NANKONJA vs. MBAGE [1988]DLHC645

Date	1988-09-29
Suit No.
Citation No.	[1988]DLHC645

OWUSU-SEKYERE J.

A. A. MUNUFIE FOR THE PLAINTIFF-APPELLANT.

W. Y. OPPONG FOR THE DEFENDANT-RESPONDENT.

[1988]DLHC645
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													<main id="main" class="content" style="min-height: 60rem" >NANKONJA <o:p></o:p>vs. <o:p></o:p>MBAGE<o:p></o:p>[HIGH COURT, SUNYANI] <o:p></o:p>[1989-90] 2 GLR 354<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:
29
SEPTEMBER 1988<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">

A. A. MUNUFIE FOR THE PLAINTIFF-APPELLANT.<o:p></o:p>

W. Y. OPPONG FOR THE DEFENDANT-RESPONDENT.<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">

OWUSU-SEKYERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OWUSU-SEKYERE J.<o:p></o:p>This is
an appeal against the decision of the District Court Grade II, Atebubu presided
over by his Worship K. A. Saifa-Bonsu, District Magistrate Grade II, who on 30
June 1987 gave judgment against the plaintiff in favour of the defendant in
that suit.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff
has appealed to this court against the decision of the said magistrate on a
number of grounds. Counsel for the plaintiff-appellant, Mr. A. A. Munufie, put
in the forefront of his submission in this appeal at its hearing that the
district court which heard the suit had no jurisdiction to entertain the action
and the judgment is therefore null and void. Even though this ground is
imprecise, I understand it to mean that since the subject matter of the suit is
paternity and custody of a child, the district court had no jurisdiction to
hear the suit; this meaning I got from his argument. Since this ground goes to
the root of the matter, the determination of which, would determine the success
or failure of the appeal, I have decided to take it first.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the plaintiff submitted, if I may sacrifice complete accuracy for brevity,
that section 37 (1) (f) of the Courts Act, 1971 (Act 372) had given the
district court grade II jurisdiction in matters concerning paternity and
custody of children, but the Maintenance of Children Decree, 1977 (S.M.C.D.
133), s. 3 has conferred jurisdiction on the family tribunal in such matters
and therefore the district court no longer has jurisdiction to hear such
matters; and having heard the suit on such matters the proceedings are null and
void. To this, counsel for the defendant-respondent, Mr. W. Y. Oppong, replied
that S.M.C.D. 133 did not take away the jurisdiction of the district court but
rather created a tribunal different from the ordinary court. He further submitted
that S.M.C.D. 133 did not repeal the jurisdiction conferred on the district
court by sections 37 and 38 of Act 372, nor did it repeal those sections of the
Act, and if it did it should have specifically stated so. He submitted that the
public tribunal set up by statute, ie the Public Tribunals Law, 1984
(P.N.D.C.L. 78), has concurrent jurisdiction in certain cases such as murder
and stealing with the High Court and that the conferment of such jurisdiction
on the public tribunal did not exclude the jurisdiction of the High Court in
murder and stealing cases and therefore S.M.C.D. 133 did not oust the
jurisdiction of the district court in cases concerning paternity and custody of
children.<o:p></o:p>Lord
Simonds, normally a strict constructionist, stated in the case of
Attorney-General v. Ernest Augustus (Prince) of Hanover [1957] A.C. 436 at 461,
H.L. that:<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">“ . . . I
conceive it to be my right and duty to examine every word of a statute in its
context, and I use ‘context’ in its widest sense, which I have already
indicated as including not only other enacting provisions of the same statute,
but its preamble, the existing state of the law, other statutes in pari
material, and the mischief which I can, by those and other legitimate means,
discern the statute was intended to remedy.”<o:p></o:p><o:p>&nbsp;</o:p>Again the
late S. Namasivayam, a Ceylonese and first Parliamentary Counsel, Government of
Ghana, 1960-1965, has said in his book entitled The Drafting of Legislation
that, “Bills in Ghana are prefaced by a Memorandum . . . In Ghana some
significance is given to the memorandum under section 19 of the Interpretation
Act, 1960 (C.A. 4).” The principles of judicial interpretation of statutes
serviceably illustrated by the above legal constructionist and draftsman
respectively justify my reference to the Memorandum to the Maintenance of
Children Decree, 1977 (S.M.C.D. 133). The first part of the memorandum states:<o:p></o:p>“The
Maintenance of Children Decree has been prepared as part of the Law Reform
programme to replace the Maintenance of Children Act, 1965 (Act 297). The
provisions of the Decree are based almost entirely on proposals submitted by
the Law Reform Commission to the Commissioner for Justice in pursuance of the
Decree by which it was established. The provisions of the Decree are intended
essentially to remedy certain defects in the existing law. The most significant
changes introduced by the Decree, appear in the following provision: PART
1—ESTABLISHMENT OF FAMILY TRIBUNALS Section 1 provides for the establishment by
the Chief Justice of Family Tribunals in each magisterial district which will
consi</main>