AYINE VRS ABAGNA & ANOTHER (UE/BO/DC/A7/01/2019) [2025] GHACA 3 (30 January 2025)

*HWMNJ@DCFT/BO-30/01/2025* IN THE FAMILY TRIBUNAL/COURT, HELD AT BONGO IN THE UPPER EAST REGION OF GHANA, ON THURSDAY, THE 30TH DAY OF JANUARY, 2025. CORAM: H/W MAWUKOENYA NUTEKPOR (CHAIRPERSON) MR. PIUS NGAARA (PANEL MEMBER) MR. JOHN AZAM (PANEL MEMBER) SUIT NO. UE/BO/DC/A7/01/2019 NYAABA AYINE PLAINTIFF OF NYAABA'S HOUSE, NEAR AKAKIYIA'S MARKET, YOROGO VRS. 1. ELIZABETH ANARA ABAGNA (DECEASED) ABAGNA’S HOUSE, BONGO, SOE 2. MBA ATINTONBIISIGO DEFENDANTS AKAYOO'S HOUSE, AKAANABA, BONGO DISTRICT TIME: 09:42AM PLAINTIFF PRESENT 2ND DEFENDANT PRESENT NO LEGAL REPRESENTATION FOR THE PLAINTIFF RICHARD ADAZABRA, ESQ. FOR THE DEFENDANTS ABSENT JUDGMENT Introduction *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 1 of 14 *HWMNJ@DCFT/BO-30/01/2025* 1. This is a unanimous decision of this court concerning the custody of the children in issue. The Plaintiff commenced this action on the 12th day of October, 2018 and claims against the 1st Defendant for the following reliefs: (a) An Order of this Tribunal for full custody of the three children, all born on the 14th March 2013, namely: Josephine Ayinpogbila Ayine, Jacob Atimbila Ayine and Joseph Atinga Ayine. (b) An Order of this Tribunal perpetually restraining the 1st defendant, her parents, her husband or anybody claiming through or for her from ever interfering with the lawful custody and upkeep of the said three children without the knowledge and consent of the Plaintiff. (c) Any other Order as this Tribunal may deem fit. 2. The delay in the determination of this matter is due to some antecedents such as unavailability of panel members, failure of the defendants and their lawyer to appear in court most of the times, the death of one of the 1st defendant herein, among others. Besides, this matter was presided over by two (2) different Magistrates at various times in the past from October 2018 to August 2023. The chairperson of this tribunal is the 3rd Magistrate to preside over this case. There is a saying that everything that has a beginning has an ending. Indeed, the Holy Bible says in Ecclesiastes 3:1 (NIV) that “There is a time for everything, and a season for every activity under the heavens.” The journey by Plaintiff to seek justice or redress before this court which started more than six (6) years ago has come to an end today. *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 2 of 14 *HWMNJ@DCFT/BO-30/01/2025* 3. The chairman of this Family Tribunal started additional responsibilities in this court in October 2023. It is worthy of note that after several adjournments of this case for adoption of proceedings, the proceedings were finally adopted on 18th July 2024. The trial therefore proceeds from where the previous Magistrate reached. It must be stated that the lawyer for defendants was aware of the date but he did not come to court. 2nd Defendant himself and his lawful Attorney were however in court. 4. Counsel for defendants failed to appear in court most of the sitting days. This was done neither with any reasonable explanation or excuse nor arrange for a colleague lawyer to represent him and the court had to proceed with the case in accordance with the following authorities. Regulation 98 of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I 2423) provides that: “A lawyer commits professional misconduct if without reasonable excuse, the lawyer does not (a) personally attend court proceedings in relation to a matter; or (b) arrange for another lawyer or a representative of the firm of that lawyer or an agent of that lawyer to be present throughout in the court proceedings in relation to a matter in which that lawyer is acting.” Also, section 8 of the Practice Direction (Effective Case Completion Planning Strategies) 2019 [2017-2020] 1 SCGLR 422 states that: “Where for any reason Counsel cannot attend trial on any day in the Trial Period, arrangement should be made for another colleague Lawyer to attend the trial on their behalf. In the absence of Counsel or any *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 3 of 14 *HWMNJ@DCFT/BO-30/01/2025* arrangements for alternative representation, the Parties concerned shall be required to conduct their own cross-examination.” 5. There is interlocutory appeal in respect of a ruling of this court dated 5th September 2024 dismissing 2nd Defendant’s application to amend his defence which was filed more than 5 years prior to the delivery of the said ruling. Even though it is not the duty of this court to determine the interlocutory appeal filed, it is worth stating that the said appeal was filed without leave of this court. An Interlocutory Appeal from the District Court to the High Court requires leave of the District Court. See section 21 of the Courts Act, 1993 (Act 459) as amended by Act 620 and order 51 rule 3 (2) of C.1. 47. Whether or not the interlocutory appeal is properly before the High Court is a question we would leave for the High Court to determine. Besides, filing of a notice of Appeal does not automatically stay proceedings in this court. If the learned counsel for defendants was minded for the proceedings to be stayed pending the determination of the interlocutory appeal, he would have done the needful. In the absence of any order staying the proceedings in this case, the court proceeded in the best interest of the children in issue to finally determine this case which started in this court on 12th October, 2018, more than six (6) years ago. Brief Facts of Plaintiff’s Case 6. Plaintiff says he met 1st defendant in 2011 at Bongo and they entered into an amorous relationship with the intention to get married. Plaintiff says 1st defendant did not inform him that she was married to the 2nd defendant and already had three children with him. Plaintiff says that he and 1st defendant *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 4 of 14 *HWMNJ@DCFT/BO-30/01/2025* agreed to marry each other and guided by the 1st defendant, the plaintiff notified the 1st defendant’s parents that he wanted to marry their daughter and therefore commenced the necessary customary steps to get the marriage rites performed. Plaintiff says for reasons unknown to him, 1st defendant’s parents gave varied excuses including the absence of senior members of 1st defendant’s family to attend to perform the Frafra traditional marriage between the parties. 7. Plaintiff says that in the course of their relationship, 1st defendant became pregnant and gave birth to the children or the triplets in issue on 14th March 2013, namely: Josephine Ayinpogbila Ayine, Jacob Atimbila Ayine, and Joseph Atinga Ayine (all now aged 11 years ten (10) months). Plaintiff says he caused the 1st defendant to be trained in Yorogo to brew local pito by the plaintiff’s senior auntie, a trade she practiced until she left the plaintiff‘s house in Yorogo. The plaintiff says he enrolled the three kids into the Yorogo Day Nursery in 2016 where they started attending school at the expense of the plaintiff. Plaintiff says he took care of the 1st defendant as well as the children at all material times. 8. Plaintiff says that they were living together as husband and wife peacefully till 3rd July 2018 when 1st defendant without any provocation took the children away to the 2nd defendant’s place in the Eastern Region. It is the plaintiff’s case that as the biological father of the children, he can take care of them by providing accommodation, feeding, paying their school fees among others than the defendants. Plaintiff says all efforts to get custody of her children proved unsuccessful. Hence, the commencement of this case. *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 5 of 14 *HWMNJ@DCFT/BO-30/01/2025* Brief Facts of the 1st Defendant’s Case 9. 1st defendant (now deceased) denied Plaintiff’s case and says that when she met plaintiff she informed him that she was married to the 2nd defendant and had three children with him. 1st Defendant says she informed Plaintiff that due to a misunderstanding between her and 2nd defendant, they got separated and that she would go back to her husband. 1st Defendant says that it was during the period of separation that she met the Plaintiff in 2011 at Bongo. It is the 1st defendant’s case that even though the Plaintiff was the one who impregnated her, the children belong to the 2nd defendant as per Frafra custom and tradition. It is also the 1st Defendant case that the Plaintiff did not take care of the children and she was begging people and doing menial jobs to feed the children. It is the 1st Defendant’s case that the Defendant’s three (3) children, upon their return to their proper home from plaintiff’s place to the 2nd defendant’s home, the three children now bear the names of their father, 2nd Defendant as follows: Josephine Awinpoka Mba, Jacob Atinbila Mba and Joseph Atinga Mba. Brief Facts of the 2nd Defendant’s Case 10. 2nd defendant says that 1st defendant was married to him in 1999 and they had three children while living at Àsuom in the Eastern Region of Ghana. The 2nd defendant says that there was a misunderstanding between them and they got separated and 1st defendant came back to Bongo. 2nd Defendant says that he quickly left Asuom and came up home to take 1st defendant back with him but 1st Defendant asked for more time to organize herself and come back to him. 11. 2nd defendant says he later got to know that his wife, 1st defendant entered into a relationship with the Plaintiff leading to the birth of the children in issue. 2nd *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 6 of 14 *HWMNJ@DCFT/BO-30/01/2025* defendant says that since the 1st defendant was married to him before she met Plaintiff and gave birth to the children, the children belong to him under Frafra custom and tradition. It is the 2nd defendant’s case that when the 1st defendant came back with the three children, he and 1st defendant have been taking care of them and enrolled them in a school till 1st defendant passed away. Evaluation of Evidence and Analysis of the Issues 12. The issue for determination is whether or not the Plaintiff or 2nd Defendant should be granted custody of the children in issue. Before we proceed to deal with this issue, it bears reminding that regarding issues concerning children, the Court must seek solely what is in the paramount interest of the child. Section 2 of the Children’s Act, 1998 (Act 560) provides that: [t]he best interest of the child shall be paramount in any matter concerning a child. The best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child. Section 2 of the Children’s Act is based on Article 3(1) of the Convention on the Rights of the Child (adopted by the General Assembly Resolution 44/25 of 20th November, 1989 and entry into force on 2nd September 1990) which provides that, [i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 13. Also, section 5 of the children’s Act 1998 (Act 560) on Right to Grow up with Parents, provides that: *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 7 of 14 *HWMNJ@DCFT/BO-30/01/2025* “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 subject the child to serious abuse; or not be in the best interest of the child.” 14. The United Nations Committee on the Rights of the Child in its General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) elucidates the concept which is said to be three-fold: Firstly, it is considered a substantive right in the sense that the child has a right “to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.” Secondly, it is considered as “[a] fundamental, interpretative legal principle” in the sense that “[i]f a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen;” and thirdly, it is “[a] rule of procedure” such that “[w]henever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 8 of 14 *HWMNJ@DCFT/BO-30/01/2025* justification of a decision must show that the right has been explicitly taken into account.” 15. Being guided by the authorities above, the question for the panel is whether it would be in the best interest of the children to grant custody of the children to the Plaintiff or 2nd Defendant. To resolve this issue, the panel is mandated by section 45 Children’s Act, 1998 (Act 560), to—as a matter of paramount importance—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. To achieve this end the panel is mandated to also consider – “(a) the age of the child; (b) that it is preferable 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.” 16. In the instant case, the plaintiff testified himself and called one witness. The 1st Defendant also gave evidence long before her demise. The 2nd defendant testified through his lawful Attorney, Baba Akolbire. The 2nd defendant however revoked the appointment of Baba Akolbire as per Revocation of Power of Attorney dated 05/09/2024, after the lawful Attorney testified on 18/07/2024. Hence, the revocation of the Power of Attorney on 05/09/2024 does not affect the evidence given by the Attorney on 18/07/2024. 2nd defendant witness-Asolpiiro Atintonbiisigo could not testify because 2nd defendant failed to bring him to court despite several adjournments for that purpose. However, the court has examined the witness statement of the witness filed on 15/02/2024 and the court is of the *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 9 of 14 *HWMNJ@DCFT/BO-30/01/2025* view that the evidence of that witness will not change the decision of this court stated hereunder even if he had come to court to testify. 17. After the demise of 1st defendant, the lawyer for defendants informed the court that 1st defendant will not be substituted but the 2nd defendant will pursue the case. It must be stated that the death of the 1st defendant, the biological mother of the children should have brought this matter to an end. But the 2nd defendant claims he was married to the 1st Defendant before she had an affair with the plaintiff and gave birth to the children in issue. It is the 2nd Defendant’s case that according to Frafra custom if a married woman gives birth to a child outside her marriage that child is presumed to be the child of the woman’s husband. Hence, as the 1st defendant was married to him at the time, he is the father of the children under Frafra custom and tradition; and therefore entitled to be granted custody of the children or be paid compensation for taking care of the children. 18. From the evidence, the court found as a fact as follows that: the 2nd Defendant is not the biological father of the children but the alleged husband of the 1st Defendant (deceased) whiles plaintiff is the biological father of the children in issue.; the 1st Defendant was with the Plaintiff were in an amorous relationship or lived as husband and wife from 2011 to July 2018, which is more than six (6) years; the 1st defendant gave birth to the children or triplets in March 2013 and they were living together till July 2018 when 1st defendant took the children away to 2nd Defendant’s place in Asuom near Kade in the Eastern Region of Ghana without the knowledge and consent of Plaintiff. *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 10 of 14 *HWMNJ@DCFT/BO-30/01/2025* 19. A question to ask is how can a married woman (1st Defendant) leave her husband (2nd Defendant) for more than six(6) years to stay with a man (plaintiff) and have children; and turns to say the children belong to her husband (2nd Defendant) under Frafra customs and tradition? The simple answer to this question is that even though Frafra speaking people are holding unto the custom that if a married woman gives birth to a child outside marriage that child is presumed to be the child of the woman’s husband as an esteemed cultural practice, upholding this custom will open the floodgates to married women to leave their husbands to stay with other men for considerable period of time and give birth to children and claim the children belong to their husband. This court is of the view that this custom is repugnant to natural justice, equity and good conscience. This is because the custom promotes sexual promiscuity or adultery in the society which is highly unacceptable. The custom can also lead to chaos in the society and a court of law cannot condone it. 20. Besides, this custom does not recognize the biological father as a father of the child in issue. This court will also be denying the children in issue their welfare if the custom referred to supra is upheld. Indeed, section 6(1) of the Children’s Act, 1998, (Act 560) provides that “No parent shall deprive a child his welfare whether—(a) the parents of the child are married or not at the time of the child's birth; or (b) the parents of the child continue to live together or not.” Moreover, other rights of the children in issue will be denied if that custom is upheld. Some of these rights are: right to grow with their natural parents, right to parental duty and responsibility, right to parental property (inheritance rights or property rights), among others. See sections 5, 6 and 7 of the Children’s Act, 1998, (Act 560). *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 11 of 14 *HWMNJ@DCFT/BO-30/01/2025* 21. There is evidence on record that shows the plaintiff has made several efforts to have custody of his children since July 2018 but all efforts prove futile. Accordingly, this court is of the view that even if the 2nd defendant spent any money in taking care of the children in issue, he did it at his own expense and he is not entitled to any compensation. In any case, the children were living with their biological mother and 2nd defendant knew he is not the biological father of the children. 22. For the forgoing reasons, this court holds that since the mother of the children in issue is deceased, Plaintiff as the biological father of the said children is in the best position to take care of the children better than anybody else. Plaintiff is hereby granted custody of the children in issue. 23. Finally, the evidence suggests that all efforts made by plaintiff to marry 1st Defendant customarily proved unsuccessful even though they lived as husband and wife or were in an amorous relationship for more than six (6) years. Accordingly, even though the plaintiff is the biological father of the children, he is hereby directed to perform the necessary customary rites under Frafra custom or tradition as may be demanded by 1st defendant's family to seal his fatherhood or paternity of the children customarily. Conclusion 24. Having examined the whole evidence adduced at the trial in accordance with above-mentioned authorities as well as in the full consideration of the welfare of the children in issue, we have decided as follows: *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 12 of 14 *HWMNJ@DCFT/BO-30/01/2025* a. That the application for custody of the children in issue by the Plaintiff is hereby granted. Thus, we hereby grant custody of the children in issue to the Plaintiff, namely: Josephine Ayinpogbila Ayine, Jacob Atimbila Ayine and Joseph Atinga Ayine. This is to ensure compliance with the dictates of section 5 of the Children’s Act, 1998 (Act 560) which grants children the right to grow with their natural parents. The Plaintiff shall enroll the children in one of the best schools in Ghana or elsewhere and take care of the children very well. b. That even though the plaintiff is the biological father of the children, he is hereby directed to perform the necessary customary rites under Frafra custom or tradition as may be demanded by the 1st Defendant's family to seal his fatherhood or paternity of the children customarily. c. The 2nd Defendant or anybody claiming through him is perpetually restrained from interfering with the plaintiff’s lawful custody and upkeep of the said three children as well as from holding himself as the father of the children under Frafra custom and tradition. d. There will be no order as to costs or compensation. (SGD.) H/W MAWUKOENYA NUTEKPOR (CHAIRPERSON) (SGD.) MR. PIUS NGAARA (PANEL MEMBER) (SGD.) *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 13 of 14 *HWMNJ@DCFT/BO-30/01/2025* MR. JOHN AZAM (PANEL MEMBER) *JUDGMENT-NYAABA AYINE VRS. E. ANARA ABAGNA & ANOR (SUIT NO. A7/01/2019)* Page 14 of 14