HIGH COURT, ACCRA
Date: 10 DECEMBER 1974
ABBAN J
CASES REFERRED TO
(1) In re Andros; Andros v. Andros (1883) 24 Ch.D. 637; [1881-85] All E.R. Rep. 467; 52 L.J.Ch. 793; 49 L.T. 163; 32 W.R. 30.
(2) In re Bischoffsheim; Cassel v. Grant [1948] Ch. 79; [1947] 2 All E.R. 830; [1948] L.J.R. 213; 204 L.T.J. 328; 64 T.L.R. 36; 92 S.J. 26.
(3) In re Goodman’s Trusts (1881) 17 Ch.D. 266; [1881-85] All E.R. Rep. 1138; 50 L.J.Ch. 425; 44 L.T. 527; 29 W.R. 586, C.A.
(4) Coleman v. Shang [1959] G.L.R. 390, C.A.
(5) In re Grove; Vaucher v. Treasury Solicitor (1887) 40 Ch.D. 216; 58 L.J.Ch. 57; 59 L.T. 587; 37 W.R. 1, C.A.
NATURE OF PROCEEDINGS
APPLICATION for a writ of habeas corpus for the release of a child. The facts are sufficiently set out in the ruling.
COUNSEL
M. A. F. Ribeiro for the applicant.
E. D. Kom for the respondent.
JUDGMENT OF ABBAN J.
The application is for a writ of habeas corpus to issue against one Donald Kwamla Mallet, a medical doctor (hereinafter referred to as the respondent) for the release of a child, Thomas Kwamla Braun. The applicant, a European lady, is a national of the Federal Republic of Germany
[p.70] of [1975] 1 GLR 68
hereafter referred to as West Germany) and the respondent is a Ghanaian.
The respondent went to study medicine in West Germany and in 1968, while he was still a student, he met the applicant in Tubingen in West Germany. They became intimate friends and through that association a male child was born to them on 7 September 1970. That child is the subject-matter of the present application. In her affidavit in support of the application, the applicant stated that the child was named Thomas Kwamla Braun; but the respondent, on the other band, contended that the name given to the child was Thomas Kwamla Mallet. No birth or baptism certificate was exhibited in this application, and it is difficult to decide which of the two versions is correct. I will, however, refer to the child simply as Thomas.
Since the birth of Thomas and until 19 October 1974, Thomas had been staying with the applicant in Tubingen in West Germany. The applicant alleged that on the said 19 October the respondent went to the residence of the applicant at about 10.00 a.m. and asked permission from the applicant to take Thomas for shopping. Not knowing the real motive of the respondent, the applicant said she acceded to the respondent’s said request but asked the respondent return the child by noon that very day. It was during the “alleged shopping period” that the respondent managed to fly to Ghana with Thomas. When the applicant became aware of the situation she also flew to Ghana purposely to retrieve Thomas from the respondent.
On her arrival in Ghana the applicant commenced legal proceedings in the High Court. That is, on 21 November 1974, she issued out, in this court, a writ of summons, accompanied by a statement of claim, asking for the following reliefs:
(a) a declaration that she, the applicant, is entitled to the custody of Thomas,
(b) an order that the respondent should return Thomas to the applicant,
(c) special damages of 02,400.00, and
(d) general damages.
The suit referred to above is suit No. 802/74, entitled Magdalene Braun v. Donald Kwamla Mallet. It may be observed that the respondent, in his statement of defence in that suit, put in a counterclaim for custody of Thomas. The action is still pending. But, in the meantime, the applicant has brought the present application. She further alleged in her affidavit that the respondent in February 1972, filed a petition in the courts of Tubingen for the legitimation and custody of Thomas. The said petition was dismissed on 4 May 1973 and the respondent appealed; but his appeal was heard and dismissed. The judgments and proceedings in question were exhibited in this application. I will here refer to paragraphs (4)-(6) of the applicant’s said affidavit as follows:
“(4) That upon the dismissal of the petition the courts granted me custody of the child.
(5) That the respondent on two occasions appealed against the decision of the courts but his appeals were dismissed, the first one
[p.71] of [1975] 1 GLR 68
on or about 13 November 1973, and the second on or about 30 August 1974.
(6) That I live happily at all material times with my son, the said Thomas Kwamla Braun and in accordance with the order of the court, I allowed the respondent access to the said child.”
In arguing the application, learned counsel for the applicant stated that the custody of Thomas has been granted to the applicant by the courts of Germany and in the circumstances the applicant is the legal custodian of the child. Counsel therefore contended that since the child was removed by the respondent from the legal custodian by a trick and without her consent, the conduct of the respondent was not only wrongful but was also contrary to the order of custody made in her favour by the said courts of West Germany. Thus, submitted counsel, the continued detention of Thomas by the respondent was illegal and the writ of habeas corpus should issue against the respondent.
The second contention of learned counsel for the applicant was that quite apart from the judgments of the courts of West Germany which gave custody of the child to the applicant, the applicant, in her capacity as a mother of an illegitimate child, has an inalienable and natural right to the custody of the said child; and this right, submitted counsel, implies a legal right to the child’s custody. Counsel argued that once the child is illegitimate the putative father has no right to its custody, even though the putative father may be in a better financial position to maintain the child. Counsel therefore submitted that since the applicant is legally entitled to custody, by virtue of her position as a mother of an illegitimate child, the respondent’s conduct of taking Thomas from the applicant and bringing him to Ghana without the applicant’s consent, was without lawful authority and the respondent should be ordered to deliver Thomas to the applicant.
Learned counsel for the respondent in replying to the first contention of the applicant’s counsel, submitted that the applicant had failed to show that she was legally entitled to the custody of the child. Counsel argued that “legally entitled” should be interpreted to mean legally entitled by the law of Ghana and not by the law and judgments of the courts of West Germany. Counsel contended that the judgments on which the applicant relied to show that she was legally entitled to the child’s custody should be ignored since they cannot be enforced in this country. Because a look at the Foreign Judgments (Reciprocal Enforcement) Instrument, 1973 (L.I. 824), would reveal that there is no reciprocity of treatment in West Germany in respect of judgments given in Ghana.
As regards the applicant’s second contention, learned counsel for the respondent submitted that even though the child might be illegitimate by the law of West Germany, the child could be legitimate by the law of Ghana; and if the child was found to be legitimate and to be the lawful child of the respondent by the law of Ghana, then the respondent as a father would have legal right to his custody. Learned counsel for the respondent urged that the question whether the child is legitimate or not
[p.72] of [1975] 1 GLR 68
should be determined according to the law of Ghana only. He contended that it is precisely for the determination of that issue that the applicant has sued the respondent in the said suit No. 802/74. Counsel further argued that until that suit is heard and the issue of the child’s legitimacy is decided, the applicant cannot claim that Thomas is illegitimate and that she is legally entitled to his custody. So that in the absence of any decision in that suit in favour of the applicant, it is premature for the applicant to contend that the keeping of the child by the respondent is without lawful authority. Counsel therefore submitted that there was no basis for the, application.
In order to succeed in habeas corpus proceedings the applicant must establish to the satisfaction of the court that the detention of the person, the subject-matter of the application, is without lawful authority: see the Habeas Corpus Act, 1964 (Act 244). In the instant application, the applicant’s contention that the detention of the child by the respondent is unlawful, is based on two main grounds, namely, the judgments of the West German courts and the illegitimacy of the child.
I will consider first the said judgments. It seems to me that the judgments of the courts of West Germany, even though they might have been given by courts which are competent in the eyes of the West German law, cannot be recognised and enforced in this country. Part V of the Courts Act, 1971 (Act 372), deals with the enforcement in Ghana of foreign judgments and maintenance orders. The said Part V has been divided into three sub-parts, that is, Sub-Part I to Sub-Part III. Section 76 of the said Act falls under Sub-Part I, and that section provides as follows:
“76. (1) Where the President [National Redemption Council] is satisfied that, in the event of the benefits conferred by this Sub-Part being extended to judgments given in the Superior Courts of any country, substantial reciprocity of treatment will be assured in respect of the enforcement in that country of judgments given in the Superior Court of Judicature, the President [National Redemption Council] may by legislative instrument order-
(a) that this Sub-Part shall extend to that country; and
(b) that such Courts of that country as are specified in the order shall be the Superior Courts of that country for the purposes of this Sub-Part.
(2) Any judgment of a Superior Court of a country to which this Sub-Part extends, other than a judgment of such a Court given on appeal from a Court which is not a Superior Court, shall be a judgment to which this Sub-Part applies, if: –
(a) it is final and conclusive between the parties thereto; and
(b) there is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and
(c) it is given after the coming into operation of the order directing that this Sub-Part shall extend to that country.
[p.73] of [1975] 1 GLR 68
(3) For the purposes of this section, a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the Courts of the country of the original Court.”
In pursuance of the above provisions of the Courts Act, 1971 (Act 372), on 28 May 1973, the Chairman of the National Redemption Council made the Foreign Judgments (Reciprocal Enforcement) Instrument, 1973 (L.I. 824), which by its paragraph 3, was deemed to have come into force at the same time as the Courts Act, 1971 (Act 372). Paragraph 1 of the said Instrument, i.e. L.I. 824 states:
“Each of the countries specified in the first column of the Schedule to this Instrument is hereby declared to be a country to which Sub-Part I of Part V of the Courts Act, 1971 (Act 372) (which Sub-Part relates to the enforcement in Ghana of the judgments of the Superior Courts of other countries on the basis of reciprocity) applies.”
In the schedule referred to in the said paragraph 1 of the instrument, names of various countries and their superior courts have been listed. West Germany, from whose courts the applicant obtained the judgments on which she is relying in this application, is not among those countries. The necessary inference is that there is no reciprocity of treatment in West Germany as regards the enforcement of judgments given by the courts of Ghana, and that is why West Germany has not been included in the list; and in the absence of the said reciprocity, the judgments obtained by the applicant in the courts of West Germany cannot be enforced in this country. I will not therefore take notice or cognisance of the said judgments and proceedings. In the circumstances, I hold that the applicant cannot rely on those judgments to establish that she has the legal custody of the child and that the keeping of the child by the respondent without her consent is unlawful.
I will now pass on to the applicant’s second ground, namely, the child is illegitimate and as such the applicant is the only person legally entitled to custody. In other words, the applicant is using the illegitimacy of the child as her basis for saying that she is entitled legally to custody and that the detention of the child by the respondent, without her authority, is illegal. I have been entertaining some doubts as to whether it is reasonable or fair to apply the test of legitimacy, instead of parenthood, in deciding questions or in making orders as to custody of children. I will leave the discussion of that question for another occasion. But is the child, Thomas, truly illegitimate? I have already disposed of the judgments of the courts of West Germany, but I will, however, emphasize that whatever those judgments said about the status of Thomas will not, for the reasons stated above, be countenanced in this court. The legitimacy or illegitimacy of Thomas will have to be decided by this court without any reference whatsoever to the opinion expressed by the courts of West Germany in those judgments.
[p.74] of [1975] 1 GLR 68
The question then is, which law should decide whether Thomas is legitimate? The applicant is a foreign national; and she is not domiciled in Ghana, while the respondent is a Ghanaian domiciled in Ghana. I think private international law must provide the answer. The role of private international law is to indicate the system of law which must decide whether or not a person is born legitimate; and the system of law which private international law specifies is the lex domicilii of the child. That is, it is an accepted principle in private international law that the question of legitimacy is one of status and depends on the law of the domicile of origin, which is the domicile of the parents on the date of the child’s birth: see In re Andros; Andros v. Andros (1883) 24 Ch.D. 637 and In re Bischoffsheim; Cassel v. Grant [1948] Ch. 79. In the case of In re Goodman’s Trusts (1881) 17 Ch.D. 266, C.A., Cotton L.J. at p. 291 said: “But the question as to legitimacy is one of status, and in my opinion by the law of England questions of status depend on the law of the domicile. For this proposition there is authority.” After referring to several authorities and passages from textbooks written by eminent jurists, the learned Lord Justice at p. 292 continued:
“If, as in my opinion is the case, the question whether a person is legitimate depends on the law of the place where his parents were domiciled at his birth, that is, on his domicil of origin, I cannot understand on what principle, if he be by that law legitimate, he is not legitimate everywhere, and I am of opinion that if a child is legitimate by the law of the country where at the time of its birth its parents were domiciled, the law of England, except in the case of succession to real estate in England, recognizes and acts on the status thus declared by the law of domicile”
In the same case, James L.J. at pp. 296-297 stated the principle in these terms:
“But the question is, What is the rule which the English Law adopts and applies to a non-English child? This is a question of international comity and international law. According to that law as recognized, and that comity as practised, in all other civilized communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the law of the country of his origin – the law under which he was born. It appears to me that it would require a great force of argument derived from legal principles, or great weight of authority clear and distinct, to justify us in holding that our country stands in this respect aloof in barbarous insularity from the rest of the civilized world. On principle, it appears to me that every consideration goes strongly to shew, at least, that we ought not so to stand. The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilized country, should be respected and acknowledged by every other member of the great community of nations.”
[p.75] of [1975] 1 GLR 68
It must be observed that the principles enunciated in the case of In re Goodman’s Trusts were approved by our Court of Appeal (constituted by van Lare Ag.C.J., Granville Sharp J.A. and Ollennu J. (as he then was) in Coleman v. Shang [1959] G.L.R. 390 at p. 406.
It is easy to determine the domicile of origin of a child and therefore his personal law on the date of his birth where both parents, on the said date, had the same domicile. But the difficulty arises where at the date of the child’s birth the father and mother possessed no common domicile as in the present case. The parties herein were not man and wife on the date when the child was born and have never been married; and the applicant is not (and has never been) domiciled in Ghana. In fact there is no evidence as to the country of the applicant’s domicile. There is, of course, evidence that she is a German national living in Tubingen, West Germany, and that the child was born in Tubingen. But there is nothing on record as to the country of her domicile. The fact that she is a German national does not mean that she is also domiciled in West Germany. Nationality and domicile are two different conceptions. A person’s nationality, apart from naturalization, depends on the place of his birth and his parentage, but his domicile is “constituted by residence in a particular country animo manendi.” It follows that a person may be a national of one country but domiciled in another. Thus, it will be wrong in the absence of evidence to conclude that the applicant is domiciled in West Germany, simply because she is a German national. Her domicile may be in West Germany or in one of the countries in Europe.
However, since the applicant’s domicile, wherever it may be, is different from that of the respondent, it is not unreasonable to choose the domicile of the respondent (the natural father) at the date of the child’s birth as the child’s domicile of origin. It is in respect of cases like the present that Stirling J. in the case of In re Grove; Vaucher v. Treasury Solicitor (1887) 40 Ch.D. 216 at p. 224, C.A. laid down the following important principle: “If the parents have different domicils (as may happen where they are not married), the authorities shew that the domicil of the father is to be regarded, and not that of the mother.” The learned editors of Cheshire’s Private International Law (8th ed.), clearly support this view. At p. 434, the said editors have stated as follows:
“It is, of course, true that to attribute to the child the domicil of his father where his parents have different domicils is to beg the question of his legitimacy, for, since the domicil of an infant is that of his father if legitimate but of his mother if illegitimate, it is impossible to fix his domicil until the question of his legitimacy has been settled. Nevertheless, logic must not be allowed to impede the best solution of the problem, and the solution most favourable to the child, it is submitted, is to agree with Wolff that ‘legitimacy is concerned with the relationship between child and father’, and that therefore the domicil of the natural father should be decisive.”
See also Schmitthoff The English Conflict of Laws (3rd ed.) at p. 283, where the learned author has stated that: “A child is considered legitimate if the
[p.76] of [1975] 1 GLR 68
law of the place where its natural father is domiciled at the time of its birth attributes the status of legitimacy to the child.” I therefore hold that Ghana which was (and still is) the domicile of the respondent on 17 September 1970, the date of birth of Thomas, must be taken to be the domicile of origin of Thomas. Consequently, the law of Ghana, as the lex domicilii of Thomas at the time of his birth, should determine the legitimacy of Thomas. If in case it turns out that Thomas is legitimate according to the law of Ghana, then the respondent, as a father of a legitimate child, will be entitled to all the consequential legal rights and duties flowing from that relationship. He will, in those circumstances, be deemed to have full parental control over the child, and his detention of the child cannot be said to be illegal in absence of an order of a court of competent jurisdiction. That is to say, until a declaration is made in accordance with the law of Ghana as to the legitimacy or illegitimacy of the child, the applicant cannot go about stigmatizing or labelling the child as illegitimate; and she cannot also claim to be the only person legally entitled to the custody of the child and that the keeping of the child by the father, the respondent herein, is illegal. I am therefore of the view that, as at present, there is no legal basis for holding that the child is being held in unlawful custody. In the circumstances, a writ of habeas corpus cannot go.
Counsel for the applicant, after he had been granted leave by the court to reply to the submissions of counsel for the respondent, made a further point that even if the court comes to the conclusion that the law of Ghana should be operative in determining the issue of legitimacy, the court can still rule that under the law of Ghana the child, Thomas, is illegitimate. But I do not think I have before me, at the moment, sufficient facts on which to make such a ruling. The matter is not as straightforward as learned counsel for the applicant may seem to suggest. By holding that the law of Ghana should be the child’s lex domicilii and therefore the law which should govern the issue of legitimacy, does not provide the full answer. It is still necessary to determine which of the components of the “law of Ghana” should provide the positive rule that must be applied. The relevant component of the law of Ghana may be the common law, a statute law or the customary law; and if it is the customary law it may be any of the systems of customary law in Ghana. It is more likely that in the case herein customary law will apply. But there is, at present, no evidence as to the particular system of customary law applicable to the respondent. That is, whether the respondent is subject to Ga, Ewe, Fante or Dagomba customary law is not yet known. So that the court is not in a position, at the moment, to apply the rules of any of the systems of customary law to determine the issue of the child’s legitimacy. It may be argued that all the systems of customary law in Ghana have the same rules or principles governing the issue of a child’s legitimacy, and that no further evidence is necessary since the content of a rule of custom is a question of law and not of fact; and so the court can properly go ahead and pronounce on the issue of legitimacy. Assuming that this argument is valid, I think there are still other important pieces of evidence which are
[p.77] of [1975] 1 GLR 68
required before any pronouncement can be made. Of course, it is generally accepted principle of customary law that a child may be legitimate child of his father, even though the said father never married the mother, depending on whether the putative father cared for the mother during the pregnancy, acknowledged and named the child in accordance with the custom applicable to the putative father. See Danquah, Akan Laws and Customs at pp. 185-186 where the learned author has stated:
“The law, as it stands at present, recognises as legitimate a child born to a man who had cared for an unmarried girl for whose baby he stands as putative father. Marriage is necessary to make a child legitimate, but it would seem that among the Akans a bastard child is not particularly one whose mother and father are unmarried, but one whose paternity is indeterminable, his father (or fathers) but being known. Hence the name Aguaman-ba (child of harlotry).”
See also page 210 of the Law of Testate and Intestate Succession in Ghana by Ollennu. Nevertheless, as I have stated, even if I am prepared to dispense with evidence as to the respondent’s particular system of customary law and then decide the issue of legitimacy right now by applying the above general principles of customary law, I will still be handicapped in the process in the absence of certain facts about the parties, which facts are not available in the present application. For instance, learned counsel for the applicant stated from the Bar that the respondent is a married man. But counsel did not tell the court whether the respondent is married under the Marriage Ordinance, Cap. 127 (1951 Rev.), under the Marriage of Mohammedans Ordinance, Cap. 129 (1951 Rev.), or under customary law; and whether the said marriage, whatever it is, took place before or after the date of birth of Thomas. All these facts must first be known to the court; because if the child was born during the subsistence of a valid marriage under the Marriage Ordinance, for example, the child would definitely be an issue of an adulterous union and that will have to be taken into account in deciding his legitimacy.
One must also bear in mind that a pronouncement on the issue of legitimacy of Thomas will have far reaching consequences on the future of Thomas, not only in respect of his custody which is the applicant’s main concern at the moment, but also in respect of succession to the respondent’s property in case the respondent dies intestate. It is therefore very important that the issue of legitimacy of Thomas should be a subject of proper investigation in an ordinary action, like the one the applicant has brought in the said suit No. 802/74, and not in an application for habeas corpus.
What is more, the issue of custody which has been raised in the present application, as I have indicated, is also going to be decided in that suit. In other words, the applicant has already, in the said pending suit, challenged the respondent’s right of keeping the child. So that in that suit the applicant may get the very relief or remedy which she is after in the instant application, namely, the release of Thomas; and for that reason alone this application can even be dismissed. Habeas corpus is a writ of right
[p.78] of [1975] 1 GLR 68
and is granted ex debito justitiae, but not as a matter of course; and it should be refused where another remedy, as in the present case, lies whereby the validity of the restraint can be effectively questioned.
For the above reasons, the application will be and is hereby dismissed. I make no order as to costs.
DECISION
Application dismissed.
S. Y. B.-B.
