R v Chinjamba (1949) 5 N.R.L.R 384

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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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Dr Ludwig Sondashi v The Attorney General (2000) ZR 123

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Main Principles in Holding: Ouster Clauses, Justiciability of Matters and the Jurisdiction of the Courts

Introduction

“Secondly, as pointed out by the learned trial Judge, it is a requirement in judicial review that all available remedies must be exhausted before applying for prerogative writs…We, as a court, accept that where the legislature has decided that certain matters should be solely placed in the jurisdiction of the executive, the court has no role to play as such issues contain no legal issues to be resolved.  Further, the question of security is entirely for the executive to decide upon.  Courts are not in a position to know and adjudicate on such issues.”

– Chibesakunda J.S. in delivering judgment

In this case, the Supreme Court (SC) averred that if the Legislature decides that certain issues should solely be for the executive, the Court has no role to play in resolving the matter as they are no legal issues to be resolved.

Ouster Clauses

This concept or statement resonates well with the aspect of ouster clauses and justiciability of a matter. Ouster clauses are clauses that seek to exclude the Court’s power to hear a matter to deal with the Executive. These clauses effectively exclude the Court’s powers. They are often found in Legislation stopping a Court from hearing a matter, however, they have to be drafted in sufficiently clear wording to prevent ambiguity. For instance, in Anisminic v Foreign Compensation Commission [1969] 2 AC 147, the defendants had refused to grant compensation to successors of the appellant’s company as they were not of British origin. A Statutory Instrument provided that the decisions of the Commission were not appealable or could not be questioned in a Court of Law. The Court however, found that the wording of the Delegated Legislation was too ambiguous to effectively oust the jurisdiction of the Court. Another case in which this principle was discussed was R v Medical Appeal Board Ex Parte Gilmore [1947] 1 QB 574, where the board had decided that a worker who had been blinded in both eyes only suffered 20 per cent disability thus enabling him to a limited amount of compensation. The Board’s decision, according to the Legislation that created it, was final and incapable of being resolved or challenged in a Court of Law. It was held that to effectively oust the Court’s jurisdiction, it had to be sufficiently clear that this was the intent of the Legislature.

Justiciability

Another concept that supports the holding of this case, is that of Justiciability. Though not expressly stated or decided by the Legislature, certain decisions that are made by the Executive are not justiciable thus cutting out the court’s jurisdiction. In George Peter Mwanza and Another v The Attorney General (Selected Judgment No. 33 of 2019) , it was stated that justiciability is the ability to have a matter heard where there has been a breach of rights. Thus, where a matter has been impliedly stated or expressly stated to not be justiciable, then there is nothing for the Court to resolve. Examples of non-justiciable matters include, but are not limited to, issues involving:

  1. National Security and;
  2. Prerogative of the President
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Jurisdiction

Furthermore, you can also relate the concept of jurisdiction to this statement (quoted above). In Zambia Revenue Authority v Professional Insurance Corporation Zambia (Appeal No. 34 of 2017), it was stated that jurisdiction is the gateway to a remedy and lack of it entails that a matter cannot be tried. Thus, where a decision of the Executive is not subject to the jurisdiction of the Courts, there is no issue for them to resolve.

This concept of the Legislature exempting the Executive from the Court’s Authority is a dangerous one as many bad decisions can go unchecked. The Judgment states that it is a requirement for Judicial Review that ‘all available remedies are exhausted’.  This falls in line with the principle that Judicial Review  must be a remedy of last resort. To be granted leave for Judicial Review, it must shown that the party in question exhausted all other alternatives of seeking redress for the matter. Most of the time, a statute may give a comprehensive process of appealing a decision and it is not until this is done can a decision be amenable to Judicial Review.  In New Plast Industries v Commissioner of Lands and Another (S.C.Z Judgment No. 8 of 2001), it was stated  that where an act gives a procedure to be followed  before Judicial Review can be sought, that procedure should be complied with.

Some Acts may provide that a matter should be heard by a Tribunal before it can be challenged in a Court of Law. Failure to follow this means that leave cannot be granted. Thus, it can concluded that the implication of the holding in the case of Dr Ludwig Sondashi v The Attorney General is that when drafted accordingly, ouster clauses may oust the jurisdiction of the court from hearing or trying decisions of the Executive and that for one to effectively apply for Judicial Review, they must show that they took all alternative steps of dealing with the matter, such as appeals or going before a Tribunal, before they could bring a challenge of Judicial Review against the body in question.

“This post was written by Suwilanje Namumba. Truly you are an inspiration. Much thanks from Vigilante Scholar”

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Munalo v Vengesai (1974) Z.R.201

Facts

The deceased was resident in the Republic of Zambia for many years.  Both the deceased and his widow were Rhodesian and members of the Shona tribe.  In 1961, the deceased had married his wife in Zambia by Shona law.  The deceased and his wife were living in Zambia as ordinary Africans but among a fairly large Shona community in the Mumbwa District.  Apart from their marriage, their life had not been affected by Shona law.  The deceased was killed in an accident.  The widow of the deceased took out a summons to obtain an order that the deceased’s estate be administered by the High Court under the English Probate law which applied in Zambia and not under the African customary law.  The respondent, a cousin of the deceased, claimed that the estate was governed by Shona customary law.

Issue

Whether the deceased’s estate should be conducted under Shona Law notwithstanding that apart from his marriage, he did not live under Shona Law. Also, should the court administer this case under English Probate law?

Held

The Court took the view that it was clear that the parties were living in a Shona community. When he wished to be married the deceased married by Shona law. If a matter had arisen to which Shona law had applied, it is likely that it would have been followed. Therefore, it was the conclusion of the court that the Deceased carried himself with respect to Shona Law and prima facie his estate was to be administered by Shona Law. Since the Customary Law is in the premise of the Local Court, the Court could not entertain the applicant’s contention to use English Probate Law in the matter. Hence the application was refused.

Commentary

This case is interesting in the sense that the Court had to rely on the Local Court’s Predecessor, the Native Courts Ordinance (1961) which defined the Jurisdiction of that Court to apply to African Customary Law and not only Zambian Customary Law. They had to rely on this ordinance to define the word ‘African’ as ‘any member of the aboriginal tribes or races of Africans or any person having the blood of any such tribe or race and living among and after the manner of such tribe or race and includes anybody or association of persons other than a limited company where membership is composed exclusively of Africans.’ This definition clearly shows that the Jurisdiction of the Local Courts is not only confined to Zambian Customary but also African Customary Law.

Furthermore, on the issue of custody, Doyle CJ said that, “the question of custody cannot, however, be determined by the High Court by the appointment of an administrator of his estate. Whether an administrator were appointed by the High Court or by the local court he would have to distribute the estate in accordance with the Shona law applicable…”

LEGAL DISCLAIMER: Vigilante Scholar is not a body licensed with dispensing legal advice in the capacity of legally mandated entity. The views and opinions we share are subject to correction, verification and authentication by the reader with the legally mandated government authorities. We acknowledge that the Council of Law Reporting retains copyright in all reported cases. Therefore, the cases we share subscribe to our opinion of the respective case and are to be used only for educative purposes i.e. discussion. This also applies to any photos and/or paraphernalia used under the exercise of fair use policy.

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