High Court delivers judgment in favour of ex-wife

Thursday, June 27, 2019

Justice Kuejubola of the High Court at Kanifing recently delivered a judgment in favour of one Jainaba Cham against her former husband, Henk Horstink. Her former husband filed an appeal against the decision of the Kanifing Children’s Court delivered on 12 December, 2017.

The appellant, being dissatisfied with the judgment delivered, filed the appeal. He stated in his appeal that the trial court erred in law and fact by granting sole custody to the respondent. He noted that the trial court erred in law and fact by failing to grant joint custody to the appellant.

He further stated in his appeal that the trial court erred in law when it failed to give sufficient or regular access or contact of the appellant’s children to him. He further adduced that the trial court erred in law when it rejected numerous relevant documents tendered by the appellant necessary in assisting the court to determine the case.

According to his appeal, he was not given sufficient time and facilities to properly prosecute his case according to law. He indicated that the trial court erred in law and fact when it relied solely on the fact stated in the Social Welfare report without verifying same and consequently came to a wrong conclusion.

Justice Kuejubola said in her judgment that the learned counsel, who represented the appellant, filed and exchanged his brief of argument dated and filed on 24 January, 2019, while the counsel representing the respondent filed her brief of argument dated and filed on 15 February, 2019.

The presiding judge noted that on 4 March, 2019, the written brief of argument filed by the respective counsels on the divide were adopted as the submission and legal argument for and against the appeal, inclusive of the reply on points of law filed by the appellant’s counsel.

She said that both learned counsels equally rejected and cited several legal authorities to buttress their arguments. She further said that the appellant’s counsel was contending that the judgment of the Children’s Court be reversed, and for it to make an order granting joint custody to both parties, rather than sole custody as the lower court did.

She adduced that the counsel representing the respondent urged the High Court to uphold the said judgment, contending that the lower court acted in the best interest of the children when custody was granted to the respondent, and granted the appellant access to the children.

“Before resolving all these issues whether the lower court acted in the best interest of the children by its decision reached in its judgment, it is necessary to certainly look into the process of the relevant section of the Children’s Act,” she told the court. She consequently cited sections 3 (1) and (2) of the Children’s Act to support her judgment.

The presiding judge told the court that there was no evidence on record that the appellant has ever been denied access to the children who reside with the respondent. She noted that the bone of contention was very simple if reviewed against the backdrop of what joint custody means as opposed to sole custody.

“Joint custody means an arrangement whereby the parents share responsibilities in making major decisions concerning the welfare of the child,” she clarified. She added that whether the child resides only with one parent or spends an equal amount of time with each parent is of secondary importance to the arrangement.

She finally adduced that the judgment of the lower court was in the best interest of the children, noting that all the six grounds of appeal were without merit.

Author: Dawda Faye