The applicant, Ann P. Nkhoma and the respondent, Smart Nkhoma were married in 1991 under customary law. Their marriage was dissolved by the Local Court at Boma, Lusaka in 2002. The applicant commenced legal proceedings by originating summons which stated among other things that she was entitled to her share of matrimonial property. The application was not brought by way of Appeal or order of Transfer. In consequence, a preliminary issue was raised by Counsel for the Respondent which contended that the High Court had no Jurisdiction to entertain a matter on settlement of property contracted under a customary marriage.
Whether the High Court had Jurisdiction to hear a matter which was neither brought by means of Appeal nor Order of Transfer but contended a civil dispute of matrimonial property in a marriage contracted under Customary Law.
The court held that the law applicable to the High Court and Supreme Court in Divorce matters is the English divorce law applicable at the time. They went on to cite Section 2 of the English law (Extent of Application) Act Cap.11 of the laws of Zambia and also section 11(1) of the High Court Act Cap 27 of the laws of Zambia as support. The latter provision pronounced the fact that the High Court’s Jurisdiction in Matrimonial Causes and Divorce matters is in substantial conformity to that of the High Court in England. This then means that the High Court could not entertain a matter brought under a Marriage Contracted under Customary Law; Giving special attention to the fact that it was not brought to the Court by way of Appeal or Order of Transfer.
It is also good to know that in this case, Counsel for the Respondent had raised a preliminary issue on whether the High Court has jurisdiction to hear a matter that required a determination of the question on settlement of property acquired during a customary law marriage and dissolved by a Local Court. In response to this, the court held that when the matter has been so transferred from a local court to a subordinate court of the first or second class, the parties in that case do not lose the right to have their case dealt with according to their customary law. However, the High Court has no jurisdiction to adjudicate on matters that involve a customary marriage unless by way of appeal or order of transfer.
See also Munalo v Vengesai.
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