NYARKOA vs. MANSU [1967]DLHC1520

Date	1967-07-17
Suit No.
Citation No.	[1967]DLHC1520

ARCHER J.

AMPIAH FOR THE APPELLANT.

CARSON FOR THE RESPONDENT.

[1967]DLHC1520
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													<main id="main" class="content" style="min-height: 60rem" >NYARKOA<o:p></o:p>&nbsp;vs. <o:p></o:p>MANSU <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1967] GLR 523<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
17 JULY 1967.<o:p></o:p>

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

AMPIAH FOR THE APPELLANT.<o:p></o:p>

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

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The
parties in this suit were customarily married for about fourteen years before
the marriage was dissolved on 2 March 1966. There were four children born
during the marriage. When the wife was leaving the matrimonial home at Nyakrom
after the dissolution of the marriage, she took away with her the two younger
children, namely, Kofi Gyasi Mansu then four-and-a-half years old and Kwasi
Addae Mansu then two years and two months. The husband after an unsuccessful
attempt to regain custody of the children issued a writ of summons at the
Swedru District Court claiming from the wife and the wife’s new husband called
Dravie, custody of the two children. When the matter came on for hearing Dravie
was struck out from the suit. The wife’s contention was that the two children
were the issue of an adulterous association with Dravie while her marriage with
the husband was subsisting and that Dravie was the father of the children. She
maintained that after seven years of marriage when the first two elder children
had been born the husband became impotent and by mutual agreement the husband
entreated her to stay in the matrimonial home and call him uncle and,
presumably with unbridled licence to her, to satiate herself sexually with
paramours wherever they may be found. The wife registered the names of the two
children in the names given them by the husband. The husband revealed what
wealth he had amassed for the benefit of all the four children and that
although he had not re-married, he had servants in his household who could look
after these two children. After having heard Dravie a witness for the wife and
addresses by counsel for both parties the learned trial magistrate granted
custody of the two children to the husband. In support of his decision the
learned trial magistrate quoted from Dr. Danquah’s Akan Laws and Customs at p.
187:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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 household, 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.”<o:p></o:p><o:p>&nbsp;</o:p>The wife
being dissatisfied with the decision appealed to this court. I shall henceforth
refer to the wife as the appellant and the husband as the respondent. When the
parties appeared for the first time for the hearing of the appeal on 15 March,
I had discussion with their counsel in court and I adjourned further hearing to
30 March 1967 to enable the parties to file affidavits disclosing any fresh
evidence they wished to rely on. The affidavit filed by the respondent revealed
that on 15 September 1966 he was granted an adultery fee of £G7 10s. against
Mr. Dravie for having sexual connection with the appellant during the marriage
of the parties. The appellant’s affidavit alleged that the respondent was the
friend of Mr. Dravie and that the respondent knew of her clandestine
association with Mr. Dravie and that he condoned and connived at it and that he
knew that the children were not his. Mr. Ampiah for the appellant submitted
that the respondent had not re-married and had nobody to look after these young
children. Mr. Carson for the respondent submitted that customary law was in
favour of the respondent who was an Akan, as was the appellant, whereas Mr.
Dravie was not.<o:p></o:p><o:p>&nbsp;</o:p>After
having seen the appellant, the respondent, all the four children of the
marriage and Mr. Dravie in court and after observing their facial features, I
had the intuitive conviction, although I did not express it in court, that one
of the children in dispute, especially Kofi Gyasi Mansu now about five years,
could be described as “a chip off the old block” - the old block being the
respondent. When I asked this young child in open court who was the respondent
he exclaimed in a voice filled with disgust and fright - “He is my brother’s
father.” I must confess I was completely disarmed by this exclamation from the
ignorant but innocent lips of this child. After careful thought and in view of
the appellant’s own confession of adultery with Mr. Dravie, my mind was
preoccupied with the words of Swift J. in Warren v. Warren [1925] P. 107 at p.
112:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Any
woman may, and some do, have sexual intercourse with more than one man in the
course of a few hours; and if a woman has within the period during which
conception must have taken place had connection with more than one man, she is
only guessing, on more or less data, as to which is the father of the child.
But the law presumes that if one of those men is her husband, the child is
his.”<o:p></o:p>