Corinthians Simutowe v Caroline G. W. Njovu Simutowe (APPEAL NO 138/2018) [2019] ZMCA 409 (26 June 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) APPEAL NQ 138/2018 BETWEEN: CORINTHIAS SIMUTOWE PELLANT 2 6 JUN 2019 AND CAROLINE G. W. NJOVU SIMUTO RESPONDENT CORAM: Chashi, Lengalenga and Siavwapa, JJA On 20th February, 2019 and 26th June, 2019. For the Appellant: No appearance For the Respondent: No appearance JUDGMENT LENGALENGA, JA delivered the Judgment of the Court. Cases referred to: 1. WALUSIKU LISULO v PATRICIA ANNIE LISULO (1998} ZR 75 2. ANDREAS PANAGIOTIS XIROCOSTAS v YOLANDA GUISANDA POMA - SCZ APPEAL N2 125 OF 2011 3. ATTORNEY GENERAL v MARCUS ACHIUME (1983) ZR 1 4. J v C (1970) AC 68 S. NKULU NYAWA BANDA v ANTHONY NSANGU SIMBEYE (2016/HP/D212) Jl 6. SCHERER v COUNTING INVESTMENTS LTD (1986) 1 WLR 615 at p. 621 Legislation referred to: 1. THE MATRIMONIAL CAUSES ACT, N2 20 OF 2007 2. THE MATRIMONIAL CAUSES RULES, 1977 3. THE HIGH COURT ACT, CHAPTER 27 OF THE LAWS OF ZAMBIA Other works referred to: 1. THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989 2. HALSBURY'S LAWS OF ENGLAND, FOURTH EDITION, VOLUME 13 This appeal is against the Ruling of 8th June, 2018 by the court below, in which the court declined to grant orders for variation for maintenance of the children of the family and for custody of the first and second born children of the family, sought by the Appellant herein. He made his applications pursuant to section 62(1)(2) of the Matrimonial Causes Act, NQ 20 of 2007 as read with Rule 75(1) of the Matrimonial Causes Rules of 1977 of England. Dissatisfied with the said ruling the Appellant now appeals against the said ruling and has advanced the following grounds: 1. That the court below erred in law and in fact when it held that there are no compelling reasons or circumstance that has changed from the time the order for maintenance was made to warrant the court's discretion to vary the order, ignoring the fact that the maintenance order was made based on facts existing as at 24th July, 2015 when the action was commenced before the house in Woodlands, Chalala was put on rent by the Respondent to collect extra income apart from the parties' respective monthly salaries. 2. That the court below erred in law and in fact by holding that the Appellant has remained evasive to make a full and frank disclosure of his other incomes from the three companies in which he has some interest without proof and contradicting the findings of fact by the honourable Deputy Registrar on the same facts. 3. That the court below erred in law and in fact by holding that the Respondent shall continue to have custody of the children while the Appellant shall have reasonable access to the children, to visit the children in Chongwe on specified days and hours, convenient to both parties. 4. That the court below erred both in law and in fact by failing to exercise its discretion judiciously when it awarded costs to the Respondent. 5. That the court below misapprehended the facts when it stated at page R4 paragraph 3 of the Ruling that: "the Respondent (Appellant) lamented that as a senior government employee, he could not afford on a daily basis or during holidays to travel to Chongwe from Lusaka .•... " Contrary to the evidence presented before it. 6. That the court below erred both in law and in fact when it held that there are no compelling reasons to transfer the J3 matter from the High Court holden at Kabwe to the High Court (Family and Children Court) holden at Lusaka. In support of ground one, it was submitted that, at the time the findings were made by the Deputy Registrar and the Judge, the facts or circumstances of the parties were different from the present circumstances of the parties. According to the submissions filed on behalf of the Appellant, at that time the Respondent was residing at Plot NQ 31266, Woodlands Extension, Chalala in Lusaka and that there was no rental income being received by the Respondent from the four bedroomed house. The only income that was available and considered by the court was the monthly salaries of both parties and the Deputy Registrar found as a fact that the Appellant did not have any other source of income. It was further submitted that the circumstances have since changed and that there is now rental income, which was initially at K2 500.00 per month and later increased to K4 000.00 per month, from the four bedroomed house which the Respondent collects with an additional Kl 000.00 from the rental of a matrimonial property in Chongwe, built by the parties during the subsistence of their marriage. It was also submitted J4 that the Respondent currently occupies rent free accommodation as an incidence of her employment. It was further submitted that the Appellant does not have any extra source of income apart from his salary while the Respondent has a lot of other income over and above her salary. It is, therefore, the Appellant's contention that the court below erred in law and in fact by failing to appreciate the change in the financial and living circumstances of the parties as a basis for considering variation of the maintenance order made earlier by the Court below. The Appellant relied on section 62(1)(2) of the Matrimonial Causes Act, NQ 20 of 2007 and Rule 75(1) of the Matrimonial Causes Rules of 1977. Section 62(1) provides that: "Subject to the provisions of this section, where the Court has made an order to which this section applies, the Court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended." Rule 75(1) of the Matrimonial Causes Rules, 1977 provides that: "an application for variation made shall be supported by an affidavit by the Applicant setting out full particulars of his property and income and the grounds on which the application is made." JS Further reliance was placed on the case of WALUSIKU LISULO v PATRICIA ANNIE LISULO1 in which it was held that: "in maintenance cases, if circumstances change, a proper application must be made before the proper forum." In applying the cited authority to the present case, it is the Appellant's contention that he properly demonstrated and that it has been conceded by the Respondent that the Chalala property has been rented out and that she currently receives the rental income. It was submitted by the Appellant that his application in the court below was for an order for variation of the maintenance order that he pays Kl 500.00 from the rental income and not from his monthly salary as maintenance for the children in addition to the school fees. He further submitted that he had informally agreed with the Respondent for her to collect rentals which are above the monthly maintenance payments and school fees. He contends that she, however, short changed and even applied for contempt of court against him. It is the Appellant's contention that section 56(1) of the Matrimonial Causes Act, clearly provides what ought to be considered in making an order for maintenance and provides as follows: J6 "Subject to the provisions of this section, the Court may, in any matter or cause in which application is made for the maintenance of a party to a marriage, or of children of the family, other than proceedings for an order for maintenance pending the disposal of proceedings, make such an order on such application as it thinks proper having regard to: - (a) The income, earning capacity and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; (b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future." In view of the foregoing provision, it is the Appellant's contention that the refusal by the court below to consider the variation of the maintenance order was erroneous. The Appellant further relied on the case of ANDREAS PANAGIOTIS XIROCOSTAS v YOLANDA GUISANDA POMA2 where the Supreme Court gave guidance that: " ..... the Court, in making an order, is expected to have regard to the income, earning capacity and other financial resources which each of the parties has." It was, therefore, submitted that similarly in this case, the refusal to vary the maintenance order by the court below, was an injustice to the J7 Appellant who has also led a normal life by meeting his basic needs whilst the court below ignored the Respondent's income. To support ground two, the Appellant reiterated his arguments in ground one about the Court's need to the income, earning capacity and other financial resources of the parties to the marriage in matters pertaining to maintenance. It was further submitted that the finding by the court below was arbitrary as there was no evidence on record to lead to its conclusion that the Appellant has other means of income apart from his salary, especially since the copy of his pay-slip that was exhibited was not disputed by the Respondent. It is the Appellant's contention that it is trite law that court decisions must be supported by evidence on record. In view of that, it was submitted therefore, that the court below erred in holding that the Appellant had remained evasive in making a full and frank disclosure of his other incomes from three companies in which he had interest when he had vehemently denied generating any extra income in his affidavit in opposition to summons for maintenance of children. J8 To support this argument, the Appellant relied on the case of ATTORNEY GENERAL v MARCUS ACHIUME3 in which it was held inter alia, that: "The appeal Court will not reverse findings of fact made by a trial judge unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence upon a misapprehension of the facts or that they were facts which on a proper view of the evidence, no trial Court acting correctly can reasonably make." It was submitted that, in the present case, there was no relevant evidence upon which the court below could have made such a perverse pronouncement. It further submitted that there was no abuse of court process by the Appellant applying to vary the earlier maintenance order as it is permissible under the law as earlier demonstrated in the provisions referred to in the arguments in support of ground one. To support ground three, reliance was placed on provisions of the applicable law, decided cases and other works. Sections 72(1) and 75(1) of the Matrimonial Causes Act, NQ 20 of 2007 provide that: "72{1) The Court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of twenty-five - (a) in any proceedings for divorce, nullity of marriage or judicial separation, before J9 or on granting a decree or at any time thereafter, whether, in the case of a decree of divorce or nullity of marriage. 75(1) In proceedings in which an application has been made, with respect to the custody, guardianship, welfare, advancement or education of children of a marriage - (a) the Court shall regard the interest of the children as the paramount consideration; and ..... " Further reliance was placed on Article 9 of the United Nations Convention on the Rights of the Child which provides: "that a child who is separated from one parent or both has a right to personal relations and direct contact with both parents on a regular basis except if it is contrary to the child's best interest." On the cases relied on is J v C4 where the Court stated that: "the welfare of the child being paramount means more than the child's welfare being treated as the top item in the list of items being relevant to the matter in question. The words denote a process whereby when all facts, relationship, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child's welfare. It is the paramount consideration because it rules upon or determines the course to be followed." relevant The Appellant also cited the Zambian case of NKULU NYAWA BANDA v ANTHONY NSANGU SIMBEYE5 where the High Court observed that: JlO " ..... with regard to the application of the welfare principle, Bromley points out that there are no rules for determining who should be granted the right to look after the child beyond saying that the child's welfare is the first and paramount consideration." Further reliance was placed on HALSBURY'S LAWS OF ENGLAND, Fourth Edition, Volume 13 at paragraph 931 which states that: " ..... where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration ..... " From the foregoing, it is evident that the gist of the Appellant's arguments 1 under this ground of appeal, is that he should have been granted custody of the two older children during the school term while the Respondent would have been given reasonable access to them during school holidays or other public holidays or weekends. It is contended that the children's move to Chongwe and the change of schools to Chongwe where the standard of education at the private school ls lower than those in Lusaka, is not in the best interest of the children. It was submitted that the court below ought to have at least granted the Appellant custody during school holidays so that they could properly interact with him. The Appellant further submitted that the order of the Jll court below was also an infringement of the rights of the children to have liberal access to their father or parents. He further argued that the court's order also entails that the children cannot visit any of the Appellant's relatives outside Chongwe which considers to be contrary to Zambian traditional and cultural norms. The Appellant further lamented about the expense of travelling to Chongwe and paying toll gate fees whenever he drove in and out of Chongwe. He, therefore, proposed that, if this Court maintains the custody order by the court below, that he be granted liberal access to the children so that he can reside with them in Lusaka during school and public holidays, including weekends. In support of ground four where he challenged the court below for failing to exercise its discretion judicially by awarding costs to the Respondent he argued that a party should only be condemned to costs when he is guilty of misconduct in the prosecution or defence of the proceedings. To support his argument, he relied on the case of SCHERER v COUNTING INVESTMENTS LTD6 , where Budley, L J stated that: J12 "The normal rule is that costs follow the event. The party who seems to have unjustifiably brought another party before the court or given another party cause to obtain his rights, is required to recompense that other party in costs, but; the judge has unlimited discretion to make what order as to costs he considers that the justice of the case requires. reasonable Consequently a successful party has a expectation of obtaining an order to be paid the costs by the opposing party but has no right to such an order for it depends upon the exercise of the court's discretion." With regard to the present case, the Appellant submitted that there was no misconduct in his application to the court as it was made on sound reasons. He, accordingly, urged this Court to quash the order of the court below and to order that each party bears his or her own costs. In relation to ground five, it was submitted that despite the fact that the Appellant stated in his affidavit in reply that he is a very junior government employee, the court below in its ruling made a finding that he is a senior government employee contrary to evidence on record. It was submitted that the finding of fact is not only perverse but also has the connotation that the Appellant earns a higher salary, when in fact not. It was further submitted that, therefore, on the authority of the ACHIUME case, the said finding should be set aside. With regard to ground six, it was submitted that since both the Appellant and the Respondent are residents of Lusaka and Chongwe J13 respectively, and that they have never lived in Kabwe before, the Appellant is wondering why the Respondent commenced the action in Kabwe. It was further submitted that the Appellant's reasons for requesting a transfer of the matter to Lusaka were well articulated in his affidavits filed into court. It is the Appellant's contention that since there is no finality on maintenance and custody orders, as the same are subject to periodical reviews, it would be in the interest of justice for the matter to be transferred from Kabwe to Lusaka High Court because of the travel expenses involved. He relied on section 23(1) of the High Court Act, Chapter 27 of the Laws of Zambia which provides that: "23(1) Any cause or matter may, at any time or at any stage thereof, and either with or without the application of any of the parties thereto, be transferred from one judge to another judge by an order of the judge before whom the cause has come or been set down." The Appellant submitted that the Respondent would not suffer any prejudice if the case is transferred to Lusaka. He further contends that the court below erred by declining to transfer the matter. J14 In conclusion, the Appellant prays that that the appeal be allowed and that each party be ordered to bear his or her own costs in both this Court and the court below. At this stage we wish to make an observation that the Respondent did not file any heads of argument in opposition to the Appellant's appeal and she also did not make an appearance at the hearing of the appeal. In the circumstances, we concluded that she had no interest in the matter. We, therefore, proceed to determine the appeal on the Appellant's documents filed into court. We have considered the grounds of appeal, ruling appealed against, Appellant's heads of argument and authorities therein. With regard to ground one, we accept the Appellant's argument that the court below erred in law and in fact by declining to vary the maintenance order based on the changed financial circumstances of the parties. We also acknowledge the position of the law on applications for variation of maintenance orders as contained in section 62(1)(2) of the Matrimonial Causes Act NQ 20 of 2007 and Rule 75(1) of the Matrimonial Causes Rules, 1977. JlS Based on the affidavit evidence that was before the court below, we are of the considered view that the same ought to have been given due consideration, as it was not disputed. We, therefore, find merit in ground one and we, accordingly, allow it. We turn to ground two. Upon our perusal of the evidence on record, we observed that the Respondent's contention that the Appellant had other income from three companies in which he had interest, was not supported by any evidence. In the circumstances, we find no basis upon which the court below could have based its finding. We, accordingly, find that this ground equally has merit and we allow it. With respect to ground three we noted the Appellant's argument that he should have been granted custody of the two older children, as opposed to being granted access to them, we acknowledge that he needs to spend time with his children and that the Respondent's transfer to Chongwe may have created further problems of access to them, we are also mindful that they are still too young to be in the Appellant1s custody as proposed. We are, therefore, of the considered view that the court below considered the evidence before it, before arriving at the decision that it did. J16 We, accordingly, decline to interfere with the decision of the court below in as it relates to custody because custody orders are subject to review whenever or as circumstances change. With regard to the Appellant's plea that he be granted liberal access to the children so that he may be allowed to spend public holidays, weekends and school holidays, we also considered the same issue of their age and that they are still too young to be left in the Appellant's custody for such long periods. We are mindful of the fact that the Appellant being in employment, he would have to leave the children under the care of other people who would not care for them in the same way their mother would. In the circumstances, we are of the view that it would be better for the status quo to be maintained. As we have pointed out, custody and access orders are reviewable as circumstances change and children grow. In the circumstances, we decline to interfere with the decision of the court below. We, therefore, find no merit in ground three and we, accordingly, dismiss it. We turn to ground four. We agree with the Appellant's argument that costs are awarded at the court's discretion, and that the court's discretion must be exercised judiciously. J17 We, acknowledge, that the Appellant ought not to have been condemned in costs for having filed the applications before the court below. In the circumstances, the court below should have ordered the parties to bear their respective costs. We, therefore, find that ground four has merit and we allow it. With regard to ground five, we had occasion to peruse the record of proceedings and particularly, page 99 and paragraph 10 of the Appellant's affidavit in reply to the affidavit in opposition to summons for custody and/or reasonable access to the children. In the said paragraph 10 the Appellant states that: "That I am a full time very junior Government employee and I cannot everyday be travelling to Chongwe to see my own children even during school holidays as this is not only very costly in terms of transport expenses, and toll gate fees ..... " From the contents of the said paragraph, it is evident that the court below replaced "junior government employee" with "senior government employee." We, therefore, agree with the Appellant's submission that by so doing, the court below changed the context of the Appellant's averment, so as to impute that he gets a higher salary. J18 We, therefore, find that the said finding of fact is perverse within the meaning of the ACHIUME case and we, accordingly, set it aside. Consequently, ground five succeeds and it is allowed. We, finally, turn to ground six. Upon our consideration of the reasons adva need by the Appel I ant for applying for the transfer of the case to Lusaka, we find them to be valid. As the said application is supported by section 23(1) of the High Court Act, we find no reason why we should not consider it favourably by allowing the appeal on this ground. Most of the grounds of appeal having succeeded, the net effect is that the appeal succeeds and it is, accordingly, allowed. party to bear his or her own costs. J. Chashi COURT OF APPEAL JUDGE F. M. Lengalenga COURT OF APPEAL JUDGE M. J. Siavwapa COURT OF APPEAL JUDGE