Tully v Tully (1965) Z.R. 165 (H.C.)

Facts

The petitioner prayed that his marriage to his wife be dissolved on the ground of desertion. Although Ramsay J was satisfied that the wife had been in desertion in the timeframe satisfied by statute, it was established that the petitioner was domiciled in England. Now before Independence, the High Court of Northern Rhodesia had jurisdiction to make decrees for the dissolution of marriages which included British citizens who were domiciled in any part of England. Then came in the Zambia Independence Act, 1964; Section 7 (2) of the Act granted all the courts in Zambia jurisdiction on and after that day as they would have had if the Act had not been passed. This of course was subject to Section 7 (1) of the Act. (read the full case for more info on that).

Issue

The main issue here was whether or not the court could entertain the petition given the fact that the respondent was domiciled in England.

Held

The only exemptions to the provisions of Section 7(2) of the Zambia Independence Act [mentioned in the facts above] were i.) the provisions of Section 7(1), which precluded the courts from having jurisdiction in dissolving marriages of this nature on or after the day of independence [worthy of note however, is that the courts had jurisdiction over such proceedings instituted before that day] (ii.) the other exemption was to be found in the provisions of section 7(2) itself that this [meaning the provisions of section 7(2) mentioned above] was subject to any provision to the contrary made on or after the appointed day made by any legislature in Zambia. The court held that the first exception i.e. section 7(1) had two implications: Firstly, it terminated the jurisdiction of the Northern Rhodesia and Zambia courts in proceedings of such nature commenced on or after the date of independence. Secondly, it gave the Northern Rhodesia and Zambia courts the jurisdiction to hear matters of such nature which were commenced before Independence. As this matter was commenced after the said date, it meant that the courts had no jurisdiction to grant the relief sought.

Commentary

This is one of those case summaries were it would be difficult to understand without reading the full case. It would be best for the Vigilante Scholar in this case to read the full case and particularly focus on Counsel Kent’s submission (the petitioner’s counsel). The courts rebuttal of that submission, I believe holds the ratio decidendi of this case (but of course, this is subject to appraisals from my learned colleagues in the public).Worthy of note also is the fact that the court applied the reasoning behind a Kenyan case to come to its decision.

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Please feel free to comment below.

VIGILANTE SCHOLAR TEAM

One thought on “Tully v Tully (1965) Z.R. 165 (H.C.)

  1. This site has been of help really the cases are summarised and easy to understand the focus on the facts and what the law requires though we would need more of English cases and other courses of law at large a big thanks to the team.

    Like

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