Ivy Simeza Nshindano v Kenneth Nshindano (2019/HP/F/319) [2020] ZMHC 470 (15 January 2020)

lN THF, H!GH COURT FOR ZAMBIA AT T HE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) 2019/HP/F/319 IN THE MATTER OF: AN APPLICATION FOR A MATRIMONIAL INJUNCTION UNDER SECTION 101 (1) OF THE MATRIMONIAL CAUSES ACT NO. 20 OF 2007 AND IN THE MATTER OF: ORDER·27 RULE 7 OF THE· HIGH COURT t_ BETWEEN: IVY SIMEZA NSHINDANO AND RULES, CHAPTER 27 OF THE LAWS OF ZAMBIA APPLICANT . KENNETH l\SHJNOANO RESPONDENT Before the lfonourahlc Mrs . . Justice Ruth Chibbabbuka on the 30th October, 2019 For t h e App licant.: Ms. C Lundu, Messrs Simeza Sangwa & Associates For the Ddc nda nt: Mr . M Mulele, Messrs G. M Legal Practitioners . JUDGMENT Cases referred to: Owners of Cargo Lately Laden on Board the Sislcina vs Distos Company Naviera SA /1979} A. C210 Legislation referred to: The High Court Act, Chapter 27 of the Laws of Zambia The Matrimonial Causes Act No. 2 0 of 200 7 Other works referred t o: Zambia Civil Procedure Commentary and Cases, Volume 1, Pat,-ick Matibini, Lexis Nexis at page 759 Rayden and Jackson 's Law on Divorce, 16111 Edition, at page 883 J1 ! ' This matter was commenced by way of Originating Summons filed of 12th September, 2019 for a matrimonial injunction made pursuant to Section 101 Sub-section 1 of the Matrimonial Causes Act No. 20 of 2007, and, Order 27 Rule 7 of the High Court Rules, Chapter 27 of the Laws of Zambia. In the application, the applicant is seeking, among others, the following reliefs; (i) That the respondent be forbidden (whether by himself or by instructing or encouraging any other person) from entering or remaining at Plot No. 6015, Riverside Phase IV C, Kitwe (the matrimonial home) (ii) That the applicant and the children of the family be allowed to enter and remain in the matrimonial home; (iii) That the respondent be forbidden (whether by himself or by instructing or encouraging any other person) from re moving the a pplicant and the children of the fam ily fron1 the matrimonial home; and (iv) That the respondent (whether by himself or by instructing or encouraging any other person) be restrain ed from a. Molesting, assaulting and/ or harassing the applicant; b. Dealing or otherwise disposing of the matrimonial home; c. Disposing of or dealing with the contents of the matrimonial home. J2 I .• In support of the application, the applicant filed an Affidavit of even date, deposed to by the applicant herein. She deposes that she lawfully married the respondent on 16th August, 2011 at the office of the Registrar in Chingola and that the couple has three children, name; Rabecca, Elijah and Precious N shindano born on 15th July, 2012, 19th July, 2015 and 12th July, 2018 respectively. She avers that since their marriage, the couple's matrimonial home has been Plot No. 6d 15, Riverside, Phase IV C, Kitwe, of which the respondent is the registered proprietor and which she avers was constructed during the subsistence of the (.. marnage. She avers further that on 15th July, 2019, the applicant, at th e respondent's request, travelled to Lusaka to nurse the responden t's mother , who had fallen ill, and, that he requested th e applicant to travel back to Kitwe with the respondent's m.other, who d eclined to travel. She avers that on her return two weeks la ter , the respondent accused her of not caring for his mothe r. Sh e a vcrs that on 1 oth August, 2019, the respondent asked the applicant to leave the matrimonial home and when she declined, he attempted to physically remove the applicant from the house which forced the applicant to lock herself in the bedroom. The applicant avers that the respondent called six (6) men from the streets and gave them steel bars to use to break down the bedroom door, which they did. She avers that following the. breaking down of the bedroom door, the respondent slapped her a nd that with the help of the 6 men, forcibly removed her from J3 the matrimonial house. She further avers that as a result of the assault she was left with bruises on her face, has suffered ' mental distress and she and the children have been traumatized. The applicant avers that she and the 3 children have been forced to seek refuge at her uncle's house and that the respondent has only given the applicant KlS0.00 since leaving the matrimonial home. The deponent avers further that she, who . . . . is ·currently unemployed, and the children need to be- in the matrimonial home as the children need to attend school, which is far from home where she and the children are now staying. She avers that since she left the house, the respondent has disposed of some household items and she fears more may be sold without her knowledge. The respondent herein deposed to an Affidavit in Opposition and fi led the same into court on 28 th October, 2019. He deposes that it is not true that the matrimonial home is registered in his name but that the registered owner is one Catherine Kawandami and that pursuant to a Court Judgment, the respondent is obligated to pay a s um of KlS0,000.00 to the said Catherine Kawandami, which monies the respondent alleges not to have paid yet as h e is presently unemployed. He avers that nearly all the martial arguments have arisen from the disrespect that the applicant shows since the respondent lost his job. He avers that he is not a violent man and that it is not true th a t he assaulted the applicant but that it was the applicant who assaulted him on two occasions which consequently forced him J4 to obtain medical reports on the 19th and 27 th August, 2019. He avers that he is not a risk to the ~pplicant and the children and therefore should not be removed from the matrimonial house. The deponent further avers that he is looking after his ailing mother from the house in question and has no resources to look for another place. He aver that his understanding of the applicant's leaving the matrimonial home was to receive counselling and that he has not sold any household goods' as alleged by the applicant. In response the applicant filed an Affidavit in Reply on the 29th October, 2019 wherein she deposes that the respondent is n ot obligated to settle the sum of KlS0,000.00 with one Catherine Ka wa ndami but the sum of K60 ,000.00. She further avers that s ince th e m a rria ge, the matrimonial property has been registered in the nam e of the respondent. She further avers that s h e has not been dis respectful to the respondent and that it is the respon dent's rela tionship with a female church member, who lived with the couple sometime in March, 20 19, that has caused the r espondent to d evelop resentment towards her. She avers further that neither she nor the respondent have 1n the past been violent towards each other during the subsistence of the marriage save for the time when she was forcibly removed from the matrimonial house and in the process physically attacked, which attack forced her to d efend herself and consequently seek medical attention. She avers that both parties reported the incident to Riverside Police Station where officers opted not to prosecute the matter as both partie s had medical JS reports . She further avers that the respondent's mother left the matrimonial home around the time she was removed and has since returned to Lusaka, to her daughter's house. She avers that while the respondent is indeed unemployed, he has always provided for the family from his various sources of income which include the following; 1. A 7 ton truck which h e hires out for transportation; ' ' ' . 2 . A farm in Mkushi Tazara Corridor which is used to rear livestock and for farming activities; 3. A shop in Chisokone market which is rented out at K700.00 per month; 4. A house in Kamatipa a rea which is rented out at K300 per month and; 5. A plot in Gard en house. At the hec1ri ng, Counsel for the applicant placed reliance on th e Affid avit in Support of the Originating Summons and further subn1itted that lhe dispu te h er ein falls within the realm of Section 101 of the Matrimonia l Causes Act No. of 2007. She reiterated the f , submissions contained in th e Affidavit in Support, and, further submitted th at the a uthors of the 16th edition of Rayden and J ackso n 's Law on Divorce h a ve stated as follows· ' "An injunction or a mandamus may be granted where it is jus t or convenient and it is the practice of the court to enjoin in proper cas es although no writ has been issued asking f or an injunction and no reference to one appears in a petition." J6 Counsel further submitted that the re spondent has not refuted throwing the applicant and children out of the m atrimonial home but has merely spoken to the inconvenience the injunction will cause him. She submitted that prior to this -altercation, the· parties had never been violent towards each other but that now the applicant is fearful. Counsel submitted that this is a proper case for the grant of an injunction and beseeched the court to accordingly grant' one. In opposition, the respondent relied on the Affidavit in Opposition. He submitted that the applicant does concede to the fact that the p arties h ave not had a history of violent behaviour in relation to the marriage, and, that the respondent was equally assaulted by the applicant a nd he is in possession of a medical report a nd that is wh y no action was taken against him. H e submitted that it would be u njus t to evict the respondent, who is une111ployed , from the 111atrim onial home but s till expect him to maintain the family when th e existence of the sources of income alleged in the applicant's a ffid avit in reply have not been proved. f , He submitted that the applicant has not proved before court that the respondent poses a th reat to h er life a nd that of the children. He further submitted tha t it will be an injustice to grant an injunction in p erpetuity when the applicant h erein has not shown an inten t ion of filing for dissolution of marriage or judicial separation. He prayed that the application be dismissed with costs. In reply, Counsel for the applicant relied on the Affidavit in Reply. J7 I am indebted to Counsel for their arguments and submissions. I have prudently considered the same. The application before me is made pursuant to Section 101 Sub-section .1 of the Matrimonial Causes Act No. 20 of 2007 and Order 27 Rule 7 of the High Court Rules, Chapter 27 of the Laws Zambia. Section 1 0 1 Sub-section 1 of the Matrimonial Causes Act No. 20 of 2007 provides as follows; . . ' "Without prejudice to any other powers of the Court, the Court may, upon application made by either party to the marriage whether or not an application has been made by either party for any other reliefs under this Act, grant an injunction or other order, as the case may be- (a)for the personal protection of a party to the marriage or of any child of the marriage; (b) restraining a party to the mamage from entering or rem.aining in the matrimonial home or the premises in which the other party to the marriage resides or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or which is the location of the premises in which the other party to the marriage resides; (c) restraining a party to the marriage from entering the place of work of the other party to the marriage or restraining a party to the marriage from entering the place of work or the place of education of any child of the marriage; J8 (d)in relation to the property of a party to the marriage; or (e) relating to the use or occupancy of the matrimonial home." While Order 27 Rule 7 of the High Court Rules provides that; (1) "Without prejudice to the provisions of any other rule) the Court on an application by a party to a marriage shall have jurisdiction to grant an injunction containing one or more of the following provisions) namely; (a)a p rovlsion res training the other party to a marriage from moles ting the applicant)· or (b)a provision restraining the other party to a marnage fr01n molesting a child living with the applicant whether or not any other relief is sought in the proceedings. (2)The prouisions of s u b-rule (1) shall apply to a man and woman who are living with each other in the same household as husband and wife as it applies to parties to a marriage a nd any ref erence to a marital home shall be construed accordingly. " Honourable Justice Pa trick Matibini, 111 his book Zambia Civil Procedure Co mmentary a n d Cases states tha t ; "An Injunction is an order of the Court either compelling a party to take a certain step or steps (mandatory injunction) or re straining a party from taking a specified step or s teps (prohibitory injunctions)') J9 ' '1 Generally, the Courts will not entertain an application for an injunction unless there is a substantive pre-existing cause of action before it. This was illustrated in the case of Owners of Cargo Lately Laden on Board the Siskina vs Distos Company Naviera SA1 where the Court held that the right to obtain an injunction is merely ancillary and incidental to a pre-existing cause of action against a defendant arising out of an invasion, actual or th~eatened by him of a legal or . equitable right' of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the Court. However, an application for an injunction under the Matrimonial Causes Act No. 20 of 2007 and under Order 2 7 Rule 7 sub-rule 1 (b}, reproduced above, may be a dvanced ,:vithout there being any substantive relief being sought. For the Court to grant an injunction, there must be sufficient evjde nce p rese nted before it at the time of the a pplica tion tha t d emons trates that failure to grant an injunction will cau s e th e a pplica nt to suffer extensive prejudice. To d e mons trate this in matrimonial injunctions, the applicant for an injunction may h a ve to show that the other party to the marriage has been harassing, assaulting or molesting the applicant and that an injunction is necessary to prevent the offending party froin continuing with the offensive behaviour. The applicant may even apply that the offending spouse be prevented from entering or remaining in the matrimonial home. In such an instance, the Court may grant an occupational order for sole occupancy of one pa rty to the marriage after taking into consideration the needs of JlO the parties to the marriage and the children, the hardship either party may suffer if made to leave the home and violent acts, if any. In the matter in casu, the applicant is seeking several reliefs from the respondent, which I have reproduced above. The first relief seeks to prevent the respondent from entering or remaining at the matrimonial home. The parties herein ~ave belabored. to ' ' ' argue on who is the rightful owner of Plot _No. 6015 Riverside Kitwe, which is the matrimonial home. I must state that the ownership of the matrimonial home is irrelevant to the reliefs being sought herein. To demonstrate the respondent's need to remain 1n the matrimonial property, he averred in his Affidavit in Opposition that h e is unemployed and has no resources to look for accommodation elsewhere. The applicant responded by confirming that the respondent is indeed unemployed but however that h e has several properties, including a house in Kamatipa area. I note that the applicant has not provided evidence of the assets that she claims the respondent has. Further, in her Affidavit in Reply, the applicant has stated that neither party has been violent towards each other during the subsistence of the marriage save for the physical assault allegedly occasioned when the respondent purportedly forcibly removed the applicant from the matrimonial home. On the evidence illustrated in the preceding paragraph, I do not find sufficient evidence that warrants the exclusion of the Jll respondent from residing at the matrimonial home. The first relief accordingly fails. The other reliefs being sought by the applicant herein are for an order restraining the respondent from removing the applicant and children of the family from the matrimonial home, molesting, assaulting and harassing the applicant and disposing of property in the matrimonial home. From the affidavit evidence . . . . of both parties, there was a violent altercation that occurred between the parties herein, which is evidenced by their respective medical reports. While the parties herein have given contradicting evidence as to the reason behind the applicant's vacating the matrimonial home, I am persuaded that the said violent a ltercation p layed a role. In the pre mises, I hereby order that the respondent be restrained from molesting, assaulting and/ or harassing the applicant. The respondent is further restrained, by himself or by instructing others, from removing the applicant and the children of the family from t he matrimonial home. Further, neither party ( :; herein shall dispose of the matrimonial property, save with consent of the other party. The upshot of the Judgment is that the 1 st relief fails while , 3 rd and 4 th reliefs succeed. It is here by ordered as follows: the 2 nd (i) That the applicant and the children of the family be allowed to enter and rernain in the matrimonial ho1ne· ' (v) That the respondent be forbidden (whether by himself or by instructing or encouraging a ny other p erson) Jl2 from removing the applicant and the children of the family from the matrimonial home; and (vi) That the respondent (whether by himself or by instructing or encouraging any other person) be restrained from a . Molesting, assaulting and/ or harassing the applicant; b. Dealing or otherwise disposing ·of the matrimonial home; c. Disposing of or dealing with the contents of the matrimonial home. Each party to bear their own costs. Leave to appeal is granted . J I ·} ~ './'. \ ---- Dated the ......... 1 •• ~ • •• • • •• day of .. ..... ~ ~ !1 -::-: ..... ..... . 2020 u ~ -. . . J~~ . . . . ~_::: ..... _., ... ---.. -._ .. ··· .;..:';.--~-· Ruth Chibbabbuka JUDGE J13