Ubaida Mohammed (No. 2) Vrs. Ibrahim Mohammed (No. 2) (A6/194/2018) [2022] GHADC 370 (31 October 2022)

IN THE FAMILY AND JUVENILE COURT ‘B’, FORMER COMMERCIAL COURT BUILDING – ACCRA HELD ON MONDAY, THE 31ST DAY OF OCTOBER 2022. BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE, SITTING AS ADITIONAL MAGISTRATE WITH MADAM FELICIA COFIE, AND MR. RICHARD TEGBEY AS PANEL MEMBERS. Suit No: A6/194/2018 UBAIDA MOHAMMED (NO. 2) ….. APPLICANT/RESPONDENT TUDU ACCRA IBRAHIM MOHAMMED (No. 2) .…. RESPONDENT/APPLICANT KASOA Applicant: Present Respondent: Present RULING On the 21st day of June 2022, The Respondent/Applicant in the above-named suit filed a Motion for Relistment of Suit for Variation of a Custody Order which was granted to the Applicant/Respondent. Respondent/Applicant averred in his affidavit in support of the application that Applicant refused to allow him access to the children, and he also fell into arrears of about GHC29,000 as a result of which the Court referred him to the Domestic Violence and Victims Support Unit (DOVVSU) for prosecution. That it was at DOVVSU that Applicant was compelled to allow him access to the children. He stated further that when he eventually started having access to the issues from the 27th day of May 2022 they refused to go back to Applicant/Respondent. He said he had to convince the first and third children to return to Applicant, but the second issue stood to his grounds and refused to go. He alleged 1 | P a g e that the children complained that Applicant has been maltreating them as she has been locking them in the room and beating them mercilessly. According to him, the parties had an altercation on phone on the 20th day of June 2022 concerning the second issue. That Applicant and her mother refused the 2nd child’s plea to remain with him (Respondent) and in the process, she allegedly rained insults and curses on the 2nd issue. He said he had intentions to return the child, but he was scared for the safety and security of the issue because of Applicant’s statements. For which reason he filed the instant application on the 21st day of June 2022 praying for custody of all the children due to the maltreatment meted out to them by Applicant likewise her refusal to grant him access to the children until DOVVSU intervened. Applicant who stands opposed to the instant application before the Court stated in her Affidavit in Opposition filed on the 30th day of June 2022 that she is ready to give Respondent access to the children as ordered by the Court. She also averred that Respondent has refused and failed to maintain the issues by paying their monthly maintenance and school fees and this has resulted in a judgment debt of GHC 29,000.00. That the instant motion is without merit and a waste of the Court’s time. Respondent/Applicant later stated in the course of proceedings on the 10th day of October 2022 that she does not have a problem with the second child staying with Respondent Applicant because he has been running away and going to the father at the least opportunity and she feels that exposes him to risks considering the distance between the parties’ residences. The custody order against which the current application is brought was contained in a judgment of His Worship K. Ohemeng Mensah dated the 28th day of June 2018. The judgment of the court granted inter alia, custody of the parties’ children to the Applicant/Respondent with access to the Respondent/Applicant fortnightly during weekends from Saturday by 4.00pm and during half period of each of the children’s school vacation. The sole issue to be determined by this Court is, whether or not the Respondent/Applicant is entitled to have the custody order of the three children in issue varied in his favour having regard to the best interest of the children and the circumstances of the parties. To determine 2 | P a g e this, the court ordered for a Social Enquiry Report to enquire into the background and circumstances of the parties in respect of the custody of the children. At this point, I will make a quick reference to some legislative provisions on the issue of variation of custody of children. It is imperative to note that maintenance or custody orders are not immutable. A Family Tribunal may vary, or discharge prior orders made on application of a parent or person legally liable to maintain the child. Section 27 of the Matrimonial Causes Act 1971 (Act 367) contains a provision to this effect. Applying this principle in the case Attu v. Attu [1984-86] 2 GLR 743, Brobbey J as he then was emphatically stated that “There could be no permanent or immutable order of custody because the Matrimonial Causes Act, 1971 (Act 367), s.27 (1) empowered the High Court to rescind or vary any order of custody of any child as it thought fit.” He further stated that “There was no precondition on the rescission or variation save that it should be made in the best interest of the child concerned” (emphasis supplied). Again in Asem v. Asem [1968] GLR 1146 at 1147, the Court of Appeal speaking through Apaloo JA opined that “An order for custody can be varied if a change occurs in the circumstances of the parties” From a congruent reading of Section 27 of the Matrimonial Causes Act 1971 (Act 367) and the cases of Attu v. Attu and Asem v. Asem cited above, it can be said that the condition precedent for varying or discharging a previous order is that the court must be satisfied that the order sought is in the best interest of the child having regard to the circumstances of the parties and the children. Consequently, the applicant must on this footing, show sufficient cause why the custody order must be varied in the applicant’s favour. It is a well settled principle of law, further buttressed by Section 2(1) of Act 560 that the best interest of the child shall be paramount in any matter concerning a child. Section 2(2) of Act 560 also states that “the best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child”. Notably, there is a disparity in the wording of the subsections of Section 2 of Act 560. The former uses the word “paramount” while the latter employs the word “primary” as the yardstick in determining the best interest of a child. Though this discrepancy may be 3 | P a g e attributed to mere nomenclature, it is axiomatic that there may be additional factors taken into consideration in determining matters affecting a child. In support of this assertion, recourse may be made to some decided cases hereto. In Aikins v. Aikins [1979] GLR 223, Sarkodee J relying on the dictum of Lord Denning M. R. in Re L. (infants) [1962] 3 All E. R.1 at P. 4 held that “whilst the welfare of the child was the first and paramount consideration, the claims of justice could not be overlooked. Therefore, in deciding what was in the best interest of the children, the conduct of the parents and the pattern of life set up by them during cohabitation were some of the most important matters to be considered, and the wishes of an unimpeachable parent should stand high” In Attu v. Attu [1984-86] 2 GLR 743 Brobbey J as he then was stated as follows “The principle that in determining whether to grant custody to an applicant or respondent the welfare of the child or children should be the fundamental or paramount consideration had been given statutory backing by Act 372, s 16 (2) which however provided that the welfare of the infant should be the "primary" consideration. Whether "primary" meant "paramount" or whether the two were used synonymously, both words connoted a situation which admitted of the existence of other factors to be considered in resolving issues of custody” Again, in the case of Ansah v. Ansah [1982-83] GLR 1127, it was held inter alia that “… the court's duty was to make an order which was reasonable for the benefit of the children. In deciding what was in the best interest of the children, the conduct of the parents, and in the instant case, the pattern of life set up for the children since cohabitation ceased between the wife and husband were important matters to be taken into consideration” Section 45 (1) of Act 560 is similarly authoritative on the best interest of a child principle and states that “A Family Tribunal shall consider the best interest of the child and the importance of a young child being with his mother when making an order for custody or access.” Aside the best interest and welfare principle, section 45(2) sets out other considerations such as (a) the age of the child (b) that it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents; (c) the views of the child if the views have been independently given; (d) that it is desirable to keep siblings together;(e) the need for 4 | P a g e continuity in the care and control of the child; and (f) any other matter that the Family Tribunal may consider relevant to be considered by the Court. We now apply the law as espoused above to the circumstances of this case to determine whether the best interest of the three issues and the circumstances make a strong case for the variation of custody in favour of Respondent/ Applicant. According to the Social Enquiry Report (SER), the children and Applicant/Respondent reside with the Applicant/Respondent’s mother in a two-bedroom rented apartment with amenities such as water and electricity at Accra New Town. Applicant sells clothes at the Nima market. She leaves home for work at 9.00am and returns by 5pm, Monday to Saturday. In Applicant’s absence, the children are cared for by Applicant’s mother. Respondent on the other hand resides in his house at Kasoa Ofaakor with his new wife and their two children aged four and one and a half years old. He rears sheep and goat in his house for a living and his wife sells provisions in front of the shop. The wife of the Respondent/Applicant expressed her desire to cater for the kids should custody be given to their father. Both homes visited were reported to be conducive with that of the Applicant/Respondent being less spacious. From the foregoing, it is evident that both parties are adequately equipped to care for the issues should custody be given to either party. Respondent’s allegation of the issues complaining to him that Applicant has been maltreating them was not substantiated. He failed to lead any evidence in support of same. The Social Enquiry Report (SER) did not confirm this allegation of maltreatment of the children. It rather confirmed that the children appeared to be well catered for by the Applicant/Respondent. The first and third children aged 13 and 6 years respectively expressed their desire to remain with their mother because she takes good care of them and provides for them. The second child aged 11 years however wishes to live with his father. He states that his mother often beats him and accuses him of misbehaving. These are views expressed by the issues which this Court cannot gloss over. (see section 11 and 45 (2)( c) of Act 560). Applicant admitted disciplining the second issue when he misbehaves. This is not unorthodox for a parent who wants to instil discipline in their child. Isn’t it strange that out of the three children, it is only the second child who is beaten or disciplined? Why will he be the only one beaten? It was 5 | P a g e reported in the SER that the second child changed when Respondent started having access to the children sometime in May 2022. It was again reported that he has run away to the father on three occasions and on one occasion, it was because he was given kooko (porridge) without sugar and bread. So, when the Applicant left for the market, he went to the lorry station, boarded a bus to the father’s place and used the mate’s phone to call Respondent/Applicant to pay for the fare. One may ask would things have been better if Respondent was supporting in their maintenance as ordered by the Court? Are these children especially the second child aware that Respondent has not been paying the monthly maintenance ordered by the Court? Respondent, instead of probing to know the root cause and deal with it, rather encouraged the second child to stay with him and allegedly enrolled him in a school in his neighbourhood sometime around July 2022 when schools were about to vacate and now comes to Court in August 2022 praying for custody of all three children. The decision in Opoku-Owusu v. Opoku-Owusu [1973] 2 GLR 349 shows that the court will not split children when it will be suitable in the circumstances to keep them together. Sarkodee J categorically stated as follows “It is desirable to keep brothers and sisters together and not to split them up. A separation will disturb their progress and may affect them emotionally.”. The court further stated that “The court's duty is to protect the children irrespective of the wishes of the parents.” These children have always lived together all these years why separate them now? Respondent was granted access to the children, but he never made any attempt to exercise same. He alleges that Applicant denied him access to the children, meanwhile he never made any attempt to exercise the bi-weekly weekend access granted him by the Court. There is also the need to ensure continuity in the care and control of the issues as aptly captured under Section 45(2)(e) of Act 560. This is also supported by the cases of In Re Dankwa [1961] 1 GLR 352 and Ofori v. Ofori [1981] GLR 745. From the evidence, since the day the Court awarded custody of the three issues to Applicant the mother of the issues in June 2018, Respondent has not complied with the maintenance order. Applicant had to enrol the issues in a government school because Respondent was not paying their school fees and maintenance fees and she could also not shoulder all the responsibilities alone. In fact, when custody was granted to Applicant in 2018, 6 | P a g e Respondent/Applicant dared the Court and Applicant/Respondent and true to his words, he refused to release the issues to Applicant until the Court on the 28th day of August 2018, directed the Ghana Police Service to assist Applicant retrieve the issues from Respondent’s custody upon an application for police assistance by Applicant/Respondent. Then after, he came to the Court with a Motion on Notice for Stay of Execution and to Set Aside Default Judgment, filed on the 4th day of September 2018 which motion was heard and dismissed on the 19th day of February 2019. On the 28th day of February 2019 a Formal Decree for the sum of GHC6,030.00 was issued and served on Respondent on the 22nd day of March 2019. Then on the 29th day of March 2019 he filed yet another Motion for Stay of Execution and to Set Aside Formal Decree wherein he prayed to be allowed to maintain the three issues with GHC 150 instead of the GHC400.00 ordered by the court. This motion was also heard and dismissed with costs on the 15th day of April 2019. A number of Formal Decrees have been served on Respondent, but he made no attempt to comply with the judgment of the Court. It appears Respondent’s disposition in this whole matter has been that until he is granted custody of the issues’ he will not be responsible for their upkeep. He is also fond of filing motions to stay execution of the judgment and yet has done nothing about the issues’ upkeep for about four years now. He also did not take any steps to have access to them as ordered. If indeed he was denied access as alleged by him, it is strange that he never raised it all these while that he came before the Court with motions for stay of execution. When Respondent’s indebtedness (arrears of maintenance) rose to the tune of about GHC29,000.00, a referral was made to DOVSSU on the 16th day of May 2022 for investigation and possible prosecution for non-maintenance of the three issues. It was then that he paid GHC3,000.00 in May 2022 and has since neither paid any more of the arrears nor the recurrent school fees and maintenance as contained in the judgment of 28th June 2018. It was after this payment that he filed the instant motion for Variation of Custody Order on the 21st day of June 2022. During the pendency of this motion, an updated account reconciliation was made, and this brought the indebtedness of Respondent to GHC 18,150.00. It can be observed from the accounts statement that aside the GHC3,000.00, Respondent never paid a pesewa for the upkeep of the issues since the day of judgment in June 2018. 7 | P a g e I refer to a principle in the law of equity which states that, ‘he who comes to equity must come with clean hands.’ This principle found expression in the case of Republic v. High Court, Accra. Ex-parte Asakum Engineering and Construction {1993-94} 2GLR 643 where it was said that, ‘a party who was in contempt…….could not be heard in the same cause until he had purged himself of the contempt’ To the mind of this court, the essence of the two principles stated here is that orders of a court are to be respected and complied with by any party or body ordered to comply and that on the failure of such a party to comply, he should not go to the very court he had disrespected on the same matter. From the foregoing and based on the guiding considerations in section 45(2)(d) and (e) on the desirability to keep siblings together and the need to ensure continuity in the care and control of the issues respectively, the conduct of the parties in advancing the welfare and best interest of the issues in this matter (see Ansah v. Ansah [1982-83] GLR 1127 and Aikins v. Aikins [1979] GLR 223) and the reasons advanced hereinbefore, the Court finds no reason to disturb the prevailing custody order. Respondent/Applicant has not prioritised the best interest and welfare of the issues. Applicant has singlehandedly ensured their best interest in the last four years. The children belong to both parties, and they are both under an obligation to fulfil their responsibilities towards them irrespective of who has custody. Respondent has not proved to this Court that the welfare of the issues will be secured in his custody. The application brought by the Respondent/Applicant therefore ought to fail. For these reasons, his application is refused. Respondent should rather do good on his maintenance responsibilities and support the development of all the children by adequately maintaining them. His conduct of keeping the second child and enrolling him in a new school whilst he fails to pay his fees in the previous school and that of his siblings is not in good faith, not in the best interest of the issues and same is condemned. If he could enrol the second issue in a new school and pay his fees, why has he not paid their fees all these years? This only confirms the view that until he has custody of the issues, he is not minded fulfilling his obligation towards them in terms of their upkeep and this is not in the best interest of the issues. The Court was nearly swayed to grant the wishes of the second issue since he has been with 8 | P a g e Respondent/Applicant for some months now and allegedly enrolled in a new school especially when Applicant/respondent did not have a problem with that. She is okay with the 2nd issue being with Respondent since he has run away to Respondent on three occasions, and she sees this to be risky considering the distance between the residences of the parties. However, if this is encouraged, he (Respondent/Applicant) will use the same approach and clandestinely claim custody of all the children from Applicant and that will undermine the judgment of this Court. He who comes to Equity must come with clean hands. H/H MATILDA RIBEIRO (MRS.) CIRCUIT COURT JUDGE 9 | P a g e