Malazie v Malazie (Misc. Civil Case 14 of 2019) [2019] MWHC 94 (3 May 2019)

Alice Malazie v Francis Malazie Fiona A. Mwale J. IN THE HIGH COURT OF MALA WI LILONGWE DISTRICT REGISTRY MISCELLANEOUS CIVIL CAUSE NUMBER 14 OF 2019 ALICE MALAZIE .................................................................... PETITIONER AND FRANCIS MALAZIE ............................................................... DEFENDANT CORAM HON. JUSTICE F. A. MW ALE. Mpandaguta, Court Interpreter Mwale, J. Introduction RULING ON REVIEW 1. I am seized of this matter by way of reference from the court of the Senior Resident Magistrate in Lilongwe for review pursuant section to 26 of the Courts Act for the exercise of supervisory powers. The said section 26, provides as follows: (I) In addition to the powers conferred upon the High Court by this or any other Act, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts and may, in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof and may remove the same into the High Court or may give to such subordinate court such directions as to the further conduct of the same as justice may require. (2) Upon the High Court calling for any record under subsection (1 ), the matter or proceeding in question shat I be stayed in the subordinate court pending the further order of the High Court. Alice Malazie v Francis Malazie Fiona A. Mwale J. 2. The matter, originally Civil Cause No. 818 of 2018, is a matrimonial cause in which the petitioner filed for divorce on the ground of cruelty. The marriage was duly dissolved after a full trial by the court of the Third Grade Magistrate which also dealt with the issues of property distribution. The reason the matter has been forwarded for review is that the lower court also proceeded to determine custody of the three issue of marriage in favour of the petitioner, with a correlative order for the respondent to pay maintenance. The referring court submits that the court of the Third Grade magistrate lacks the jurisdiction to determine child custody. Determination 3. Since the enactment of the Child Care, Protection and Justice Act, jurisdiction over custody have been specifically conferred on child justice courts by virtue of Section 8(1) of that Act which provides as follows: (1) A parent, a family member or any other appropriate person may apply to a child justice court for custody of a child. Child justice courts are established under section 132 of the Child Care, Protection and Justice Act and their composition is provided for under section 133. For the avoidance of any doubt, I will also reproduce the relevant parts of these provisions below: 132. There shall be established child justice courts, which shall be subordinate to the High Court and shall exercise jurisdiction conferred upon them by this Act or any other written law. 133. - ( 1) A child justice court shall be presided over by a professional magistrate or a magistrate of the first grade. (2) The Chief Justice having been satisfied as to the competence of the presiding officer, may designate a court of magistrates of any grade to be a child justice court and shall publish a notice of designation in the Gazette. (3) A presiding magistrate shall, before commencement of proceedings in a child justice court, ensure that a probation officer of sufficient competence relevant to the requirements of this Act is present throughout the proceedings. Child justice courts were specifically created as specialized courts to deal with all matters concerning children, and as section 8 of the Child Care, Protection and Justice Act makes it expressly clear, custody is one such matter. In the matter before me, to begin with, the lower court that determined the issue of custody is not a child justice court. It is clear from the court record that in determining custody he magistrate did Alice Malazie v Francis Malazie Fiona A. Mwale J. not attempt to follow the procedural requirements of a child justice court set out in section 133(3) of the Child Care, Protection and Justice Act. Even if these procedural requirements had been complied with, child justice courts are by letter of the law composed of either professional magistrates or magistrates of the First Grade and other magistrates as approved by the Chief Justice and accordingly gazetted. The Third Grade Magistrate who made the determination in this case has not been so designated and could therefore not constitute a child justice court. I must therefore agree with the referring magistrate that the lower court lacked the jurisdiction to make a determination on custody and the interim order made in that case is hereby set aside for want of jurisdiction. I further order that the matter be referred to the child justice court in Lilongwe for a determination on the issue of custody within 14 days of the order herein. MADE in Chambers this 3rd day of May 2019. Fiona Atupele Mwale JUDGE 3