Tamakloe Vrs Sosu [2022] GHAHC 19 (10 October 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION COURT 5) HELD IN ACCRA ON MONDAY THE 10TH DAY OF OCTOBER, 2022 BEFORE HIS LORDSHIP JUSTICE WILLIAM BOAMPONG, HIGH COURT JUDGE GBOR TAMAKLOE GLEFE, ACCRA VS ETSE SOSU GLEFE, ACCRA SUIT NO: GJ/0588/2021 PLAINTIFF DEFENDANT J U D G M E N T The Defendant/Appellant being dissatisfied with and aggrieved by the orders of the Family Tribunal, Accra dated 28th August, 2020 had filed this appeal. The Appellant had filed the following grounds of Appeal. a) That the learned trial Family Tribunal erred in law which error of law occasioned a miscarriage of justice to the Respondent/Appellant when it failed to appreciate the position of the law that mandates it to take consideration before making orders for maintenance the income and wealth of the Respondent/Appellant and other parental responsibilities of the Respondent/Appellant towards his other 6 children. Particulars of Error of Law: That the trial Family Tribunal failed to appreciate the position of the applicable laws with regards to maintenance orders especially Section 49 (a) and (c) of the Children’s Act, 1998 (Act 560) as amended to the effect that a Family Tribunal prior to making a maintenance order shall consider the income and wealth of the Respondent/Applicant and other parental responsibilities of the Respondent/Appellant towards his other 6 children. b) That the trial Family Tribunal fell into an error of law that occasioned grave miscarriage of justice to the Respondent/Appellant when it failed to appreciate the position of the law that the responsibility for the maintenance of the children of the parties and provision of other necessaries of life of the children of the parties was mandatorily a shared responsibility between the parties thereto. c) That some portions of the orders made by the Family Tribunal with regards to the maintenance of the children of the parties and provision of others necessaries of life of the children of the Parties are in conflict with the contents of the Social enquiry Reports ordered and presented to the Tribunal pursuant to its own orders dated 26th August, 2020. The brief fact of this case is that the Plaintiff/Respondent applied for an order of maintenance and custody of the three (3) children she had with Defendant namely; Mary Sosu, Bernice Sosu, Prince Sosu who were at the time of the institution of this suit i.e. 3rd June, 2020 aged 15 years, 13 years, and 9 years respectively. At the trial Court, the case was tried on the affidavit evidence filed by the parties and Social Welfare Officers. In the Affidavit in Support of the application for maintenance and custody order filed at the trial Court, the Petitioner/Respondent averred that the Respondent for the past 7 years when the parties separated has refused, failed, and neglected to take care of the 3 children. She states that whenever she goes to the Respondent for money for the upkeep of the children she was assaulted by the Respondents/Appellant’s wife. She therefore prayed for an Order to compel the Respondent/Appellant to maintain the three (3) children with GH¢1,500 per month. She also prayed for the custody of the children. In prove of the Respondent’s income, she averred that the Respondent owns two (2) Sprinter Buses which makes a daily sales of GH¢160.00 Further the Respondent is a landlord who owes three (3) houses, two (2) at Glefe with eight (8) tenants and stores and one at Ofankor. The Respondent also in his Affidavit in Opposition denies ever owing any house or being a landlord. He avers that he provides all the necessaries of live for all these three (3) children. He states further that he is a professional driver engaged as a casual by the G. P. R. T. U of T. U. C of which he drive one of the Union’s Commercial Buses on a monthly salary of GH¢200.00 in addition to tips from passengers. He also knows the Petitioner as a trader who deals in the selling and distribution of fish. The Defendant further averred that when the relationship between him and the Plaintiff broke down, they both agreed that the Petitioner take custody of the children whilst he contribute and provide a weekly maintenance allowance of GH¢80.00 towards the three (3) children in addition to paying other expends like educational expenses, hospital with contribution from the Petitioner. Defendant also states that he had other six (6) children with another woman whom he also cater for. Defendant also deny that the Petitioner paid GH¢900.00 per term for Bernice Sosu and Prince Sosu. Defendant also deny that the Petitioner spends GH¢814.00 on the children as feeding, clothing, and medical expenses. He also deny that he earn GH¢9,600.00 per month. He denies other expenses the Petitioner claim to have spent or is spending on the children. Upon these pieces of affidavit evidence on the records and the Social Enquiry Report, the trial Family Tribunal on the 26th Day of August 2020 made the following:- “Custody of the children remain with the Applicant with visiting access to Respondent. Respondent is ordered to maintain each child with GH¢300.00 monthly effective August 2020. Respondent is further ordered to pay school fess of all the children when due as well as providing all material necessary for their education. Also Respondent is ordered to rent a suitable accommodation for the children by paying 50% of rent for Applicant and children. Applicant is ordered to renew the National Health Insurance Scheme cards for the children and the Respondent is ordered to pay medical Bills not covered by the National Insurance Scheme.” It is this order of the trial Court that the Respondent/Applicant is appealing against. The reasons argued out by Counsel for the Appellant in support of the Appellant grounds of Appeal are well summarized in the particulars of error of Law to wit:- 1. That the trial Family Tribunal failed to appreciate the position of the applicable laws with regard to maintenance orders especially Section 49 (a) and (c) of the children’s Act, 1988 (Act 360) as amended to the effect that a Tribunal prior to making a maintenance order shall consider the income and wealth of the Respondent/Appellant and other parental responsibilities of the Respondent/Appellant towards his other six (6) children. 2. That the trial Family Tribunal failed to appreciate the position of the applicable law especially Section (3) (b) of the children’s Act 1998 (Act 560 as amended to the effect that responsibilities for the maintenance of the children of the parties and provisions of other necessaries of life of the children of the parties was a shared responsibilities between parties thereto. 3. Counsel for the Applicant also argued that the order of the trial Court pertaining to the maintenance and custody of the three (3) children is in total conflict with the Social Enquiry Report submitted to the Court by the officer of the Social Welfare Department. It is observed that the Petitioner/Respondent endorsed on the maintenance and custody form the expenses so far spent on the upkeep of the children which could have constituted maintenance arrears but nothing was said about this maintenance allowance in the Ruling of the Court. No statement was made as to whether the maintenance arrears had been refused or granted. None of the parties had complained about the Ruling on the maintenance arrears. I would leave it as the parties appears to be content with same. I observe too that the trial court did not also make a finding of fact as to whether it had accepted the claim of the Plaintiff about the wealth and resources of the Defendant. Those claims made on the wealth and resources of the Defendant by the Petitioner was deemed by the Defendant but no finding of fact conclusions were made. One thing which remained not doubt is however that both parties are working and resourceful. In these Rulings, I admit that pursuant to Section 49(a) and (c) of the Children’s Act 1998 (Act 560) as amended to the effect that a Family Tribunal prior making a maintenance order shall consider the income and wealth of both parents. I have also taken cognizance of Section 6 (3) (b) of the Children’s Act, 1998 (Act 560) as amended to the effect that responsibilities for the maintenance and care of the children of the parties is a shared responsibility of both parents. This provision is more applicable in this case since both parents are resourceful. With this legal provision in mind, the affidavits evidence on record complied with the Social Enquiry Report, I vary the order of the trial Court, and substitute same as follows:- “1. I retain custody of the three (3) children in the Petitioner/Respondent with reasonable access to the Defendant/Appellant. 2. As his part payment of the maintenance of the three (3) children, I order Defendant/Appellant to pay GH¢250.00 monthly effective from August 2020. 3. 4. The Petitioner/Respondent to add up to the maintenance of the claim. The Defendant Appellant to pay the school fees of the children (other expenses pertaining to the education of the children are inclusive). 5. Both parties are ordered to contribute equally towards the accommodation of the children. 6. Petitioner/Respondent to cater for payment of Health Insurance of the three (3) children. 7. Defendant/Appellant to pay the hospital expense of the children not covered by the Health Insurance. My other expenses not specifically mentioned in this order should be equally borne by both parties. This order take effect from 26th August, 2020. No issue as to cost. WILLIAM BOAMPONG (JUSTICE OF THE HIGH COURT) COUNSEL: WISDOM ANTHONIO FOR THE DEFENDANT/APPELLANT PRESENT 8