SIREBOUR vs. DOME [1962]DLHC1709

Date	1962-02-15
Suit No.
Citation No.	[1962]DLHC1709

APALOO J.

I R. ABOAGYE FOR THE APPELLANT

J.E.C. LUTTERODT FOR THE RESPONDENT.

[1962]DLHC1709
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">SIREBOUR <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">DOME <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1962] 1 GLR 82<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 15TH FEBRUARY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

I
R. ABOAGYE FOR THE APPELLANT,<o:p></o:p>

J.E.C.
LUTTERODT FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

APALOO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
APALOO, J.<o:p></o:p>The plaintiff was the customary wife of the defendant. She bore
him five children whose maintenance and education are the subject-matter of
this action. The parties were divorced about four years before the action and
lived separate and apart. All the children lived with their mother, the
plaintiff. The latter’s complaint is that since the dissolution of the
marriage, the defendant shirked his parental responsibility as father of her
children and provided no money either for their education or maintenance. The
sums which she said she spent in the past she claims in the present suit as
debt and also sought an order against the defendant for future maintenance. The
learned circuit judge found in her favour on both issues and rejected the
defendant’s claim that he had in fact provided for these children.<o:p></o:p><o:p>&nbsp;</o:p>The defendant appeals against that judgment to this court on many
grounds. I had the benefit of listening to a very able and interesting argument
urged on his behalf by Mr. Aboagye.<o:p></o:p>The first and most serious argument put forward, and which counsel
said was fatal to the suit was that the circuit court had no jurisdiction to
entertain the suit. Founding himself on section 39 (1) (a) (iii) of the Courts
Act, 1960,1(1)<o:p></o:p>(1) it was urged that as no legal custody was claimed nor awarded
of the children to the plaintiff, an award of maintenance was not competent.
Counsel contended that jurisdiction to award maintenance was ancillary to an
order for custody and that legal custody as distinct from de facto custody was
a sine qua non to a valid maintenance order. In support of this argument
counsel referred me to Stone’s Justices Manual, (93rd. ed.) Vol. 1, p. 1263 and
to Tolstoy on Divorce (3rd ed) p. 322. Contrariwise, Mr. Lutterodt for the
respondent argued that de facto custody was sufficient and that once paternity
was admitted the burden lay on the defendant to prove that he has maintained
his children.<o:p></o:p>Had the marriage of the parties been contracted under the
provisions of the Marriage Ordinance,2(2)<o:p></o:p>(2) then the incidents of English law would have applied wholesale
to this case, and Mr. Aboagye’s forceful argument would have been wholly
unanswerable. English law does not recognise marriages contracted under our
native custom on the ground that such unions are potentially polygamous and
does not accord parties married under that system English matrimonial relief
(see Sowa v. Sowa3(3)<o:p></o:p>(3) nor children begotten of that marriage. In those circumstances
it would, in my opinion, be wholly wrong to decide questions relating to the
matrimonial rights and obligations of persons married according to custom by
the application of the rules of such law.<o:p></o:p><o:p>&nbsp;</o:p>In customary law all children whose paternity is acknowledged by
their father are, as I understand the law, children for the purpose of imposing
obligations on their father. In English law, children born out of wedlock and
other issues of irregular unions are filii nulii and are cared for by the
Bastardy Acts.<o:p></o:p><o:p>&nbsp;</o:p>In this country, it is a principle of native customary law that a
father is primarily responsible for the maintenance and education of his
children. This principle has now been crystallised by a decision of the High
Court in Adjei v. Ripley.4(4)<o:p></o:p>