AWORTWI v. NWANSU [1968] GLR 1106

DIVISION: HIGH COURT, SEKONDI

DATE: 10 DECEMBER 1968

BEFORE: ABOAGYE J.

NATURE OF PROCEEDINGS

APPEAL to the High Court against the judgment of district court, granting the respondent custody of his two children by appellant. The facts are fully set out in the judgment.

COUNSEL

K. K. Dei Anang for the appellant.

J. K. Essien for the respondent.

JUDGMENT OF ABOAGYE J.

In this case the defendant appeals against the judgment of the District Magistrate Grade I, Sekondi. granting the plaintiff custody of his two children by her.

The plaintiff, prison officer in Ghana, is a Nigerian and between the years 1960 and 1964 he had two issues with the defendant, a Fante. The children were aged five-and-a-half years and four years respectively at the time the case was heard by the district court in February this year. According to the plaintiff, he and the defendant were married according to Fante custom and the children were born in wedlock. The version of the defendant, on the other hand, was that she lived in an illicit association with the plaintiff and had the two children with him. An attempt was made by the plaintiff to marry her but it never materialised. She had admittedly lived with the children up to the time judgment was given against her. It is clear from the evidence of the defendant that she resisted the plaintiff’s claim for custody of the children on the ground that the plaintiff had shirked his responsibility as a father and neglected to maintain the children. After hearing evidence on both sides and counsel’s addresses, the learned district magistrate held, apparently following the headnote to the report of the decision of Ollennu J. (as he then was) in In re Dankwa [1961] G.L.R. 352 that “at common law a father is the natural guardian of his infant child and prima facie has a right to its custody, even as against its mother.” He found that the children had passed the weaning stage and so there was no danger in separating [p.1108] of [1968] GLR 1106 them from their mother and, finding nothing wrong with the plaintiff, he ordered that he should have custody of the children.

Mr. Dei Anang, leading counsel for the appellant, attacked the judgment of the learned district magistrate on the following grounds:

“(1) That it is against the weight of evidence.

(2) That the learned district magistrate misdirected himself by failing to make a finding on the issue of whether the parties in the suit were married or not.

(3) The learned district magistrate erred in law in not directing his mind sufficiently to the central issue in a custody suit, namely, the welfare of the children, the subject-matter of the dispute.

(4) The learned district magistrate erred in law in omitting to consider the rights and duties of the plaintiff against the background of the plaintiff’s personal law.”

It is true that the learned magistrate did not make any finding as to whether or not the plaintiff and the defendant were married. He did not make the findings because he did not find it necessary to do so; for in his view what mattered was whether or not the plaintiff was the father of the children and it was not disputed that he was. I respectfully disagree with the view expressed by the learned magistrate. Following the decision in Adjei v. Ripley (1956) 1 W.A.L. R. 62, once it is not disputed that the plaintiff is the father of the children, his liabilities and rights, if any, in respect of them must be determined in accordance with Fante customary law even if the parties never got married. It must therefore be decided what right as to custody a father has in respect of his children according to Fante customary law. By the Akan custom (which includes the Fante custom) a child belongs to its father and he is generally the person who has custody of it. See Danquah’s Akan Laws and Customs at p. 187:

“Now, 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 house-hold, 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.” See also Grunsi v. Acquah, High Court, Cape Coast, 1 March 1965, unreported; digested in (1965) C.C. 87, per Archer J. But by the Akan custom it is only the legitimate child which belongs to its father and [p.1109] of [1968] GLR 1106 in respect whereof he is entitled to custody; for a child born through immoral association does not belong to its natural father. Such a child belongs to its mother or its mother’s family; for, as the Akan saying goes, “Okronfo nni ba” (meaning literally, that a thief has no child). See Danquah’s Akan Laws and Customs at pp. 186-187. It is clear from the foregoing that as there was a dispute as to whether the plaintiff and the defendant were customarily married, the learned magistrate could not properly determine the issue as to which of them was entitled to the custody of the children without first determining whether or not the parties were properly married at customary law. The plaintiff claimed to have married the defendant in accordance with Fante customary law by sending to her parents N¢31.50 and a bottle of whisky about two years after he had been living in concubinage with her and the evidence of the defendant’s mother, the defendant’s first witness, was that the money and the drink (which she said was gin and not whisky) were meant to pacify the defendant’s family for the plaintiff having, without their consent, lived with the defendant as his concubine. The version of the defendant’s mother accords with the Fanti custom. See Sarbah, Fante Customary Laws (3rd ed.) at p. 51 where it is written: “Where a person living with a woman as his concubine wishes to marry her, he is bound to pay to the family of the woman satisfaction money, which can be waived, before giving the consawment …” The payment of the N¢31.50 and the drink to the defendant’s family through her mother is therefore consistent with both his marrying the defendant and his pacifying the family and this court is not in a good position to make any finding from the evidence on record.

On the second ground alone which was argued together with the first ground the appeal must succeed and, without commenting on the other grounds, I allow it and order a re-trial by another district magistrate. The appellant will have her costs in this court assessed at N¢75. Costs in the lower court to abide the result of the re-trial.

DECISION

Appeal allowed with costs.

Re-trial ordered

L.F.A.