Ashong Vrs Djagbletey [2022] GHADC 189 (9 November 2022)

IN THE FAMILY AND JUVENILE COURT ‘B’, FORMER COMMERCIAL COURT BUILDING – ACCRA HELD ON WEDNESDAY, THE 9TH DAY OF NOVEMBER 2022. BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE, SITTING AS ADITIONAL MAGISTRATE WITH MADAM GIFTY OKAI, AND MADAM REGINA TAGOE AS PANEL MEMBERS. Suit No: A6/78/23 LILIAN FREDRICKS ASHONG ….. APPLICANT CHORKOR ACCRA ERIC DJAGBLETEY .…. RESPONDENT ACCRA Applicant: Present Respondent: Represented by his father, Mr. David Djagbletey Applicant’s prayer before the Court is for: JUDGMENT 1. An order directed at Respondent to maintain the issues with GHC500.00 a month. 2. An order directed at the Respondent to pay the school fees, medical bills and other necessaries of life as and when they fall due. 3. Any other order(s) the Court may deem fit. According to Applicant they (the parties) were married for about five years out of which they had one issue aged about four years now. That they have been separated for about two years now due to misunderstandings between them. She said she had to move out with the issue 1 | P a g e to her mother’s place because she lost her job and Respondent was not contributing towards the upkeep of the home. That Respondent has since given them a total of GHC60.00 (GHC20 on three occasions he visited) to buy chocolates for the issue. She said she eventually reported the matter to DOVVSU from where she was referred to this court following Respondent’s failure to respond to the calls of the DOVVSU officials. Respondent did not file a response but on the 14th day of September 2022 when the parties first appeared before the Court, he said he cannot afford the claims by Applicant since he does not earn that much. According to him, he used to maintain the issue until he lost his job due to COVID. He said Applicant enrolled the issue in a school at a time he had lost his job without his consent and the fees is beyond his means. That he later agreed with Applicant’s mother that he will take care of the issue’s school fees whilst they take care of the feeding and other needs. An assertion which was denied by Applicant to the extent that she is not aware of any such agreement between Respondent and her mother. The Court, after hearing the parties referred them to ADR to explore amicable settlement in the best interest of the child in issue. The ADR report shows agreement between the parties on some of the issues before the Court. The ADR Terms of Agreement executed by the parties on the 22nd day of September, 2022 contained the following terms: Custody: That Applicant shall have custody of the child in issue. Access: That Respondent shall have access to the child when he is off duty. Education: That Respondent shall pay the child’s school fees and anything that concerns his education. Health: That Applicant shall renew the child’s health insurance anytime it falls due. That Respondent shall pay medical bills not covered by health insurance. The parties further agreed that Applicant shall provide church and home clothing for the child in issue. The above terms of agreement reached between the parties on the 22nd day of September, 2022 is hereby adopted by the Court and incorporated in this judgment of the Court. 2 | P a g e The parties could however not agree on Applicant’s maintenance claim of GHC500.00 and same was referred back to Court for determination. Respondent said he cannot afford same and proposed to give them something small small as and when he gets as he has been doing. On the 10th day of October 2022, Applicant filed a Supplementary Affidavit in Support wherein she prayed for an order compelling Respondent to rent a decent accommodation for Applicant and the issue because the chamber and hall facility they share with her mother and younger brother is unconducive, inconveniencing and environmentally unfriendly. Same was served on Respondent on the same day 10th October 2022 at about 2:31pm but he has not filed any response to same and has also failed to appear before the Court in the last two sittings. Today, he is represented by his father who indicated to the Court after the court enquired from him his son’s response to Applicant’s claim for accommodation that the last time Respondent visited him, he mentioned that he was looking for money to rent a place for Applicant and the issue For determination by the Court is whether or not Applicant is entitled to her maintenance claim of GHC500.00 monthly and accommodation. For the determination of the issue of maintenance, the Court will defer to sections 47 and 49 of the Children’s Act 1998 (Act 560) which states as follows: Section 47: “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 Family Tribunal shall consider the following when making a maintenance order— (a) the income and wealth of both parents of the child or of the person legally liable to maintain the child; (b) any impairment of the earning capacity of the person with a duty to maintain the child; (c) the financial responsibility of the person with respect to the maintenance of other children; (d) the cost of living in the area where the child is resident; (e) the rights of the child under this Act; and 3 | P a g e (f) any other matter which the Family Tribunal considers relevant.”(emphasis supplied). As can be deduced from section 47 of Act 560 the responsibility for the care and maintenance of a child(ren) is the joint responsibility of both parties being parents. Maintenance also extends to accommodation, education and health. From the evidence, Applicant works with a microfinance institution as a Chief Teller and earns a gross pay of GHC1,227.08 and a take home pay of GHC741.00 per her payslip for the month of August 2022. Respondent is a driver and earns a gross pay of 1,420.80 and a net pay of GHC1,364.00 as at August 2022. The child in issue is the parties’ only child. The issue is four (4) years old and schools at Tilitet Early Childhood school and is in Nursery 2. The issue’s school fees of GHC 1,190.00 includes school feeding fee of GHC 360.00. Applicant alleged during proceedings that Respondent together with his brother paid the issue’s school fees for only a term. The Court having considered the evidence on the record, the earnings of both parties, the rights of the child under Act 560 and the 1992 Constitution, the responsibilities taken by Respondent under the ADR Terms of Agreement especially the responsibility for the issue’s educational needs which include school feeding fee, the needs of the child and the cost of living in Accra, orders Respondent to maintain the issue with GHC200.00 monthly effective October 2022. Same shall be paid either into Court or mobile money direct from Respondent’s account to that of Applicant by the second day of each month for the month in issue. Additionally, the Court is convinced that it will not be expedient to maintain the issue in the current school considering the earnings of both parties. As indicated by Applicant today, the parties are advised to search for a school of reasonable standard with a fee structure that is within their means and enrol the issue in at the beginning of the 2023 academic year in order to reduce the maintenance burden on them. On accommodation the Court is of the view that Applicant and the issue currently benefit from the support of Applicant’s mother and brother in the care of the issue especially in Applicant’s absence. A support which they may lack should they move out and rent a place of her own. If, however the living conditions at the 4 | P a g e mother’s place is so unbearable, then the parties shall secure a single room with relevant facilities at a reasonable rent for the benefit of the issue and the cost shall be shared between the parties in the ratio 6:4. Applicant shall take up 60% of the cost whilst Respondent takes up the 40%. These maintenance orders are subject to periodic review. H/H MATILDA RIBEIRO (MRS.) CIRCUIT COURT JUDGE 5 | P a g e