Fenias Mafemba v Ester Sitali (S.C.Z. JUDGMENT NUMBER 24 OF 2007) [2007] ZMSC 192 (11 October 2007)

FENIAS MAFEMBA v ESTER SITALI SUPREME COURT SAKALA, C. J. MUMBA AND SILOMBA JJS 15TH MAY, 2007 AND 11TH OCTOBER, 2007 (S. C. Z. JUDGMENT NUMBER 24 OF 2007) Flynote Civil Law – Marriage – Lozi Customary Law – Lengthy cohabitation – Whether constitutes a valid marriage. Headnote This is an appeal against the judgment of the High Court dated 31st August, 2005, allowing the respondent‟s appeal against the decision of the Subordinate Court which had upheld the Local Courts decision that the appellant was the widower and en�tled to his deceased wife‟s estate. HELD: (1) The appellate judge was on firm ground when he held that the appellant was not a husband to the deceased despite the fact that the two had stayed together as husband and wife for 14 years and had two children. (2) The appellate judge was on firm ground when he ruled that the Local Court and the Subordinate Court should have restricted themselves to Lozi Customary law on marriage in defining the rela�onship between the appellant and the deceased. Cases referred to: 1. Heyde v Heyde [1866] L. R. P. and D 130. 2. Taczanowska v Taczanowska [1957] 2 All ER 563 3. Mahadervan v Mahdervan [1962] 3 All ER 1108 Legisla�on referred to: 1. Local Courts Act Cap.29 sec�on 12 (1). 2. High Court Act Cap. 27 sec�on 10. 3. Intestate Succession Act Cap. 59 sec�on 5, 9 (1) (b). 4. Marriage Act Cap. 50 sec�on 38. Works referred to: 1. Women and Law in Southern Africa Research Project “Inheritance in Zambia: Law and Prac�ce”. 2. Max Gluckman, “Re Judicial Process Among the Borotse of Northern Rhodesia (Zambia). (Manchester University Press 1955) 3. Max Gluckman, “The ideas in Bartose Jurisprudence” (Yale University Press 1965) 4. Muna Ndulo and “Law of Evidence in Zambia: Cases and Materials”. John Hatchard (Mul�media Publica�ons Lusaka 1991). 5. Lillian Mushota Family Law in Zambia “Cases and Materials” (UNZA Press 2005) Editor‟s Note: There was no appearance by counsel. Counsel filed no�ces of non- appearance. Judgement SAKALA, C. J, delivered judgment of the court At the hearing of this appeal, both par�es, through their Advocates, filed no�ces of non-appearance. The Advocates also indicated that they relied on their respec�ve heads of arguments filed on 2nd February, 2006, and 10th May, 2007; respec�vely. This is an appeal against the judgment of the High Court dated 31st August, 2005, allowing the respondent‟s appeal against the decision of the Subordinate Court which had, upheld the Local Court‟s decision that the appellant was the widower and en�tled to his deceased wife‟s estate. The case first started in the Lusaka Local Court. In that, court, the appellant successfully sued the respondent for revoca�on of leters of administra�on that had earlier been issued to the respondent in respect of the estate of her late daughter, Inonge Sitali, who died intestate on or about 20th February, 2003. The Local Court found and the appellant. The leters of administra�on of the respondent were revoked. The Local Court further ordered that the appellant should remain in the Flat together with the two children un�l he died or re-married. Aggrieved by the decision of the Local Court, the respondent appealed to the Subordinate Court of the First Class Holden at Lusaka. The mater before the Subordinate Court commenced de-novo. The Subordinate Court heard the evidence of the par�es. In its judgment, the court observed that the appellant did not claim to be married to the deceased either under the Marriage Act or the Lozi Customary Law; and that his evidence was simply that he had stayed with the deceased for 14 years. The Subordinate Court wondered whether that was not a marriage in itself. The Subordinate Court considered the defini�on of marriage as defined in a number of cases including the case of Heyde v Heyde (1). The Court also considered the principle of presump�on of marriage and the neighbourhood test. The court then noted that if the appellant stayed with the deceased for a period of 14 years, and had two children, it would be unfair to conclude that there was no marriage between them. The Subordinate Court, also upheld the appellant‟s claims. Dissa�sfied with the Subordinate Court‟s judgment, the respondent appealed to the High Court against the judgment of the Subordinate Court that has upheld the judgment of the Local Court. In this judgment, the appellate judge observed that the original bone of conten�on was the respondent‟s appointment as Administrator of the estate of the late Inonge Sitali; and that the appellant had claimed to be the surviving spouse (widower) of the late Inonge Sitali. The learned appellate judge also observed that the undisputed evidence on record was that the appellant and the late Inonge Sitali has an amorous affair as a result of which they had two children. That when Inonge Sitali died, the respondent, who was the biological mother, was appointed the Administrator of her estate. The court further noted that although the appellant and the late Inonge Sitali had the two children together, there was no formal marriage and no dowry was paid. There were two grounds of appeal before the appellate judge; namely, that the learned Magistrate erred in law and in fact when he ordered that the appellant was a surviving spouse and a beneficiary to the estate of Inonge Sitali and therefore en�tled to occupy Flat No. 118, Nambala Close, Fairview, Lusaka, le� by the deceased; and that the learned Magistrate erred in law and in fact when he ruled that there was a valid marriage between the appellant and the deceased, Inonge Sitali. According to the appellate judge, the ques�on for determina�on was whether the rela�onship between the appellant and the late Inonge Sitali could be construed as a marriage. The appellate judge observed that the ac�on having been commenced in the Local Court, the rela�onship was viewed as a customary law marriage; but that according to the evidence of the respondent, there was no marriage between the appellant and the deceased Inonge Sitali because no dowry was paid; and that the learned Magistrate did recognize that there was no statutory or Lozi Customary law marriage in their case. The appellate judge, a�er ci�ng the provisions of sec�on 12 (1) of the Local Courts Act, Cap. 29, which provides that a Local Court shall administer African customary law applicable to any mater before it, pointed out that since dowry was to be paid under Lozi customary law, the Magistrate ought to have posed the ques�on of whether a Lozi Customary law marriage has to be looked at subjec�vely or objec�vely? The appellate judge then referred to a case study in a book en�tled Inheritance In Zambia – Law and Prac�ce, page 157 and also in a book en�tled Judicial Process Among the Barotse of Northern Rhodesia, at page 210 by Max Gluckman where the author states: “Thus the Lozi courts have protected and sanc�oned these intertribal marriages. Since 1917 they have done so under King Yeta‟s marriage law which lay down the condi�ons for‟ establishing a marriage. The guardians of the woman must accept the marriage-payment established under the edict, and the girl must consent to the marriage. If the marriage-payment is promised, but not transferred, the woman is a “wife for the country” with whom any man can fornicate or elope without penalty”. The appellant judge also referred to another book by Max Gluckman, en�tled: The Ideas in Barotse Jurisprudence, 1965, edi�on, where at page 159 the author states: “For example when a man marries a presumed virgin he has to hand to her kin two catle as sionda (marriage payment). If he does not, she is not his wife”. The appellant judge further referred to page 183 of the same book where the authors states: “Ceremonial gi�s are thus property which conveys rights from one party to another in amending status rela�ons. That the marriages agreement and ritual alone cannot achieve this is made clearly by the rule if a man agrees with a woman‟s kin to marry her, and all the marriage ritual is performed but he does not transfer the marriage catle, there is no marriage. He cannot process against adulterers, and the court describes the woman as “a wife of the country”. Some transfer for property essen�al to create any rights and obliga�ons”. The appellate judge then observed that it was clear from the visited authori�es that Lozi customary law marriage was cons�tuted by payment of marriage payment (dowry or sionda) to the bride‟s parents or kin; and that without it, the rela�onship was not recognised as a marriage. The appellate judge then answered the ques�on posed that marriage under Lozi customary law has to be looked at objec�vely and not subjec�vely. In the instant case, the court found that no marriage payment exchanged hands; and that a Lozi customary law marriage is cons�tuted only where there is consent of the girl; consent of the parents; a perceived ceremony taking place; and most importantly payment of a dowry was a must as failure to pay it rendered the rela�onship to be looked at as a mere friendship or concubinage. The appellate judge then pointed out that the length of cohabita�on does not legalize the rela�onship into a marriage and concluded as follows: “It is therefore clear that the plaintiff in this case having failed to comply with the Lozi customary law relating to marriage, in that he failed or neglected to pay the lobola to the defendant rendered his relationship with the deceased as mere friendship or concubinage. He was therefore, not a widower under the Lozi customary law. He is not entitled to inherit anything from the deceased‟s estate. He is not a surviving spouse under the Intestate Succession Act, Cap. 59. He is therefore not covered under section 9(1) (b) of the said Act. This sec�on reads as follows: 9. (1) Notwithstanding section five where the estate includes a house, the surviving spouse or child or both, shall be entitled to that house. Provided that- (b) the surviving spouse shall have a life interest in that house which shall determine upon that spouse‟s remarriage. All in all I find that both the Local Court and the Subordinate Court misdirected themselves when they found for the plaintiff. The appeal is allowed with costs both here and in the courts below. In default agreement they shall be taxed”. Dissa�sfied with the judgment of the High Court, the appellant appealed to this court. The appeal is based on four grounds; namely: (1) That the High Court judge erred in law and in fact by holding that the appellant was not a husband to the late Inonge Sitali despite the fact that the two had stayed together as husband and wife for 14 years and had two children together; (2) That the High Court judge erred in law and in fact in holding that the appellant was not a widower hence could not be en�tled to inherit from the estate of Inonge Sitali under the Interstate Successions Act. (3) That the High Court judge erred in fact and law in ruling that the Subordinate and Local Courts should have restricted themselves to the Lozi Customary Law on marriage in defining the rela�onship between the appellant and the late Inonge Sitali; and (4) That the High Court judge erred in law and fact in holding that the Common Law concept of marriage could not apply to the appellant and the late Inonge Sitali merely on account of the fact that this mater was first commenced in the Local Court. In the writen heads of arguments, grounds one, three and four were argued together. The gist of the arguments on these grounds is that the appellate High Court judge fell into total error in holding that the appellant was not a husband to the late Inonge Sitali; yet the evidence on record, which was not in dispute, was that the two had stayed together for 14 years and between them produced two children; that the evidence before the Subordinate Court, and indeed the Local Court clearly showed that the two held each other out as husband and wife; and that for all intents and purposes they were husband and wife under Common Law. In support of these arguments, the learned authors of Law of Evidence in Zambia, Cases and Materials (1991) (4), were cited where at pages 1 the authors state: “Common Law is one of the main sources of law in Zambia just like principles of equity”. It was, however, conceded on behalf of the appellant, that the union between the appellant and the late Inonge Sitali did not amount to a marriage under Lozi Custom. But it was submited that the court below was duty bound to inquire under other sources of law what kind of rela�onship it was; that Common Law being one of the sources of law in Zambia, the Court below was under a duty to inquire into this rela�onship from the angle of common law, and that this was exactly what the Local and Subordinate Courts did, but was reversed by the High Court. According to the arguments on behalf of the appellant, the court having found that the union between the appellant and the late Inonge Sitali was devoid of ingredients of a marriage under African customary law, the appellate judge should have proceeded to apply Common Law principles to their rela�onship. It was submited that common law marriages are reasonably presumed in a situa�on such as that of the appellant where a man and a woman with consent of each other, start cohabi�ng together as husband and wife, under a reasonable (whether mistaken) belief that they are lawfully husband and wife, and who carry themselves as such for a long period; but that to declare the union as a cohabita�on in concubinage would cause emo�onal and physical devasta�on to the other party or hardship to the dependants. Again, the authors of the Law of Evidence were cited in support of these submissions were at page 45 they state as follows: “The view is that proof of particular facts imposes on the opponent the legal burden of disproving the presenting fact and thus the court must make a finding that a presumed fact is true unless sufficient rebutting evidence is adduced”. “It was submited that this is what is known as a presump�on of marriage under common law; that the test required to establish this presump�on is what is called the neighbourhood test; and that the ques�on is being how the neighbourhood of the couple living under one roof for a long �me look at them. It was argued that if they regard them as husband and wife, then this presump�on is sustained and there is a marriage. In conclusion, it was submited that all said, a marriage existed between the appellant and the late Inonge Sitali under common law. The gist of the other arguments on ground two is that having shown that there was a marriage between the appellant and the late Inonge Sitali under common law for a dura�on of 14 years, the appellant was en�tled to benefit from the estate of his late wife, Inonge Sitali, under sec�on 5 of the Intestate Succession Act, Cap. 59 of the Laws of Zambia. In the writen response, on behalf of the respondent, grounds one and two were argued, together. There was no writen response to grounds three and four. The gist of the writen response to grounds one and two is that the appellant was not the husband to the late Inonge Sitali as the two never contracted any marriage as recognized under the law in Zambia; that in terms of the Marriages Act, Cap. 50 of the Laws of Zambia, there are only two forms of marriages recognized in Zambia. Namely, marriage under the Act and customary law marriage as acknowledged by sec�on 38 of the Marriage Act, which prohibits the contrac�ng of a marriage under the Act, whilst at the same �me being married under the African customary law to another person or vice versa. It was submited that since sec�on 38 does not prohibit the contrac�ng of common law marriage whilst being married under the Act or under African customary, it follows that common law marriage is not recognised in Zambia; and that in terms of sec�on 10 of the High Court Act, Cap. 27 of the laws of Zambia, the Marriage Act has no lacuna in respect of how a marriage can be contracted but merely restricts the mode of contrac�ng marriage to two. Namely, under the Act or under African customary law. It was pointed out that there was no room to resort to the law and prac�ce of England when the Marriage Act sufficiently covers matrimonial law in Zambia in respect of how marriages are contracted. In the alterna�ve, it was submited on ground two that should the court find that the common law marriage should be recognized, then the same cannot be held to apply to this case on the ground that the appellant and the Inonge Sitali were incapable of contrac�ng a common law marriage as there was never any celebra�on of marriage between them. In support of this submission, a passage was cited from Family Law in Zambia Cases and Material University of Zambia Press, where at page 69 the author states: “Today a common law marriage is one where two people from different jurisdictions celebrate their marriage according to the law of the place of the marriage (lex loci celebrations) where formal requirements of a valid marriage according to English law are not fulfilled, for instance celebrating a marriage without a priest or a person with holy orders”. It was argued that the appellant and the late Inonge Sitali did not marry in accordance with the law of the place of marriage and that in fact they were not married at all. The case of Taczanowska v Taczanowska (2) where it was held: “If a marriage is good by the laws of the country it is effected, it is good all over the world no matter whether the proceeding or ceremony which constituted the marriage according to the law of the place would or would not constitute in the country of the domicile of one or the other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceedings if conducted in the place of the parties‟ domicile would be considered a good marriage”, was cited in support of the argument. On presump�on of marriage under common law, it was submited that the presump�on is rebuted by the fact that the two never got married either under African customary law or under the Act or at all and that the presump�on of common law marriage was defeated by the absence of any celebra�on of marriage. The case of Mahadervan v Mahadervan (3), where Sir Jocelyn Simon, P. referred to the Halsbury‟s Laws of England at page 813, was cited in support of the argument where the author stated. “….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 a 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”. It was submited that in the instant case, there was no celebra�on of any marriage and the presump�on of marriage is therefore rebuted. In conclusion, it was submited that the appellant having not been married to the late Inonge Sitali, he was not en�tled to any interest in the late Inonge Sitali‟s flat or benefit from her estate and that the proper beneficiaries are the two children born from the appellant and the late Inonge Sitali; and that the respondent being the biological mother of the late Sitali, she is a beneficiary of the estate. We have carefully considered the judgment of the High Court, as well as the judgments of the Subordinate Court and the Local Court. We have also examined the arguments advanced before us in the writen heads of arguments and the writen responses. In all the three courts, the material facts were not in dispute. The appellant and the late Sitali lived together for 14 years. During this period of cohabita�on they had two children born out of their rela�onship. The respondent was the biological mother of the late Sitali. Upon the death of Inonge Sitali, the respondent was appointed the Administrator of the deceased‟s estate. It was common cause in all the three courts, and even before this court that there was no formal marriage between the appellant and the late Sitali. In this connec�on, no dowry was paid. On the foregoing facts, on the basis of the dura�on of the rela�onship between the appellant and the late Sitali, the Local Court and the Subordinate Court found for the appellant that he was the widower of the late Sitali en�tled to her estate. The High Court reversed both courts. The conten�on of the appellant on grounds one, three and four is that the High Court erred in holding that the appellant was not the husband of the late Sitali despite that the two stayed together for 14 years; that the High Court erred in ruling that the Subordinate Court and the Local Court should have restricted themselves to Lozi customary law marriage and that the common law concept of marriage could not apply to the appellant and the late Sitali. At this stage, we must indicate that we totally agree with the appellate judge that the per�nent issue for determina�on in this appeal, which was also the issue in all the three courts, was one of ascertaining the kind of rela�onship that existed between the appellant and the deceased Sitali. Could this rela�onship have been construed as a marriage? The appellate judge, properly so in our view, observed that the ac�on having been commenced in the Local Court, the rela�onship was viewed as a customary law marriage. The appellate judge went into great detail to ascertain what cons�tutes a customary law in Lozi custom. He found that a Lozi customary law marriage is cons�tuted when there is consent of the girl; consent of the parents; a ceremony taking place; and most importantly payment of a dowry is a must as failure to pay dowry rendered the rela�onship a mere friendship or concubinage. The appellate judge was supported on these findings by a number of authori�es and authors on customary law marriage. We have also addressed ourselves to the authori�es and authors cited by the appellate judge. We are sa�sfied that they represent Lozi customary law on marriage. The evidence established that there was no dowry paid in the instant case. The issues of sources of law, common law marriage, presump�on of marriage and the neighbourhood test were all, in our view, totally irrelevant in determining the kind of rela�onship that existed between the appellant and the late Sitali. Above all, there is no principle of presump�on of marriage under customary law. We are, therefore, sa�sfied that the appellant judge was, on the facts of this case, on firm ground when he 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 14 years and had two children together. Both the Local Court and the Subordinate Court were dealing with a rela�onship under Lozi customary law on marriage. The High Court was, therefore, also on firm ground when it ruled that both courts should have restricted themselves to the Lozi customary law on marriage in defining the rela�onship between the appellant and the late Inonge Sitali. From the foregoing, it also follows that the High Court judge did not err in holding that the appellant was not a widower, hence could not be en�tled to inherit from the estate of the late Inonge Sitali under the Intestate Succession Act. This appeal fails in toto and it is accordingly dismissed with costs to be taxed in default of agreement. Appeal dismissed.