Mpamfya Sampa v Lontia Sakala (2024/HPF/D416) [2024] ZMHC 275 (24 July 2024)

' IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Divorce Jurisdiction) BETWEEN: 2024/HPF/D416 MPAMFYA SAMPA PETITIONER AND LONTIA SAKALA RESPONDENT BEFORE THE HONOURABLE MR. JUSTICE W. S. MWEEMBA AT LUSAKA. For the Petitioner: Mr. K . Mwale - Messrs K . Mwale & Co. For the Respondent: Ms. L . Sakala - In person JUDGMENT LEGISLATION REFERRED TO: 1. The Matrimonial Causes Act, No. 20 of 2007 of the Laws of Zambia. 2. The High Court (Amendment) Rules 2020, Chapter 27 of the Laws of Zambia. 3. The Matrimonial Causes Rules of England of 1973. 4 . Family Proceedings Rules 1991 of England. CASES REFERRED TO: 1 . Pounds V. Pounds (1994) 1 F. L. R. 775 MPAMFYA SAMPA (the Petitioner) filed this Petition for dissolution of marriage on 8 th July, 2024 seeking to dissolve h is marriage to LONTIA SA. KALA (the Respondent). The Petition was brought pursuant to Section 8 and Section 9(1)(d) of the Matrimonial Causes Act No. 20 of 2007. ' The Petition reveals that the Petitioner was married to the Respondent on 6th October, 2007, at Northmead Assembly of God Church in Lusaka, in the Lusaka Province of the Republic of Zambia; that both parties are domiciled in Zambia; that immediately after the marriage the Petitioner and the Respondent lived together as husband and wife at Plot No. 702, Salama Park, Lusaka aforesaid; that the Petitioner is an Accountant in the Zambia Air Force and currently resides in Chalala, Lusaka whilst the Respondent is an Economist in the Ministry of Finance Zambia and resides at Plot 702, Salama Park, Lusaka; The Petition further reveals that there are four children of the family now living whose names and dates of birth are: i. ii. Lubuto Sampa - 11th May, 2009 Twange Sampa - 30th June, 2012 111. Lutanda Sampa - 13th July, 2016; and iv. Chengelo Sampa - 6th February, 2021 It is also averred that there have been no previous proceedings in Zambia or elsewhere with reference to the said marriage or between the Petitioner and the Respondent with reference to any property of either or both of them; there are no proceedings continuing in any country outside Zambia with respect to the marriage capable of affecting its validity or subsistence. The Petition also shows that the parties have made an agreement or proposals on the support of the children of the family. The Petitioner alleges the irretrievable breakdown of the marriage on the ground that the parties have lived apart since May, 2021 and that the Respondent consents to a Decree Nisi being granted. J2 ' The Petitioner prays; 1.. u. ziz. zv. That the marriage be dissolved; That there be an order for property settlement; and That each party bears their own costs of and incidental to the suit.; and Any other relief the Court will deem fit. The Respondent filed Consent to Dissolution of Marriage on 8 th July, 2024. She confirmed that her marriage with the Petitioner has broken down irretrievably and that they have lived apart for a continuous period in excess of two (2) years preceding the presentation of this Petition and she consents to the dissolution of the marriage with the Petitioner. I find that the Petitioner has sufficiently proved the contents of his Petition and is entitled to a D ecree Nisi particularly that the Respondent is not contesting the divorce. I will therefore deal with the Petition in the way that Petitions in the Special Procedure List are dealt with. The Special Procedure was introduced in 1973 in England and Wales for undefended divorces based on the fact of two years' separation plus consent, although only where the couple did not have children. This procedure allowed a divorce to be granted on the basis of Affidavit evidence alone. In 1977 it was extended to all undefended divorces, and the "Special Procedure" became the norm-see the Family Proceedings Rules 1991 (Statutory Instrument 1991/1247) Rule 2. 36. The Procedure was summarized by Waite L. J in the case of POUNDS V POUNDS (1) . ' Whilst the English Family Proceedings Rules 1991 do not apply to Zambia, I am of the firm view that undefended divorces based on the fact of two years' separation plus consent should be dealt with using the Special Procedure i.e on the basis of Affidavit evidence alone without the need for the parties to attend Court for their case to be heard. I am of the considered view that the Court is empowered to determine such a divorce on the documents before it pursuant to Order 30 Rule 6A of the High Court Rules, Chapter 27 of the Laws of Zambia as amended by the High Court (Amendment) Rules 2020. Rule 6 A of Order 30 provides as fallows: "6A. (1) Where the Court is satisfied that the application can be disposed of on the basis of the documents before it, the Court may determine the matter without the attendance of the parties or their advocates and shall issue a notice of the date of delivery. (2) This Rule shall apply to - (a) An interlocutory application; (b) An application under l l(a); (c) An application for determination on questions of law or construction of documents; or (d) Any other application as may be directed by the Court." I have considered the evidence of the Petitioner and noted that the Respondent has given her consent to dissolution of the marriage. I am therefore satisfied that the marriage solemnized between MPAMFYA SAMPA and LONTIA SA. KALA on 6 th October, 2007 at Northmead Assembly of God in the City and Province of Lusaka in the Republic of Zambia has broken down irretrievably in terms of Section J4 \ 8 and Section 9(1)(d) of the Matrimonial Causes Act No. 20 of 2007 of the Laws of Zambia. I am further satisfied that granting a Decree Nisi will not cause grave financial or other hardship to the Respondent. I hereby invoke the provisions of Section 41 of the Matrimonial Causes Act, No. 20 of 2007 and grant the Decree Nisi and I make the following Orders. 1. The Order of Decree Nisi shall become Absolute Six (6) weeks from the date hereof unless cause be shown why the same cannot be made Absolute. 2. I refer the issue of custody of the children of the family to mediation pursuant to Order 30 Rule 4 of the High Court Rules, Chapter 27 of the Laws of Zambia. 3. I refer the issue of property settlement to mediation pursuant to Order 30 Rule 4 of the High Court Rules, Chapter 27 of the Laws of Zambia. 4. Each party is to bear their own legal costs of this action. DELIVERED AT LUSAKA THIS 24™ DAY OF JULY, 2024. WILLIAMS. MWEEMBA HIGH COURT JUDGE J5