ASEM v. ASEM [1968] GLR 1146

DIVISION: COURT OF APPEAL

DATE: 23 DECEMBER 1968

BEFORE: AKUFO-ADDO C.J., AZU CRABBE AND APALOO JJ.A.

NATURE OF PROCEEDINGS

APPLICATION for custody of an infant child the issue of a dissolved marriage. The facts are sufficiently set out in the ruling.

COUNSEL

Dr. W.C. Ekow Daniels for the applicant.

C. E. Quist for the respondent.

[p.1147] of [1968] GLR 1146

JUDGMENT OF APALOO J.A.

Apaloo J.A. delivered the ruling of the court. The parties were married under the provisions of the Marriage Ordinance at Cape Coast on 7 October 1950. They lived and cohabited together in various places and there is now living, one child of the marriage whose custody is the subject-matter of this application.

The material placed before us does not disclose a great deal about the matrimonial history of the parties save that the judgment exhibit A shows that by early 1967, the marriage had broken down and both sides sought the court’s assistance to terminate it. The initiative was taken by the wife who petitioned the High Court at Cape Coast for dissolution of the marriage on the ground of the husband’s cruelty. The latter cross-prayed for a similar relief and on an identical charge. In the result, neither party was able to satisfy the learned judge who proceeded to dismiss both the prayer and cross-prayer. He however reserved to the parties liberty to bring a fresh petition on any ground which they could sustain. The parties obviously availed themselves of this, and on 12 May 1967, the husband petitioned the High Court, Accra, for dissolution of the marriage on the ground of the wife’s desertion. The latter for her part, cross-petitioned for dissolution on the ground of the husband’s adultery and cruelty. Both parties sought custody of the only child of the marriage.

The learned trial judge was not satisfied that the wife had substantiated her charge of adultery against the husband but felt that if that charge had been made out, that matrimonial offence had been condoned by the wife. He found no evidence which entitled him to conclude that the husband-petitioner had been guilty of cruelty and proceeded to dismiss the cross-prayer. He however felt satisfied that the charge of desertion had been brought home to the wife. He accordingly sustained the husband’s petition and granted a decree nisi in his favour. The learned trial judge also granted the custody of the issue of the marriage to the petitioner and ordered the respondent to produce the boy to him on a named date. The wife by a subsequent application sought to have the custody order stayed on the ground that the welfare of the infant requires that he remain with the grandmother until the appeal which she has brought has been determined. The learned judge agreed that the welfare of the infant was his primary consideration and expressed himself in a manner which suggests that had the child been a girl, he would have decided differently but having given consideration to the fact that both parties live in Accra and that the child is actually in the custody of the grandmother and also the fact that there is as good an opportunity of educating the child in Accra as there is in [p.1148] of [1968] GLR 1146

Cape Coast the judge concluded that no good grounds exist for suspending the operation of the custody order and accordingly declined the application for stay.

The wife-respondent repeated the application for stay before us, as she is entitled to do under rule 27 of the Supreme Court Rules, 1962 (L.I..218), and invited us to accede to her application notwithstanding the learned judge’s refusal. The grounds urged before us are contained in the accompanying affidavit and may be summarised as follows:

(a) The child is in a good school in Cape Coast and it would be prejudicial to his interests to transfer him to a new environment especially as no concrete plans for his education have been made by his father.

(b) The petitioner is a stranger to his son while he is in the happy company of his cousins with whom he plays and studies in Cape Coast.

(c) The wife is solely responsible for the education of the child and even if he should change hands, his interest requires that he should remain where he is until the appeal is finally determined and not be shuffled between competing claimants.

As is only to be expected, the husband resists the application and in an affidavit, replied to the grounds urged by the wife in substance as follows: Firstly, that an admission had been secured for the child in the Morning Star Preparatory School and that the offer of a place has been reserved and that the husband is possessed of facilities which the upbringing of the child entails and that the child’s interest requires that he should be handed over. Secondly, although both the wife and her mother had denied him access to the child, he in fact visited him on several occasions and both the child and father are familiar with each other. Thirdly, the wife lives in Accra and is in no position to give personal attention to the child and that it would be prejudicial to his interests to allow him to remain with his grandmother instead of his natural father. This application is not an appeal from the learned judge’s discretion to ours. We have to exercise our own minds anew on the question whether good grounds exist for suspending the order of custody until the determination of the appeal. As is well known, the court is obliged by statute in deciding a question of custody to have regard to the welfare of the infant as its first and paramount consideration. That being the statutory criterion, it would seem that the success or failure of the appeal, is of little importance. The crucial question for decision is: which of the parents is better suited to be entrusted with the upbringing of this six-year old boy? [p.1149] of [1968] GLR 1146

Although very little evidence is afforded in the exhibits about the personal circumstances of the parties, we have been told from the bar that the husband holds a high public office and as such, is in position not only to provide a home for his infant son but is also financially capable of bringing him up. He has sworn, and this is not disputed, that he has got a place reserved for him in a preparatory school. Although he has not deposed in his affidavit what domestic arrangements he has made for the welfare of the child, it is reasonable to assume that he would not have asked to be saddled with the custody of his six-year old boy if he has not made arrangements for this purpose satisfactory to himself. Indeed the wife, has not suggested in her affidavit anything about his home life or personal habits which unfits him to be trusted with the custody of his child. No finding has been made in the judgment which lends the slightest colour to any suggestion that the husband would be towards his child, anything but a loving and devoted father. Indeed it is the wife who has been found to be unreasonable throughout the marriage and has exhibited towards her husband conduct, which the judge described as unbearable. This however does not show that the wife is any less fitted to be trusted with the custody of the child but we have been told she is unemployed and does not seek to have the child under her own roof, but intends that he should remain at Cape Coast with her mother. So in the end the question which we have to decide is: Is it in the child’s interest that he lives with and be brought up by his father who is a principal secretary or his grandmother? While we are not insensible to the wishes of the wife, we think the paramount interest of the child requires that he should live with and be brought up by his father. We do not consider that the fortuity of the appeal failing or succeeding should make any difference. An order for custody can be varied if a change occurs in the circumstances of the parties and we do not think that if it is shown in the future that the circumstances of the father have so altered that it would be prejudicial to the interest of the child that he should remain with him, any court would think itself inhibited from revoking the order even if the wife’s appeal should be unsuccessful. Accordingly, although we applied our own minds de novo to the matter, we have reached the same conclusion as the learned judge, namely, that the husband should have the custody of the infant and that no good grounds exist for suspending this order during the pendency of the appeal.

The learned judge ordered that the child should be handed over by 18 November last. That is not now possible. We have ascertained that the Morning Star Preparatory School to which the child is to be

[p.1150] of [1968] GLR 1146 put, re-opens on 7 January 1969. We think the child should not be unsettled during the Christmas festivities by this order but he should be returned soon after the New Year to be got ready for school on 7 January. We accordingly order that the wife return Kwesi to the father at his home in Accra not later than 5 January next. We make no order as to costs.

DECISION

Application dismissed.

D. R. K. S.