Sweleha Patel Nooria v Zaheer Ahmed Patel (APPEAL NO. 97/2014; SCZ/8/82/2014) [2016] ZMSC 289 (9 December 2016)

., .. L1br~ SCZ Judgment No. 50 of 2016 P1775 APPEAL NO. 97/2014 SCZ/8/82/2014 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: SWELEHA PATEL NOORIA APPELLANT AND ZAHEER AHMED PATEL RESPONDENT CORAM: Mwanamwambwa, D. C. J, Hamaundu, and Kajimanga, J. J. S. On the 8 th of December, 2016 and 9 th December, 2016 For the Appellant: For the Respondents: Mr M. J. Katolo of Milner Paul and Associates Mr D. Tambulukani standing in for Ms Masengu of Mwenye Mwitwa Advocates. JUDGMENT Mwanamwambwa, DCJ, delivered the Judgment of the Court. Cases ref erred to: 1. Re Dulles' Settlement Trusts V. Vilder (1951) 2 ALL ER 71 2. Henry V. Geopresco International Limited (1975) 2 ALL ER 702 3. Zambia National Holdings Ltd V. Attorney-General (1993-94) Z. R.115 4. Aristogeraslmos Vangalatos and Another V. Metro Investments Ltd SCZ No. 35 of 2016 5. Baindal v. Baindal (1946) 1ALL ER 342 6. Chibwe v Chibwe (2001) Z. R. 1 7. Formosa v. Formosa (1962) 3 ALL ER 419 8. Mandia v. Dowell Lee and another (1982) 3 ALL ER 1062 9. Munalo v. Vengesai (1974) Z. R. 91 Jl 10. Chaudhary v. Chaudhary (1984) 3 ALL ER 1017 P1776 Legislation referred to: 1. The Constitution of Zambia, Article 19 2. The High Court Act, Cap 27 of the Laws of Zambia, section 1 O 3. The Matrimonial causes Act, Number 20 of 2007, sections 3 and 4 4. The Marriage Act, Cap 50 of the Laws of Zambia, section 3. Other works referred to: 1. Halsbury's laws of England 4th Edition, Volume 8(1 ), at paragraph 630, page 477, Vol 10, page 135 at paragraph 317, Vol 8 (1) at page 457, paragraph 602 2. Halsbury's Laws of England (1996) Volume 8(1), 4th Edition (re-issue) at page 457, paragraph 601 3. Black's Law Dictionary (2000), 9th Edition at page 341 4. Oxford Advanced Learners Dictionary, 9th Edition In this appeal, we shall refer to the "Appellant" as "the Petitioner" and "the Respondent" as "the Respondent", which is what they were in the Court below. This is an appeal from the decision of the High Court wherein it held that it had no jurisdiction to hear a petition for dissolution of a marriage contracted under the Sunni Muslim law. The brief facts of this matter are that on the 7 th of September, 2002 , the Petitioner and Respondent were married at Makeni Mosque in Lusaka in accordance with Sunni Muslim J2 ', . P1777 Law. They had an antagonistic relationship. In 2006, the Petitioner petitioned the High Court for the dissolution of the marriage under cause No. 2006/HP/D/ 107. On the 8 th of May, 2007, the parties entered into a consent judgment whereby the parties agreed to the dissolution of the said marriage and a decree nisi was granted. On the 28th of November, 2007, a e consent order was entered into whereby it was agreed that the decree nisi issued on 8 th May, 2007, be set aside because the parties had reconciled and were cohabiting together. On the 8 th of August, 2012, the Respondent issued a written Talaq to the Petitioner in her absence by pronouncing words that signify an intention to divorce. These words were pronounced in the presence of the Respondent's uncle one Ismail Yusuf Khankhara and delivered to the Petitioner the same day. According to the Respondent, the Petitioner, upon receiving the Talaq, kept herself confined in the house for a period of three months, signifying her acceptance of the Talaq. He added that the Talaq signified a divorce in accordance with Sunni Muslim teachings and practice. On the 22 nd of November, 2012, the Petitioner petitioned for the dissolution of the marriage pursuant to section 13 of the Matrimonial Causes Act of 2007. J3 Before the Petition could be heard, the Respondent filed a preliminary issue, pursuant to Order 33 rule 3 of the Supreme Court Rules, 1999. This order provides that- P1778 "the Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of cause or matter, and may give directions as to the manner in which the question or issue shall be stated ... " The following were the grounds: 1. Whether the High Court has jurisdiction to hear and determine the Petition for dissolution of marriage, filed by the Petitioner on 22nd November, 2012, when the marriage between the Petitioner and the Respondent was contracted under religious law or practice in Zambia and not contracted in accordance with the Marriage Act or law of a foreign state in accordance with section 3 of the Matrimonial Causes Act No. 20 of 2007. 2. Further or in the alternative, whether the said Petition is properly before this honourable Court, in view of the fact that the marriage between the Petitioner and the Respondent was validly dissolved in accordance with muslim practice/law, when the Respondent Issued the written Talaq on 8th August, 2012, prior to filing of the Petition for dissolution of marriage. Upon hearing the matter, the Judge in the Court below stated that the High Court was a creature of statute, and its jurisdiction statutory. It had no power to enlarge its jurisdiction in the strict sense, and had to exercise its jurisdiction in accordance with the law. J4 P1779 The Judge added that in the present case, the marnage contracted by the parties is potentially polygamous which can be likened to a marriage contracted pursuant to African Customary Law, a marriage that is potentially polygamous. The lower Court stated that under the Marriage Act, a public place of worship may, by gazette notice, be licenced by the responsible Minister to be a place for the solemnization of marriages. She stated that a marnage may not be solemnized unless 21 days notice of the intended marnage is given in the prescribed form. The Judge went on to say that the parties did not show any proof that the place of worship was licenced. The Judge also found that there was no evidence that notice of the intended marriage had been given within the prescribed number of days and that the marriage was solemnized within three months as required by the Act. The Court expressed the view that a marriage ceremony purporting to be in accordance with Sunni Muslim Law cannot be a ceremony under the Marriage Act. That this is manifest from the fact that under Sunni Muslim Law, the marriage solemnized between the parties is potentially polygamous, while a marriage under the Marriage Act, Cap 50 is a monogamous one. She added that the Marriage Act is inapplicable to African Customary Marriage. She stated that that notwithstanding, such marriages are recognised as valid. She added that similarly, the Marriage Act is inapplicable JS to a polygamous Muslim marriage, as such a marriage possesses a character similar to an African Customary Marriage. P1780 The learned trial Judge went on to state that she had no jurisdiction to hear and determine a petition for dissolution of the parties' marriage. She stated that her conclusion was based on section 3 of the Matrimonial Causes Act No. 20 of 2007. The learned trial Judge concluded by stating that it was for the above reasons that she proceeded to consider the preliminary objection even though an order to try the question had not, in the first instance, been obtained by the Respondent's advocates. That counsel for the Respondent contended that the marriage was not solemnized in accordance with the law of a foreign state. Further, that no evidence had been led that the law under which the Muslim marriage was solemnized is that of a foreign state. The court then stated that that being the case, the marriage in issue was outside the ambit of the jurisdiction conferred on the High Court. The Judge declined to consider the question whether the marriage was dissolved by bare Talaq or whether it was dissolved in accordance with the religious tenets pursuant to which it was contracted. The Petitioner was not satisfied with the above Ruling by the High Court. She appealed to this Court on three grounds. These are: J6 Ground one The learned trial Judge erred in law and fact by holding that it had no jurisdiction to entertain the petition for dissolution of marriage when the Respondent voluntarily submitted to the jurisdiction of the P1781 Court Ground two The learned trial Judge in the Court below erred in law and fact when she declined to hear the Petition for divorce notwithstanding evidence of a ceremony and cohabitation by the parties which are pre-requisites for a valid marriage Ground three The learned trial Judge erred in law and fact when she considered that the High Court cannot dissolve the marriage in issue or grant any matrimonial relief envisaged in section 2 of the Matrimonial Causes Act No. 20 of 2007 contrary to the provision of the aforesaid Act. Both parties filed written heads of argument. On the date of hearing of the appeal, Mr Katolo relied on his heads of argument. In support of ground one of the appeal, Mr Katolo submitted, in reference to the earlier divorce proceedings, before the Talaq was issued, that the Respondent submitted to the jurisdiction of the High Court before he even issued his purported Talaq on the 8 th of August, 2012. To support his submission, J7 counsel cited Halsbury's laws of England Volume 8(1), 4 th Edition at paragraph 630, page 477 which states that- P1782 "apart from other provisions under which jurisdiction may be specifically conferred, a court before which a Defendant enters an appearance has jurlsdlction ... Jurlsdlctlon is not conferred If appearance was entered solely to contest the jurisdiction. Thus if the Defendant takes the steps prescribed by National Procedural Law for a challenge to the jurisdiction of the Court, on the first available opportunity; he will not be treated as having conferred jurisdiction on the Court by the entering of an appearance." Apart from the above passage from Halsbury's Laws, Mr Katolo cited the case of Re Dulles' Settlement Trusts v. Vilder (1951) 2 ALL ER 71 and Henry v. Geopresco International Limited (1975) 2 ALL ER 702 also in support of his argument that the Respondent had voluntarily submitted this matter to the jurisdiction of the High Court. He disagreed with the lower Court's view that the fact that the Respondent submitted to the jurisdiction of the High Court in earlier proceedings can have no effect on the jurisdiction of the Court. On behalf of the Respondent, it was submitted that the lower Court was on firm ground when it held that jurisdiction of the High Court is prescribed by statute and cannot be extended nor conferred by the parties. To support her argument, counsel cited the cases of Zambia National Holdings Ltd v. Attorney General ( 1993-94) ZR 115, Aristogerasimos Vangalatos and J8 . ' P1783 Another v. Metro Investments Ltd SCZ No. 35 of 2016 and Halsbury's Laws of England, 4 th Ed, Vol 10, page 135 at paragraph 317. Counsel added that sections 3 and 4 of the Matrimonial Causes Act limit the jurisdiction of the High Court as to the nature and kind of actions which the Court may entertain. Counsel submitted in the alternative that the alleged acquiescence by the Respondent in the earlier proceedings under cause No. 2006/HP/D.107 can have no bearing on the jurisdiction of the Court below as they were commenced prior to the enactment of the Matrimonial Causes Act of 2007. In ground two , Mr Katolo argued that the learned trial Judge erred in law and fact when she declined to hear the petition for divorce notwithstanding evidence of a ceremony and cohabitation by the parties , which are pre-requisites for a valid marriage. Counsel stated that it should be observed from the Respondent's preliminary issues that under Zambian law, a person can only contract a marriage either under statutory or African Customary Law. That any other marriage which is neither a statutory nor customary marriage can only be recognized by applying the principles of conflict of laws. He cited the learned authors of Halsbury's Laws of England f 1996) Volume 8(1), 4 th Edition (re-issue) at page 457, paragraph 601 to support his argument. This paragraph states as follows: J9 P1784 "nature of the subject. The branch of English law known as the Conflict of Laws or private International Law in contradiction to the ordinary local or domestic law of England, is concerned with cases having a foreign element. By a foreign element Is meant a content with some system of law other than English Law." He referred this Court to the definition of the words "Conflict of Laws" in Black's law Dictionary (2000), 9 th Edition at page 341 which states that- "the body of jurisdiction that undertakes to reconcile such differences or to decide what law Is to govern In these situations: the principles of choice of law" Further that Halsbury's laws of England, 4 th Edition, Vol 8 ( 1) at page 457, paragraph 602 states that: "the conflict of laws is a necessary part of the law of every country because different countries have different legal systems containing different legal rules and some adjustment between them is necessary when events or transactions are not confined within the boarders of a single country ... " Counsel went on to state that a Sunni Muslim Marriage is neither a statutory nor an African customary marriage. That as a result of this, the learned Judge was supposed to determine if there could be some adjustment between the Zambian law on marriages and the marriage contracted under the Sunni Muslim Law. JlO P1785 He cited the case of Baindal v. Baindal (1946) 1 ALL ER 342 to support his argument. Counsel stated that despite the Judge recogn1z1ng the validity of the Sunni Muslim Marriage as not being prescribed in Zambia and having evidence that the parties did actually marry under the Sunni Muslim law, the learned High Court Judge should have recognized the marriage and adjudicated over the petition relating to the dissolution of the same. That by refusing to adjudicate on the matter, the Court left the petitioner without any relief or recourse to justice in Zambia. He cited a passage in Chibwe v. Chibwe (2001) Z. R.1 where the Supreme Court stated that- "ln fact this existence of two justice paradigms results in some cases in gross disparities bringing about inequality before the law contrary to our constitutional provisions." Mr Katolo stated that by refusing to entertain the Petitioner's Petition, the Court below was setting a very dangerous precedent to the effect that anyone in Zambia who is married under the Sunni Muslim Law cannot in an event of divorce petition the High Court of Zambia for redress. On behalf of the Respondent, it was submitted that the question that this Court should consider is whether the marriage Jll P1786 in question was solemnized in accordance with the Marriage Act. That if the marriage was not solemnized in accordance with the Marriage Act or is a customary marriage, then the High Court has no jurisdiction. It was submitted that the Marriage certificate on record is not in the prescribed form contained in the marriage Act. That in fact, the certificate states that the Marriage was contracted in accordance with Sunni Muslim Law and not in accordance with the Marriage Act. Counsel submitted further that solemnization of a statutory marriage under the Marriage Act requires more than just a ceremony and cohabitation. It was submitted that Article 19 of the Constitution of Zambia (Amendment) Act of 2016, confers the right on every person to freely manifest and propagate a religion of one 's choice. That the above Article legalizes or permits individuals to contract marriages in accordance with the rules of their religion. That by implication, such marriages should be dissolved in accordance with the religious law under which the marriage was contracted. On conflict of laws, counsel argued that the principles of conflict of laws come into play only where there is an apparent conflict between the laws of one state or legal jurisdiction 1n comparison with the law of a foreign state or jurisdiction. In ground three of the appeal, Mr Katolo submitted that section 3 of the Marriage Act only excludes marriages which are contracted under Customary Law. That the Act should apply,. J12 ' I P1787 therefore, to any other marnages except Customary Law marnages. That the learned High Court Judge did not address her mind to the question whether the Sunni Muslim Law was a Customary Law or not for her to exclude a marriage contracted under it from the jurisdiction of the High Court. He added that conflict of laws is concerned with cases having a foreign element. That the authors of Halsbury's Laws of England, 4 th Edition (re issue), Vol 8(1) paragraph 601 at page 603 define a foreign element as follows: "a country with some system of law other than English law. In the conflict of laws, foreign element and foreign country mean a non English element and a country other than England." Counsel went on to argue that the Courts in England have assumed jurisdiction and dissolved a marriage contracted in England but declared null and void by a Maltese Court. He cited the case of Formosa V. Formosa (1962) 3ALL ER 419 to support his argument. Mr Katolo added that the High Court Judge erred in law and fact when she refused to assume jurisdiction as she failed to establish whether the Sunni Muslim marriage was a customary marriage. Counsel also invited this Court to look at the following cases: 1. Mandia v. Dowell Lee and another (1982) 3 ALL ER 1062 2. Munalo v. Vengesai (1974) ZR 91 3. Chaudhary v. Chaudhary (1984) 3 ALL ER 1017 J13 P1788 On behalf of the Respondent, it was submitted that section 3 of the Matrimonial Causes Act restricts the jurisdiction of the High Court to two types of marriages , namely, marriages contracted under the Marriage Act and marriages contracted under the law of a foreign country. That the law of a foreign country means that parties contract a marriage in another country and not in Zambia. That in such a case , the High Court will have jurisdiction. We shall consider all the three grounds at once as , they are all intertwined. They all raise the issue of jurisdiction of the High Court in matrimonial matters. We have looked at the evidence on record. We have also considered the submissions filed by both parties and the authorities cited. We wish to state that the High Court is conferred with jurisdiction generally by section 10 of the High Court Act, Cap 27 of the Laws of Zambia. This section provides that- "10. (1) The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by this Act, the Criminal Procedure Code, the Matrimonial Causes Act, 2007, or any other written law, or by such rules, orders or directions of the Court as may be made under this Act, the Criminal Procedure Code, the Matrimonial Causes Act, 2007, or such written law, and in default thereof in substantial conformity with the Supreme Court Practice, 1999 (White Book) of England and subject J14 P1789 to subsection (2), the law and practice applicable in England in the High Court of Justice up to 31st December, 1999. (2) The Civil Court Practices, 1999 (Green Book) of England and any civil court practice rules issued in England after 31 st December, 1999, shall not apply to Zambia." The relevant sections in the Matrimonial causes Act Number 20 of 2007 are sections 3 and 4. These sections provide that: "3. The provisions of this Act shall apply to marriages solemnized in accordance with the Marriage Act or the law of a foreign state and shall not apply to marriages contracted in accordance with customary law. 4. (1) The High Court, hereinafter referred to as "the Court" shall have and exercise, subject to the provisions of this Act, jurisdiction and power In relation to matrimonial causes instituted or continued under this Act. (2) Notwithstanding subsection (1) of section eleven of the High Court Act or any other written law, the iurisdictlon of the Court in divorce and matrimonial causes and related matters shall, after the commencement of this Act, be exercised only in accordance with the provisions of this Act. (3) The Court shall have jurisdiction in proceedings for divorce or for a decree of nullity of marriage if either party to the marriage- (a) is domiciled in Zambia at the date of the commencement of the proceedings; or JlS (b) is resident in Zambia at the date of the commencement of the proceedings, and has been ordinarily so resident for a period of not less than twelve months immediately preceding that date." P1790 The above provisions highlight the jurisdiction of the High Court. It is clear that the Zambian Law recognises the following: 1. Marriages contracted under the Marriage Act, Cap 50 of the Laws of Zambia; 2. Marriages contracted under the law of a foreign state; and 3. Marriages contracted under Customary Law. Under the Marriage Act, a marriage IS valid if it is solemnized in accordance with the provisions of the Act. In the case before us , the parties got married at Makeni Mosque allegedly in accordance with Sunni Muslim Law. There is no evidence on record, to show that the parties complied with the requirements under the Marriage Act. It was not in accordance with the provisions of the marriage Act. The second type of marriage that IS recognised by the Zambian Law, is a marriage contracted under the law of a foreign state. The Oxford Advanced Learners Dictionary, 9 th Edition defines the word 'law' as follows: "the whole system of rules that everyone in a country or society must obey". J16 Mr Katolo argued that there is a conflict of laws between the Zambian law on marriage and the Sunni Law. He urged us to apply the principles of conflict of laws. P1791 The above submission requires this Court to determine what conflict of laws entails. The Wex Legal Dictionary defines conflict of laws as follows: "A difference between the laws of two or more jurisdictions with some connection to a case, such that the outcome depends on which jurisdiction's law will be used to resolve each Issue in dispute." In the case before us, we are of the view that the issue of conflict of laws does not arise. This is because the marriage between the parties was solemnized in Zambia. Hence the law that should govern the marriage is the Zambian law. There is no other law on record that can be said to be in conflict because the parties married in Zambia. There is no law that is in conflict with the Zambian law, the title of that law and what provisions. Counsel for the Petitioner cited a number of cases such as Baindal v. Baindal to show that English Law recognises Hindu marriages. In our view, this case does not help the Petitioner because it is different from the case at hand. In that case , the parties married in India. The marriage was valid in India. Hence the English Courts held that the English law would certainly recognise the validity of a Hindu marriage so far as it related to J17 P1792 the title to personal property left by an intestate in England. In the case before us, the marriage was solemnized in Zambia. Our law under section 3 of the Matrimonial Causes Act would equally recognise the marriage in Baindal v Baindal because the marriage was solemnized under the law of a foreign country, that is, the marriage was considered valid firstly in the country in which it was solemnized, being India. Another case cited by the Petitioner was Formosa v. Formosa. In that case, the husband, a Maltese, who had acquired a domicile of choice in England, lawfully married an English woman at a registrar's office in 1949. In July, 1951, the husband went to Malta for a short holiday, but he failed to return to England. The wife obtained an order for maintenance, with which the husband did not comply. Subsequently the National Assistance Board obtained a like order, the wife having obtained national assistance. The Maltese court declined to enforce this order on the ground that Maltese law did not recognise the English marriage as lawful as it had not taken place in a Roman Catholic Church. The wife refused to go to Malta despite letters from the husband saying he wanted her to go there. And, in April, 1959, the husband obtained a decree of nullity of the marriage in the Maltese court which based its jurisdiction on the domicile of the husband, and thus also of the wife, being in Malta. The wife presented a petition that her marriage be declared void, alternatively that the marriage be dissolved on the J18 ' . ,.. ground of her husband's desertion. The court held that the Maltese decree of nullity offended against English ideas of justice and would not be recognised in England. And that accordingly, the English marriage of 1949 continued to subsist. P1793 The above authority is distinguishable from the case at e hand because in that case, the marriage was a valid one 1n England, having been solemnized in England, under English Law. The Maltese Court is the one that refused to recognise the marriage. From what we have said above, it is clear that the marriage between the parties cannot be recognised on the basis that it was contracted in accordance with foreign law. Such foreign law does not arise, as the marriage was contracted in Zambia. The last type of marriage is one contracted under customary law. However, section 4 of the Matrimonial Causes Act, 2007 does not recognise such marriages. Therefore, we shall not belabour this issue. Having shown that the marriage between the parties is not a statutory marriage under the Marriage Act nor was it contracted in accordance with the law of a foreign country, this court has to resolve whether the High Court has jurisdiction to hear a divorce petition of a marriage contracted under Sunni Muslim Law. J19 ' . ,, , . Counsel argued that the Respondent submitted to the jurisdiction of the High Court when he entered into consent judgments under cause number 2006/HP/D/ 107. P1794 This brings in Zambia National Holdings Limited And United National Independence Party (UNIP) v. The Attorney General (1994) S. J. 22 (S. C.). In that case, this Court stated as follows: e "However, in the case of courts created by statute, as the Supreme Court of Judicature, comprising the High Court and the Court of Appeal, has been since 1873, the court has no power to enlarge its jurisdiction in the strict sense, but it has power to alter its practice proprio motu within the limits which it imposes on itself by the doctrine of precedent, subject, however, to any statutory rules regulating and prescribing its practice and procedure made pursuant to any rule-making power contained in the statute. We would like to associate ourselves with the foregoing which we respectfully adopt. We also recall what was said in Miyanda v The High Court at page 64: The term "jurisdiction" should first be understood. In the one sense, it is the authority which a court has to decide matters that are litigated before it; in another sense, it is the authority which a court has to take cognizance of matters presented in a formal way for its decision. The limits of authority of each of the courts in Zambia are stated in the appropriate legislation. Such limits may relate to the kind and nature of the actions and matters of which the particular court has cognizance or to the area over which the jurisdiction extends, or both ... " J20 P1795 The above authority ties the hands of any Court where such court's jurisdiction is conferred by statute. Accordingly, we do not agree with the submission on behalf of the Petitioner. We say so because the jurisdiction of the High Court is provided for by statute. Therefore, a court does not have power to enlarge its jurisdiction. From what we have said above, we hold the view that the High Court has no jurisdiction to hear a petition for the dissolution of a marriage solemnized in accordance with Sunni Muslim Law. We appreciate the precedent that will be set by this decision which will entail that a person who is married under Sunni Muslim Law cannot seek the dissolution of their marriage in the High Court. However, our hands are tied by the strict provisions in the law. In the same vain that the law recognises marriages contracted under customary law but still denies the High Court original jurisdiction to entertain a divorce petition of a marriage contracted under customary law. Accordingly, we find no merit in this appeal and we dismiss it. We order that each party bears its own costs. We just want to make one observation which is not part of our decision. It is clear from the facts of this case that a lot of other people who have entered into marriages, such as this one, may have no redress to court for purposes of having disputes J21 . , .,, ' . • ',,., • ' P1796 relating to the custody of children, property adjustment and maintenance resolved. It is, therefore, our considered view that the Legislature should look into the jurisdiction of the High Court, as regards marriages that are solemnised in accordance with certain religions, such as this one. We air these views in the interest of justice . i:M:-~ supreme Court Judge ~-- ....... ~ ......... . C. Kajimanga Supreme Court Judge J22