JUDGMENT OF HAYFRON-BENJAMIN J.
This is an application for the custody of the children of the marriage between the petitioner (the wife) and the respondent. On 11 November 1970, this court, on the application of the petitioner, made an order in her favour granting her the custody of Ian Andrew Nicholas Gray and Lucinda Helen Gray forthwith until each reaches the age of [p.424] sixteen years. The respondent now applies for custody of the same children. I shall treat this as an application for variation of that order for custody.
The first ground raised by counsel for the respondent is that the order of 11 November 1970 is wholly void, as it was made to subsist until the age of sixteen years. Counsel has submitted that while the divorce petition has not been heard, the court's jurisdiction is limited to making an interim order for custody pending the hearing and determination of the petition. The basis of this submission seems to be that where the petition is dismissed, the court cannot make an order for the custody of the children. I think this submission is based on a misapprehension of the powers of the court, as the upper guardian of children (to use the Roman Dutch expression current in South Africa), to make orders with respect to their custody and welfare.
I shall therefore consider the law in some detail. I shall commence by determining what law is in force concerning matrimonial and allied causes in Ghana. It is quite clear to me that before the Courts Decree, 1966 (N.L.C.D. 84), the law relating to divorce and matrimonial causes was the same as the law for the time being in force in England. It was so decided in the case of Ashong v. Ashong, Court of Appeal, 13 March 1967, unreported; digested in (1968) C.C. 26. The Courts Decree did not alter the position. It provided in paragraph 93 inter alia that:
"93. (2) The provisions relating to Admiralty jurisdiction, infants, persons of unsound mind, probate and matrimonial causes, and statutes of general application which were in force in England on 24th July, 1874 and applicable to Ghana immediately before the commencement of this Decree, shall continue to apply on and after such commencement until such provisions are modified, amended or revoked under this Decree."
There was no such modification, revocation or amendment.
The question that arises for determination therefore is whether or not the Constitution, 1969, has made any difference to the legal position. There is no doubt that the law, i.
