Mohammed Banda Vrs Maku Padi [2022] GHADC 21 (28 October 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON WEDNESDAY THE 28TH DAY OF OCTOBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM REGINA TAGOE AND MADAM LOVEGRACE AHALIJAH AS PANEL MEMBERS SUIT NO. A6/85/23 APPLICANT RESPONDENT MOHAMMED BANDA BUKOM, ACCRA-CENTRAL VS MAKU PABI JAMESTOWN, ACCRA Parties present. No legal representation for both parties. RULING This is a Ruling on an Application by the Applicant herein filed on the 11th of August 2022 for the following reliefs; 1. An Order for the Applicant to be granted custody of the Two (2) children to enable him re-enroll them into school. 2. An Order for the Respondent to be granted visitation holidays as the children will be re-enrolled into school. 3. Any other Order(s) deemed fit by the Honourable Court. The basis of Applicant’s prayer as deposed to in his Affidavit is that he had a relationship with the Respondent that resulted in the birth of the Two (2) children. He stated that they were all happy and practiced the same Islamic Mohammed Banda vs Maku Pabi religion until he saw the Respondent with another man and also observed that the Respondent had ceased practicing the Islamic faith. He continued that the Respondent later left his place of residence with the children even though he had enrolled them in a school at James Town but he was recently informed that the children had stopped schooling for about a month of which he immediately enrolled them into a school. He deposed further that one of the children fell ill on some Two (2) occasions and the doctor advised him to relocate the children from where they are presently staying which is by the beach side and is not environmentally friendly. He then enrolled one of the children in a school in Cape-Coast but when the children were home for mid-term holidays, the Respondent came to his house and forcibly took the children away. He concluded by informing the court that the children are currently staying in an inhabitable environment which is affecting their health and school performance as they are currently out of school. The Respondent was ordered to file her Affidavit in Opposition but she failed to do so. She however informed the court that she wants custody of the children in issue because the Applicant has the habit of letting the children stay with different women. DETERMINATION: The issue before the court for determination is whether or not the Applicant ought to be granted custody of the child with reasonable access to the Respondent. In making a determination on the issue, the court is guided by Section 2 (1) of Act 560 (supra) which 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 Mohammed Banda vs Maku Pabi 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’. The onus therefore lies on the court to determine whether granting custody to the Applicant will be in the best interest of the children. In arriving at a conclusion, the court ought to conduct an investigation into the background of all parties, hence the Order for a Social Enquiry Report (SER). The Social Enquiry Report (SER) The SER as submitted by the Probation Officer, Mr. Emil Eli Laweh on the 23rd of September 2022 made certain findings and observation including the fact that the Applicant has a total number of Nine (9) children but currently lives at Fishpond-Lapaz with his wife and Three (3) children in a chamber and hall with porch with basic amenities. The Applicant is a Politician and also works as the Head of Taskforce at the Accra Metropolitan Assembly (A. M. A) where he earns One Thousand Five Hundred Ghana Cedis (GH¢1,500.00) at the end of the month. The Respondent and the Two (2) children live with a friend under a wooden shed at Osikain-Bishop, Accra where she lays a mat under the shed and sleeps there at night with the children. The SER further gathered that the Respondent hawks secondhand women dresses around UTC in Accra where she earns about GH¢780.00 per month. The Probation Officer observed that the Respondent appears frustrated about the situation she finds herself in now and this is taking a toll on her because she easily gets angry at the least provocation. It was further gathered that although the Applicant performed knocking rites, he did not marry the Respondent legally according to Islamic traditions. Subsequently, the Respondent stopped praying at the mosque because the Applicant promised her that if she gets converted to Islam, he would marry her Mohammed Banda vs Maku Pabi but he failed in his promise of marrying her when she got converted, this has resulted in the parties living separately. The SER further gathered whilst the parties were living together, the Applicant maintained the children but upon separation, the Applicant had access to the children because the children go to the Applicant every morning at James Town for their feeding money. The SER again gathered that the Applicant has always been responsible towards the children by maintaining them and taking care of all their school expenses. Sometime in 2016, the children went to live with the Applicant and his wife at James Town but the Applicant later relocated with the children to Fishpond – Lapaz before the lockdown in March 2020. After the lockdown was lifted, the Respondent informed the Applicant that she wanted the children to live with her and the Applicant released the children to her in 2021. After the children came to the Respondent, the Applicant visited the children’s school and realized they stopped attending the school. The Respondent wants the children’s school to be changed because the first child took critically ill and she blames the school but the Applicant wants the children to be maintained in their current school and is of the opinion that the child’s illness is as a result of the environment the Respondent stays with the children. As a result of the differences of the parties, the children are currently not in school and the SER observed that since February 2022, the children have not attended school. The SER further noted that the Applicant has the habit of sending the Two (2) children to live temporarily with various women at different times and the Probation Officer was of the opinion that that is not in the best interest of the children as it will also not promote proper growth and development of the children. Analysis Mohammed Banda vs Maku Pabi The main issue for determination is whether or not the Applicant can have custody of the Two (2) children, both females, and are Twelve (12) years and Six (6) years old respectively. The evidence on record shows that the children are currently out of school as the Respondent is not comfortable with the school the children used to attend and therefore wants the school changed. Section 8 (1) of Act 560 mentions the Right to education and well-being and provides that ‘…no person shall deprive a child access to education…’. The evidence further shows that the parties are not married and as such the Respondent lives with the children in an environment that appears inhabitable and the Applicant is not comfortable with, hence his prayer for the custody of the children. Section 45 (2) of Act 560 provides that ‘…a Family Tribunal shall consider the following when making an order for custody and access; 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. In lieu of the above considerations, the court will have to determine which of the parents should have custody of the children. 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 evidence again shows that the Respondent is incapable of taking care of the children as she has no decent accommodation to house these children. The Applicant therefore appears to be in a better position to have custody of the Mohammed Banda vs Maku Pabi children, however, the evidence and particularly as gathered by the SER shows that the Applicant has the habit of given the children out to other persons for upkeep. This implies should the Applicant have custody of the children, persons other than himself will be responsible for their upkeep. The court is guided by the opinion of the learned Judge in the case of Aikins vs. Aikins [1979] GLR 223 when he stated that ‘… I do not think I should give custody to a parent whose purpose is to deliver the children to another.’ Additionally, the evidence again shows that one of the children is Six (6) years old and is therefore just an infants and in pre-schoolers. Infants and preschool children are the group most adversely affected by the consequences of separation or divorce. There is the need for them to have a stable, safe and secure attachments to both parents but the law posits that it will be in the best interest of children of that age to be with 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…’ To determine custody, the court, despite the SER sought to ascertain from the children which parent they will prefer to live with and put that into consideration. The consideration given a child's preference in awarding custody depends upon several factors: (i) the age and maturity of the child; (ii) the strength of the preference; and (iii) whether or not all of the children in the family express the same preference. In the case of Edwards v. Edwards 27. 270 Wis. 48, 70 N. W.2d 22 (1955) the court held that ‘the personal preference of the child is very important, and although not controlling on the issue of custody, should be followed if the child "gives substantial reasons why it would be against his or her best interest to award custody contrary to such expressed preference’. Mohammed Banda vs Maku Pabi Both children indeed informed the Probation Officer of their preferred parents and were able to adduce reasons for their preference. The children were again interviewed by members of the Panel and each child was able to indicate her preference. The court is however mindful of the fact that the child's preference rule is only an aspect of the child's best interest test. Nevertheless, in most cases, it will be in the child's best interest to be with the parent preferred. Irrespective of the wishes of these children, the court is mindful of the ‘Welfare Principle’ as posited by Act 560 stated supra and the ‚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.‛ Additionally, it is important to note that the Probation Officer, who at best, is an Independent Investigator obtained all the necessary information needed to make a determination and the evidence so obtained by the Independent Investigator is often viewed with great authority by the Court. In this instant case, the Probation Officer, recommended that the best interest of the children will be served if custody of the children is granted to the Respondent with reasonable access to the Applicant and the court finds it extremely difficult to depart from the recommendation of the Probation Officer. DECISION: Upon consideration of the Application, the evidence before the Court, the SER and pursuant to the provisions of Act 560, the Court is satisfied that it will be in Mohammed Banda vs Maku Pabi the best interest of the child to dismiss this instant Application but will in the best interest of the children make the following orders; 1. The Respondent shall have custody of the children and the Applicant shall have reasonable access every weekend but fortnightly with effect from the 4th November 2022. He is to pick the children up on Fridays by 4pm and return them to the Respondent by 4pm on Sundays. The school vacations shall be shared equally. 2. The Applicant is to secure a decent accommodation for the Respondent and the children on or before the 31st of December 2022. The Respondent is to identify a decent accommodation and inform the Applicant who shall also inspect the said accommodation and be satisfied that it is affordable and conducive for the children. The Applicant shall be responsible for the payment of the rent of the accommodation. 3. The children shall immediately continue their education in their previous school or enrolled in any decent school close to the Respondent’s home. 4. The Applicant shall be responsible for the payment of school fees and other incidental school expenses whilst the Respondent shall be responsible for the school uniforms and school sandals of the children. 5. The Respondent shall register the children under the National Health Insurance Scheme (NHIS) and renew same when it expires whilst the Applicant shall pay for all medical expenses not covered by NHIS. Mohammed Banda vs Maku Pabi 6. The Applicant shall maintain the children with an amount of Five Hundred Ghana Cedis (Ghc500.00) and same shall be paid into court within the first week of every month with effect from November 2022. ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE I AGREE I AGREE ………………………………… ……………………….. MADAM REGINA TAGOE MADAM LOVEGRACE AHALIJA PANEL MEMBER PANEL MEMBER Mohammed Banda vs Maku Pabi 9