Mukinga v Fuller & Others (138 of 2006) [2008] ZMSC 18 (27 April 2008)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: APPEAL NO. 138 OF 2006 SCZ No. 27 of 2008 BEATRICE MULAKO MUKINGA 1st Appellant And KEVIN CLIFFORD FULLER AIR PRODUCTS LIMITED LONRHO PROPERTIES LIMITED 1st Respondent 2nd Respondent 3rd Respondent Coram: Chirwa, Silomba JJS and Kabalata Ag. JS on 10th April 2007 and 28th April 2008 For the Appellant: Mr C L Mundia, SC of C L Mundia & Co. For the 1st Respondent: Mr N K Mutuna of N K M & Associates For the 2nd and 3rd Respondent: N/P Chirwa, JS delivered the judgment of the Court JUDGMENT Cases referred to: 1. Bromley’s Family Law, 5th Ed. P.17 3 Nkhata And Others V Attorney-General [1966] Z. L. R 124. Charity Oparaocha V Winfrida Murambilwa SCZ No. 15/2004 Patricia Rawnsley and Colin Townsend V Gwendoline Martha Townsend [2002] Z. R. 70 Nkhata & Another V Attorney-General [1966] ZR 124. Originally, this matter was between the appellant, BEATRICE MULAKO MUKINGA and the 1st Respondent, KEVIN CLIFFORD FULLER. Later J2 on the 2nd and 3rd Respondents were joined to the proceedings. However, before the trial could commence, Counsel for the Appellant indicated to the Court that they were discontinuing the proceedings against the 2nd and 3rd Respondents and that they were to file Notice of discontinuance within a week. This was on 15th September 2005. There is no Notice of discontinuance on record but trial proceeded on the basis that the action was between the Appellant and the 1st Respondent. The appeal was therefore improperly headed. It should be between the appellant and Kevin Clifford Fuller only. In this judgment we refer to the appellant as the plaintiff and the respondent as the defendant, the positions they were in the Court below. This is an appeal by the plaintiff against the judgment of the High Court in which it ruled against the plaintiff against her many prayers as contained in the amended Statement of Claim. By her amended Statement of Claim, the plaintiff claimed the following prayers:- a) A declaratory order that the conveyance of Stand No 1944 Kitwe into the defendant’s name from Consolidated Property Limited be declared null and void and that the said conveyance violated Zambian Law on property ownership. b) That the said property known as Stand No 1944 Kitwe be sold under Order of the Court and proceeds be shared between the parties equally and rentals received by the defendant to date J3 be accounted for by the defendant and 50% of such rentals paid to the plaintiff. c) That the 2nd defendant, Air Products Limited of South Africa should account for all rentals paid to 1st defendant and that future rentals be paid into Court pending the determination of the main matter herein. d) That the 1st defendant pays her US $5,000 of personal effects sold in contemplation of settlement in South Africa. e) An injunction to stop the 1st defendant from receiving further rentals from Air Products Limited but that rentals be paid into Court pending settlement of the matter. f) Interest on all the money owing to the plaintiff from 1st defendant at short term bank deposit rates as approved by Bank of Zambia to the date of judgment and therefore at current bank lending rate to date of settlement. g) Any other relief the Court may deem fit and appropriate and costs. There are some common facts in this case. The plaintiff and the defendant co-habited together for close to three years. They intended to marry and some K1.8 million Kwacha was paid as “Lobola” in accordance with the Lozi Custom. There was no formal marriage. Whilst co-habiting, they ran a joint bank account with Barclays Bank Zambia PLC and both were signatories. Whilst still co-habiting some property known as Stand No 1944 Kitwe was purchased in the name of the defendant. J4 The two again floated a Company known as Fin Foot but no evidence or record of what this company was doing. On the evidence before him, the learned trial judge found that the plaintiff had not adduced any evidence on which the Court could declare the conveyance of Stand No. 1944 Kitwe to the defendant null and void as the Registrar of Lands and Deeds had not been made a party to the proceedings. It further held that the plaintiff had not proved any interest in the property. The learned trial judge further found that no sufficient evidence had been adduced to justify the Court to order that the defendant pays US $5,000 as 50% of the proceeds from the sale of household property. The learned trail judge further held that there was no marriage between the plaintiff and the defendant. It is against these findings that the plaintiff has appealed. There are three grounds of appeal according to the Memorandum of Appeal and these are:- 1. The trial judge erred in law and in fact by holding that the plaintiff did not have any interest in property known as Stand No. 1944 Kitwe when in fact there was evidence given before him that the aforesaid plaintiff and the defendant were husband and wife and that the production of a marriage certificate was not the only evidence to prove marriage. 2. The Court erred in law and fact by holding that there was no evidence adduced to prove that the conveyance of the aforesaid J5 Stand No. 1944 Kitwe to the 1st defendant was null and void when the issue was one of law in that the 1st defendant was an employee on an employment permit only and therefore not permitted to own Real Estate in Zambia. 3. The trial judge erred in law and in fact by condemning the plaintiff in costs allegedly that she had no interest in the aforesaid Stand No 1944 Kitwe, when she had that interest as there was overwhelming evidence before the aforesaid Court and its rejection without sufficient ground was a serious misdirection. The grounds of appeal were fully supported by detailed written heads of argument and authorities. There were also written heads of argument on behalf of the defendant and authorities. Both parties relied on their heads of argument. Before we consider the appeal, we wish to consider the preliminary point that was raised before the hearing of the appeal. The preliminary point was on the accuracy of the record at P102 line 25 where PW 3 under re-examination is recorded as having told the Court that he saw the money being handed over to Plaintiff’s uncle. Mr Mutuna, in supporting his preliminary point to expunge that portion of the record produced in supplementary record containing handwritten notes of the learned trial judge which showed that PW 3 was not there when the money was paid and this is at page 6 of the Supplementary record. In answer to this preliminary point, Mr Mundia, SC. told the Court that he was not able to fully answer to the preliminary point as he had just come back to the country from abroad but that the Court Reporters’ notes are accurate J6 which carried the essence of the matter and that he compiled the record from the Court Reporters’ notes In considering this preliminary point, we note what the learned trial judge is recorded to have said at page 21 of the record of appeal. He is quoted to have said:- “Just a minute, you see, the way I do, I do not often rely on the Reporters. I take as much evidence as possible so that at the end of the day because these people are over-worked, they service a number of Courts, then I can be able to write my judgment from the notes that I have taken. So you will excuse me that I am slightly slow”. We cannot take this matter any further. The learned trial judge relies mostly on his notes and therefore what he writes ought to be taken to be accurate. We would therefore expunge the record at page 102 where PW 3 is reported having told the Court that she witnessed the handing over of the Lobola to Plaintiff’s uncle. This is the only error noticed in the record. We wish to say that the reporters are generally accurate and most trial judges rely on them. Coming now to the main appeal, the gist of the 1st ground of appeal is that the learned trial judge did not adequately consider the issue of whether the plaintiff and defendant were married under the Lozi customary law when there was sufficient evidence on record that the Lozi customary law was followed and Lobola was paid in the presence of the defendant’s mother in Kabwe and that according to Lozi customary J7 law, once Lobola is paid marriage is contracted. Further, this was confirmed by the plaintiff leaving her home joining the defendant and they started living together as man and wife. They even opened a joint account at Barclays Bank. It was argued that a marriage need not be registered under customary law and since they were man and wife, property acquired during the marriage ought to be shared. The plaintiff’s interest in the property, Stand No 1944, Kitwe, can therefore be enforced under Section 17 of the Married Womens’ Property Act (1882) even if there is no question of dissolution of the marriage. To buttress the use of Section 17 of the Married Womens’ Property Act, the Court was referred to BROMLEY’S FAMILY LAW, (1) where the learned authors say:- “It therefore follows for example that if a man purchases a house in his own name partly with money provided by his fiancé and they enhance its value by doing work on it, the use of her money and her contribution to the improvement of the house will give her the same interest in it as she would have acquired had the parties been married at the time”. It was submitted that the denial of the existence of marriage on account of absence of marriage certificate was a misdirection and this finding ought to be upset by this Court on the authority of NKHATA AND OTHERS V ATTORNEY-GENERAL (2). It was, in alternative, argued that even if the parties were merely friends, the fact that they had a joint account meant that any property acquired during their stay together should be treated as jointly acquired and that the girl friend had an interest. The cases of CHARITY OPARAOCHA V WINFRIDA MURAMBILWA (3) and J8 PATRICIA RAWNSLEY and COLIN TOWNSEND V GWENDOLINE MARTHA TOWNSEND (4) were relied upon. In response to ground 1, Mr Mutuna for the 1st Defendant submitted that in order to fault the learned trial judge on this ground, we have to look at the Statement of Claim. It was submitted that the plaintiff never asked the court to declare her and the Defendant as man and wife. In any event, it was submitted, there was no cogent evidence that any customary marriage was contracted as all witnesses called never testified having witnessed the payment of Lobola. It was submitted that in the absence of a marriage certificate, there can be no distribution of matrimonial property. We have considered the first ground of appeal. The learned trial judge found that the plaintiff had not proved her interest in property Stand No. 1944 Kitwe, because all documents effecting the conveyance of the property to the defendant do not bear her name and there was no marriage as there was no marriage certificate. The evidence of the plaintiff and her witness was unchallenged as the defendant never led any evidence on any matters raised by the plaintiff. The unchallenged evidence on record is that, under the Lozi custom, marriage is concluded on payment of lobola. Spirited argument was advanced on the fact that no witness witnessed the actual handing over of the lobola. But in our view the circumstantial evidence, if we may call it that as borne out by the conduct of the parties, is such that one is led to irresistible conclusion that there was a marriage. There is evidence that the defendant took the plaintiff to South Africa and introduced her to his family; there is evidence J9 that when it came to discussion of the marriage with the plaintiff’s family, the defendant took his mother with him and introduced her to the plaintiff’s family; the plaintiff and the defendant opened a joint account and not company account for Fifoot the company they jointly formed. This to us clearly shows that the relationship was that of man and wife as there is evidence that the plaintiff had earlier refused to have any physical relationship with the defendant unless there was marriage as she was a virgin. There is also evidence that before this relationship the plaintiff had plans to become a nun but because of the relationship after paying lobola, she succumbed and had physical relationship with the defendant and got pregnant but unfortunately the pregnancy was terminated at UTH. There is further evidence that when the parties started living together they had plans to settle in South Africa and sold their household property. Taking all this evidence, we are of the opinion that the learned trial judge misevaluated the evidence and came to a wrong conclusion that there was no marriage. This is a proper case in which the appellate Court may reverse that finding based on the principle in the NKHATA & ANOTHER V ATTORNEY-GENERAL (5). We hold that there was a valid lozi marriage which was even consummated. The plaintiff, therefore, had adduced sufficient evidence to prove interest in the property. As the property became matrimonial home, the issue now is whether the action was properly commenced by a writ of summons. Actions under Section 17 of Married Women’s Property Act, 1882 are commenced by Originating Summons. The plaintiff’s action was premised on marriage, therefore title or ownership of property in matrimonial home has to be J10 decided under Married Women’s Property Act as the marriage is still subsisting. Hard as it may sound, we would dismiss this appeal on the ground that it was wrongly commenced. It would be an academic exercise to go into the other grounds of appeal. Costs to the respondent to be agreed, in default to be taxed. D K Chirwa JUDGE OF THE SUPREME COURT S S Siliomba JUDGE OF THE SUPREME COURT T A Kabalata JUDGE OF THE SUPREME COURT For Your Signature Please Chirwa, JS:…………………………………………………… Silomba, JS:…………………………………………………. Kabalata, Ag. JS:…………………………………………..