DOKENU VRS AKOTO (A6/03/2024) [2023] GHADC 863 (17 November 2023)

IN THE DISTRICT COURT HELD AT BAATSONAA ON FRIDAY THE 17TH NOVEMBER, 2023 BEFORE HER WORSHIP MABEL N. L. AHELE WITH MADAM CLARA SOWAH AND MR. ENOCH BAMPOE-ADDY, SITTING AS PENEL MEMBERS SUIT NO: A6/03/2024 EMELIA DOKENU APPLICANT VRS PATRICK AKOTO RESPONDENT PARTIES: APPLICANT PRESENT RESPONDENT PRESENT NO LEGAL REPRESENTATION JUDGMENT 1. On 15th August, 2023, the Applicant filed an application seeking the following reliefs; i. ii. Custody of Applicant’s 6-year-old son. Accommodation (single room self-contain) iii. Educational reliefs (school fees and other related bills) iv. Medical bills v. Restraining order on Respondent’s family in relation to physical or verbal abuse and harassment on Applicant vi. Maintenance of six hundred Ghana Cedis (GH₡ 600.00) monthly. Respondent in his response filed on 20th September, 2023 opposing to the custody of the child to Applicant stated that, on the accounts or news from neighbours, the Applicant abuses the child whenever she gets angry. Again, the child was staying with him for about three (3) years before Applicant EMELIA DOKENU VS PATRICK AKOTO Page 1 of 10 came for him and therefore should be granted custody of the child. He added that he has another child with his wife and wants the two (2) children to grow together. The Respondent claimed that he has been paying for school and feeding fees and therefore, it was not correct that he has failed to maintain the child. 2. The Facts of the Case The parties were once in an amorous relationship and had a child, a boy, now six (6) years old. The child was, at some time, brought to the Respondent by Applicant to be cared for. The child stayed with Respondent for more than three (3) years before Respondent got employed with the Ghana Police Service, posted to Tamale and had to leave the child under the care of his (Respondent) father or the child’s grandfather. Applicant therefore went to claim the child from Respondent’s father and for the past four (4) months the child has been staying with Applicant. Applicant claims Respondent threatens to take away the child from her and for that reason, has failed to maintain the child for the past four (4) months hence, the application before the tribunal for custody and maintenance of the child. 3. Under the circumstances of the case, an interim order was made for the Respondent to remit GH₡ 300.00 every month towards the maintenance of the child till the final determination of the matter. A further order was made for Respondent to submit to the tribunal a copy of his payslip for verification of his monthly income to aid in the determination of the monthly maintenance of GH₡ 600.00 sought by Applicant. 4. Issues i) ii) whether or not custody should be granted the Applicant. whether or not Respondent maintains the child. EMELIA DOKENU VS PATRICK AKOTO Page 2 of 10 iii) whether or not a restraining order on Respondent’s family in relation to physical or verbal abuse and harassment on Applicant be granted. iv) whether or not Respondent should be made responsible to provide an accommodation to Applicant. 5. Section 2 of the Children’s Act, 1998 (Act 560) provides as follows: 2. Welfare principle (1) The best interest of the child shall be paramount in any matter concerning a child. (2) The best interest of the child shall be the primary consideration by any Court, person, institution or body in any matter concerned with a child. Section 37 of the Children’s Act, 1998 (Act 560) provides that; “the proceedings at a Family Tribunal shall be as informal as possible and shall be by enquiry and not by adversarial procedure.” 6. Fortified by the provisions of the law above and the decision in the English case of RE P(MINORS) (WARDSHIP: CARE AND CONTROL) [1992] 2 FCR 681 where Butler-Sloss LJ stated that ‘in all family cases it is the duty of the Court to listen to the children, ascertain their wishes and feelings, and then make decisions about their future having regard to but not constricted by those wishes”. 7. The panel, before making a determination as to whether or not Applicant is entitled to custody of the child, enquired into the alleged assault complained of by the Respondent. The fundamental principle as far as the issue of proof is concerned in a civil matter is that the party who alleges must prove what he alleges and the standard of proof required is by “preponderance of probabilities” as provided for under Section 12 of the Evidence Act 1975 (NRCD 323). In order to satisfy the requirement, the party who alleges must lead sufficient EMELIA DOKENU VS PATRICK AKOTO Page 3 of 10 evidence which will persuade the Court what he alleges is the truth. The Respondent made an allegation against the Applicant that she abuses the child whenever she gets angry. He however informed the tribunal that the information was given to him by neighbours and as such, could not prove his allegation. In her response to the allegation by the Respondent, Applicant said she disciplines the child whenever necessary by beating the child’s palm. Although, the Respondent could not lead evidence to prove his allegation, the tribunal in its quest to do justice by ensuring the best interest of the child, requested the Applicant to bring the child to be interviewed by the panel to ascertain the veracity of the alleged assault complained of by the Respondent. 8. It is provided for under Section 38 (2) of Act 560 that a child shall have a right to give an account and express an opinion at a family tribunal. Also, Section 11 of Act 560 also provides that; “A person shall not deprive a child capable of forming views of the right to express an opinion, to be listened to and to participate in decisions which affect the child’s well-being, the opinion of the child being given due weight in accordance with the age and maturity of the child”. In accordance with Sections 11 and 38(2) of Act 560 supra, the tribunal, on the return date, asked the child who is 6 years old and attends Crown Jewels Montesori School if he has been abused or beaten by his mother, the Applicant. The child answered by saying that he behaves naughty and sometimes cries whenever her mother refused him money to buy something. When asked specifically if his mother has ever beaten him, this was his reply; “I play and sometimes I am naughty. They use to beat me at my father’s place. And mummy too beats me when I act naughty”. EMELIA DOKENU VS PATRICK AKOTO Page 4 of 10 9. The response of the child may sound as a child who has been coached by some adult but the tribunal’s further engagement with the child on general issues or matters revealed his sense of maturity. The tribunal therefore considered the opinion of the child as being independent and relied on same. It was therefore, the considered opinion of the tribunal that the alleged assault complained of by the Respondent was unfounded. 10. Now to the determination of the issue on custody. Section 45 of Act 560 provides for the consideration of custody as follows; s. 54. Considerations for custody or access (1) 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. (2) Subject to subsection (1) a Family Tribunal shall consider – (a) the age of the child; (b) that it is desirable for a child to be with his parents except if his rights are persistently being abused by his parents; (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; and (f) any other matter that the family Tribunal may consider relevant. The best interest also known as the welfare principle is espoused in the case of BRAUN v. MALLET [1975] 1 GLR 81-95 where it was held inter alia that, in questions of custody it was well-settled that the welfare and happiness of the infant EMELIA DOKENU VS PATRICK AKOTO Page 5 of 10 was the paramount consideration. See also the case of ASEM v. ASEM [1968] GLR 1146 where His Lordship Apaloo JA (as he then was) stated @ 1149 that: “As is well known, the Court is obliged by statute in deciding a question of custody to have regard to the welfare of the infant as its first and paramount consideration.” See also FINK v. COELHO [1999- 2000] 2GLR 166. 11. The Applicant is the mother of the child and until she brought the child to be cared for by the Respondent, lived and had control over the child. The child is currently living with the mother. In pursuance of Sections 11 and 38(2) of Act 560 supra, the child, on the day he appeared before the tribunal, was asked where he would want to stay if he was asked to choose. He replied as follows; “My mother’s place because she gave birth to me”. The panel, having considered the child’s view as an independent one and the need for continuity in the care and control of the child, arrived at a decision to grant custody of the child to his mother, the Applicant. However, the grant is for two (2) years subject to variation based on monitoring and supervision reports by the Probation Officer on the welfare of the child. 13. For the reason that the child’s parents are living separately from each other, and the Tribunal having taken a decision to allow the mother custody of the child, the father who is the Respondent in this case is granted a reasonable access to the child. The Respondent can go for the child with prior notice to the Applicant to spend weekends fortnightly at his home. This will afford the child the right to enjoy the love of both parents and family. 14. On the issue of restraining order against the Respondent’s family in relation to physical or verbal abuse and harassment on Applicant, there was no evidence on record in prove of any physical and verbal abuse. Applicant was unable to give evidence even in support of a physical abuse meted out to her EMELIA DOKENU VS PATRICK AKOTO Page 6 of 10 by the relations of the Respondent. Be that as it may, the substance of the case before the tribunal is maintenance and custody of the child. The welfare principle being our guide, as provided for under Section 2 of Act 560, which in this case the best interest of the child, is what is considered to be paramount. All other interests are secondary. See BRAUN v. MALLET [1975] 1 GLR 81-95. Any matter other than a matter relating to the child’s best interest cannot be entertained by the tribunal. The tribunal is enjoined under Section 35 of Act 560 to entertain issues of parentage, custody, access and maintenance and not any matter such as verbal and physical abuse complained of by the Applicant. Although it can be argued that the best interest of the child shall be construed in its widest sense, thus, the verbal and physical abuse complained of by the Applicant being meted out to her by the Respondent’s relations can have repercussions on the welfare of the child, there is no proof on record or any police report of such occurrence. Physical abuse is a crime and if indeed it occurred, the Applicant ought to have reported to the police for prosecution by the Police. The relief on restraining order against the Respondent relations is denied. 15. On the issue whether or not Respondent maintains the child. It was found that the Respondent currently pays school fees and feeding fees of the child directly to the school. Applicant, upon questioning, confirmed that but added that she does not receive any money from the Respondent for meals for the child when not in school. 16. On the issue of provision of accommodation by the Respondent. It was the decision of the tribunal that because the Applicant is currently in search of employment and therefore not in a financial capacity to contribute towards accommodation, an initial two years arrangement for accommodation should EMELIA DOKENU VS PATRICK AKOTO Page 7 of 10 be made by the Respondent to provide shelter for the child. On expiration of the initial two-year arrangement of accommodation by the Respondent, the Applicant shall contribute 50% towards the rent of future arrangement for accommodation whilst the Respondent contributes the other 50%. 17. Maintenance Section 47 of Act 560 impose obligation on parents or any other person legally liable to maintain a child responsible for necessaries of life, education, health and reasonable shelter for the child. Section 49 of Act 560 further outlines the consideration a Court must bear in mind when making these maintenance orders. 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 persons legally liable to maintain the child, b) an impairment of the earning capacity of the person with 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.” 18. It is on record that the Respondent is paying for the school fees and feeding fees of the child. The Respondent has a stable income from the Ghana Police Service since he was recruited some time ago. He has another child with his wife and therefore burdened with financial responsibility to maintain that child with his wife. And because the Respondent has been paying the school and feeding fees of the child in the instant case, which constitute a substantial EMELIA DOKENU VS PATRICK AKOTO Page 8 of 10 amount of maintenance towards the child, and for the reason that the duties and responsibilities of a parent under Section 6 and 47 of Act 560 are binding on each parent to ensure that the welfare of the child is not deprived, whether or not the parents of the child are married or not at the time of the child's birth; or the parents of the child continue to live together or not, the relief on maintenance of GH₡ 600.00 sought by Applicant is on a higher side and therefore denied. Rather, the Respondent shall pay GH₡ 400.00 every month towards the maintenance of the child. Applicant shall provide other necessaries of life for the child. Education a) The Respondent shall continue to pay the school and feeding fees for the child directly to the school. b) Applicant will provide for the child the school uniforms, school bags, exercise books and other necessaries. Medicals a. The Respondent shall register the child on the National Health Insurance System. b. The Respondent shall pay the child’s medical bills that are not covered by the National Health Insurance Scheme when they fall due. c. The Applicant shall renew the National Health Insurance Card for the child Monitoring and Supervision Applicant will allow a Social Welfare Officer to visit her home to monitor the child’s welfare. Costs: No cost awarded. EMELIA DOKENU VS PATRICK AKOTO Page 9 of 10 (SGD.) H/W MABEL N. L. AHELE (MAGISTRATE) 17/11/2023 (SGD.) (SGD. ) CLARA SOWAH ENOCH BAMPOE-ADDY (PANEL MEMBER) (PANEL MEMBER) EMELIA DOKENU VS PATRICK AKOTO Page 10 of 10