HIGH COURT, CAPE COAST
DATE: 17 JULY 1967
BEFORE: ARCHER J.
CASES REFERRED TO
(1) Warren v. Warren [1925] P. 107; 94 L.J.P. 68; 133 L.T. 352; 41 T.L.R. 599; 69 S.J. 725.
(2) W. v. W. (1964) P. 67; [1963] W.L.R. 540; [1963] 2 All E. 841; 107 S.J. 533, C.A.
(3) Whitehall v. Whitehall 1958 S.C.
(4) Ahima v. Kuma (1916) D.C.A.L 199.
(5) Midland Silicones Ltd. v. Scruttons Ltd. [1962] A.C. 446; [1962] 2 W.L.R. 186; [1962] 1 All E.R. 1; [1961] 2 Lloyd’s Rep. 365; 106 S.J. 34, H.L.
(6) United Australia, Ltd. v. Barclays Bank, Ltd. [1941] A.C.1; (1940) 4 All E.R. 20; 109 L.J.K.B.
919; 164 L.T. 139 57 T.L.R. 13; 46 Com. Cas. 1, H.L.
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(7) Myers v. Director of Public Prosecutions [1965] A.C. 1001; (1964) 3 W.L.R. 145; 108 S.J. 519; (1964) 2 All E.R. 881; 48 Cr. App. R. 348, H.L.
(8) In re Curtis [1859] 28 L.J. Ch. 458; 34 L.T. (o.s.) 10; 23 J.P. 708; 5 Jur. (N.S.) 1147; 7 W.R. 474.
(9) Wellesley v. Duke of Beaufort [1827] 2 Russ. 1; 5 L.J.Ch. (o.s.) 85; afffirmed sub nom. Wellesley
v. Wellesley (1828) 2 Bli. (N.S.) 124; 1 Dow. & Ch. 152, H.L.
(10) Yerenchi v. Akuffo (1905) 1 Ren. 362.
NATURE OF PROCEEDINGS
APPEAL from a decision of a district court granting to the husband custody of children born in adultery to the wife during the subsistence of a customary law marriage. The facts are fully set out in the judgment.
COUNSEL
Ampiah for the appellant.
Carson for the respondent.
JUDGMENT OF ARCHER J.
The parties in this suit were customarily married for about fourteen years before the marriage was dissolved on 2 March 1966. There were four children born during the marriage. When the wife was leaving the matrimonial home at Nyakrom after the dissolution of the marriage, she took away with her the two younger children, namely, Kofi Gyasi Mansu then four-and-a-half years old and Kwasi Addae Mansu then two years and two months. The husband after an unsuccessful attempt to regain custody of the children issued a writ of summons at the Swedru District Court claiming from the wife and the wife’s new husband called Dravie, custody of the two children. When the matter came on for hearing Dravie was struck out from the suit. The wife’s contention was that the two children were the issue of an adulterous association with Dravie while her marriage with the husband was subsisting and that Dravie was the father of the children. She maintained that after seven years of marriage when the first two elder children had been born the husband became impotent and by mutual agreement the husband entreated her to stay in the matrimonial home and call him uncle and, presumably with unbridled licence to her, to satiate herself sexually with paramours wherever they may be found. The wife registered the names of the two children in the names given them by the husband. The husband revealed what wealth he had amassed for the benefit of all the four children and that although he had not re-married, he had servants in his household who could look after these two children. After having heard Dravie a witness for the wife and addresses by counsel for both parties the learned trial magistrate granted custody
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of the two children to the husband. In support of his decision the learned trial magistrate quoted from Dr. Danquah’s Akan Laws and Customs at p. 187: “as regards the custody of children in general, the law is clear on the point. A child belongs to his father — or rather to his father’s household, and so long as the child remains with his parents his custody is in the hands of the father. A mother cannot take a child away from the father. If the child is young the father may be ordered by Tribunal to leave it in the nursing hands of its mother. After the first two or three years of infancy a father can always claim possession of his lawful child.” The wife being dissatisfied with the decision appealed to this court. I shall henceforth refer to the wife as the appellant and the husband as the respondent. When the parties appeared for the first time for the hearing of the appeal on 15 March, I had discussion with their counsel in court and I adjourned further hearing to 30 March 1967 to enable the parties to file affidavits disclosing any fresh evidence they wished to rely on. The affidavit filed by the respondent revealed that on 15 September 1966 he was granted an adultery fee of £G7 10s. against Mr. Dravie for having sexual connection with the appellant during the marriage of the parties. The appellant’s affidavit alleged that the respondent was the friend of Mr. Dravie and that the respondent knew of her clandestine association with Mr. Dravie and that he condoned and connived at it and that he knew that the children were not his. Mr. Ampiah for the appellant submitted that the respondent had not re-married and had nobody to look after these young children. Mr. Carson for the respondent submitted that customary law was in favour of the respondent who was an Akan, as was the appellant, whereas Mr. Dravie was not.
After having seen the appellant, the respondent, all the four children of the marriage and Mr. Dravie in court and after observing their facial features, I had the intuitive conviction, although I did not express it in court, that one of the children in dispute, especially Kofi Gyasi Mansu now about five years, could be described as “a chip off the old block” – the old block being the respondent. When I asked this young child in open court who was the respondent he exclaimed in a voice filled with disgust and fright – “He is my brother’s father.” I must confess I was completely disarmed by this exclamation from the ignorant but innocent lips of this child. After careful thought and in view of the appellant’s own confession of adultery with Mr. Dravie, my mind was preoccupied with the words of Swift J. in Warren v. Warren [1925] P. 107 at p. 112:[p.527] of [1967] GLR 523
“Any woman may, and some do, have sexual intercourse with more than one man in the course of a few hours; and if a woman has within the period during which conception must have taken place had connection with more than one man, she is only guessing, on more or less data, as to which is the father of the child. But the law presumes that if one of those men is her husband, the child is his.”
I was concerned that these two young children, who had been living with the parties in the matrimonial home at Nyakrom then known to be the lawful issue of the parties, should be bastardized by their mother after the dissolution of the marriage. I therefore adjourned further hearing to enable me to consider what could be done to preserve the status quo bearing in mind what Sarbah in his Fanti Customary Laws (3rd ed.) has written at p. 52:
“The issue of an adulterous connection is illegitimate, and cannot be made legitimate by the subsequent divorce of the woman and her marriage with her paramour … Such son is illegitimate, and cannot have any interest whatsoever in the house of his putative father ….” That is the case in the present suit; as the parties have been divorced and the appellant maintains that these two children were born in adultery, these children cannot be legitimated by the marriage between the appellant and Mr. Dravie. But Mr. Dravie is not an Akan. On 10 April 1967, when the hearing resumed, Mr. Carson, counsel for the respondent asked leave to withdraw from the appeal. The respondent informed the court that his counsel was withdrawing at his (respondent’s) request. Leave was therefore granted Mr. Carson to withdraw. The respondent then submitted that according to Fanti Customary Laws (he quoted p. 44 of Sarbah’s textbook) a tribunal has power to dissolve a marriage on the ground of the husband’s impotency. He submitted further that he was not impotent and that the doctors could say that he was not impotent if they saw him in the actual act of sexual intercourse with a woman. Moreover when the marriage was about to be dissolved, the appellant never informed her family that his impotency was the ground for the dissolution. After some discussion with the parties, I invited them to consider whether they were prepared to undergo blood tests. The respondent informed me that he did not believe in blood tests and he was not prepared to undergo such tests. I exclaimed to him the possible scientific evidential value which some of these tests have revealed and I advised him to think about it. I was hoping that if the
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blood tests tendered to prove that Mr. Dravie could not be the father of the two children, then at least both the appellant and Mr. Dravie could be silenced and their enthusiasm in this appeal could be dimmed once and for all, although if the test proved that the children have his blood group, it would not necessarily prove that he was the father. And if the blood tests proved that neither the respondent nor Mr. Dravie could be the father, then the appellant would have to re-think and possibly name another man. At least Mr. Dravie would appreciate his position in such a finding. Blood grouping evidence can only normally be used to exclude, not to prove paternity. See an article by G. W. Bartholomew on “The nature and use of blood-group evidence” (1961) 24 M.L.R. 313 and another exhaustive scientific legal exposition on the matter by Alistair Brwlie in the Forensic Science Society Journal (Vol. 5, No. 3). Also a valuable contribution by Professor Ross on “The value of blood tests as evidence in paternity cases” in 71 Harvard Law Review 466 (1958). After four adjournments, as the appellant had been confined with childbirth, all the parties appear again on 3 July. The appellant and Mr. Dravie announced that they were prepared to undergo blood tests. The respondent announced that he had given very careful consideration to my suggestion but he was not prepared to give his consent to have his blood group tested. At this stage I had to consider whether I hadpower to compel the respondent but it seemed to me that the Ghana High Court had no power and had never had such a power. I was also convinced that as the common law stood it was impossible even in the United Kingdom to compel the taking of a blood sample : see W. v. W. (1963) 2 All E.R. 841, C.A. where Willmer L.J. at p. 843 said, “No power is conferred to make an order against a person who does not consent. It is thus clearly recognised, as it seems to me, by the legislature that without statutory power a test certainly could not be ordered as against an unwilling party.” And as Cairns J. said in the court of first instance as quoted by Willmer L.J. at p. 842: “‘It could not be contended that there was an inherent jurisdiction in the court to order blood tests. Such tests involved the puncture of the skin and the extraction of blood from the veins. For the court to order such a procedure to be carried out upon an unwilling person precise statutory authority would be required’.” See also Whitehall v. Whitehall 1958 S.C. 252. Thus a fine opportunity to use knowledge so far accumulated by forensic science has been thrown away is this suit. In this regard I cannot but help to echo the
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remarks of a learned author, Lee, in the American Bar Association Journal as far back as 1926, “Are these the same Courts which once ordered people to trial by ordeal and trial by battle. Has a drop of blood grown too great for them.”
I now propose to deliver my judgment today as I promised the parties at the last hearing. There is no doubt that an established principle of customary law is in favour of the respondent. Sarbah does not deal expressly with the right of a husband to claim the children born to his wife in adultery during the subsistence of the marriage. But Dr. Danquah in his Akan Laws and Customs (supra) deals with the topic and in my opinion the learned trial magistrate was entitled to quote the passage referred to in his judgment. However, Dr. Danquah goes further and at p. 186 states the customary law as follows: “But in a case where, for instance, kwaku had kept Ya, a married woman, in a state of concubinage for a period of four or five years, having two or three children as issue of the connexion, Kofie the real husband of Ya, would be quite in his right to lay claim to the children, besides claiming from Kwaku satisfaction money for adultery. In this case, too, Kwaku has no right to claim any amount he must have spent on the children or on the wife from Kofie or anyone else, except, perhaps there was any member of Ya’s family who had given countenance to the illicit connexion. That person may be held responsible for Kwaku’s expenses if he lived with the girl believing that she was unmarried.” Then at the same page he also goes on: “Kofie is also entitled to prohibit Kwaku from having anything to do with his (Kofie’s) children, nor would any names that Kwaku had given them be perpetuated,for such names would be abolished by Kofie and new ones substituted therefor. In fact, Kwaku has no right in law to call the issues as his children.” This is what Dr. Danquah says and it seems to me that these principles have remained unblemished and without adulteration or dilution by or through judicial pronouncements over the years. There is a dearth of reported cases in this field. However the same learned Dr. Danquah in his Cases in Akan Law reports a few cases heard at the Omanhene’s Court at Kibi but one case which fascinates me is that of Ahima v. Kuma (1916) D.C.A.L. 199, where in the course of his judgment Nana Ofori Atta I said, “a man conceiving another man’s wife cannot claim, and is not entitled to the custody of the issue, the general proverb being ‘A thief or seducer has no
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child’.”. If this general proverb happens to be the morale or rationale of this rule of customary law, thequestion which an unsophisticated mind like mine would ask is, “What has the seducer stolen if he is equated with a thief?” When a thief steals, he is not allowed to keep the stolen goods if they can be retrieved. But what has a seducer stolen? In my view the seducer has stolen “just a ride” with somebody’s wife. If an issue is born out of that adultery, I think the issue is the union or combination of the generative cells of the seducer and the adulterous wife. I must confess that the alternative allusion or reference to a thief has made it extremely difficult for me to appreciate the rationale of this principle of customary law. Mr. Ampiah for the appellant has submitted that the welfare of the children is the paramount consideration. The appellant on the other hand thinks that by disproving that the respondent is the father of the two children, she could keep the children as children of Mr. Dravie. Unfortuantely this approach by the appellant cannot be supported by any rules of customary law. Indeed, Mr. Dravie cannot claim them and cannot re-name them. But what about the welfare of the children? Dr. Danquah’s view is that if the children are too young they may be allowed to stay with the mother until they are two or three years old after which the husband is entitled to take them into his custody. The two children in this suit are now aged about five years and three years. It seems to me that they are attached to the mother. The five-year-old child in open court has told me in the face and to the hearing of everybody that the respondent is his brother’s father, i.e. referring to the other elder children now in the custody of the respondent. It appears that the eldest son aged about twelve years is at St. John’s Grammar School and the second daughter aged nine years is at Achimota School. I have no reason to doubt the sincere wish of the respondent to educate all his children including the two children in dispute. But the respondent himself has admitted that he is still unmarried customarily but his servants will look after the children. Mr. Ampiah for the appellant has invited the court to consider the welfare of the children as paramount although he did not state under what statutory provision. The marriage of the parties was governed by customary law and therefore no provision in any English Matrimonial Causes Act which applies in Ghana can be relevant. If he had in mind the Guardianship of Infants Act, 1925 (15 & 16 Geo. 5, c. 45), then it is obvious that that English Act can have no application here in Ghana as it was not one of the statutes ofgeneral application in force in 1874. Nevertheless I have observed that section 16 of the Courts Ordinance, Cap. 4 (1951) Rev.), now
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repealed but which section has been preserved by paragraph 93 (2) of the Courts Decree, 1966 (N.L.C.D. No. 84), provides as follows: “16. The Supreme Court shall, within the Gold Coast, [now Ghana] have all and singular the powers and authorities of the Lord High Chancellor of England, with full liberty to appoint and control guardians of infants and their estates …”
The section does not confine the jurisdiction to legitimate or illegitimate children or to children born out of marriage celebrated under the Marriage Ordinance or children born out of marriages governed by customary law. “Infants” in my view means all infants. It seems to me therefore that the Ghana High Court has jurisdiction not only to appoint guardians but also to control guardians of infants. It appears that before 1858, i.e. before the Divorce and Matrimonial Causes Act, 1857 (20 & 21 Vict., c. 85), questions of custody usually came before a common law court in habeas corpus proceedings, or before the Court of Chancery on petition, and equity concurred with the common law in supporting the claim of the father to have a natural jurisdiction over, and a right to the custody of, his infant child, a claim so extensive that the authority of the father was regarded not only as paramount to all others, except that of the Court of Chancery representing the King as parens patriae, but also as so exhaustive that where the court intervened it did so in very exceptional cases. By the Custody of Infants Act, 1839 (2 & 3 Vict., c. 54), it was provided that it shall be lawful for the Lord Chancellor upon a petition of the mother of any infantbeing in the control of the sole custody of the father to make an order for the access of the mother to such infant. The common law courts never ignored the legal rights of the father and were very slow to interfere. But the Court of Chancery had a very wide jurisdiction over infants, perhaps best regarded as an instance of the right of the Crown as parens patriae. The principle on which the Court of Chancery acted was that in dealing with infants the primary consideration was their benefit and it meant that it would refuse to allow a father to have the custody to which he was legally entitled on the ground for instance of the father’s unfitness in character or conduct, neglect to maintain the child, lack of means or cruelty to the children.
When the Supreme Court of Judicature Act of 1873 (36 & 37 Vict., c.66), was passed it was expressly enacted by section 25 (10) that in questions relating to the custody and education of infants the rules of equity should prevail. Since then, the cardinal principle on which all the Divisions deal with infants is that enunciated by the Court of Chancery presided over by the Lord Chancellor, that is,
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in dealing with infants the primary consideration is their benefit. The Custody of Children Act, 1891 (54 Vict., c. 3), also reiterated this principle that the welfare of the child should always be taken into consideration. The same principle was preserved in the Guardianship of Infants Act, 1925. It seems to me therefore that although the customary rule that a father is entitled to the custody of his children is in consonance with the position of the pater familias in Roman law and with English law prior to 1858, yet this customary rule is not invariable or inviolable. The Ghana High Court which has been clothed with jurisdiction similar to that of the Lord High Chancellor (now administered by all the divisions in the English Supreme Court) is bound to observe in the exercise of its jurisdiction the principle formulated by the Court of Chancery that the welfare of the infant is of paramount importance. The Guardianship of Infants Act, 1925, which does not apply in Ghana has the following preamble:
WHEREAS Parliament by the Sex Disqualification (Removal) Act, 1919, and various other enactments, has sought to establish equality in law between the sexes, and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby …” The Ghanaian mother married under customary law has the right to vote when the Constitution is in force; she can draw equal pay with men and can in all legal matters act as a feme sole, yet when questions of parental control and custody of her children arise, she is relegated to a status which confers on her no rights at all. The problem I wish to pose is whether Ghana customary law is to be presumed to be of an age past child-bearing? Equitable doctrines have made serious erosions into customary law because they have been in furtherance of justice. We have often been told that only Parliament can reform our customary law. This attitude no doubt has the support of Viscount Simonds in Midland Silicones Ltd. v. Scruttons Ltd. [1962] A.C. 446 at pp. 467-468, H.L. when he said: “For to me heterodoxy, or, as some might say, heresy, is not the more attractive because it is dignified by the name of reform. Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first duty, which is to administer justice according to law, the law which is established for us by Act of Parliament or the binding authority of precedent. The law is developed by the application of old principles to new circumstances. Therein lies its genius. Its reform by the abrogation of those principles is the task not of the courts of law but of Parliament.”
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But on the other hand there is another encouraging view. Lord Atkin of United Australia, Ltd. v. Barclays Bank, Ltd. [1941] A.C. 1 at p. 29, H.L. said, “When these ghosts of the past stand in the path of justiceclanking their mediaeval chains the proper course for the judge is to pass through them undeterred.” This dictum in my view must be an inspiring sermon to any judge whose conscience dictates that justice can be done by adapting our customary law to changed social conditions; for a charge of legislating has never deterred judges from propounding a doctrine which would have appeared novel to the lawyers of the past where on a question of principle and changed social conditions it seemed just so to do. In this view one cannot do better than refer to the language of Lord Pearce in his dissenting judgment in Myers v. Director of Public Prosecutions [1965] A.C. 1001 at p. 1038, H.L.: “Admittedly justice and common sense have in the past demanded various exceptions if the general rule was to be acceptable at all. That the court should be slow to introduce or further adapt exceptions is reasonable.
That the court should debar itself forever from introducing further exceptions or adapting them under any circumstances, however unforeseen or unforeseeable, would be unreasonable.”
In the present case before me, the respondent has vaunted about his wealth and the properties which he has either by testamentary devise or by gift inter vivos “settled” on his children including the two children in dispute. This is laudable and no sensible man can but admire his paternal benevolence. In re Curtis (1859) 23 J.P. 708 Kindersley V.C. said “poverty is no ground for the removal of custody of children.” But the next question one would like to ask is whether wealth and affluence are the criteria for granting custody to a parent? I think not. There must be other considerations. The parent must not only be capable and responsible but must also satisfy the court that his habits and mode of life will be in the interest of the children. The respondent himself has told me in open court to the hearing of the public that he has so many paramours who are prepared to come to court to prove that he is sexually virile. He even had the effrontery and the audacity to tell the court that he has been sleeping in bed with standard six and standard seven girls. Some of these girls according to him, were also prepared to come to court to prove that he was not impotent. He confessed further that these girls came to him to sell their juvenile sex for his money and that that was the practice in Ghana. Is there no morality for sex genarians like the
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respondent? These statements were not made on oath in the witness box bu they came from the fangs of the respondent himself when making his submissions. I have no reason to doubt what he told me and accordingly I propose to assess him in the light of his own revelations. Am I to allow these two infant children to dwell in the respondent’s house which he himself has converted into a den for promiscuity because of his worldly wealth? These children are ignorant and innocent. But is it fair to allow them to stay in the respondent’s house to behold a variety of near-prostitutes making their ingress and egress? Litigants should realise that when they come to court and make irresponsible statements, they should expect the courts to act on those statements. Customary law says that the respondent is legally entitled to the custody of these children but fortunately it seems to me that the customary law on this matter is not inviolable. There must be exceptions to the rule especially when the father proves to be so immoral and unfit as to prejudice the welfare of the children. I am not by ny means applying the provisions of the Guardianship of Infants Act, 1925 (supra). I am invoking the jurisdiction of the Ghana High Court as I have already mentioned, to appoint and control guardians of infants. The customary law is subject to this jurisdiction and to the equitable principle upon which the Court of Chancery exercised jurisdiction prior to 1875, that is, whatever order is made must be for the benefit of the infant – this principle has been modernised into words – “the welfare of the infant is paramount. The respondent has two elder children at boarding school and I envisage that attendance at boarding school will also be the future regimen for these two children in dispute. As they are only three and five years old, I consider them too young to be snatched away from the appellant. Moreover, by his own revelations, the respondent has proved just like the case of Wellesley v. Duke of Beaufort (1827) 2 Russ.1; affirmed by the House of Lords, sub nom. Wellesley v. Wellesley (1828) 2 Bli. (N.S.) 124 and, by the obscene language which he had used in this court and which I did not condescend to record, he is likely to inculcate bad principles into his children. What will a court of equity do in such a case? The children must be protected. The five-year-old child in dispute has told me in the face that the respondent is not his father but his brother’s father. This is a dangerous impression which may have its repercussions on the child if he is immediately removed from the mother’s custody to the respondent’s custody. My feeling is that it may take some time to erase this impression.
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Nevertheless, it does not mean that the appeal has succeeded wholly. I agree with the learned trial magistrate’s judgment that according to customary law a father is entitled to the custody of his children, and I may add, whether the children are legitimate children of the marriage or children born during the marriage through the adulterous activities of the mother. However this rule is not invariable and inviolable and regard must be had for the welfare of the children especially when they are too young or when the father is not a fit person, as shown either by his conduct or character, to have such custody.a
I shall therefore in the circumstances of this case vary the trial magistrate’s order as follows: “The respondent is hereby granted legal custody of the two children but the children shall not be removed until further order. Such further order may be obtained by application by the respondent on notice to the appellant that he has made adequate arrangements for the two children to be sent to a boarding school and that they have attained an age which makes their attendance at a boarding school possible.” If my order is without legal foundation or sounds unpalatable I would quote Brandford Griffith C.J. in Yerenchi v. Akuffo (1905) 1 Ren. 362 at p. 367 and say that, “native custom generally consists of the performance of the reasonable in the special circumstances of the case.”
Finally, as the appellant has partially succeeded, there will be no order as to costs in this appeal. It is further ordered that the respondent shall have reasonable access to the children.
DECISION
Appeal allowed in part.
No order as to costs.
J.D.
