Kumi Vrs Agbeve [2023] GHADC 260 (7 June 2023)

IN THE FAMILY TRIBUNAL COURT HELD AT N. A. M. A. NSAWAM ON 7TH JUNE 2023 BEFORE HER HONOUR, SARAH NYARKOA NKANSAH CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE FAUSTINA KUMI ------- DOBRO-NSAWAM VRS SUIT NO. A6/22/22 APPLICANT DANIEL AGBEVE ------- RESPONDENT DOBRO-NSAWAM PARTIES: ABSENT. COUNSEL: NO LEGAL REPRESENTATION JUDGEMENT The Applicant claims against the Respondent is for the following: a. An order awarding custody of the child the Applicant with reasonable access to the Respondent. b. An order for the Respondent to maintain the child with the amount of Four Hundred Ghana cedis (GH¢400.00) monthly. c. An order for the Respondent to pay for the arrears, school fees and all educational expenses of the child as and when it falls due. Page 1 of 8 d. An order for Respondent to provide a suitable accommodation for the Applicant in favour of the child. e. An order for the Respondent to pay for the medical bills of the child as and when it falls due. APPLICANT’S CASE It is the case of the Applicant that, she and the Respondent have been in cohabitation since 2015, and that she assisted the Respondent to put up a building at Doboro. The Applicant continued that, there is one child between her and the Respondent, however, the Respondent has refused to maintain the child and support the Applicant. The Applicant added that, she singlehandedly enrolled and pays the school fees of the child with no assistance from the Respondent. The Applicant averred that, the Respondent sacked her from the house and if not for the benevolence of a stranger, the Applicant would have been sleeping outside. The Applicant finally mentioned that, the matter was reported to the Legal Aid Commission and at a mediation session, the Respondent was advised to maintain the child and compensate the applicant but after giving the Applicant an amount of Two Thousand Ghana cedis (GH¢2,000.00), the Respondent has refused to maintain the child any further. The Applicant closed her case without calling any witness. The Respondent was present in Court when the parties were referred to Court Connected ADR to attempt settlement. The Respondent however failed to attend Court thereafter. On the day of the trial, Respondent was again absent although he had been duly served Page 2 of 8 with a hearing notice. The Court accordingly proceeded to hear the Applicant under Order 25 Order 25 of the District Court Rules, C. I. 59. Order 25 r 1(2) (a) provides; “Where an action is called for trial and a party fails to attend, the trial magistrate may where the Plaintiff attends and the Defendant fails to attend, dismiss the counterclaim if any and allow the Plaintiff to prove the claim” In Ankumah v City Investment Co Ltd [2007-2008] 2 SCGLR 1064, Baffoe Bonnie JSC held at page 1076 as follows; “A court is entitled to give judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not wish to be heard.” In the circumstance the issues that fall for determination are: i. Whether or not the respondent is liable to maintain the child. ii. Whether or not the Respondent is liable to pay the school fees, other educational expenses and arrears of the child iii. Whether or not the Respondent is liable to provide accommodation for the child iv. Whether the Respondent is liable to pay the medical bills of the child. v. Whether to grant custody of the child to the Applicant Page 3 of 8 In resolving the issues raised supra, the Court shall refer to the Children Act. Whether to grant custody of the child to the Applicant 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.” This principle of the law was stated in OPOKU-OWUSU V OPOKU-OWUSU [1973] 2 GLR 349-354 where it was held as follows; “In such an application, the paramount consideration is the welfare of the children. The court’s duty is to protect the children irrespective of the wishes of the parents.” The considerations for custody or access has 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 Page 4 of 8 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.” The record shows that, the child lives with the Applicant. We consider continuity in care to be in the best interest of the child. We accordingly find and hold that, it is in the best interest of the child that, custody be granted to the Applicant to ensure continuity in his care and control. Our decision is in line with the Probation Officer’s recommendation as per the Social Enquiry Report. Issues 1-4 Section 6 of the children’s Act, 1998 (Act 560) provides that; “No parent shall deprive a child his welfare whether the parents of the child are married or not or whether they continue to live together or not.” Section 47 of the children’s Act, 1998 (Act 560) also provides 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.” Section 51 of the Children’s Act, 1988 (Act 560) provides; (1) A family tribunal may award maintenance to the mother of a child whether married to the father or not where the father has been identified, and the maintenance shall include Page 5 of 8 (a) the medical expenses for the duration of her pregnancy, delivery or death of the child; (b) a periodic allowance for the maintenance of the mother during her period of pregnancy and for a further period of nine months after the delivery of the child; and (c) the payment of a reasonable sum to be determined by the Family Tribunal for the continued education of the mother if she is a child herself. (2) A family tribunal may order a periodic payment or lump sum payment for the maintenance of a child and the earnings or property of the person liable maybe attached. (3) The attachment order should be applicable in all cases of failure to pay maintenance. (4) When considering an application for maintenance, a family tribunal may make a maintenance order which it considers reasonable for any child in the household. (5) A family tribunal may make an order for arrears of maintenance against any person liable to pay the maintenance. It is not in doubt that the Respondent is the father of the child. The Respondent is accordingly required by law to maintain the child, provide accommodation and pay maintenance arrears. As per the specific provisions of the Children’s Act reproduced supra, the Respondent is liable in respect of issues 1-4. We hold him liable accordingly. On the totality of the evidence before us, we have found that the Applicant has discharged her burden to prove her case on a balance of probabilities. We accordingly enter judgment as follows: i. Custody of the child is given to the Applicant with reasonable access to the Respondent. Page 6 of 8 ii. Respondent to provide suitable accommodation for the child which accommodation shall be approved by the Probation Officer. iii. The Respondent shall maintain the child with an amount of GH¢400.00 per month into Court on the first working day of every month. iv. The Respondent shall pay the school fees and medical bills of the child. v. The Applicant shall register the child under the National Health Insurance Scheme and renew same at all material times. vi. The Applicant shall provide adequate clothing for the child at all material times No order as to costs. ………………………………….. KWARTENG SAMUEL ASARE 07/06/2023 …………………………… THANE ANAFO 07/06/2023 ……………………………………………. H/H SARAH NYARKOA NKANSAH CIRCUIT COURT JUDGE SITTING AS ADDITIONAL MAGISTRATE 17/06/2023 Page 7 of 8 Page 8 of 8