Chilaika v Chilaika (Appeal 129 of 2004) [2005] ZMSC 20 (30 December 2005)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: APPEAL NO 129 OF 2004 CHILANDU MUSUKA CHILAIKA (Dr) Appellant and SYLVESTER CHILAIKA (Dr) Respondent Coram: Sakala, CJ, Chirwa, JS and Mushabati Ag. JS on 5,h April, 2005 30,h December, 2005 For the Appellant: Mr W. A Mubanga, Permanent Chambers For the Respondent: Dr F K M Sumaili, Phoenix Partners J U DGMENT Chirwa, J S delivered the Judgment of the Court:- Cases referred to: 1. 2. 3. Chibwe v Chibwe [2001] Z. R 1 Wafchel v Watchel [1973], All. E. R. 829 Anne Bailes v Charles Anthony Stacey and Another [1986] Z. R. 83 This is an appeal against property settlement made by the learned Deputy Registrar upon the parties' divorce. The appeal is mainly against the orders that the matrimonial house should be given to the respondent and that the Toyota Mark II, Registration No AAV 7601, should be sold and proceeds shared equally. Although the Memorandum of appeal shows that there were four (4) grounds of appeal, in essence there are two grounds of appeal in that J2 grounds 1-3 in the Memorandum of appeal relate to the matrimonial home of which the 1st ground is the main ground and grounds 2 and 3 are alternative prayers in which it is submitted that the learned Deputy Registrar did not take into consideration in making the order that the matrimonial home should be given to the respondent. Both parties filed detailed written heads of arguments, the appellant's are contained in a 27 page document and the respondent in a 10-paged document. We do not intend to go through the heads of argument, on which the parties relied on at the hearing of the appeal. We will merely summarize the same. The appellant in ground 1 has argued that the learned Deputy Registrar did not fully appreciate the appellant’s contribution towards the purchase of the matrimonial home and the improvements made to it after the purchase of the same. Particularily, the learned Deputy Registrar did not consider that the appellant made more than 50% of the purchase of the house which was bought at <80,000,000 as she raised the initial two installments amounting to <46,500,000 and the improvements to the house to the tune of more than <85,000,000. It was also argued that the learned Deputy Registrar did not take into account he fact that the appellant had been granted custody of the children of the family and their need to have shelter and financial implication of the same having been denied maintenance. J3 To augment their submissions, the cases of CHIBWE v CHIBWE (1) in which we cited with approval the English case of WATCHEL v WATCHEL (2) was cited as authority. In the alternative, it was submitted that the appellant is entitled to a share in the house having substantially contributed to its acquisition and as such the house should be sold and proceeds shared equally and the case ANNE BAILES v CHARLES ANTHONY STACEY and ANOTHER (3) was relied on. In the alternative, which is ground 2 in the Memorandum of appeal, it was argued that it was a misdirection by the learned Deputy Registrar to order the return of only <47,300,000 as the value of improvements without taking into account that the appellant paid the initial <46,500,000 towards the purchase price of the house. It was argued that should the respondent be given the house, then the appellant should be paid the initial <46,500,000 plus the K85 million spent on improvements. In ground 3, it was argued that the learned Deputy Registrar misdirected himself and was in fact biased towards the respondent in that he awarded the matrimonial house on extraneous principles that since he had title to the house, he must have it; that since he had not repaid the mortgage he should have the house and that if he is removed from the house he would not afford to purchase or rent a house of similar standards in view of his low salary thereby inferring that the appellant who is alleged to have a better paying job can afford to buy or rent a similar house. It was argued that a matrimonial home is a joint home for the benefit of the J4 family and it was irrelevant that it was in the name of one person so long as there is evidence that it was acquired through joint effort. Further under Sections 2, 3, 4 and 5 of the Matrimonial Causes Act, 1973, the Court has power to effect transfer of ownership of the family assets to the other party. On ground 4, it was argued that the learned Deputy Registrar misdirected himself by ruling that the Toyota Mark II motor vehicle should be sold and the proceeds shared equally between the parties because both parties contributed to its purchase. It was submitted that there was no evidence that the respondent contributed to the purchase of the motor vehicle but that he only contributed in its registration and the purchase of statutory triangles. It was prayed that os there was oveiwhelming evidence that the vehicle was purchased by the appellant it was wrong to order that it should be sold and proceeds shared equally. It was, therefore, prayed that the orders of the learned Deputy Registrar be set aside and in their places, it be ordered that the appellant gets the matrimonial home and the Toyota Mark II motor vehicle. For the respondent, it was argued that the learned Deputy Registrar did not err in ordering that the matrimonial home be given to the respondent. It was submitted that the learned Deputy Registrar took into account the fact that the appellant was awarded custody of the children of the family and that she made contribution towards the purchase of the matrimonial home. However, it was submitted that custody of the J5 children is not the only factor to be considered in settling properly. It was submitted that the learned Deputy Registrar correctly took into account such factors as earning capacities of the parties, financial obligations; standard of living enjoyed before marriage and the contribution made by each party. In the present case, it was submitted that the Deputy Registrar correctly took into account that the property is in the name of the respondent having bought the house through the government house empowering Policy which he may never have again; the fact that the appellant is better remunerated and both parties contributed to the purchase of the house. If, it was submitted, the house were to be given to the appellant, the respondent’s life style will drastically change as he may never own a house as a civil servant. On ground 2, it was submitted that his ground flies in the teeth of judgment of the learned Deputy registrar as the Deputy Registrar ordered that the appellant be reimbursed her contribution to the purchase of the house and that there was no proof of the improvements to the house of K85 million. It was submitted that the appellant cannot get more than what was proved as her contribution. On ground 3, it was submitted that the fact that the learned Deputy Registrar took into account that there was an outstanding mortgage on the house which the respondent is paying cannot be regarded as been biased in his favour. Further, it was submitted that the Deputy Registrar rightly took into account the earning capacities of the parties as this affected the ability to afford alternative accommodation. J6 On ground 4, it was submitted that on the principle of WATCHEL (2) case, the learned Deputy Registrar did not err to consider the car as part of the matrimonial asset and order it to be sold and the proceeds shared equally and that this was the most equitable settlement. It was, therefore, prayed that the appeal be dismissed. We have considered the powerful submissions on behalf of both parties and also the circumstances of this case. We do not wish to repeat what the law is as regards to matrimonial property or assets as expounded in CHIBWE v CHIBWE (1) case because here there is no dispute that the property in question, the house and the car, are matrimonial properties or assets. Looking at the manner in which the other matrimonial property was ably distributed and settled by the learned Deputy Registrar, we have failed to see in his judgment why he did not think the house was a matrimonial asset in which the petitioner contributed should also be treated on the same lines as he did with other property. With clear evidence that the respondent made nominal contribution to the purchase of the Toyota Mark II, he regarded it as a matrimonial property and ordered it to be sold and the proceeds shared equally. This, to us shows some biasness towards the respondent. Having accepted that the petitioner had an interest in the matrimonial house, the learned Deputy Registrar should have gone further than merely ordering the reimbursement of the cost contribution. At pages J5 and 6, he does accept that the appellant made some improvements to the house although the respondent stated that was without his consent. In deciding J7 this issue, it is obvious that the learned Deputy Registrar was influenced by the present earning capacities of the parties and the fact that the house is registered in the respondent’s name, (See page J7). These two issues are of no consequences in considering the beneficial interest of the parties in the house. Having accepted that the appellant contributed some K45 million towards the purchase of the house and that she carried out some improvements, the order that she gets <47,300,000 is injustice and unequitable. There is no basis where this <47,300,000 was plucked from. On due consideration of the arguments pertaining to the matrimonial home, we agree with the appellant's submissions that she got a raw deal. To be as equitable as possible, we set aside the order of the learned Deputy Registrar. In its place, we order that the house be evaluated by a professional evaluer. Upon evolution, the parties have two options: (a) Sell the house and share the proceeds equally; (b) Either party may outright buy the other by paying half of value of the house to the other. On the Toyota Mark II, having found that the car was a matrimonial property and that it be sold and the proceeds shared equally, we confirm this order. J8 To extent on the orders on the matrimonial house, the appeal succeeds but fails on the issue of Toyota Mark II. Each party will bear its own costs. E L Sakala CHIEF JUSTICE D K Chirwa JUDGE OF THE SUPREME COURT C S Mushabati Aq. JUDGE OF THE SUPREME COURT