Ayimbila Vrs Ayamga [2022] GHADC 316 (1 November 2022)

IN THE FAMILY TRIBUNAL COURT, HELD AT BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON TUESDAY, THE 1ST DAY OF NOVEMBER, 2022. CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (CHAIRMAN) MADAM MERCY PAWAVRA (PANEL MEMBER) MADAM MARY A. ALOSUM ANABA (PANEL MEMBER) SUIT No. UE/BG/DC/A6/8/2020 JOYCELYN AYIMBILA PLAINTIFF VRS. PAUL AYAMGA DEFENDANT TIME: 08:42AM PLAINTIFF PRESENT DEFFENDANT PRESENT NO LEGAL REPRESENTATION Introduction JUDGMENT 1. The Plaintiff commenced this action on 20th day of November 2020 and claims against the Defendant as follows: JOYCELYN AYIMBILA VRS PAUL AYAMGA (SUIT NO. A6/8/2020) Page 1 of 7 a. An order for the Defendant to give an amount of GHC 500 per month for the upkeep of the Plaintiff and the only child. b. An order for the Defendant to provide for the material and health needs of the Plaintiff and the child. c. An order for the Defendant to provide the Plaintiff with capital in the sum of GHC3,000.00 to enable the Plaintiff start a business. 2. Also, the Defendant filed response and counterclaimed against the Plaintiff for custody of Lawson Ayimbila aged 8 years and any other orders of the Honourable Court. 3. On the 21st day of January, 2020 the court differently constituted made an interim order for the defendant to pay maintenance allowance of GHC200 pending the determination of this case. Background facts 4. The Plaintiff says she lives at Kantia-Zuarungu and she is unemployed. Plaintiff says she is the mother of the child in question and that she can take care of the child because she knows what the child likes and what he does not like. Plaintiff says the Defendant has re-marred so she does not want the child to live with different woman. Plaintiff says that another reason why she want the child to be with her is that the Defendant would not be at home at all times and therefore in his absence if his wife does something to the child and the child complain to him he might not believe the child. Plaintiff says she is the mother and though she is re-married she has explained to her husband and he agreed for the child to be with them. Plaintiff further says that she is always in the house, so if her husband wants to do something to the child she would be there to protect him. Besides, the child is too young to be with the Respondent and as the child is living with her and the husband and they are in the better position to assist the child with his studies. The Plaintiff concluded that for about four months (July to October 2022) the Defendant has not been paying the maintenance and her husband too is not working. And JOYCELYN AYIMBILA VRS PAUL AYAMGA (SUIT NO. A6/8/2020) Page 2 of 7 because of that she has been crediting food at the school canteen for the child for the said four months. 5. On the other hand, the Defendant is a Teacher and lives at TindonmoligoBolga. Defendant says he wants custody of the child in issue because the Plaintiff is re- married to another man. He says he does not think Plaintiff’s husband can take better care of the child than him. Defendant says that the Plaintiff is not interested in the welfare of the child and that all she cares about is money. Defendant says he is in the right position to take care of the child in terms of education, health among others than the Plaintiff since he has been the one doing that already. Defendant says he cannot trust the life of the child in another man’s hands and since he is re- married and has other children he can take better care of the child than the Plaintiff. Defendant says further that since he is a teacher he is in the best position to help the child with his studies. Analysis of the issue in the light of the welfare principle 6. Before we proceed to deal with the vexed matters presented by this suit, it bears reminding that regarding issues concerning children, the Court must seek solely what is in the paramount interest of the child. Section 2 of the Children’s Act, 1998 (Act 560) provides that: [t]he best interest of the child shall be paramount in any matter concerning a child. 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. Section 2 of the Children’s Act is based on Article 3(1) of the Convention on the Rights of the Child (adopted by the General Assembly Resolution 44/25 of 20th November, 1989 and entry into force on 2nd September 1990) which provides that, JOYCELYN AYIMBILA VRS PAUL AYAMGA (SUIT NO. A6/8/2020) Page 3 of 7 [i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 7. The United Nations Committee on the Rights of the Child in its General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) elucidates the concept which is said to be three-fold: Firstly, it is considered a substantive right in the sense that the child has a right ―to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.‖ Secondly, it is considered as ―[a] fundamental, interpretative legal principle‖ in the sense that ―[i]f a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen;‖ and thirdly, it is ―[a] rule of procedure‖ such that ―[w]henever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account.‖ JOYCELYN AYIMBILA VRS PAUL AYAMGA (SUIT NO. A6/8/2020) Page 4 of 7 8. Being guided by the Commentary above, the question for the panel is whether it would be in the best interest of the child to grant custody of the child to the Defendant. To resolve this issue, the panel is mandated by section 45 Children’s Act, 1998 (Act 560), to—as a matter of paramount importance— 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. To achieve this end the panel is mandated to also consider – “(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 continuity in the care and control of the child; and (f) any other matter that the Family Tribunal may consider relevant.” 9. The starting point according to section 45 above is that considering the age of the child in issue, ordinarily, he ought to be with Plaintiff. However, that is a prima facie conclusion sustainably only when the other factors or parameters contained in section 45 inure to the presumption in favour of Plaintiff. The assessment of all the factors to determine what would be in the paramount interest of the child involves the exercise of judicial discretion after all the relevant factors have been considered: see: Re F (an infant) [1969] 2 All ER 766; Attu v Attu [1984-86] 2 GLR 743; and Young v Young [1993] 4 S. C. R 3 at para 71 per L’Heureux-Dubé J JOYCELYN AYIMBILA VRS PAUL AYAMGA (SUIT NO. A6/8/2020) Page 5 of 7 10. The determination as to who should have custody of a child is merely an answer to the question: ―what should be the best interest of the child‖? It does not in any way terminate parental duties owed by the parent against whom the order is made: see Re W (Minors) (Residence Order) [1992] 2 F. C. R 461 at 465 per Butler-Sloss LJ. 11. After considering the evidence led by both parties, we found the following facts: The child is eight years and lives with the Plaintiff. The child is attending school at Grace Preparatory School, Zuarungu. The Plaintiff is married with another child. The Plaintiff is unemployed and finds it difficult to provide the basic needs of the child without the help of family members. The Defendant is a teacher and he is also married with other children. The Defendant has been paying maintenance allowance and four months arrears have also been paid to the Plaintiff. Until the Plaintiff is gainfully employed, she would find it difficult to provide for the child if the Defendant fails or defaults to pay the maintenance allowance for any period of time. The issue of maintenance of the child in question was reported to DOVSU, Legal Aid Commission, Bolga and finally to this court. Conclusion 12. Having examined the whole evidence adduced by the Plaintiff and the Defendant on record in accordance with above authorities as well as in the full consideration of the welfare of the child in issue, we have decided as follows: a. That custody be granted to the Defendant. We accordingly grant custody of the child in issue to the Defendant. The Defendant shall enroll the child at Dorongo Primary School where the Defendant works as a Teacher or any other suitable school that the parties would agree on taking into consideration where the Defendant lives. JOYCELYN AYIMBILA VRS PAUL AYAMGA (SUIT NO. A6/8/2020) Page 6 of 7 b. That to ensure compliance with the dictates of section 5 of the Children’s Act which grants a child the right to grow with his natural parents, we hereby grant access to the child in issue to Plaintiff who shall accordingly have the right, at the expense of Defendant, to live with the child not later than two days into his vacation except that Plaintiff shall return the child to Defendant not later than five (5) clear days before school reopens. c. Since the Defendant has paid the maintenance arrears in the sum GH¢800.00 for July to October 2022, there will no order in respect of maintenance allowance. d. That as the Plaintiff is re-married, the court is unable to make an order for the Defendant to pay GH¢3,000.00 to the Plaintiff to enable her start a business. However, considering the fact that the Plaintiff commenced this action for the Defendant to be responsible for the upkeep of his own child, it will be prudent to award cost in favour of the Plaintiff to take care of the expenses she incurred in pursuing this matter from DOVSU to Legal Aid and to this court. Accordingly, Cost GH¢1,500.00 is awarded in favour of the Plaintiff against the Defendant. …………………………………… HIS WORSHIP MAWUKOENYA NUTEKPOR (CHAIRMAN) ………………………… MADAM MERCY PAWAVRA (PANEL MEMBER) ……………………… MADAM MARY A. ALOSUM ANABA (PANEL MEMBER) JOYCELYN AYIMBILA VRS PAUL AYAMGA (SUIT NO. A6/8/2020) Page 7 of 7