Stella Appiah Vrs Emmanuel Owusu [2022] GHADC 28 (11 November 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON WEDNESDAY THE 11TH DAY OF OCTOBER 2022 BEFORE HER HONOUR HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL MAGISTRATE WITH MADAM PHILOMENA SACKEY AND MADAM VIDA DANQUAH AS PANEL MEMBERS SUIT NO. A6/21/23 APPLICANT STELLA APPIAH KASOA CENTRAL REGION VS EMMANUEL OWUSU TESANO - ACCRA RESPONDENT Parties present No legal representation for both parties. RULING This is a Ruling on an Application filed for the custody of the children of both parties aged Eight (8) and Two (2) years respectively. Applicant’s case In her Affidavit in Support, the Applicant deposed that the children were born out of a relationship with the Respondent but she has been solely responsible for the upkeep and maintenance of both children since 2018 till date. She deposed further that she has not seen nor heard from the Respondent for the past Two (2) years as he has since cut all communication ties with her and the children. she Stella Appiah vs Emmanuel Owusu concluded by informing the court that the actions of the Respondent shows that he is not willing to maintain the children unless compelled by the court to do so. She therefore prayed for the following; 1. Custody of the children to be granted to the Applicant with reasonable access to the Respondent. 2. An order for the Respondent to maintain the children with an amount of One Thousand Ghana Cedis (Ghc1, 000.00) every month subject to an upwards review every year from the date of Judgment. 3. An Order for the Respondent to pay medical bills and school fees as and when it falls due. 4. An order for the Respondent to pay the school fees arrears of One Thousand Five Hundred Ghana Cedis (Ghc1,500.00) 5. Any other Orders deemed fit by the Honourable Court. Respondent’s case The Respondent in his Affidavit in Opposition deposed that the Applicant and her family denied him the opportunity of taking care of the child because he was ejected from their house and was also refused him access to the house. He deposed further that he stopped communicating with the Applicant because she often hurled insults on him anytime he does so. He further informed the court that as much as he wants to give the children the best of care, his work and current financial situation has deteriorated hence his inability to meet the expectations of the Applicant. He concluded by indicating that he is not opposed to the prayer for custody but also prays that he be granted reasonable access to the children. He further prayed for a maintenance sum of Ghc200.00 since he will be paying for the school fees and medical bills. He further informed the court Stella Appiah vs Emmanuel Owusu that with respect to the school fees arrears, he has already made an arrangement with the school and is paying the fees by instalments. DETERMINATION The issues before the court for determination are as follows; 1. Whether or not the Applicant ought to be granted custody of the children with reasonable access to the Respondent. 2. Whether or not the Respondent pays Ghc1, 000.00 as maintenance sum towards the upkeep of the Two (2) children. 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 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’. It was also 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”. Thus, the onus lies on the court to determine whether granting custody to the Applicant will be in the best interest of the child. 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, Madam Mavis Gbate on the 11th of October 2022 made findings, among others, to the effect that the Applicant together with the children occupy a single room with porch which has basic Stella Appiah vs Emmanuel Owusu amenities at Kasoa and shares the compound with her father. The Respondent on the other hand indicated that he lives in his shop but he occupies a single room which has been attached to his shop at Tesano. He works as a casual worker at Maxim Company situated at industrial area and earns about GH¢600.00 a month but failed to show proof of earnings. The Applicant is unemployed by relies on her step-father and brother to help with the up keep of the children. The SER further gathered that the Respondent owns a house and only goes to the house when his rent is due for collection but hardly engages in the maintenance of the house. The SER further observed that the Respondent has started another building in his house although he was stopped by Accra Metropolitan Assembly (AMA) for about a year now and therefore unable to continue with the building. The Probation Officer further indicated that it appears the Respondent does not want to take responsibility of maintaining the children because he has Five (5) tenants in his home and collects rent from them for a year or Two (2) as and when they are due. She indicated further that the Respondent who works at Maxim company said he earns GH¢600.00 but has rented Five (5) rooms in his house. These, she says is an indication that the Respondent has a regular income and can maintain the children but it appears he has been reneging in his responsibilities. The SER further gathered that the children have been with their mother since birth and the only responsible parent they have known is the Applicant. Additionally, when the SER was being presented in court, the parties raised the issue of the naming of one and/or both of the children. The Respondent informed the court that he is yet to perform the necessary customary rites on the children and expressed his willingness to do so. Stella Appiah vs Emmanuel Owusu Analysis The first issue is whether or not the Applicant ought to be granted custody of the children with reasonable access to the Respondent. The Respondent herein is not opposed to Applicant having custody of the children and prays for reasonable access. The evidence on record shows that the Respondent has not been consistently in the lives of the children as he has shirked his responsibilities towards them. There is therefore the need for a time arrangement that provides for the children to have some substantial and significant time with the Respondent who is the biological father, so as to build a meaningful relationship in accordance with the best interest of the child. The next issue for determination is whether or not the Respondent pays an amount of Ghc1, 000.00 as maintenance sum towards the upkeep of the Two (2) children. Child maintenance is one of the fundamental rights granted every Ghanaian child under the customary and statutory laws of Ghana. The duty of maintenance of children, which is specially dealt with in Sections 47 – 60 of Act 560, is a legal obligation, which is imposed on a parent and, in some instances, other persons who may be legally liable to maintain the child. Specifically, 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’. The onus then lies on the court to determine the maintenance sum, however, the amount demanded for by the Applicant appears unreasonable when compared to the amount of Six Hundred Cedis (Ghc600.00) the Respondent earns as indicated in the SER, yet there is evidence on record to show that the Respondent earns alternative income from the proceeds of rent. It is trite that in making Maintenance Orders, the court must consider the person from whom Stella Appiah vs Emmanuel Owusu maintenance is claimed and whether he or she is 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. DECISION: Upon consideration of the Application, the evidence before the Court, the Social Enquiry Report (SER) and pursuant to the provisions of Act 560, the Court is satisfied that it will be in the best interest of the children to grant this instant Application and makes the following Orders; 1. The Respondent is to perform all the necessary naming rites as far as the children are concerned on or before the 10th day of December 2022. 2. The Applicant shall have custody of the child and the Respondent shall have reasonable access by visiting them at the Applicant’s residence every other Saturday between the hours of 10am and 5pm. 3. The Respondent is to maintain the children with Four Hundred Ghana Cedis (Ghc400.00) monthly and same is to be paid via the Applicant’s Mobile Money Account. 4. The Applicant shall register the children under National Health Insurance Scheme (NHIS) and renew same when it expires and the Respondent shall pay for medical bills not covered by NHIS. Stella Appiah vs Emmanuel Owusu 5. The parties are advised to enrol the children in a public school where the Respondent shall pay all the incidental school expenses OR IN THE ALTERNATIVE the children are maintained in the current school where the Applicant shall pay Forty percent (40%) of all school expenses whilst the Respondent shall pay Sixty percent (60%) of all school expenses. 6. The Respondent is to pay off the arrears of school fees owed to the current school the children by making the necessary arrangement with the school authorities. ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE I AGREE I AGREE ………………………………… ……………………….. MADAM PHILOMENA SACKEY PANEL MEMBER MADAM VIDA DANQUAH PANEL MEMBER Stella Appiah vs Emmanuel Owusu Stella Appiah vs Emmanuel Owusu 8