Judgment Delivered on 28th November 2017
Court: In the Supreme
Court for Zambia, Holden at Kabwe (Civil Jurisdiction)
Panel: Mambilima, CJ,
Malila and Mutuna, JJS
Judgment of the
Court by: Malila, JS
Subject
Matter: Matrimonial
Property Adjustment in Zambia – Child Maintenance in Zambia
Facts:
This case involves an appeal by Matthews Chishimba
Nkhata (Appellant) against a High Court judgment concerning property adjustment
and child maintenance following the dissolution of his marriage to Esther Dolly
Mwenda Nkhata (Respondent). The marriage was contracted in February 2006 and
dissolved six years later. The parties had one child.
The properties in dispute included a house on Plot
B20/01 Mtendere East, Lusaka (referred to as "The second house"), and
three motor vehicles (a Canter light truck, a Golf car, and a Peugeot). The
Appellant claimed the house belonged to his late father and was built by his
siblings before his marriage, and that the vehicles were not his. The
Respondent sought equitable sharing of these properties and monthly maintenance
for their child.
The District Registrar ordered property adjustment
and child maintenance against the Appellant. The Appellant appealed to the High
Court, challenging the orders regarding the second house, the Canter, and the
child maintenance sum, also arguing that the Respondent should contribute to
the child's maintenance. The High Court upheld the District Registrar's
decision that the second house and the Canter were matrimonial property subject
to adjustment, and ordered the Appellant to pay K300 monthly maintenance and
school fees, with the Respondent responsible for uniforms, medical needs,
general upkeep, and transport costs.
Issues:
1. Whether the High
Court misdirected itself in holding that the second house was built during the
marriage and that the Respondent had a beneficial interest in it, thus subject
to equal sharing.
2. Whether the High
Court erred in disregarding the Appellant's claim that the property was on an
illegal settlement as an afterthought.
3. Whether the High
Court misdirected itself in holding that the Canter was acquired during the
marriage and formed part of matrimonial property to be shared.
4. Whether the High
Court erred in ordering the Appellant to pay the child's school fees and K300
monthly maintenance.
Holding:
The Supreme Court considered the appeal and
delivered the following:
Ground One
(Second House as Matrimonial Property): The Court
dismissed this ground, finding no reason to disturb the lower court's
conclusion that the second house was constructed or completed during the
marriage and that the Respondent contributed to its acquisition, thereby
acquiring a beneficial interest.
Ground Two
(Illegal Settlement Claim): The Court found merit in this
ground. It held that an appeal from the Deputy Registrar to a judge in Chambers
is a rehearing, allowing for new evidence. Therefore, the Appellant's statement
that the house was on an illegal settlement should not have been discounted as
an afterthought merely because it was not in the initial affidavit.
Ground Three
(Canter as Matrimonial Property): The Court dismissed this ground.
It agreed with the lower court that the document showing a change of ownership
of the Canter from Ellensdale Farm to the Appellant constituted irrefutable
evidence that it was sold to the Appellant, making it matrimonial property
amenable to adjustment.
Ground Four
(Child Maintenance): The Court dismissed this ground.
It found that the legal and factual basis for the K300 monthly maintenance and
school fees order was properly explained by the lower courts, and the sum was
not astronomical. The Court also noted the Respondent's obligation to
contribute to the child's welfare.
Despite finding merit in Ground Two, the Supreme
Court concluded that it did not change the substance of the judgment, as the
High Court's ruling was substantially correct. The appeal failed, and each
party was ordered to bear their own costs.
Full Case: Here