Alorbuh Vrs Kwofie [2023] GHADC 581 (18 July 2023)

IN THE DISTRICT COURT HELD AT AGONA AHANTA ON TUESDAY THE 18TH DAY OF JULY, 2023. BEFORE HER WORSHIP AWURAMA DAMOAH DARKWAH - MAGISTRATE ------------------------------------------------------------------------------------------------ SUIT NO: WR/AA/DC/A6/10/2023 MABEL ALORBUH PLAINTIFF OF H/NO. 22/11, APOWA AND EMMANUEL KWOFIE DEFENDANT OF NTAKOFUL BRIEF FACT J U D G M E N T Plaintiff is a tipper truck driver by profession with an average salary of GHS1,200.00 per monthly. She is the mother of Stephanie Kwofie, who is fifteen years of age and the subject matter of the suit. The child is in Junior Secondary School 3, (JSS 3) at Fullfill Life Academy School, Kansawrodo. The child has always been with Plaintiff since birth. However sometime in 2018, in the absence of Plaintiff, Defendant forcefully entered Plaintiff house and took the child away without informing Plaintiff. All effort to recover custody of the child from Defendant proved futile. Thus Plaintiff caused a maintenance and custody form to be issued on 31/03/23 for the following reliefs: a) That Plaintiff be granted custody of the child b) That the Defendant be granted access to the child c) That Defendant maintain the child at GHS400.00 per month d) That Defendant bears all educational expense of the child Defendant, who is a fabricator by profession filed his response on 16/05/2023 denying all the material allegation made by Plaintiff. Defendant deposed in his response that he has had custody of the child since 2018 after Plaintiff abandoned the child at his shop. He earns an income of GHS 4,000.00 per month and is the sole provider of the child. He pays for the school fees, feeding fees, clothing and medical expenses. Thus custody of the child should be given to him. Plaintiff’s evidence on oath was that Defendant does not allow the child to use the necessaries she purchases for the child ever since he forcefully took custody of the child from her. The child barely has money on her for necessaries since the money Defendant gives for transport to school is inadequate. The child sometimes walks to school. Also, She has noted with concern that the child lacks basic things, thus she want to love and train the child. The child can visit Defendant during vacation. On the other hand, Defendant testified that he wants custody of the child to monitor the child. He does not want monies invested in the child to be in vain. Previously the child was not studious, and only enjoyed watching television, however that changed after the child started living with him. The child was invited to meet the tribunal and testified that she prefers to live with the Plaintiff than Defendant because she gets time to study whenever she is with Plaintiff. There are accusations and counter accusations on how Defendant got custody of the child, notwithstanding, the main factor that will influence the Court’s decision as to whether Plaintiff or Defendant takes custody of the child will be the Welfare Principle. STATUTES AND CASE LAW Section 2(1) of the Childens Act 1998 (Act 560) provides that the best interest of the child shall be paramount in any matter concerning a child. Section 11 of Act 560 provides that No person shall deprive a child capable of forming views the right to express an opinion, to be listened to and to participate in decisions which affect his well-being, the opinion of the child being given due weight in accordance with the age and maturity of the child. Section 45(1 & 2a, c & f ) of Act 560 provides that A Family Tribunal shall consider the best interest of the child and the importance of a young child being with his mother when making an order for custody or access. A Family Tribunal shall also consider the age of the child; the views of the child if the views have been independently given; and any other matter that the Family Tribunal may consider relevant. In the case of Braun v. Mallet (1975) 1 GLR 82 it was held that in considering matters affecting the welfare of the infant, the Court must look at the facts from every angle and give due weight to every relevant material. See Ofori v. Ofori (1981) GLR 745 and Attu v. u Attu 1984-86 GLRD 144. Section 22 (2 & 3) of the Matrimonial Causes Act 1971 (Act 367) provides that the Court may, either on its own initiation or on application by a party to a proceedings make an order concerning a child of the household which it thinks reasonable for the benefit of the child. The order may relate to award custody of the child to any person, regulate the right of access of any person to the child, provide for the education and maintenance of the child out of the property or income of either or both of the parties. Section 47 of Act 560 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 Analysis and Disposition It is the considered opinion of the court that it would be in their best interest if custody is granted to Plaintiff with reasonable access to Defendant. The Court arrived at this decision after considering the paramount interest of the child and the independent view of the child. The child is fifteen years of age, is fairly matured and capable of making informed decision. The child having had opportunity to live with both parties at different times knows where the living condition is best. She indicated that she has time to study whiles with Plaintiff, her mother than with Defendant, because Defendant has a wife and two toddlers. Considering the prevailing circumstance, it is better for the child to be with Plaintiff who will have time to raise the child and teach her basic hygiene as against Defendant who is a man. The child shall enter into Senior Secondary School (SSS) very soon wherein she will spend a chunk of the year in school. Hence it will not be appropriate for the child to spend vacation with only one of the parties. Thus whiles the child is in JSS, she will spend vacations with Defendant. However on gaining admission to SSS and tertiary, the child shall spend half of the vacation with Plaintiff and the other half with Defendant Both parties are gainfully employed and have a responsibility to provide and maintain the child with the necessaries of life. Considering the cost of living and the salaries of the parties, Defendant shall continue to be responsible for the educational and medical needs of the child from now to tertiary. Defendant shall pay maintenance of four hundred Ghana Cedis (GH¢400.00) per month with an upward increment of 20% annually. Plaintiff shall also contribute two hundred Ghana Cedis (GH¢200) towards the maintenance of the child with an upward increment of 20% annually. The Court expects that Plaintiff assists Defendant to ensure that the child is well catered for. The Court hereby makes the following order: 1. Custody of the child is granted to Plaintiff with reasonable access to Defendant. 2. The child shall spend vacation with Defendant whiles in JSS, however once she gains admission to SSS and tertiary, she shall spend half of the school vacation with the Plaintiff and the other half with Defendant 3. Defendant is to maintain the child with an amount of four hundred Ghana cedis (GH¢400) monthly whiles Plaintiff contributes two hundred Ghana cedis (GH¢200) with an upward increment of 20% annually. 4. Defendant shall bear the educational and medical expenses of the child. ................................................... H/W AWURAMA D. DARKWAH (DISTRICT MAGISTRATE) 5