Adjalo Vrs Djan [2022] GHADC 191 (10 November 2022)

IN THE FAMILY AND JUVENILE COURT ‘B’, FORMER COMMERCIAL COURT BUILDING – ACCRA HELD ON THURSDAY, THE 10TH DAY OF NOVEMBER 2022. BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE, SITTING AS AN ADITIONAL MAGISTRATE WITH MADAM FELICIA COFIE, AND MR. JOSEPH ATTIGAH AS PANEL MEMBERS. MARTHA ADJALO …… APPLICANT Suit No: A6/18/23 TESHIE ACCRA VERSUS DANIEL DJAN .…. RESPONDENT LA ACCRA _____________________________________________________________________ Applicant: Present Respondent: Present JUDGMENT The parties are the biological parents of the two children in issue aged about nine (9)years and five (5)years, female and male respectively. The parties had the children out of an ordinance marriage but are currently separated. On the 1st day of July 2022, Applicant filed a Maintenance and Custody application with an affidavit in support praying for custody of the two issues with reasonable access to Respondent; and any other orders that the Honourable Court may deem fit. According to her, in March 2022, Respondent sent her packing from the matrimonial home and all efforts 1 | P a g e to resolve their differences has failed. She alleged further that Respondent has denied her access to the issues. Respondent in his Affidavit in Opposition filed on the 6th day of September 2022 denied Applicant’s allegation of he denying her access to the children. He stated further that he never sacked Applicant from the matrimonial home and that she left at her own will despite pleadings by family members not to. He maintains that Applicant is still his wife and therefore prays the Court not to grant her prayer before the Court but rather, the Court should help them resolve their issues amicably. The Court referred the parties to the Alternative Dispute Resolution (ADR) to explore amicable settlement of the matter, but they were unable to settle as the parties could not agree on who should have custody of the two issues. A Social Enquiry Report (SER) was therefore ordered to assist the Court determine the issue of custody of the two issues. According to the SER, the children in issue (hereinafter referred to as issues) lived with the parties and schooled at Base Workshop School and Chiringa Complex School at Burma Camp. Applicant used to send the children to school in the mornings, but they went home after school in the company of some school mates who were also their neighbours. The evidence on the record shows that, Applicant moved out of Respondent’s home on the 6th day of March 2022 and Respondent relocated the issues from his home to his girlfriend at Ayi Mensah in April 2022 and Applicant has since not had access to them. The sisters of Applicant Esther Kaai Abbey and Sethina Tsotsoo Abbey who live at Amrahia with whom Respondent alleged that the issues were living in the course of proceedings have never had custody of the children. As reported by the Probation Officer, Respondent and his two sisters tried to mislead the investigation that the children lived with them at Amrahia. This can be confirmed from the record of proceedings as Respondent tried to mislead the court as to who the children are with. Applicant does not have a cordial relationship with Respondent’s sisters, and she does not know Respondent’s girlfriend and where she lives with the issues. 2 | P a g e The issues were enrolled in a school at Otinibi in the middle of the second term and they join the school bus to and from school. According to the SER, the distance between the issues school and their residence is about 15 minutes’ drive. Applicant lives alone in a single room with a porch which has been converted into a kitchen at Teshie Camp 2. Respondent also lives alone in a chamber and hall facility within a five- bedroom house which is under construction at Tse Addo near La, Accra whilst the girlfriend and the issues live in a single room wooden structure without electricity and pipe borne water (a facility which was financed by Respondent). The facility is near a stream which overflows its banks after torrential rains. Respondent’s girlfriend confirmed that the issues are carried by adults to cross the stream. The evidence also shows that their living condition when they were in Accra is far better than what they are currently exposed to. It is also obvious and he has confirmed that he is unable to take care of the children himself because of the nature of his job. Yet he has refused to let Applicant take care of the children let alone have access to them. It appears Respondent is using the children as a tool to punish Applicant because of his estranged relationship with her. Applicant mentioned that she initially went away with the children but Respondent threatened her to return them to him, so her father advised her to send them to him which she did. She used to go to Respondent’s house to prepare them for school and care for them after school until Respondent retuned home before leaving. She said sometime in April 2022, her family advised her to stop going to Respondent’s home early in the morning, so she was visiting the issues in school after she rented a place of her own at Teshie. Respondent however relocated the issues sometime in June 2022 without recourse to her. The Court finds the situation where the issues have been taken to a total stranger far from their parents without any form of access to Applicant repugnant to justice and good conscience and certainly not in the best interest of the issues. At the end of proceedings on the 1st day of September, 2022, the Court granted Applicant interim access to the children with a further order that they spend the rest of the vacation period from Saturday the 3rd day of September to the 10th day of September 2022 with 3 | P a g e Applicant. It came to the attention of the Court on the 6th day of October 2022 that Respondent failed to comply with this order with the reason that he wants Applicant to return to the matrimonial home before she can have access to the issues. Really? Such a blatant disregard for the orders of this Court. The first issue expressed her desire to remain at their current home with Respondent’s girlfriend because she is better fed there than when they lived with the parties. The second issue expressed her desire to be in the custody of Applicant without assigning reasons. This Court is mandated to make orders that will inure to the best interest and welfare of the children (See section 2 of The Children’s Act 1998 (Act 560) and Ansah v. Ansah [1982-83] GLR 1127 where it was opined that the Court’s duty was to make an order which was reasonable for the benefit of the child). Having considered all the evidence on the record and the circumstances of the parties and the issues, the Court deems it in the best interest of the issues that they are placed under the care and control of Applicant their biological mother. It is provided under section 45 of the children’s act 1998 (Act 560) that it is preferable that children live with their parents and also that it is important for a young child to be in the custody of the mother. It was also held in the case of Aikins and Aikins [1979] GLR 223 that custody should not be given to a parent whose purpose is to deliver the children to another. Again, in the case of Braun v. Mallet [1975] 1GLR 81 Azu Crabbe C. J. emphasised the natural right of the mother of a young child to its custody as against a reputed father and strangers wherein he quoted the dicta of Lindsey L. J in In Re McGrath (Infants) [1893] 1Ch. 143 at page 148 that ‘The affection of a mother for her child must be taken into account, and poverty per se was no reason for depriving a mother of custody when her character had in no way been impeached.” Respondent in the instant matter is not in a position to cater for the issues himself for which reason he sent them to his girlfriend in Amrahia whilst the biological parents live separately in and around Teshie. Respondent has denied the issues access to Applicant and vice versa since the parties’ separation a situation which will not be countenanced by this court as same is not in the best interest of the issues. It was held in the case of Happee v. Happee [1974] 2GLR 186 that not 4 | P a g e only does a parent have a right of access to their children but more importantly, the child to the parent. For the reasons advanced herein, the Court will accede to the recommendation by the Probation Officer to grant Applicant custody of the two issues because they are young, and they need the care and love of Applicant who is their biological mother and also because her home condition will be more conducive for the upbringing of the issues. Accordingly, custody of the two issues is granted to Applicant with reasonable access to Respondent on weekends that he is available and part of their vacation periods when he is available to care for the issues. In order not to disturb the academic work of the issues at this time, the custody order shall take effect at the end of the third term when schools vacate for the Christmas holidays. Applicant aside praying for custody, prayed for any other orders the Court may deem fit. During the social enquiry however, she pleaded for the Respondent to be ordered to maintain the issues with GHC1,000.00 monthly. The law under section 48 of Act 560 provides that a person with custody of a child (ren) is entitled to receive monthly maintenance from the party with responsibility for their care. Also section 47 of Act 560 makes it a joint responsibility for both parties to provide the maintenance needs of the issues. Since Applicant has been granted custody of the issue, she is entitled to receive financial support from Respondent for the upkeep of the issues. Applicant is a preschool teacher and Respondent is a Maison. It was reported that Applicant earns GHC700.00 whilst Respondent earns about GHC800.00 monthly. The parties however could not produce any evidence in support of their earnings. The school fees at the current school is GHC 310.00 per child, feeding fee of GHC5.00 per child per day and they also pay bus fare in and out of school whilst the levy at their previous school was GHC125.00 each but applicant indicated GHC300.00 for both issues on her Maintenance and Custody form. Respondent indicated during proceedings on the 6th day of October 2022 that he sends either GHC 200.00 or GHC250.00 weekly to the girlfriend for the upkeep of the issues (this was confirmed by the girlfriend). He has even constructed a wooden structure for the girlfriend whom he met about two years ago to live in and also set up a grocery shop for her. He said he used to give Applicant GHC200.00 when he lived 5 | P a g e together with Applicant and the issues. He however mentioned during the social enquiry that he used to give Applicant GHC50.00 daily. Having considered the earning capacity of the parties, their pattern of life and circumstances and the needs of the two issues as provided under section 49 of the Children’s Act, Respondent is ordered to support in the upkeep of the issues with GHC800.00 monthly. This shall be paid by the 2nd day of each month for the month in issue effective January 2023. The parties shall enrol the issues in a school near Applicant’s current residence at the beginning of the next academic year (2023) and Respondent shall be responsible for all their educational expenses excluding school feeding fees which shall be paid by Applicant. He shall also be responsible for the issues’ health needs not covered by the National Health Insurance Scheme. The parties shall also be equally responsible for the accommodation needs of the issues until the last issue is eighteen years or Applicant remarries whichever is first in time. That is, they shall share the cost of accommodation for the benefit of the issues 50:50. SGD. H/H MATILDA RIBEIRO (MRS) CIRCUIT COURT JUDGE 6 | P a g e