Comfort Afua Amuzu Tusah Mai Vrs Sylbanus Mawuli Tusa [2022] GHADC 35 (8 November 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON TUESDAY THE 8TH DAY OF NOVEMBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM PHILOMENA SACKEY AND MADAM VIDA DANQUAH AS PANEL MEMBERS. SUIT NO. APPLICANT A6/124/23 COMFORT AFUA AMUZU TUSAH MAI DOBRO TIDA-AMASAMAN, ACCRA VS. SYLBANUS MAWULI TUSAH OKAISHIE, ACCRA RESPONDENT Parties present. Joachim Baazeng Esq. for the Respondent RULING This is a Ruling on an Application filed on 14th September 2022 for the maintenance of the child in issue. The Applicant’s case In her Affidavit in Support, the Applicant deposed that she was married to the Respondent and they had Three (3) children aged 21, 20 and 5 years respectively. The basis of the Applicant’s Application is that since 31st December 2020, the Comfort A. A. Tusah Mai vs Sylvanus M. Tusah Respondent has failed to maintain her and the last child who is only Five (5) years old. She deposed further that she has invested all the income and capital into the welfare of the issues and as such she presently does not have any savings. She indicated that the Respondent is actively working as a Chief in his hometown and engages in other businesses but he is deliberately refusing to adequately maintain her and the issues. She therefore prayed the court for the following; 1. Custody of the last issue to be granted to the Applicant with reasonable access to the Respondent. 2. An Order for the Respondent to maintain the last issue with an amount of Eight Hundred Ghana Cedis (Ghc800.00) every month subject to an upward review every year from date of judgment. 3. An Order for the Respondent to pay for the medical bills and all educational expenses of the issue herein as and when it falls due. 4. Any other Order(s) this Honourable Court may deem fit and just. The Respondent’s case The Respondent in his Affidavit in Opposition filed on 29th September 2022 and confirmed that the Applicant is his wife and the Three (3) children in issue are his children. He deposed further that he used to be in active employment and he catered for his immediate family needs as well as the extended family of his wife but was compelled to resign so as to pursue a course of study at the Ghana School of Law. He indicated that as a result, he is not so financially sound hence his inability to adequately maintain all his children like he used to. He deposed further that since the Applicant complains of not being in a position to maintain the last issue but he hopes to be called to the Bar soon and resume his role of Comfort A. A. Tusah Mai vs Sylvanus M. Tusah maintaining the family. He therefore prayed for custody of the child and order for the Applicant to contribute One Thousand Ghana Cedis (Ghc1, 000.00) monthly towards the maintenance of the issues. DETERMINATION In view of the processes before the court, the issues for determination are therefore as follows; 1. Whether or not the Respondent should be granted custody with reasonable access to the Applicant. 2. Whether or not the court can compel the Respondent to adequately maintain the child with Ghc800.00 monthly. In making a determination on the issues before the court, the court is guided by Section 2 (1) of The Children’s Act (1998) Act 560 states that ‘…the best interest of the child shall be paramount in any matter concerning a child…’ and Section 2 (2) also provides 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…’. Analysis The first issue for determination whether or not the Respondent should to be granted custody of the child in issue with reasonable access to the Applicant. It was held in case of ASEM VS ASEM [1968] GLR 1146 that ‚the court was obliged by statute in deciding a question of custody to have regard to the welfare of the infant as its first and paramount consideration. The crucial question for decision in the instant Comfort A. A. Tusah Mai vs Sylvanus M. Tusah case was therefore which of the parents was better suited to be entrusted with the upbringing of the child‛. The Respondent herein is the biological father of the child in issue and as a result of this Applicant wants custody of the Five (5) year old, the Applicant being the biological mother also prays for custody of the child. The onus therefore lies on the court to determine whether granting custody to the Respondent will be in the best interest of the child. It must be stated that in custody cases, there is no prima facie right to the custody of the child in either parent, but the court shall determine solely which parent is for the best interest of the child, and what will best promote its welfare and happiness. At common law the father was generally entitled as a matter of right to custody of his minor children, but later the law generally gave the mother preference. Today the law recognizes the child's best interest as the determinative factor and this is also referred to as the Welfare Principle as posited by Act 560 stated supra. The Welfare Principle implies that the Court determines what would be best for the child despite both parents' good intentions and competing wishes and the word ‚welfare‛ which is said to be paramount or primary has been given various interpretations. In Re McGrath (Infants) [1893] 1 Ch 143 at 148, CA it was held that the word ‚welfare‛ of the child must be considered ‚in its widest sense.‛ In R v Gyngall [1893] 2 QB 232 at 243, CA the Court of Appeal per Lord Esher MR stated further: ‚The Court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, . . . and the happiness of the child.‛ In considering custody, Section 45(1) of Act 560 provides 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’. The evidence on record shows that the child is only Five (5) years old and is therefore that they are too Comfort A. A. Tusah Mai vs Sylvanus M. Tusah young to be separated from his mother. In the case of Opoku-Owusu vs. Opoku- Owusu [1973] 2 GLR 349, Sarkodee J held that ‘the Court’s duty is to protect the children irrespective of the wishes of the parents. In the normal course, the mother should have the care and control of very young children…’ The next issue for determination is whether or not the court can compel the Respondent to adequately maintain the child with Ghc800.00 monthly. The duty of the court is to get the Respondent to adequately maintain the child in issue. Section 47 of Act 560 states that ‘a parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child’. Section 49 (a) of Act 560 provides among others that ‘the Family Tribunal shall consider the income and wealth of both parents of the child or the person legally liable to maintain the child’. It is therefore trite that in making Maintenance Orders, the court must consider the person from whom maintenance is claimed and he or she should be able to afford the maintenance that is claimed. Thus, that person must have the means to pay and the means test is such that the person who is liable to pay maintenance must have the MEANS and the maintenance so claimed must be REASONABLE. The record shows that the Respondent is currently unemployed and is a student at the Ghana School of Law, thus, it appears he does not have a regular source of income. The evidence on record however shows that the Respondent is able to maintain the Two (2) other children including one of them who is currently a Law student at Ghana Institute of Management and Public Administration (GIMPA) and he is able to pay all her fees including Hostel fees. Be that as it may, it appears that the amount of Eight Hundred Ghana Cedis (Ghc800.00) being claimed by the Applicant as monthly maintenance appears unreasonable Comfort A. A. Tusah Mai vs Sylvanus M. Tusah as the evidence on record shows that the Respondent does not have a regular source of income. The Applicant however is at liberty to subsequently apply for a review of the maintenance sum in so far she is able to convince the court that the Respondent’s financial circumstances have changed. DECISION: Upon consideration of the Application, the evidence before the Court, the testimony of both parties and pursuant to the provisions of The Children’s Act (1998) Act 560, the Court is satisfied that it will be in the best interest of the child to grant this instant Application and further orders as follows; 1. The Applicant shall have custody of the all the child and the Respondent shall have reasonable access to the child on a time and ay convenient to both parties but upon due communication with the Applicant. 2. The Respondent shall maintain the child with an amount of Three Hundred Ghana Cedis (Ghc300.00) monthly and same is to be paid into court within the last week of every month with effect from November 3. The parties are to enrol the child in a school affordable to both of them and the Respondent shall pay all the incidental school expenses and the Applicant shall be responsible for school uniforms, bags and sandals of the child. Comfort A. A. Tusah Mai vs Sylvanus M. Tusah 4. The Applicant shall register the children under the National Health Insurance Scheme (NHIS) and renew same when it expires. The Respondent shall be responsible for all the bills not covered under the NHIS. SGD ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE I AGREE I AGREE ………………………………… ……………………….. MADAM PHILOMENA SACKEY DANQUAH PANEL MEMBER MADAM VIDA PANEL MEMBER Comfort A. A. Tusah Mai vs Sylvanus M. Tusah 7