Fenias Mafemba v Esther Sitali (2007) ZR 215 SC

Description- Cohabitation in Zambia- Customary Law Marriage

Facts

The Appellant had an affair with the Respondent’s daughter (the deceased). The Appellant did not claim to be married to the deceased either under Customary Law nor Statutory Law. He paid no dowry nor followed the laid-down procedure of Lozi customary law. But however, he assumed that he was married on the strength that he had lived with the deceased for fourteen years and had two children with her (i.e. common law marriage). After the deceased had passed away, her mother became Administrator in her estate. The appellant took the matter to the Local court claiming that he had a right to her estate because he was a ‘widower’ and as such was entitled to it vis-à-vis section 9 (1) (b) of the Intestate Succession Act. On appeal, the High Court held that both the Subordinate Court and Local Court were in error and granted the deceased’s mother the right to be Administrator holding that there was neither Statutory marriage nor Customary marriage between the deceased and the Appellant.

Issue

Whether there was a valid marriage i.e. common law marriage, in order to give weight to the Appellant’s assertion that he had a right to the deceased’s estate. As in that circumstance he would be a widower and would satisfy section 9 (1) (b).

Held

The court was of the view that the Marriages Act, Cap. 50 of the Laws of Zambia has only two forms of marriages recognized in Zambia: Customary Marriages and Statutory Marriages. Since there’s no presumption of marriage under customary law, the court agreed with the lower court when it held that the appellant was not a husband to the late Inonge Sitali despite the fact the two had stayed together as husband and wife for fourteen years and had two children together. (There is no presumption of marriage in Zambia).

Commentary

The effect of this judgment is that it overturned the reasoning and holding behind Muyamwa v Muyamwa that there is a presumption of marriage in Zambia for persons who have stayed together for an extended period of time.

Furthermore, in delivering Judgment, Sakala CJ, as he was then, also said that the High Court was on firm ground when it ruled that both courts (meaning the lower courts) should have restricted themselves to the Lozi customary law on marriage in defining the relationship between the appellant and the late Inonge Sitali. Here, it could be contended that the court is making an emphasis, as it did in Chibwe v Chibwe, that in matters of customary marriages, customary law should apply.

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ROSEMARY CHIBWE v AUSTIN CHIBWE (SCZ Judgment No. 38 of 2000)

Facts

The Appellant was a secretary for a bank and was married to the Respondent, a successful businessman. They were married under Ushi Customary Law in 1982 and had about five children. Five years later after their marriage, they started to encounter problems. Some of these problems according to the Respondent was the Appellant’s late coming to the matrimonial home each time she went to church gatherings and her alleged adultery with a man. According to the Appellant on the other hand, one of the main problems was that after 1982, the Respondent refused and no longer had sexual intercourse with her without any reasons. After the Respondent sued the Appellant for divorce based on allegations of adultery and unreasonable behaviour in the Local Court. The Local Court granted the divorce. On appeal to the Magistrate Court with the help of assessors, the Court dismissed the Appeal and confirmed the decision of the Local Court. Although not disputing with the court’s order on divorce, the Appellant contended that she was entitled to her share of matrimonial property and maintenance of the children.

Issue

What percentage of share of family assets was the Appellant entitled to and whether she was entitled to maintenance of herself and the children, and if so, whether it should be a lump sum of money or periodical payments in maintenance.

Held

The court held that since the marriage was conducted under Ushi customary law, the Local and Magistrate Courts, which sat with the assessors who are the experts of the Ushi customary law, misdirected themselves by making no reference to Ushi customary law in dissolving the marriage and in property adjustments. Maintenance orders are meant to be periodical payments to maintain either children or the other party. Whereas property adjustment means allocation of one or more properties among the family assets to provide for a divorced person. Furthermore, the court held that in light of the number of properties acquired during the marriage and the fact that the appellant led a life of comfort with the respondent, a lump sum of money was not sufficient given the fact that the appellant contributed in kind to the acquisition of the properties listed. The appeal was allowed in that, under the Ushi customary law, the appellant ought to have been given a reasonable share of the matrimonial property.

Commentary: This case is also authority in distinguishing Maintenance Orders from Property Adjustment Orders.

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JENALA NAMBEYE v CHILESHE CHIRWA (1979) Z.R. 117 (H.C.)

Description- Jurisdiction of the Courts in Customary Marriages

Facts

The Appellant stated that she was married to the Respondent in a Church. During the course of their marriage, the Respondent wrote her a letter through the Church that he did not love her. In reaction to this, the Appellant wished to divorce him. The matter was brought before the Subordinate court which granted a Decree Nisi, citing that it would become absolute on confirmation by the High Court.

Issue

Whether the Subordinate Court had jurisdiction to grant the Decree Nisi in dissolution of marriage.

Held

The court held that a subordinate court has no original jurisdiction to hear and determine proceedings in respect of marriages solemnised under the Marriage Act, Cap. 211(now appears as Marriage Act Cap 50).  That Jurisdiction rests in the High Court only. The Subordinate Court should have asked itself firstly what type of marriage it was dealing with. If it were customary then it would have jurisdiction. If statutory, it wouldn’t have jurisdiction to grant a Decree Nisi.

Commentary

The key lesson here is that it is important for a court of law i.e. a subordinate court, to make findings of fact and law as to what type of marriage it is dealing with so as to avoid acting in excess of jurisdiction.

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Winford Kaleo v The People (1978) ZR 250

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Description: Theft- Elements of the offense- Conversion not Amounting to theft

Facts

According to the facts, the appellant was convicted of theft by the trial court. The facts disclose that he had taken a car valued at K2,000 in Mbala and also to have broken into a store on the same day. Inside there, he allegedly stole some clothes and other items. Shortly after the break-in and theft, the pieces of clothing that were reported to have been stolen were found in the appellant’s possession. The car was also found abandoned shortly after the robbery.

Issue

Whether a conviction of theft could be sustained given these sets of facts?

Held

The court held that section 265 of the Penal Code provides that a person who is to commit the offense of theft has to expressly show an intention to permanently deprive the special owner of the thing being stolen. According to the facts, the car was left abandoned. This entails that there was no intent to permanently deprive. Hence, a conviction of theft could not stand.

Commentary

It seems that in order to establish theft, there must be intent to permanently deprive the owner of the thing being stolen. Section 265 Penal Code Act.

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Muzyamba v. The People (1975) ZR 83

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Description:-Stock theft

Facts

The appellant was convicted of stock theft. The facts disclosed that a bull had strayed onto his land and consequently mingled with his cattle. The appellant said that the bull had damaged his maize and so he felt that he could deal with it in a manner he saw fit. Furthermore, he contended quite insistently that the bull was his and brought one of his cows to suggest to the court that that was the mother.

Issue

Can the defense of a bonafide claim of right succeed given these sets of facts?

Held

The court held that the defense could not succeed given these sets of facts. The appellant did not honestly believe that he had the right to deal with the cattle. The very fact that he went to the extent as to claim that the bull was his when in fact it was not, was very dishonest. Therefore the defense of a bonafide claim of right could not succeed. Hence the appeal against conviction was dismissed.

Commentary

Clearly, there has to be an honest belief to deal with someone else’s property. It could be said that it need not be reasonable but it has to be an honest belief to satisfy section 8 of the Penal Code.

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Chombe V The People (1972) ZR. 36

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Description: Stock Theft

Facts

The appellant was convicted of stock theft. The facts disclose that some cattle had strayed onto his land and he had inquired four headmen as to who the owner was. He did not report the matter to the police. Interestingly enough, eight days after the cattle had been reported missing, the appellant went to the police to obtain a license for slaughtering the cattle but made no mention that they were not his. He did not even suggest that he had the right to slaughter them.

Issue

Whether a defense of a bonafide claim of right was available to the defendant?

Held

The court held that the appellant did not suggest to the police or anyone for that matter, that he had the right to deal with another person’s property i.e. through slaughtering. Even though his motive for not disclosing was that he would be arrested, this was clearly disingenuous and not fitting for a defense of a bonafide claim of right to succeed.

Commentary

The full case has some interesting gems on conversion. At any rate, the appellant could not have relied on the defense of a bonafide claim of right.

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Mwachilama v The People (1972) ZR 286

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Description: Stock Theft- Bonafide Claim of Right- Section 8 of the Penal Code

Facts

The appellant was tried and convicted of stock theft by the trial court. The facts disclose that six cattle had strayed onto his land. He did not know the owner but he felt that he could deal with them as he wished because the cattle had eaten his maize. The trial court had dismissed his defense of a bonafide claim of right following the precedence of Chombe v The People. He now appealed against conviction and sentence.

Issue

Whether the defense of bonafide claim of right could’ve succeeded on appeal given these set of facts

Held

The court held that the defense of a bonafide claim of right does not only apply to instances where the accused believes that the property in question is his or has become his but it also applies to instances where he has a bonafide belief that he has a right to keep or deal with somebody else’s property.

Hence the appeal was allowed.

Commentary

Section 8 of the Penal Code provides that ‘a person is not criminally responsible in respect of an offense relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.’ Please note that the belief has to be honestly held. Contrast this case with the holding of Muzyamba v The People. Secondly, the case is distinguished from Chombe v The People in that in Chombe, the appellant failed to give evidence from the facts that he had a right to deal with the cattle as he wished. In this case , however, that right was clearly present.

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Mwewa Murono v The People (2004) ZR 207

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Facts

The accused (Mwewa Murono) had allegedly killed a man who went by the name of Francis Mwewa (the deceased) on 19th July 2003. According to the witness statement of the first prosecution witness, the deceased had three wounds: two in the stomach and one in the armpit with blood that had dried. The deceased told the witness that it was Mwewa Murono (the deceased brother) who had stabbed him with a spear. The deceased was taken to Mansa Hospital where he died at 16 30 hrs on the 19th of July 2003.

Issue

The court had the task of determining whether the accused was criminally liable for the offense and if so, what evidence was there for the prosecution to prove the validity of the charge beyond reasonable doubt.

Ratio Decidendi

In criminal cases, the rule of thumb is that the legal burden of proving every element of the offense lies on the prosecution. From the evidence on record, the court found that the prosecution had failed to prove beyond all reasonable doubt that the appellant committed the offense.

Order

The appeal was allowed, the conviction was quashed and the sentence was set aside. The appellant was acquitted.

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Chitalo v The People (2014) ZMSC 108

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Description: – Unnatural offence- Insanity

Facts

The appellant was charged and convicted of one count of unnatural offence, contrary to Section 155 of the Penal Code Chapter 87 of the Laws of Zambia. The facts of the case were that on said day, he had unnatural relations with the prosecutrix which were against the order of nature. He was found by the prosecutrix’s mother putting his private part into the mouth of the prosecutrix. At trial, he had showed the court receipts from Chainama Hospital to prove that he suffered from cerebral malaria. The defence of insanity, however, was not pleaded.

Issue

Whether the trial court misdirected itself in sentencing without ordering a psychiatrist report on the appellant in accordance with section 160 of the Criminal Procedure Code?

Held

The court found no evidence in support of the fact that the appellant was insane. It was submitted by counsel that the receipts from Chainama Hospital corroborate the appellant’s story that he was insane at the time. The court rebutted that by saying that no all persons who enrol into Chainama Hospital are insane. Secondly, the court held that the trial court was on firm ground in convicting the appellant. The defence of insanity was never pleaded at trial level and the court could not the defence take root on appeal. Therefore, the appeal was dismissed.

Commentary

This is another case which brings out the requirements of unfit to plead and the defense of insanity. These are defenses that are provided for in the Criminal Procedure Code.

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Sikazwe v The People [2012] ZMSC 24

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Description: Incest- Rape

Facts

The appellant was charged and convicted with incest. The facts of the case were that he had carnal knowledge of his daughter. The magistrate charged and convicted the appellant of incest without the consent of the director of public prosecutions.

Issue

Whether the appellant was properly charged and convicted of incest

Held

The court held that the Director of Public Prosecutions had explained that when a person is charged with defilement contrary to section 138 of the penal code and at the end of the trial the court is convinced that he is only guilty of the offence under sub section 1 of section 137, that person may be convicted of indecent assault.  The learned sentencing Judge therefore misdirected himself when he sentenced the Appellant on a charge of incest. Therefore the charge was replaced with that of indecent assault and the appellant was given a prison sentence of twenty years.

LEGAL DISCLAIMER: Vigilante Scholar is not a body licensed with dispensing legal advice in the capacity of a 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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