QUAYSON VRS BAIDOO (C5/204/2023) [2023] GHACC 1041 (6 October 2023)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON FRIDAY, 6TH OF OCTOBER, 2023 BEFORE HER HONOUR, AFIA OWUSUAA APPIAH (MRS) THE CIRCUIT COURT JUDGE. SUIT NO: C5/204/2023 DINA BAIDOO EKUBAN QUAYSON PETITIONER V FREDERICK BAIDOO RESPONDENT JUDGMENT This petition was issued by the Petitioner against the Respondent herein on 26/10/2021 praying the court for the following reliefs; 1. That the marriage celebrated in fact between the parties be dissolved. 2. That the Petitioner be granted custody of all the children of the marriage, namely Gabriel Jojo Baidoo, Jennifer Baidoo and Jessica Baidoo and right of access to the Respondent. 3. That the Respondent be ordered to pay the cost of maintenance of the three children of the marriage by paying for their feeding, education, health, clothing and shelter pending the determination of this suit and thereafter. 4. The Respondent is ordered to pay to the Petitioner, defaulted maintenance of Four Hundred Ghana Cedis (GHIC400.00) a month from May 2017 to date. 5. Further orders as the Honourable Court may determine. 6. Cost in this action including legal fees. Petitioner’s ground for seeking the dissolution of the marriage per petition is that parties got married at the office of the Registrar of marriages , Registrar General’s Department Accra on 2/2/2012. They thereafter cohabited Accra within the jurisdiction of the court. She has averred that the marriage between her and the Respondent has broken down beyond reconciliation with parties lived together as husband and wife the past five years preceding the presentation of the petition. She contends that Respondent has constructively driven her and the children from the matrimonial home for the past 5 years, openly insults her in the presence of the children, accuses her mother and her of witchcraft and blames his failures on her and the parents. There are three (3) issues to the marriage i.e Gabriel Jojo Baidoo and the twins Jennifer Baidoo and Jessica Baidoo then aged 10 and 6 years respectively. Petitioner avers that Respondent had failed to maintain the two younger children of the marriage for the past 5 years. She further contended that all efforts at reconciling them by their friends and family had proved futile hence her reliefs supra. Respondent upon service of the Petition entered appearance through counsel and subsequently filed an answer to same. In his answer and cross-petition filed on he agreed that the marriage has broken down beyond reconciliation and parties failing to live as husband and wife since Petitioner left the matrimonial home unceremoniously ion 1/11/2016. He denied insulting petitioner or his mother-in-law contending that it was his mother-in-law who heaped insults on him at the least provocation. He denied not maintaining the children averring that he reported the reported the matter to DOVVSU after frantic efforts by him to access the children was denied by Petitioner. He stated that though he filed a suit at the family and Juvenile Court, Accra, parties reached an agreement for Gabriel Jojo to live with Respondent whilst the twins live with Petitioner with access rights to the children by each party, a term Petitioner had failed to comply with. Respondent contends that he pays the school fees of the twins and buys their snacks. Respondent confirmed that attempts at reconciliation by a marriage counselor proved futile due to Petitioner’s declaring that she is no more interested in the marriage. he also prays the court for the reliefs below; i. That the marriage celebrated between the parties 2nd February, 2012, be dissolved. ii. An order that Gabriel Joojo Baidoo continues to be with the Respondent so he can continue his education with access to the Petitioner on vacations and weekends. iii. An order directed at the Petitioner to grant Respondent access to the twins, Jennifer Baidoo and Jessica Baidoo on vacations and weekends. iv. Any other order(s) that this honourable court deems fit. Section 1(2) of the Matrimonial Causes Act, 1971, Act 367 (hereinafter referred to as ACT 367) provides that the sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation”. A Petitioner therefore has to satisfy the court that the marriage has broken down beyond reconciliation. There are several instances listed under section 2(1) of Act 367 proof of which suffices or proves that the marriage has broken down beyond reconciliation. The court is duty bond to satisfy itself that the grounds for dissolution canvassed by the Petitioner falls within section 2 (1) of Act 367. ISSUES FOR DETERMINATION From the pleadings of the parties, the following issues arise for determination. 1. Whether or not the marriage celebrated between parties has boken down beyond reconciliation. 2. Whether or not Respondent has failed to maintain the children for the past 5 years. 3. Whether or not Respondent liable to pay for defaulted maintenance of GHC400.00 a month from May 2017 to date. 4. Whether or not custody of all three (3) children should be granted to Petitioner. Issue 1- whether or not the marriage has broken down beyond reconciliation. According to Petitioner, after the marriage, they lived together happily and had their first child Jojo. Unfortunately growing up, Jojo was a bit stubborn. Respondent upon consulting with a pastor friend of his, one Pastor Thomas Ackah, was told the behaviour of Jojo was caused by those who bath him as a child so he should not allow anyone do that for them again. After delivery of the twins, Respondent disagreed with her mother coming to bath the twins preferring that his mother rather assist her upon her discharge from the hospital. Her mother not being aware of Respondent’s position came to the house to assist her after her discharge from the hospital went to assist her but left after 3 days due to Respondent’s hostility towards her and instruction to her not to allow her mother bath the babies. Respondent’s mother however in the mornings went over to bath the babies the first two months after her delivery. According to Petitioner, she brought this matter to the attention of her father who called for a meeting with Respondent and his father but they failed to honour the said meeting. She stated further that in 2016, Respondent became hostile to her, stopped eating her food, covered his food when he saw her coming insulted her in the presence of their son Jojo and sometimes in the presence of third parties. She also stated that she woke up one night to find Respondent naked and dragging his buttocks on the floor cursing her to go blind accusing her of being demonic and trying to sacrifice one of the twins and cause him to loss his job. She stated when she got feed up with the conduct of Respondent and brought it to the attention of Respondent’s mother who lived 15 to 20 minutes walk from the matrimonial house, she told her she could pack out of the matrimonial home but should leave the children behind. She therefore packed out of the matrimonial home on 1/11/2016 and parties have till date lived separately. Respondent denied and challenged these assertions made by the Petitioner. According to him, he lived peacefully with Petitioner after the marriage until he returned home from work on 1/11/2016 and to his dismay; Petitioner had packed out of the matrimonial home. he denied ever insulting Petitioner in the presence of their child Jojo or third parties . He stated that it was rather Respondent’s mother who during her visit after the birth of the twins heaped insults on home at the least opportunity and threatened to eject him from the rented matrimonial home. Respondent stated that after Petitioner left the matrimonial home he had taken steps to reconcile by reporting to DOVVSU, seeking reconciliation process with the manageress of Airside Hotel and finally with a counselor to no avail. He tendered as exhibit 1 the marriage certificate. Sarkodee J in the case of KOTEI V KOTEI [1974] 2 GLR 172, held “The sole ground for granting a petition for divorce is that the marriage has broken down beyond reconciliation. But the petitioner is also obliged to comply with section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367), which requires him to establish at least one of the grounds set out in that section. The petitioner in this case has set out to prove (1) (e), namely, that [he and the respondent] have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition... It is accepted that proof of one or more of the facts set out in section 2 (1) is essential and that proof of one of them shows the marriage has broken down beyond reconciliation. It is also conceded that notwithstanding proof the court can refuse to grant the decree of dissolution on the ground that the marriage has not broken down beyond reconciliation. It will be noted that the discretion given to the court is not a discretion to grant but to refuse a decree of dissolution. This means that once facts are proved bringing the case within any of the facts set out in section 2 (1) a decree of dissolution should be pronounced unless the court thinks otherwise. In other words, the burden is not on the petitioner to show that special grounds exist justifying the exercise of the court’s power. Once he or she comes within any one of the provisions in section 2 (1) (e) and (f), the presumption is in his favour; proving one of the provisions without more is proof of the breakdown of the marriage beyond reconciliation. Proof of five years’ continuous separation enables the marriage to be dissolved against the will of a spouse who has committed no matrimonial offence and who cannot be blamed for the breakdown of the marriage.” From the evidence on record, the conduct of Respondent alleged by the Petitioner as the cause for her leaving the matrimonial home stands disputed and uncorroborated. However, it is not in contention but same admitted by both parties that the since Petitioner packed out of the matrimonial home on 1/11/2016. Parties had, as at the time the petition was instituted i.e 26/10/21 not lived as husband and wife for a period of four years 11 months, 26 days. Under Section 2 (1d) of Act 367 provides that where a petitioner proves “that the parties to the marriage have not lived as husband and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce, provided that the consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph despite the refusal”. Under section 2 (1d) of Act 367, it is irrelevant whether or not there has been any wrong doing on the part of the Respondent. The most important fact to be considered is whether or not the court is satisfied that for a period of at least two years preceding the petition, the parties have not lived together as husband and wife and Respondent consents to the divorce decree or consent is not unreasonably withheld. Respondent herein does not only consent to the dissolution of the marriage celebrated between him and Petitioner, he also cross-petitions for dissolution of same. Parties have both testified to failed attempts by a counselor among others to reconcile them, which have been to no avail. The court is therefore satisfied that the marriage between the parties has broken down beyond reconciliation under section 2 (1d) of Act 367. The court therefore find and hold that the marriage celebrated between the parties herein at the Office of the Registrar of Marriages, Registrar General’s Department, Accra broken down beyond reconciliation and same is decreed dissolved today, the 6th day of October, 2023. ISSUE 2 & 3 Whether or not Respondent has failed to maintain the children for the past 5 years & Whether or not Respondent liable to pay for defaulted maintenance of GHC400.00 a month from May 2017 to date. Permit me to discuss issues two and three together as they are intertwined. Petitioner as part of her case before the court is that after she left the matrimonial home on 1/11/2016 with all the children, she lodged a complaint at the Office of Social Welfare Cantonment for Respondent to pay maintenance for the children. Their families were asked by Social Welfare to resolve the matter but they could not do so. She stated that she returned the first child to Respondent who had also filed for custody of the children at the court which said case Respondent later informed her he would withdraw. She stated that Respondent only paid for the school fees of the children when they got to KG 2 and that she had to pay the school fees of the twins when they were in KG1 and nursery at GHc500 per term. Respondent on the other hand testified Petitioner enrolled the twins into school without his notice and several attempts to provide maintenance for the twins yielded no results. He later discovered the school of the children and informed the school authorities he would be paying for their school fees and providing their snack as Petitioner was not cooperating with him. On the advice of the school authorities, he met with Petitioner and agreed for the children to be enrolled in a school in petitioner’s area and he has since been paying the school fees and providing snacks for them. Below are extracts from the cross- examination of Respondent on this issue; Q: From your witness statement you have mentioned that the petitioner took your children to school without your information do you still maintain that paragraph 14 A: Yes my Lord Q: From your exhibit 5 i.e. whatsapp conversation between you and petitioner, you were informed she had identified a school where she was going to send the twins to and even sent you the date they were going to start school. So your statement that you were not informed about the schooling of the twins per your paragraph 14 of the witness statement is untrue. A: I don’t agree. She did not inform me when she took or enrolled the twins at Little Star Nursery School in Kanda Estate Tel the court who pays for the fees I pay For how long have you paid the fees of the twins 2 years and some moths ie. after petitioner agreed for me to do so ie on 28/1/2021 At the Family Tribunal you were ordered to pay their fees is that so Not true I put it to you that till you were ordered to pay the fees you were not Q: A: Q: A: Q: A: Q: paying the fees of the twins A: At that time the kids were just a year old Q: Were they in school then A: Q: A: Q: No I put it to you that when the Tribunal ordered you to pay the fees you paid for only 4 months and left Not true I further put it to you that as we speak now it is only petitioner that pays for the fees and maintenance of the twin kids A: Not true Q: Even with the little payment made, it took the intervention of one Sheila Yamosah before you offered to pay A: It’s never true. Rather both Petitioner and I met at Accra Mall and willingly agreed. She takes care of the children house or home needs and I would take care of the medical and educational expenses. We also agreed to bring the children to other for holidays in turns. It was not Mrs. Yamosah intervention but something we all agreed. In the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 the Supreme Court speaking through Aikins JSC expounded the position as follows: “The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defense to lead sufficient evidence to tip the scales in his favor when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue” Petitioner had under cross-examination admitted that she enrolled the twins into school without he knowledge of Respondent. According to her, Respondent asked her to home school the twins until they turned 3 citing financial challenges. She further stated under cross-examination that Respondent found out about the school the twins were attending and visited them at the school with Jojo. These answers are admissions to Respondents contention that he had to discover the whereabouts and or school of the twins on his own. Clearly, until Respondent discovered the school of the twins through his own means, Petitioner failed to notify him of the whereabouts and their school. The failure of Respondent in the payment of school fees of the twins until he discovered same can therefore not be attributed to him but to Petitioner’ decision to keep him in the dark about matters related to them. Under section 6 of the Children’s Act, 2008, Act 560, it is the responsibility of parents of a child whether married at the time of the birth of the child or separated to provide the basic necessities of life for a child including protecting the child from neglect, discrimination, violence, abuse, exposure to physical and moral hazards and oppression, provide good guidance, care, assistance and maintenance for the child and assurance of the child’s survival and development. It is therefore the responsibility of both the mother and father of the child to ensure that a child is provided with all the necessities of life. In respect of the monthly maintenance default, according to Petitioner, Respondent had paid a total sum of GHC800 for the maintenance of the twins since she left the matrimonial home i.e GHc200 in April 2017, GHc300 in May 2017 and June 2017 respectively. Although Petitioner under cross-examination stated that at the time she left the matrimonial home she was unemployed, as highlighted by counsel for Respondent in the written address filed on 2/10/2023, this evidence is contrary to paragraph 29 of her witness statement where she stated that in November 2016, she packed out from the matrimonial home and went into residence in one room apartment of her “employers at the Airport View Hotel” in the interim. The court therefore finds that during the time of separation, b parties were employed and earning income. The evidence on record reveals that two days after Petitioner left the matrimonial home, Respondent took steps to get her back home though same did not materialize. Respondent in the same month filed for custody at the Family Court, Accra, a case both parties did not see to finality upon reaching a gentleman’s agreement. Petitioner maintained custody of the twins whilst Respondent had custody of the Jojo the first child. Both parties individually catered for the children in their custody with Petitioner willingly keeping Respondent in the dark about some welfare issues of the twins. Petitioner under cross-examination admits that the sum of GHc400 monthly maintenance arrears she claims from Respondent from May 2017 was not based on an order of a court of DOVVSU but advise of a Social Welfare Officer of the Family Tribunal Court. Below is extracts from the cross-examination; Q: You earlier stated that at the Family Tribunal no order were made as to A: Q: maintenance correct Yes So the relief you seeking that Respondent has defaulted in the payment of GH400 since May, 2017 till date you are not entitled to it, I put it to you A: I don’t agree because when the Social Worker advised him he was paying Gh200 but later increased it to GH400. He paid to April, 2017 and stopped that is why I am claiming that amount I put it to you that is an afterthought Not true Q: A: From the evidence of Petitioner, the said amount claimed as monthly maintenance is based on an “advise” given to Respondent and not on any binding order(s) of a court, DOVVSU or Social Welfare. Parties each being employed at the time of separation and having reached a gentleman’s agreement on the custody of the children and there being no formal order for maintenance of GHC400, the court e is unable to find that Respondent was liable to pay maintenance of GHC400 which he failed to pay since May 2017. Accordingly Petitioner’s relief for the recovery of maintenance arrears of GHC400 monthly from the period of May 2017 remains not proved and same is refused. Respondent cannot be said to have defaulted the said payment ISSUE 4 - CUSTODY Petitioner herein prays for custody of the three children of the marriage now aged about 11 years and 7 years respectively. Respondent also prays the court maintain the status quo of the children by granting him custody of the first child Gabriel Jojo Baidoo and Petitioner granted custody of the twins Jessica Baidoo and Jennifer Baidoo. The records before the court shows that Jojo, now 11 years old has since November 2016 been living under the care of Respondent and the twins under the care of Petitioner. Petitioner contends that by the nature of Respondent’s work, he leaves the boy alone in the house unattended and therefore prays for custody of the Jojo in addition to the twins. This fact is challenged by the Respondent who contends that they live with one Derrick and a mate of his who attend Royal Technical Institute and Central University College respectively. The court is mandated under section 22(2) of Act 367 either on its own initiative or on application by a party to proceedings under the Act, make an order concerning a child of the household, which it thinks reasonable, and for the benefit of the child. An order under that subsection may 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 to the marriage. The court must consider the best interest of the child, the age of the child, the desire to keep siblings together, the need for continuity in the care and the control of the child among others. Section 45 of Children’s Act 1998, Act 560, specifically on custody provides that in making an order for custody and or access, a family tribunal/court shall consider the best interest of the child and the importance of a young child being with the mother; the age of the child, preferable for a child to be with the parents except where the rights of the child are persistently being abused by the parents, the views of the child if the views have been independently given, desirability to keep siblings together, the need for continuity in the care and control of the child, and any other matter that the family tribunal/court may consider relevant. There is therefore the legal inclination for children the age of the children herein to be with their biological mother. Under Section 5 of ACT 560 a biological parent may be deny the right to have custody of his/her child or children by the court where the court is of the opinion that living with the parent would not auger well for his/her welfare. Section 5 provides “no person shall deny a child the right to live with his parents and family and grow up in a caring and peaceful environment unless it is proved in court that living with his parents would lead to significant harm to the child; or (b) subject the child to serious abuse; or (c) not be in the best interest of the child.” Counsel for Respondent in his submission in support of his submission for the court to maintain the custody status quo of the children quoted the case of ATTU V ATTU (1984-86) 144 in support. Brobbey J as he then was in the case of ATTU V ATTU held “The principle that in determining whether to grant custody to an applicant or respondent the welfare of the child or children should be the fundamental or paramount consideration had been given statutory backing by Act 372, s 16 (2) which however provided that the welfare of the infant should be the “primary” consideration. Whether “primary” meant “paramount” or whether the two were used synonymously, both words connoted a situation which admitted of the existence of other factors to be taken into account in resolving issues of custody. In the instant case the personal circumstances of the applicant and the respondent were equally balanced and each was capable of providing decent homes for the children. A fortiori the primary or paramount consideration should therefore be where the children should profit the more by staying. Having regard to all the circumstances of the case, particularly the failure of the applicant to take steps timeously to retrieve the children and allowing them to be rooted in a foreign land with different environmental and social background, the children would not profit from an order which would necessarily subject them to traumatic changes in their settled, stable living conditions and compel them to stay with a father they hardly knew unless the applicant established that he could provide better opportunity, better future, better happiness and the better of virtually everything than their present state of living. There is no iota of evidence on record that Respondent who has been taking care of Jojo for over five (5) years is now not fit to take care of him neither is there evidence on record suggesting that Jojo’s continues care under the custody of Respondent would be detrimental to his welfare. Same vain there is no evidence that the twins Jennifer and Jessica’s continue care under the custody of Petitioner would be detrimental to their welfare. The children have lived under the care and custody of the parties separately, having built physical, social and educational ties at their present place of abode and parent. The court finds no basis to change this status. Accordingly, custody of the twins is granted to Petitioner with reasonable access to Respondent every other weekend, vacations and holidays. Custody of the first child of the marriage, Jojo is granted to Respondent with reasonable access to Petitioner on other weekends that Respondent does not have access to the twins. To ensure the children grow up knowing each and to foster siblings love and unity, during vacations, the children shall spend half the vacation with Petitioner and the other half with Respondent. Issue 5- Maintenance With custody of the children determined there is the need for the court to make further orders with regards to their maintenance. Respondent prays the court for maintenance orders to be made in respect if the feeding, education, health, clothing and shelter of the children. Per the record the educational expenses of the three children are born solely by the Respondent since he located the school of the children. Respondent is catering fully for the upkeep and educational expenses of the child in his custody, Jojo. Respondent contends he is also fully responsible for the payment of school fees. Exhibit 4series confirm the payment of school fees of the twins by Respondent. Exhibit 6 and & series confirms that Respondent periodically buys provisions for the twins. Petitioner failed to give the court details of the monthly expenditure incurred on the twins who are in her custody Under section 6 of the Children’s Act, 2008, Act 560, it is the responsibility of parents of a child whether married at the time of the birth of the child or separated to provide the basic necessities of life for a child including protecting the child from neglect, discrimination, violence, abuse, exposure to physical and moral hazards and oppression, provide good guidance, care, assistance and maintenance (Emphasis is mine) for the child and assurance of the child’s survival and development. It is therefore the responsibility of both the mother and father of the child to ensure that a child is provided with all the necessities of life. The income of both parties is unknown. However both parties are income earners and liable for the upkeep of the children for the marriage. In making maintenance orders, the court is obliged to consider the financial strength and obligations of the parties. The court taking into consideration the current economic conditions of the country, Respondent paying the education expenses of all three children, maintain Jojo, periodically buying groceries/provisions for the twins, Petitioner being a worker but schooling at the same time accordingly makes maintenance orders in respect of the three children of the marriage as follows; i. Respondent shall bear the educational expenses of all three children of the marriage i.e school fees, school feeding fees, books, uniforms, stationery etc until they complete tertiary or attain majority. ii. Respondent shall bear fully all-medical expenses of the children not covered by any health insurance scheme they may enjoy by virtue of either parties terms of employment. iii. Petitioner shall pay GHC700 for the monthly maintenance of the twins children effective October 2023 to be paid or before the last working day of every month subject to yearly review to be determined by parties or in the absence of parties agreeing not more than 20% increase yearly. CONCLUSION In final determination of this case and the court having decreed the marriage between the parties dissolved, court summarizes the orders made supra as below; i. Custody of the twins Jennifer Baidoo and Jessica Baidoo is granted to Petitioner with reasonable access to Respondent every other weekend, vacations and holidays whilst custody of the first child of the marriage, Jojo is granted to Respondent with reasonable access to Petitioner on other weekends that Respondent does not have access to the twins. ii. To ensure the children grow up knowing each and to foster siblings love and unity, during vacations, the children shall spend half the vacation with Petitioner and the other half with Respondent. iii. Petitioner shall pay at least GHC700 for the monthly maintenance of the twins children effective October 2023 to be paid or before the last working day of every month subject to yearly review to be determined by parties or in the absence of parties agreeing not more than 20% increase yearly. iv. During the vacation periods where all three children shall be with Respondent, Petitioner shall increase the monthly maintenance payable to Respondent for the upkeep of the three children. v. Respondent shall bear the educational expenses of all three children of the marriage i.e school fees, feeding fees, snacks, books, uniforms, stationery, etc until they complete tertiary or attain majority. vi. Respondent shall bear fully all-medical expenses of the children not covered by any health insurance scheme they may enjoy by virtue of either parties terms of employment. vii. There shall be no orders as to cost. PARTIES PRESENT MR FRANCIS ADJEI FOR PETITIONER PRESENT MS BENEDICTA FIAWOO HOLDING THE BRIEF OF MR SIMON OKYERE ESQ FOR RESPONDENT (SGD) H/H AFIA OWUSUAA APPIAH (MRS) CIRCUIT COURT JUDGE 19