Mutombo v Mutombo 2009/HP/D.181

Facts

The petitioner was a lecturer at the University of Zambia and the Respondent a Primary School Teacher. They had three children. The petitioner complained that the respondent was highly insecure to the extent that she accused him of having extra-marital affairs with other women. To support this, the petitioner said that the respondent once accused him of having an affair with the respondent’s niece because he gave her some money. The petitioner also recalled an incident when the respondent stormed into his office, and confiscated some photographs that belonged to the petitioner’s colleagues. He found this to be embarrassing and demeaning. Furthermore, he said that the petitioner tends to be moody and withdraw into violent fits. The respondent’s evidence on the other hand, was to the effect that although the parties did not share the same bedroom, they still lived together and maintained a sexual relationship. It was also found as a matter of fact that the petitioner still supported the respondent and the children financially.

Issue

The main contention here is whether the marriage had irretrievably broken down to the extent that the petitioner could not reasonably be expected to live with the respondent, given these set of facts?

Held

It was held that a petition for the dissolution of marriage premised on behaviour must amount to more than a mere complaint. Furthermore, when it is alleged that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, the task of the Court is not only to look at the quality of the respondent’s behaviour, but also the effect of the conduct upon the petitioner. The court also defined irretrievable breakdown as meaning ‘a marriage which stands no chance of the parties resuming the cohabitation’. The cumulative effect of the behaviour of the respondent (which may be minor isolated incidents) should be taken as whole and analysed in light of whether or not it would be reasonable to call the petitioner to endure it. Applying the law to the facts, the court was of the view that the petitioner had filed trivial, or rather mere complaints that nearly all married people go through. Moreover, the conduct of the parties pending suit was inconsistent with those in which a marriage had irretrievably broken down: This was so because the parties enjoyed a sexual relationship, lived together and the petitioner maintained the respondent and the children financially. Hence the petition was dismissed.

Commentary

It is always a pleasure to read Matibini J’s Judgments. His style of writing is clearly academic and to say the very least, scientific and organized with a view to a conclusive end.

To reiterate some of the major points: I think that the main contention, here, is that the petitioner should not just bring a long list of trivial complaints to the court seeking a decree nisi. Secondly, on account of unreasonable behaviour under section 9 (1) (b) of the Matrimonial Causes Act, it is not enough to prove that the respondent’s behaviour was unreasonable but it is also necessary to prove that the petitioner cannot reasonably be expected to live with the respondent.

In other words, the effect of the Respondent’s behaviour on the Petitioner should, using the words of the court in Katz v Katz, expecting neither heroic virtue or selfless sacrifice, be of such a nature that the  reasonable man would not expect the petitioner to live with the respondent. The test to be applied is objective with subjective elements (Mahande v Mahande) and it is a question for the Judge not the parties to determine. [The Judge must do this as a finding of fact].

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VENTER v VENTER AND JOUBERT (1966) Z.R. 60 (H.C.)

Facts

Prior to this case, Blagden CJ dissolved the marriage on the grounds of adultery of the petitioner’s wife with the co- respondent, a Mr. Joubert. The divorce petition included a prayer for legal costs (which the court granted) and another for £500 damages against the co-respondent in relation to the adultery (which was adjourned, hence this case).

Issue

How much should the court award as damages occasioned by the adultery of the co-respondent and what metrics should it consider in awarding such damages?

Held

First and foremost, the court held that damages for adultery are compensatory and not punitive. What this means is that, unlike the objects of criminal law, the objective here is not to punish the offender but rather to comfort the petitioner for injury to feelings. Secondly, these damages fall under two distinct categories: (i). damages to the actual value of the wife (ii.) damages to injury to feelings of the husband. Of course, both of these are in relation to the adultery. As to the first category, the actual value of the wife can be further categorized into two things: (a) pecuniary loss, which could be loss of the wife’s fortune, her income or her assistance in the husband’s business among other things. Then (b) consortial loss, which is loss of aspects that make her a good wife such as affection, companionship and faithfulness. On the aspect of pecuniary loss, the court found that the husband’s evidence was that although his wife was working and drawing a salary, she had not been paying any of it over to him. Therefore, the pecuniary loss was negligible. His consortial loss also was not high owing to the fact that by 1965-1966, their marriage was no longer a happy one. However, the court held that injury to his feelings was of more substance because the co-respondent was his friend. In consequence, an award of £300 as damages was awarded to the husband.

Commentary

The hallmarks of this case are by far the principles elucidated in awarding damages. It’s also worthy of note that not knowing that someone is married is not a mitigating factor in awarding damages of this nature; Blagden CJ said that, “any man contemplating extra-marital sexual intercourse would be put upon inquiry as to the marital status of the other party to the intercourse.”

Furthermore, another consideration in awarding damages is if the husband and wife were living happily together, the co-respondent’s actions will have caused serious damage. However, if the relationship between them was strained or they were living apart, much less damage, or possibly none at all, will have been caused.

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R v Chinjamba (1949) 5 N.R.L.R 384

This image was adapted at https:www.consortiolawfirm.com

Facts

A villager who went by the name of Fulai had married a girl who was under the age of sixteen. The accused was a village headman who knew of this development but however did not disclose nor report the matter to the authorities. He was accused of being an accessory to the unlawful carnal knowledge of a girl under the age of sixteen.

Issue

Whether the accused and the perpetrator should have criminal liability in light of these facts?

Held

The court held that a man cannot be convicted of having unlawful carnal knowledge of a girl under the age of sixteen if he has married her .i.e. she is his wife.

Commentary

This case reveals the dark-side of Zambian Law. Although statutory law prohibits marrying a girl under the age of sixteen, unless consent is obtained from a judge, customary law has no such limits.  One would argue, is it fair to punish a person for having carnal knowledge with an under-age girl and then let the other go scot-free only on the premise that he is married to her? Does marriage then, act as a defence for such heinous acts? It seems this matter has to be taken up in parliament because clearly, something needs to be done.

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SIWO V SIWO (1970) Z.R. 79 (H.C.)

Facts

The petitioner and the respondent decided to get married. A lobola price (i.e. bridal price) of K120 was paid to that effect and the marriage was solemnised in a Church. At that point no question of a customary marriage arose. They were solemnised by a licensed minister but a marriage certificate was not issued nor did the parties know that it was a requirement. However, the parties signed a certificate that referred to the Marriage Ordinance in the presence of two witnesses. The respondent contended that the Marriage was a customary marriage and that he never wanted a statutory marriage and that he thought it was customary marriage.

Issue

Was the Marriage valid given the fact that at the time of its solemnisation, a marriage certificate was not issued?

Held

The court held that the petitioner did not know that a marriage certificate from the Registrar was necessary or that one could be obtained. Furthermore, Doyle CJ also found that the Petitioner’s attitude was that she wished to be married in church, her parents also wished it and she thought that such a marriage was a valid marriage. She thought that it was only necessary to arrange the marriage with the Minister and that this complied with the law. She at no time contemplated a customary marriage. Section 32 (2) of the Marriage Ordinance states that if both parties knowingly and willingly enter into a marriage with no Registrar’s certificate or licence, that marriage is void. It equally follows that if one of the parties is ignorant, or both parties are ignorant of this omission, then the marriage is valid.

Commentary

See also Section 27 of the Matrimonial Causes Act No. 20 of 2007 which discusses the grounds to which a marriage could be void. Also in Greaves v Greaves 1872 LR 2 P. & D. 423, Lord Penzance had the following to say, ‘The parties in this case did not doubt intermarry without a licence first had and obtained; but the question is, whether they did so knowingly and wilfully. I understand the meaning of this provision to be that the marriage is only to be annulled if it is established affirmatively to the satisfaction of the Court, that at the time when the ceremony was solemnised both parties were cognizant of the fact that a licence had not been issued, and being cognizant of that fact  wilfully intermarried…’

By using the statutory rule of interpretation of expressio unius est exclusio alterius (which means to mention a class of things, automatically excludes other things which are not mentioned i.e. the statute mentioned ‘knowingly and willingly’ this means that ‘everything’[well not everything, but you get the point] done ‘unknowingly and unwillingly’ may possibly be legal ) we can see how Doyle CJ came to this conclusion.

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Ann P.Nkhoma v Smart Nkhoma ZR 2003

Facts

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.

Issue

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.

Held

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.

Commentary

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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The People v Katongo (1974) Z.R. 290 (H.C.)

Facts

The facts disclose that Chibesa and the accused entered into a customary union and thereafter lived together until they were married at the Boma in Ndola on 18th July, 1969, under the Marriage Act, Cap. 211. Proof of this marriage was given by the Registrar and District Secretary, who produced a marriage certificate in court which was signed by Mr Chibesa and the accused in the presence of three witnesses. The accused went through a ceremony of marriage on 28th December, 1973, with Dennis Siwale while her husband, Chibesa was still alive.

Issue

Whether the accused committed the offence of bigamy given the fact that she entered into a customary union and went through a ceremony of marriage?

Held

The court held that the first marriage was a valid marriage and also made a finding of fact that the supposed ‘second marriage’ was actually a customary union. A customary union is not capable of being a valid marriage in the sense of a monogamous marriage in the Marriage Act whether the husband is alive or not. For section 166 had contemplated Marriage to be a Christian Marriage of the Western type. Whether on the ground that there is no evidence of a second ceremony of marriage, or on the ground that section 166 contemplated a second marriage in pari materia with the first, the court couldn’t see that any offence under that section had been proved with these particular set of facts. Hence the accused was acquitted.

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Muyamwa v Muyamwa (1976) Z.R. 146 (H.C.)

Facts

The petitioner and respondent went through a form of ceremony of marriage before a Registrar at the Lusaka Boma on 29th November 1968. Thereafter the parties cohabited up to 1974 and had three children. The parties testified that shortly before the ceremony at the Boma they had been married by customary law. The petitioner was then aged 18 years and the respondent aged 23 years. The petitioner’s father was dead and she did not have the written consent of her mother to the marriage, as required by section 17 of the Marriage Act, Cap. 211. Nevertheless, the mother attended the marriage and there was a question as to whether that amounted to implied consent of a parent. Neither party gave notice of the intended marriage on the prescribed form to the Registrar as required by section 6 of the Act; furthermore, the Registrar did not apparently issue any certificate under section 10 of the Act.

Issue

Whether there was a valid marriage between the petitioner and respondent in light of these facts

Held

The court held that there was a valid marriage because neither party willfully intended to disregard and defeat the law as the petitioner’s mother attended the ceremony as a witness. Cullinan J also opined that the Mother’s attendance to the wedding could be taken as an implied consent to the marriage. Furthermore, neither party willfully or knowingly acquiesced in its solemnization without the Registrar’s certificate of notice having been duly issued. Therefore, the reasoning in holding of Siwo v Siwo was upheld and the marriage declared valid. Accordingly, the Decree of Nullity was not granted.

Commentary

This case seems to have followed in the footsteps of the holding behind Siwo v Siwo. However, on delivering Judgment, Cullinan J said that the difference between the two cases is that in this case, the prior written consent of a parent was an issue. Also in Siwo v Siwo, there were no issues arising from a presumption of marriage.

Speaking a little bit more on that, Cullinan J quoted Sir Jocelyn Simon, P., in the case of Mahadervan (extract from Halsbury’s Laws 3 Ed. 19 p. 813) where he said that, “Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed in the absence of decisive evidence to the contrary, even though it may be necessary to presume the grant of a special licence.” This part of the Judgment seems to have been overturned by the reasoning of holding in the case of Mafemba v Sitali.

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HAFIZ AYYUB DURGA v NAJMUNNISSA ISMAIL (1992) S.J. (H.C.)

Facts

The petitioner and the respondent secretly went through a ceremony of marriage on 12th October 1990 at the office of the Registrar of Marriages in Lusaka. After their said marriage, they discovered that they were blood cousins. Consequently and because of this realisation, they never cohabited with one another and the marriage was never consummated. They now sought a decree of nullity from the Court based on Non-consummation.

Issue

In light of these turn of events, could the court grant a decree of nullity based on Non-consummation.

Held

The court held that the marriage was null and void ab initio (that is from the beginning) because the parties fell into the prohibited degrees of affinity and consanguinity. The court relied on Sections 11 subsection (1) (a) (i) of the Matrimonial Causes Act, 1973. Muzyamba J said that, “where marriage takes place within the prohibited degrees of relationship, it is immaterial whether or not the marriage was consummated.  It is nevertheless void ab initio and there is no need therefore, as in the instance case, to plead non-consummation as well.” Hence the court confirmed that the marriage was a nullity.

Commentary

We no longer use the Matrimonial Causes Act of 1973. We now use the Matrimonial Causes Act of 2007 (however these two are relatively similar). Check out the Matrimonial Causes Act No. 20 of 2007 Schedule (section 27 and 28) to see persons who fall under the prohibited degrees of Consanguinity and Affinity.

It is interesting that from a Criminal Law perspective and in using the Expressio Unius est Exclusio Alterius rule of statutory interpretation, a person can have carnal knowledge of a blood cousin and will not be prosecuted under section 159 of the Penal Code Act, Cap 87 of the Laws of Zambia because blood cousins are not mentioned. However, this is not to say that other provisions of law will be silent.

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The People v Chitambala (1969) Z.R.142 (H.C)

Facts

The accused was charged with bigamy. The facts disclosed that while married to Annie Mumbi, his wife, he voluntarily went through another marriage with Grace Lombe. It was found that he still went on with the marriage ceremony despite the blatant warnings of a Prosecution Witness who went by the name of Wilson.  At trial, the accused told the court that he did not know that his former statutory marriage under the Marriage Ordinance was still intact. Indeed, if this ignorance truly existed at the time, then it would mean the accused would be acquitted.

Issue

Whether the accused did not know that his earlier marriage conducted under customary law was still viable and consequently whether he was deserving of a full acquittal?

Held

The court held that the accused knew full well what bigamy was and that he was only pretending not to have knowledge that his earlier marriage to Annie Mumbi was still intact. Furthermore, his disregard of Wilson’s (Prosecution Witness Seven) warning of the dangers of bigamy showed that he understood what the meaning of the word was. Furthermore, the court held that a marriage under the Marriage Ordinance is not dissolved by a customary law divorce and the parties are not free to remarry.

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De Reneville v De Reneville [1948]

Facts

The petitioner was born in England and of English parents. She was resident in England until her marriage. In 1935, she married the respondent, a French man who was a resident in Paris. Later on, she moved on and lived with him in Brazzaville, Congo and also at Briska, Algeria. Five years after their marriage, she left the respondent and returned to England. She petitioned nullity of the marriage on the ground that the marriage had not been consummated owing to either the incapacity or wilful refusal to consummate by the respondent. In response, the respondent told the English court that they had no Jurisdiction in the matter seeing that the marriage was solemnised outside of England.

Issue

Whether the Court could grant a decree of Nullity notwithstanding the fact that the Marriage was not solemnised in England.

Held

Lord Greene was of the view that the Marriage should be decided according to French Law either because that is the law of the husband’s domicile at the date of the marriage or because at that date, it was the law of the matrimonial domicile in reference to which the parties may have been supposed to enter into the bonds of marriage. He opined that it would be for the English court, after hearing evidence of French law, to decide whether in French law the marriage was void or voidable. If the Marriage was void, then the English courts had Jurisdiction because in that scenario the petitioner was domiciled in England. Then if it was voidable under French Law, then the English courts would have no Jurisdiction because in that event the petitioner would be domiciled in France.

Commentary

This case is often only used for distinguishing a void marriage from a voidable marriage. In Ross Smith v Ross Smith [1961] the Court of Appeal of England observed that in De Reneville, “the distinction between a void and a voidable marriage was relevant, but relevant only, for the purpose of determining the domicile of the petitioning wife.” Lord Greene observed that the distinction between a Void marriage and Voidable marriage is that ‘A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it, a voidable marriage is one that will be regarded by every court as a valid and subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction’.

For more information on this case, read De Reneville Revisited (Cambridge University Press) Journal by J. H. C. Morris. Sourced by The International and Comparative Law Quarterly, Jul., 1970, Vol. 19, No. 3 (Jul., 1970), pp. 424-429. You can find it here.

See also HAFIZ AYYUB DURGA v NAJMUNNISSA ISMAIL (1992) S.J. (H.C.)

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