Bowler v Arcari (Civil Cause 1953 of 1994) [1994] MWHCCiv 10 (20 December 1994)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1953 OF 1994 BRIAN GRANTHAM BOWLER TINA ARCARI Versus PLA INTIFF DEFENDANT CORAM: Chimasula Phiri, Acting J Mr Tembenu, of Counsel for the Plaintiff A Mkwepul a , Off i c i a l Interpreter RULING This i s an ex-parte originating Summons in which the plaintiff seeks declarations and orders as follows:- (1 ) th at Brian Grantham Bowl e r i s the father of Annabel J a ne Arc ari -. Bowler (ii) Brian Grantham Bowler is, just like the defendant, entitled to contribute to the up-keep, mai ntenance and general welfare of Annabel Jane Arcari - Bowler (iii) th a t by reason of the plaintiff's cohabitation with the defendant for over four years and by reason of pre vious contribution to the Child's welfare and upkeep, the plaintiff has acquired parental r ights over Annabel Jane Arcari-Bowler (iv) that the plaintiff has an obligation in terms of sec tion 11 (a) ( i ) of the Courts Act to raise the sai d inf ant as well as in terms of section 23 (3) of the Constitution of the Republic of Malawi (v ) th a t the exercise of his parental rights over Annabel Jane Arcari - Bowler have not been extinguished by the fact that she has been taken out of Malawi . i s There Summons. an affidavi t of Brian I set it out hereunder. Grantham Bowler in support of the AFFIDAVIT '1 . THAT I am a Br itish national permanently r esident in Ma l awi and My my place of abode is at Area 10 in the City of Lilcm9>•;e. f a ther is a British National whilst my mother is a Mal awian; I was born in Malawi and I have g-rown up he r e. 2/ .... 2. 3 . 4. 5. 6. 7 . 8 . 9. - 2 - THAT currently I am worki ng fo r Napolo Ukana Breweries Limited as its Operations Director for the Central and Northern regions as well as being a shareholder in Napolo Ukana Limited' s parent company , namel y Bowl er Investments Limited. THAT I have f or a peri od of over four years co-habited with Trina Jane Arcari, the defendant herein, and that out of that re l a tionship was born Annabel Jane Arcari-Bowler (an infant) on I exhibit hereto a photostat copy of the 10th February, 1992 . said birth certif icate marked "BBl". 'll-IAT the said Trina Jane Arcari is also a Bri tish national, who until t he making of this application was still residi ng and cohabiti ng with me at Area 10 aforesaid. The defenda nt was brought to Malawi by myself in October 1990 and we have hitherto cohabited toget her as husband and wife at Area 10 aforesaid and I have been solely responsible for the defendant's welfare throughout the period of our co-habitation . THAT the defendant has on various occasions and without :: 1y knowledge attempted t o run away with the child . THAT realising that the defe nd ant might succeed in he r attemps to take the child out of the country without my knowledge and consent, I instructed my lawyers to obtain an injuc t ion order to restrain the defendant from taking the child out of the j urisdic tion. The said injunction order was granted on the 13th October, 1994 . However , when steps were taken to serve the house. injunction order on the defendant, she had already left the I exhibit hereto a c opy of the said order marked "BB2". THAT I have however managed to confirm with the i mmigration authorities that the defendant left the country for Europe on I exhibit hereto a lett er of confirmation 18th October 1994. from the Controller of Immigration Services marked "BB3" by me. 'll-IAT since the c hild was born I have been solely responsible for its up-keep and maintenance to the exclusion of anybody else. I e xhibit hereto copies of receipts of payment for medical bills exhibited as one bunch and marked "BB4" by me. THAT as the child is now about to reach the school going age, I would l ike to t ake proper control of the child's welfare as regards as the mother of the child continues or is allowed to continue t o keep the child away from me and hinder me from having access to the child. I am howr-~ver unable to do t his as long its education. 10. 11. THAT t he defendant acknowledges the fact that I am responsible f or the child's welfare and since her depar ture from my house, s he has on divers occasions phoned me asking me to contribute to the child's maintenance expenses. THAT I have, since the c hild 's birth will ingly acknowledged my parental responsibilities towards the said infant and I am desirous of continuing to exercise such responsibili ties towards the child's maintenance, up-keep and education in spite of the fact that she has been taken out of my reach for the time being. 3/ .... 12. 13. 14. 15. 16. - 3 - THAT since the defendant left the country for the United Kingdom, we have conversed on the telephone on various occasions and the defendant has just lately informed me that the child is now being looked after by the defendant's mother in London. THAT to the best of my knowledge and belief, the defendant does not dispute my paternity for the infant and she has herself the fact that I am reponsible for the child's acknowledged welfare. transmission sent by the defendant to me after her discussion with my sister Brenda in the United Kingdom. I exhibit hereto a photostat copy of a facsimile It is marked "BBS". THAT I verily believe that by reason of our co-habitation for a period of over four years and by reason of my express acknowledgment over the child's paternity as well as my subsequent support and maintenance for the child over the years since its birth, I have acquired parental responsibility which has not and cannot be diminished by the mere fact that the child has been taken out of the jurisdiction for the time being. I also verily believe that in terms of Section 23(3) of the THAT Constitution of the Republic of Malawi I · have an equal obligation with the defendant to raise the said infant. THAT I am ready and willing to exercise my parental rights over the infant in association and in co-operation with the defendant as requested by her in her fax shown and exhibited hereinbefore as "BBS".' Section ll{a)(i) provides that "without prejudice to any jurisdiction conferred on it by any written law the High Court shall have jurisdiction to appoint and control guardians of infants and generally over the persons and property of infants." Section 23 (3) of the Constitution provides that "Children have the right to know, and to be raised by their parents." The issues which this court has to determine are mainly two. Firstly whether this court has jurisdiction under the above quoted provisions of law to hear this application. Secondly, whether the affidavit discloses sufficient facts on which the court would make the declarations and orders sought. On the question of jurisdiction the counsel for the plaintiff relied on the practice in England in respect of guardianship and jurisdiction laying down, regulating and defining what who does not have the custody of the child shall have. Pentony v Rennie & ML R 149 at P. 153 by Mead J that: matrimonial access the parent It was held in "It would, I think, be quite unworkable if in the guardianship jurisdiction of the court were limited to orders about access in this country alone. Such a result could, as in the present case, be contrary to the best interests of the child". The judge went further to consider s ection 11 (a) (i) of the Courts Act and said: "Having considered the extent of jurisdiction conferred by Section 11 (a) (i) of the Courts Act, I am satisfied that 4/ .... - 4 - the court has a discretion to make an order for access out of the jurisdiction. That discretion must, of course, be exercised judicially. The Court's jurisdiction over infants is of a parental nature, and in exercising that jurisdiction the court follows the well - established principles that the paramount consideration is the welfare of the infant." However, before the judge reached the conclusion quoted above he carefully analysed the basis of conferring that jurisdiction to the court in the following terms at page 152:- "The application is brought under the provisions of the Courts Act. There is no evidence before the Court as to the nationality or domicile of Nicolle. There is no evidence to suggest Nicolle has Malawi nationality or domicile. Section ll(a)(i) of the Courts Act provides in general terms that the High Court shall have jurisdiction to appoint and control guardians of infants and generally over the persons and proper of infants. There is no provision that such jurisdiction shall be exercised only in respect of infants of Malawian nationality or domicile. Residence in Malawi is sufficient to invest the court with jurisdiction. Nicolle is resident in Malawi with the defendant." now and Her even in Malawi. Unlike Nicolle, Annabel Jane Arcari - Bowler was not at the time of the application birth resident Certificatenumber 71255 of 31st January 1994 states that both her father and mother are British Nationals. Her connection with Malawi is that she was born at Malamulo Hospital, Blanytre and lived in Malawi probably until 18th October 1994. I have used the term "probably" because the letter from the immigration office does not state the name of the minor child who accompanied the defendant when she left Malawi Via Kamuzu International Airport. There is no evidence that Annabel Jane Arcari - Bowler was a national or citizen of Malawi by naturalisation or descent. I am aware that the plaintiff has stated in his affidavit that his mother is of Malawian origin. However, there is no dual citizenship I do not or nationality under Malawi law for its citizens or nationals. the declarations and think that this Court has jurisdiction to make orders affecting an the constitutional provision does not in my view confer jurisdiction in rem. The children must be resident in Malawi. infant not in Malawi. resident Even I do not find it necessary to make any findings on whether or not the facts deponed in the affidavit of to warrant the making of the orders sought. the plaintiff are sufficient I dismiss the application on the basis of lack of jurisdiction. MADE in Chambers on 20th December 1994 at Blantyre. , ~ - •1~ ·"" \ :--1' Gl · ! \ _ _j GM Chimasula Phiri ACTING JUDGE