Mayankumar Ramanal Patel v Charulata Mayankumar Patel (APPEAL NO. 66/2017) [2018] ZMCA 621 (27 April 2018)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 66/2017 HOLDEN AT KABWE (CIVIL JURISDICTION) IN THE MATTER OF : ORDER 30 RULE 1 l(E) OF THE HIGH COURT RULES CHAPTER 27 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF: SECTION 15 OF THE AFFILIATION AND MAINTENANCE ACT CHAPTER 64 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF : AN APPLICATION FR CUSTODY OF A MINOR CHILD-ASHIMI MAYANK PATEL- AGED 3 YEARS BETWEEN: MAYANKUMAR RAMANAL PAT PPELLANT AND CHARULATA MAYANKUMAR PATE RESPONDENT CORAM : CHISANGA JP, CHISHIMBA, KONDO LO SC, JJA On 4 th October, 2017 and 27th April, 2018 For the Appellant: Mr. M. Katolo of Messrs Milner & Paul Legal Practitioners For the Respondent: Mr. K. Wishimanga of Messrs AM Wood & Company JUDGMENT KONDOLO SC, JA delivered the Judgment of the Court CASES REFERRED TO: 1. Samuel Miyanda v Raymond Handaho (1994) S. J. 39 (S. C) LEGISLATION REFERRED TO : 1. The Affiliation and Maintenance of Children Act, Chapter 64, Laws of Zambia 2. The Supreme Court Practice of England (the "White Book"), 1999 Edition 3. The High Court Rules, High Court Act Chapter 27, Laws of Zambia SUPREME COU RT ~i.:i I O 7 MAY ;;;·~·-· J\""h '-A ~~ i . I,. . . . - LI B RARY R2 of8 This is an Appeal against the decision of the High Court in which the Appellant's application for custody of a child was denied. The backdrop is that the Appellant commenced an action against his wife, the Respondent, by way of Originating Summons pursuant to Section 15 of the Affiliation and Maintenance of Children Act, seeking an Order for custody of their child, Ashmi Mayank Patel. However, before the matter could proceed to trial, the Respondent filed a Notice of Motion under Order 14A Rules 1 and 2 of the Supreme Court Practice (the White Book) and under Order 3 Rule 2 of the High Court Rules to have the Appellant's application dismissed on a point of law on the grounds that the lower Court had no jurisdiction to entertain the action for the reasons that the parties were not Zambian and that the Court had not issued a maintenance order in respect of the child. The Appellant opposed the application and argued that the Appellant was Zambian and the parties were domiciled in Zambia bringing the application within the jurisdiction of the Court. The Appellant further contended that a custody order could still not be granted in the absence of a maintenance order. The lower Court, determined the matter in favour of the Respondent and found that the provision of the law cited did not permit the Court to make a custody order in the absence of a maintenance order meaning that the Court could not entertain the Appellant's application for custody. R3 of8 With regard to the domicile of the parties, the learned trial Judge found that the Appellant having obtained American citizenship renounced his Zambian citizenship and that the child in question having. been born in the United States of America (USA) was thus a citizen of that country. According to the trial Judge, there being no evidence that the Appellant and the Respondent were domiciled in Zambia, she had no jurisdiction to deal with the custody of the child. Dissatisfied by the decision of the lower court, the Appellant has appealed and advanced the following grounds : - 1. The learned Judge erred and misdirected herself in law and fact when she held that under Section 15 of the Affiliation and Maintenance of Children Act a maintenance order is a pre-requisite for an order for custody of a child and the right to access when the said provision does not expressly state that a maintenance order is a pre-requisite requirement to the grant of an order for custody. 2. The learned Judge erred in law and fact when she held that the only assumption that can be made is that the Appellant must have renounced his Zambian citizenship when the Appellant's Affidavit evidence clearly showed that he was born in Zambia through the exhibited birth certificate and a current valid Zambian passport. 3. The learned Judge erred in law and fact when she held that there was no proof to show that the Appellant and the Respondent were domiciled in Zambia when the Affidavit evidence clearly showed that both the Appellant and the Respondent were domiciled in Zambia and the child in issue was attending school in Zambia and was taken away from Zambia by the mother. R4 of 8 For reasons that will become clear, we shall restrict ourselves to Ground One. With regard to this ground, Mr. Katolo, for the Appellant, argued that Section 15 of the Affiliation and Maintenance of Children Act, did not make a maintenance order a pre-requisite for a custody order. He submitted that the section should be construed according to the intent expressed by parliament and supported his argument by citing the case of Samuel Miyanda v Raymond Handahu 111 where the Supreme Court said; "the fundamental rule of interpretation of all enactments to which all other rules are subordinate is that they should be construed according to the intent of the parliament which passed the law." According to Mr. Katolo, the intention of parliament in enacting Section 15 of the Affiliation and Maintenance of Children Act was to confer the Court with jurisdiction to order for custody of a child in a situation where the Court elects not to grant a maintenance order. He further submitted that the said Section envisaged two ways in which it could be applied, the first being where a maintenance order has been made and the second where a maintenance order has not be sought. He pointed to Section 15 (2) which reads as follows; RS of8 "(2) In making any order as to custody, the Court shall regard the welfare of the child as the paramount consideration and shall not take into account whether from any other point of view the claim of the father in respect of custody is superior to that ... of the mother or vice versa. " He concluded his argument by submitting that an Order granting custody to the Appellant is of paramount importance as the interest of the child will be preserved. In response, Mr. Whishimanga submitted that Section 15 of the Affiliation and Maintenance of Children Act was clear that a custody order is dependent on the grant of a maintenance order. He further submitted that learned Counsel for the Appellant had left out substantial and meaningful parts of what the Court said in the case of Samuel Miyanda v Raymond Handahu 111 pointed out that the Court also said as follows: "It is not what the legislature meant to say or what their intentions were with which the Court would be concerned; the Court's duty is to find out the expressed intention of the legislature. When the language is plain and there is nothing to suggest that any words are used in a technical sense or that the context requires a departure from the fundamental rule, there would be no occasion to depart from the ordinary and literal meaning and it would be inadmissible to read into the terms anything else on grounds such as of policy, expediency, justice or political exigency, .... motive of the framers, and the like ... " R6 of8 It was submitted that the literal rule of interpretation should only be departed from if the words used are used in a technical sense or that the context requires a departure from the fundamental rule. Mr. Wishimanga referred to the preamble of the Act and opined that the underlying criterion of the Act was the maintenance of children and it therefore follows that there must be a maintenance order before an application for custody may be granted. We have considered the Record of Appeal and are grateful to Counsel for their ingenious arguments. We have perused the section under which the application for custody was instituted being Section 15 of the Affiliation and Maintenance of Children Act, which states as follows: 15. (1) Where the court makes a maintenance order in respect of a child, the court shall also have power to make whatever order it thinks fit with respect to the custody of the child, and the right of access thereto of either parent, but the power conferred by this subsection and any order made in exercise of that power shall have effect only during any period while the maintenance order is in force. With regard to learned Counsel for the Appellant's submission on interpretation of statutes, we are at a loss to understand the basis upon which he R7 of8 proposed to construe the intention of parliament as it is not disclosed on the material before the Court. On the other hand, the preamble to the Act coincides with Mr. Wishimanga's submission that the prime purpose of the Act is to provide for maintenance of children. The preamble of the Act reads as follows; "An Act to provide for court orders as to paternity; to consolidate the law relating to the maintenance of children; to bring the law of Zambia into conformity with the United Nations Convention on the Rights of the Child dated 20th November, 1989, to which Zambia is a State Party; to abrogate the application of so much of the Maintenance Orders Act, and of the laws of the United Kingdom, as provides for the maintenance of children; ... and to provide for matters connected with or incidental to the foregoing" We further agree with Counsel for the Respondent that the said Section 15 is indeed clear and unambiguous to the effect that a custody order can only be granted, under that Section, when a maintenance order is already in existence and this is emphasized by the fact that the Section further provides that any order granted with respect to the custody of the child shall only be valid whilst the maintenance order is in force. The trial Court was therefore on terra firma when it concluded that a maintenance order is a pre-requisite for the grant of custody under the Affiliation and Maintenance of Children Act. Accordingly, this Ground of Appeal is dismissed. RS of8 Having found as we have, we agree with the trial Court that it had no jurisdiction to entertain the application for custody under that particular law. Having arrived at the conclusion that it lacked the necessary jurisdiction to proceed, one wonders why the trial Judge then proceeded to consider the arguments with regard to citizenship and domicile as her findings on that score would amount to no more than an academic exercise. The trial Court's lack of jurisdiction renders grounds two and three otiose . The Supreme Court has guided time and again that it frowns upon Court's undertaking academic expeditions . We heed their advice and shall therefore not comment on grounds two and three. The entire appeal fails on ground one alone and costs are awarded to the Respondent. DATED AT LUSAKA THIS 27TH DAY OF APRIL 2018 F. M. CHISANGA JUDGE-PRESIDENT F. M. CHISHIMBA COURT OF APPEAL JUDGE < ~ ...................................... M. M. KONDOLO SC COURT OF APPEAL JUDGE