SANI VRS SEIDU (G/WJ/DG/A6/32/22) [2022] GHADC 391 (14 October 2022)

IN THE DISTRICT COURT SITTING AS A FAMILY TRIBUNAL HELD AT WEIJA ON FRIDAY THE 14TH DAY OF OCTOBER, 2022 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS.) DISTRICT MAGISTRATE (CHAIRMAN), GODFREY SAIM JNR. AND GIFTY TEKPOR (MEMBERS OF THE PANEL) SUIT NO. G/WJ/DG/A6/32/22 SALAMATU SANI APPLICANT VRS ALHASSAN SEIDU RESPONDENT PLAINTIFF IS PRESENT AND SELF REPRESENTED DEFENDANT IS ABSENT JUDGMENT The Applicant filed an application in this court on 22nd June 2022 for the following reliefs; 1. An order directed at the respondent to maintain the issues of the marriage with the sum of GHC1,000.00 per month 2. An order directed at the respondent to take steps for Abdul Rahman to access medical care since he is suffering from glaucoma. On 8th July 2022, the court ordered the respondent in the interim to pay the sum of GHC150.00 to the applicant weekly for the maintenance of the two issues of the marriage. At the hearing, the applicant informed the court that the respondent does not maintain his children since the dissolution of the parties’ marriage. It is the case of the applicant that when the children fall sick and he calls the respondent, he promises to send them money but fails to fulfil same. Applicant says she reported the respondent to DOVVSU where she was advised to summon him before the Legal Aid Commission. Applicant added that at the Legal Aid, respondent was ordered to pay the sum of GHC1,000.00 per week for maintenance of the children but he failed to comply with the said orders. Applicant informed the court that when she enquired from respondent why he was not maintaining the children, he requested for custody of the children and retorted that he will not work and give the money to Applicant if she denies him custody of the children. Applicant says for well over two years, she has been solely responsible for maintaining the children and payment of their school fees and health care needs. She prayed the court to order respondent to maintain his children and pay their school fees and medical bills as and when they arise and ensure that Abdul Rahman gets treatment for glaucoma. Respondent on the other hand told the court that he used to maintain the children with the sum of GHC200.00 weekly however he fell ill and since then he has been unable to maintain the children. According to him, he tries to maintain them whenever he gets some money which is not regular. At the end of the trial the following issues were set down for determination by the court; 1. Whether or not the Applicant should be granted custody of the issues of the marriage. 2. Whether or not an order should be directed at the Respondent to maintain the two issues with the sum of GHC1,000.00 per month and ensure that Abdul Rahman gets immediate medical attention for glaucoma BURDEN OF PROOF The law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by virtue of sections 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323) In the case of ABABIO V AKWASI IV [1994-1995] GBR 774, Aikins JSC held that; “The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing that, he wins, if not he loses on that particular issue.” The courts have consistently held that on the award of custody of a child, the welfare of the child must be the paramount determining factor. This principle has been given statutory force by section 2 of the Children’s Act, 1998 (Act 560) which states: The best interest of the child shall be paramount in any matter concerning a child. The considerations for custody or access have been provided in Section 45 of Act 560 as follows; A family tribunal shall consider the best interest of a child and the importance of a young child being with his mother when making an order for custody or access. Subject to subsection (1), the tribunal shall consider (a) the age of the child (b) that it is preferable for the child to be with his parents except where his rights are persistently 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 (f) Any other matter that the Family tribunal finds relevant. In DAABOA DAGARTI VRS DORNIPEA [1982-83] 1 GLR 594 CA, It was held as follows; “The general principle on which this public policy is founded is consideration of the welfare of the child which must be the paramount factor for determining who should have custody.” Applying the law cited supra to the present case and considering the recommendations of the social enquiry report as well as the totality of the evidence before this court, custody of the twin children aged four years is granted to the Applicant with reasonable access to Respondent for continuity in their care and control. Respondent is ordered to maintain the children with the sum of GHC1, 000.00 per month. Respondent is again ordered to pay the school fees and medical bills of the issues of the marriage as and when they fall due for payment. Respondent is ordered to enroll the children on the National Health Insurance Scheme (NHIS) and renew same on expiration. All medical bills that are not coverable by the NHIS shall be borne by the respondent. Applicant is ordered to provide the outing and casual clothes of the children. Costs of GHC1, 000.00 is awarded in favour of the applicant against the respondent. H/W RUBY NTIRI OPOKU (DISTRICT MAGISTRATE/CHAIRMAN)