PAUL KINI vs. RITA TANSON KINI
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2017
PAUL KINI - (Petitioner/Respondent)
RITA TANSON KINI - (Respondent/Appellant)

DATE:  26TH OCTOBER, 2017
SUIT NO:  H1/107/2017
JUDGES:  OFOE JA – PRESIDING, LARBI JA, KWOFIE JA
LAWYERS:  PENNINA A. ASAH FOR RESPONDENT/APPELLANTS
KWABINA GYAMFI NIMAKOH FOR THE PETITIONER /RESPONDENT
JUDGMENT

OFOE,J.A:

 

This is an appeal against the ruling of the Circuit Court dated the 8th day of September 2015 granting custody of the children of the marriage to their father, Paul Kini.

 

The undisputed facts of the case are that Paul and Rita Kini, the parties in this case, were married under the ordinance in the year 2002, specifically 14th September. Unfortunately, their marriage had to be dissolved on the 17th October 2008 but before then they were blessed with two children Elorm and Edem. At the time of the issuance of the suit in October 2007 they were 10 and 8 years respectively. Somewhere in the year 2006 the parties agreed to send both children to Ghana to stay with their maternal grandmother, Grace Agyepomaa at the time Elorm was 2 years and Edem was 2 months.

 

The contention between the parties which was determined by the trial court was who should have custody of the children. From the depositions before us granting custody to their father will have the effect of relocating the children in the United States of America where they were born and where their father and Rita, their mother, presently reside.

 

I will refer to the parties as they were in the trial court. Paul Kini as petitioner and Rita Kini as respondent.

 

As stated earlier, the petitioner’s application for custody of the children was granted by the Circuit court and this has provoked this appeal before us. The ruling of the trial judge is being challenged on two grounds

 

“1. That the ruling is against the weight of evidence

2. That the learned judge erred when she ruled that the petitioner can have custody of the children in C the absence of any physical abuse of the children”.

 

Before considering these grounds of appeal let me provide the substance and relevant depositions of the parties as contained in the record of appeal.

 

It is the deposition of the petitioner that there was an earlier agreement with the respondent to relocate the children to the US. However subsequent behaviour of the respondent indicated she was no more interested in this agreement. There has been occasions when the respondent’s mother, with the support of the respondent, frustrated him from seeing his children when he visited ghana. When he tried seeing them in school the mother of the respondent, Grace Agyeponmaa, instructed the school authorities not to allow him. According to petitioner he gathered from the terminal report of the children that their educational performance was woefully bad with Elorm at the bottom of the class. Petitioner attributes this partly to the fact that their grandmother is an illiterate and is not in the position to assist much in supporting their studies. He emphasized that he is now in the position to care for his own children and has acquired a bigger accommodation in other to house the children and their two half- brothers who are also in the US. He deposed that his other two children had had occasion to be together with these other children when he visited Ghana sometime 2012 and it was clear that bringing these children together under the same roof will serve their interest better. At the current ages of the children and also being males, petitioner contends, that they can be handled better by their own parents and not the grandmother. Since their mother, the respondent, is also in the US it will serve the interest of the children better if the children relocate in the US where both parents can be involved in caring for them. It is his deposition that as a natural parent he is entitled to have the children so as to carry out his fatherly duty to them.

 

The respondent is opposed to the relocation. She is emphatic that the petitioner has all this time been having financial difficulty providing for the children in Ghana. His financial standing is still not better and will be worse now that he has two other children from his new marriage to feed.

 

On the alleged emotional weakness of the petitioner, the respondent deposed that on the few occasions that the petitioner had been with the children he screamed at them on the slightest fault and sometimes physically assaults them.

 

Her depositions continue that the children have been in Ghana all these years and have acclimatized to the cultural and social system of Ghana, granting the petitioner his request will mean breaking this environment and moving them into a completely new social system. In the respondent’s own words:

 

15.The children have since acclimatized to the cultural and social system of Ghana and it will not be in their interest for them to be uprooted and exposed to the cultural shock of America should the applicant be allowed to remove them from the jurisdiction and taken into his custody and that of his American wife.”

 

The trial judge was terse in her judgment. I don’t think it will be too much quoting the whole ruling

 

“.. Section 2(1) of 1998 Act, the Children’s Act, Act 560 mandates the court to take into consideration the best interest of the children in granting custody.

 

The applicant is the biological father of the children and the respondent has not established facts, for the court to accept that the grandmother of the children can offer better opportunities for the children in Ghana than their father in the United States of America.

 

Further both parents are in the United States of America therefore in the view of the court the children are being removed to stay with both parents, even though they may be staying in different states, would be a lot more easier for the respondent herein to have access to the children while they are closer to her in the United States of America

 

Section 45(2b) states it is preferable for a child to be with the parents unless there is evidence of the child’s right being trampled upon or abused by the parents

 

The applicant herein has not shown any reason why the court should believe that the respondent have the capacity to abuse or maltreat his own children

 

The applicant is to have custody for the children with reasonable access to the respondent..”

 

It is the above quoted ruling that the respondent and counsel are contesting in this court. I will examine their first ground of appeal which alleges that the ruling of the trial judge is against the weight of evidence. The duty cast on the respondent when such an allegation is made against a judgment has been repeatedly stated in cases like Tuakwa vrs Bosom(2001-2002)SCGLR 61 and Akuffo Addo vrs Catherine(1992)1GLR 377. On such allegation it is the duty of an appellant to draw the appellate court’s attention to evidence which the trial court failed to use or improperly made use of to his disadvantage. The appellant should establish that had the trial court made use or not made use of such evidence he would have been victorious at the trial court. Has the respondent discharged this duty? Her counsel has argued this ground of appeal in three parts: Provision of maintenance, abuse of children and lack of affection for them, health and education.

 

I have considered the submission of counsel for the respondent on the alleged financial weakness of the petitioner, particularly the claim that the petitioner was not remitting the children all this time that they were in Ghana and therefore has not sufficient means to perform his fatherly duty in the US if the children are given to him, I have looked at both financial statements exhibit HB1, money gram remittances and the Income Tax Return from the petitioner and GA2 and 4 from the respondent and I am not convinced the petitioner is a man of such straw he is incapable of shouldering the financial responsibility of the children if he is given custody of the children to the US. It is worth noting that the mother of the children is also in the US and capable of invoking the child protection laws in the US in case there is any form of incompetence shown by the petitioner in the care of the children.

 

That the petitioner is of a violent disposition and lacks affection for the children is not factually disclosed anywhere in the records. Being mere allegations in substance I dot intend engaging myself on that submission than to dismiss it as unconvincing. I will say the same for the submissions made by counsel for the respondent in respect of the health and education of the children. It may be true that the children may be having certain peculiar health challenges but I don’t think it can be argued that such challenges can’t be competently handle in the US.

 

The petitioner has also not convinced me that the educational standard in Ghana is better than that in the US for which reason it will be better for the children stay in Ghana. The grandmother is doing her best but the results cannot be the type she can confidently use as a shield to prevent the children expanding their educational horizon in the US.

 

Flowing from above considerations I will dismiss the first ground of appeal. The respondent has failed to discharge the duty she took upon herself when she alleged that the ruling is against the weight of evidence.

 

The next ground of appeal accuses the trial judge for ruling “that the petitioner can have custody of the children in the absence of any physical abuse of the children”

 

From the submissions made by counsel for the respondent it appears he is predicating his arguments on this ground of appeal on section 45 of the Children’s Act, the same section the trial judge alluded to in her ruling. I will quote this section.

 

“45. Considerations For Custody or Access

1. A family tribunal shall consider the best interest of the child and the importance of a young child being with the mother when making an order for custody or access.

2. In addition to subsection(1), a family tribunal shall consider

a. The age of the child

b. That it is preferable for a child to be with the parents except where the rights of the child are persistently being abused by the 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”.

 

In applying this section it is my view that a court should have its eyes on all the factors mentioned therein and give each the weight it deserves, bearing in mind the peculiar facts of each case. What doses of each factor the court considers weighty is a balancing act for the trial court.

 

Counsel’s submissions rely heavily on the children having acclimatized in the Ghanaian environment controlled, as it were, by their grandmother. This is a factor mentioned in section 45(2)(e) of the Act. Also emphatic is his submission that there is the need for continuity in the care and control of the children. For these submissions he relied on cases like In re(an infant) (1967)2 All ER at 881, In re Dankwa(1961) GLR352, Beckley vrs Beckley( 1974) 1GLR 393,Attu vrs Attu(1984-86)2 GLR743, all of which deal with matters concerning the welfare of the child and the need for the court to note circumstances under which a child will be supplanted from his known environment. The undisputed evidence is that the children have been with the respondent’s mother for about 8years. One was 2 years and the other 2 months old when they were brought to Ghana. No doubt a strong linkage with their environment. But as mentioned earlier in this judgment each case has to be examined within its own factual context. It is for this reason that in the case of Attu vrs Attu (1984-86) GLR 144 the High Court stated amongst others that

 

“Unless such traumatic change is proved in all probability to be in the child’s better interest than their present habitat, it will invariably be better to leave the status quo alone”.

 

The trial judge relied on the fact that the Petitioner is the biological father of these 13 and 11 years old children who wants them to stay with him and closer to their mother. She was not convinced there was any good reason to deny him the role of the biological father in the upbringing of the children.

 

The petitioner being the father of the children, there should be very strong reasons, one of which is mentioned by the Act as persistent abuse of the rights of the child by its natural parent, for a court to deny a parent the right to be with its child. It is clear on the record that nothing in the like of any abuse has been established by the respondent. The trial judge was right.

 

The circumstances of this case does not indicate the children will be worse of replanting them in the US where they were born neither does it lead to a conclusion that break in the continuity of care or control of the children will violate their best interest.

 

It is worth noting that the respondent is seeking custody for her mother in Ghana whiles she is in the US and the petitioner, the biological father of the children, is seeking custody for himself. All the circumstances of this case considered, I find it a march that puts the petitioner ahead of the respondent in this claim for custody. I do not think the respondent has been successful in questioning the trial judge’s application of the factors mentioned under section 45 of Act 560 granting custody to the petitioner. I consequently dismiss this ground of appeal too.

 

In consequence the whole appeal before this court is dismissed as without merit.

 

Travel documents in the custody of their grandmother, Grace Agyepomaah be delivered to Counsel for the appellant Peninna Agyarkwaa Asa for onward transmission to Counsel for the respondent, Kwabena Gyamfi Nimako, to enable the children travel to the U.S. when the father decides.