Jonathan Hugh Elliot v Elliot (HPF/D 386 of 2019) [2020] ZMHC 344 (8 October 2020)

IN THE HIGH COURT FOR IBIA --- (cid:9) HOLDEN AT LUSAKA (Civil Jurisdiction) (cid:9) 4 1 8 OCT 2020 i• ) 2019/HPF/D386 BETWEEN: (cid:9) R EGISTRY// 5007, JONATHAN HUGH ELLIOT PETITIONER AND KATONGO ELLIOT (Nee Chilufya) RESPONDENT CORAM: HONORABLE JUSTICE MR. MWILA CHITABO, Sc For the Petitioner: (cid:9) Ms. T. Marietta of Messrs Howard & Marietta Legal Practitioners For the Respondent: Mrs. L. Mushota of Messrs Mushota & Associates RULING Cases referred to: 1. Herman Miles u Patricia Miles (2014) 1 ZR 179 Legislation referred to: 1. The Matrimonial Causes Act No. 20 of 2007 Ri (cid:9) (cid:9) This is a ruling on an application for maintenance of the children and arrears by the Respondent filed on 16th April 2018. It is brought pursuant to Sections 56(1) of the Matrimonial Causes Act No. 20 of 2007. The application is supported by an affidavit filed into Court on 2nd April 2020and deposed to by one Katongo Cliilufya Elliott the Respondent herein. She swore that on 8th November, 2019 the Petitioner commenced proceedings for the dissolution of the their 10 year marriage which was solemnized at the Lusaka Civic Centre on 1st December, 2008. The court was yet to determine the said petition but that the two parties had joint custody of their the children namely; i) Denzel Gerald Ngandwe Elliott born on 30th January, 2010 ii) Theodore James Elliott born on 20th January 2012 iii) Mark Templeton Yula Elliott born on 281 April 2015 She stated that the Petitioner proposed in the Statement as to the Arrangement of Children that he and the Respondent would jointly maintain the children of the family. Contrary to this statement, the Petitioner had not provided shelter, food, clothing, transportation R2 and medical facilitation for the children as this had been the Respondent's sole responsibility. She stated that the Petitioner had only ever paid 50% of the children's School fees since he vacated from the matrimonial home while she paid the other 50% and the cost of extra-curricular activities which the Petitioner had refused to help with. She highlighted the total budget of what she bears alone as follows: 1. Monthly expenses Food (cid:9) Transport (cid:9) Denzel's Football (cid:9) K3,500 K3,000 K350 Packed lunch (he also pays K800 which is half of it DSTV (cid:9) Rent (cid:9) Internet (cid:9) Water (cid:9) Electricity (cid:9) Maid Salary (cid:9) b) School Term Expenses R3 K800 K900 K6,000 K990 K400 K700 K1,600 Theo's Musical class (cid:9) K2,250 School fees(he pays the other 5,750 as the fees are Ku, 250) Stationery (varies with different school requirements but in minimal sum of)K1000 Clothing-estimated sum (cid:9) K3,000 C )Miscellaneous Expenses Medical expenses Entertainment Grooming (hair cut) She averred that it had become hard for her to continue to solely care for herself and the children by providing food, shelter, half the school fees and all of the extra-curricular school requirements, among others. The Respondents stated that the Petitioner was capable of adequately providing for her and the Children of the family because he has enough money from the family businesses and other businesses he runs through consultancy. R4 It was her contention that the Respondent stated that the Petitioner had been paying for Pulilwa's expenses and that he purchased a motor vehicle for Audrey and himself. Further that he moved to Roma in a more expensive location than where he left his family in Ibex Kalikiliki. She deposed that the business which gave more than adequate income to support her and the children include: 1. THINK BIGGER (UK) which company the Petitioner had before the marriage. 2. KABILI Technologies which company was jointly owned 3. MUHU Constancy, a company he opened with Pulilwa during the marriage 4. BRAND PULSE Media, a company he opened with Pulilwa during the marriage She averred that the Petitioner had been working for Chaminuka Lodge as Reservations Manager for the past three years and he is paid an expatriate salary which is deposited in his private account. She produced copies of bank statements from Kabili Technologies Accounts reflecting an average monthly income of K150,000 for the R5 Kwacha account and $4,000 for the dollar account. She stated that the expenditure for the Kwacha account was K100,000 while that of the dollar account was $2,000. The statements were collectively marked "KCE7-KCE8". She averred that despite all the sources of income some of which he conceals or whose details were unknown to the Respondent in Scotland, he refused or neglected to maintain the family claiming that the Respondent earns more than he does. She averred that her net income is K35,518 per month as shown in a copy of her payslip in exhibit "KCE9". Her rentals at ZEC Flats in Kabulonga is K18,000 every three months as shown in exhibit it KCE 10". In opposing the Application the Petitioner filed in an affidavit in opposition deposed by himself. He swore that when the children had been allowed to visit him by the Respondents he cared for them fully. He stated that he had repeatedly offered to accommodate the children at his home and care for their needs but his requests were rejected. R6 According to him, the Respondent had unilaterally decided to keep the children from home which prevented him from enjoying a meaningful relationship with them providing for their needs. He stated that in addition to the agreed 50% contribution towards school fees throughout the separation, he had also provided clothing requirements for the children . He did this most recently in February, 2020 when he provided a range of clothes and school shoes. He produced copies of receipts for the purchase of the clothes and other requirements for the children and the same were marked exhibit "JHE1b". It was his contention that he had not contributed to the children's extra-curricular activities as he personally procured a piano for Theodore's music lessons while the Respondent said she would pay for the extra curricula activities. He stated that he had also contributed to buying stationary for the children. It was his contention that in as much as he had no objection to contributing a reasonable sum towards groceries for the children, the sum claimed was high considering that exhibit "KCE6a" carried the name of a third part , namely Dr. Zambia V in contract to R7 exhibit 11KCE6c" which bears the name of the Respondent. He stated that the said "KCE6a" had items such as wine priced at Ki 14.99 and hair remover cream priced at K179.99. With respect to transportation he averred that the Respondent benefits from a fuel allowance as part of her employment and the transport relied upon to take the children to school is provided by the Respondent's brother is shared by other members of the Respondent's family. He added that the Respondent was using a vehicle she purchased after selling the matrimonial vehicle. It was his contention that the Respondent undertook to settle costs relating to extra-curricular activities for the children. He stated that he contributes to lunch expenses directly to the school. He further stated that he had no objection to making reasonable contribution to DSTV, rent, internet, water, electricity and the maid's salary. With respect to medical expenses he averred that the Respondent enjoys medical insurance incidental to her employment and as such there has never been any need nor requested for him to contribute to the same. Regarding the contribution for entertainment and grooming, the Petitioner contended that the Respondent had denied R8 him access to the children on countless occasions and referred to exhibit "JHE311 . The Petitioner averred that if the Respondent conceded to the children residing with him or at least being allowed equal time with the Respondent's and his home, it would lessen the hardship on the Respondent. And more importantly the children would benefit from being raised by both parents It was his contention that he did not earn much out of the business and produced exhibit "JHE4" evidencing his current financial position. He also exhibited copies evidencing his earnings which were marked "JHE5-"JHE9". He averred that the Respondent had failed or neglected to mention that sometime in 2019, his parents advanced him GBP9,000 to clear a number of debts incurred both before and during the marriage. Both the Respondent and the Petitioner had made an undertaking to repay this money and he had continued to do so as and when funds permit with the outstanding amount being GBP8,000. A copy of an email between the Petitioner and his father was produced to evidence the said loan. R9 He denied deriving any income contrary to what was depicted in the affidavit in support. He stated that the company Think Bigger was no longer operational and he merely utilized its accounts for the transaction purposes. He explained that with respect to MuHu Consultancy which operates under the name Alva Spring Consultancy Limited, he was a 40% shareholder and had not recorded any income or profits since incorporation. He further explained that he was a 10% shareholder in Brand pulse Media Limited which only carried on occasional projects. He produced copies of the company's bank statements marked "JHE14a and V. With respect to his job at Chaminuka, he explained that he was engaged to render consultancy services at Chaminuka Lodge as Reservations Manager since 2019. He produced a letter to evidence that he was not employed as an expatriate marked "JHE15". He stated that his role as consultant there was based on the hours worked which hours had considerably dropped due the COVID -19 pandemic as well as planned phasing down of work hours due to completion of certain objectives. He conceded that he initially used to earn K33,000 per month excluding transportation to and from RiO Chaminuka, talk time and server fees. He stated that his income had drastically reduced since the onset of Covid 19 and other operational adjustments implemented by Chaminuka. He Stated that he had committed to paying the Respondent the monthly sum of K4,000 for maintenance of the children in addition to paying half of the currently stated extra-curricular activities and half the school fees. He also stated that he would provide for them in full in terms of clothing, shelter food and entertainment as and when they were permitted to reside with him. With respect to the assertion pertaining to the Kabili Technologies dollar and Kwacha accounts he stated that that the account was purely a business account and any withdrawals were not personal in nature but for the business. He stated that he questioned the Respondent's motive to exhibit a payslip for August 2019 and contended that it was because a more recent payslip would show that her income was higher than what the Respondent was purporting. He stated that he was aware that the Respondent enjoyed other allowances and benefits incidental to her employment such as fuel allowance, medical insurance for the R11 children and herself as well as bonuses such as a one off all- expenses trip to Dubai for two which she enjoyed late last year. He further stated that he was aware that the Respondent operates several businesses on the side such as supplying vegetables to Food Lovers Market, buying and selling of second hand clothing and tendering for consultancy services. It was stated that it was evident that the Respondent was not being truthful as regards her income and sought to exploit the Petitioner by demanding more than what was reasonable necessary for the benefit of the children. He further averred that it was always his intention to be cordial and reach an amicable settlement as regards dissolution of their marriage and financial support but this was not possible due to the acrimony brought about by the Respondent. In her affidavit in reply the Respondent averred that when the Petitioner deserted the matrimonial home he suggested that he would be picking up the children on Friday until Sunday. There was no formal agreement on how basic needs would be provided for the children between the parties. The Petitioner however started R12 giving excuses that he could not spend time with the children due to other priorities nor did he offer any help while he was away. It was her contention that on 23rd March, 2020 she took the children to the Petitioner's residence in Roma only to find that he had shifted from there some week back and only found the garden boy. According to her, the Petitioner concealed where he resides to prevent his children from visiting him. She stated that the Petitioner liberty to collect the children and spend time with the children until he started taking the children with him to pick up his girlfriend Audrey Mpetemoya in Ngombe Compound. She deposed that the affidavit in opposition showed that the Petitioner's address is Chaminuka Lodge which was worrying because the children would be residing at a lodge. She stated that this was misinformation as the Petitioner does not reside at Chaminuka but cohabits with a girl is says is his partner and are marries under customary law. She contended that the Petitioner had purchased clothing for the children on three occasions the first one was when he bought clothes in Scotland in September 2018, the second was when he R13 bought three pairs of school shoes in February 2020and in May 2020 when he bought 6 T-shirts for the children. It was her contention that she offered to pay for the children's extra-curricular activities because the Petitioner kept saying that he could not afford. She further stated that ironically the Petitioner travelled to Scotland in September, 2018 for a 2 week holiday with his alleged business partner Pulilwa Chewe. He did not leave support for the children at the material time. She clarified that since the Petitioner had no objections to contribute to the groceries the receipt regarding wine and hair remover should be removed as she buys those herself. It was her contention that the transport allocation provided by her employer should not mean that the Petitioner should not provide school transport for the children. She denied that the Petitioner bears most of the costs relating to clothing but that the children spent 80% of the time with he and she could attest to how often the children grow out of shoes and clothes. It was contention that the Petitioner's credit card debts arose from his lavish spending and trips he had in the recent past R14 with his girls. According to her, in 2016 the Petitioner had hounded her to pay him back for airfares for a family holiday even when she was facing retrenchment and financial hardships. She averred that the letter produced by the Petitioner from Chaminuka was not dated and there was nothing to show its authenticity of the said letter. She stated that prior to the COVID 19 PANDEMIC, the Petitioner was getting an undisclosed amount of money as well as income from other businesses but still neglected to meet the family's basic needs. She stated that everyone was affected by the COVID 19 pandemic and people had not abandoned their children. According to her, the 1<4,000 proposed by the Petitioner was not enough to cover rent, food, maid salary, electricity, internet, DSTV and water. She countered this with a claim of K9,000 per month in addition to his 50% contribution towards termly school fees, school transport, monthly fuel and bi-annual maintenance and extracurricular activities for the children as specified in the affidavit in support. She added that the prices she had stated in the affidavit in support were constantly escalating due to inflation, R15 It was her assertion that after he abandoned the family home in 2017, he promised to take care of the Children every weekend but later started making excuses. She stated that when he actually had the children in custody they were at times left in unattended and their homework was not done. She stated that the amount the Petitioner alleged he earned at Chaminuka was the same amount she also earned and stated that increments were only done once a years. She reiterated that she was left with no help with providing for the children and she was going through retrenchment She had to produce some vegetables on her parents farm for 9 months to survive and get back on her feet. She stated that if it was the Petitioner's wish to have an amicable settlement he would not have made false allegations both in the Petition and the affidavit opposing the maintenance. I have considered the affidavit evidence on record. The Respondent is asking this Court to make an Order for the Petitioner to contribute to the maintenance of the children which she has been doing, for the most part, by herself. She contends that the Petitioner has neglected to support the children who have been in R16 her care when he has the financial capacity. She exhibited bank statements of the family the business and also stated that he worked as a Reservation Manager at Chaminuka. On the other hand, the Petitioner alleges that the Respondent has refused to allow him access to the children and made it difficult to provide things like clothing for them. He alleged that contrary to the Respondent's assertion, she was the one with a more stable source whereas his work at Chaminuka had reduced hours due to the Covid 19 which affected his pay. He denied that the businesses he is alleged to be running make as much income as alleged. While I do acknowledge the contentions by both parties, it is the duty of this Court to ensure that the best interests of the children are protected. Section 56 of the Matrimonial Causes Act provides that: "56(1) (cid:9) 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 R17 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." The evidence before me is that the Respondent is in gainful employment. The Petitioner also admits to working as Reservation manager at Chaminuka and also being shareholder in three companies and of the three companies only one of them does not earn an income according to the Petitioner himself. He contended that his incomes have substantially reduced due to the Covid 19 pandemic. While this Court takes judicial notice of Covid 19 pandemic and its possible impact, I agree with the Respondent that even during the pandemic children need to be taken care of. I have carefully RiS considered all the evidence before me it is clear that both the parties earn incomes. Therefore (cid:9) both parties cannot divest themselves of their parental obligations. I will call in aid a case decided by this Court between Herman Miles v Patricia Miles (2014) 1 ZR1 79 where I stated that it is the duty of the parents to provide for children taking into account the means of the parents. He has undertaken to shoulder K4,000 towards rent, water, internet, electricity, DSTV and the maid's salary. This was excluding the 50% of the school fees and extra-curricular activities which he had not objected to paying. The Respondent on the other hand was asking for K9,000 which is in addition 50% contribution towards termly school fees, school transport, monthly fuel, bi-annual maintenance and extra- curricular activities. The Petitioner does not challenge contributing towards the upkeep of the children. What is in issue is the quantum. Based on the evidence before me I hold the view that the transportation cost that is fully covered by the Respondent by virtue of her employment should still be provided in full by the R19 Respondent as she has the means to do so. Similarly, the medical needs of the children will be covered by the Respondent being the parent who is capable of doing so. Where there is evidence that the medical need is not covered by the medical insurance both parties will each contribute 50% of the medical bills. With respect to the termly school fees and extra-curricular activities the Petitioner and the Respondent will each contribute 50% of the amounts due. The Petitioner is also ordered to contribute K6,500 per month for the children's upkeep. For the avoidance of doubt I Order that: 1. Transportation cost for the children will be covered by the Respondent unless the same is no longer provided by virtue of her employment. 2. Medical expenses are covered by the Respondent under the medical cover provided by her employer. Any medical expenses not covered by the medical insurance where there should be covered equally by both the Petitioner and Respondent. R20 3. Both the Petitioner and the Respondent will contribute 50% each for termly school fees and extra-curricular activities for the children. 4. The Petitioner will contribute K6,500 for the upkeep of the children. I order that each party bears its own costs. Leave to appeal is granted. Delivered under my hand and seal this 8th day of October, 2020 Mwila Chitabo, S. C. Judge R21