Almeida v Almeida (18 of 2024) [2024] MWHCFam 3 (29 November 2024)

RY IN THE HIGH COURT OF MALAWI LILONGWE REGIST: FAMILY AND PROBATE DIVISION MATRIMONIAL APPEAL CAUSE NUMBER 18 of 2024 i i itti Lilongwe (Being Child Cause Number 1304 of 2022 from the Child Justice Court sitting at gwe) (BEFORE JUSTICE J. R. KAYIRA] BETWEEN: epee APPELLANT SHENAZ PETER BHAGWANGI ALMEIDA......csssssssssssssssssesssssesscesssssseccessses AND RESPONDENT RICARDO ANDRE TEIXEIRA ALMEIDA..............cceccccccssssessescseescsvesceseeeceveeeecees CORAM: HONOURABLE JUSTICE JEAN ROSEMARY KAYIRA Counsel Khumbo Soko of Counsel for the Appellant Counsel! Marshal Chilenga of Counsel for the Respondent Mr. Wyson Sikelo Court Clerk and Official Interpreter RULING Kayira J INTRODUCTION This matter resumed in this Court on 29% November, 2024. The Court delivered its ruling and made directions. The Respondent is aggrieved of the ruling and now seeks leave to appeal the order of this Court to the Supreme Court of Appeal. The Appellant prayed that this Court exercises its discretion in determining the application. This is the ruling DETERMINATION The application was made orally before this Court and this Court allowed the same bearing in mind Order 10 rules 1 and 3 of the Court (High Court) (Civil Procedure) Rules of 201 7-CPR. The said provision State as follows; “A party may apply during a proceeding for an interlocutory order or direction of the Court by filing an application in a proceeding in Form 4. A party may apply for an interlocutory order at any Stage, namely; before a proceeding has started, during a proceeding, or after a proceeding has been dealt with, and whether or not the party mentioned the particular relief being Sought in his summons or counterclaim.” This Court bears in mind that the application was made immediately after delivery of its ruling. So, it follows that the application was made within a proceeding. As for the application for leave to appeal to the Supreme Court of Appeal, this Court will consider Section 21 of the Supreme Court of Appeal Act which states as follows: “An appeal shall lie to the Court from any judgment of the High Court or any judge thereof in any civil cause or matter: Provided that no appeal shall lie where the judgment (not being a judgment to which section 68 (1) of the Constitution applies) is— (a) an order allowing an extension of time for appealing from a judgment; (b) an order giving unconditional leave to defend an action; (c) a judgment which is stated by any written law to be final: (d) an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded has not appealed from that decree: And provided further that no appeal shall lie without the leave of a member of the Court or of the High Court or of the judge who made or gave the judgment in question where the judgment (not being a judgment to which section 68 (1) of the Constitution applies) is— (a) a judgment given by the High Court in exercise of its appellate jurisdiction or on review: (b) an order of the High Court or any judge thereof made with the consent of the parties or an order as to costs only which by lawis left to the discretion of the High Court; (c) an order made in chambers by a judge of the High Court; (d) an interlocutory order or an interlocutory judgment made or given by a judge of the High Court, except in the following cases— (i) where the liberty of the subject or the custody of infants is concerned; (ii) where an injunction or the appointment of a receiver is granted or refused; (ii) in the case of a decision determining the claim of any creditor or the liability of any contributor or the liability of any director, or other Officer, under the Companies Act in respect of misfeasance or otherwise; (iv) in the case of a decree nisi in a matrimonial Cause; 1) in the case of an order on a special case stated under any law relating to arbitration; (e) an order refusing unconditional leave to defend or granting such leave conditionally.” Section 21 (1)(c) of the Supreme Court of Appeal Act Clearly requires that an appeal to such a judgment must be preceded by obtaining leave from the Court handling the matter before filing the appeal. A reading of this provision shows that any decision of the lower Court in this case the High Court can be appealed against by an aggrieved litigant. This is to promote the Constitutional right to an effective remedy. However, this does not mean that a person can indeed appeal at any point in time thereby creating a multiplicity of appeals in a single case. The effectiveness of a remedy should also be in line with proper case Management system. This Court had recourse to the case of Premium TAMA and others vs. Mambala and others being Civil Appeal Cause Number 72 of 2046. In that case, the Supreme Court of Appeal stated as follows: “With respect, we think this appeal is prematurely before us. For as long as the damages have not been quantified, the judgment against the Appellants remains inchoate, incapable of enforcement. On the other hand, it opens the door to the real possibility for multiple appeals with parties being at liberty to appeal up to this Court not only in respect of liability but also on the quantum of damages. As experience has shown, it works out an injustice with successful litigants being kept away from the fruits of successful litigation for up to six years or more. In short, judgment remains inchoate incapable of enforcement. To that end, parties should Only appeal wh ere the court has dealt with issues of both liability and damages to finality. Further, in JT! Leaf Malawi L imited vs. Kad Kapachika being MSCA Civil Appeal Cause Number 52 of 2016, the same Supreme Court of Appeal held as follows: “Now even though the appeal has passed the leave test, and we can from that angle properly Proceed to adjudicate on it, we need to observe that there is a development in our jurisprudence that could still operate as a hindrance against us proceeding to so determine this matter. As must by now be common knowledge in the legal circles, for a while now, we have in this Court adopted a new way of handling civil appeals. We only receive and entertain appeals on matters that have been dealt with and determined to completion. Our stand is that appeals must only be taken up in matters in which there is a final judgment and nothing less. The language we have generally used is that we no longer deal with ‘inchoate’ appeals.” In all these cases, the Apex Court advocates for active case management rather than multiplicity of appeal simply because the other appeals were on inchoate orders. This Court considers such an approach as more effective so that appeals should be done on all issues where a party is aggrieved rather than piecemeal. The same approach was invoked in the cases of AON Malawi Limited vs. Garry Tamani Makolo MSCA Civil Appeal Cause Number 22 of 2018 and Toyota Malawi Limited vs. Jacques Mariette MSCA Civil Appeal Cause Number 61 of 2017. Section 41 of the Constitution guarantees all litigants a right to an effective remedy. This right is too broad. Itis a right which aligns with the mandate of the Court to resolve all forms of disputes. In order to respect this Constitutional right, Court are mandated to provide resolution of issues between and/or amongst parties in a timely, efficient and concise manner. As rightly noted by the Supreme Court of Appeal, this matter has been in order Courts since 2016. The parties have been pursuing justice in the courts since then. The subject matter now before this Court relates to custody and accessibility of the only child born between the two. The matter was initially concluded but went for appeal where the Supreme Court of Appeal held that the Courts have no jurisdiction in terms of petition for divorce. As such, divorce proceedings must be conducted in Portugal where the parties celebrated their union. As to the issue of child custody, maintenance and access, the Apex Court referred the same to the Child Justice Court, The matter was handled in the Child Justice Court and was appealed against in this Court. After determining the appeal, the Respondent has also appealed in the Supreme Court of Appeal. When the issue which is now before the lower court was raised in the Apex Court, they Court referred the parties to the lower court. The issue was then brought before this Court for supervision and this Court has made direction for this matter to be expedited. It is not proper to have litigants before the court for such a 4 Oe eres considerable period of time. Disputes must always be resolved within a reasonable period of time. In my considered view, 2016 to 2024 is not a reasonable period within which courts have to resolve issues of child custody and /or access. In short, this is to acknowledge that a continuation of these application lead to no better remedy than just torturing the child who is the subject matter of the present case. As it stands, the parties have pending appeal in the Supreme Court of Appeal, a pending application for relocation in the lower court and the present application. This is not a right way of managing the case. Since the Supreme Court of Appeal referred the application to relocate which the Appellant filed to the lower court, it is only proper that the issue be concluded and then an appeal be handled in the High Court. If the parties are not satisfied, the issue should then be handled in the Supreme Court. This Court holds that the Respondent will not be prejudiced in any way should the matter proceed for hearing. Therefore, leave to appeal is hereby denied. The application to relocate to Portugal should be handled before the Chief Resident Magistrate (Centre) as directed in the most preceding order. COSTS Each party to bear own costs. It is so ordered.