Kojo Tuffour Vrs Esther Amankwah [2022] GHACC 46 (12 December 2022)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON MONDAY THE 12TH DAY OF DECEMBER, 2022 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE SUIT NO:C4/24/2021 BETWEEN KOJO TUFFOUR ABLEKUMA-OLEBU ACCRA … PETITIONER/RESPONDENT AND ESTHER AMANKWAH ABLEKUMA-OLEBU … RESPONDENT/APPLICANT ___________________________________________________________________ PARTIES: PETITIONER/RESPONDENT PRESENT RESPONDENT/APPLICANT PRESENT COUNSEL: ALEX GYAMFI ESQ. FOR PETITIONER PRESENT CATHERINE AMA NARTEY ESQ. FOR RESPONDENT PRESENT RULING This is an application filed on 16th May, 2022 by Counsel for the Respondent/Applicant (hereinafter referred to as Applicant) for interim orders. Counsel for Applicant prays for an order for the Petitioner/Respondent (hereinafter referred to as the Respondent) to bear the cost of DNA test to be carried out on the 7th issue to ascertain her paternity and for a further order that Respondent names the 7th issue if found to be the father of the child. It is the case of Applicant that she has seven children with the Respondent who claims that the 7th issue is not his and therefore has refused to name the child born on 23rd November, 2020. According to her, while pregnant she initiated a suit at the Family Tribunal against Respondent for maintenance during the pregnancy but he alleged he was not responsible for the pregnancy and prayed for a DNA test to be carried out to determine paternity, but he failed to pay for the medical expenses. According to Applicant, the court on 3rd March, 2021 declared the Respondent as the father of the last child and ordered him to name the child before 31st March, 2021 and reimburse all medical expenses. She attached as Exhibit EA1 a copy of the Judgment of the Court. She says that the Respondent has failed to comply with the orders of the court despite his public acknowledgment of her parentage in the Petition. She says that the denial of Respondent of his parentage of the child has become a source of worry and is depriving the issue to her right to a name. She therefore prays for the order for DNA test to be carried out. I note that Respondent was duly served with the application through counsel on the 24th day of May, 2022 but did not file an affidavit in opposition. I must state from the outset that from the pleadings before me, Respondent admits that there are seven issues to the marriage therefore as far as proceedings in this matter are concerned, no issue of the paternity of the 7th issue arises. I note also from the Judgment attached to the application as Exhibit EA1 that the Family and Juvenile Court made the following orders on 3rd March, 2021: “…he is accordingly declared the father of the child in issue under section 41(c) of the Children’s Act, 1998 (Act 560) and also because the said child was conceived in the course of the parties marriage and so by law he is presumed to be the father until otherwise proven. Respondent shall name the child in according *sic+ to custom before the end of March, 2021…. He shall also enrol the issue into school when she is of school going age and he shall be responsible for the issue’s educational expenses and cost of medical care.” The said Judgment is a decision of a court of competent jurisdiction bordering on the very same issues raised by the instant application. Thus, the Judgement operates as res judicata and the order of the Family and Juvenile Court is still valid, final and binding on the Parties herein. See: AKIM AKROSO STOOL AND OTHERS v. AKIM MANSO STOOL AND OTHERS [1989-90] 1 GLR 100; LARTEY V OTOO [2001-2002] SCGLR 80. A failure to comply with the Judgment is a disobedience of a court order and amounts to disrespect to the court’s authority by the Respondent. Counsel for Applicant may thus take steps under the law to ensure compliance with the order of the court dated 3rd March, 2021. This court shall thus refrain from determining issues which have already been adjudicated upon by another court of competent jurisdiction with orders being made. For the foregoing reasons, the Application is dismissed. H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN 4