OSEI YAW v. NSIAH [1968] GLR 951

DIVISION: HIGH COURT, KUMASI

DATE: 23 OCTOBER 1968

BEFORE: ANNAN J.

NATURE OF PROCEEDINGS

APPEAL from a judgment of a district court granting the respondent’s application for maintenance orders against the appellant in respect of their three children. The facts are sufficiently stated in the judgment.

COUNSEL

Kofi-Adu for the appellant.

No appearance for or by the respondent.

[p.952] of [1968] GLR 951

JUDGMENT OF ANNAN J.

The plaintiff-respondent claimed arrears of maintenance and an order for future maintenance in respect of three issues of her marriage to the defendant-appellant. She contended that the father of her children had failed to look after them for five years. The defendant-appellant however denied the version of the respondent and asserted that he had done his duty by his children. He gave details of his performance of his duty as follows:

“I have been sending clothing and paid school fees for the children for the past four years. But I did not send any money for food apart from paying their school fees and buying clothing. This year 1967 I have not looked after them. . . This year I have not bought any clothing for the children and sent any subsistence allowance.”

This evidence was given on 15 September 1967.

The appellant described himself as a farmer and it appears from his cross-examination that he had at least one labourer working for him. He did not contend that he was not liable to maintain the children neither did he contend that he was not able to provide the basic necessities of food, shelter and clothing; so that the issue of the plaintiff’s ability or inability to provide basic maintenance was not raised and the case seems to have proceeded on the basis that he was able so to do. Again there was no dispute that the appellant gave no money for food and up to September 1967 had done nothing at all during that year for the children. Clearly a growing child needs much more than shelter and clothing and a father’s duty to maintain his offspring is in no way limited to the provision of these two requirements. A child does not need new clothes from day to day, neither does he pay school fees by the day. Indeed I should have thought it obvious that the child’s need for food far outweighs the need for clothing or education and is fundamental to its very existence. The appellant however blithely attempted to take shelter behind his claim that he had provided clothing and paid school fees. That attempt was neither commendable nor sensible, and was doomed to failure. The trial court’s assessment of N¢8. 00 for three children seems to me fair and perhaps a little on the low side, and the least I can do is to let it stand undisturbed.

Counsel for the appellant however raised a matter of law which calls for consideration. He argued that the entire proceedings were a nullity because the matter had not first been referred to the Social Welfare Department for their consideration. Again it was argued that

[p.953] of [1968] GLR 951 any virtue of section 6 of the Maintenance of Children Act, 965 (Act 297), the plaintiff should have been examined as to his means before on order for maintenance was made against him.

Section 6 of the Maintenance of Children Act, 1965, states that no proceedings shall be instituted under Part II or III of the Act unless an application has first been made and a ruling made thereon in accordance with the provisions of Part I of the Act. Again section 9 of the Act requires the court to have regard to the means of the father and of the mother before making a maintenance order. Part I of the Act provides for preliminary applications to the Social Welfare Department and requires that department to make a ruling on such applications. It is clear from these statutory requirements that the making of an application to the Social Welfare Department is a 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 on application is made under Part II of the Act the burden is on the applicant to show that these conditions have been satisfied. The record before me is silent as to the jurisdictional facts necessary to be established and the judgment is equally silent on that issue. It is true that the point of jurisdiction was not raised in the court below but then I consider that that is no bar to the point being raised before me especially since the parties were not represented by counsel. The appeal must therefore be allowed and the judgment and order of the trial court set aside as the trial was a nullity. The mother is advised to make her application to the Social Welfare Department first before action.

DECISION

Appeal allowed.

F. S. T.