Fungafunga v Fungafunga (CRMP/LCA 313 of 2015) [2017] ZMSUB 16 (30 March 2017)

IN THE SUBORDINATE COURT OF THE FIRST CLASS 2015/CRMPILCA/313 FOR THE LUSAKA DISTRICT HOLDEN AT LUSAKA (Civil . Jurisdiction) BETWEEN: CLEOPATRA FUNGAFUNGA APPELLANT AND JOSEPH FUNGAFUNGA RESPONDENT FOR THE APPELLANT: B. M. Mulenga of National Legal Aid Clinic for Women FOR THE RESPONDENT: In Person JUDGMENT Cases cited: y Chibwe v. Chibwe (2001) ZR 1 ;r. Ga1unia Farms Limited v. National Milling Company Limited and another (2004) ZR ;r. J v C [1970] AC 688 ;r. Musonda v Musonda Appeal Number 53 of 1998 Y Van Deijil v. Van Deijil ;r. Vi.0let Kambole (1996)4 8. A. 260 (R) Tembo v David Lastone Tembo (2004) Z. R. 79 (8. C. ) ;r. Watchel v Watchel [1973] 1 All E. R 829 at 838 ;r. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 (8C) Other materials referred to: Black's law Dictionary, 18th edition, 2004, West Publishing Company, Thomson West. This matter came to this court by way of appeal from the local court and the grounds of appeal were as follows: 1. The appellant felt that the compensation she was given was not enough looking at the years she lived with the respondent and the money they used to make without him giving her anything 2. The respondent infected her intentionally, he knew he was HIV positive but he did disclose to her 3. The appellant felt that the Maintenance of the children was :>ot enough looking at the economy and knowing that the respondent will not be giving them enough support as ordered by the Local Court. He is threatening her to give him the girl children who are still very young between the ages of 4 to 9 years. 4. The respondent is refusing to the share the property as ordered by the local court I warn myself from the outset that, in civil matters, the burden of proof is on the Plaintiff and the standard of proof is on the balance of probabilities. This means the party with the most probable story carries the day. In Ga1unia Farms Limited v. National Milling Company Limited and ~nother (2004) ZR Sakala Cj as he was then stated that, "the burden to prove any allegation is always on the one who alleges" The plaintiff in this matter gave evidence on her own behalf and called one witness. Pw1 was CLEOPATRA that 3 children married she together. The first being twins aged 10 years, a boy and a girl. the appellant who averred Respondent in 2002 herein PHIRI they had and the The other one is a girl and she was born on 14th October The two girls were living with the Respondent. 2010. together 2009 and 2010, they started running a business Between of rearing pigs at the farm. They used to sell after two months and the least they sold was K10,000.00. At the time of divorce on 8th September 2015, she left about 100 pigs. The money awarded the upon divorce More so that she was found positive business when she was living with the respondent. told her he was not surprised that he would support ''';;',<':11 she informed him and this surprised her. by the Local Court was not enough her and apparently, they were doing. The respondent considering not maintains The lower court granted her custody of the children that the respondent was prices because respondent living with from the time they divorced and ordered per month which the order The had not been paying school fees for the child she is of She was not satisfied the court comfortably. enough of things. them at Kl,OOO. OO considering the with the ages children children living were used her and to they acquired of the marriage, 3 vehicles During the subsistence and the first one was a Nissan which he bought from his former place of Work, the second one was also a Nissan which he bought Number AAX 8085 and the third one from Armcor with Registration was a vits with registration number ALF 5272. He told the local court that the Vits was the vehicle he bought for her when they as the were living together. Nissans were parked as they waited to change the colours They were using the vits together stated in She also Lusaka West were they used to live. They found a two bedroomed goods house that they acquired farm together piggeries. a 5 acre household acquired built They and together. They also acquired a fire arm. the respondent She wanted start business washing clothes to feed the children and pay school fees. as she was not doing anything to give her money so that she could of but piecework She further stated that the respondent was a Rapid Response Manager at Magnum Security. In cross examination, 2002 and at the time, they were married. she stated that they bought When he married the farm in her, for a year. When he paid dowry, she was taken to the farm as she had lived with him at the ZAF camp got her for marriage and took her to the farm and at that time, he had shifted. her parents counselling stated that all the 3 vehicle She also She told court that the vehicles were not being used as they were waiting vi ts as a family to vehicle he not it for bought it for her but he told the court that he bought colour. her personal the did buy She vehicle. theirs. He did change claim that were not but the Iler. She further stated that during the subsistence they property than and told her not to get anything did attain 100 pigs. more He refused of the marriage, the to share the clothes including he bought for her. The Respondent gave evidence on his own behalf and called witnesses. herein FUNGAFUNGA the respondent the farm before dues were paid and he paid who recounted Dwl was JOSEPH At that time, his that he was earlier married with 3 children. for the said farm. He late wife's bought June 2002 but he did not move from the camp as he had not yet been cleared. He received his money a bit late then he finished paying for the farm. Thereafter he started working for Amcor and in the same year 2002, he came to know PWl while he was living in the ZAF camp. When he got cleared, he was ::;:'..-:2;-' repatriation and he went to the farm. He stayed with her her when he was at the farm. He had 3 at the Camp but married children with her. He also stated that she was not part of the property. The small vehicle was bought by his nephew in his names because he did not have money. He bought the other Nissan but it was just a shell. He bought the vits as a family vehicle and not as a present for PW1. Even the letter of sale was in his names. For the household he share and he did not have a and get the property even the good, said that they never problem with sharing. vehicle. to sat down PWl could go He had started paying the money he was ordered when he got a job He used with Magnum but unfortunately, he was out of employment. The children she was violent. place in makeni him that the children to take whatever he had for the children and he avoided going to never used to go to PW1 because called his brother's He got him informing and he was summoned by Victim Support Unit. He was the children advised to Pw1 as per court order. After a day, his brother called and informed him that his son was at his place. He informed Pw1 and she advised him to keep the child. He dig ..nnt have a problem wi th keeping the boy and Pw1 keeping the girls as was the position. but one day, his brother were at his place. to give the children that it was not true that they used to keep He further stated and they They used to sale K2000.00, pigs in hundreds. once. He gave her the said money and asked her sold K10,000.00 to open an account. PW1 acquired a Plot in Lusaka using the same money of which she did not mention. K5,000.00 he stated that he could not remember if he In cross examination, signed any documents PW1 and he married her the time he married in 2002. The vehicle he alleged having bought by his nephew was was his. He also stated in his names and legally, that the pig business He was at a loss on how the children would survive because he did not even know where his next meal would come from. at that moment was nonexistent. the vehicle was who that MUKUKA averred FREDRICK Farm, he was not married. the He assisted time DW1 when Dw2 DW1 in looking bought_the by the Air for the said land at the time he was being discharged to move and keep his family as he Force where he was supposed was widowed. Because PW1's children were young, he witnessed the sale agreement which was signed in October 2001. At that DW1 had was the not been paid his benefits agreed children's share of that he deposits the small the in benefits house DW1 was given the towards 2002, he moved from ZAF base to the farm. Sometime end of 2002, he married PW1 and she was brought to the farm. from part of the money It was the acquisition and the only money available was on the land. When renovating benefits. mother's towards started it was their done. which They land and CHITUNDU DW3 was WILLA that it was not true that Dw1 bought the farm with PW1. He continued died in 1998 and from the year 2000, Dw1 that when his mother as she was a Nurse. bought the farm using his mother's PW1' s son who testified FUNGAFUNGA benefits with father, the farm when they were staying At the time, Dwl's money was not yet paid as he was discharged in from ZAF. In 2001 he bought Dwl his ZAF June of Security working started the same year, to the farm. When they were at the farm, Pwl used to come and go until the time she stayed for some At the time, time. DWl took PWl back and brought her officially. hp ~~~-in grade 9. for Armcor they moved and around siblings Company uncle. 2002, his and In In cross examination, in 2001 and he could not recall the date and month. He did not have in 2001 and prove documents that signed that it was acquired to show that the farm was acquired in 2001, there was a witness that the farm was acquired he stated being DW2. Dw4 was ABEL FUNGAFUNGA married which they paid part of it. They paid the balance later. the father to DWl who averred 2002 and he was in August charged K2, PWl that DWl of 000.00 examination, In cross for and he did not have documents could chow that they got married in 2002. that the payments the document he stated to show the court. were signed The This is the evidence I received. ground It is common ,,1)C'2".undthey had 3 children that their matrimonial ground were that in the year that the parties between It is also common home was the farm and that they ground two it is common PWl got married them. business. of Further, the into during Pig rearing subsistence marriage bought the vehicles. remains What settlement, children. to be Compensation, determined in custody this and matter is maintenance property the of Family assets have been defined in Watehel v Watehel [1973] 1 All E. R 829 at 838. as items acquired by one or the other or both parties married with intention that these should be continuing provision for them and the children during their joint lives and should be for the use for the benefit of the family as a whole. Family assets include those capital assets such as matrimonial home, furniture, and income generating assets such as commercial properties a definition adopted by the Supreme Court in the case of Chibwe v Chibwe SCZ Appeal No. 38/2000. In violet Kambole Tembo Vs David Lastone Tembo (2004) Z. R. 79 (S. C.) it was held inter alia that: The Court examines the intentions of the parties and their contributions to the acquisition of the matrimonial property. If their intentions cannot be ascertained by way of an agreement then the Court must make a finding as to what was intended at the time of the acquisition. It was also held that: Where the couple have had a turbulent marriage and are compelled to Part Company, the conduct of the parties towards each other becomes a major factor and the pLoceedings for settlement of property take a broader view. It was further held that: When the issue of settlement of property arises, the Court is obliged, among other things, to have regard to all the circumstances of the case and so exercise its powers as to place the parties, so far as it is practicable and having regard to their conduct in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities toward the other. It is the evidence marriage, they ~~ilt Piggeries. he bought of PWI that during the farm which of found Dwl on the other hand stated that the PWI. He stated the subsistence had a house the farm, he had not yet married they acquired the and time that DWl the This evidence in cross that when for a year. farm. that was acquired the to PW1. From this evidence, time PWl stated farm, examination PWl yet. It is clear that when PWl got married I am inclined that the time the farm was acquired, she used to visit him and when he married to the confirmed stated married ~~~~ied-her, him DW1's evidence married he had already acquired farm was not acquired PWl stated that they built piggeries challenged in existence. as they were built during the subsistence are is deriving not Successively, I am of the opinion that it is unnecessary them follows farm thereon do not form part of the property matter. her, she was brought who by DW2 and DW3 yet not he was he she was taken to the farm though she had lived with to believe he had not to DW1, follows that the of the marriage. not was not are not in use. Much they them. to put therefore attached in this by DW1. DWl stated that the piggery business of the marriage, a benefit This means that the piggeries in property not the farm. It therefore at the farm, evidence the subsistence to be adjusted consideration and no one adjustment. farm and in use during things into from does that the the It - they that stated bought he bought 3 vehicles the vehicles, PWl and stated that only 2 of the vehicles Turninq.to it is common ground that DWl bought two - - vehicles. Dwl while were theirs as disputed the other Nissan was bought by his nephew his nephew using his names from his place work. On the vehicle in dispute, DWl stated is still it for his nephew. that it. If truly parked at the farm and the nephew has not collected the have nephew For the fact that the collected vehicle I am meant to believe that Dwl bought the vehicle and not his nephew. on the said I find it very difficult vehicle. it since he bought for himself. is in DW1' s names and still parked DW1' s evidence at the farm, said vehicle to believe belonged nephew, vehicle could his The the to and for PW1. that he bought DWl stated that he did not have a problem vits present together. have bought '.-:::::.:::...::- therefore could be using it. for the family If DWl bought the vehicle DWl bought PWl stated clear that that they were using as a present with PWl getting to use the and not as a the vehicle to PW1, he It is family it in her names instead of his names. the the vits so that of It clear from the evidence that the vehicles were bought for the use parties the ",c((aired3 vehicles during the subsistence of the marriage which are subject to property adjustment. therefore follows family. that the It to is stated goods, common acquired household some household it goods together. Coming acquired a firearm also he did DWI household with goods were also acquired property was acquired during the subsistence forms part of the property to be adjusted. they Pwl also said that they on the use. but did not give details the sharing not with PWI. household for use by the family. Since the said it that property of the marriage, a problem have It is clear ground that that the on the totality It is clear matrimonial a wife, PWI contributed wife. It is clear in the circumstances than PWI. It therefore Pwl of the matrimonial the of the evidence property was bought by Dwl. It is also clear that as in kind as she carried out duties of a more follows that Dwl has a bigger share than that DWI contributed property. herein that However, on household goods, I am guided by the case of Musonda v Musonda Appeal Number 53 of 1998 (unreported) it was held that: Household goods provided they were bought during the subsistence of the marriage by either of the parties are to be share equally. It therefore parties equally. follows that the household goods during the subsistence of marriage acquired be to is by the shared Delving into the issue of compensation, Black's Law Dictionary defines Compensatory payment as Post mari tal spousal payment made by a richer ex-spouse to the poorer one and treated as an entitlement rather than as a discretional award. It goes further that compensatory awards are based on a formula using the length of the marriage, difference in post-divorce income, role as primary caregiver and other factors. The purpose is to compensate somewhat for disparate income levels after a failed marriage. it is was the DWl sold once K10, that clear 000.00 matter, that they used to make a lot of money In this breadwinner. PWlstated from the pig she left 100 pigs sales and that at the time of the divorce, plus. DWl on the other hand stated that they never attained that the sums stated by PW1. He stated that they number and disputed her. only he to him, she used the money to buy a plot that she did According not lower the court, the parties divorced in on 8th September 2015 which a year plus of the pigs being nonexistent. It is DW1's evidence that he was out of employment and did not even know where his next meal would come from. It is to clear that comoenRate. to compensate levels the follows that DWl cannot be ordered there It therefore is a possibility in court. disparate therefore According mention record income money There gave PW1. ago. the and the of to in to is no Coming to the issue of the children, It is trite that when making decisions touching the welfare of children, the paramount consideration is the best interest of the child. I seek refuge in the persuasive case of J v C [1970]AC 688 Lord MacDermott explained paramountcy of the child's welfare that: '...morethan that the child's welfare is to be treated as the top item on the list of items relevant to the matter in question. The words denotes a process whereby when all relevant facts relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed is that which is most in the interest of :~c cnild's welfare. It is a paramount consideration because it rules upon or determines the course to be followed'. The parties had 3 children between then. There were 2 and 1 boy. old and the third According were the children girl was 6 years to PWl the first 2 were 10 years that when old. DWl stated to went place there, in Makeni she and when he informed keep him advised to him, the child was in his custody. from PWI's place to his with PWI, the boy moved on two occasions PWI the second brother's the and child time he He stated that according he did not have a problem with the arrangement on the children at that time. From her grounds of appeal which were not proper that she did not want DWI to keep her in form, she contended child There girl is his his continuing his which mother's Child's age. best the In it will be in interest to live with DWI. For the girl children, that they are their best interest to live with PWI considering tender care girls of tender years who still need their mother's and guidance in life. a tendency is quite from considering possibility going of a distance the makeni circumstances, place the children. it will with and boy of in be to meal next come living because age need the children Delving 1-:>;'_ into maintenance, a lot of things. PWI stated that the KI,DDD. DD ::r:" lower court was not enough considering his from and would It is true that things are expensive for the children to survive on the KI,DDD. DD. stated ordered the high prices of things and their age. DWI on the other hand stated that he did he did not not know how he would maintain he was know of out where and it would be employment. Children difficult the that of that life. Where children children were used to living a comfortable were their comfortable before the court should endeavor to make orders that will make parents, the they the their avoid divorce be the lifestyle. comfortable and now that he is out of and has no means of income as he stated, the children employment as they and this is not because of might not be as comfortable that Dwl is not in employment. the divorce is under Much .'2.8 he obligation is under obligation but for the reason is not to make to provide the children with the basic needs of life. comfortable as possible as far circumstances, the In DWI was working because were a children in employment, for meet ends father, children. living disparate before in as a his PWI also children divorce as to he He used life the to of as a For the foregoing, order that: • 1. The household goods acquired during the subsistence of the marriage be share equally between the Plaintiff and the Respondent 2. The vits be given keeps the two Nissan 3. The firearm be sold to the appellant vehicles. and share the proceeds at 80% and 20% and the respondents between the respondent and appellant respectively. In the alternative either party with the capacity to buy off the share of the other upon establishing the value. 4. The appellant to have custody of the two female children and the respondent of the male child. Parties to have reasonable access to the children 5. The respondent to maintain the female children at K2,000.00 per month, provide school requirements and pay medical expenses. The appellant to provide shelter for the children in her custody while the respondent provides all the needs of the male child in his custody. The orders on the welfare of the children are subject to review. I make no order as to costs Right of Appeal 30 days and security for costs K3,500.00 Delivered in Open Court ............................................... 81.<1