ATTU vs. ATTU [1986]DLHC885

Date	1986-11-19
Suit No.
Citation No.	[1986]DLHC885

BROBBEY J

E A OSEW FOR THE APPLICANT.

MAJOR (RTD) DARTEY FOR THE RESPONDENT.

[1986]DLHC885
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ATTU <o:p></o:p>

{HIGH COURT, ACCRA} <o:p></o:p>

[1984-86] 2 GLR 743<o:p></o:p>

DATE:
19 NOVEMBER 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

E A OSEW FOR THE APPLICANT. <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 1.0pt 0in">

BROBBEY J<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGEMENT OF BROBBEY J.<o:p></o:p>This is a
ruling on an application for custody of two minor children by name Samuel
Wolanyo Attu and Alexandra Akoffa Attu.<o:p></o:p>The
applicant used to be the husband of the respondent but both parties were
divorced in 1977, after which the respondent was granted custody of the
children in 1982, with right of access to them given to the applicant. In fact
the 1982 custody order required that the children spent part of their school
holidays with the respondent and part with the applicant.<o:p></o:p><o:p>&nbsp;</o:p>In the
same year of 1982, the respondent was remarried and she left Ghana for Britain
with her new husband. She took the two children with her. Since then, the
children had been with their mother in Britain until they came to Ghana on a
visit some time this year.<o:p></o:p><o:p>&nbsp;</o:p>Once they
were in Ghana, the applicant obtained a court order restraining the respondent
from taking the children to Britain pending the hearing of his application for
their custody. The respondent was served with the court order. While this
application for custody was pending trial in court, the respondent left the
country with the two children without the knowledge and authority of the
applicant or this court which issued the initial order restraining her from
taking the children out of this country. In spite of the absence of the
children, the applicant pursued his application. The respondent instructed
counsel to contest the application on her behalf but in absentia.<o:p></o:p>The basic
issue before this court is, which of the two parties should be granted custody
of the two children? In the first place, while Mr Osew for the applicant
contended that the custody order granted in June 1982 was merely temporary, Mr
Dartey for the respondent maintained that it was permanent. The law is clear on
this issue. In this country, there can be no permanent or immutable order of
custody because the Matrimonial Causes Act, 1971 (Act 367), s 27 (1) empowers
the High Court to rescind or vary any order of custody of any child as it
thinks fit. There is no precondition on the rescission or variation, save that
it should be made in the best interest of the child concerned. It is obvious
therefore that the order of custody made in June 1982 can be rescinded or
varied as this court deems fit. To the extent that this application seeks to
vary the custody order of 1982, it is clearly sustainable in the light of Act
367, s 27(1).<o:p></o:p><o:p>&nbsp;</o:p>In
determining whether to grant custody to the applicant or respondent it is said
that the welfare of the two children should be the fundamental or paramount
consideration. This principle has been given statutory backing in the Courts
Act, 1971 (Act 372), s 16(2) which provides that “the welfare of the infant
shall be the primary consideration of the High Court.” In England and many
other Commonwealth countries, the expression “paramount consideration” is used
instead of our local term “primary consideration.” In most of the cases on
custody decided in this country the term “paramount” has been used instead of
the statutory term “primary.” These cases include Asem v Asem [1968] GLR 1146;
Gray v Gray [1971] 1 GLR 422, Beckley v Beckley [1974] 1 GLR 393, Opoku-Owusu v
Opoku-Owusu [1973] 2 GLR 349 and Braun v Mallet [1975] 1 GLR 81.<o:p></o:p><o:p>&nbsp;</o:p>One fact
which certainly emerges from the authorities is that whether “primary” means
“paramount” or whether the two are used synonymously, both words connote a
situation which admits of the e</main>