JUDGMENT OF ABOAGYE J.
In this case the defendant appeals against the judgment of the District Magistrate Grade I, Sekondi. granting the plaintiff custody of his two children by her.
The plaintiff, prison officer in Ghana,is a Nigerian and between the years 1960 and 1964 he had two issues with the defendant, a Fante. The children were aged five-and-a-half years and four years respectively at the time the case was heard by the district court in February this year. According to the plaintiff, he and the defendant were married according to Fante custom and the children were born in wedlock. The version of the defendant, on the other hand, was that she lived in an illicit association with the plaintiff and had the two children with him. An attempt was made by the plaintiff to marry her but it never materialised. She had admittedly lived with the children up to the time judgment was given against her. It is clear from the evidence of the defendant that she resisted the plaintiff's claim for custody of the children on the ground that the plaintiff had shirked his responsibility as a father and neglected to maintain the children.
After hearing evidence on both sides and counsel's addresses, the learned district magistrate held, apparently following the headnote to the report of the decision of Ollennu J. (as he then was) in In re Dankwa [1961] G.L.R. 352 that "at common law a father is the natural guardian of his infant child and prima facie has a right to its custody, even as against its mother." He found that the children had passed the weaning stage and so there was no danger in separating [p.1108] them from their mother and, finding nothing wrong with the plaintiff, he ordered that he should have custody of the children.
Mr. Dei Anang, leading counsel for the appellant, attacked the judgment of the learned district magistrate on the following grounds:
"(1) That it is against the weight of evidence.
(2) That the learned district magistrate misdirected himself by failing to make a finding on the issue of whether the parties in the suit were married or not.
(3) The learned district magistrate erred in law in not directing his mind sufficiently to the central issue in a custody suit, namely, the welfare of the children, the subject-matter of the dispute.
(4) The learned district magistrate erred in law in omitting to consider the rights and duties of the plaintiff against the background of the plaintiff's personal law."
It is true that the learned ma
