Coretta Katungu Mukelabai v Oscar Smith Nyombi Lokoroi (2024/HPF/530) [2021] ZMHC 138 (27 December 2021)

I J1 IN THE HIGH COURT OF ZAMBIA 2024/HPF/530 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Family Jurisdiction) IN THE MATTER OF SECTIONS 141 (l)(a), (2)(a) AND SECTION 144(2)(a)(b)(c) OF THE CHILDREN'S CODE ACT NO.12 OF 2022 IN THE MATTER OF AN APPLICATION FOR SOLE CUSTODY OF THE CHILD NAMELY: IBARU MAHONGO MUKELABAI LOKOROI BETWEEN: CORETTA KATUNGU MUKELABAI APPLICANT AND OSCAR SMITH NYOMBI LOKOROI RESPONDENT Before the Hon. Mrs. Justice T. S. Musonda For the Applicant Ms. A. Nsonge of Messrs. Charles Siamutwa Legal Practitioners For the Respondent No appearance JUDGMENT CamScanner Legislation referred to: J2 (1) The Children's Code Act, No. 12 of 2022 (2) The Constitution of Zambia (Amendment) Act. 2 of 2016 1. INTRODUCTION 1.1 This Judgment arises from Coretta Katungu Mukelabai's ("Coretta") application by Originating Summons dated 11 th July 2024, brought under Sections 141 (l)(a), (2)(a) and SECTION 2(a)(b)(c) of the Children's Code, Act No. 12 of 2022 ("the Act"). 1.2 The application sought the following orders: (i) An order for sole custody of the Child namely; Ibaru Mahongo Mukelabai Lokoroi; (ii) That there be reasonable access by the Respondent; and (iii) Any other reliefs that the Court may deem fit. 1.3 The application is supported by Skeleton Arguments dated 11 th July 2024. 1.4 The Respondent, Oscar Smith Nyombi Lokori ("Oscar"), did not file an opposing Affidavit. The Affidavit of Service dated 11 th November 2024 (exhibit "LCl") shows Oscar was served with the Notice of Hearing and he indicated that the hearing should proceed in his absence. 1.5 At the hearing, counsel for the Applicant, Ms. A. Nsonge, submitted that Coretta would rely on the documents filed in support of the application. 1.6 Despite the application being unopposed, I must still consider and determine it on its merits. 2. THE APPLICANTS' CASE 2.1 Coretta, a Zambian citizen, and Oscar, a Ugadan citizen, are the biological parents of Ibaru Mahongo Mukelabai (Ibaru), born on CamScanner J3 3 rd p t m b r 20 l . A co py of lba ru 's Birth C r ificatc i hibitcd a "CMKl". inc birth, lba ru h a s b n in Co r tta' custody. According to Cor tt , failed o communicat with h "r regard ing lba ru' we ll-be in . Fu rt h erm ore, iding in Uganda, ha ca:- r h r -- fus ·d to, failed an d / or neglected to provide fin ancial s u pport fo r l ba ru 's m a inten a nce . Consequ e n tly, Coretta h a bee n s ole ly res ponsible for lbaru's ca re a nd mainten ance . 2.4 Additionally, Coretta has sole decision-maki ng a u thority regardin g Ibaru's welfare , as Oscar does not participate in th es e d ecisions. 2. 5 Moreover, obtaining Oscar's consent for matters concern ing Iba ru has proven difficult, as he is often unreachable or unrespon sive. Consequently, Coretta is compelled to S\-vear an affidavit in lieu of Oscar's consent whenever she travels abroad wi th Ibaru, findin g this situation inconvenient. 2.6 Coretta seeks the grant of the application to enable Iba ru to continue enjoying her current privileges, a nd to a llm\ Core tta to sa feguard Ibaru's welfare as her sole custodia n. 3. ISSUES FOR DETERMINATION 3.1 l have considered t he evidence a nd Skeleton Arguments filed m support of the applica tion . 3.2 The main issue for my determin a tion is whether to grant the instant application . 4. THE LAW, ANALYSIS AND DETERMINATION 4.1 The governing law for matters concerning children is the Children's Code Act, No.12 of 2022. A child is defined as any person who is eighteen years old and below. (See Part I of the Act and Article 266 of the Constitution of Zambia (Amendment) Act No. 2 of 2016) 4 .2 Pertinent to the application, Section 141 (l)(a) of the Act empowers the Court to make a custody order concerning a child. CamScanner J4 4.3 Additionally, Section 141(2)(a) provides that a custody order may be granted to a parent of the child. 4.4 Furthermore, I have also considered Section 3 of the Act, which mandates that a child's best interest be the primary consideration in any matter or action concerning the child. 4.5 Section 3(2) outlines the criteria for determining the best interests of a child which are as follows: (2) A court, an administrative institution or an authorised officer shall in determining the best interests of a child have regard to - (a) the ascertainable feelings and wishes of the child concerned, having regard to the age and understanding of the child; (b) the child's physical, emotional and educational needs and in particular, where the child has a disability, the ability of a person or institution to provide the special care or medical attention that may be required for the child; (c) the likely effect on the child of any change in the circumstances of the child; (d) the child's age, sex, religious persuasion, cultural background and any characteristics of a child which the court or an authorised officer considers necessary; (e) any harm which the child has suffered or is at risk of suffering; (f)the ability of a parent or a person having parental responsibility for the child to meet the child's needs; (g) the strength of the relationship between a child and the child's parent or a person having parental responsibility for the child; (h) where a child's parents have joint custody, the willingness of the parents to cooperate and co-parent; CamScanner JS (i)the customs and practices of the community to which the child belongs except where the customs and practices are repugnant to justice and morality; U)the child's exposure to, or use of, drugs or precursor chemicals and, in particular, whether the child is addicted to drugs or precursor chemicals, and the ability of a person or institution to provide special care or medical attention that may be required for the child; and (k) other matters that the court, an administrative institution or an authorised officer considers necessary. 4.6 Section 6 of the Act guarantees a child's right to express10n, ensuring that a child capable of forming their own views is informed and given an opportunity to express their opinion in any decision or matter of procedure affecting them. The Court must consider the child's opinion into account as appropriate, considering the child's age, maturity, and the nature of the decision. 4.7 Additionally, Section 144 of the Act outlines factors for the Court to consider when making a custody order, including the best interests of the child, the ascertainable wishes of the child, and the wishes of the parent or guardian. 4.8 The instant application is unopposed by the Respondent. It 1s undisputed that Coretta and Oscar are the biological parents of Ibaru. 4.9 Ibaru's Birth Certificate confirms her birthdate as 23rd September 2014, making her currently ten years old and consequently a child within the meaning of the Act. 4.10 Notwithstanding the lack of opposition, I was obligated to consider Ibaru's views and wishes to ascertain her best interests, pursuant to Sections 3 (1) (2)(a), 6 and 144 (2)(a) of the Act. 4.11 I interviewed lbaru, who was present during the hearing, and she informed me that she had no objection to the application. CamScanner J6 4.12 After considering the circumstances, evidence, applicable law, and Ibaru's wishes, I find that this application serves Ibaru's best interests. 4.13 Based on the foregoing, I find the instant application meritorious. 4.14 Pursuant to Section 143 (1) of the Act, I direct that the Respondent have liberal access to Ibaru, ensuring she maintains a meaningful relationship with both parents. 5. CONCLUSION 5.1 For avoidance of doubt, it is hereby ordered that: (i) A sole custody order is hereby granted to the Applicant, Coretta Katungu Mukelabai. (ii) The Respondent, Oscar Smith Nyombi Lokori, shall have liberal access to Ibaru Mahongo Mukelabai. (iii) The aforementioned orders shall be subject to review or variation in the best interests of the aforementioned child upon application by either party should circumstances change or so .determine. (iv) This being a family .matter, each party shall bear their own costs. CamScanner