COBBINAH VRS. CUDJOE (A6/14/2024) [2024] GHADC 572 (13 December 2024)

IN THE FAMILY TRIBUNAL SITTING AT PRESTEA, HELD ON FRIDAY THE 13TH DAY OF DECEMBER, 2024 BEFORE HIS WORSHIP IDDI ADAMA ESQ AS THE CHAIRMAN AND PANEL MEMBER, M.K. OFORI AND OPOKUAA COMFORT (SOCIAL WELFARE OFFICER) SUIT NO. A6/14/2024 BETWEEN PETER COBBINAH @ EGYA ANIMAH OF HIMAN **** APPLICANT AND EMELIA CUDJOE OF NSUEKYIR, PRESTEA **** RESPONDENT JUDGEMENT The present action was commenced by the Plaintiff herein who filed the appropriate forms for the following reliefs; 1. An order of the Honourable Court to grant Plaintiff custody of his two children namely; Priscilla Animah, 13 years and Osei Akoto Animah, 11 years with reasonable access to Defendant. 2. Any other relief(s) that the Court or Tribunal may deem appropriate under the circumstance. It is the position of the Plaintiff that they had once been married but now separated for the past eight years. That during the subsistence of the marriage they had four children, namely; Theophilus Animah, 21 years, Gideon Animah, 19 years, Priscilla Animah, 13 years and Osei Akoto Animah, 11 years. Plaintiff states that after their separation the [1] children lived with the Defendant and about three years ago, they moved to stay with him with reasonable access to the Defendant. Plaintiff further indicate that during the holidays, Priscilla Animah and Osei Akoto Animah visited the Defendant and the Defendant has now refused to let the children come back to continue their school though schools has reopened for the past two months. In his witness statement filed on the 16/7/2024, Plaintiff asserted that he is an auto mechanic and resides at Himan and repeated all the averments made supra. Plaintiff further stated that Priscilla Animah and Osei Akoto Animah moved to stay with him three years ago and he enrolled them at Himan Integration School. That the Defendant has now enrolled the children at S.D.A School at Prestea when the present action was commenced. It is the position of the Plaintiff that the Defendant cannot take care of the children as Defendant has no time to monitor the children. It is Plaintiff’s statement that he had to engage the services of a teacher to teach the children to catch up with their mates. When cross examined it was ascertained that the parties had a child who was then three years and stayed with the Defendant some 13 years ago. There was an instance where that child got missing and was found at the police station and that that same child died when a vehicle run over him two months subsequent to him going missing. This was confirmed by the Defendant that it happened 15 years ago. It further came to light that the children in this current contention lived with the Defendant for 6 years after the divorce and have now relocated to the Plaintiff’s place and attending school for the past 3 years. It was further ascertained that the children live with their father, the Plaintiff herein in a rented apartment. PW1, Ebenezer Yaw Fobir, the Proprietor of Integration Preparatory School in testifying for Plaintiff and in his witness filed on the 16/7/2024 indicated that the children, Priscilla [2] Animah and Osei Akoto Animah were admitted into their school but due to their shambolic performance in their former school they have to be admitted into a class below their initial class. PW1 further testified that when the academic performance of the children was improving he was informed by Plaintiff that Defendant had come for them and has enrolled them in a different school after visiting Defendant when school reopened. When cross examined by the Defendant the assertion of PW1 was never controverted by the Defendant as such admits the claim as stated. In her witness statement filed on 4/7/2024 Defendant indicated she is a trader and confirmed that they were divorced with four children as indicated supra. That after the divorce the children were staying with her at Nsuekyir for 8 years. It is the assertion of Defendant that the children after some time implored upon her to allow them to go and stay with the Plaintiff for some time. It is the assertion of Defendant that the children complained that the Plaintiff is never at home and at times can be away for a fortnight. Defendant states that some instances the younger children Priscilla Animah and Osei Akoto Animah were sometimes left in the care of their elder brother. That when the two younger children aforementioned came to her for the holidays, they refused to return to the Plaintiff and as such Defendant enrolled Priscilla Animah and Osei Akoto Animah at SDA Basic school and Rhema School respectively. Defendant further asserted that though the two younger children go to the Plaintiff for money for their upkeep, Priscilla Animah is at her puberty stage and need the guidance of her mother while Osei Akoto Animah is too young to continue to stay with the Plaintiff as he has no time for the children and currently not even married. When testifying under cross examination and when asked to demonstrate or show that she contributes to the maintenance of the children Defendant refused to answer that question as such failed to controvert the assertion that she does not contribute to the maintenance of the children. Defendant further asserted that she never prevented the [3] children from coming back to stay with Plaintiff but rather it’s the wish of the children. This was vehemently denied when it was put to her. Further to this, Defendant testified that it is the children that refused to go to Integration Preparatory School as the reason she enrolled them at SDA School and Rhema School. Pursuant to the order of the Tribunal, the children, Priscilla Animah and Nana Osei Akoto Animah were called to testify. Priscilla Animah testified that they visited their mother during the vacation and expressed their desire to return back to Integration Education School Complex when school re-opened but their mother refused same. The mother rejected her desire to be sent to her school and rather enrolled her at SDA School as her choice of school. Priscilla Animah insisted that she preferred schooling at Integration Education School Complex and further preferred to stay with her father. This was the same assertion of Nana Osei Akoto Animah who testified that he preferred staying with his father and attend the school aforementioned. It is the contention of the children that their mother exhibit some unreasonable behaviour by saying that she will pray and exorcise witchcraft when they misbehave or do anything wrong. In testifying, Priscilla Animah asserted that on an occasion Defendant hit the head of Nana Osei Akoto Animah against a wall to exorcise witchcraft as claimed by Defendant. The issue to determine is whether Plaintiff be granted custody of the two children currently in the care of the Defendant with reasonable access. Section 2(1) and (2) of the Children’s Act 1998, (Act 560) on welfare principle states that the best interest of the child shall be paramount in any matter concerning a child and that 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. This is to the [4] effect that the Court is mandated to consider the interest of the child as the ultimate in respect of that child’s welfare. It must further be noted that that Section 47(1)(f) of the Court’s Act 1993 (Act 459) as amended by Act 620 and Section 43 and 44 of the Children’s Act 1998 (Act 560) further imposes a duty on the Court/Tribunal in respect of custody of children and access to and maintenance of children. It is however be noted that Section 45 of Act 560 imposes a duty on the Tribunal to consider the best interest of the child and states it’s important that a young child be with the mother when making an order for custody and access. In doing so the Tribunal shall take into consideration the age of the child, consider the views of the child independently given the desire to keep siblings together the need for continuity in the care and control of the child and other matters the Tribunal finds relevant. In analysing the facts in the eyes of the law, it has been ascertained as evidential that the children under contention are aged 13 years and 11 years, thus a child pursuant to the definition of a child under Section 1 of Act 560. It has further been ascertained that the children under contention have older siblings namely; Theophilus Animah, 21 years and Gideon Animah, 19 years, who currently live with the Plaintiff and it’s the law that it’s desirable for siblings to live together as depicted under Section 45 of Act 560. The best interest of the child as stated under Section 2 includes not just education but the best of education for that matter. It is evidential as asserted and corroborated by both Plaintiff and PW1 which was never controverted that, the performance of the children declined to the extent that they had to be admitted into a class below their initial class. It was further a fact that the performance of the children improved when they attended Integration Education Complex as alluded to by PW1. [5] Pursuant to Section 45 of Act 560 the view of the children are to be taken into consideration and it was observed by the Tribunal that their desires is to stay with their father and attend Integration Educational Complex School. It is worthy of notice that the Defendant has exhibited some undesirable conducts that puts the children in harms way. During their interrogation by the Tribunal, the children revealed that the Defendant normally pray and exorcise witchcraft whenever they misbehave to the extent of hitting Nana Osei Akoto Animah’s head against a wall to exorcise him of bad behaviour. This behaviour of the Defendant is an affront to Section 6(3)(a) which stipulates that every parent has right and responsibility whether imposed by law or otherwise towards his child which includes the duty to protect the child from neglect, discrimination, violence, abuse, exposure to physical and moral hazards and oppression. As indicated above the conduct or acts of the Defendant proves her unsuitability for custody of the children. It is a fact that the Plaintiff adequately provides for the children even though they are currently with the Defendant. The current split of the family is undesirable and the tribunal frowns upon such split. In Opoku – Owusu v Opoku – Owusu (1973) 2 GLR 349 the trial judge expressed the following views. “In such application, the paramount consideration is the welfare of the child. The Court’s duty is to protect the child’s irrespective of the wishes of the parents. In the normal course, the mother should have the care and control of very young children particularly girls or those who for some special reason need a mother’s care: and the older boys to have the influence of their father. It is desirable to keep brothers and sisters together and not spilt them up. A separation will disturb their progress and may affect them emotionally” [6] We take into consideration the fact that a father is the natural guardian of his infant child and has rights as to its custody. Such legal rights of the father exist even against the mother. It is only in special cases like where through his own act or conduct a father proves himself unsuitable or where the interest and welfare of the child so requires that the father be deprived of custody. See Re – Dankwa (1961) 1 GLR 582. In this instant case such conduct or act which would prove the father unsuitable for custody is absent. For t is noted that the father adequately maintain the children to even enrol them in a high end school to give them the best of education. The Defendant on the other hand has put the children in harms way by making the children belief that corporal punishment is appropriate and that any misbehaviour on the part of the child amounts to being possessed by witchcraft, a mystical belief without no basis in law. This reprehensive behaviour of the Defendant put the children in harms way and ultimately affects them psychologically and will certainly not be beneficial to their upbringing. A child’s moral must be moulded so as to equip him to fit into society and make all around him feel the impact of his good citizen and not imbibe in them a mystical belief in the unknown that is out of touch with reality. After all, to err is human but not to be explained and attached to any supernatural phenomenon. In consideration of the law before the proven facts and in the exercise of the powers to regulate custody of children including the right of access to the child, their welfare being the primary interest, the Tribunal pursuant to the Court’s Act (Act 459) and Children’s Act (Act 560) makes the following orders. [7] 1. Custody of the two children namely; Priscilla Animah, 13 years and Osei Akoto Animah, 11 years currently in the custody of the Defendant is forthwith granted the Plaintiff. 2. Plaintiff is ordered to allow the Defendant reasonable and periodic access to the children. No order as to cost. H/W. IDDI ADAMA ESQ. (CHAIRMAN) M.K. OFORI (PANEL MEMBER) OPOKUAA COMFORT (SOCIAL WELFARE OFFICER) [8]