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December 23, 1968
COURT OF APPEAL
CORAM
JUDGMENT OF APALOO J.A.
Apaloo J.A. delivered the ruling of the court. The parties were married under the provisions of the Marriage Ordinance at Cape Coast on 7 October 1950. They lived and cohabited together in various places and there is now living, one child of the marriage whose custody is the subject-matter of this application.
The material placed before us does not disclose a great deal about the matrimonial history of the parties save that the judgment exhibit A shows that by early 1967, the marriage had broken down and both sides sought the court's assistance to terminate it. The initiative was taken by the wife who petitioned the High Court at Cape Coast for dissolution of the marriage on the ground of the husband's cruelty. The latter cross-prayed for a similar relief and on an identical charge. In the result, neither party was able to satisfy the learned judge who proceeded to dismiss both the prayer and cross-prayer. He however reserved to the parties liberty to bring a fresh petition on any ground which they could sustain.
The parties obviously availed themselves of this, and on 12 May 1967, the husband petitioned the High Court, Accra, for dissolution of the marriage on the ground of the wife's desertion. The latter for her part, cross-petitioned for dissolution on the ground of the husband's adultery and cruelty. Both parties sought custody of the only child of the marriage.
The learned trial judge was not satisfied that the wife had substantiated her charge of adultery against the husband but felt that if that charge had been made out, that matrimonial offence had been condoned by the wife. He found no evidence which entitled him to conclude that the husband-petitioner had been guilty of cruelty and proceeded to dismiss the cross-prayer. He however felt satisfied that the charge of desertion had been brought home to the wife. He accordingly sustained the husband's petition and granted a decree nisi in his favour. The learned trial judge also granted the custody of the issue of the marriage to the petitioner and ordered the respondent to produce the boy to him on a named date.
The wife by a subsequent application sought to have the custody order stayed on the ground that the welfare of the infant requires that he remain with the grandmother until the appeal which she has brought has been determined. The learned judge agreed that the welfare of the infant was his primary consideration and expressed himself in a manner which suggests tha
AI Generated Summary
Apaloo J.A., writing for the court, refused a stay of a High Court custody order pending a marital appeal between a husband and wife married under the Marriage Ordinance in Cape Coast. After failed cruelty petitions in Cape Coast, the husband obtained a decree nisi in Accra on the wife’s desertion and was awarded custody of their son, Kwesi. The wife sought a stay, citing the child’s school and familiar environment in Cape Coast and asserting the father was a stranger; the husband countered that he had reserved a place at Morning Star Preparatory School and was able to provide a home. Exercising de novo judgment and applying the statutory paramount welfare test, the court found the child’s interests favored living with his father, a high public official, and held the appeal’s outcome immaterial. It ordered return of the child by 5 January and made no order as to costs.