditions generally in the country, it is clear that such an action should not be brought under Act 297, since such an award cannot be made under Act 297; but if indeed this sum is reasonable in the circumstance then the action is maintainable under customary law. Now if one uses the plaintiffs’ claim under head (b) as a basis it would seem she is claiming for two children N¢24.00 per month. Under Act 297 a claim for maintenance should not exceed, for two children, N¢20.00 per month. It is clear therefore that if she wants anything else above N¢20.00 as she apparently does, then she must not base her claim on the statute but she must come by the customary claim. This it would seem is precisely what the plaintiffs have done. Nowhere in the writ or in the statement of claim did she assert that she was proceeding under Act 297; on the contrary a close reading of the claim shows that it is based on customary law.
Furthermore under section 20 (3) of the Act it is provided:
“Where any sums payable under an order under subsection (1) of this section are in arrears the Minister shall, if the person for whose benefit the payment should have been made so requests in writing, and unless it appears to the Minister that it is unreasonable in the circumstances to do so, proceed in his own name for the recovery of those sums; but the said person shall have the same liability for all costs properly incurred in or about the proceedings as if the proceedings had been taken by him.”
This provision is clearly designed to assist the child of a poor mother who has not the means to incur costs in her efforts at securing maintenance for the child. This is a novel provision which makes the procedure under the Act a little more advantageous to the poor plaintiff than the
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customary law process. There are other provisions requiring the father to notify the clerk of the court where the maintenance order emanates of his change of address. All these lead irresistibly to the conclusion that the customary law right of a child to be maintained by the father and which right subsists against the successor to the extent of the estate coming into his hands is not the same as the statutory right for a maintenance order provided for under Act 297. Act 297, it would seem, is concerned in a limited way with future maintenance.
In the light of this it seems that the contention of the defendant that by virtue of the provisions of Act 297 the action of the plaintiff is premature or misconceived must fail. The further contention that by virtue of section 25 of Act 297 the High Court has no jurisdiction to entertain this suit is erroneous firstly because by virtue of section 27 (a) of N.L.C.D. 84, the High Court has original jurisdiction in all matters and secondly because as I have held in this ruling the successor is not the “father” as is envisaged in sections 1 and 8 of Act 297, and in any case Act 297 has not abrogated the rights of children or the liabilities of a father regarding maintenance as they exist under customary law.
Whatever merits the defendant’s contention may have, it is clear that the present motion can have no relevance whatsoever on claim (b) of the first plaintiff’s claim. That claim is clearly not within the purview of Act 297. The only claims which the defendant’s argument can possibly affect are claims (a) and (c) but having regard to the views which I have taken of the scope and purpose of Act 297, I think these claims are also outside the scope of Act 297.
I rule therefore that the plaintiffs’ action is not premature or misconceived in law. I rule further that this court has jurisdiction to entertain the plaintiffs’ action. I will therefore dismiss the defendant’s motion with costs assessed at N¢30.00.
DECISION
Motion dismissed.
B. T. A.
