Chimuka v Sibanda (Appeal 126 of 2016) [2020] ZMSC 142 (25 February 2020)

IN THE SUPREME COURT OF ZAMBIA________ APPEAL NO. 126/2016 HOLDEN AT LUSAKA NOMUSA SIBANDA RESPONDENT CORAM: MAMBILIMA CJ, KAOMA AND MUTUNA JJS; On l«t October, 2019 and 25th February, 2020 For the Appellant For the Respondent In person No-Appearance JUDGMENT MAMBILIMA CJ delivered the Judgment of the Court. CASES REFERRED TO: 1. W AND W (1926) PROBATE DIVISION 111 2. R V GYNGALL (1893) 2 QB 232 3. CHIBWE V CHIBWE (2001) ZR 1 4. NOAH BWALYA AND FREDERICK MUTALE V IDAH NAMWALIZU APPEAL NO. 12 OF 2014 LEGISLATION REFERRED TO: 1) THE MAINTENANCE AND AFFILIATION ACT, CHAPTER 64 OF THE LAWS OF ZAMBIA 2) THE SUPREME COURT RULES, CHAPTER 25 OF THE LAWS OF ZAMBIA 3) THE MATRIMONIAL CAUSES ACT, NO. 20 OF 2007 J2 WORK REFERRED TO: (1) BROMLEY P. M., FAMILY LAW, 3rd EDITION (BUTTERWORTHS, LONDON. 1996) Page 351 1. INTRODUCTION 1.1 This is an appeal from a Judgment of Maka Phiri J, given on 23rd September, 2015 upholding two Subordinate Court Orders: namely a maintenance order directing the Appellant to be paying a monthly sum of K600.00 for the maintenance of the two children he had with the Respondent; and, an order giving custody of the said children to the Respondent. 2. BACKGROUND 2.1 The material facts in this appeal are common cause. The parties were married under customary law, and their marriage was dissolved by the Local Court on 7th May, 2010. Following the dissolution of their marriage, the Respondent obtained an order from the Chingola Subordinate Court for the maintenance of the two children she had with the Appellant. The Court ordered the Appellant to be paying a monthly sum of K600.00 as maintenance for the children with effect from J3 October, 2011. The maintenance order was to remain in force until the children attained the ages of 18 years. 2.2 On 5th June, 2012, the Appellant applied for review of the maintenance order on the ground that the children spent most of their time at his home and only went to their mother’s home to sleep. He sought to take custody of the children or alternatively, have the K600.00 monthly maintenance reduced to KI00.00. The Subordinate Court dismissed his application. 2.3 Aggrieved with the decision of the Subordinate Court, the Appellant appealed to the High Court, contending that the Subordinate Court erred when it ordered him to “compensate” the Respondent a sum of K600.00 per month until the children reached 18 years of age and that the amount was too excessive. He also argued that the Subordinate Court was wrong to order him to maintain the two children without considering that he had eight other children and a wife whom he was looking after. That the Subordinate Court did not also consider the ages of the children and the fact that he was keeping them when they get back from school. He contended J4 that the Respondent was free to re-marry as she had been compensated for a period of two years. 2.4 It would appear that the Appellant did not pursue his appeal against the decision of the Subordinate Court dismissing his application for review. While the appeal was pending, he applied for custody of the children under a different cause number. In dismissing that application, the Subordinate Court granted custody of the children to the Respondent and confirmed its earlier order of maintenance. The order of custody in favour of the Respondent aggrieved the Appellant. He filed another appeal to the High Court. 2.5 The grounds on which he appealed were that the Subordinate Court erred when it failed to consider his application for custody even though the children were above the age of seven. He contended that the Court was wrong to order him to continue paying maintenance of the two children to a divorced woman, for an unspecified period, without considering that he had ten other children and a wife. He argued further that the Court erred when it ordered his employer at the time, to remit a monthly sum of K600.00 into Court, without considering J5 that the children were supported by the Appellant for their school requirements. He expressed concern that the children could be turned into street kids if not given freedom to live with their brothers and sisters as one family. It was his contention that the decision of the Magistrate was unfair to the children’s welfare. 2.6 Before the High Court could hear the appeal, the Appellant filed a fresh application for custody of the two children before that Court pursuant to Section 15(1) and (2) of the AFFILIATION AND MAINTENANCE OF CHILDREN ACT (CAP 64 OF THE LAWS OF ZAMBIA1’). The High Court declined to hear the fresh application for custody on the ground that it was wrong at law and an abuse of the court process. Instead it opted to hear the appeals earlier filed by the Appellant together. 2.7 The first appeal was against the order of maintenance. Submitting in support of the appeal, the Appellant stated that he married another woman who could take care of the children. He complained that he had been paying for the maintenance of the two children while the Respondent was not J6 paying their school fees. He stated that he wanted his two children to grow up with his other children born from his deceased wife and his current wife so that he can also monitor their progress at school. He told the Court below that he had been living in fear because the Respondent was always going to court to complain about the maintenance of the children. 2.8 The Respondent opposed the Appellant’s appeal. Her position was that the Appellant should not be granted custody of the children as he was not at home most of the times. That he had in fact moved out of the matrimonial home to live with his current wife in a different location in Chingola, leaving the children from his deceased wife to live on their own. That consequently, she could not allow her children to stay with the Appellant’s older children who lived on their own without any parental control. She stated further that the Appellant could not take care of his other children because his current wife refused to keep them. That the children only went to the Appellant’s house to eat while they spent nights at her house. She further stated that the sum of K600.00 for the maintenance of the children was exclusive of their school fees. J7 3. CONSIDERATION BY THE LOWER COURT . I After hearing the parties, the Court directed that a home visit be undertaken by a Social Welfare Officer. This was done and the officer rendered a Report. The Report revealed that the Appellant, who had since remarried, was not living in the same house with his children from his late wife. That he resided with his current wife and their three children in another location in Chingola. The Report further revealed that the Appellant's children with his deceased wife lived on their own because his current wife did not get along with them. .2 The Social Welfare Report revealed, on the other hand, that the Respondent lived in a three bedroomed house and was able to provide three meals for her two children. It recommended that the two children should remain in the custody of the Respondent, their mother, who would closely monitor them as they pass through the stages of child development. .3 It is on record that the High Court Judge also interviewed the two children regarding their custody. The first child, who was twelve years old at the time, informed the Court that she was J8 comfortable living with her mother, the Respondent, and that she (the mother) looked after them well. The second child, who was eight years old was not able to follow the proceedings. 3.4 After considering the evidence adduced in the Subordinate Court, the submissions by both parties and the recommendation in the Social Welfare Report, the learned Judge first interrogated the first ground of appeal. In this ground, the Appellant challenged the Order of the Subordinate Court that the Appellant should pay K600.00 per month for both children until they both attain the age of 18. The Court found that there were no arguments advanced in support of this ground of appeal. It noted, however, that the order of maintenance for the children was not compensation to the Respondent after the divorce. The same was meant for the children, and this was in compliance with the law which prescribes that children should be maintained until they attain the age of 18 years. The Court also found that the sum of K300.00 per month for each child was not excessive, considering that the cost of living had gone up. It thus upheld the award of K600.00 per month by the Subordinate Court. J9 .5 In dismissing the Appellant’s contention in the second ground of appeal that the maintenance order was made without considering that he had other children and a wife, the Court held that the Appellant, being the father of the two children, was under a legal duty to maintain them whether or not he has other children. .6 The third ground of appeal was that the Magistrate did not consider that the children were kept by the Appellant when they came back from school. The Judge frowned upon this arrangement which entailed that the children were eating from the Appellant’s house and sleeping at the Respondent’s house. She was of the view that this was not a proper way of dealing with children. The Court, however, observed that the children were in the custody of the Respondent at the time that the Order of custody was made and that, that was the only consideration which the learned Magistrate needed to take into account. The Court dismissed the third ground of appeal. .7 The lower Court also dismissed the Appellant’s fourth ground of appeal in which he had argued that the Subordinate Court failed to consider the age of the children. The Court found that J10 this ground had not been elaborated upon. The Judge, however, found that the Subordinate Court had taken the ages of the children into account because the affidavit in support of maintenance which was filed before it had put the ages of the children as 7 years and 4 years respectively. 3.8 The lower Court found no logic in the last ground of appeal in which the Appellant contended that the Respondent had been compensated for two years and was free to get married. The Court observed that the issue which was before the learned Magistrate was the maintenance of the two children and it had nothing to do with the compensation which was awarded to the Respondent after divorce. The Court, consequently, found the fourth ground of appeal to be irrelevant and dismissed it for want of merit. 3.9 Coming to the appeal against the order of custody in favour of the Respondent, the Court was of the view that the said appeal was instigated by the maintenance order, as the Appellant wanted to escape the responsibility of maintaining the children by taking custody of them. In the view of the Court, this was a wrong motive for seeking custody of the children. Jll 3.10 In his first ground of appeal, the Appellant contended that the Subordinate Court erred in law and fact when it failed to grant him custody when the children in question were above 7 years of age. The Judge was of the view that the Appellant had no justification to seek custody of the children in that in arriving at its decision, the Subordinate Court was guided by the Social Welfare Report which had recommended that the children should continue staying with their mother. 3.11 The High Court had sight of the Social Welfare Report and also directed that a home visit be undertaken by a social welfare officer. According to the Judge, the Report and the visit revealed “very disturbing facts”. It was found that the Appellant had left his children with his deceased wife alone, without any parental guidance or control and moved to a different location with his current wife. The Court concluded and found as a fact, that the Appellant had failed to look sifter his children with his deceased wife and that his contention that he wanted his children to grow up together could not be sustained. That if left in his custody, the children were more likely to end up as street kids. J12 3.12 The Court ordered that the two children should remain in the custody of their mother who had been taking care of them. It further ordered for the discontinuance of the arrangement where the children ate from the Appellant’s house and slept at their mother’s home as it exposed them to instability. The children were however at liberty to visit the Appellant during school holidays. 3.13 The Court dismissed the Appellant’s contention in the third ground of appeal that the Subordinate Court had erred when it ordered his employer to remit money from his salary into Court without considering that the children were supported by the Appellant for their school requirements. The Court found that this ground of appeal had become redundant since the Appellant was no longer in employment and the attachment order had been discharged by the Subordinate Court. 3.14 At the end of the day, the Court below held that the decision of the Subordinate Court was fair, as it was made in the best interest of the children. It dismissed the entire appeal against the order of custody for want of merit. J13 4. GROUNDS OF APPEAL 4.1 Dissatisfied with the Judgment of the High Court, the Appellant has now escalated the matter to this Court advancing four grounds of appeal framed as follows:- “1. The lower Court erred in law and fact when in its judgment when it did not take in the Appellant’s house, (sic) 2. The lower Court erred in law and fact by not considering that the Respondent diverts money meant for the children as result of which they have been unable to attend school; 3. The lower Court erred in law and in fact in not taking into consideration that the Appellant has been making regular payments for maintenance at the Chingola Subordinate Court but yet the Court and Respondent have been depriving the children of the said maintenance which gave rise to a suit by the Appellant under Cause No. 2015/HK/314 and; 4. The lower Court erred in law and in fact by not taking into account that the Appellant is unemployed and would not afford to continue paying the K600.00 monthly maintenance as he depends on farming which is a seasonal undertaking.” The Appellant filed written heads of argument in support of his appeal, which he augmented with oral submissions. 4.2 In support of the first ground of appeal, the Appellant submitted that his failure to have custody of the children was because of the biased and flawed Social Welfare Report to which the Court below attached undue weight and consideration. It was his argument that the Social Welfare Report undermined the best interest of the children. That J14 although he never denied that he kept two homes, this was not to separate his family. His explanation was that the home in which he resided with the younger children and his wife was not big enough to accommodate his entire family. 4.3 The Appellant submitted that his older children and some of the younger ones lived in his other house for convenience; as it would be inhumane for his large family to be ‘cramped up' in one small house just because of what outsiders might consider to be his failure to exercise parental oversight on his children. According to the Appellant, what the Social Welfare Report deliberately failed to mention was that none of his children at his other home had fallen prey to bad vices or had become delinquent. 4.4 In support of the second ground of appeal, the Appellant submitted that the Subordinate Court ordered that both parties should contribute equally towards the provision of school requirements for the children. That while he had been paying his part of the children’s school fees, the Respondent was not, resulting in the children being sent away from school. Further, that he had regularly paid the K600.00 as ordered by J15 the Court, but the children had resorted to living with him. because the Respondent was not adequately providing for them. That the children permanently moved back to his house and the oldest had qualified to grade 8 but her results were withheld by the school because the Respondent was not paying her part of the school fees. 4.5 On the third ground of appeal, the Appellant posed the question: “who benefits from the K600.00 he pays for maintenance when he lives with the children for whom the said maintenance order is intended?” According to him, the judgment of the lower Court had the potential to drive a divisive wedge between him and his own flesh and blood, and doom his children to a life on the streets which had been the fate of most neglected children. He argued that the Court had not been helpful in resolving the questions regarding maintenance and custody, as he was of the view that the law on maintenance had been applied selectively to punish him. 4.6 The Appellant did not make any arguments in support of the fourth ground of appeal. J16 4.7 In his oral submissions, the Appellant maintained that the two children in question live with him and were united with his other children. He conceded that the Social Welfare Officer visited his place and according to him, they witnessed for themselves how happy the two children were. He, however, accused the social welfare officer of conniving with the Respondent and ‘twisting the story’ by saying that the children were suffering. His plea was that the Court should let him stay with his children without any form of intimidation as the Respondent was always going to Court. He maintained that he could not afford to continue to pay for maintenance because he is unemployed and depends on farming, a seasonal enterprise. 4.8 On behalf of the Respondent, Counsel from the National Legal Aid Clinic for Women filed written heads of argument opposing the appeal. They opted not to attend the hearing by filing a notice of non-appearance. 4.9 In response to the first ground of appeal, it was submitted that the Social Welfare Report was not flawed because it objectively reflected the findings of the officers. That there was no J17 evidence suggesting that any of the Appellant’s children would fall prey to bad vices or become delinquent, other than what the Appellant was saying. 4.10 Counsel argued that the Court’s main concern should be the welfare of the children. The Court should ensure that the decisions made are in the best interest of the children and not the parents. Counsel stated that the Social Welfare Officers are mandated to assist the Court to make an informed decision, by making objective recommendations which are in the best interest of the children, even if the parents may not be happy with them. 4.11 To buttress this point, Counsel referred us to Section 15(2) of the MAINTENANCE AND AFFILIATION ACT*1', which states that: “In making any order as to the custody or access, the Court shall have regard to the welfare of the child as paramount consideration and shall not take into account whether from any other point of view the claim of the father in respect of custody is superior to that of the mother and vice versa.” Counsel also cited the case of W AND W(1), in which Lord Marrivale stated that: “Sometimes great importance is attached to the present and future material interests of the child. No doubt they are J18 important matters but I do not think the view of the Court has ever been that they are by any means the most important matters. The matters of immediate consideration are the comfort, the health and the moral, intellectual and spiritual welfare of the children.” 4.12 The gist of the Respondent’s response to the second ground of appeal is that the Appellant is raising fresh evidence which the Respondent had no opportunity to rebut. They submitted that this is contrary to the rules of procedure. In this ground of appeal, the Appellant alleged that the Respondent diverts money meant for the children resulting in the children being unable to attend school. According to the learned Counsel for the Respondent, this ground is not substantiated and should be dismissed for lack of merit. 4.13 In the third ground of appeal, the Appellant alleged that the Court below did not consider the regular payments that he made at the Chingola Subordinate Court for the maintenance of his children. According to the Appellant, it is the Respondent and the lower Court who have deprived the children of the said maintenance. In response to this ground of appeal, the learned Counsel for the Respondent submitted that there was no evidence on record to prove that the lower J19 Court and the Respondent had deprived the children of maintenance. That it was not even clear as to how the Court had punished the Appellant as alleged. Counsel contended that it was the Appellant who had a legal duty to maintain his children until they attain the age of eighteen; and that the Appellant should not seek custody of the children simply because he wants to be relieved of the duty to maintain them. 4.14 In the fourth ground of appeal, the Appellant alleged that the lower Court erred when it did not take into account the fact that he was unemployed and could not therefore continue paying maintenance as he depended on farming, which is a seasonal undertaking. In response, the Respondent argued that it would be contrary to the best interests of the children for this Court to set aside the order of maintenance. To support this submission, Counsel invoked Article 3 of the United Nations Convention on the Rights of the Child which states: “In all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislature bodies the best interests of the child shall be a primary consideration.” J20 It is Counsel’s submission that in view of this provision, it could be contrary to the best interests of the children to set aside the maintenance order in this case. They urged us to dismiss the entire appeal for lack of merit. 5. CONSIDERATION OF THE APPEAL BY THIS COURT 5.1 We have considered the grounds of appeal, the decision appealed against and the submissions by the parties. We will consider the grounds of appeal in the order in which they have been argued. 5.2 The first ground of appeal has been formulated as follows: - “The lower court erred in law and fact when in its judgment when it did not take in the Appellant’s house.” (sic) This ground is vague and makes no sense at all. It does not 1 conform to Rule 58(2) of the SUPREME COURT RULES12*, which requires that a ground of appeal should specify the points of law or fact which are alleged to have been wrongly decided. No point of law or fact is alleged to have been wrongly decided. Clearly, the ground is incompetent and it is hereby dismissed for non-compliance with the rules of court. J21 5.3 In the second and third grounds of appeal, the Appellant alleged that the Respondent was diverting money for the maintenance of the children resulting in them being unable to attend school. He alleged, in the third ground, that he had been making regular payments for maintenance of the children at Chingola Subordinate Court, but that the Court and the Respondent have been depriving the children of their money, giving rise to a suit by the Appellant under Cause No. 2015/HK/314. He also accused the Respondent of not adequately providing for the children with the result that they are now permanently living with him. 5.4 In response, the Respondent has pointed out that there is no evidence on record to show that the Subordinate Court and the Respondent diverted the money meant for the children. We agree. What is on record is that the Appellant was ordered to pay a sum of K600.00 for the maintenance of the two children This amount of money was meant to cater for the children’s daily needs and not meant for their school fees or requirements. The Court below was alive to this fact. It stated:- “The maintenance order is subject to review and J22 is exclusive of school fees and requirements which must be paid separately and equally by both parties.” We find absolutely no merit in the argument that the children were unable to attend school because the Respondent was diverting money which was meant for their maintenance. 5.5 It is clear, from the Appellant’s oral submissions in Court, that the Appellant was actually contending with the order granting custody of the children to the Respondent as a result of which he was ordered to be paying an amount of K600.00 to the Respondent for the maintenance of the said children. 5.6 Contrary to the evidence on record, the Appellant attempted to persuade us into believing that the two children were living with him and that the Social Welfare Report was a “framed story” which should be disregarded. As an Appellate Court, our decisions are solely anchored on the content of the record of appeal. The record of appeal in this case shows that the social welfare report was duly admitted into evidence without any objection from the Appellant. The report speaks for itself. The lower Court was, therefore, not precluded from considering its findings. J23 5.7 We note that the report made damning findings against the Appellant which the Court below could not have ignored. This is because when a court is called upon to determine any question with respect to the welfare and custody of children, the best interests of the child must be the court’s paramount consideration. This principle is pronounced in Article 3 of the United Nations Convention on the Rights of the Child (Supra­ paragraph 4.14) and echoed in Section 15(2) of the MAINTENANCE AND AFFILIATION ACT(1). Courts are required to pay regard to the welfare of the children as a paramount consideration and must not consider whether the claim of the father is superior to that of the mother or vice versa. The principle is further endorsed in Section 75(1)(a) of the MATRIMONIAL CAUSES ACT131 which states that in any application for custody, the best interests of the children must be the paramount consideration. 5.8 It goes without saying that when a Court is considering an application for custody, it has to ascertain, from the evidence before it what would be in the best interest of the children as against those of the parents or guardians. This can be a J24 delicate balancing act. Perhaps, the words of Lord Esher M. R., in the case of R V GYNGALL<3) provide the necessary counsel. He stated:- “The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of the child, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child. The natural parent in the particular case may be affectionate, and may be intending to act for the child’s good, but may be unwise, and may not be doing what a wise, affectionate, and careful parent would do. The Court may say in such a case that, although they can find no misconduct on the part of the parent, they will not permit that to be done with the child which a wise, affectionate, and careful parent would not do. The Court must, of course, be very cautious in regard to the circumstances under which they will interfere with the parental right... the Court must exercise this jurisdiction with great care, and can only act when it is shown that either the conduct of the parent, or the description of person he is, or the position in which he is placed, is such as to render it not merely better, but-I will not say ‘essential’, but-clearly right for the welfare of the child in some very serious and important respect that the parent’s rights should be suspended or superseded; (underlining ours). In the same case, Lord Esher also provides useful guide as to how to measure the welfare of a child. He stated that the welfare of the child: “....is not to be measured by money only, nor by physical comfort only. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded. The Court has to consider, therefore, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion, and the happiness of the child. Prima facie it would not be for the welfare of a child to be taken J25 away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say, from its mother’s lap in one form of religion, it would not, I should say, be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich, that, without regard to any other consideration, to the natural rights and feelings of the parent, or the feelings and views that have been introduced into the heart and mind of the child, the child ought to be taken away from its parent merely because its pecuniary position will be thereby bettered.” 6. CONCLUSION 6.1 In the circumstances of this case, we have no doubt that the Court below decided in the best interest of the children when it refused to grant the Appellant custody. It was not in the best interest of the children to give custody to the Appellant in this case, considering the findings of the Social Welfare Report. The Report revealed that the Appellant moved to a different location in Chingola with his current wife and their children, leaving his children from his deceased wife to live on their own without parental guidance and control. It also revealed that the Appellant’s children from his deceased wife had to live on their own because his current wife did not get along with them. J26 6.2 It is on record that the Judge spoke to the children to listen to their wishes and feelings. The older child who was twelve years old at the time told her that they were comfortable living with their mother who looked after them well. We are satisfied that the Court below properly exercised its discretion. It was on firm ground when it refused to grant the Appellant custody of the children. From what we have stated above, the second and third grounds of appeal cannot stand. They are dismissed. 6.3 Coming to the fourth ground of appeal, we have considered the Appellant’s argument in his oral submissions that he is unemployed and cannot afford to continue paying the K600.00 monthly maintenance as ordered by the Court because he depends on farming which is a seasonal undertaking. The learned authors of P. M. BROMLEY’s, FAMILY LAW'1’ state that:- “At common law a father is under a duty to maintain his legitimate infant children and must provide them with food, clothing, lodging and other necessaries.” Under the MATRIMONIAL CAUSES ACT3, a Court is required, when considering an application for maintenance of, among others, children of the family, to have regard to the ‘income, J27 earning capacity and other financial resources which each of the parties to the marriage has....’ 6.4 In the case of CHIBWE V CHIBWE1, we stated that when making financial provisions, the Court has a duty to take into account all the circumstances of the case including the income of the parties, earning capacity and other financial resources which each party is likely to have in the foreseeable future, their financial needs and obligations. In order to discharge this duty, the Court must conduct a means assessment. 6.5 In the case of NOAH BWALYA AND FREDERICK MUTALE V IDAH NAMWALIZI4, we applied the principle enunciated in the case of CHIBWE V CHIBWE3 We stated, inter alia:- “It has been argued that it was the duty of the 1st Appellant, to produce documentary evidence of his financial position to enable the trial Court to arrive at an appropriate decision. At the same time, it was counsel for the Respondent who argued in the High Court that the Appellant had various sources of income... However, those means were not proved and that evidence was not put before the trial Magistrate. In our view, both the trial Court and the High Court had an obligation to conduct a means assessment since the evidence tendered by the parties did not sufficiently disclose the income and expenditure of the parties, their earning capacity. It seems to us that the trial Court was punishing the 1st Appellant for fathering the children when there was evidence that his net pay was about K800.00 and that he had other serious obligations. As we have already said, maintenance is not meant to cripple the other party but to support the J28 divorced party to maintain the standards she or he had during the subsistence of the marriage.” (emphasis ours) 6.6 It is clear from the record of appeal before us that the High Court did not conduct a means assessment of the parties in this case. By the time that the High Court was seized with the Appeal from the Subordinate Court, the circumstances of the Appellant had changed. He was no longer working and the order which had been granted to attach his earnings at source had become otiose. Before the High Court, the Appellant submitted that he was now depending on farming which was a seasonal undertaking. In these circumstances, it was imperative that the High Court conducts a needs assessment. It was, therefore, a misdirection on part of the High Court judge to have upheld the maintenance order granted by the Subordinate Court, without conducting a proper assessment of the means of the parties and their reasonable expenses. On this premise, the order of maintenance that the Appellant should continue to pay the Respondent K600.00 per month for the two children is set aside. This aspect of the matter is J 29 remitted back to the High Court for a proper assessment of the means of the parties. 6.7 From the foregoing, this appeal has partially succeeded. While we have upheld the Order of custody in favour of the Respondent, we have remitted the aspect of maintenance back to the High Court for an assessment of the parties as to their means. In the circumstances, we order that each party will bear its own costs. I. C. Mambilima CHIEF JUSTICE C. Kaoma SUPREME COURT JUDGE N. K./Mutuha SUPREM OURTJUDGE