Bansi Yussif Zaratu Vrs Sadatu Sumani Zakari [2022] GHADC 33 (18 October 2022)

IN THE FAMILY AND JUVENILE COURT ‘C’ AT THE FORMER COMMERCIAL COURT BUILDING, ACCRA, HELD ON WEDNESDAY THE 18TH 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. A6/66/23 APPLICANT BANSI YUSSIF ZARATU KANDA, ACCRA VS SADAT SUMANI ZAKARI LAKESIDE ESTATES - ACCRA RESPONDENT Applicant present Respondent absent Patrick Aboko Esq. for the Respondent absent RULING This is a Ruling on an Application filed for the maintenance of the children of both parties. Applicant’s case In her Affidavit in Support, the Applicant deposed that she was legally married to the Respondent since 2008 and they have Four (4) children aged 12, 9, 7 and 5 years respectively. She stated further that during the subsistence of the marriage, the Respondent acquired Two (2) sets of Three (3) bedroom apartment located at Bansi Yussif Zaratu vs Sadat Sumani Zakari Lakeside Estates and Ashalley Botwe respectively. She deposed further that she vacated the Respondent’s house in 2017 due to the interference of members of the Respondent’s family in the marriage and had problems with her accommodation until she secured a new employment in 2019 when she relocated to her father’s house temporarily until she rented an apartment at Kanda. She indicated that during the period, the Respondent neglected most of his responsibilities although he promised to use the rent proceeds from one of the houses to maintain the children but rather misappropriated the proceeds abysmally. This has resulted in the children being demoralized due to the fact that they are often sacked from school due to non-payment of school fees. The Applicant concluded that the Respondent will not maintain the children unless compelled by the court to do so. She therefore prayed for the following reliefs; 1. An Order by the Court to compel the Respondent to release the house located at Ashaley Botwe (Zoomlion) out rightly to the Applicant and the children and for the Applicant to use the rent advance proceeds to cater for the child adequately as the Respondent is already occupying the other house at Lakeside Estates. 2. A further Order to restrain the Respondent from selling the current house as it is his intention to do so, as he has already sold a plot of land he acquired during our marriage and gifting some of his valuable properties such as cars which could have been sold to cater for the children. 3. Any other Order(s) deemed fit by the Honourable Court. Respondent’s Case The matter came up for hearing on the 30th of August 2022 with the Applicant present and the Respondent absent but being represented by Counsel who apologized for the absence of the Respondent and further informed the court that Bansi Yussif Zaratu vs Sadat Sumani Zakari the Respondent is unwell of a condition that affects his mental capacity and responsibility. He further prayed the court to dispense with the attendance of the Respondent since he is currently under medications which renders him incapable of attending court proceedings as well as respond to the matter. Counsel concluded by praying to attempt settlement in the best interest of the children and same was granted by the court. The matter again came up for hearing on the 4th of October 2022 and Counsel for the Respondent informed the Court that both families of the Applicant and the Respondent met to have the matter resolved but the Respondent failed to avail himself for the meeting. Counsel further submitted, albeit subtly that the failure of the Respondent to avail himself was due to his current mental condition. He therefore prayed that since the Respondent is currently unemployed but has some property in his name, an Order be made for the Creation of a Trust with the Respondent as a Settlor, the Applicant as the Trustee and the children as the Beneficiaries. He prayed further that with the creation of a trust So that any proceed from the property will be used to care for the children, pay their school and any other necessaries of life. Counsel further prayed for the Trustee to be made to render yearly accounts to the Respondent and/or his family. He concluded by praying for the Respondent to be allowed to make decisions in relation to the children and further furnished the court with a copy of the Terms of Settlement unsigned by the Respondent but signed by the Applicant, her Witness as well as the Respondent’s Witness. DETERMINATION: In view of Counsel’s Submissions as well as the reliefs being sought by the Applicant herein, the issue before the court for determination is whether or not Bansi Yussif Zaratu vs Sadat Sumani Zakari the Respondent’s Property located at Ashale Botwe (Zoomlion) can be settled in trust for the children in issue. 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’. The onus therefore lies on the court to determine whether settling the said property for the children in issue will be in the best interest of the children. Analysis A Trust is a legal relationship consisting of Three (3) parties: the Settlor, who creates the trust; the Trustee, who controls and manages trust assets; and the Beneficiary, who receives distributions from the trust. According to B. J. da Rocha and C. H. K. Lodoh in Ghana Land Law and Conveyancing, 2nd edition, 1999 at page 105, the concept of ‘Trust’ is an important invention of equity and under a trust, a person holds the nominal title in property not for his own beneficial enjoyment but for the benefit of some other person. The learned authors explained Trust further as follows; ‘… the person who holds the legal title is known as the trustee. The person entitled to the benefit of the property is the beneficiary…whenever there is a trust, the nominal title to the property is held by one person, the trustee and the equitable right to enjoy the property is vested in another person, the beneficiary…’ In other words, for a trust to be created, there must a relationship, direct or indirect, between the Settlor and the Trustee. Thus, with this instant case, a Trust can be created because the intended Settlor is the Respondent herein, who is the biological father of the intended beneficiary who Bansi Yussif Zaratu vs Sadat Sumani Zakari are the children in issue, and the Trustee is the biological mother of the children in issue. The learned Brobbey J (as he then was) further held in the case of Cofie v Forson [1992] 1GLR 312 that, ‘… to create a trust, there had to be three prerequisites: which are that the words used had to imperative, the subject matter had to be definite and certain and the objects or beneficiaries had to be identifiable and ascertainable’. According to B. J. da Rocha (supra) at page 107, ‘…the principle of Trust is that the Settlor must clearly express an intention to create a trust and not merely to benefit someone…’ Thus, for the Trust to be created, the Respondent must clearly express his intention to create the Trust. Unfortunately however, the Respondent is said to be incapable of taking such decisions and this is evidenced by the fact that the Proposed Terms of Settlement remains unsigned by the Respondent, although all other persons required to sign the Terms have since done so. It therefore appears that the Respondent, the intended Settlor, is unable to create a trust because the most important principle of Trust is that the Settlor must clearly express an intention and in this instant case, the clear expression of an intention to create a Trust is absent. Consequently, the court will have to determine whether the said property to be settled in trust for the children in issue in the absence of a clear intention to do so by the Respondent. The evidence on record shows that the Respondent is currently unwell, unemployed and has since shirked his responsibilities towards providing the necessaries of life of the children in issue. Additionally, it is the Applicant’s case that although the Respondent promised to use the rent proceeds from one of the houses to maintain the children but rather misappropriated the proceeds abysmally. It is therefore important that the welfare of the children in issue is made a primary consideration as the likelihood of the Respondent Bansi Yussif Zaratu vs Sadat Sumani Zakari providing them with the necessaries of life as well as maintaining them adequately appears to be nil. The evidence on record again shows that it appears the Respondent is incapable of taking certain decision due to his present medical condition, as such the a process titled ‘Letter of Consent’ was filed on behalf of the Respondent by his biological mother, Hajia Awulatu Sumani. The said Hajia Awulatu Sumani described herself as the mother and caregiver of the Respondent of which she gave her consent in favour of creating a trust using one of the Respondent’s landed property lying situate at Mmai Dzorn for the benefit of the Four (4) children between the parties. Usually, the court would have required for an individual to be formally appointed as the Respondent’s Guardian and/or Next Friend to take such decisions since it appears the Respondent is incapable of making certain decisions. The court will however dispense with that strict requirement of the appointment of a Guardian and/or Next friend and admit the said ‘Letter of Consent' filed by the Respondent’s mother into evidence. In doing so, the court relies on Section 37 of The Children’s Act, 1998 (Act 560) which provides that ‘…the proceedings at a Family Tribunal shall be as informal as possible and shall be by enquiry and not by adversarial procedures…’ as well as the Welfare Principle as provided in Section 2 of Act 560 stated supra. DECISION: Upon consideration of the Application, the evidence before the Court, the submissions of Counsel, the testimony of the Respondent and pursuant to the provisions of Act 560, the Court is satisfied that it will be in the best interest of the child to grant this instant Application and makes the following Orders; Bansi Yussif Zaratu vs Sadat Sumani Zakari 1. The Respondent’s property situate and lying at Mmai-Dzorn in the Tema Rural Area of the Greater Accra Region of the Republic of Ghana measuring an approximate area of 1,793.231 acres and bounded on the South by the Trabi, Duku Enumo and Onukpa Woho Stream and Ponds, on the North West by Ashale Botwe Family Lands, on the South East by the Sraha Lands (Adjetey Abgosu and Freeman Families), on the North East by the University of Ghana Farms (Annex), on the East by the University of Ghana Farms and Animal Husbandry shall be settled in Trust in favour of the children in issue. 2. The Respondent shall be the Settlor, the Applicant the Trustee and all the Four (4) biological children of both Parties shall be the Beneficiaries. 3. The Applicant as the Trustee shall render accounts of the Trust to the Respondent, and/or his biological mother and/or any other adult family member of the Respondent. 4. The Applicant shall use the proceeds of the rent to maintain the children and shall cover expenses on education, medical, feeding as well as all the necessaries of life of the children. 5. The Respondent shall not be denied the right to make decisions in relation to the children as well as exercise his rights as the biological father of the children in issue. ………………………………… H/H HALIMAH EL-ALAWA ABDUL-BAASIT. PRESIDING JUDGE Bansi Yussif Zaratu vs Sadat Sumani Zakari I AGREE I AGREE ………………………………… ……………………….. MADAM PHILOMENA SACKEY DANQUAH PANEL MEMBER MADAM VIDA PANEL MEMBER Bansi Yussif Zaratu vs Sadat Sumani Zakari 8