HIGH COURT, CAPE COAST
Date: 12 DECEMBER 1973
EDWARD WIREDU J
CASES REFERRED TO
(1) Boohene v. Ofei [1959] G.L.R. 101.
(2) Quaye v. Mariamu [1961] 1 G.L.R. 93, S.C.
(3) Brannan v. Brannan [1973] Fam. 120; [1972] 2 W.L.R. 7; 116 S.J. 968; [1973] 1 All E.R. 38, C.A.
[p.58] of [1974] 1 GLR 56-65
NATURE OF PROCEEDINGS
APPEAL against the ruling of the district court that the plaintiff was entitled to arrears of maintenance allowance ordered by the Social Welfare Department to be paid to the plaintiff on behalf of her children.
COUNSEL
Atta Kesson for the appellant.
Ampiah for the respondent.
JUDGMENT OF EDWARD WIREDU J
The parties to this appeal were, prior to the action which has culminated in this appeal, married under customary law for ten years. Three out of four issues born out of the said union according to the plaintiff-respondent (who shall hereafter be referred to simply as the plaintiff) were alive at the time of the commencement of her action against the defendant-appellant (who shall hereafter be referred to as the defendant). The plaintiff s action in the court below was a claim for:
“cash the sum of N0192.OO being arrears of maintenance allowance in respect of three (3) children begotten with her by the said defendant made up of 0144.00 which was ordered by the Ministry of Social Welfare and Community Development vide letter No. WB 114/13 dated 9 August 1971 and N048.OO being arrears for (3) three months maintenance allowance August, September and October inclusive which was also ordered by the said Department to maintain the said children at N016.OO per every month which the defendant has failed to pay the said N0144.OO and also failed to abide the said order.”
The marriage between the parties was not one which could reasonably be described as a happy one. It was characterised by frequent quarrels and fights both in public places and in the home. The character of the plaintiff throughout the chequered history of the marriage left much to be desired. Her conduct and behaviour at public places is what I may describe as very disgraceful. The evidence shows that throughout her stay with the defendant she exhibited behaviour and conduct which brought the defendant into direct conflict with other men.
The events which seemed to have provoked the dispute which brought the parties before the Social Welfare Department as testified to by the defendant are as follows:
“My name is Owusu Sekyere, trader of Winneba. I know the plaintiff who was formerly my wife but not a real one in accordance with custom as I did not perform all the marriage rites. During our stay she went to Oda on two occasions and some time after her father sent bearers to inform me that she was expecting a baby. I went with some friends to see her father and he told me that he was going to charge me 024.OO for placing her in the family way, when I had not asked for her hand in marriage. He further told me that he was going to give her in marriage to someone who had spent 012O.OO on her and that I should pay that amount. I told the father that if the plaintiff was already married then I was prepared to pay adultery fee. The father finally agreed to forego the 012O.OO as he
[p.59] of [1974] 1 GLR 56-65
had not promised to give the plaintiff in marriage to anyone and demanded only the 024.OO. The father finally reduced the 024.OO to 012.OO and a bottle of schnapps and this I paid and he handed the plaintiff to me to live with her as a wife. We stayed for some time and she gave birth to a baby boy.
Some time after giving birth, she attended a dance with Annoh Wilson and I took offence at it and the plaintiff’s father came to render apology to me and I accepted the apology. Later the plaintiff and that Annoh Wilson went and stayed in Accra for about a month without my knowledge and that of her father. As I was staying with her the father came to tell me to find his daughter for him and the plaintiff’s mother told me that I could trace her to her aunts in Accra. I went to Accra but could not find her but after some time the plaintiff herself returned. The plaintiff’s parents came and rendered apology to me and I accepted the apology and she went to stay in her father’s house. Some time after the plaintiff’s mother came to report to me that she had seen the plaintiff flirting with someone. I went and asked the plaintiff of what her mother had told me and she took offence and the man with whom she was flirting told me that the plaintiff was only a girl friend to me and not a wife. At that time the plaintiff was expecting a baby. I made a report to the police that the man she was flirting with had threatened me and he was arrested and put before the court when he was fined 06O.OO. The plaintiff’s parents again came and apologised to me and I accepted the apology and was pacified. I cohabited with the plaintiff as wife. During our stay she had her second baby and I named her. Some time after we had a dispute and during the quarrel the plaintiff told me that because of her children I was looking after hence I was worrying her and the children were not mine. I took offence but the plaintiff rendered apology to me through one Mr. Agyeman and I accepted the apology and staved with her as wife. When her mother died I did what all was required from a son-in-law in accordance with custom. Some time after she took seed again I made her to go to stay with her aunt as her time was drawing near.
About a month after giving birth she took leave of me for Tema and stayed for five weeks and on her return she told me that Tema was a lovely place. One evening I went to her house at about 9 p.m. and inquired of her and her father told me that she left home about 6 p.m. that she was coming to my house. As I was returning with one Donkor, we met the plaintiff and another girl plus two gentlemen walking hand in hand. I called the plaintiff and she told me that I had nothing to do with her. I went to her and she gave me a slap and told me that her children were not mine and that I should not enter her house again. I went and informed her father who told me to go home. As I was going I met her in Kumasi Bar with the men and I told them that if the plaintiff had told them that she was not married she had told them a lie, for even in friendship there is
[p.60] of [1974] 1 GLR 56-65
always a senior. The man told the plaintiff to go with me and I went with her to her father’s house and she started to insult me and to compare myself to the children if any one of them resembled me. She told me to go away and I went. I waited for about a week and her father did not come to see me. I once met her with a man who was wearing a watch bought for her. I had wanted to beat her and she went and complained to her father. I was summoned before some elders and the plaintiff and her father were found to be at fault. The father rendered apology to me but I refused to accept it. Later I received a letter from the Department of Social Welfare who advised the plaintiff to go to render apology to me but no apology came. Some time after the Ashanti community rendered apology to me at the instance of the plaintiff and I told them that if the plaintiff was asked to show me who was the father of the children I would care for them so that the father might one day thank me for looking after his children. The plaintiff was unable to show me who was the father and I had also ceased maintaining the children.”
The defendant’s version of the story was not only supported by his own witnesses amongst whom was the father of the plaintiff who testified as the defendant’s second witness but is also supported by the plaintiff s first witness, the social welfare officer, the plaintiff s third witness, the uncle of the plaintiff and his wife the plaintiff s second witness. The evidence before the trial court was nothing more than what transpired at the Social Welfare Department and after reviewing the evidence in the case the trial magistrate concluded his judgment as follows:
“The case before me is not in connection with the defendant’s marriage with the plaintiff but in respect of the maintenance of the children and from all the observations I have made I am satisfied that the defendant is the father of the plaintiff’s children and that the findings and order made by the Committee of the Department of Social Welfare and Community Development must not be disturbed and the plaintiff must have judgment for the relief sought. Judgment for plaintiff for:
Claim 0192.00 as at the end of October, 1971.
Costs 22.40 Total 0214.40”
The defendant obviously aggrieved by the decision against him lodged an appeal to this court two days after the judgment on the sole ground that the judgment was against the weight of evidence. There was however an indication in the notice that other grounds would be filed on receipt of the record of proceedings. On 28 November 1973, one additional ground was filed on his behalf which reads as follows: “That the plaintiff-respondent’s action was misconceived in so far as it sought to enforce an award made by the Ministry of Social Welfare and Community Development.” Although Mr. Atta Kesson had a good deal to complain about the decision on the facts his main arguments as submitted on the
[p.61] of [1974] 1 GLR 56-65
additional ground were that the plaintiff s action was misconceived. He submitted that the plaintiff s original complaint to the Social Welfare Department was brought under the provisions of the Maintenance of Children Act, 1965 (Act 297). Counsel therefore contended that under section 1 of the said Act any ruling or order made by the said department was not enforceable in court as the intention of that section was to bring harmony between the parties by persuading the defaulting father to maintain his children. Counsel therefore argued that it was wrong therefore for the plaintiff to have gone to court to enforce the order of the Social Welfare Department as if it were a binding order. Continuing, learned counsel referred to section 8 of the Act which empowers the court to entertain applications made to it after conditions laid down by sections 1 to 5 of the Act have been complied with as envisaged by section 6 and argued that section 8 enjoined the court to conduct an independent inquiry into the case and to make a fresh order upon its own findings. Counsel therefore contended that it was incompetent for the trial court merely to have enforced the order made by the Social Welfare Department.
Replying on behalf of the plaintiff, Mr. Ampiah contended that the form which the plaintiff s action took was not in consonance with the spirit and language of Act 297. He however submitted that the real issue between the parties was one for a maintenance order which the trial court was properly seised with. Counsel therefore invited me to send the case back for trial de novo notwithstanding the fact that the plaintiff sought to enforce the ruling of the Social Welfare Department.
The general powers of this court sitting on appeals from district courts are governed by Order 58, rr. 17 and 18 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The combined effect of these rules is to give this court wide discretionary powers in the exercise of its appellate jurisdiction to ensure that justice is achieved as far as is practically possible. These powers like all judicial discretions are to be exercised within certain accepted and recognised principles and practices. The discretion conferred by r. 17 with regards to “re-hearing of the whole case” as if it originated in this court should not be exercised so as to reopen the whole case which will have the effect of permitting an aggrieved party to lead fresh evidence, a right which is exercised in exceptional circumstances and upon proof of matters which will justify the court to embark on this unusual course when hearing appeals. Nor should the discretion conferred to remit the case to the court below for retrial be exercised so as to give the losing party another opportunity to rebuild his or her case afresh. Instances which come to mind offhand where the latter right had been exercised are:
(a) Where there has been a complete disregard in the court below of a fundamental principle of administration of justice (i.e., a breach of any of the rules of natural justice) or where a party has been denied a right of putting his case fully.
[p.62] of [1974] 1 GLR 56-65
(b) Where a fundamental irregularity in the proceedings has either occasioned a miscarriage of justice or rendered the whole trial a nullity (i.e. where the court is incompetently constituted: see Boohene v. Ofei [1959] G.L.R. 101 on the effect of a member of the court mounting a witness-box).
(c) Where there has been a fundamental breach of a judicial duty: see Quaye v. Mariamu [1961] 1 G.L.R. 93, S.C.
The above instances are not exhaustive. It appears that under any of the above circumstances the aggrieved party should be entitled as of right to have his case sent back for retrial, but there may be occasions where the exercise of the right becomes discretionary. Instances of such situations are:
(a) where the record of proceedings have been poorly or improperly compiled so as to present some difficulty in the hearing of the appeal, and
(b) where the judgment itself was unsatisfactorily written.
But more important, the exercise of the powers conferred on this court to order a retrial is dependent on whether the original claim before the court below was competent. In other words, whether the trial court was competently seised with jurisdiction. Where as in the instant case the relief sought cannot be granted by the court it will be a farce to remit the case back for retrial.
Even though the invitation by learned counsel for the respondent to hear further evidence in this court or to have it remitted to the court below for trial de novo would have lessened my task, I think in order to accede to this request I must not be blinded by that attraction and ignore the duty of satisfying myself that there exist some legal grounds which will justify my doing so. The main complaint of the defendant against the decision appealed from is that Act 297 did not give jurisdiction to the trial court to enforce the ruling and order made by the Social Welfare Department pursuant to the plaintiff s application to it under section 8 of the Act. There is no doubt that the plaintiff s action was founded under the provisions of Act 297. That this is so is not disputed by her counsel who made a clean breast of the incompetency of the court to enforce the plaintiff s claim against the defendant. The issue raised by the plaintiff s action is one for the enforcement of the order made by the Social Welfare Department following her complaint against the defendant. The issue was properly understood by the trial magistrate and this was clear on the evidence before him but he unfortunately misappreciated his duties under Act 297 and erroneously sought to enforce the order contrary to the language of the Act. Learned counsel’s contention that the issue was simply a claim for a maintenance order therefore is untenable.
The judgment appealed from is open to attack on several grounds. In the first place it was wrong for the trial magistrate to have made an order seeking to enforce the plaintiff s claim based on the ruling and order of
[p.63] of [1974] 1 GLR 56-65
the Social Welfare Department. It is also not competent within the language and spirit of Act 297 for either the Social Welfare Department or the court to have granted relief for arrears of maintenance. Section 9 of Act 297 which empowers the court to order the payment of an amount not exceeding 010 per child as maintenance after due inquiry into the means of both the father and mother is referrable only to the future. It was therefore incompetent for the Social Welfare Department to have ordered arrears of maintenance against the defendant and it was also wrong for the trial court to have endorsed that order. In short there was such a complete disregard by the trial magistrate of the relevant provisions of Act 297 that learned counsel for the plaintiff needs to be commended for the stand he took in this appeal on that aspect of the matter.
This finding that there was a complete disregard for the provisions of Act 297 on a cursory glance lends some support to justify this case being sent back for retrial but I think a look at the facts of the case as presented will not justify that course. The evidence shows that prior to the plaintiff telling the defendant that he was not the father of her children there had been no neglect on the part of the defendant in maintaining the children despite the frequent quarrels that had characterised the marriage. The salient feature about a claim for maintenance under Act 297 is proof of the governing phrase “wilful neglect” as envisaged by section 8 against a defendant. This of course presupposes that the defendant is the father of the children on whose behalf the claim is being made. Act 297 itself does not define the phrase “wilful neglect.” No local case has also defined the phrase. In Brannan v. Brannan [1973] 1 All E.R. 38, the English Court of Appeal on a wife’s complaint of “wilful neglect to maintain” against her husband, legally defined the word “wilful.” I am of the view that the definition as given there will afford a useful guide in determining what amounts to “wilful neglect” within the language of Act 297. The facts of the Brannan case (supra) as appear in the headnote are as follows:
“The husband and wife were married in 1962. Soon after the marriage the husband showed signs of mental illness and in July 197O spent a fortnight in hospital undergoing treatment. The day following his release from hospital, he left the matrimonial home and never returned. He was subsequently readmitted to hospital for a longer period of treatment. The husband had a fixed, irrational belief that his wife was going to injure or kill him. Apart from that delusion, he appeared perfectly normal and knew how to conduct himself in public and in private, except with regard to his wife. In 1971 the husband returned to his job. The wife remained at the matrimonial home and was in receipt of social security benefits. In June 1971 the wife, at the instigation of the Department of Health and Social Security, complained to the justices that her husband had deserted her and issued a further complaint of wilful neglect to maintain. In September 1971 the justices dismissed the complaint of desertion on the ground that the husband, by reason of his delusion,
[p.64] of [1974] 1 GLR 56-65
was unable to form an intention to end cohabitation and that the separation was one of necessity. At the hearing of the complaint of wilful neglect in December, the justices ordered the husband to pay the wife £6 a week. The husband appealed. He admitted that he was under a legal duty to maintain his wife but contended that for the same reason that he could not be guilty of desertion, so too, he could not be guilty of wilful neglect to maintain, since the word ‘wilful’ connoted an element of wrong doing or blame which did not exist in his case because of the delusion.
Held — The appeal would be dismissed for the following reasons—
(i) the complaints of desertion and wilful neglect to maintain did not automatically stand or fall together; accordingly, the fact that the husband had no animus deserendi did not afford him a good defence to the complaint of wilful neglect to maintain … dicta of Asquith LJ in Chapman v Chapman (4th April 1951) unreported, and of Lord Merriman P in Stringer v Stringer [1952] 1 All ER at 377 applied;
(ii) the word ‘wilful’ did not connote any malice or wickedness on the part of the husband; the husband’s neglect was wilful if, with the knowledge of the relevant facts, he deliberately failed to pay to the wife such sums as, in the opinion of the court, were in all the circumstances sufficient for her reasonable maintenance and support; despite his psychotic delusion, the evidence showed that at all material times the husband had that degree of knowledge and appreciation of the facts which sufficed to support a finding that his neglect to pay maintenance was ‘wilful’ . . . Tulip v Tulip [1951] 2 All ER 91, Dowell v Dowell [1952] 2 All ER 141 and dicta of Lord Goddard CJ in National Assistance Board v Prisk [1954] 1 All ER 4O1, 4O2 and of Hodson LJ in Lilley v Lilley [1959] 3 All ER at 289 applied.”
It looks therefore that for a plaintiff to succeed under sections 1 and 8 of Act 297 it should be established against the defendant that with full knowledge of the relevant facts he deliberately failed to make reasonable provision of such sum as in the opinion of the court having regard to his means for the upkeep of his children. It follows that “wilful neglect” within the language of Act 297 does not connote any malice or wickedness on the part of the defendant but rather a neglect by the defendant with full knowledge of the relevant facts to make reasonable provision according to his means for the maintenance of his children.
I do not think on the facts of the present case the plaintiff was able to establish “wilful neglect” against the defendant. The facts show that the conduct of the plaintiff which I consider highly reprehensible has been the cause of this unfortunate situation. Her conduct had always been suspected by the defendant and for such a mother to openly tell a man who is supposed to be her husband not to worry her because her children are not his and that he should look at them to see if any of them resembled him is the most serious and expensive blunder that cannot be lightly
[p.65] of [1974] 1 GLR 56-65
excused or dismissed no matter to what extreme the woman is provoked by the conduct of the husband. I am therefore of the view that for the court to condemn any man for refusing to maintain the said children under such circumstances and order the man to pay arrears of maintenance will be lending support to an unjustifiable claim by an unscrupulous woman. Since the basis for awarding maintenance is the acceptability of paternity, an assertion by a wife that her husband is not the father of her children under circumstances such as in the instant case will justify the refusal of maintenance of such children. A father refusing to act under such circumstances cannot be said to have acted “wilfully.”
The facts of this case demand an amicable settlement out of court. I have been told off the record that the marriage has been dissolved. This being so and paternity having been found against the defendant he will be well advised to take steps to claim custody of the children or make some provision for their maintenance.
In the result the appeal succeeds and it is accordingly allowed.
DECISION
Appeal allowed.
S.E.K.
