This appeal lies against the judgment of the Circuit Court dated 19^th October, 2016.

The facts that have culminated in this appeal are that, on the 8^th day of December, 2015, the Petitioner/Respondent(hereinafter described as the Respondent) issued a petition praying for the dissolution of their marriage and the custody of the only child of the marriage with access to the Respondent/Appellant (hereinafter described as the Appellant).

The Appellant in his answer to the petition, cross petitioned for the custody of the child during school times and on vacation with the Respondent.

On the 14^th of June, 2016, on being told by the parties that they had both lost interest in the marriage, the trial court purported to dissolve the marriage and it thereafter took evidence on the issue of custody and granted custody to the Respondent.

The purported dissolution of the marriage is a matter this Court return to later in this judgment.

Now, dissatisfied with the judgment of the trial court granting custody to the Respondent, the Appellant has brought this appeal on the sole ground that the judgment is against the weight of evidence and same is not grounded on any point of law.

The Supreme Court has held in a number of cases that where an Appellant complains that a judgment is against the weight of evidence he is implying that there were certain pieces of evidence on record which if applied in his favour, could have changed the decision in his favour or that certain pieces of evidence have been wrongly applied against him. In such a case, the onus is on such an Appellant to demonstrate to the court such lapses that are evident on the record.

Some of these cases are: Djin vrs Musah Baako [2007-2008] SCGLR 687; Akufo Addo vrs Catheline [1992] 1 GLR 377 and Boateng & ors vrs Boateng [1987-1988] 2 GLR 81

It is incumbent on this court to examine the whole record and the evidence before it and arrive at its own decision.

What is the standard of proof in civil matters? It is trite that section 11 (4) and 12 of the Evidence Act 1975 (NRCD 323) provides that the standard in all civil action is by the preponderance of probabilities.

In perusing the record, one realizes that in filing an answer and cross petition, the thRespondent/Appellant filed a Motion on Notice on 22^ndJanuary, 2015 for custody of the child – (see pages 8-10 of the Record of Appeal).

The Appellant deposed to the fact that the Respondent had deliberately kept custody of the child who had been with the Appellant, but was picked up by Petitioner for the Christmas vacation. The Petitioner opposed the application and deposed to the fact that the child was obese and that the child was in school.

The court on hearing the motion for custody, ordered that:

“The court is not in the position to determine whether the child is obese or not, it is hereby ordered that the child be sent to a hospital and examined by a medical doctor who should determine whether the child is obese or not. The cost of the medical examination should be borne by both Applicant and Respondent.”

The Appellant countered that argument by stating that there was an arrangement between himself and the Petitioner to the effect that the child would be with him in Kumasi to attend school but spend the vacations with the Petitioner in Accra and that this arrangement had worked for four years.

The Appellant denied the allegation that the child was obese. The Appellant further contended that the trial judge should have maintained the status quo by granting custody to him. It was further argued by the Appellant that although the trial judge rightly cited a number of cases supporting the principle that the welfare of the child was paramount, she misapplied them in this instant.

In determining which parent is to take custody of a child, it is trite law that the best interest or welfare of the child must be paramount. This has been codified in the Children’s Act, 1998 (Act 560), section 2 subsections 1 and 2 as:

“(1) The best interest of the child shall be paramount in any matter concerning a child.

(2) 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”.

Likewise, in the making of orders by the court pertaining to custody of an infant, section 18 (1) (b) and (2) of the Court’s Act, 1993 (Act 459) provides for the service of the best of the interest of the infant, as well as the child’s welfare, to be primarily essential. This is expressly provided for as follows; “(1) in addition to any jurisdiction conferred by any enactment, the High Court shall have power, subject to the provisions of any other enactment-

(b) on application by any person, and after hearing any objections to the application, to make such orders concerning the custody of an infant, the right of access to an infant, and weekly or other periodic payments towards the maintenance of an infant, as the Court may consider just in the circumstances, having regard to the means of the persons concerned and the welfare of the infant;

(2) The welfare of the infant shall be the primary consideration of the High Court in the exercise of its powers under this section”.

Subsection 3 of the aforementioned section (of Act 459) defines an infant to mean “a person under the age of eighteen years”[As amended by the Courts (Amendment) Act, 2002 (Act 620), sch. to s.7].Section 1 of the same Act reinstates this position as well (for purposes of the Act).

Also, on the welfare principle, Section 22 of the Matrimonial Causes Act, 1971 (ACT 367) provides that;

“(1) In all proceedings under this Act, it shall be the duty of the court to inquire whether there are any children of the household.

(2) The court may, either on its own initiative or on application by a party to any proceedings under this Act, make any order concerning any child of the household which it thinks reasonable and for the benefit of the child.

Indeed, the primacy of the interest of the child indicates that there may be other ‘secondary’ considerations. In the case of In re Thain (An Infant); Thain v Taylor [1926] Ch 676, CA the English Court of Appeal in considering a custody case upheld the decision of Eve J, who had held as reported at page 684 that:

". . . inasmuch as the rule laid down for my guidance in the exercise of this responsible jurisdiction does not state that the welfare of the infant is to be the sole consideration but the paramount consideration, it necessarily contemplates the existence of other conditions."

One of such could be found in section 45 of the Children’s Act (supra) that the importance of a young child being with his mother when making an order for custody or access must be considered”. Section 45 is provided as follows:

“(1) A Family Tribunal shall 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.

(2) Subject to subsection (1) a Family Tribunal shall also consider-

(a) the age of the child;

(bt hat 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”.

This ‘welfare principle’ has been espoused in cases such as

Attu v. Attu [1984-86] 2 GLR 743-752

Grayv. Gray[1971] 1 GLR 422-428

Opoku-Owusu vOpoku-Owusu [1973] 2 GLR 349-354

Braun v Mallet [1975] 1 GLR 81-95.

The key item of determination here, therefore, is what would the welfare or best of interest of the child be?In an attempt to decipher the ‘best interest or welfare’ of a child or an issue, with regard to the facts of this case, the following must be considered:

a) The age of the child; and

b) The need for continuity in the care and control of the child.,

c) As well as any other matter which will be of relevance,

Applying the above principles to the instant appeal,firstly, the child (now nine years of age) is qualified as an infant under the relevant statutes for the purposes of the determination of custody and its consequential matters.

The facts of the matter from the record is that the child has put on weight, resulting in obesity (as alleged), which is an adverse health condition. It so seems that the child needs extra attention and care of his diet and health. On the balance of probability (as espoused under sections 11(4) and 12 of the Evidence Act, 1975 (Act 323) as standard of proof for civil matters), it is deemed that the nature and demands of the work of the appellant denies him the time to offer such care and attention. For a personnel whose work required a trip around five regions (the Northern Sector) in Ghana it seems more probable that he may be away from home often.

The Respondent on the other hand testified as to how she catered for the child at page 31 and 32 of the record; the following discourse ensued;

“Q:       When you refused to bring back the boy, you went for the dietician report.

A. That was not the case. I got the dietician report because when I picked the boy up in December 19, 2015, he was running a temperature so I gave him first aid and took him to the hospital on 21^st December, 2015 in Accra. At the Paediatric Department of 37 Military Hospital the Paediatrics told me the boy was morbidly obese for his age so the medicine he was given were in adult doses. I was advised to go and see dietician because if he continues on that trajectory it will affect his liver. I went to see the dietician. I was counselled and he was put on strict diet. We were to go for review every week. At the time my ex-husband started calling me and threatening me and initiated a case against me at the Central police station-Kumasi. The corporal who called me to invite me over indicated that I came with supporting document of the child’s health. So I went back to the hospital and they provided the necessary documentation to come to Kumasi with.

Q. Do you know the date the dietician report was issued.

A. I don’t have it off hand.

Q. When did you file the petition.

A. 8^th December, 2015.

Q. At that time the child was in Kumasi.

A. Yes, I was waiting for him to vacate.

Q. Even before you got the report, the petition was filed.

A. Yes.

Q. So even before you went for dietician report you made up your mind to take custody.

A. Whiles we were having discussion on divorce, I indicated when I left I will take custody of the boy.

Q. I am suggesting to you that you never had discussion with the Respondent and he agreed.

A. I discussed it with him and he indicated that it will be a litigation matter and I said two years ago when I was transferred to Accra, I wanted to take the boy with me but for my ex-husband who I was trying at the time to make our marriage still work, I was taken aback when he said it will be a litigation matter then because we were fully married. This time around, I said he could go ahead to court so that we all litigate for the court to give a judgment.

Q. In spite of what your husband told you, you still went ahead and took custody of the child.

A. Yes.

Q. This was without recourse to any court order.

A. Because I was the one maintaining him and my work is flexible to make my time around him.”

Now, in my mind, the guiding principle in such cases should be the best interest of the child. The Children’s Act, 1998 (supra) emphasises that, in the circumstances as found on the record, the judge evaluated the evidence before her and took into consideration the circumstances before arriving at her decision.

In my opinion, she was fair in acknowledging that the child was to be with the father. But as at the time the suit was filed, he was with the mother and attending school. Surely it would be traumatic to move the child back toKumasi in the circumstances and it will certainly be against the welfare principle as espoused in the Children’s Act.

Now on the issue of financial contribution, from the record of appeal, it is apparent that the Respondent has been providing tremendous support towards the care of the child.

This assertion does well to prove, inter alia, that the Respondent is well and able to cater for the basic needs of the child – needs such as his education, shelter, food, even attention, thereby, imputing stability (financial, time wise, etc.). It must be noted that this does not seek to prove conclusively that the Appellant cannot provide for the child.

The aforementioned finding as to the capability of the Respondent to cater for the child would thereby be read alongside section 45 of the Children’s Act, namely the importance of a young child to be with his mother.

It is worthy to note that the child, the subject of the custody is such a young boy - too young to be subjected to such turmoil between his parents which has caused him to be moving in between locations at such a tender age and certainly too tender to appreciate the nature of the issues at hand. It is thereby incumbent on this court to protect the interest of the child as far as possible. The child can be seen to have settled in Accra (and changed schools) with the mother. It can be deemed that enough trauma has been caused. No more burdens must be placed on the child.

The record as it stands is bereft of any concrete evidence as to why the child must be taken from his mother, therefore the court need not interrupt the settlement of the child by moving him to the Appellant..

Indeed, the conduct of the Respondent by keeping the child without prior approval by the Appellant, or attaining first a custody order, is definitely to be deprecated and we do so unreservedly. However, without sounding overly repetitive, it is our view the interest of the child would be served better if the child is left with the Respondent. A case in point is Attu v. Attu [1984-86] 2 GLR 743-752 (Brobbey J).

In that case, the applicant was on posting in Zambia for his work a when his wife, the respondent obtained a divorce from him in 1977. At the time of the divorce the eldest of their two children was less than two and the youngest was only eight months old. The respondent obtained a custody order in respect of the children, and the applicant, granted right of access. That same year respondent remarried a British diplomat and she left Ghana with her new husband taking the children along with her. The respondent brought the children to Ghana on a visit in 1986. There, the applicant brought the instant application for custody of the children. He obtained an order restraining the applicant from taking the children to Britain pending the determination of the application. That notwithstanding the respondent surreptitiously took the children back to Britain while the application was still pending.

The court reinstated the ‘welfare principle’ in determining whether to grant custody to an applicant or respondent. The court found that the personal circumstances of the applicant and the respondent were equally balanced and each was capable of providing decent homes for the children. A fortiori, the primary or paramount consideration should therefore be where the children should profit the more by staying. The applicant had not established that the children were worse off where they were now or that they would be better off in Ghana so as to conclude that it would be in the interest or welfare of the children to be sent from Britain to Ghana to stay with him.

The fact that the children were already out of Ghana had in no way inured to the benefit of the respondent. Her conduct in spiriting the children out of Ghana in the full knowledge that the court had ordered her not to take them away was held not to be that which any court could condone. Her brazen disregard of the laws and court of the country was to be roundly deprecated. Taking children out of countries under such circumstances had been described as "kidnapping" and also been frowned upon by courts all over the world. And no court of law would allow a person like the respondent to benefit from her reprehensible behaviour. Left with the respondent's conduct per se the custody order would have been made in favour of the applicant.

But in considering the welfare of the children and weighing up where the children would profit better by staying and having regard to all the circumstances, it would be better to leave them where they were.

It can be found that in Attu v Attu (supra), the respondent had defied a court order (unlike the Respondent in this case who had ‘merely’ breached an agreement between her and the Appellant).

Nonetheless, the paramount interest of the issues did not cause that reprehensible conduct of hers to be used against her case since the focus of the court, was, and is always, on the welfare of the child.

A child needs stability and once he had been relocated to Accra, and was undergoing medical screening for his condition, it was best to leave him with the Respondent.

I therefore find that the trial judge exercised her discretion judiciously and I therefore find no reason to disturb the judgment.

Accordingly the appeal is dismissed and the judgment of the court dated 19^th October, 2016 is affirmed.

This does not however bring this matter to an end. As has been observed above, on the 14^th of June,2016, the trial court purported to dissolve the marriage. The proceedings before the court on the said day are found at page 25 of the record of appeal and they are set out hereunder as follows:

“BY COURT: It is hereby ordered that...

Petitioner informs the Court that ...

The Respondent also informs the Court that...

BY COURT: I found that this marriage has...

“It is left for the issue of custody and other matters to be determined”.

Now the matrimonial Causes Act, 1971(Act367), provides in sub-sections (2) and (3) of section 2 as follows:

“(2) On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent.

“(3) Notwithstanding that 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”.

The above-quoted provisions of our Matrimonial Causes Act, are similar to section 2(1) of the English Divorce Reform Act, 1969, except that the English Act uses the word irretrievable”, whereas section 2(3) of our act uses the expression, “beyond reconciliation”.

And in the case of Ash v Ash [1972] 1 All E.R 582, what needed to be done before the court could decide whether or not the marriage had broken down irretrievably came up for consideration. In that case, while a husband to a divorce petition had said he believed the marriage had not broken down irretrievably, the wife insisted that it had broken down irretrievably. She asserted that the marriage was at an end and stated with conviction that there was no possibility of her contemplating living with the husband as his wife. The response of Bagnall J, to the opposing positions of the husband and the wife was as follows:

“Simple assertion either way, it seems to me, cannot suffice. What I have to do is to examine the whole of the evidence placed before me, including and giving not inconsiderable weight to the assertions of the parties, and make up my mind, quite generally, whether it can be said that in spite of the behaviour of the husband, and the reaction to that behaviour of the wife, the marriage has not broken down irretrievably”.

Regarding what section 2(3) of our Matrimonial Causes Act calls for, this is what Sarkodier J, having acknowledged Ash v Ash (supra), stated in the case of Adjetey v Adjetey [1973] 1 GLR 216:

“On a proper construction of this subsection of the Act the court can still refuse to grant a decree even when one or more of the facts set out in section 2(1) has 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 of the parties that the marriage has broken down will not be enough”.

There is also Donkor v Donkor [1982-83] GLR 1158, in which, whilst the wife-petitioner was in the process of giving her evidence-in-chief, the respondent’s counsel announced to the court that his client would not contest the petition for divorce provided the petitioner would consent to the court expunging from the record, her testimony about the respondent’s alleged matrimonial offences. The required consent was readily given by the petitioner’s counsel. And the view was expressed in court that the court could not force the marriage on parties who no longer desired to live together as man and wife. Osei-Hwere J, as he then was, declined to dissolve the marriage on the mere request of the parties saying:

“The Matrimonial Causes Act, 1971 (Act 367), does not permit spouses married under the Marriage Ordinance, Cap 127 (1951 Rev.) to come to court and pray for dissolution of the marriage just for the asking. The petitioner must first satisfy the court of any one or more of those facts set out in section 2(1) of the Act for the purpose of showing that the marriage has broken down beyond reconciliation. Section 2(3) which is pertinent, provides that even if the court finds the existence of one or more of those facts it shall not grant a petition for divorce unless it is satisfied that the marriage has broken down beyond reconciliation”.

Osei-Hwere further made it clear that the petitioner was under a duty not only to plead any one of those facts in section 2(1) of the Act, but must also prove them. It was flowing from the evidence that the court could determine whether the marriage had broken down beyond reconciliation.

It is clear therefore that in the present case, the trial court erred when upon mere statements by the parties that they were no longer interested in the marriage, the court proceeded to make a finding that the marriage had broken down beyond reconciliation, and purported to dissolve same. In the view of this court, the marriage contracted between the parties on the 12^th of April, 2008 and in respect of which the petition herein was filed, has not been properly dissolved and we so declare.

The continued subsistence of the marriage, in our view, does not however affect the validity of the custody order made by the trial court, since the custody order does not derive its validity from the dissolution or otherwise of the marriage.

The order of this court in this circumstance is that this matter shall go back to the trial court for that court to take evidence and make a proper determination as to whether or not the marriage has broken down beyond reconciliation. It is so ordered, in spite of the fact that this appeal has been dismissed and the judgment of the trial court dated the 19^th of October, 2016, has been affirmed.