Elvis Mtonga v Lubasi (Appeal 37 of 2003) [2003] ZMSC 153 (24 November 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NQ,37qf 2003 HOLDEN AT LUSAKA [CIVIL JURISDICTION] BETWEEN: ELVIS MTONGA AND LUNGOWE LUBASI - - APPELLANT RESPONDENT Coram: Chirwa , Mambilima and Silomba, JJS on the 9th of April 2003 and 24,h November 2003. For the Appellant For the Respondent : : In Person Col. C. Mudenda of National Legal Aid Clinic for Women. JUDGMENT Mambilima JS, delivered the Judgment of the Court. Authorities referred to: (1) J vs C (1970) AC 668. (2) Symington vs Symington [1875] LR 2 Scot Div 414 at 423. (3) Re Mcgrath (INFANTS) (1893) ICN 143 at 148. (4) Dicocco vs Milne 1983 FLR 394 and 400 (5) Re A (Aminor) 2 FLR 394 at 400. This is an appeal by the Appellant against the decision of the Court below, given on 14,h February 2003 refusing to disturb its earlier Judgment, granting physical custody of a minor child to the Respondent and ordering that both parents, the Appellant and the Respondent, should share the responsibility, in the upbringing of the child. The Appellant and the Respondent were married on 25,h February 1997. They had one child, a girl, who is the subject of these proceedings. The Appellant petitioned for dissolution of marriage and on 10,h May 2001, the Court below dissolved the marriage and granted a decree nisi. Pending determination of custody, the Court granted the Appellant temporal custody of the child, with the mother, having regular and unimpeded access to her. Both parties applied for custody of the child and the Court sought a report from the Commissioner for Juvenile Welfare to assist in arriving at a just decision. The Appellant meanwhile applied to vary the temporal Order of custody granted to him so that he could take the child out of the Court's jurisdiction. On 17,h April 2002, the Court ruled: “The child at five (5) years would in the circumstances be better favoured if placed under the mother's custody after father leaves jurisdiction for studies abroad. The father to have access and continue with all parental obligation financially to ensure its welfare within this jurisdiction. I will also order regular supervision by the Social Welfare Officer to ensure the interests of the child are protected. The temporal Order of 14 January 2001 stands. This is subject to review every three (3) months" The Appellant asked the Court to review and reconsider this Order arguing that whilst outside the country, he will be better placed to look after the child financially and in terms of its environment and education. In its Judgment of 31st may 2002, the Court observed that the child was of tender age and that if she left the jurisdiction, it would be difficult for the mother to have access. The Court also was of the view that since the Appellant had a wife and raising a family, the child would have two mothers and this may affect her socially and cause a psychological disorientation to the disadvantage of her well being and interest. The Court then reversed its earlier Order and ordered that the child should remain in the custody of the mother but that the parents would share responsibilities. The Court stated that in making this Order, it had taken into account the mother's new position and power in earning income. The Court also had before it, a report from the Social Welfare Officer which recommended that it was in the best interest of the child to be within the jurisdiction of the mother. On 14,h February 2003, the Court reviewed the Order of custody granted to the mother. Relying on a Social Welfare Report dated 13,h February 2003, the Court decided not to disturb the earlier Order granting custody of the Child to the mother. The learned Judge stated: “I called for Social Welfare Report. I'm very happy with its unbiased report. In the matter of custody of the child, first and paramount consideration is one of the welfare of the child.......... The child should continue to be under the care of the biological mother as Ordered before." The Appellant has now appealed to this Court against this Ruling of the Court below citing five grounds of appeal that: 1. the learned Judge misdirected himself when he ruled that the Order of 31st May 2002 should not be reviewed and the status quo be maintained solely relying on the Social Welfare report without regard to the provisions of the law; and 2. the Judge in the Court below misdirected himself in law when he disregarded the Appellant’s application of 9th February 2003 to adjourn the proceedings and proceeded to hear the matter in his absence. 3. the Judge in the Court below misdirected himself in fact when he failed to take into account the Appellant’s proposals that custody and responsibility over the welfare of the child be shared between the parties; 4. the Judge misdirected himself in fact when he disregarded and failed to take into account the proposal for the child's welfare in respect of her education to the effect that the child be moved to a better school at the Appellant’s expense; and 5. the Judge misdirected himself in fact when he disregarded and failed to take into account the fact that the parties had failed to agree on the arrangement for the child's welfare after the Respondent was awarded temporal physical custody of the child. The Appellant submitted written heads of argument which he augmented with oral submissions. In his oral and written submissions, the Appellant stated that he has been caring for the child and thus continuity should not be broken. He submitted that both parties should have joint i custody and share the responsibility of bringing up the child. He proposed that one party should live with the child during school days, while the other should have her during school holidays. The Appellant prayed that he should be granted custody of the child during the school calendar. He contended that the Order of custody in favour of the Respondent had robbed him -because no agreement was reached on how to share responsibilities. He also stated that he has had the responsibility of educating the child since she was three years old. Submitting in support of the first ground of appeal, the Appellant stated that the principle of law, which the Court applies whenever the welfare of the child was in issue, is the welfare principle. He referred us to various authorities including Section 15(2) of the Affiliation and Maintenance of Children Act, Cap 64 of the Laws of Zambia; Section 1(1) of the English Children's Act of 1989; and the United Nations Convention on the Rights of the Child, all of which stipulate that the welfare or the interests of the child is the paramount consideration in actions involving children. The Appellant also referred us to the case of J vs C<'1 in which Lord McDermott underscored this principle, when he stated that the interest of the child's welfare is the "first important and paramount” consideration. According to the Appellant, the Court below acted contrary to this principle. He went on to state that the Judge was biased and did not hear the evidence. Instead, the Judge relied solely on the Social Welfare report. The Appellant further noted that he did not attend Court to give oral evidence and his affidavit, which was before the Court, was ignored. The Appellant further submitted that there is on record, an injunction granted on 15th January 2003 in favour of the Respondent, which prohibits him from taking the child out of the jurisdiction where he is currently residing. The Appellant argued that this injunction is unjustified in that it denies him his parental rights and that the Court below, was in gross error when it did not consider the impact of the injunction on the child’s welfare. For this submission, the Appellant referred us to Articles 9 (3) and 10 (2) of the Convention on the Rights of the Child. Article 9(3) states that: ✓ "State parties shall respect the right of the child who is separated from one or both parents to maintain personal and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests”. In his written heads of argument, the Appellant also referred us to the statement by Lord Cairns in the case of Symington vs Symington^2! when he said: On both sides there ought to be careful opportunity of access, so that none of the children may grow up without as full knowledge and as full intercourse as the case will admit of with both parents”. The Appellant admitted that he had taken the child out of the jurisdiction of the Court but he argued that he was allowed custody of the child by the Respondent up to 1 l,h January 2003 and that he took the child out on 5th January 2003 which was within the time allowed. He stated further, that the Order of the Court given on 31st May 2002, awarded him rights to reasonable access to the child. On this Order, the Appellant submitted that it should be varied to give specific directives on when and how custody and access should take place: and how the responsibilities would be exercised. According to the Appellant, this Order accords more weight to the claim and interest of the Respondent than the interests of the child and the Appellant. This Order also relied on the Social Welfare reports. In reply to the Appellant’s submissions on the first ground of appeal, Colonel Mudenda submitted that the issues being raised by the Appellant in the various authorities to which he referred the Court were in fact considered by the Court below. He pointed out that in January 2002, custody of the child was transferred from the Appellant to the Respondent and the child was allowed to visit the Appellant in South Africa but he brought her back late, after schools had opened. Col. Mudenda submitted that the Court did review its Judgment of 31st May 2002. He referred us to Order 39 Rule 1 of the High Court Act which gives discretion to a Judge of the High Court “...to open and rehear the case wholly or In part and to take fresh evidence, and to reverse, vary or confirm his previous Judgment or decision..." According to Col. Mudenda, it is apparent from the review that consideration was given to the submissions made by both the Appellant and the Respondent. He concedes that the primary consideration by a Court in a custody matter should be the welfare of the child. Col. Mudenda argued however, that both the Judgment of 31s’ May 2002 and the Ruling of 14,h February 2003, were based on the same consideration. He pointed out that the decision of the Court of 14,h February 2003 shows that the Court requested for a z Social Welfare report before the matter could be finally put to rest. On the contention by the Appellant that he was not heard, Col. Mudenda submitted that the Appellant applied to the Court on 23fd January 2003 to dispense with his personal attendance, impliedly relying on his affidavits. He went on to state that the Appellant attended Court on previous occasions and cross-examined witnesses including a Social Welfare Officer, who gave evidence. Col. Mudenda also submitted that the Appellant had never been denied access to the child. His sister used to pick up the child and the Appellant got the child on 7,h December 2002. He held on to her until 30,h January 2003 when a mandatory injunction was obtained to compel him to surrender the child. Col. Mudenda further submitted that the Respondent had adequately provided for the child and there is no reason to think that she can fail because of her subordinate financial position/ For this submission, he referred us to the Judgment of Lindley L J in the case of re Mcgrath (INFANTS)3 when he said: “...the welfare of the child is not to be measured by money alone nor by physical comfort only. The word ’welfare’ must be taken In its widest sense. The moral and religious welfare must be considered as well as its physical well-being. Nor can ties of affection be disregarded. Col. Mudenda submitted that from the evidence and the Social Welfare report, the Respondent continues to take great care of the child and the need to vary the custody Order does not arise. Colonel Mudenda also referred us to the case of Dicocco vs Milne4 in which Ormrod L J observed: ”... it is generally accepted by those who are professionally concerned with children that, particularly in the early years, continuity of care is a most important part of a child’s sense of security and that disruption of established bonds are to be avoided whenever it is possible to do so.’’ Col. Mudenda argued that the child has established such bonds with the mother and moving her now will merely disrupt this continuity of care. He also referred us to the words of Butler-gloss L J in the case of Re A ( A Minor)5 when he said: "... The unbroken relationship of the mother and child is one which it would be very difficult to displace unless the mother was unsuitable to care for the child." He submitted that the Respondent has been a diligent and responsible parent and she is best suited to continue to have custody of the child. He went on to state that since the Respondent got the child, the Appellant has not contributed anything to the education of the child. According to Col. Mudenda, this does not strike one as a caring parent. He went on to state that there is no reason why the Appellant should not continue to contribute financially towards the education and maintenance of the child. We have given the most anxious consideration to the first ground of appeal. We have also considered the submissions by the Appellant and Col. Mudenda on this ground and the various Rulings made by the Court below with regard to the custody of the child. When the Court below granted a decree nisi for divorce on 10th May 2001, it also granted temporal custody to the father, who is the Appellant for the reason that he should ensure the child's uninterrupted educational progress. The Respondent was allowed “regular and unimpeded access" to the child. These arrangements were pending the hearing of an application for custody. The child was then four years old. The Court Varied this temporal Order on 5,h January 2002 by ordering that the Respondent will have custody of the child whenever the Appellant was away on duty and other causes. We note from the record that the Court appointed the Commissioner for Juvenile Welfare, to be guardian ad litem, until a final custody Order was made in respect of the child. The Court also Ordered that the child should not be physically removed from the jurisdiction of the Court. So far as we can ascertain from the record of appeal, the Respondent applied for custody of the child after divorce and her application was vigorously opposed by the Appellant. The Court, through an Order given on 15,h January 2002, sought a report from the Commissioner for Juvenile Welfare, to "assist the Court in arriving at a just decision for the custody of the child.” The Appellant later applied to vary the temporal Order so that he could take the child out of jurisdiction. His application was refused. The reasons for refusal were that the child, at five years old, would be "...better favoured if placed under the mother’s custody" but the Appellant was to have access and continue with “all parental obligation financially” to ensure the child's welfare in this jurisdiction. The Court Ordered regular supervision by a Social Welfare Officer to ensure that the interest of the child was protected. This Order was subject to review every three months. When the Appellant asked the Court to review its decision of 17,h April 2002, the Court handed down its Judgment on 31st May 2002. After taking into account the rights of the child under the United Nations Convention on child law, the situation of the Appellant who is living outside the jurisdiction of the Court, the age of the child and the possible social and psychological effects of moving the child to live with the Appellant, the Court refused to review its earlier Order. Temporal custody was to remain with the mother, renewable every three months upon ✓ receipt of a Social Welfare Report. One such report was given on 13,h February 2003 and the Court, on 14,h February 2003 handed down a Ruling on review in which, on the basis of the report from the Social Welfare Officer, the temporal Order was not disturbed. We have perused through this report. After evaluating the home circumstances of the mother, the concerns of the Appellant and the Welfare of the Child, the Juvenile Inspector, pointed out that: “...both parents are best for the infant and both of them seek to provide the best for the infant, therefore it does not matter where the infant is as long as there is concerted efforts contributed towards its educational support and general welfare". The Inspector was however of the view that since the infant was establishing herself in her current environment, it was better that she is not disturbed. The Court had on record, the various affidavits and even the testimony of the Social Welfare Officer whom the Appellant cross- examined in May 2002. In our view, the Appellant has correctly stated the position of the law when it comes to child custody matters in his submissions. The primary consideration in such matters is the welfare and best interest of the child and not the status of the contending parties. It is clear to us, from the various Rulings of the Court below that these were the primary considerations which the Court took into account. The Court appointed the Commissioner of Juvenile Welfare as guardian ad litem for the child; it ordered regular supervision by a Social Welfare Officer; and decided that the temporal Order granted to the Respondent would be reviewed every three months. All this was to ensure that the welfare and the best interests of the child were protected. The Appellant currently resides out of the jurisdiction of the Court. The Court and indeed the guardian ad litem has no jurisdiction to monitor the interests and welfare of the child when it is outside the jurisdiction of the Court. For these reasons, we find no merit in the first ground of appeal. In support of the second ground of appeal, the Appellant submitted that he sought an adjournment of the hearing on 14,h February 2003 due to a family emergency but the Court proceeded with the matter thereby denying him an opportunity to present oral evidence and to comment on the Social Welfare report. He submitted further that the Social Welfare Officer did not conduct an investigation into his circumstances. He was not interviewed and neither was his home visited. The Appellant went on to state that the Social Welfare Officer made various allegations against him. He referred us to the second Social Welfare report on page 14 of the record of appeal in which it is stated that the child has a good relationship and has bonded with the step­ mother. He argued that the claim of an uncertain environment with the step-mother and failure to establish a relationship is not valid. The Appellant also submitted that he has been supporting the child even when the child has been in the custody of the mother. He has bought clothes and contributed towards the school fees for the child. The Appellant contended that he ought to have been heard on the last Social Welfare report. Col. Mudenda’s response to the second ground of appeal is that this matter was coming up for a Ruling on 14’h February 2003 and the non attendance by the Appellant did not in any way influence the Court's decision. He further submitted that the Social Welfare report was factual based on the Officer's sincere professional observations and addressed the pertinent issues of the welfare of the child fully. In order to deal with this ground of appeal we have had to look at the record of proceedings. We note that prior to 14,h February 2003, a full hearing was conducted by the Court in May 2002 at which the Social Welfare Officer gave evidence. She was cross-examined by the Appellant. The Appellant categorically stated that he did not agree with her report at that time. We note that the report now being questioned was made by the same officer who made the last report in March 2002. The Court ruled after considering the evidence that the Respondent would have temporal custody of the child which would be reviewed every three months. So far as we can ascertain from the record, the circumstances of the Appellant have not changed. He is still based outside the jurisdiction of the Court. The report does state that the Appellant’s home was not visited because it was out of reach. The report described its main purpose as: to give information on how the infant has been progressing based on the home environment where the infant lived. We are not persuaded that any viva voce hearing would have changed the situation. Besides, the High Court has a wide discretion under the High Court Act to'review its decision in any way deemed fit. The second ground of appeal also fails. The Appellant argued the last three grounds of appeal together. He stated that the custody Order of the Court does not state how and when custody and access should take place. He went on to state that the parties have failed to reach agreement on any arrangement for the child’s welfare and access to the non custodial parent and this has been a source of conflict. According to the Appellant, the Court should give specific directives since the parties cannot agree. He argued that he had made proposals suggesting the arrangements for the child’s welfare and custody but these were not considered. He stated further that the Court below has continued to support the Respondent regardless of circumstances, and not withstanding his right of access provided by the Order. In reply, Col. Mudenda submitted that the Court, in its Judgment of 31st May 2002 and the Ruling of 14,h February 2003, Ordered the parties to share the responsibility of upbringing the child although the mother was given physical custody. He stated further that a detailed Social Welfare Report was prepared which impartially looked at what was best for the child. According to Col. Mudenda, had the child moved to live with the Appellant, she would have had to undergo a complete re-adjustment in a period of three years and this was not the best option. Col. Mudenda further stated that the Court below reviewed the matter on three occasions and was prompted to Order for a further Social Welfare Report after realizing that the Parties could not agree on the question of custody. According to Col. Mudenda, the Appellant's desire is that the Court should rule in his favour but the Court found to 4he contrary after receiving evidence from the Parties as well as from the welfare report. So far as we can ascertain from the record, there is no final Order of custody in respect of the child. The Court will continue to review the situation depending on the status of the Parties and the professional evaluation of the juvenile inspectors. In our view, the Parties as parents have no choice but to pursue the common goal of promoting what is in the best interests of the child. When they fail to do so, the Court has to come in to protect such interests. We are prompted to make this observation because it is on record that the Appellant had taken the child out of jurisdiction without the consent of the Respondent and was only compelled to bring it back under a Mandatory Injunction. On the issues raised in the last three grounds of appeal, the gist of which is that the Court did not take into account the Appellants proposals contained in his application to review Judgment filed on 6,h December Mi 2002, the record shows that this application was heard on 8,h January 2003. The Appellant had requested the Court to dispense with his attendance and determine the matter on the basis of his Affidavit. The Court refused his application because at the time, the Appellant had taken the child out of the jurisdiction of the Court without the consent of the Court or the Respondent. We cannot fault the decision of the Court, which was made against this background. We find the last three grounds of appeal also to have no merit. The whole appeal therefore fails and it is dismissed. In the circumstances of this case, we Order that each party should bear its own costs. D. K. Chirwa JUDGE SUPREME COURT I. C. Mambilima S. S. Silomba JUDGE SUPREME COURT JUDGE SUPREME COURT 19