William Robbyson Mubanga v Juliet Chikwekwe Mubanga (Appeal No. 151/2018) [2019] ZMCA 431 (29 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Divorce Jurisdiction) Appeal No. 151/2018 WILLIAM ROBBYSON MUBANGA APPELLANT AND (@(:: ,\U i 2019 JULIET CHIKWEKWE MUBANGA RESPONDENT Coram: Kondolo, Makungu and Chishimba, JJJA On the 21 st and 211fh day of August, 2019 For the Appellants: Mr. H . Choongo and Mr. P. S. Phiri of Tutwa Ngulube & Co For the Respondent: Mr. J. Zulu Senior Legal Aid Counsel - Legal Aid Board JUDGMENT MAKUNGU, JA, d elivered the J udgment of the Court. Cases referred to: 1. Sinkonda Phiri v. Elestina Zulu (2012) ZR vol. 344 2. Watchel v. Watchel (19 73) ALL E. R 11 43 3 . Musonda v. Musonda - SCZ Appeal No. 53 of 1998 4. Xirocostas v. Poma - SCZ Appeal No. 125 of 2011 5. The Attorney General v. Marcus Kampumba Achiume (1983) ZR 1 6. Rosemary Chibwe v. Austin Chibwe (2001) ZR 1 Legislation referred to: 1. Sections 54 and 56 of The Matrimonial Causes Act No. 20 of 2007. 1.0 INTRODUCTION 1.1 This appeal emanates from the judgment dated 28 th February, 2018 by the District Registrar, Mr. Daniel Musonda on property adjustment and maintenance of a child. 2.0 BACKGROUND 2. 1 The parities were divorced by the High Court on 21 st December, 2015 when a decree nisi was entered. A decree absolute was made on 14th March, 2016. The parties were married for a period of about seven years and during the subsistence of the marriage they had a son named Geoffrey Lackson Mubanga, who was aged 5 years and 3 months at the time that the District Registrar started adjudicating upon the matter. 2 .2 On 2 nd March, 2016 the respondent applied for maintenance of the child and property adjustment pursuant to the High Court judgment of 21 st December, 2015 which referred the matters of maintenance and property settlement to the District Registrar for determination. -J 2 - 3.0 AFFIDAVIT EVIDENCE 3.1 In the affidavit in support of the application sworn by the respondent herself, she stated that the child has been in her custody ever since the couple separated in September, 2011. She is employed by the Food Reserve Agency as an Administrative Assistant and earns K6, 089.85 net per month as shown in the pay slip for February, 2016 which was exhibited. She further stated that the child's needs include the following: • School fees Kl, 350. 00 per term • Transport K700. 00 per month • Packed lunch K500. 00 per month • Clothing K2, 000. 00 per year • Medicals K 3 ,000. 00 per month • Food Kl, 000. 00 per month • Recreation Kl, 500. 00 per month 3.2 That the respondent had not been contributing towards the maintenance of the child and she was unable to fully fend for him by herself due to limited financial capacity. Further that -J3- the respondent is a businessman earning a "very reasonable income." 3.3 The crux of the affidavit in opposition sworn by the appellant was that the various needs of the child were to a large extent exaggerated, especially as regards medicals and recreation. He is willing to support the child but has no means of supporting him financially because he is unemployed. He was on 1st September, 2013 arrested and charged with one count of theft of 24 tons of copper and remanded in Mukobeko Prison until 10th June, 2014 when he was released. Since his release he has found it virtually impossible to secure employment. To prove this, he exhibited a Times of Zambia Newspaper cutting of 13th June, 2014 on his release from pnson. 3.4 The appellant avowed that making any financial order against him would have no practical value because he has no means of raising the claimed amounts of money. 3.5 In the affidavit in support of the application for property adjustment, the respondent stated that during their marriage , she and the appellant acquired the following properties: A house on Plot No. 9001 Chowa Extension, Mulugushi Road, -J4- Kabwe, a house in Libala South, Lusaka and some house hold goods which should be shared between them. 3.6 The appellant swore and filed an affidavit in opposition to the application for property adjustment to the effect that Plot 9001 , Chowa Extension belongs to his sister, Mary Mubanga, who bought it from Priscilla Chabala Harrison on 22nd January, 2007 as shown in the documents collectively exhibited as WRM2. ' 3.7 The residential house in Libala South No. 18509 belongs to his family composed of the mother and nine children. It was acquired sometime in 2006 long before the marriage as shown in exhibit WRM3 ' a letter from Lusaka City Council to him dated 13th April, 2006 on service charges. He was merely appointed by the family to oversee the house due to the fact that he was single at the time and had knowledge of civil . . engineering. 3.8 The appellant mentioned certain house hold properties which the r e spondent left out such as one Scania 15 ton truck, a Mitsubishi Pajero Motor vehicle, a Nissan Mini Bus, a set of gym equipment and a house on Plot No. 9010, Chowa Stage 3 Mulungushi, Road, Kabwe. -JS- 3.9 In the affidavit in reply, the respondent stated that Plot No. 9001 , Chowa Extension, Kabwe does not belong to Mary Mubanga as alleged by the appellant. The plot was bought by the couple from Priscilla Chabala and they built a matrimonial house on it. 3. 10 She further averred that investigations by the police revealed that the said property does not belong to Mary Mubanga. As proof of this a letter from Zambia Consolidated Copper Mines (ZCCM) and the Police report were marked collectively and exhibited as 'JC 1.' 3.1 1 As regards the house in Libala South, Lusaka the respondent claimed that the appellant himself bought it and started building a house on it, and when they got marrie d , she contributed towards the construction of the house until it was completed. 3 . 12 The respondent denied owning a house at Plot No. 9010 Chowa Stage 3, Kabwe. She produced a letter of off er from the Ministry of Lands dated 5 th March, 2008 and a letter of Consent to Issue Title Deed from Kabwe Municipal Council to the Commissioner of Lands dated 17th June , 2009. She denied owning a Scania 15 ton truck and showed the white- -J6- book indicating that the Mitsubishi Pajero belongs to her mother, Beauty E. Kalimina. She also indicated that Kalimina Transport Company is run by her mother and she has no shares therein. 3.13 She went on to vow that she bought the Nissan Caravan Minibus using a loan from Standard Chartered Bank while they were on separation. That the appellant owns a Toyota Altezza motor vehicle registration n u mber 8764. 4.0 OTHER EVIDENCE BEFORE THE DISTRICT REGISTRAR 4.1 Durin g the hearing of the applications, the respondent who was the applicant testified and repeated the affidavit evidence. In addition, she stated that she did not know the house number for the house in Libala South, Lusaka but that she contributed Kl 7, 000.00 towards its construction. She said the house in Chowa is occupied by the appellant while the one in Lusaka was probably on rent. They bought the plot in Chowa at K7000.00 in 2008. Th ey also bought Plot 9001 together as a couple in 2008 from Priscilla Chabala who gave them the offer letter she got from ZCCM which was kept by h er husband. She said the documents relating to Plot 9001 -J7- produced by the appellant were not genuine as the police report and letter from ZCCM state that the plot was not offered to Mary Mubanga. 4 .2 As regards house hold goods, she stated that the respondent could have them. She prayed for an Order that she keeps the Rosa Caravan and that the appellant keeps the Altezza. 4.3 The appellant's first witness, Priscilla Chabala Harrison, gave evidence that she bought Plot No. 9001 from ZCCM at K6 , 000.00 as bare land in 2007. Later, the appellant bought it from her on behalf of his sister, Mary Mubanga, at K7000.00 . The plot has two houses on it and the parties hereto were residing in one of them. In cross - examination, she conceded that there was no document before court indicating that she owned the plot and she was not aware that ZCCM disputed the sale. However, she was aware of the police investigations of the first documents which she gave Mary Mubanga and William including an offer letter to her by ZCCM but that, they were lost. She said she dealt with Mr. Chama the consultant for ZCCM. 4 .4 The appellant was the second witness. He testified that he resides at Plot No. 9001 Mulungushi Road, Chowa Extension -JS- Kabwe and that he is a driver by occupation. That when he lost his job at Sable Zinc, his sister Mary Mubanga allowed him to live in her house at Plot 9001. When he and the respondent separated in 2011, the respondent went to live with her parents and built a house on her parent's plot. 4.5 Later when he was jailed in 2012, the respondent put the house on Plot No. 9001 on rent. He played the role of the middleman in the sale of Plot 9001 by PW 1 to his sister, Mary Mubanga. He could not tell if the documents were genuine or not and denied that the respondent contributed to the construction of the house in Libala as she knew that it belonged to his family and it is incomplete. He said he oversees the family property which is still incomplete and the documents pertaining to it are in his name. 4.6 He conceded that there was neither proof that Plot 9010 belongs to the respondent nor evidence in support of his claims regarding the Scania and DAF Trucks. She bought the white Nissan Caravan when they were on separation. 4.7 The appellant's third witness was Mary Mubanga who confirmed having bought Plot No . 9001 from PWl in 2007 at K7 million through her young brother, the appellant. She also -J9- gave the appellant the responsibility of meeting Mr. Chama the consultant of ZCCM - IH. She sent the monies for construction of the house to the appellant and that it was completed in 2008. In 2009, the appellant got married and occupied the house. She denied that the documents relating to the transaction were forged. 4.8 The fourth witness for the appellant was Luckson Mubanga, the appellant's elder brother who confirmed that Plot No 18509 Libala South, Lusaka was a family house having been acquired by the family in 2006 from an MMD Cadre at K6 million. The appellant was chosen as overseer of the property, which is registered in his name. He was chosen to be the overseer of the property as he was vested with construction knowledge . Luckson was not aware that the respondent contributed to the development of the plot. 4.9 The fifth and last witness was the appellant's elder brother Geoffrey Mubanga, who confirmed the appellant's evidence relating to the plot in Libala. He said the house has been incomplete since 2008 and that the respondent did not at all contribute to its construction. -JlO- 5.0 THE DECISION OF THE DISTRICT REGISTRAR 5.1 Upon considering the evidence and the submissions made by the parties on maintenance, the learned District Registrar found that the respondent's income was not stated but that he was in business. In the same breath he found that both parties were gainfully engaged. He further found that there was no evidence in form of a school bill though the amounts were not challenged. Although the appellant's defence was that he is unemployed, he as a father has the honourable duty to provide for his off spring. As such the appellant was ordered to pay the sum of Kl, 350.00 termly for the child's school fees; the sum of K2000 .00 every six months for the child's clothing and medical expenses whenever need arises. The payments were to be made until the child turns 18 years or completes t ertiary education, whichever happens last. 5.2 As regards property adjustment, the lower court found that there was no issue regarding the household goods as the respondent told the court that the appellant could have them. There was no major controversy on the Nissan Caravan and Toyota Altezza as they were acquired during the period of separation. The court further found that, the Mitsubishi -Jll- Pajero, registration number ALL 2567 belonged to Beauty Kalimina the respondent's mother. There was neither evidence adduced to prove that Kalimina Transport Company belonged to the parties nor that the said Scania truck and DAF truck belonged to the respondent or the couple. 5.3 As for the immovable properties, the District Registrar found that Plot 9010 Chowa Extension was bought by Chikwekwe Phix, the respondent's deceased father. On Plot 9001 Chowa Extension Kabwe, the District Registrar was not convinced by the evidence adduced by the respondent and his witnesses because the documents that the respondent received from PW 1 upon the sale of the plot were not before court. He thus wondered where the document showing that PWl bought the plot from ZCCM came from and noted that the police were still investigating the matter. He opined that on the balance of probabilities, it was more probable than not that Plot 9001 Chowa extension was built jointly by the parties to the case. The couple were the only persons who resided in the house and when the respondent was in detention, the applicant was able to put the property on rent because it was the matrimonial house. He accordingly decided that Plot 9001 -J12- Chowa Extension, Kabwe 1s matrimonial property subject to distribution upon divorce. 5.4 The District Registrar found that Plot 18509 water works Libala, Lusaka was acquired by the appellant's family in 2006 before the marriage. It was not acquired with the marriage in mind. He dismissed the respondent's evidence that she contributed to the construction of that house and had a beneficial interest in it because she didn't even know the plot number. He made reference to the case of Sinkonda Phiri v. Elestina Zulu 111 on the principle that if one spouse buys property intended for common use with the other, whether it is a house , furniture, or a car, this cannot per se or of itself give the later any propriety interest. 5.5 In light of the evidence and the cited authority, he found that the said property is not family property subject to distribution. He finally ordered that Plot No. 9001 Chowa Extension be sold and the proceeds shared equally between the parties. It was ordered that each party bears its own costs. 6.0 GROUNDS OF APPEAL 6.1 This appeal is based on three grounds couched as follows : -J13- 1. The learned Honourable District Registrar in the court below erred in law and inf act when he failed to take into consideration the evidence exhibited to the fact that the property at Plot 9001 Chowa Extension Mulugushi Road Kabwe belonged to Mary Mubanga the sister to the respondent and not the parties. The learned Judge ignored the fact that property that does not belong to the parties cannot be matrimonial property subject to distribution after divorce. 2 . The learned Honourable District Registrar erred in law and in fact when he ordered that Plot 9001 Chowa Extension be sold and even assuming that the property belonged to the parties, selling the house would not be in the best interest of the child as the house in question would be the only property the child would inherit. 3. That the learned Honourable District Registrar erred in fact and in law when he ignored the evidence adduced before him and failed to take into account that the appellant is not in employment when he awarded amounts that are in excess of his means. The court did not examine the means before arriving at the awards. -Jl4- 7 .0 ARGUMENTS ON BEHALF OF THE APPELLANT 7.1 In the appellant's heads of argument filed herein on 28th September, 2018, the first and second grounds of appeal were argued together. It was contended that the District Registrar failed to take into account the evidence adduced by the appellant in arriving at h is decision. We were referred to the cases of Watchel v . Watchel '21 and Musonda v. Musonda '31 where matrimonial property was defined as an asset acquired by one of the parties to the marriage with the aim that it should be continuing provision for their joint lives and that it should be for the use and benefit of the family as a whole. 7 .2 In light of the definition above, it was contented that Plot No. 9001 Chowa Extension does not belong to the appellant but his sister Mary Mubanga, and does not fit into the definition of a family asset. The Dist rict Registrar therefore erred when he ordered that it be sold and the proceeds be shared. Even if the property belonged to the appellant, it was contended that selling it would leave the child of the family with nothing to inherit. 7.3 In support of ground three, it was argued that the court in making a maintenance order is expected to have regard to the -J15- income, earning capacity and other financial resources which each of the parties to the action has. To fortify this, reference was made to Section 56 (1) (a) of the Matrimonial causes Act of 2000 which provides: "Subject to the provisions of this section the court may in any matter or cause in which an application is made for the maintenance of a party to a marriage or of the child ren of the family other than p roceedings for an order for maintenance pending the disposal of proceedings make such an order on such application as it thinks proper having regard to the income, earning capacity and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future ." 7. 4 We were also referred to the case of Xirocostas v. Poma 141 wh ere the only income the appellant had was his salary. Fur ther the evidence that was adduced and accepted by th e lower court was that the appellant after taking into consideration his needs and responsibilities remained with a balance of only K966, 750.00. Th e Supreme Court stated that in those circumstances, it wondered how the court below cou ld h ave given an award of K3, 000, 000. 00 which was far -J16- above the appellant's earnings. The award made by the High Court was therefore set aside and substituted with one of K900.00 per month. 7.5 Counsel stated that 1n the present case the appellant is unemployed. There is no evidence on r ecord to show that h e has a source of incom e. Therefore, the amounts that h e was ordered to pay are beyond his means and h e prays that the order b e set aside. 8.0 ARGUMENTS ON BEHALF OF THE RESPONDENT 8.1 The respondent's h eads of argument were filed herein on 7 th November, 2018. Grounds one and two were argued separately. The following were the arguments in opposition to ground one: The lower court did consider the evidence on record before dismissing the appellant's evidence. In accepting the respondent's evidence, the court found that the respondent had proved on the balance of probabilities that Plot 9001 Chowa Extension was matrimonial property. This finding cannot be faulted on any ground specified in the case of The Attorney General v . Marcus Kampumba Achiume. 5 The -J17- appellant has not even indicated a legal ground upon which the said finding of facts should be interfered with. 8.2 As clearly indicated in the letter of 25 th April, 2016 as shown on page 81 of the record, ZCCM- IH wrote to Anti-fraud Unit of Kabwe Central Police that it had no record of selling the property in question and that the purported letters of off er were not issued by ZCCM-IH, and were therefore not authentic. 8.3 On the other hand, the evidence of the appellant and his own witnesses showed that the house in question had always been occupied and administered by the appellant and the respondent as a couple. Even when the appellant was in prison, the respondent remained in full control of the property. Mary Mubanga only came into the picture when the issue of property settlement arose. 8.4 It was further argued that the District Registrar had a balanced view of the evidence as he even found the appellant's house in Libala was not matrimonial property. 8.5 In countering the second ground of appeal, it was contended that once a court makes a decision that a particular property is matrimonial property, each party has to be given a share of -J18- that property. The decision th at the parties share the proceeds of sale equally has been challenged. The parties are entitled to their shares individually, and not as trustees for their child or children. It is uncommon for courts to order that matrimonial property be sold and proceeds be shared especially in cases such as this where there is evidence of acrimony between the parties. The appellant has not cited any law that forbids the making of such orders. We were urged to dismiss both grounds one and two. 8 .6 In response to ground three , it was argued that the court's discretionary decision on the issue of maintenance of the child cannot be faulted as it has not in any way violated Section 56 ( 1) (A) of the Matrimonial Causes Act of 2007. Although the appellant claimed that he was unemployed in his affidavit evidence, yet in his oral testimony, he told the court that he was a driver by profession. He thus, no longer claimed to be unemployed. The lower court ordered him to pay K2, 000. 00 every six months for the child's clothing which translates to K333.33 per month. The lower court ordered this relatively paltry amount h aving regard to his income, earning capacity -Jl9- and other financial resources in accordance with Section ( 1) (a) of the Matrimonial causes Act of 2007. 8. 7 Counsel emphasized that under Section 56 (3), the court also has a duty to consider the financial needs of the child. Section 56 (4) guides the court to place the child, so far as is practicable, in the financial position she or he would have been had the marriage not broken down. Both parents are required to make reasonable contributions. 8 .8 The appellant was ordered to pay school fees every term which would only be three times a year. The respondent, in fact has more responsibilities than the appellant. In the absence of evidence from the appellant as to how much he earns from his occupation as a driver, the court was within its discretion to arrive at the figures given. The respondent's counsel finally submitted that the appellant's argument that he should not make any contribution towards the maintenance of his own child, not only lacks merit but also borders on criminality and irresponsibility and as such, the appeal should be dismissed with costs. 8. 9 During the hearing of the appeal, when quizzed by the court, Mr. Zulu submitted that there must be documentary proof of -J20- ownership of land. He conceded that there was no documentary evidence that the parties h erein jointly or severally owned the property on Plot No. 9001 Chowa Extension, Mulugushi Road, Kabwe. He further stated that the District Registrar did not assess generally how much a driver earns in Zambia. The reasonableness of a maintenance order should be relative to one's income. He finally submitted that the lower court did not fully conduct the assessment and for this reason the matter should be sent back for re- assessment. 9.0 DECISION OF THE COURT 9.1 We have considered the record of appeal, the written and oral submissions. The first and second grounds of appeal are intertwined and therefore it was in order for the appellant to argue them together. We shall also deal with them together and deal with ground three separately. 9.2 It is clear that the ownership of plot No. 9001 Chowa Extension, Mulugushi Road, Kabwe was investigated by the police early in 2017. They actually investigated allegations of the appellant forging and uttering false documents. In their -J21- report dated 28th March, 2017 the police stated that the purported seller of the land in issue, ZCCM-IH had denied in their letter dated 25th April, 2016 ever having issued the alleged letters of offer to anybody. Further that Priscilla Chabala Harrison (PW 1) was interviewed and she confirmed having sold the land to Mary Mubanga. The police were unable to verify PW l's assertion that she dealt with Mr. Chama, the alleged author of the initial letter of offer to PW 1 because he was not available. 9. 3 It is clear from the totality of the evidence on record that the police investigations were inconclusive. There was no proof that the property belongs to either the appellant or the respondent. The respondent failed to prove her allegation that she contributed to the construction of the house. 9. 4 We take the view that the property, on the balance of probabilities, belongs to the appellant's sister, Mary Mubanga (PW3) because of the appellant's evidence and that of PWl and PW3. The evidence that the appellant and respondent occupied the house from the time it was built and when the appellant was incarcerated, the respondent put it on rent is insufficient to prove ownership. We take judicial notice that -J22- there have been cases in this country where caretakers have r ented out property and even sold it without authority. 9 .5 For the foregoing r easons, we take the view that the District Registrar misdirected himself and misa pprehended t h e facts when he found that Plot No. 9 001 was m a trimonial property. His findings on this issue are therefore set aside. We are fortified by the case of Attorney General v . Marcus Kampumba Achiume.151 9.6 The d escription of matrimonial property given 1n the case of Watchel v. Watchel 121 is very clear. On this basis, Plot No. 9001 is not m atrimonial property and cannot b e sold for the parties to share the proceeds . The order of sale was erroneous and it is hereb y quashed. We therefore h ave no difficulty in up-holding the first and second grounds of a ppeal. 9 . 7 As regards the third ground of a ppeal, we h ave considered Sections 54 and 56 of the Matrimonial Causes Act , 2017. Section 54 provides for the general powers of the court upon granting a d ecr ee of divorce, before or after the decree is m a d e absolute. Relevant to this case is sub-section (d) of Section 54 which provides that the court may: -J23- "(d) Order t h at a party to the marriage shall secure to s u ch person as the court may specify in t h e order for the benefit of the child of the family, or to such a child, such periodical payments, for such periods, as may be specified in the order;" Section 54 (5) is also relevant and it provides that: "The power of the court under subsection (1) paragraph (a) of Section (4) to make an order in favour of a child of the family shall be exercised from time to time and where the court makes an order in favour of a child under this section it may, from time to time subject to the restrictions mentioned in subsection (2) make a further order in the child's favour of any of the kinds referred to in paragraph (d), ( e) and (f) of subsection (1); Section 56 provides for "Powers of court in maintenance Proceedings" as follows: "56 (1) Subject to the provisions of this section, the court in any matter or cause in which application is made for the maintenance of a party to a marriage, or of children of the family, other than proceedings for an order for maintenance pending the disposal of proceedings, make such an order on such application as it thinks proper having regard to:- -J24- • (a}The · me earning inco resources d other financial . capacity an has the mamage t W hich each of the parties o . · · , · foreseeable future; or is likely to have in d . . obligations an d responsibilities (b)The financtal nee s, . h rriage has or is likely which each of the parties tot e ma t have in the foreseeable future; (c) ;he standard of living enjoyed by the family be Jore the break down of the marriage; (d) .... . (e) .. .. . (f) The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family . (3) Subject to Subsection (5) the court shall in deciding whether to exercise its powers under paragraphs (d) (e) and (f) of subsection (1) of Section 54 subsections (2) or (4) of Section 54 or Section 55 in relation to a child of the family and if so in what manner, have regard to all the circumstances of the case including: ( a) The financial needs of the child; (b)The income, earning capacity, if any, property and other financial resources of the child; (c) The physical or mental disability of the child; (d)The standard of living enjoyed by the family before the break down of the marriage, and -J25- • (e) The manner in which the child was being and in which the parties to the marriage expected the child to be educated and trained. (4) In exercising it powers under this section the court shall seek to place the child, so far as it is practicable and just to do so, having regard to the considerations mentioned in relation to the parties to the marriage in subsection (2), in the financial position which a child would have been if the marriage had not broken down and each of those parties had properly discharged their financial obligations towards the child." 9.8 The above mentioned provisions of the law are very clear. In the present case, the District Registr ar stated t hat th ere was no evidence of the appellant's income. We note that he went on to contradict himself when he found that both parties were gainfully engaged. In the case of Rosemary Chibwe v. Austin Chibwe, 161 the Supreme Court guided that: "It is a cardinal principle supported by a plethora of authorities that court's conclusions must be based on facts stated on record." 9. 9 The finding that both parties were gainfully engaged was not supported by the evidence on record and therefore it is h ereby set aside. The appellant's evidence that he is unemployed was -J26- ' neither discredited nor rebutted. It was not in dispute that he was imprisoned or detained by the police from October, 2013 for a considerable period of time on suspicion that he had committed a crime. He has since his release found it difficult to find employment. Further, the respondent failed to prove her allegation that the appellant is a businessman earning a reasonable income. 9.10 It was common ground that the respondent is employed as an Administrative Assistant by the Food Reserve Agency and earns a net salary of K6 , 089.85 per month. 9.11 It is trite law that he who alleges must prove. The respondent did not adduce evidence as to the living standards of the family before the breakdown of the marriage. There was no evidence as to whether the parties to the marriage had agreed on how they were going to educate the child. There was no evidence as to whether the respondent was contributing to the welfare of the child financially during the subsistence of the marnage. 9.12 The District Registrar rightly found that there was no evidence in form of a school bill but the amount was not challenged. Our view is that without an invoice or receipt for school fees , -J27- or any docu ment in dicating th at the child was enrolled in a named sch ool, there was no proof that the child required Kl ,350 termly as school fees. The appellant's evidence that the child's requirements were exaggerated by the respondent is acceptable. For example, the sum of K3 , 000.00 for medication was unjustified as it was not shown th at the child is sickly and requires constant medical attention and no receipt for medicine was shown. The amount of Kl, 500.00 per month for recreation for a seven year old boy who can p lay with his friends free of charge was also unjustified and exaggerated. There was a lso no proof th at the child requires K700.00 per month for transport. It is therefore doubtful that the respondent is unable to support the child financially on her own. 9.13 In Chibwe v. Chibwe l61 supra, the Supreme Court further stated that: "In making property adjustments or awarding maintenance after divorce, the court is guided by the need to do justice taking into account the circumstances of the case." -J28- 9.14 Our position is that the District Registrar failed to take into account the relevant considerations spelled out in sections 54 and 56 of the Matrimonial Causes Act, 2007 and the cases of Watchel v . watch el (21 and Chibwe v. Chibwe (61 therefore his judgment was flawed. 9.15 We are of the view that although the appellant's occupation is 'driver,' that does not entail that he is employed as a driver. However, the appellant as a driver is likely to earn a meagre amount of about K2000.00 per month in our estimation in the foreseeable future. Some of that money he will need for his own up keep. 9. 16 We accept the District Registrar's opinion that as a father, the appellant has the duty to provide for his off spring. For these reasons, he must make efforts to earn some money so that he contributes to the maintenance of the child. We therefore order the appellant to be paying the sum of K300 .00 per month to the respondent for the up keep of the child. Pursuant to Section 54 (5) of the Matrimonial Causes Act, 201 7, we order that the District Registrar may review this order upon application by either party whenever circumstances necessitating such application arise . -J29-