Lemawu Vrs Klu [2023] GHADC 667 (17 July 2023)

IN THE FAMILY AND JUVENILE COURT B, FORMER COMMERCIAL COURT BUILDING - ACCRA HELD ON MONDAY THE 17th DAY OF JULY, 2023, BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH ESQ. MAGISTRATE, SITTING WITH MADAM FELICIA COFIE AND MR. RICHARD TEGBEY AS PANEL MEMBERS SUIT NO.:A6/231/2023 MABEL LEMAWU - APPLICANT LASHIE-CRESCENT LABONE-ACCRA VRS. FELIX KLU SPINTEX- ACCRA - RESPONDENT —————————————————————————————Applicant: Present Respondent: Present No Legal Representation BACKGROUND RULING The parties herein are the biological parents of the two children in issue, namely; Child H (male aged 13 years) and Child R (female aged 11 years) (hereinafter referred to as ‘the issues’). Applicant herein first mounted this action against Respondent sometime in October 2019 when she filed an application for maintenance and custody in accordance with Order 32 of C. I 59 on 14th October 2019. Parties were referred to court- connected ADR by the Court and on 11th November 2019 this Court (differently constituted) adopted as consent judgment the terms of agreement dated 4th November, 2019 and executed by parties herein. Following this settlement, Applicant brought an application for relistment and variation filed on 14th September, 2021 which was opposed to by Respondent per his affidavit in opposition filed on 17th September, 2021. On 27th September, 2021 the Court upon hearing both parties ordered that they comply with the orders contained in the Consent Judgment of 11th November, 2019. The Court then further ordered as follows: “Respondent shall pay the issues school fees without fail considering that Applicant is in agreement with his proposal not to pay the admission fee and cost of uniforms at the new school. Going forward, Applicant shall seek the consent of Respondent should there be the need to change the issues school and such consent should not be unreasonably withheld in the best interest of the issue and vice versa.” Additionally, the Court varied the monthly maintenance in the following manner: “As regards, monthly maintenance, this is revised to GHC 700.00 for both issues effective November, 2021 considering the cost of living in Accra and the impact of inflation on the prices of goods and general maintenance.” As final orders, the Court ordered that Respondent herein pay the maintenance arrears of Five Thousand, Five Hundred and Thirty-Eight Ghana Cedis (GHC 5,538.00) in monthly instalments of One Thousand Ghana Cedis (GHC 1,000) as proposed by Respondent himself until the entire sum is retired. Subsequently, Applicant on 2nd June 2022 again brought an application titled “Motion on Notice for Review and Variation of Court Orders”, making that the second application for variation in this suit brought by Applicant. Same was again opposed to by Respondent herein by an affidavit in opposition filed on 1st July, 2022. However, the application itself did not disclose any reliefs nor did it speak on any matters regarding the need for variation of this Court’s previous orders. Rather, that 2nd application was solely an application for enforcement which was attempting to masquerade as an application for variation of the Court’s previous orders. The Court therefore struck same out on 8th July, 2022, and instructed that “Applicant do the proper thing if it was enforcement she was seeking.” Again, by an application filed on 19th July, 2022, Applicant brought yet another motion on notice to “Relist Suit for Enforcement of the Court Orders” (i.e. the third application for enforcement/variation by Applicant). This third time around there was no affidavit in opposition from Respondent. There was however proof of service of the application on Respondent but the record shows that he was not present in court the day the application was heard. Having satisfied itself that the relevant procedure of notice to the Respondent had been complied with, this Court (differently constituted) on 29th July, 2022 proceeded to hear the application, and in its ruling stated that Applicant was at liberty to use any lawful mode of execution to enforce the judgment of the Court. After this, Applicant did not take any further steps in pursuit of this matter until sometime in 13th February, 2023 when Applicant applied for the ruling dated 8th July, 2022 (Applicant herein actually stated 7th July in her letter but the record shows that there was no hearing on 7th July, 2022 but rather 8th July, 2022). Thereafter, Applicant on 13th March, 2023 also applied for the Consent Judgment of this Court dated 11th November, 2019. Applicant also took steps to do a reconciliation of accounts to ascertain the indebtedness of Respondent as at March, 2023 and applied for a copy of the said reconciliation which letter by Applicant was received by the court registry on 5th April, 2023. It would appear that it was after Applicant was furnished with the above-mentioned documents that she instituted the instant application titled, “Origination Motion on notice for Enforcement and Variation of Maintenance Order” which was filed on 12th May, 2023 wherein Applicant attached inter alia the following documents as exhibits: the Consent Judgment dated 11th November, 2019; the Ruling of the Court on 27th September, 2021 varying its orders in the Consent Judgment; and the Reconciliation of Accounts done in March, 2023. This makes the fourth application brought by Applicant for some kind of variation/enforcement by this Court of its earlier Consent Judgment. In her most recent application before this Court, Applicant is seeking the undermentioned reliefs: A. An enforcement order compelling the Respondent to pay the outstanding maintenance fees up to March 2023 for the issues amounting to GHC 6,018.00. B. An enforcement order compelling the Respondent to pay the children’s school fees, extra classes, textbooks, feeding fees and medical bills not covered by NHIS. C. An enforcement order compelling the Respondent to have access to the children on weekends from Saturday 3:00pm to Sunday 4:00 pm and also share the children’s vacation with me as contained in the consent judgment on 11th November, 2019. D. A variation order directing the Respondent to increase the maintenance fees of the issues from GHC 700 to GHC 1,500 with effect from the time of filing this motion. E. Any further orders that this Honourable Court may deem fit under the circumstances. Respondent on his part, filed his opposition to the instant application on 22nd May 2023. In his opposition Respondent indicated that the arrears owed is not up to the amount of GHC 6,018.00 as claimed by Applicant but rather amounts to GHC 2,038.00 in his estimation. Furthermore, Respondent stated that he was opposed to the review of the monthly maintenance upwards because in addition to the maintenance of GHC 700, he was also paying extra classes fees of Three hundred and Sixty Ghana Cedis (GHC 360), school fees, accommodation of Three Thousand Ghana Cedis (GHC 3000) a year and medical bills. He indicated further that he was already finding it difficult to provide hence the reason he even owed arrears. He therefore stated that he was opposed to the application for variation and prayed the Court to “advice the Plaintiff to release her grip of entrenchment and together let we look after the children” (sic). Respondent filed an updated reconciliation of accounts and some receipts in support of his opposition on 12th June, 2023. ISSUES The Court finds that the following issues arise from the reliefs being sought and the evidence presented: 1. Whether or not Applicant is entitled to arrears to the tune of Six Thousand and Eighteen Ghana Cedis (GHC 6,018.00). 2. Whether or not Respondent is to pay the children’s school fees, extra classes, textbooks, feeding fees and medical bills not covered by NHIS. 3. Whether or not Respondent is to be compelled to have access to the children on weekends from Saturday 3:00pm to Sunday 4:00 pm and also share the children’s vacation with Applicant. 4. Whether or not the maintenance sum of the issues ought to be varied from GHC 700 to GHC 1,500 a month. The Court will first tackle the third issue, before dealing with the second, first and fourth issues in that order. ISSUE 3 The third issue does not raise any controversy as it is clearly spelled out in the Consent Judgment of the Court dated 11th November, 2019. This Court (differently constituted) adopted the terms of agreement executed by the parties themselves as its judgment making the Agreement now binding on both parties. On the issue of custody and access, what was agreed between the parties and adopted as judgment was that Applicant will have custody of the children while Respondent shall have access to the children on weekends from Saturday 3:00pm to Sunday 4:00 pm, with parties sharing the children’s vacation. When parties appeared before the Court regarding Applicant’s present application for variation, there was no indication given that the orders on custody and access were being breached or flouted by either party. Neither was any evidence led to suggest that there was a need for the custody and access orders given to be varied. Nonetheless, Applicant in her relief C is seeking an “enforcement order” of same. In the absence of anything to the contrary, this Court will conclude that the said custody and access orders are already being complied with. In this Court’s view therefore, this relief is superfluous and there was no need for it in the instant application. In any case, the relief of an “enforcement order” being sought by Applicant would in essence require an order of committal for contempt to be enforced against Respondent, since the implication is that Respondent was flouting same. However, per Order 32 rule 6 of the District Court rules, 2004 (CI 59), the proper forum for such an order is the High Court and not the District Court. Meaning that even if this Court was minded to grant Applicant’s relief C, it would be unable to do so as it has no jurisdiction to grant same. Same is accordingly dismissed. The Court will simply affirm that parties are to comply with the previous orders made in the consent judgment regarding custody and access. ISSUE 2 The Court will now move on to the second issue. In the Consent Judgment dated 11th November, 2019, it was agreed by the parties that Respondent shall pay the children’s school fees, extra classes, textbooks, and feeding fees. It was further agreed and adopted as judgment that Respondent shall pay medical bills not covered by the National Health Insurance Scheme (NHIS). It is therefore clear from the reading of the judgment that indeed Respondent was ordered to bear the responsibility of the above. However, it must also be noted that following Applicant’s second application for variation, this Court (differently constituted) stated in its ruling dated 27th September, 2021 that “Going forward, Applicant shall seek the consent of Respondent should there be the need to change the issues school and such consent should not be unreasonably withheld in the best interest of the issue and vice versa.” During proceedings, Respondent contended that Applicant had not complied with this order of the Court as she had changed the schools of the issues on multiple occasions without his knowledge and/or consent. This was admitted to by Applicant who stated that she kept changing the schools because, “Respondent goes to the schools of the children and abuses me and this has a negative psychological effect on the children.” (see proceedings dated 5th June, 2023). Counsel for Applicant contended strongly that Respondent had not been paying the fees of the children since 2021 after the Court gave its follow up ruling in September, 2021 to the judgment given in November 2019. To this assertion Respondent answered as follows, “…since 2021 Applicant claim I have not been paying school fees. She relocated the children to a temporary school called St. Maxwell from September, 2022 to January 2023 and she has changed the school again to public school currently. So, I made a payment of GHC 700 to the St. Maxwell School and now they are in public school.” (sic). Respondent provided a receipt of payment to the said St. Maxwell school dated 18th January 2022 which Applicant through her counsel conceded to (see proceedings dated 19th June 2023). Respondent also provided receipts dated September 2019 to Mars’ Hill School Complex. On the issue of non-payment of medical bills, Respondent presented receipts dated September 2019 and November and December 2021 which Applicant again through her counsel conceded to (see proceedings dated 19th June 2023). Nevertheless, Counsel for Applicant opposed the submission of all the medical and school fees receipts dating 2019 and urged the Court that regarding those receipts dated 2019, same should not be considered as they had been dealt with already by this Court (albeit differently constituted) in its judgment of November, 2019. With all due respect to Counsel, the Court did not go into evidence on the merits of the matter when the action was instituted. The Court merely adopted the terms of Agreement of parties as consent judgment, so neither of the parties brought anything in support of their claims. This means, there weren’t even any receipts submitted to the Court as evidence in the first place back in 2019 so same could not have already been considered and dealt with by the Court as Counsel is saying. The Court is therefore at liberty to consider all the evidence presented before it in coming to a determination on the instant application. The orders of the Court already quoted in extenso above are clear and unambiguous. Yet it is clear from the evidence presented and the facts revealed from the enquires made by this Court that these assertions by Applicant of non-compliance and non- payment of school fees and medical bills and counter allegations by Respondent of payment and “entrenchment” on the part of Applicant is cropping up because parties are not cooperating with each other to comply with the orders of the court given on 11th November, 2019 (i.e. the Consent Judgment) and 27th September, 2021 (i.e. the ruling on Applicant’s 2nd variation application). Applicant is complaining that Respondent is not complying with the orders regarding the payment of fees. Yet she keeps changing the schools of the issues without the knowledge and consent of Respondent and thus is also in flagrant disregard of the orders of the court. He who seeks justice, must do justice. How can Applicant expect Respondent to pay fees when he doesn’t know the schools that the issues are in at any point in time? To which school then are the fees supposed to be paid to? There is the need for continuity in the care and control of the child and in the view of the Court this extends even to the schooling environment of the child. Stability and continuity is critical in a child’s development and growth and the constant changing of the schools of the issues by Applicant can certainly not be in the best interest of the child (sections 2 and 45 of the Children’s Act, 1998 (Act 560 applied). The conduct of parties notwithstanding, the Court is mandated to act in the best interest of the child and in that vein would order that the orders of the court already given on 11th November, 2019 and 27th September, 2021 should be strictly complied with by parties. For the avoidance of doubt, this means that Respondent is to bear the expenses of the school fees, text books, extra classes and feeding fee of the current school of the issues while Applicant is to bear the cost of the children’s exercise books, uniforms and materials. This responsibility will also apply to any future schools of the issues. Applicant, on the other hand is ordered to always seek the consent of Respondent regarding a need to change schools at any stage of the issues’ development which consent should not be unreasonably withheld. Applicant must desist from unilaterally deciding on the schools of the issues. It must be a decision that is mutually agreed on. The Court will also hasten to add that where there is a need for a change of school, whichever school that has been mutually agreed on by parties should be within the financial means of the parties in order for parties not to place an undue burden on themselves with regard to the payment of educational expenses. As regards the “enforcement order” being sought by Applicant with respect to her relief B, Applicant is again advised to employ the legally recognized execution processes which would be appropriate in enforcing the judgment of the court. Relief B is therefore granted in part. ISSUE 1 The first issue considers whether or not Applicant herein is entitled to arrears she is claiming to the tune of Six Thousand and Eighteen Ghana Cedis (GHC 6,018.00). She presented in support of her claim a reconciliation of accounts that showed that Respondent owed the said amount as at March, 2023. In his opposition to the instant application, Respondent challenged the amount claimed by Applicant and stated that what he owes totals Two Thousand and Thirty- Eight Ghana Cedis (GHC 2,038.00) in his estimation. However, he submitted an updated reconciliation of accounts which showed that his indebtedness rather stands to the tune of Four Thousand Eight Hundred and Eighteen Ghana Cedis (GHC 4,818.00) as at May, 2023. Applicant, claimed some of the payments by Respondent had not been received by her, but she did not present any evidence to refute the reconciliation done by Respondent. Ultimately she indicated through her counsel that she was not contesting the final amount of Four Thousand Eight Hundred and Eighteen Ghana Cedis (GHC 4,818.00) presented. In this regard, the Court will hold that Applicant is entitled to arrears to the tune of Four Thousand Eight Hundred and Eighteen Ghana Cedis (GHC 4,818.00). Respondent is therefore ordered to pay same in monthly installments until the said sum is amortised. Relief A granted in part. ISSUE 4 The fourth and final issue is whether the maintenance sum of the issues ought to be varied from GHC 700 to GHC 1,500 a month. The caring of children is a joint parental responsibility. Article 28(1)(a) of the 1992 Constitution states that “Every child has the right to the same measure of care, assistance and maintenance as is necessary for its development from its natural parents, (emphasis mine) except where those parents have effectively surrendered their rights and responsibilities in respect of the child in accordance with law”. Section 47 of the Children’s Act, 1998 (Act 560) also makes the parents or any other person legally liable to maintain a child responsible for providing necessaries of life, education, health and reasonable shelter for the child. The wording of the above stated provisions indicates that it is both parents and not necessarily one parent or another who is to bear the responsibility of care of the child. In the case of Donkor vs Ankrah [2003-2005] 2 GLR 125, the court speaking through Dotse JA (as he then was) stated that where both parents were earning an income, it had to be their joint responsibility to maintain the child. The learned jurist noted further that, “The tendency for women to look up to only men for the upkeep of children was gone.” The law is therefore clear that both parents have a joint responsibility towards the provisions of shelter, health, education and other necessaries of life of the issues. The question then is to what extent or how should the level of responsibility be shared between parents? Section 49 of Act 560 outlines the considerations a court must bear in mind when making maintenance orders and same will apply to any subsequent variation. The said section 49 provides as follows: “ When making a maintenance order, a family tribunal shall consider, (a) the income and wealth of both parents of the child or of the person legally liable to maintain the child, (b) an impairment of the earning capacity of the person with a duty to maintain the child, (c) the financial responsibility of that person with respect to the maintenance of other children, (d) the cost of living in the area where the child is resident, (e) the rights of the child under this Act, and (f) any other matter which the family tribunal considers relevant.” The record reveals that Applicant is a nurse while Respondent runs a water sachet business (see proceedings dated 27th September 2021 and affidavits of parties). Based on the facts and evidence before it, the Court is of the view that a maintenance of One Thousand Ghana Cedis (GHC 1000) a month should be remitted by Respondent to Applicant effective from August, 2023. This amounts to Five Hundred Ghana Cedis (GHC 500) per child for the two issues. Bearing in mind the joint parental responsibility principle, we believe this is fair for now having taken into consideration the current ages of the children in issue, the galloping rate of rising costs of living in Accra especially over the last year, the fact that both parties are contributing towards the accommodation/ shelter of the issues and the fact that Respondent is primarily bearing responsibility of the education and health of the issues. The monthly maintenance stated is subject to periodic review upon application by Applicant in line with section 55 of Act 560. The maintenance of GHC 1,000.00 should be paid in the manner as previously agreed by parties (i.e. into the GCB account numbered 1141010145595 in the name of Mabel Lemawu on or before the 3rd of each month). Applicant shall provide all other necessaries of life of the issues. This is in line with the principle of joint parental responsibility. Relief D granted in part. CONCLUSION Parties are encouraged and advised to keep the lines of communication open in order to take decisions in the best interest of the issues. They must remember the fact that they still have children between them even if they are no longer married. There will be no order as to costs. MAAME YAA A. KUSI-MENSAH ESQ (MS.) (Presiding Magistrate) MR. RICHARD TEGBEY (Panel Member) MADAM FELICIA COFIE (Panel Member) 13