Doris Dovi Mensah Vrs George Kwaku Mensah (C5/35/2022) [2023] GHACC 1068 (27 January 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON FRIDAY, 27TH DAY OF JANUARY 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. SUIT No: C5/35/2020 DORIS DOVI MENSAH PETITIONER Formerly DORIS DOVI ADDOTEY Unnumbered House, Opeikuma, Kasoa H/No. 315/12 Nima, Accra V GEORGE KWAKU MENSAH RESPONDENT Unnumbered House, Pig Farm, Accra JUDGEMENT The Petitioner issued the Petition from the Registry of this Court on the 03-09-19 seeking the following: a. Dissolution of the Ordinance marriage between the parties celebrated on the 6th October 2006. b. Lump sum financial settlement. c. An Order that the Respondent shall maintain the Petitioner with GHC 300 per month and regarding the children with an amount of GHC 600 per month and be responsible for the payment of school fees and major medical bills and order to rent for the Petitioner and the children. d. Custody of the children of the marriage remains with and be with the Petitioner with reasonable access to the Respondent. e. An Order that the Plaintiff is a 50% owner of the landed property at Domeabra, near Kasoa in property settlement. f. Any further orders that this Honourable Court may deem fit. Appearance was filed by Respondent on 20th September 2019 followed by an Answer to the Petition and Cross Petition was filed on the 10th October 2019. The Cross Petition of the Respondent was as follows: a. That the marriage be dissolved between the parties. b. That the Respondent cannot afford the compensation the Petitioner is asking for in her petition taking into consideration the Respondent’s earnings and all the expenses he makes on the upkeep of the children and their school fees and feeding fees. c. That the Petitioner cannot take good care of the children because she has no time for even herself. Sometimes the landlord where she is living calls me and tells the Respondent to come for the children because the Petitioner cannot take care of the children and says that if anything happens to the children, we should not contact him. d. That the land was acquired before the parties got married. e. The Respondent cannot compensate the Petitioner Lumpsum financial settlement as mentioned in the divorce petition because the petitioner is aware that the respondent maintains the children of this marriage and know his earnings. The Petitioner later filed a Reply and Answer to the Cross Petition and joins issues with the Respondent generally. The Petitioner also in her Reply and Answer to the Cross Petition made the point that the Respondent has a permanent motorcycle which he uses as his means of transport. The Petitioner in her reply and answer to the cross petition stated that parties acquired land during the pendency of the marriage, and they have put up the building thereon during the pendency of the marriage. The Petition was set down for trial and parties were ordered to file their witness statement as required by the law in addition to pretrial check list. Case Management was later conducted, and the case afterwards was ripped for hearing. The parties got married under customary law on the 30th day of September 2006 and converted same into ordinance marriage on the same day at the offices of the Accra Metropolitan Assembly, Accra. Parties resided at Abelenkpe and there had (3) children. During the hearing of the petition, the parties spoke for themselves. The Petitioner in addition called one witness to testify before the court to support her case and the Respondent called two witnesses to also testify to support his case before the court. It became clear from the testimonies that the marriage has broken down beyond reconciliation. The Petitioner petitioned for the dissolution of the marriage and the Respondent also cross petitioned for the dissolution of the marriage. This means that parties who have not lived together all these years, now agree to the dissolution of the marriage they contracted. The Respondent actually said in his witness statement that the marriage has broken down beyond repair and pray the court to grant the divorce for peace to prevail and this means both parties agree to the dissolution of the marriage between the parties. Therefore, the court finds that the marriage between the parties has broken down beyond reconciliation and hence the marriage contracted by the parties at the Accra Metropolitan Assembly, Accra is hereby dissolved in favour of the Petitioner. CUSTODY The Petitioner in her relief before the Court, relief (d) Custody of the Children of the marriage remains with and be granted to the Petitioner with reasonable access to the Respondent. The Respondent however in his cross petition just stated that the Petitioner cannot take good care of the children. The children of the marriage are Joseph Kwabla Mensah (14 years), Christopher Elikplim Mensah (10 years) and Sheilamight Mensah (6 years). From the pleadings and the proceedings before the court, both parties are seeking custody of the children. At the time of issuing the petition all the three children were with the petitioner and hence the relief d of the petitioner as stated supra. Again, it is on record that during the lifetime of the case in this Court, the Respondent made an effort to take the first issue of the marriage from the Petitioner, which led to an application being brought before the court for the necessary orders to be made for the child to go back to the Petitioner. Now with both parties seeking custody of the children the court will have to make a determination of same. One of the Laws that governs child custody is Article 28 (1) (c) of the 1992, Constitution which enjoins parents to discharge their obligations towards their children in accordance with law in so doing the interest of the child shall be paramount and it states: (c ) Parents undertake their natural right and obligation of care, maintenance and up bringing of their children in cooperation in such institutions as Parliament may by law, prescribe in such manner that in all cases the interest of the children are paramount”. The interest of the children being paramount also finds expression in the following sections of The Children’s Act 1998, Act 560. Section 2 Welfare principle (1) The best interest of the child shall be paramount in a matter concerning a child. (2) The best interest of the child shall be the primary consideration by a Court, person, an institution or any other body in a matter concerned with a child. Also, The Children’s Act 1998, Act 560 state further: 45. 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 the mother when making an order for custody or access. (2) In addition to subsection (1), a family tribunal shall consider (a) the age of the child, (b) that it is preferable for a child to be with the parents except where the rights of the child are persistently being abused by the 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. Per the legislation cited above the Court has to consider the best interest of the child in granting custody. The issues of the marriage have been with the Petitioner as the mother since the respondent left the matrimonial home. All the children have been living together as siblings in the same environment. It is also in the interest of the children that they live together to enhance their total development as siblings. The children are all still minors per their ages. The Respondent stated in paragraph 12 of his witness statement, “That I only need the custody of the children to enable me give them good education and sound mind for them to grow devoid of marital quarrel”. I cannot grant the request of the Respondent as granting the request of the Respondent will lead to an abrupt change of environment of the children which will destabilize the children and will not augur well for their development and again will not be in their interest. The case of Happee v Happee and Another (1974) 2 GLR 186, the court held that, “In deciding which of the two parents should have the custody of their child the paramount consideration is the child’s own welfare. All other considerations are subsidiary”. See Re C. (A) (an Infant); C. v. C. (1970) 1 All ER 309 @ p 313, CA, I agree with Counsel for the Petitioner on the authorities she cited with respect to Child custody. Again Sarkodie J also in the case of Opoku-Owusu v Opoku-Owusu (1973) 2 GLR 349 @ p354 said and, “…I think it is desirable to keep brothers and sisters together and not to split them up. A separation will disturb their progress and may affect them emotionally.” I am therefore of the humble opinion that looking at the work schedule of the Respondent and his movement, and the fact that the children are minors, the Petitioner who has been taking care of all the children all this while is better place to continue taking care of them to ensure they live together as siblings for their progress and development. The custody of the 3 children will therefore be granted to the Petitioner and the Respondent will be granted reasonable access to the children. ANCILLARY RELIEFS The Petitioner issuing the Petition had as part of the reliefs praying for an order that she is entitled to a 50% ownership of the landed property house at Domeabra, near Kasoa in property settlement. The Petitioner in paragraph 12 of his witness statement stated, “12. That during the pendency of the marriage, the parties had built a one-bedroom self- contained house on the two plots of land we acquired situate at Domeabra near Kasoa. That I have contributed significantly towards the building of the said house.” However, the Respondent in his answer denied same and said in paragraph 17 of his answer that he acquired the land long before they got married. The respondent said he acquired the land in 2003 and they got married in 2006. The Respondent went further to state that the land is situate at Amanfrom and not Domeabra as Petitioner is claiming and said even there is litigation on the land. During the trial the Petitioner testifying before the court repeated his averment as it is in her petition and did not lead any concrete evidence to establish her claim. See: Zabrama v Segbedzi (1991) 2 GLR 221, Majolagbe v Larbi and Ors (1959) GLR 190. The Petitioner then depart from her pleadings in the petition and now agrees that the land is at Amanfrom and says that it is not true that the Respondent acquired the land before marriage. This is a clear departure by the Petitioner. An allegation of fact, not pleaded but admitted in evidence, which is inconsistent with, and is a departure from the averment made by the plaintiff in his statement of claim, is not entitled to favourable consideration. See Marfo and others v Adusei (1963) 1 GLR 225 (SC) A party cannot at the trial set up a case inconsistent with his pleadings. See: Yungdong Industries v RoRo Services (2005-2006) SCGLR 816, Mahama v Issa (2001-2002) 1 GLR 94 and Adom v Marfo (2012) 38 MLRG 68. This situation of the Petitioner’s case in proving her claim with respect to a landed property got Counsel challenged in her discussion as she was discussing a topic on a landed property at Domeabra, near Kasoa but in the body of the submission, counsel was referring to parties acquiring a parcel of land at Amanfrom. Counsel further made very excellent submission with respect to matrimonial property settlement with very current and useful authorities and I agree with her with respect to the position of the law. However, my finding of fact is that the Petitioner did not prove even the existence of this property and there was little effort to establish this claim to this property. It is only paragraph 23 and 24 of his witness statement that she led some scintilla of evidence which was with a property in Amanfrom, and this was because the Respondent said so. Petitioner went further to say that Respondent has refused to make a copy of the land document available. Petitioner called a witness, and this witness also did not give any evidence with respect to this landed property. It is clear that the claim of the Petitioner with respect to this is not proven. This is important as the Respondent denied the claim of the Petitioner in his Answer and his testimony before the court. The Respondent also called a witness, Lucas Mensah, before the court and in paragraph 7 of his witness statement this is what he said: 7. The parties have no landed property at Amanfrom and the allegation by the Petitioner that the parties have a two-bedroom house at Amanfrom is borne out of a figment of her imagination. The position of the law is that when the Respondent has flatly denied the claim and has called witnesses to corroborate his position, the Petitioner is supposed to prove her case and not just to enter the witness box and recite her pleadings. In conclusion the marriage of the parties is dissolved in favour of the Petitioner as same is broken down beyond reconciliation. Custody of the three children is granted to the Petitioner with reasonable access to the Respondent. The Respondent is to pay GHC 1000 monthly as maintenance of the three children to the Petitioner starting from the end of February 2023, with 20% annual increase, and pay for the education of the children. Parties are to share in taking care of the children by way of their health. The Respondent is to pay a lump sum of GHC 20,000 to the Petitioner as financial settlement. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 9