Musonda v Musonda (Appeal 192 of 2003) [2008] ZMSC 137 (13 June 2008)

JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL No. 192/2003 BETWEEN FRIDAY CHISHALA MUSONDA AND PAULINE KALENGO BANDA MUSONDA APPELLANT RESPONDENT Coram: Lewanika (late) DCJ, Chibesakunda &Mushabati JJS. 24th April, 2007 and 13th June, 2008.+ For the Appellant: Mr W. Mweemba of Messrs Mweemba & Co. For the Respondent: Mr P. C. Lungu of Andrea Masiye & Co. Chibesakunda JS, delivered the Judgment of Court. JUDGMENT Cases referred to: 1. Rosemary Chibwe v Austin Chibwe , SCZ Judgement No. 38 of 2000, Appeal No. 60 of 1999 (unreported). This appeal was presided by the late Justice David M. Lewanika. Due to his untimely death, this Judgement is a majority Judgement. This is an Appeal from the High Court judgement on an Appeal from the Learned Deputy Registrar’s ruling in an application for maintenance by the Respondent. J2 The brief facts leading to the application for maintenance are that, the Appellant and the Respondent were married in 1985, what is not stated is the actual date. They got divorced. Resulting from this divorce, the Respondent applied for maintenance to the Deputy Registrar. The Respondent asked for K4.5million per month as maintenance. She based her claim on the ground that the Appellant was making a lot of money from his various business activities. She deposed in her affidavit in support as well as viva voce as follows: - (1) That the Appellant is a businessman who owns and manages 13 (thirteen) flats, which are on rent in Emmasdale in Lusaka out of which he gets a net income of K3.0 million (K3,000,00) per month; That Block-making where he earns about K9.0 million (K9,000,000.00) per month; That a truck for her earning him about KI 0,million (KI 0,000,000.00) per month. That Construction earning about K7.0 million (7,000,000.00); That a bar earning about KlOmillion (KI 0,000,000.00) per month; That Agent for Coca-Cola distribution, earning about KlOmillion (KI0,000,000.00) per month; That a car park earning about K5.0million (K5,000,000.00) per month; That three shops on rent earning about KI .5.million (KI .500,000.00) per month; and That Road Construction business earning about K45.0 million (K45, 000,000.00). (2) (3) (4) (5) (6) (7) (8) (9) J3 According to the Learned Deputy Registrar, when all the figures were added, the claim was for <100,500,000.00 per month. The Appellant before the Learned Deputy Registrar in his affidavit in opposition deposed that; (1) The figures claimed are grossly exaggerated in that the flats were in fact 11 and not 13 and only generated K2,510,000.00 per month and the block making machine was no longer in operation; (2) That the truck which was referred to was also no longer in operation; (3) That he was not in a construction business but only helped two of her friends; (4) The bar she alleges was only making about K630, 000.00 per month; (5) (6) There is no proof that the car pack is operational; That the shops are for the family and he only earns KI 20,000,00 per month from the same; (7) That the road construction business is a partnership and only generates an average profit of K5.3million per annum; (8) That from the above statement, the Respondent has no source of income as compared to the Appellant who is in formal employment and is earning a salary; and (9) That in their marriage, they used to share responsibilities such as the school fees, water, electricity, and even occasionally provide ration money ranging from K200,000.00 and K400,000.00 per month. He therefore asked the Deputy Registrar not to grant the amount claimed by the Respondent. J4 The Learned Deputy Registrar in his ruling found that it was common ground that the Appellant at the time he got married to the Respondent was a humble businessman, a Chibuku seller. He grew to a bigger businessman with a number of business concerns, from where he earned a substantial income. The Learned Deputy Registrar further in analysing the evidence in his ruling granted the Respondent the sum of K2,000,000.00 as maintenance. It is this award that the Appellant challenged before the High Court. At the High Court, the Appellant raised three grounds of appeal. These are: - 1. “That the Learned Deputy Registrar's award of K2,000,000.00 per month as maintenance for the Appellant is unrealistic as it does not take into account the Appellant’s monthly earnings as tabulated in the affidavits on record and the fact that the Appellant is sorely responsible for the upkeep of all the children of the family. 2. That the Learned Deputy Registrar misdirected himself in both law and fact in making the award of K2,000,0000.00 per month for the Respondent without comparing her earning to that of the Appellant as well as their respective responsibilities. 3. The Learned Deputy Registrar erred in law by adding the income of a company in which both the Appellant and Respondent hold shares which company is at law a separate person and has nothing to do with these J5 proceedings, to the earnings of the Appellant for purposes of maintenance." At the High Court, the Appellant put in written heads of argument in which he dealt with these grounds together as there were interrelated. In his argument, he contended that the Learned Deputy Registrar’s award of K2, 000,000.00 was unrealistic as he did not take into account the fact that the Appellant had the responsibility of taking care of all the children. He referred to the viva voce evidence in which he outlined in detail all business owned by him. He submitted that the income from rentals of the flats owned by the Appellant was the only source of income. He further submitted that the business alluded to by the Respondent in her evidence before the Deputy Registrar, owned by Daddy’s Nest Investment as owned by him and two other persons, cannot be said to be his source of income as Daddy's Nest Investment is a legal entity separate and distinct from him. He argued that Daddy’s Nest Investment had nothing to do with the maintenance proceedings. He further argued that since the Respondent earns K2,510,000 per month, it was not possible for him to pay the Appellant K2,000,000.00 per month. So it was misdirection by the Learned Deputy Registrar to award the Respondent that sum of K2, 000,000.00. The Appellant in addition submitted that the Learned Deputy Registrar omitted to take into account J6 the earning capacity of the Respondent as it was held in the case of Rosemary Chibwe v Austin Chibwe (1). The Appellant in response emphasised that, the Learned Deputy was on firm ground when he awarded <2, 000,000.00 for maintenance. According to the Respondent the Learned Registrar took into account the fact that, on record there was evidence establishing the value of the Appellant’s business concerns before arriving at the figure of K2,000,000.00. She argued that the Learned Deputy Registrar in his judgement considered what both parties said in their affidavits and in their written submissions. She submitted that contrary to what the Appellant stated before the High Court, he never disclosed those assertions before the learned Deputy Registrar. He never disclosed any expenditure on the children’s up keep. Had he done so, it would have reduced his income to bring it near to the Respondent's paltry salary of a Court Reporter. According to her, a critical look at the judgement of the Learned Deputy Registrar, one would not support the Appellant’s contention that the Court below added the income of the Company's earning (in which both the Appellant and Respondent were Directors and the Appellant the Managing Director) to that of the Appellant in computing the maintenance sum. The Respondent pointed out that it was not correct to argue that the Learned Deputy Registrar did not accept the concept that Daddy's Nest J7 Investment was a legal entity separate and distinct from the Appellant. The Learned Appeal Judge weighed all these arguments, did some calculations, divided by two to get an average figure between the income of the Appellant and the Respondent and awarded the Appellant the sum of KI ,000,000.00. It is against this judgement that the Appellant has appealed. Before this Court Mr Mweemba advanced one ground of appeal, which is that: The Learned Judge in the court below erred in both law and fact when he divided the Petitioner's average income by two to arrive at the sum of KI ,000,000.00 as the Respondent's monthly maintenance allowance without taking into account the undisputed fact that the Appellant has custody of all the children of the family whom he supports from the said monthly earnings. If was argued by the Appellant that the Learned Appeal Judge misdirected himself both in law and in fact when he divided the Appellant’s average income by 2 and arrived at <1,000,000.00 as the Respondent's monthly maintenance allowance, without taking into account the undisputed fact that the Appellant has custody of all the children of the family. Mr Mweemba cited the case of Rosemary Chibwe v Austin Chibwe(l) in which this court J8 accepted as good law, that: “income of both parties, earning capacity property and other financial resources which each party is likely to have in the foreseeable future, needs, obligations and responsibilities of each party an standards of living of each of the parties must be taken into account.” He argued that the Court below did not fully consider and take into account that the Respondent was in gainful employment and that the Appellant had custody of all the children of the family and he is solely responsible for their welfare and that these were the findings of fact. It was therefore a misdirection of the Learned Appeal Judge to award the KI ,000,000.00 given all these facts. Mr Lungu did file heads of argument in Court and argued that, there was no misdirection on the part of the Learned Appeal Judge. He argued that, the Court took into account all the evidence before it. He pointed out that the Court in fact calculated and came to this figure of KI ,000,000.00 after taking into account all the evidence before it. We have looked at the evidence before us and we have considered all the issues raised and we hold the view that the law as laid down in Rosemary Chibwe v Austin Chibwe (1) is good law. The principle laid down in the Rosemary Chibwe v Austin Chibwe(i) is that the income of both parties' earning capacity, property and any other financial resources of J9 each of the parties ought to be taken into account when determining the application for maintenance. Parallel to this principle is another principle which the court has to consider this relate to the needs, obligations and responsibilities of each party and the standard of living of each of the parties. The Court therefore, must consider the earning capacity and other financial resources of each party is likely to have in the foreseeable future. Looking at all the facts of this case, which are not disputed, we are of the view that the Learned trial Judge did not sufficiently take into account the needs, obligations and responsibilities of each party and children's needs. Therefore, the maintenance award of KIOC^OOO. OO is certainly on the higher side. We therefore reduce that award to K500,000.00, as we consider that the needs of the children and obligation of educating them may be more on the increase now. Each party to bear its own costs. D. M. Lewanika (late) DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE C. S. Mushabati SUPREME COURT JUDGE