Mavis Osei-owusu Vrs Fred Osei-owusu [2022] GHADC 20 (9 November 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON WEDNESDAY THE 9TH DAY OF NOVEMBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM FELICIA COFFIE AND MR. WISDOM ATIASE AS PANEL MEMBERS SUIT NO. A6/569/20 APPLICANT MAVIS OSEI-OWUSU ACCRA VS FRED OSEI-OWUSU ACCRA RESPONDENT Parties present. No Legal Representation for both parties. RULING This is a Ruling on an Application by the Applicant/Respondent (hereinafter referred to as ‘Respondent’) filed on the 29th of June 2022 for Stay of Execution and to Set aside the Formal Decree. The Respondent’s Case In his Affidavit in Support, the Respondent among others, informed the court that this court had ruled in favour of the Applicant herein by ordering him to maintain the Three (3) children at Ghc600.00 a month which he honored until he Mavis Osei-Owusu vs Fred Osei-Owusu was involved in an accident in September 2022. He deposed further that he been served with the Formal Decree which indicates that he owes about Ghc7,500.00 but as far as he is concerned, he owes about Ghc3,600.00 which covers arrears of maintenance from January to June 2022. He therefore prayed for an Order for the Stay of Execution, the reconciliation of Accounts as well as custody of the children herein. The Applicant’s Case The Applicant opposed the Application and in her Affidavit in Opposition filed on the 12th of July 2022 deposed among others that the accident suffered by the Respondent left him incapacitated for about Three (3) weeks after which he resumed work. She indicated further that the amount quoted in the Formal Decree covers arrears of maintenance as well as school fees of the children in issue. She further prayed the court for an order to compel the Respondent to continue paying the children’s school fees and maintain them in their present school. She concluded by praying for a review of the current maintenance sum from Ghc600.00 to Ghc900.00. DETERMINATION The Applicant on the 30th of July 2020 filed an Application for custody and maintenance of the Three (3) children in issue of which the court ruled in her favour on the 16th of September 2020 by making the following orders; a) Custody of the children is granted to the Applicant with access to the Respondent every other weekend and half of school vacations. b) Respondent is ordered to maintain the children with Ghc600.00 monthly effective September 2020 and payment is to be made to court at the beginning of every month. Mavis Osei-Owusu vs Fred Osei-Owusu c) Respondent is also ordered to pay school fees of children as well as medical bills when due. d) Parties are to pay 50% each for rent accommodation for a chamber and hall self-contained for Two (2) years which shall be renewable. It is against the above mentioned Orders that the Applicant served a Formal Decree on the Respondent to claim the arears of maintenance of which the Respondent also filed the instant Application for the Stay of Execution and the Reconciliation of Accounts as well as custody of the children. The issues for determination are therefore as follows; 1. Whether or not the court can order for the Stay of Execution and or set aside the Formal Decree. 2. Whether or not the Respondent ought to be granted custody of the children with reasonable access to the Applicant. 3. Whether or not the maintenance sum of Three Hundred Ghana Cedis (Ghc600.00) should be reviewed. 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…’. In arriving at a conclusion, the court was of the opinion that there is the need to independently investigate the claims of both parties and as such ordered for a Social Enquiry Report (SER). The Social Enquiry Report Mavis Osei-Owusu vs Fred Osei-Owusu The SER as submitted by the Probation Officer, Madam Janet A. Dzata on the 5th of October 2022 made certain findings and conclusions including the fact that the parties are traders but it appears they are not financially sound although the home conditions of both of them is conducive for the upbringing of the children. The SER gathered that although the court ordered the parties to share the cost of accommodation, the Respondent failed to pay his portion of the rent. It was further gathered that the Respondent is not willing to pay the children’s school fees and insists that they attend a government school where he can conveniently pay. The Probation Officer observed that the government’s school the Respondent proposed for the children is not far from the Applicant’s house as she claimed but the current school the children are attending is rather too far. The Probation Officer again observed that the Respondent does not have stable home and is not likely to have enough time to spend with the children but rather intends to take the children to his mother’s place. The SER concluded by indicating that it appears the Respondent wants custody of the children so that he will not pay the monthly maintenance nor have anything to do with the Applicant. Analysis The first issue for determination is whether or not the court can order for the Stay of Execution and or set aside the Formal Decree. Generally, after the delivery of the judgment in court, the judgment creditor initiates the execution process by applying in writing for a Formal Decree which shall be subsequently served on the judgment debtor. In the case of Northern Regional Development Corporation vs Haruna (1989-1990) 1 GLR 340, it was held that ‘… at the District Court, the first step in going into execution is the filing and service of the Formal Mavis Osei-Owusu vs Fred Osei-Owusu Decree…’ The Applicant on the 25th of April 2022 applied for a Formal Decree to be issued against the Respondent for the recovery of the amount of Seven Thousand Five Hundred Ghana Cedis (Ghc7,500.00) being arrears of school fees and maintenance that the Respondent failed to pay. So that upon the service of the Formal Decree on the Respondent, he has to pay up the judgment debt, failing which the Applicant may go into execution without further leave of court. The Respondent’s instant application is more or less to stop the Applicant from going into execution because a Stay of Execution is a court order to temporarily suspend the execution of a court judgment or other court order(s). According to the learned Justice S. A. Brobbey in his book Practice and Procedure in the Trial Courts and Tribunals of Ghana at page 466; ‘…by law, certain processes operate as a stay of execution. Neither an application for payment by nor an application of review operates as a stay of execution. Similarly, an appeal per se does not operate as a stay of execution. The Court therefore has an unqualified discretion to grant a stay of execution and will only grant stay if there are special circumstances as the court will not deprive a successful party of the fruits of his litigation. The Respondent by his Affidavit in Support has not been able to convince the court as to why there should be a stay of execution or for the Formal Decree to be set aside and the court is of the opinion that the Applicant is at liberty to go into execution to claim any and or all monies owed her by the Respondent. Further to that, since the Respondent disputed the figures stated in the Formal Decree, the parties were referred to the Cashier’s Office on several occasions to reconcile the accounts to ascertain how much the Respondent owes, but the Respondent kept disputing the figures claiming that that is not the amount he owes. He however admitted in open court that per his calculations, his indebtedness is up to the tune of Ghc4,500.00 but the reconciled amount as Mavis Osei-Owusu vs Fred Osei-Owusu submitted by the Cashier at the Registry of this court and dated 28th July 2022 shows that the Respondent’s total indebtedness as at July 2022 stands at Ghc7,500.00. The second issue for determination whether or not the Respondent ought to be granted custody of the children 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 case was therefore which of the parents was better suited to be entrusted with the upbringing 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 children. 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. The court observes from the contents of the SER that both parents are willing and capable of having custody of the children. The Court, irrespective of the wishes of the parents, will have to take a decision in the best interest of both children. 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 Mavis Osei-Owusu vs Fred Osei-Owusu 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 Three (3) children are aged Six (10) and Two (2) respectively and it may be argued that they are too young to be separated from their 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…’ One may also argue that both Ten (10) year old children are old enough and cannot be described as young children but the court considers the fact that their Two (2) year old sibling is still an infant and should not be separated from her mother and other siblings. In fact, the Respondent in his testimony before the court prayed for custody of the older children and asked that the Applicant keeps custody of the Two (2) year old. What the Respondent, in essence is praying for the court to do is to split siblings, a situation in which one parent has custody over one or more children while the other parent has custody of other child or children. Each child would live with one of the parents full-time, which means seeing the other parent and their sibling would occur on a limited basis. It must be emphasized that courts usually view keeping siblings together after a divorce or a separation of parents as in the children’s best interest. Rarely will a court order split custody and the court would typically not separate siblings Mavis Osei-Owusu vs Fred Osei-Owusu simply because it suits one parent or the other. Indeed, Section 45(2)(d) of Act 560 provides that in an Application for custody or access, the court shall consider that ‘… it is desirable to keep siblings together’. Yet, if splitting siblings truly does serve the children’s best interests, the court may do so, however, the evidence on record and the circumstances surrounding this instant Application does not warrant the splitting of siblings as there appears to be no extenuating, compelling or overwhelming reasons to do so. It is the considered opinion of the court that separating the children in issue will only serve to further disintegrate the family instead of helping the family heal. The court appreciates the fact that anyone with a sibling knows the joys of growing up and teasing a sibling, ‘a childhood partner in crime’ as well as few years of arguments, laughs, fights and memories that these siblings will share as they grow up together, and this court is not willing to deprive these siblings or ‘rob’ them of same. It must be stressed that there is no gender preference in custody laws and what the law recognizes the child's best interest as the determinative factor. According to Author Despert, in the book, Children of Divorce (1962) ‘… the best interest of the child doctrine cannot be applied within its historical and present spirit and purpose unless the law places both parents on equal footing…’ In fact, Article 18 of the United Nations Convention on the Rights of the Child (UNCRC), of which Ghana is a signatory, provides ‘… that parents have a shared and core responsibility for the nurturing of their children…’. The point being made is that no one parent should feel or think that s/he has a higher right or responsibility of the child as against the other parents, both parents have equal rights and responsibilities over their children. The duty of the court is to make decisions using a case-by-case analysis of the facts surrounding custody and will then determine what sort of arrangement is in the children’s best interests. Ultimately, the court will give Mavis Osei-Owusu vs Fred Osei-Owusu custody of the children to one parent based on the circumstances surrounding this case and because it is believed will promote the children’s welfare and not because that parent’s right to their children is absolute. Additionally, the SER indicated that the intention of the Respondent is to hand over the children to his mother in the event that the court grants him custody. This essentially implies that the Respondent’s mother will be responsible for their upkeep and not the Respondent. The court is guided by the opinion of the learned Judge in the case of Aikins vs. Aikins [1979] GLR 223 as follows; ‘… I do not think I should give custody to a parent whose purpose is to deliver the children to another.’ Consequently, taking into account all the facts and weighing all the circumstances, the court will take a decision based on the best, primary and paramount interest as well as the welfare of the children in issue. The learned Judge, Azu Crabbe C. J., in the case of Tackie vs. Baroudi [1977] DLCA 1432 in granting custody expressed his reasons in the following passage of his judgment; ‚In all the circumstances of this case, and bearing all the matters in mind [the children’s] best interest will be served… where I have a comfortable feeling that they will be well cared for.‛ The learned judge then continued, ‚Let me hasten to add that the court can always be resorted to when things change. One can readily understand the wisdom and good sense of this approach.‛ The third issue for determination is whether or not the maintenance sum of Six Hundred Ghana Cedis (Ghc600.00) should be reviewed. The duty of the court is to get the Respondent to adequately maintain his children. 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 Mavis Osei-Owusu vs Fred Osei-Owusu of both parents of the child or the person legally liable to maintain the child’. It is trite that in making Maintenance Orders, the court must consider the family member 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 was ordered to pay Ghc600.00 monthly towards the upkeep of the children, however, the Applicant wants the sum reviewed upward to Ghc900.00 for her to be able to adequately maintain the children. The SER revealed that both parties are traders and not financially sound of which the Respondent informed the court that he earns about Ghc50.00 on a daily basis because he only assists with sales. Thus, the amount of Nine Hundred Ghana Cedis (Ghc900.00) being claimed by the Applicant as monthly maintenance of the children in issue appears unreasonable as the evidence on record shows that the Respondent may not have enough means to pay that amount. 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, the Social Enquiry Report 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 children to dismiss this instant Application for the stay of execution but will make further orders as follows; Mavis Osei-Owusu vs Fred Osei-Owusu 1. The Applicant shall have custody of all the children and the Respondent shall have reasonable access to the children during weekends fortnightly. He is to pick the children up from the Applicant on Fridays by 4pm and return them back to the Respondent on Sundays by 3pm. The Respondent shall also have access to the children during half of their school vacations. 2. The parties are to identify a government school within the vicinity of the Applicant and enroll all children for the next Academic Year in 2023. 3. The Respondent shall be responsible for the maintenance of the children with an amount of Six Hundred Ghana Cedis (Ghc600.00) monthly and same is to be paid into court within the first week of every month. 4. The Respondent shall pay the children’s school fees, exercise books, textbooks and other incidental school expenses and the Applicant shall be responsible for school uniforms, bags and sandals of the children. 5. 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 which the Respondent shall present to him within a week of having incurred the expenditure. The Respondent shall ensure that the Medical Facility and Pharmacy she accesses shall be one that the Parties have agreed on except in emergency situations and she shall inform the Applicant as soon as it is practicable to do so. Mavis Osei-Owusu vs Fred Osei-Owusu 6. The Respondent is to pay up the total arrears of maintenance which stands at Ghc7, 500.00 as at July 2022 within the next Six (6) months of which same is to be paid into court and upon failure to do so the Applicant is at liberty to go into execution. ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE I AGREE I AGREE ………………………………… ……………………….. MADAM FELICIA COFFIE PANEL MEMBER MR. WISDOM ATIASE PANEL MEMBER Mavis Osei-Owusu vs Fred Osei-Owusu 12