Emmanuel Israel Ngoma v Hope Sera Phiri Ngoma (2020/HPF/D450) [2022] ZMHC 110 (31 March 2022)

Rl IN THE HIGH COURT OF ZAMBIA 2020/HPF/D450 AT THE PRINCIPAL REGISTR'rT- :~~~~~~ - -·- HOLDEN AT LUSAKA (Family Jurisdiction) ~~"llBU(' or ZAM _;•flGH ·C.(11 t~·T OF ZA:~1 BETWEEN : EMMANUEL ISRAEL NGOMA AND \ MILY l CHII. DIU lil'I COUlltT DIVISl~H . I 31 MAR 2022 ~ REGISTRY . . P. O. 80•1••e1i~UtAKA PETITIONER HOPE SERA PHIRI NGOMA RESPONDENT BEFORE HON MRS JUSTICES. KAUNDA NEWA THIS 31st DAY OF MARCH, For the Petitioner For the Respondent in person Mrs C. Banda Kaenga, Legal Aid Counsel, LAB RULING CASES REFERRED TO: 1. Re Mcgrath (Infants) 1893 1 Ch 143 2. Re Adoption Application No 41/61 3. J v C 1970 AC 688 4. Copeland v Copeland 904 50 2d 1066 (Mi ss 2004) 5. Re G (Education: Religious Upbringing) Munby LJ (2012) EWCA Civ 6. Mponda v Mponda 2018 ZMSC 350 7 . Mutale Musweu v Ian Musweu Appeal No 30 of 2019 ZMCA 236 LEGISLATION REFERRED TO: 1. The Matrimonial Causes Act No 20 of 2007 1. INTRODUCTION 1.1 This is the Petition er's application fo r a n Order for custody of th e children of the family, which is made pursuant to R2 Section 72 (1) (a) of the Matrimonial Causes Act No 20 of 2007, and was filed into Court of 30th November, 2021. The application is supported by an affidavit. 2. BACKGROUND 2.1 Prior to filing this application, the Petitioner had commenced proceedings for the dissolution of the marriage between him and the Respondent on 2 3 rd November, 2020 pursuant to Sections 8 and 9 (1) (b) of the Matrimonial Causes Act, on the ground that the Respondent h a d behaved in such a way that h e could not reasonably be expected to live with h er. 2 .2 On hearing the m a tter , and in a Judgm ent d a ted 16 th September, 2021, the Petitioner's prayer for dissolution of the marriage was granted. In the Judgment, liberty was granted to the parties to agree on the custody of the children of the family, and in default thereof, either p arty could make an application to m e a t Chambers, which the Petitioner has done. 3. AFFIDAVIT IN SUPPORT OF THE APPLICATION 3.1 The Petitioner in deposing to this a ffidavit, states that divorce was granted on 16 th September, 2021. He further avers that there are two (2) children of th e family, n a mely; (a) Ephraim Ngoma, a boy aged ten (10) years, who was born on 15th September, 2011. R3 (b) Natasha Ngoma, a girl, aged four (4) years, who was born on 7 th September, 201 7. 3.2 It is deposed that the two (2) children of the family are currently living with the Respondent, who is not in any form of employment that would enable her to support the children financially. The Petitioner also states that the last time that the children were in his custody, when the parties were living together, the children were in school, but the Respondent would misuse the money m eant for school fees. 3.3 Further, the Respondent would on several occasions not bother to prepare the children to go to school, and at times, the children would not attend school, or eat, and they would feed from the neighbours. The allegation is that currently, the children are not enrolled in school due to the financial incapacity of the Respondent. 3.4 The Petitioner contends that he is a fit and responsible person, that is capable of attending to the general welfare of the children, including the provision of health care, paying their school fees, providing food and a ll other necessities, as he is in gainful employment, a s an Administrative Assistant at Technical Engineering Company Limited. 3. 5 He further deposes that he is able to provide the children with emotional support, love and a ffection, as well as spiritual guidance essential for their u p bringing. R4 4. AFFIDAVIT IN OPPOSITION 4.1 In an affidavit in opposition filed on 4 th March, 2022, which is sworn by the Respondent, she states that it is not true that herself and her mother are not in any form of employment. She avers that she is employed as an Office Assistant at New Horizon Printing Press, and has been in that employ since the marriage between h er and the Petitioner was dissolved. Thus, she is a ble to provide all the basic needs of the children of the family . 4.2 She denies that the children of the family are not in school, deposing that she has enrolled the child Natasha in school at Man Jerald Hilltop School, and she is in Reception. As regards the child Ephraim Ngoma, the Respondent states that he was enrolled in school at Garden House, but he discontinued after the marriage was dissolved due to lack of support from the Petitioner. The Respondent's averment is that as she is now in gainful employment, she intends to enroll Ephraim in school, but the Petitioner has refused to take him back after h e went there during the December school holidays. 4.3 The Respondent's position is that she is a ble to take care of the children of the family as she so d id even befor e the marriage was dissolved, adding that she has a lways given the children of the family time and they a re close to her. Her position is that it is not in the best interests of the RS children that they remain in the cu stody of the Petitioner, as they are still very young. 4.4 Further, that the Court in granting order s for the custody of children should not only look a t the financial capacity of the parties, but consider their best interests. 5. SKELETON ARGUMENTS IN OPPOSITION 5 . 1 The Respondent in the Skeleton Arguments relies on the case of J v C <3J to argue that the Court in that matter, outlined the factors to be taken into consideration wh en granting Orders for the custody of children. She states t h at the Court in that matter observed that; "The child's welfare is to be treated as the top of the list items relevant to the m atter in question. The words denote a process whereby the relevant facts, relationships, claims and wishes of the parents, risks, choices and other circumstances are taken into account and w e ighed, the course to be applied is that which is m ost in the interest of the child's welfare. It is the paramount consideration because it rules up on or determines the course to be followed". 5.2 Also r elied on, is the case of Re G (Ed u cation: Religious Upbringing) Munby LJt5J wh er e the Court stated that; "Welfare extends to and embraces everything that relates to the child's development as a human R6 being and to the child's present and future life as a human being. The Judge m ust consider the child's welfare now, throughout the remainder of the child's minority and into and through adulthood ..... " 5.3 The case of Re Mcgrath (Infants) f1J is a lso relied on in that regard, stating that the Court in tha t m a tter stated that; "The welfare of a child is not to be measured by money only, nor by physical com.fort only. The word welfare must be taken in its' widest sense. The moral and religious welfare of the child must be considered, as well as t he physical well-being. Nor can ties of affection be disregarded". 5.4 Other cases relied on in this regard , are Mponda v Mponda (6J and Mutale Musweu v Ian Musweu f7J. On the strength of the case of Re Mcgrath (Infants) f1J, the Respondent argues that the welfare of the child is not measured by money alone , nor by physical comfort a lone, but in the widest sense. It is submitted that since the dissolution of the marriage, the Petitioner has r e -married, and he has not demonstrated that his new wife will be welcoming of the children subject of this application. 5 .5 The Respondent has h owever demonstr a ted b y the affidavit in opposition that she has been providing for the children of the family, and she is a very r espon s ible parent, who is R7 able to take the child that is currently in h er care to school. Further, there are no com plaints of p h ysical or emotional harm to children whilst they are in her custody . 5.6 It is also argued that the Respondent is now 1n gainful employment, and she lives in a s ecure home, and if it is the desire of the Petitioner that the children s hould have a good education and/ or life, h e can provide financial support to that effect, whilst they remain in the cu stody of the Respondent, who can provide a safe h om e for them. 6. SUBMISSIONS AT THE HEARING 6.1 The Petitioner stated that he relied on the affidavit filed in support of the application, adding that h e is concerned about the welfare of the children of the family , especially their education. To that end, he stated that h e had given a background to the Respondent's family, highlighting that they do not have a good history wh en it comes to education. 6. 2 He reiterated that since the children wer e taken by the Respondent, they do not go t o school, a nd that the Respondent had confirmed so in h er affid a vit. It was also submitted that the Respondent's sis t er told the Petitioner to get the first born child, so that h e can tak e him to school. Still in submission, the Petitioner told the Court that the Respondent and her mother had said that they should sit down to discuss, and when they did, they h a d s aid that the R8 Petitioner n eeded to pay before h e gets the children. He a lleged that the Respondent and her mother are just interested in money. 6.3 It was also the Petitioner's submission that when the children first went to live with the Respondent, he h a d ask ed the Respondent to find school places for the children, but she h a d told him that they were moving. However , h er sister had said that they were not moving, a nd h e h ad personally looked for school places for the children, but the Respondent did not enroll the children in school, even though h e gave h er money. 6.4 He stated that when he would pass through to see the children, he would find them alone, and th e ten (10) year old child had to look after his four ( 4) year old s ister , and they were being m ocked by their older siblings . The Petitioner stated that h e had taken th e older child to school, and h e was under his sister's watch. He added that th e child is a slow learner, and when he sent the child to the Respondent during the h olid ays, the Respondent did not r elease the child back to him. 6 .5 He a lso submitted that h e paid h a d Kl , 800 .00 as school fees for th e child which went in vain. That this prompted him to apply for custody of the children, as he has a stable home th at will ensure that t h ey get educat ed. He prayed that he be granted custody with reasonable access to the Respondent, stating that recently, the Respondent had R9 denied him access to his daughter. He concluded by stating when he had lived with the Respondent, she was not keen on taking the first born child to school. 6.6 In response, Counsel for the Respondent stated that they relied on th e affidavit filed in opposition, as well as the skeleton arguments. 6.7 The Petitioner in reply, stated tha t paragraph 6 of the affidavit filed on 21 st October, 2021 s tates that both children of the family are not in school. However, in the recent affidavit, that statement h ad changed. The Petitioner submitted t h at he just wanted the children to go to school, adding that they live in Kanyama , which is not good for th eir welfare. He asked the Cou rt t o in t erview the children so that they can indicate where they want to live . 6.8 The Petitioner a lso told the Court that when h e lived with the Respondent, she would use the money on her family, and not on the children of the family . It was stated that the Petitioner has taken the child Ephraim to Springfield School wh ere he pays K2, 500.00 a t erm for the said child, adding that he needs special care. 7. DECISION OF THIS COURT 7.1 I have considered the application. It has been m a de pursuant to Section 72 (1) (a) of the Mat ri m o n ial Causes Act, No 20 of 2007, and which provid es a s follows; RlO "72. (1) The Court may make such order as it thinks fit for the custody and education of any child of the family who is u nder the age of twenty-five- (a) in any proceedings fo r divorce, nullity of marriage or judicial s eparation, before or on granting a decree or at any time thereafter, whether, in the case of a decree of divorce or nullity of marriage, before or after the dec ree is made absolute; or (b) where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a r easonable period after the dismissa l; and in any case in which the Cou rt has power by virtue of this subsection to m a ke an order in respect of a child it may ins t ead, if it thinks fit, direct that proper proceedings be taken for making the child a ward of court". 7 . 2 In this matter , the children of the family are of tender years, h aving b een born in 20 11 and 201 7 respectively, and they are clearly below the age of Twenty-Five (25) years. It will b e seen that the Court when m akin g Orders for t h e Rll custody of ch ildren, is guided by S ection 75 of the Matrimonial Causes Act which stat es th at; "75. (1) In proceedings in w hich a pplication has been made with respect to t he custody, guardianship, welfare, advancemen t or education of children of marriage- (a) the Court shall regard the i nterest of the children as the p aramount con sideration; and (b) subject to paragraph (a) t he Court may make such order in respect of those m atters as it thinks proper. (2) The Court may a djourn any p roceedings referred to in subsection (1) until a report has been obtained from a welfare officer, or from some other suitable person app ointed for this purpose by the court, on such matters relevant to the proceedings as the Court con siders desirable and may receive the report in evidence. (3) In proceedings with re spect to t he custody of children of a marriage, the Cou rt m ay, if it is satisfied that it is desirable to do so, make an order placing the children, or such of them as it thinks fit, i n the custody of a person other than a party to t he marriage. R12 (4) Where the Court makes an o rder placing a child of a marriage in t he custod y of a party to the marriage, or of a person other t ha n a party to the marriage, it may inc lude in the order such provision as it thinks p roper f or a ccess to the child by the other party to the m a rriage, or by the parties or a party to the marriage, as the case may be". 7 .3 From the above, the best interests of the child, is the primary consideration , when gr antin g Orders for the custody of children. This principle is en shrin ed in Article 3 of the Convention on the Rights of t he Child (CRC). The Respondent has cited various auth or ities which speak to the best interests of the child, a s bein g th e paramount consideration when granting Orders for the custody of children. 7.4 Those authorities have said tha t m on ey or comfort alone do not constitute the best interests of the child , but rather, a ll the factors are to be considered in the wides t s ense. In the case of Re Adoption Application t2 J Dankwarts W stated as follows; " ...... The mere desire of a p a rent to have his child, must be subordinate to the co nsideration of the welfare of the child, and can o n ly be effective if it coincides with t he we lfa re of t he child. Consequently, it cannot b e correct to t alk of the R13 pre-eminent position of p arents, or their exclusive right to the custody of their children, when the future welfare of those children is being considered by the Court". 7 .5 Further, in th e case of Copeland v Copeland f4J, refer ence was made to the case of A lbright v Albright) where it was stated that ; "The Albright factors used to determin e what is in the best interests of t he child in regard to custody are: Age, health and sex of t h e child. Determination of t he parent that had the continuity of care p rior to t h e separation; which has the best parenting skills and which has the capacity to p rovide primary care, the employme nt of the parents and responsibilities of that e mployment, physical and mental health and age of the parents, emotional ties of the p a rents and child; moral fitne ss of parents; the home school and community record of the child ..... stability of the home environment and other factors relevant t o the parent child relationship". R14 7 .6 Thus, financial capacity of a party is but on e of the factors, the primary one, that the Court considers when granting Orders for custody, the best interests of the child, which promotes the welfare of the ch ild, b eing the pnmary consideration. The Petitioner by his a ffid avit filed in support of the application and h is submissions, contends that he is better placed to prom ot e the welfare of the children of the family, by providing th em the necessary financial support, as well as prom oting their well-being, by ensuring that they attend sch ool a nd m eeting their emotional and social needs. 7.7 The Respondent on the other h a nd, contends that contrary to the assertions by the Petition er , s h e is n ow in gainful employment, as a n Office Ass istant at Hor izon Printing Press, and she h a s since enrolled the secon d child in school, and she is therefore ca p able of look ing after her. The Petitioner has also contended th at she has been able to provide care for the children of t h e family, a nd sh e is close to them. Thus, it would be in th e children 's best interests that they remain under her care . 7 .8 I have said that the children of th e family a r e of tender years, and in granting an Order for thei r cust ody , their welfare or well being is the p rima ry con sid eration. The Petitioner has indicated that th e Responden t even whilst they lived together, did not a t tim es both er t o prep are the children for school, and that she has n ot shown any RlS interest in taking the first child, who is a slow learner to school. This prompted him to take the child and enroll him in school. 7.9 While in the skeleton arguments, it is alleged that the Petitioner has re-married, and he has not shown whether his new wife has embraced the children of the family, this is an argument at the bar, as there is no such averment in the affidavit in opposition. Arguments from the bar are not evidence. 7.10 The Petitioner contends that in the affidavit filed on 21 st October, 2021, the Respondent had stated that the children are not in school, but in the affidavit in opposition filed on 4 th March, 2022, she deposes that the child, Natasha, has been enrolled at Man Jerald Hilltop School. It may be that the circumstances have changed since the affidavit on 21 st October, 2021 was sworn, as the Respondent has now enrolled Natasha in school. The Respondent in her latest affidavit however, admits that the first child had dropped out of school. 7.11 From the submissions made by the Petitioner, it can be seen that he has since enrolled the first child in school. The younger child is in custody of the Respondent, and it is in her best interests that she remains there, so that she can receive motherly love, especially that she is a girl child. As the first child has been enrolled in school, it would not be in his best interests that he be removed from there. R16 7.12 In the interim, I therefore grant the Petitioner custody of the first born child, and the second child shall remain in the custody of the Respondent. Each party s h a ll have reasonable access to the child that is not in their custody. In order to establish the living conditions of the children, so that it can be determined in whose custody they are better placed, I direct that through Counsel for the Respondent and the Petitioner, the Social Welfare Office shall be engaged to conduct home visits to both parties' residences, and they shall interview the children of the family, and thereafter prepare a report. 7 .13 This shall be done within three (3) months from today, and on the report being filed, I will consider revision of the interim custody Order. Each party shall bear their own costs of the application. DATED AT LUSAKA THIS 31 st DAY OF MARCH, 2022