By William Yaw Owusu
Friday April 30, 2010
A protracted legal battle has ensued over a 16-year old girl following efforts by the biological mother of the child to take custody of the child.
The mother, Elizabeth Naana Nketsiah, an Educationist in her bid to secure custody of her daughter (name withheld) is meeting fierce resistance from Sarah Chinebuah, the girl’s paternal aunt with whom the girl has stayed for more than 10 years.
Currently, the young girl is believed to be attending Faith Montessori School in Gbawe in Accra.
The girl is said to have lived with the paternal aunt Sarah, since the age of three at Osu, Accra but the alleged persistent attempt by the aunty to prevent the girl’s biological mother from seeing her daughter broke the camel’s back, sparking the legal tussle.
It all started when on June 26, 2009 a panel at the Juvenile Court in Accra presided over by Mrs. Cynthia Wiredu with G.Y.Z. Domelonoo and Ms. Gifty Lamptey as members ordered the girl’s mother to have custody of her biological daughter in a suit filed by Madam Nkestiah against Madam Chinebuah.
The plaintiff had sought to enforce the Children’s Act 1998 (ACT 560) to secure full custody of the girl.
The court had ruled that “the applicant should have custody of her biological daughter since the respondent an auntie of the child has refused access to the extent that she has defied the court order to even produce the child in court for the applicant to be assured that she is alive.”
The court further ordered that the rights and obligation of a maternal parent under custom and custody, maintenance and education of the child be given to Madam Nketsiah as the father is deceased.
The girl’s aunty then filed for stay of execution at the same Juvenile Court and on October 14, 2009, the court presided over by Mrs. Cynthia Wiredu with Mr. N.O. Kwei and Ms. Beatrice Obeng as panel members dismissed the application and awarded GH¢ 200 cost against Madam Chinebuah.
Dismissing the application for stay of execution, he court said “Counsel for defendant/applicant says she thinks the application has a chance of success, but I think that the appeal has no chance of success. The Children’s Act is very clear on the matter when one spouse is not around the maintenance and care of the child falls on the surviving spouse.”
Not satisfied with the Juvenile Court’s decision, Madam Chinebuah on October 14, 2009 the same day she lost the application filed another stay of execution pending appeal at an Accra High Court presided over by Justice K. Amissah-Koomson averring that the Juvenile Court did not follow proper procedure in arriving at its decision to give custody of the child to Madam Nketsiah.
She had also averred that she stands to suffer greater loss if the application was not stayed for the substantive appeal to go on.
The judge dismissed the application by Madam Chinebuah on November 19, 2009, saying “the respondent, the biological mother of the child stands to suffer greater hardship should the instant application be granted”.
“To continue to deny the respondent, the parent of the child access to and custody of her own daughter in favour of applicant is in the absence of proof that she is irresponsible, careless and unloving more painful and harmful to the welfare and best interests of the child.”
Ms. Chinbuah again filed a motion on notice for interlocutory injunction to restrain the Headmaster of Faith Montessori School from releasing the child to anybody other than the applicant (Ms. Chinebuah) at the same court and relied on affidavit filed earlier on to stay the proceedings.
She sought additional order to restrain the Deputy Sheriff from carrying out an execution process on behalf of Madam Nkestiah to whom the court had granted custody of her daughter but was still in the custody of Madam Chinebuah.
On December 22, 2009, Justice Amissah-Koomson in refusing the application for interlocutory injunction said “I have carefully considered the affidavit for and against the application. I have also considered the statement of case of the parties and I am of the view that the application is without merit and same is refused.”
The court then awarded GH ¢ 300 against Madam Chinbuah.
Madam Chinbuah then appealed against the dismissal of the motion for interlocutory injunction by the High Court at the Court of Appeal and on January 26, 2010 a three member panel presided over by Justice S.E. Kanyoke refused the appeal and did not award cost against Madam Chinbuah.
The panel which also included Justices P.K. Gyaesayor and E.K. Ayebi held “we think no proper and plausible reason have been adduced by the applicant to warrant the court granting him an interlocutory order restraining the biological mother the respondent herein from taking custody of the child”.
Madam Nketsiah then completed the execution process and sent the daughter to live with her at Takoradi where the child attended Takoradi International School.
However, on April 10, 2010 when the school kids took a trip to the British Council in Accra for an examination, the girl was allegedly abducted from the Accra Shopping Mall where the kids had gone to have lunch thereby starting another legal battle between the two parties.
Today Friday a court in Accra is expected to hear another round of suits filed in the case over custody of the young girl.
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