Andrew William Anderson v Joanne Susan Patterson (APPEAL NO. 119/2009) [2013] ZMSC 73 (26 December 2013)

, . I -Jl- IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 119/2009 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ANDREW WILLIAM ANDERSON APPELLANT AND JOANNE SUSAN PATTERSON RESPONDENT Coram: Chibomba, Musonda, JJS and Hamaundu, Ag. JS On 10th January, 2013 and on 26 th December, 2013 For the Appellant: For the Respondent: Mr. K. Chenda of Simeza Sangwa & Associates Ms . T. Marietta of Sharpe and Howard JUDGMENT Chibomba, JS, Delivered the Judgment of the Court. Cases referred to: 1. Re P [2003] 2 FLR 8 65 2. Re S (A Child) [20061 EWCA civ 479 2 FLR 950 Legislation referred to: 1. The Affiliation and Maintenance of Children Act, Chapter 64 of the Laws of Zambia. When we heard this Appeal, Hon. Mr. · Justice P. Musonda, sat with us. He has since resigned. This Judgment is therefore, a majority Judgment. ' ., -J2- The Appellant appeals against the Judgment of the High Court at Lusaka, in which the learned Judge held, inter alia, that the Appellant shall make available a lump sum payment for the purpose of purchasing a house for the two children, namely, William- Ross Charles John Anderson and Hamish-James Andrew David Anderson, to live in at a place and price to be determined by both parties. This was part of the Maintenance Order which the learned Judge made pursuant to Section 10 of the Affiliation and Maintenance of Children Act (the Act). The facts leading to this Appeal are that the Respondent filed an Originating Summons in the High Court at Lusaka, in which she sought Affiliation and Maintenance Orders for the above named non-marital children, born respectively on 22 nd September, 1997 - and 20 th September, 2001. On 22 nd September, 2008, the parties executed a Consent Order which reads as follows:- "THE PARTIES having agreed terms of settlement and CONSENTING that judgment be entered in such terms as hereinafter provided. BY CONSENT IT IS ADJUDGED that the Defendant herein, ANDREW WILLIAM ANDERSON, is the biological father of WILLIAM-ROSS CHARLES JOHN ANDERSON born on 22nd September 1997 at Lancashire and Tameside General Hospital Ashton-under-Lyne, born on 20th HAMISH-JAMES ANDREW DAVID ANDERSON, -J3- September 2001 at Warwick Hospital, Warwick, both of whom were born to JOANNE SUSAN PATTERSON. IT IS FURTHER ADJUDGED that the Defendant is obliged to provide for the maintenance of WILLIAM-ROSS CHARLES JOHN ANDERSON and HAMISH-JAMES DAVID ANDERSON. The Parties having further agreed terms of settlement and consenting to an order being drawn up in such terms as hereinafter provided. BY CONSENT IT IS ORDERED that the following issues be determined by the presiding Judge as between the parties: a) The quantum of the lump sum payment or periodic payments payable by the Defendant to the Plaintiff for the maintenance of WILLIAM-ROSS CHARLES JOHN ANDERSON and HAMISH-JAMES ANDREW DAVID ANDERSON. b) Whether the Defendant herein has to pay the Plaintiff for the maintenance of WILLIAM-ROSS CHARLES JOHN ANDERSON and HAMISH-JAMES ANDREW DAVID ANDERSON from September 2005. c) Whether the Defendant has to pay for the maintenance of WILLIAM ROSS CHARLES JOHN ANDERSON and HAMISH-JAMES ANDREW DAVID ANDERSON until they attain the age of 21. - d) Whether the Defendant had to pay the Plaintiff's costs in this action." On the issues referred for determination under paragraphs (a) to (d) of the Consent Order, the learned Judge after hearing the parties and analyzing the Affidavit evidence , the submissions and citing various provisions of the Act, ordered as follows:- -J4- "1. Access to the Children There shall be shared access to the boys as acceptable in the proposal of 6 th November by the parties namely shared access to the boys on the basis of alternate Christmas and alternate Easter Holidays (avoiding consecutive holidays) and with the long summer holidays being divided into two halves and also two exacts per annum. 2. Expenses The medical insurance in place should continue and where the policy falls short in terms of specialized and other treatment then upon a written report by the insurer to this effect treatment can be sought and paid for by the Defendant. 3. Education The Defendant shall pay School fees for William-Ross Charles John Anderson and Hamish-James Andrew David Anderson to the School agreed to by the Plaintiff and Defendant. 4. Lump sum In accordance with the prov1s1ons of Section 10 (2), the Court orders that the Defendant shall for the benefit of William-Ross Charles John Anderson and Hamish-James Andrew David Anderson make available a lump sum for the purposes of purchasing a house for the children to live in at a place and price to be determined by the Plaintiff and the Defendant. The Respondent is at liberty to decide the manner in which to pay off the house once one is found and agreed upon by the Plaintiff and the Defendant. 5. Periodic payment In accordance with the provisions of Section 10 (1) (a) and (b), the Court orders that the Defendant shall for the benefit of William Ross Charles John Anderson and Hamish-James Andrew David the Plaintiff Joanne Patterson monthly Anderson pay payments of £2,000 to take care of issues such as Grocery, Electricity, Water etc." to -JS- Dissatisfied with part of the Order for payment of a lump sum for purchase of a house in England for the children, the Appellant appealed to this Court advancing one Ground of Appeal as follows:- "1. The court below misdirected itself on a point of law when it ordered that the Appellant make a lump sum payment for the purchase of a house for the children namely William-Ross Charles John Anderson and Hamish-James Andrew David Anderson." The learned Counsel for the Appellant, Mr. Chenda, solely relied on the Appellant's Heads of Argument. It was argued that the only issues the Court below was called upon to adjudicate are those spelt out in the Consent Order. That this did not include the question whether or not a lump sum payment should be made for the purpose of purchasing a house for the Children as what the Court below was called upon to determine is the quantum of maintenance as the Appellant had admitted being the biological Father of the two children and that he was responsible for their maintenance. It was pointed out that the Appellant agrees with the order by the learned Judge for payment of £2,000 per month as periodic payments effective from 17th May, 2006 when the Complaint was -J6- filed. That however, the sum(s) already paid should be deducted. Further, that the Appellant also agrees that he will pay maintenance until the children reach the ages of 18 years. On the issues of education, medical expenses and access, it was submitted that this should be as dealt with in the Consent order. On the Order that each party bears its own costs, that the Appellant agrees with this Order. It was contended that it was a serious misdirection on the part of the Court below to consider an issue that the parties did not refer to it for determination as the Court below had no basis for making such an award under Section 10 (2) of the Act. It was submitted that the import of Subsection 2 can only be appreciated by considering Section 10 ( 1) of the Act which provides the form a maintenance order may take. And that the import of Section 10 (2) is that once maintenance is determined under subsection (1), the Court, in exercise of its power under Subsection (2), may in addition, direct that the maintenance shall be paid in a specified lump sum. As such, the Court below fell into error in awarding to the Respondent the monthly sum of £2,000 as maintenance for the children and also directing that a lump sum -J7- payment be made for purchase of a house for the children. Further, that Section 10 (2) of the Act does not permit such pronouncements. It was further submitted that the facts and the Court's own observation in the Judgment do not justify an order for a house to be purchased since the Children will be in boarding School with the - Appellant paying their School fees. And that during holidays, the children will either stay with the Appellant or the Respondent. Therefore, that the lump sum payment to purchase a house for the Children should be quashed. In opposing this Appeal, the learned Counsel for the Respondent, Ms Marietta, relied on the Respondent's Heads of Argument. In response to the sole Ground of Appeal, it was submitted that the learned Judge was on firm ground when she made a lump sum payment Order for the purchase of a house for the Children as this was one of the issues that was referred to her for determination under the terms of the Consent Order. It was pointed out that the Court below, in considering the quantum of maintenance, was guided by Section 10 of the Act which gives it discretionary power to award specific periodic payments or a lump -J8- sum or both. Referring to page lk of the Record of Appeal where the learned Judge stated that for the lump sum in terms of our law this can be given in addition and not as an alternative, the English case of Re P 1 was cited. In that case, the Court of Appeal awarded a single mother the sum of £1,000,000 for a Central London property ( on trust) together with the sum of£ 100, 000, to refurbish the property and £70,000 per annum as child maintenance. That as such, the Court below was on firm ground. Further, that in Re S (A Child)2 , Thorne, L. J, made reference to the four "S's" (Security, Stress, Schooling and Stability) and held that:- "The award to the mother in relation to the daughter must be proportionate to the father's wealth." It was submitted that the decisions in the above cited cases - highlight the fact that it is not only essential for the children to maintain a standard of living which they became accustomed to or which reflects their father's wealth but also that it is reasonable for the Court to award both a lump sum settlement as well as periodical payments towards maintenance. To buttress this argument, Section 11 of the Act was cited which sets out matters to be considered before making an order for maintenance. It was -J9- pointed out that in the Affidavit in Support of Summons for Affiliation and Maintenance, the Respondent addressed issues relating to her income, earning capacity, property and financial resources. And that the Respondent also addressed specific needs of the children and the standard of living they enjoyed during the cohabitation of the parties and that currently, they are living in a small rented property. In response to the Appellant's contention that the children are in boarding school and hence, there was no basis for a house to be purchased for them, it was submitted that this argument is unfounded and flawed as the children board for a maximum of 4 days and 2 days per week, respectively. In the premises, it was argued, this Appeal against the Order for a lump sum payment e should be dismissed for lack of merit as it would greatly prejudice the Respondent and the Children. We have seriously considered this Appeal together with the arguments in the respective Heads of Argument and the authorities cited therein. We have also considered the Judgment by the learned Judge in the Court below. The major question raised in this Appeal is whether or not the learned Judge in the Court below was on firm -JlO- ground when she ordered that the Appellant should make a lump sum payment for the purchase of a house in England for the children in question to live in. The starting point is the construction of Section 10 of the Act which provides the forms a maintenance order may take. Section 10 (1) and (2) provides that:- "10. (1) A maintenance order may take any of the following forms, that is to say: (a) an order that the defendant shall, for the benefit of a specified child, pay to a specified person or to the child itself, specified periodic payments for a specified term; (b) an order that the defendant shall, for the benefit of a specified child, secure to the satisfaction of the court the making, to a specified person or to the child itself, of specified periodic payments for a specified term. (2) In addition, a maintenance order may specify that the defendant shall, for the benefit of a specified child, pay to a specified person or to the child itself, a specified lump sum." As can be seen from the above provision, a maintenance order may take the form of periodic payments or secured periodic payments. Section 10 (2) quoted above clearly states that a lump sum payment may also be ordered in addition to periodic payments or secured periodic payments. -Jll- In terms of the issues raised in the sole Ground of Appeal, the thrust of the Appellant's argument is that there was no basis upon which the learned Judge ordered a lump sum payment for the purchase of a house for the children as that was not part of what was agreed in the Consent Order. On the other hand, the thrust of the Respondent's argument is that a lump sum payment was one of the issues in the Consent Order which was referred to the Judge for determination. We have seriously considered the above arguments. Perusal of the Consent Order has clearly shown that the issue of lump sum payment for purchase of a house for the children in England was not part of the issues that the learned Judge was requested to determine. The issues that the learned Judge was called upon to - determine were clearly spelt out by the parties in the Consent Order. In paragraph (a) of the Consent Order, the learned Judge was requested to determine the quantum of the lump sum payment or the quantum of periodic payments that the Appellant would be paying for maintenance of the children in question. In no way can paragraph (a) of the Consent Order be stretched to include determination of a lump sum quantum for the purchase of a house -J12- for the children to live in. Therefore, our firm view 1s that the learned Judge misdirected herself by importing into the Consent Order terms that did not form part of the Consent Order. Further, and as stated above, Section 10 of the Act only talks about periodic payments; secured periodic payments and lump sum payment as a form of maintenance of children and not purchase of 9 ahouse. It can also be seen from paragraph (a) of the Consent Order that the learned Judge was only requested to determine the quantum of the lump sum payment or the periodic payments not both. By awarding the sum of £2,000 per month as periodic payments in addition to ordering a lump sum payment for the purchase of a house, the learned Judge went beyond the terms of the Consent Order which only required her to quantify the periodic payments or the lump sum payment. By so holding, we have not overlooked the provision of Section 10 (2) of the Act which empowers the court to order a lump sum payment in addition to periodic or secured periodic payments for the maintenance of children. However, the agreement by the • .. ' -J13- parties in paragraph (a) of the Consent Order specifically requested the learned Judge to determine the lump sum payment or periodic payments quantum only and not both. For the reasons given above, we set aside the order by the learned Judge that a lump sum payment should be made by the Appellant for the purchase of a house in England for the children to 9 live in. We also set aside the order that the Appellant pays £2,000 per month as periodic payments for the maintenance of the children on ground that the two orders are contrary to what the parties agreed upon in the Consent Order. Further, the record also shows that there was no assessment of the Appellant's means by the learned Judge under Section 11 of the Act. This Section requires that an assessment of means be done when determining the maintenance to be paid. It is our firm view that the learned Judge should not have glossed over this prov1s1on. For the reasons stated above, we find merit in this Appeal. We refer this matter to the Deputy Registrar for assessment of the -J14- quantum to be paid by the Appellant under paragraph (a) of the Consent Order. In the circumstances of this case, we order that each party bears its own costs. c::: H. CHIBOMBA SUPREME COURT JUDGE '. ~ -t ' . ................. . . . . . . . . . . . . . E. M HAMAUNDU ACTING SUPREME COURT JUDGE .