Owulah v Ashongmang Estate and Another (C5/208/2024) [2025] GHACC 99 (11 April 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON FRIDAY THE 11TH DAY OF APRIL, 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.), CIRCUIT COURT JUDGE SUIT NO: C5/208/2024 ESTHER ABRIBEH OWULAH … PETITIONER ASHONGMANG ESTATE ACCRA VRS RICHARD OFOASI … RESPONDENT ALAIS EMMANUEL TEYE ADJAOTTOR GERMANY JUDGMENT INTRODUCTION The parties were married under the Marriage Ordinance on the 7th May, 2016 at the Ada East District of Greater Accra at Big Ada. Whilst the petitioner a teacher is domiciled in Ghana, the respondent is domiciled in Germany. There is one (1) issue of the marriage namely Emmanuella Nkunim Lani Adjaottor, 5 years of age. On the 26th February, 2024 the petitioner filed a petition for divorce and averred that her marriage has broken down beyond reconciliation and prayed the court for the following reliefs: “WHEREFORE the Petitioner prays the honourable court for: i) An order for the dissolution of the marriage contracted between the parties as the marriage has broken down beyond reconciliation. 1 ii) Custody of the issue of the marriage with temporary supervised access to the Respondent. iii) An order for the Respondent to pay an amount of Two Thousand Ghana cedis (GH¢2,000.00) every month for the maintenance of the issue herein monthly, subject to a 20% upward increment yearly. iv) An order for the Respondent to pay for the medical bills and all educational expenses of the issue as and when it falls due. v) An order for the Respondent to provide suitable accommodation for the Petitioner and the issue of the marriage. vi) Any other order(s) this Honourable Court may deem fit.” Since this is a matrimonial cause, it is the direct provisions of the Matrimonial Causes Act, 1971 (Act 367) which should apply. Section 2 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides that: “On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into facts alleged by the petitioner and the respondent.” The facts relied on by the parties must therefore be pleaded and placed before the court; otherwise, the court cannot perform its statutory duties under the above section of this Act. The particulars set out in detail the facts relied on by the petitioner and the respondent to establish the allegation that their marriage has broken down beyond reconciliation. The relevant particulars of the petitioner’s Petition are as follows: PARTICULARS OF UNREASONABLE BEHAVIOUR “i. Petitioner says that before the marriage between her and the Respondent, he told her that they would both travel to Italy where the Respondent was residing then but this did not happen. 2 ii. Petitioner says that after a while she asked the Respondent about the travel to Italy but all he said was if she should join him in Italy Petitioner would be a stay home wife (housewife) since there are no jobs for females. iii. Petitioner says she then told Respondent that she could not travel to Italy and be a housewife because even in Ghana she works as the Respondent does not give her any money for her upkeep. iv. Further to the above, Petitioner says that Respondent told her that if she was fed up with the marriage, she could return the drinks back to the Respondent’s family. v. Petitioner says that when Respondent later relocated to Germany he said that maybe in Germany if the Petitioner joined him she may find work to do which Petitioner agreed to. vi. Petitioner says that anytime she asked Respondent when she would be joining him in Germany, he gave excuses and added that he would have to rent a place for the Petitioner and the issue of the marriage when they join him. vii. Further to the above Petitioner says that she told Respondent that she and the issue of the marriage could not live apart from the Respondent and if that be the case they would no longer join him in Germany. viii. Petitioner says that she then reported the matter to her father who in turn informed the Respondent’s family. A meeting was arranged and the Respondent was called on phone where he was asked if he told the Petitioner that they would not stay as a family should the Petitioner and the issue join him in Germany. ix. Further to the above, Respondent answered in the affirmative and added that where he was staying in Germany married couples did not live together. x. Petitioner says that during the meeting the family asked Respondent if he also said that if the Petitioner was fed up with the marriage she could return the drinks to his 3 family and again Respondent answered in the affirmative. He further said he would come and collect the drinks himself anytime he came to Ghana on a visit. xi. Petitioner says that somewhere in 2021, the Respondent visited Ghana and visited Petitioner’s father. Respondent then informed the Petitioner’s father that he would come with his family to apologize to Petitioner’s family before leaving Ghana but Respondent never came. xii. Further to the above, Petitioner says that before Respondent travelled back to Germany he brought his nephew to stay with Petitioner so she was taking care of her together with the issue of the marriage. xiv. Petitioner says that the money Respondent was remitting to them was not enough for their upkeep so she asked Respondent to increase same but rather asked Petitioner to send him a breakdown of how she uses or spends her salary. xiv. Petitioner says that after several months of silence she decided to send to Respondent the breakdown of how she uses her salary, then she will never call him on phone to ask for anything. xv. Petitioner says that after several months of silence she decided to send the Respondent the breakdown of how she uses her salary. When Respondent saw that she pays tithe, gives pocket money to her nephew he told her that he will no longer pay for her rent when it was due. xvi. Petitioner says that when the rent was due she asked the Respondent for the said rent but he refused and added that she should return the marriage drinks to his family because he was no longer interested in the marriage. xvii. Petitioner says that at one time her brothers spoke to the Respondent and suggested to him that he should get a small car for her and the issue to transport them to work and 4 school after which the car could be used as a taxi which would bring in some income which Respondent agreed to. xviii. Further to the above Respondent asked Petitioner to go in for a loan so that he would top it up to purchase the said car. Petitioner says that after securing the said Loan Respondent asked her to lend him Three Thousand Ghana cedis (GH¢3,000.00) out of the loan to disburse to a list of persons he sent to her and she sent the money to them. xix. Petitioner says that after this anytime she asked the Respondent for money for their upkeep he would ask her to take money out of the said loan but since she was depleting the loan she decided not to touch it. xx. Further to the above Petitioner avers that she asked Respondent to reimburse her of the money he borrowed from the said loan and also send his part of the contribution to purchase the car as agreed earlier but he refused. xxi. Petitioner says that Respondent asked her to send the remaining of the said loan to him to give to his friend in Italy to rent an apartment but she refused. xxii. Further to the above, Respondent again requested for Petitioner’s SSNIT card to use to guarantee something for his brother in U.S A and because she refused Respondent stopped picking up Petitioner’s calls. Respondent later sent her a message that he would only call when the need arose. xxiii Petitioner says that after this the Respondent only sends money for the upkeep of the issue of the marriage but no accommodation for them. xxiv. Petitioner says that there was a long silence for about 2 years so her church Pastor stepped in to try and reconcile both Petitioner and Respondent. When the said Pastor communicated with Respondent he told the Pastor that he had instructed his family to get the drinks ready since Respondent was no longer interested in the marriage. 5 xxvi. Petitioner’s father then informed the family members so they got drinks ready and Respondent’s family came to collect the drinks somewhere in March 2023. xxvii. Petitioner says that as it stands now the marriage between the parties is customarily dissolved, they have not lived as husband and wife for about 3 years, communication between the parties has completely halted and no sexual intimacy of any sort between them for about 3 years.” In this case, the respondent though duly served with the petitioner’s Petition, together with setting down cause for trial, the petitioner’s witness statement and hearing notices of which services were duly proved, did not enter appearance or file his Answer to the petitioner’s Petition. Neither did he appear in court to either give evidence or cross-examine the petitioner. He is therefore deemed to have waived his right to be heard, although there is an authority to the effect that the right to be heard is an established common law principle, it is a right which should not be taken away unless the rules of court permit it to be so. See: Repubilc vrs High Court Exparte Salloum and Others (2012) 37 MLRG 34 SC. SUMMARY OF EVIDENCE BY THE PETITIONER The petitioner testified on oath but did not call any witness. In several decided cases, the superior courts have held that there are situations where the testimony of a single witness will suffice to prove a case. In the case of Kru vrs Saoud Bros & Sons (1975) 1 GLR 46, the Court of Appeal held: “Judicial decisions depend on the intelligence and credit and not the multiplicity of witnesses produced at the trial.” 6 Also, in the case of Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR, the Supreme Court held affirming the position of the law that: “(a) A tribunal of facts can decide an issue on the evidence of one party. A bare assertion on oath by a single witness might in the proper circumstance of a case be enough to form the basis of a judicial interpretation. The essential thing is that the witness is credible by the standard set in section 80 (2) of the Evidence Act, 1975.” Again, in the case of Ghana Ports and Harbours Authority vrs Captain Zavi & Nova Complex Ltd (2007-2008) SCGLR 806 the Supreme Court held thus: “It is true that witnesses are weighed but not counted and that a whole host of witnesses are not needed to prove a particular point.” THE PETITIONER’S CASE The petitioner testified that she got married to the respondent on the 7th May, 2016 at the Church of Pentecost Big Ada Central in the Greater Accra Region and they were issued with a marriage certificate which she tendered in evidence as exhibit “’A”. After the marriage, they cohabited at Big Ada in the Greater Accra Region and the respondent went back to Italy. They have one (1) issue of the marriage namely Emmanuella Nkunim Lani Adjaottor, 5 years of age. It is the evidence of the petitioner that before getting married to the respondent, the respondent told her that they would both travel to Italy where he ordinarily resides but he reneged on his promise with excuses that if she should join him in Italy she would be a stay home wife (housewife) since there are no jobs for females which she disagreed with. It is further the evidence of the petitioner that when the respondent later relocated to Germany he told her that she might get work to do if she joined him in Germany which she agreed to however, anytime she asked the 7 respondent when she would be joining him in Germany, he gave excuses and added that he would have to rent a place for her and the issue of the marriage when they join him and she also told him that she and the issue of the marriage could not live apart from him and if that be the case, they would no longer join him in Germany. According to the petitioner, she reported the matter to her father who in turn informed the respondent’s family. A meeting was arranged and the respondent was called on phone where he was asked if he told her that they would not stay together as a family should she and the issue join him in Germany and the respondent answered in the affirmative and added that where he was staying in Germany married couples did not live together. The petitioner continued that during the meeting , her family asked the respondent if he also said that if she was fed up with the marriage she could return the drinks to his family and again respondent answered in the affirmative and further stated that he would come and collect the drinks himself anytime he came to Ghana on a visit. The petitioner stated that somewhere in 2021, the respondent visited Ghana and visited her father and then informed her father that he would come with his family to apologize to her family before leaving Ghana but he failed to do so. It is also the evidence of the petitioner that before the respondent travelled back to Germany, he brought his nephew to stay with her so she was taking care of her together with the issue of the marriage but the money the respondent was remitting to them was not enough for their upkeep so she asked the respondent to increase same but the respondent rather asked her to send him a breakdown of how she uses or spends her salary and after several months of silence, she decided to send to the respondent the breakdown of how she uses her salary. The petitioner continued that after several months of silence she decided to send the respondent the breakdown of how she uses her salary and when the respondent saw that she pays tithe and gives pocket money to her nephew, he told her that he will no longer pay for her rent when it was due. When the rent was due she asked 8 the respondent for money to pay her rent but he refused and stated that she should return the marriage drinks to his family because he was no longer interested in the marriage. According to the petitioner, at one time, her brothers spoke to the respondent and suggested to him that he should get a small car for her and the issue of the marriage to transport them to work and school after which the car could be used as a taxi which would bring in some income which respondent agreed to and asked the petitioner to go in for a loan so that he would top it up to purchase the said car. She continued that after securing the said loan, the respondent asked her to lend him Three Thousand Ghana cedis (GH¢3,000.00) out of the loan to disburse to a list of persons he sent to her and she sent the money to them. The petitioner stated further that after this, anytime she asked the respondent for money for their upkeep he would ask her to take money out of the said loan but since she was depleting the loan she decided not to touch it. She asked the respondent to reimburse her of the money he borrowed from the said loan and also send his part of the contribution to purchase the car as agreed earlier but he refused. The respondent asked her to send the remaining of the said loan to him to give to his friend in Italy to rent an apartment but she refused. The respondent again requested for her SSNIT card to use to guarantee something for his brother in United States of America and because she refused, the respondent stopped picking up her calls and later sent her a message that he would only call when the need arose. After this, the respondent only sent money for the upkeep of the issue of the marriage without money for accommodation. There was a long silence for about 2 years so her church pastor stepped in to try and reconcile both of them. When the said pastor communicated with the respondent, he told him that he had instructed his family to get the drinks ready since he was no longer interested in the marriage. Her father then informed the family members so they got drinks ready and the respondent’s family came to collect the drinks somewhere in March, 2023. As it stands now the marriage between them has been customarily 9 dissolved and they have not communicated and lived as husband and wife for about 3 years. As far as the petitioner is concerned, the marriage celebrated between them has broken down and she would never be reconciled with the respondent. She would not go back to the respondent and no more diligent efforts at reconciliation would succeed. She therefore prayed the court to dissolve the marriage. ISSUES FOR DETERMINATION The main issues for determination are as follows: 1. Whether or not the marriage contracted between Esther Abribeh Owulah the petitioner herein and Richard Ofoasi the respondent herein on the 7th May, 2016 at the Ada East District of Greater Accra at Big Ada has broken down beyond reconciliation? 2. Whether custody of the only issue of the marriage can be granted to the petitioner with supervised access to the respondent? 3. Whether or not the respondent can be compelled to pay an amount of two thousand Ghana cedis (GH¢2,000.00) every month for the maintenance of the issue of the marriage subject to a 20% upward increment yearly, pay for the medical bills and all educational expenses of the issue of the marriage as and when they fall due? 4. Whether or not the respondent can be compelled to provide accommodation for the petitioner and the issue of the marriage? ANALYSIS OF THE RELEVANT SECTIONS OF THE MATRIMONIAL CAUSES ACT, 1971 (ACT 367) Before I deal with the issues, I now wish to set out the relevant sections of the Matrimonial Causes Act, 1971 (Act 367) namely sections 1 (2), 2 (1), and 2 (3). The only ground upon which a marriage may be dissolved is where the petitioner proves that the marriage has broken down beyond reconciliation. Section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) provides thus: 10 “The sole ground for granting a petition for divorce shall be that the marriage has broken down beyond reconciliation.” The grounds upon which a marriage would be said to have broken down beyond reconciliation are six (6) and the proof of one or more of them to the satisfaction of the Court may be a valid ground to the dissolution of the marriage. The six grounds are provided in sections 2 of the Matrimonial Causes Act, 1971 (Act 367). They are as follows: “2 (1) For the purpose of showing that the marriage has broken down beyond reconciliation the petitioner shall satisfy the court of one of the following facts: (a) That the respondent has committed adultery and by reason of the adultery the petitioner finds it intolerable to live with the respondent; (b) That the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with the respondent; (c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition. (d) That the parties to the marriage have not lived as husband and wife for a 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, the Court may grant a petition for divorce under this paragraph despite the refusal; (e) That the parties to the marriage have not lived as husband and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or 11 (f) That the parties to the marriage have, after diligent effort, been unable to reconcile their differences. Under section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367): “Although the Court finds the existence of one or more of the facts specified in subsection (1), the Court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation.” BURDEN ON THE PETITIONER In a petition for divorce, the burden that is cast on a petitioner is to lead sufficient evidence to enable a finding of those facts in issue to be made in his favour as required by sections 10 and 14 of the Evidence Act, 1975 (NRCD 323). See: Dzaisu v Ghana Breweries Limited [2009] 6 GMJ 111 S.C Ackah v Pergah Transport Limited [2011] 31 GMJ 174 S.C Sections 11( 4) and 12 (1) of the Evidence Act 1975, (Act 323) provides that the standard burden of proof in all civil matters is proof by the preponderance of probabilities and there is no exception to it except where the issue to be resolved in the civil suit borders on criminality such as fraud and forgery. The Supreme Court also in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 unambiguously resolved the question of standard burden of proof. In the case of African Mining Services v Larbi [2010-2012] GLR 579, the Court held that the burden of persuasion in civil matters requires the person who has the evidential burden to discharge, to produce sufficient evidence such that a reasonable mind, such as this Court, will come to the conclusion that the existence of the fact is more probable. It is therefore the petitioner’s duty as required by law to produce the evidence of the facts in issue such that a reasonable mind, such as this Court, will come to the 12 conclusion that from the existence of the facts, it is more probable that the marriage has broken down beyond reconciliation and that duty must be satisfactorily discharged. Furthermore, the ground upon which the petitioner seeks the dissolution of the marriage contracted between herself and the respondent is unreasonable behaviour by the respondent. Although the respondent did not file any process or appear in court to cross-examine her, the onus is still on the petitioner to lead cogent and credible evidence to prove her allegations. ANALYSIS OF THE EVIDENCE ON RECORD ISSUE ONE Whether or not the marriage contracted between Esther Abribeh Owulah the petitioner herein and Richard Ofoasi the respondent herein on the 7th May, 2016 at the Ada East District of Greater Accra at Big Ada has broken down beyond reconciliation? UNREASONABLE BEHAVIOUR BY THE RESPONDENT The petitioner in paragraph 8 of her Petition averred that their marriage has broken down beyond reconciliation as the respondent has behaved unreasonably towards her in a way that she cannot reasonably be expected to live with him as husband and wife by: 1. reneging on his promise for both of them to travel to Italy before they got marriage with excuses that if she should join him in Italy she would be a stay home wife (housewife) since there are no jobs for females; 2. giving excuses as to when she and the issue could join him in Germany when he relocated to Germany; 3. asking her to return his drinks to his family if she was fed up with the marriage all because she told that she could no longer join him in Germany if they were going to live apart as stated by the respondent; 13 4. telling the her father that he would come and collect the drinks himself anytime he came to Ghana on a visit; 5. refusing to increase the remittances that he was sending to her, the issue of the marriage and his nephew who lived with her when she told him that the money he was remitting to them was not enough for their upkeep and asking her to send him a breakdown of how she uses or spends her salary; 6. refusing to pay for her rent when it was due and asking her to return the marriage drinks to his family because he was no longer interested in the marriage anytime she demanded for money to pay their rent; 7. refusing to refund the three thousand Ghana cedis (GH¢3,000.00) he asked the petitioner to disburse to a list of persons he sent to her out of the loan she advised her to take in order for him to top up for her to buy a small car which will transport the issue of the marriage and her to work and school and also use as a taxi which could bring in some income; 8. refusing to pick her calls just because she refused to send the remaining of the said loan to him to give to his friend in Italy to rent an apartment and give him her SSNIT card which he requested to use to guarantee something for his brother in U.S A; and 9. instructing her family to get the drinks ready since he was no longer interested in the marriage. I must state that it was very cruel, inhumane and selfish on the part of the respondent to have reneged on his promise for both of them to travel to Italy before they got marriage with excuses that if the petitioner should join him in Italy she would be a stay home wife (housewife) since there are no jobs for females, give excuses as to when the petitioner and the issue could join him in Germany when he relocated to Germany, ask the petitioner to return his drinks to his family if she was fed up with the marriage all because she told him that she could no longer join him in Germany if they were going to live apart, tell the petitioner’s father that he 14 would come and collect the drinks himself anytime he came to Ghana on a visit, refuse to increase the remittances that he was sending to the petitioner, the issue of the marriage and his nephew who lived with the petitioner when the petitioner told him that the money he was remitting to them was not enough for their upkeep and asking the petitioner to send him a breakdown of how she uses or spends her salary, refuse to pay for the petitioner’s rent when it was due and asking her to return the marriage drinks to his family because he was no longer interested in the marriage anytime she demanded for money to pay their rent, refuse to refund the three thousand Ghana cedis (GH¢3,000.00) he asked the petitioner to disburse to a list of persons he sent to her out of the loan she advised the petitioner to take in order for him to top up for her to buy a small car which will transport the petitioner and the issue of the marriage to work and school and also use as a taxi which could bring in some income; refuse to pick the petitioner’s calls just because she refused to send the remaining of the said loan to him to give to his friend in Italy to rent an apartment and give him her SSNIT card which he requested to use to guarantee something for his brother in U.S A and instruct the petitioner’s family to get the drinks ready since he was no longer interested in the marriage. I must also confess that no woman, no matter how large his heart can pull along with such a husband. The respondent is simply irresponsible. The conduct of the respondent in my view falls very far short of that of a reasonable man. From the totality of the evidence led, I find as a fact that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to continue to live together with him. This court is therefore satisfied that the respondent has behaved unreasonably towards the petitioner in a way that she cannot reasonably be expected to live with him as provided under section 2 (1) (b) of the Matrimonial Causes Act, 1971 (Act 367) and this court holds same. 15 I am satisfied that the petitioner proved her case by the preponderance of probabilities that the respondent has behaved in such a way that she cannot reasonably be expected to live with him. The next question to consider is the requirement of section 2 (3) of the Matrimonial Causes Act, 1971 (Act 367) whether the marriage between the petitioner and the respondent has broken down beyond reconciliation. On a proper construction of this sub-section of the act, the court can still refuse to grant a decree even when one or more of the facts set in section 2 (1) of the Matrimonial Causes Act, 1971 (Act 367) have been established. It is therefore incumbent upon a court hearing a divorce petition to carefully consider all the evidence before it; for a mere assertion by one party that the marriage has broken down will not be enough. See: Dictum of Bagnall J in the case of Ash v. Ash [1972] 1 ALL ER 582 at page 586. From the evidence on record, there is no indication that the parties are prepared or willing to cooperate once again to find a solution to their differences. The marriage between the parties has been dissolved customarily and for the past three (3) years they have not lived together as husband and wife. The court finds that the marriage has broken down and there is no hope or reconciliation at this stage as the parties themselves have told this court and it is better for this court to dissolve this marriage so that the parties can go their separate ways and be put out of their miseries. To insist that the petitioner and the respondent continue to live together as man and wife would be turning a contract of marriage into one of slavery regardless of the psychological and emotional trauma on the parties or one of them and allowing this marriage to strive on hopelessly, helplessly, and lack of trust. This is because matrimonial causes are unique because they involve two persons who are 16 physically, emotionally and spiritually involved with each other unlike other causes of action like land cases, contract, constitutional, chieftaincy etc. which do not involve intimacy between two people. No doubt the Bible declares the unique relationship as the two becoming one flesh. I cannot but agree with Osei-Hwere J (as he then was) in the case of Donkor v. Donkor (1982-83) GLR 1156 at page 1158 as follows: “The Matrimonial Causes Act (1971) Act 367 does not permit spouses married under the Ordinance to come to pray for dissolution of a marriage just for the asking. Where the court is satisfied from the conduct of the parties that the marriage has in truth and in fact broken down beyond reconciliation it cannot pretend and insist that they continue as man and wife. To do so would be turning a contract of marriage into one of slavery regardless of the psychological effect on the parties or one of them.” I find and hold that from the totality of the evidence on record that, the marriage contracted between the petitioner and the respondent on the 7th May, 2016 at the Ada East District of Greater Accra at Big Ada has broken down beyond reconciliation and the justification is that from the evidence the respondent has behaved in a way that the petitioner cannot reasonably be expected to live with him. Thus, a prima facie case has been made by the petitioner that warrants the dissolution of the marriage. The requirements of section 1 (2) of the Matrimonial Causes Act, 1971 (Act 367) has thus been met by the petitioner. I hereby declare the marriage contracted between Esther Abribeh Owulah the petitioner herein and Richard Ofoasi the respondent herein on the 7th May, 2016 at the Ada East District of Greater Accra at Big Ada dissolved. ISSUE TWO Whether custody of the only issue of the marriage Emmanuella Nkunim Lani Adjaottor can be granted to the petitioner with supervised access to the respondent? 17 I will now consider the statutory provisions relating to the custody of a child and also look at relevant case laws enunciated in same. Section 3 of the Matrimonial Causes Act, 1971 (Act 367) states that: “(3) Without prejudice to the generality of subsection (2), an order under that subsection may; (a) Award custody of the child to any person (b) Regulate the right of access of any person to the child…” Section 2 (1) of the Children’s Act, 1998 (Act 560) provides as follows: “2(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 anybody in a matter concerned with a child.” See also: Braun v Mallet [1975] 1GLR 81-95 Fink v Coelho [1999-2000] 2GLR 166 In the case of In Re Dankwa [1961] 1 GLR 352, Ollenu J. (as he then was) held: “At common law a father is the natural guardian of his infant child and prima facie has a right to custody even against its mother, the rule could not be interfered with except in very special circumstances. Children of tender years should normally be with their mother…” In the aforementioned case, it was also held that the child has adapted herself to her environment and was happy; and it was therefore not in her best interest to 18 subject her to another change of environment and at association by making the order sought. See: Asem vrs Asem [1968] I GLR 1146 CA. In the instant case however, the paramount consideration is the welfare of the child firstly and secondly, the crucial question for consideration is which of the parties is better suited to be entrusted with the upbringing of the child. It is clear from the evidence that the child has lived with the petitioner and it is the petitioner who has been caring for her ever since she was born. The child only sees the respondent whenever he comes into the jurisdiction. The father-daughter relationship must be built gradually. The parties must put their differences aside in the best interest of the child and not visit their sins on the innocent child. The role of the father in the upbringing of the child is crucial. He affects the child in unique ways. A child has the right to a relationship with both her parents, thus access of the child to the respondent shall be regulated as per the orders below. i. Custody of the child of the marriage, Emmanuella Nkunim Lani Adjaottor is accordingly granted to the petitioner. ii. The respondent shall have visitation rights to the child at the home of the petitioner whenever he is in Ghana. With prior notice to the petitioner, the respondent shall visit the child on weekends fortnightly. ISSUE THREE Whether or not the respondent can be compelled to pay an amount of two thousand Ghana cedis (GH¢2,000.00) every month for the maintenance of the issue of the marriage subject to a 20% upward increment yearly, pay her medical bills and all her educational expenses as and when they fall due. Under section 6 of the Children’s Act, 1998 (Act 560): 19 “6 (1) No parent shall deprive a child of 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. 6 (3) Every parent has the rights and responsibilities whether imposed by law or otherwise towards his child which include the duty to – (c) Provide good guidance, care, assistance and maintenance for the child and assurance of the child’s survival and development. (d) except where the parent has surrendered his rights and responsibilities in accordance with law.” Section 47 of the children’s Act, 1998 (Act 560) provides that: “47. (1) A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, basic education and reasonable shelter for the child.” Section 49 of the Children’s Act 1998 (Act 560) enjoins the court in making maintenance orders to consider: “49. When making a maintenance order, a family tribunal shall consider: 20 (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 petitioner in her petition for divorce stated that the respondent maintains the child every month but failed to disclose to this court the exact amount. The petitioner’s evidence on the record also shows that the respondent maintains his child monthly but her only issue is that the amount sent is not enough to cater for the child in issue. The parties are duty-bound to provide good guidance, care, assistance, and maintenance for the child of the marriage, and assurance of the child’s survival and development as stipulated under section 6 (3) and (6) of the Children’s Act, 1998, (Act 560). The respondent as the father of the child is under a duty to ensure that the welfare of the child is not deprived so far as the existence of the child has been brought to his notice. In the case of Adjei & Anor v Rupley [1956] 1 WALR 62, it was held that: “(ii) By native custom throughout the Gold Coast a father is primarily responsible for the maintenance of his children.” 21 However, the welfare and upbringing of the child cannot be put solely on the respondent. It is a shared responsibility and the petitioner ought to contribute towards same, she cannot put all of them on the respondent. It is the opinion of this court, considering the petitioner is a teacher, earns a salary at the end of every month and considering also the cost of living in Accra and the rising rates of inflation every month in this country: i. The respondent is ordered to maintain his child with eight hundred Ghana cedis (GH¢800.00) every month effective April, 2025 which is subject to review upon an application to the court by the petitioner. ii. The petitioner shall furnish the respondent with details of the child’s school fees, feeding fees, and cost of textbooks. iii. The respondent shall contact the child’s school and make payments of the fees, feeding fees and cost of textbooks. iv. The respondent shall pay the child’s medical bills as and when they fall due. v. The petitioner shall also buy clothes and shoes for the child. ISSUE FOUR Whether or not the respondent can be ordered to provide accommodation for the petitioner and the issue of the marriage? The petitioner also prayed this court to order the respondent to provide an accommodation for the issue of the marriage and herself. There is no doubt that the child of the marriage must have a roof over her head, However, considering the fact that the marriage has been dissolved and the respondent will no longer be responsible for the welfare of the petitioner, it will be unfair to order the respondent to rent an accommodation for the issue of the marriage and the petitioner. 22 In the interest of justice, fairness and equity: 1. The petitioner shall look for a single room self-contain and inform the respondent about the rent. 2. The rent shall be borne by both the petitioner and the respondent. The respondent shall pay for his child and the petitioner shall pay for herself. CONCLUSION i. The marriage solemnized on the 7th May, 2016 between Esther Abribeh Owulah the petitioner herein and Richard Ofoasi the respondent herein at the Ada East District of Greater Accra at Big Ada with Certificate Number 0005887 and Licence Number R/C 6719543 ASHIAMAN 362116 is hereby dissolved. ii. Custody of the only issue of the marriage, Emmanuella Nkunim Lani Adjaottor is accordingly granted to the petitioner. iii. The respondent shall have visitation rights to the child at the home of the petitioner whenever he is in Ghana. With prior notice to the petitioner, the respondent shall visit the child on weekends fortnightly iv. The respondent is ordered to maintain his child with eight hundred Ghana cedis (GH¢800.00) every month effective April, 2025 which is subject to review upon an application to the court by the petitioner. v. The petitioner shall furnish the respondent with details of the child’s school fees, feeding fees, and cost of textbooks. vi. The respondent shall contact the child’s school and make payments of the fees, feeding fees and cost of textbooks. vii. The respondent shall pay the child’s medical bills as and when they fall due. viii. The petitioner shall also buy clothes and shoes for the child. ix. The petitioner shall look for a single room self-contain and inform the respondent about the rent. 23 x. The rent shall be borne by both the petitioner and the respondent. The respondent shall pay for his child and the petitioner shall pay for herself. xi. No order as to cost. COUNSEL PATIENCE A.A KONADU FOR THE PETITIONER PRESENT PETITIONER PRESENT RESPONDENT ABSENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 24