Quansah v Ocloo (G/WJ/DG/A6/48/21) [2025] GHADC 186 (4 April 2025)

IN THE DISTRICT COURT SITTING AS A FAMILY TRIBUNAL HELD AT WEIJA ON FRIDAY THE 4TH DAY OF APRIL, 2025 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS.) DISTRICT MAGISTRATE (CHAIRMAN), GODFREY SAIM JNR. AND GIFTY TEKPOR (MEMBERS OF THE PANEL) SUI NO: G/WJ/DG/A6/48/21 1. GEORGINA QUANSAH PLAINTIFF 2. VRS 3. FRANK OCLOO DEFENDANT 4. PARTIES: PRESENT 5. LEGAL REPRESENTATION JUDGMENT 6. The Plaintiff herein filed the appropriate form pursuant to Order 32 r (2) of the District Court Rules 2009, C.I 59 on 4th June 2021 for the following reliefs; 7. That plaintiff be granted custody of the child with reasonable access to defendant during weekends and holidays. 8. An Order directed at Defendant to pay maintenance fee of GHC600.00 a month and also pay school fees. 9. PLAINTIFF’S CASE 10. Plaintiff’s case is that on 31st June 2021, she sent the child the subject matter of this dispute to school at Gag Bless Home Preparatory School at Kwashieman in Accra. She received a call from the school authority that the defendant went to the school and took the child without informing her. She subsequently called her mother and sister to inform them about the issue. 11. It is her case that she went to lodge a complaint at the Social Welfare in the company of her mother and sister after which a letter was given to her to file a case at the Weija District Court against the defendant. 1 12. Plaintiff says that the child the subject matter of this dispute is her only child and defendant has poisoned the child’s mind against her in a bid to take him away from her. She prayed the court to grant her custody of the child with reasonable access to the defendant. She called her mother Patience Biney as PW1. 13. She corroborated the story of plaintiff when she said that defendant picked the child from school without her consent and refused to pick up plaintiff’s calls or her calls until plaintiff sued him in court. 14. DEFENDANT’S CASE 15. It is the case of the defendant that he was previously married to the plaintiff for one and a half years and had a son named Divine Ocloo aged 7 years with her. It is the further case of the defendant that plaintiff has an acrimonious and violent character and so following the dissolution of the marriage, he felt obliged as a father to look out for the safety and welfare of his son. 16. He added that he requested for access to the child from time to time but the plaintiff refused him access and seldom gave him access to the child. 17. It is his further case that plaintiff threatened to block every means he could have access to his child or be present as an active father in the life of his son. 18. According to him, the plaintiff has remarried and lives with her husband and he does not know where she lives neither does he know the step father to his son. 19. He averred that the few times he had access to the child, he had to pick up the child from plaintiff’s mother or he was made to meet plaintiff halfway so he would not know plaintiff’s house. 20. He testified that he noticed the child’s withdrawn and timid behaviour, certain strange questions he often asked him, his declining performance at school and lack of confidence amongst others. He stated that it came to his notice that the plaintiff has been maligning him to the child and his greater concern also was that plaintiff 2 was consistently absent in the life of the child and was always with his grandmother. He testified further that he figured out that it was plaintiff’s husband who did not want the child in their matrimonial home and he felt that since he was alive, he should not allow his son to suffer a fate of rejection. 21. Defendant says that for ease of co-parenting, he made several efforts to engage the plaintiff to discuss the welfare of the child and also to be introduced to the stepfather of the child to no avail. 22. Defendant averred that he sought the intervention of the Ga Central Social Welfare for discussions on access to the child and introduction of the stepfather of the child however plaintiff refused to comply with the directives of the Social Welfare. He averred further that subsequently the child confided in him about the poor and unkind treatment meted out to him by the plaintiff and her stepfather which compelled him to take a decision to remove the child from the hostile environment affecting his physical and emotional wellbeing. 23. He testified that he took the child in May 2021 from Plaintiff having informed the Social Welfare, the Sowutuom Police and the plaintiff about his decision. 24. He added that while in his care, the child informed him about how he was afraid of his stepfather due to the fact that he has been mean-mugging him and whenever he reported him to the plaintiff, she would hit him on the back and slap him across his face. 25. He added that there was no toilet facility in plaintiff’s house making the child poop in chamber pot which the child found very uncomfortable and would often get beaten if he makes a mess. As a result, the child is afraid to express himself for fear of being beaten. 26. He stated that he has been solely responsible for the maintenance and upkeep of the child by paying his living expenses including his school fees, clothing, medical expenses and feeding. 3 27. He tendered in evidence receipts of maintenance payments made and private tutoring he has engaged for the child. Same were admitted and marked as Exhibits 1 and 2. 28. ISSUE SET DOWN FOR DETERMINATION 29. The issue set down for determination is whether or not the Plaintiff should be granted custody of the child the subject matter of this dispute 30. EVALUATION OF THE EVIDENCE AND DECISION BY THE COURT 31. The law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by virtue of sections 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323) 32. In the case of ABABIO V AKWASI IV [1994-1995] GBR 774, Aikens JSC held that; 33. “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 that, he wins, if not he loses on that particular issue.” 34. The courts have consistently held that on the award of custody of a child, the welfare of the child must be the paramount determining factor. This principle has been given statutory force by section 2 of the Children’s Act, 1998 (Act 560) which states: 35. The best interest of the child shall be paramount in any matter concerning a child. 36. The considerations for custody or access have been provided in Section 45 of Act 560 as follows; 4 37. A family tribunal shall consider the best interest of a child and the importance of a young child being with his mother when making an order for custody or access. Subject to subsection (1), the tribunal shall consider 38. the age of the child 39. that it is preferable for the child to be with his parents except where his rights are persistently abused by his parents 40. the views of the child if the views have been independently given 41. that it is desirable to keep siblings together 42. the need for continuity in the care and control of the child 43. Any other matter that the Family tribunal finds relevant. 44. In OPOKU-OWUSU V OPOKU-OWUSU [1973] 2 GLR 349-354 it was held as follows; 45. “in such an application, the paramount consideration is the welfare of the children. The court’s duty is to protect the children irrespective of the wishes of the parents.” 46. From the evidence, defendant admitted that he took the child from the custody of plaintiff because plaintiff has an acrimonious and violent tendencies and as a father he needed to look out for the safety and welfare of the child. 47. In the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v Akotia Oworsika III (Substituted by Laryea Ayiku III) [2005-2006] SCGLR 637, the Supreme Court held as follows; 48. “Where your adversary has admitted a fact advantageous to your cause, what better evidence do you need to establish that fact than relying on his own admission?” 49. Applying the law cited supra to the facts of this case, I find that the defendant having admitted that he indeed took the child from the plaintiff as she asserted, plaintiff has satisfied the burden on her to prove her claim. 5 50. We now turn our attention to the case of the defendant. 51. With regard to the counterclaim of the defendant, it is trite that he bears the same burden as the plaintiff in proving his counterclaim which is on the preponderance of probabilities as stated by the authorities cited supra. 52. In TETTEH AYAA IDDRISU V. WINFRED OTUAFRO & ANOR [2010] SCGLR 818, the Supreme court held as follows; 53. “A party who counterclaims bears the burden of proving his counterclaim on the preponderance of probabilities and will not win on that issue only because the original claim failed.” 54. Ansah JSC in JOSEPH AKONU-BAFFOE AND 2 OTHERS V LAWRENCE BUAKU AND ANOTHER, CIVIL APPEAL NO. J4/6/2012 emphasized the position of the law on counterclaim as follows; 55. “In essence, a defendant’s counterclaim is to be treated in the same way as the plaintiff’s case. The roles are reversed and the defendant as plaintiff in the counterclaim assumes the burden to prove his case.” 56. In explaining his side of the story, defendant averred that the plaintiff and her husband beat the child which made him timid and withdrawn and also that the plaintiff always left the child in the custody of plaintiff’s mother. 57. All these allegations were vehemently denied by the plaintiff yet defendant did not lead any shred of evidence to prove his assertions or call any witness to corroborate his story. 58. We hold therefore that defendant has failed to lead any evidence to show that due to the character of the plaintiff, the rights of the child are persistently abused when he is in her custody. 59. During cross examination of the defendant, the following information was elicited; 60. Q: At what time do you report to work in the morning? 61. A: It depends on the kind of work to be performed. I have six apprentices so I get to work at 9:00am 6 62. Q: What time do you normally return from work? 63. A: I close by 8:pm 64. Q: Where exactly do you live? 65. A: I live at Kasoa and Odumase. I live at Odumase 80% of the time and at Kasoa 20% of the time. I have constructed my building at Ga Odumase so that explains why I am there most times. 66. Q: Where is your son? 67. A: He lives with my mother 68. Q: That means you spend only 20% of your time at where your son lives? 69. A: That is true because I supervise the workers constructing my building project at Ga Odumase. My rent will expire in March so I am working furiously to complete the project and relocate my mother and my son to Ga Odumase. 70. Q: So when you close from work at 8:00pm, your son is asleep 71. A: No my lady. I do not close at 8:00pm all the time. I sometimes see him before he retires to bed. 72. Q: So even your 20%, your son gets only 10% 73. A: That is not true. I have already stated that he comes to me on vacations. My work is operational so I sometimes close early depending on the work needed to be done. I spend more that 20% with him. 74. Q: I put it to you that you do not have time for your son. 75. A: That is not true. I spend time with my son. The only reason why I am unable to spend enough time with him is because of the supervision of my building construction. After the expiration of my rent, I will relocate him to live with me at Ga Odumase. 76. When defendant was cross examined on the supervision of the child’s homework, this is what he had to say; 77. Q: I put it to you that there is no one currently at the place where your son is that guides him do his homework, I put it to you 7 78. A: That is not true. We are all doing all we can to guide this child through his formative years. Whenever I am present, I go through his homework. My younger brother is also around who keeps an eye on the boy’s homework. Even my mother though is elderly also checks his homework. 79. Q: And it is so because you have left your son in the care of your mum who is considerably old, weary and yet have about eight children to take care of 80. A: My mother does not take care of 8 children. My older siblings bring their children to my mother whenever they are busy or have something to do. I do not know how the lawyer came up with the number 8. The children are four and they are above 13 years and able to take care of themselves. 81. From the evidence, we make the following findings; 82. That the defendant lives at Ga Odumase whilst the child the subject matter of this dispute lives at Kasoa with defendant’s aged mother. 83. That defendant has a busy work schedule; He starts work at 9:00am and closes at 8:pm 84. That the child only goes to the defendant at his residence at Ga Odumase during vacations. 85. That due to the supervision of defendant’s building project at Ga Odumase he spends 20% of his time with the child the subject matter of this dispute. 86. That defendant’s aged mother in addition to caring for the child the subject matter of this dispute is sometimes saddled with the responsibility of caring for other grandchildren when the siblings of defendant are too busy to take up the task. 87. That supervision of the child’s homework is left in the care of defendant’s aged mother and defendant’s younger brother when he is around (emphasis is mine) 88. Applying the law cited supra to the totality of the evidence before us, we hold that it is in the best interest of the child the subject matter of this dispute who is a minor that custody is awarded to his mother the plaintiff with reasonable access to the 8 defendant on weekends. School vacations shall be shared on a 50:50 basis between the parties. 89. ISSUE 3 90. With respect to maintenance of the children, section 47 of Act 560 provides that 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, education and reasonable shelter for the child. 91. Section 49 of Act 560 provides amongst others that in considering the maintenance order, a family tribunal shall consider the income and wealth of both parents of the child or of the person legally liable to maintain the child and the cost of living in the area where the child is resident. 92. We have considered the income and wealth of the parties from their affidavit of means filed in compliance with the order of the court. We have also considered the cost of living in Accra where the child is currently resident. Having regard to these facts, we do hereby order the Defendant to continue to pay the sum of GHC600.00 per month to Plaintiff as maintenance for the child. 93. The Defendant shall pay the school fees of the child including all items needed for his education as well as his medical bills when they fall due. 94. The Plaintiff shall be responsible for the child’s casual clothing at home and clothing for special events. 9 95. Under no circumstances shall the custody and maintenance orders herein made be varied without recourse to a court of competent jurisdiction. 96. We make no order as to costs. i. H/W RUBY NTIRI OPOKU b. (DISTRICT MAGISTRATE/CHAIRMAN) 10