IN THE COURT OF APPEAL OF UNILUS
APPEAL No. 20 of 2023
HOLDEN AT LUSAKA
(DIVORCE JURISTRICTION)
IN THE MATTER BETWEEN:
MR. BENSON MWENYA
APPELLANT
AND
MRS. GRACE MWENYA
RESPONDENT
BRIEF FOR THE RESPONDENTS
Filed by:
To:
Ms. Sekai Turigas Nyoni
Ms. Francine Sitala
Mr. Daniel Musonda
Sekai and Patners
LUSAKA.
ADVOCATES FOR THE APPELLANT
Ms. Besnart Tembo
Ms. Chinyanta Kumalo
Mr. Winston Magutswi
B, C and W Legal Practitioners
1st Floor, Great East Road
LUSAKA.
ADVOCATES FOR THE RESPONDENT
IN THE COURT OF APPEAL OF UNILUS
APPEAL No. 20 of 2023
HOLDEN AT LUSAKA
(DIVORCE JURISTRICTION)
IN THE MATTER BETWEEN:
MR. BENSON MWENYA
APPELLANT
AND
MRS. GRACE MWENYA
RESPONDENT
INDEX
Index………………………………………………………………………………...Page 2
Grounds of Response……………………………………………..………………Page 3
Record of proceeding in the Court below……………………………………… Page 4 - 7
Heads of Arguments……………………………………………………………… Page 8 -12
List of Authorities…………………….…………………………………………… Page 13-14
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IN THE COURT OF APPEAL OF UNILUS
APPEAL No. 20 of 2023
HOLDEN AT LUSAKA
(DIVORCE JURISTRICTION)
IN THE MATTER BETWEEN:
MR. BENSON MWENYA
APPELLANT
AND
MRS. GRACE MWENYA
RESPONDENT
GROUNDS OF RESPONSE
If it may please this honourable court, the following are the grounds of response for the
respondents.
GROUND ONE
The lower court erred in law and in fact when it held that the marriage had not broken
down irretrievably.
GROUND TWO
The lower court erred in law and in fact when it refused the granting of custody to the
petitioner.
GROUND THREE
The lower court erred in law and in fact when it refused to grant maintenance for the
petitioner.
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IN THE COURT OF APPEAL OF UNILUS
APPEAL No. 20 of 2023
HOLDEN AT LUSAKA
(DIVORCE JURISTRICTION)
IN THE MATTER BETWEEN:
MR. BENSON MWENYA
APPELLANT
AND
MRS. GRACE MWENYA
RESPONDENT
RECORD OF PROCEEDINGS IN THE COURT BELOW
1. The facts surrounding the case are that, the Petitioner Mr. Benson Mwenya, was
no longer pleased with his wife Mrs. Grace Mwenya and as a result, was pondering
on the idea of a petition for the dissolution of marriage. The facts of this case are
that the parties got married on 4th May, 2007 at St. Andrews’s Church of the United
Church of Zambia in Ndola. After the marriage, the parties lived at various places
but at the time of the commencement of these proceedings the parties were
staying at 14 Nalikwanda Road Kabulonga, Lusaka. Both parties are employed,
while the petitioner is an Electrical Engineer by profession, he last worked at
ZESCO as the Chief Engineer, the respondent is a Branch Manager at ABSA Bank
at Long acres. However, at the beginning of 2022, the petitioner was dismissed
from employment. He has since filed a suit against his former employer challenging
the dismissal and the matter is pending determination. On the contrary, the
respondent has been promoted to be the CEO of ABSA Bank Zambia.
2. During the subsistence of the marriage, they had three beautiful children namely:
Georgia Mwenya, female born on 11 August 2016 James Mwenya, male born on
11 April 2018, Michelle Mwenya, female born on 19 May 2014. According to an
affidavit filed by Mrs. Grace Mwenya, it clearly explained that due to Benson’s
constant threats and violence, she was forced to leave their matrimonial home in
2019 with the intention of commencing divorce proceedings but she did not. She
further on lamented that from time to time before 2019 she would leave home out
of frustration. Benson on multiple occasions made it impossible for her to have
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access to the children as he did not talk to her and that the relationship had broken
down to such levels that there was no communication whatsoever; the only time
they spoke is when the children’s needs were in question. The Affidavit continued
to state that Benson was a very violent person who lashed out at the children at
any given opportunity and in some rare occasions he would physically abuse the
children in the name of disciplining them; something which the respondent sternly
discouraged. Throughout the marriage, she had lived under constant fear and
intimidation. That when drunk, the petitioner exhibited strange behaviour and was
in the habit of insulting on top of his voice and used foul language in the presence
of the children. She further stated that she was a very responsible, caring and
loving mother who took care of the children and had been looking after them since,
the petitioner would sometimes spend time with Beauty kalingeme, a woman
whom she suspects that the petitioner had an affair with some time back in 2018
July, when the relationship between them had soured, due to the petitioner’s
behaviour.
3. Benson Mwenya as the petitioner supported the application for dissolution and filed
an affidavit in support on 25th June, 2019. The petitioner disputed some of the
contents of the respondent's affidavit and explained that the respondent (Mrs.
Mwenya) left the matrimonial home on her own volition and that he had not stopped
her from seeing the children. However, Benson revealed that Mrs. Mwenya was
not responsible enough to take care of the children; that Since she got promoted,
she barely has time for the children and him that’s why it led him to confide in, the
alleged co-adulterer. However, he vehemently denied from having any affair with
her, but admittedly to having a cordial relationship with her. He further stated that
the respondent went out to drink almost on a daily basis with her friends and other
CEO’s in the banking diaspora. On many occasions, leaving the children in the
care of their niece Annie, who was 11 years old at the time, who sometimes
struggled to feed and take good care of the children as she would usually be
overwhelmed with house chores and school work.
4. When the matter came up for hearing on 29th June, 2019, the respondent's
advocate on record then Mr. Komboni Joshua requested for an adjournment to
enable the respondent file an affidavit in reply and also to enable the parties
jexplore an ex-curia settlement. The application was granted. The respondent filed
a detailed affidavit in reply on 14th December, 2019. In brief, the respondent
explained that she did not leave the matrimonial home for no apparent reason but
that she left because the petitioner had threatened to beat her up if she doesn’t
stop her habit of going out and drinking on a regular basis; that she was stopped
from seeing and talking to his children at church on two occasions. Further in her
affidavit, she stated that, at the start of 2016 she did quit her job and decided to
become a stay-at-home mother in order to take good care of the children. Adding
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to that, she also averred that when he filed the petition, she had undergone
rehabilitation for alcohol and she had been observing sobriety for four years; that
the petitioners’ allegations are untrue. However, she fervidly, outlined in her
affidavit that there were reports that the petitioner did not cease to see Beauty
Kalingeme and that from time to time he would go and see her even when the
marriage was subsisting.
5. The following day, she was out of town to Livingstone for a business meeting.
Being concerned with the welfare of the children, she decided to involve the
Department of Social Welfare who also failed to get in touch with the petitioner for
three days and that when the social welfare officers finally managed to go to the
matrimonial home, they found her youngest child in the care of their next-door
neighbour. To the respondent’s surprise, she found the petitioner had moved out
of the house in Kabulonga and was now staying in a two roomed structure attached
to a wall fence where he had put a curtain as a demarcation between the area
where he slept and where the children slept.
6. In response, the petitioner stated that, he was a good father and he took up the
responsibility of taking care of the children, because of the respondents’
uncontrollable behavior. He lamented that he was taking care of the children
properly to the best of his capability despite losing his employment and that the
respondents assertion of the children having lost weight is part of her neglect,
stating “How does she expect her children to be eating properly if she is not
constantly at their matrimonial house in the first place.” And that at one point he
went back to the matrimonial home to get the White book for his Toyota Hilux
Legend55, and she was at home, she told the maid not to allow the petitioner to
talk to the children and in disgrace he left the house. Suddenly, as a result of the
petitioner’s decline in finances the respondent became controlling because she
had a better job and also refused Benson to use any of the registered motors
vehicles.
7. The respondent stated that she was staying in Kabulonga along 14 Nalikwanda
Road, in a six bedroomed self-contained house with electricity and running water;
that as a mother she was not comfortable especially of the thought that her female
children were sleeping under such conditions in an unfenced area as it was
inevitable for her not to contemplate such happenings in the light of rampant cases
of sexual abuse of children. The respondent explained that the petitioner did not
have any capacity to take care of the children and that she was the best person to
do that; that if the court granted her custody of the children, she would not treat the
petitioner in the manner that he had treated her and that she would love to have
the petitioner back home, and she is willing to reconcile and work out their
relationship with the respondent.
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8. At the hearing of the petition on 12th January, 2020 the Petitioner's advocate
informed the court that the parties had failed to settle the issue of custody of the
children, maintenance of the petitioner as well as reconciliation of the marriage. In
this regard, the matter was adjourned to 2nd March 2022. On that date, the
respondent Grace, did not attend court and the court was informed by counsel for
the Respondent Ms. Namanyungu Aggie, that Grace’s sugar levels were high as
she was a diabetic patient. However, on 6th March 2022, the Respondent was not
present again and counsel for the respondent informed the court that the
Respondent was misinformed of the date of hearing but that she had indicated that
the court could proceed with the application as she was ably represented by three
legal counsel and there was an indication that the parties would rely on the affidavit
evidence filed before court.
9. The court has since proceeded to hear the Petitioner’s application for the custody
of the children, maintenance as well as the dissolution of marriage. At the
conclusion of the matter, the court held that, the petitioner failed to prove that the
marriage has broken down irretrievably and denied granting the decree nisi. It also
denied the grant of custody to the petitioner reasons being it was not in the best
interest of the children and lastly, the court refused to grant maintenance for the
petitioner as that would be an affront to patriarchy. The petitioner appeals.
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IN THE COURT OF APPEAL OF UNILUS
APPEAL No. 20 of 2023
HOLDEN AT LUSAKA
(DIVORCE JURISTRICTION)
IN THE MATTER BETWEEN:
MR. BENSON MWENYA
APPELLANT
AND
MRS. GRACE MWENYA
RESPONDENT
HEADS OF ARGUEMENT
GROUND ONE
The lower court was on firm grounds in fact when it held that the marriage had not
broken down irretrievably.
HEADS OF ARGUMENT
1. My lord/ My lady, counsel would like to proceed with their heads of argument on
the first ground of appeal. Based on section 8 of the Matrimonial Cause Act
no.20 of 2007, which states, “A petition for divorce may be presented to the court
by either party to a marriage on the ground that the marriage has broken down
irretrievably.” However counsel would like to define the word “irretrievably” using
the FAMILY LAW IN ZAMBIA: Cases and Materials at page 157 where Sir B
McKenna described “irretrievable breakdown of marriage” as a marriage which
stood no chance because the parties to the marriage ceased cohabiting and one
of the parties (or both) intends not to resume cohabitation.
2. My lord/lady, section 9(1) of the Matrimonial causes Act No.20 of 2007 brings
out the five elements needed to establish irretrievable breakdown but for the
purposes of this case counsel will only focus on section 9(1) (b) which states,
“that the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent.”
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3. My lord/lady, the case of Malama v Malama SCZ Appeal No.84 of 2000 defined
“behavior” as a conduct or treatment that affects the other party negatively.
However, Barker, P. stated in the case of Katz v Katz (1972) 3 AER 219 that:
‘…..behavior is something more than a mere state of affairs or a state of mind,
such as for example, a repugnance to sexual intercourse, or a feeling that the
wife is not reciprocating his love, or not being as demonstrative as he thinks she
should be. Behavior in the context is action or conduct be the one which affects
the other. Such conduct may take either acts or the form of an act or omission or
may be a course of conduct and, in my view, it must have some reference to the
marriage.’ Having said so, my lord/lady, counsel makes reference to the facts,
where the conduct that affected the petitioner was the respondent’s daily intake
of alcohol which led the respondent to be out drinking with her friend rather than
at home taking care of her family. However, my lord/lady, the petitioner needs not
to forget that the respondent discontinued her intake of alcohol and quit her job to
be a stay at home mother. It is seen that the respondent has observed sobriety
for 4years now hence, this may no longer be considered to affect the petitioner
because the respondent has done away with alcohol.
4. Pursuant to section 9(1) (b), the case of Mahande v Mahande (1976) Z.R 287
S.C.Z of 1976, where the courts applied a required test in relation to the section
mentioned which was the objective. Hence, the question that may be posed is
whether the petitioner would reasonably be expected to live with the respondent.
My lord/lady, yet again it can be seen in the facts on how the respondent quit her
drinking practices and has maintained sobriety for 4 years. However, my
lord/lady, the petitioner yet again needs not to forget that due to his constants
threats, it drove the petitioner out of their matrimonial houses but this did not stop
her from going back. Furthermore, with reference to the case of Mulundika v
Mulundika (1991) S.J (H.C.), the brief facts of the case are that the petitioner
sought a decree nisi in dissolution of the marriage based on the grounds that the
respondent was quarrelsome, petty and infatuated by jealousy. He also claimed
that the respondent hated guests and was rude to his brother (a man named
Sanford). He also told the court that the respondent was prone to excessive
drinking and never prepared food for the petitioner’s relatives when they visited.
Evidence was also adduced to the effect that the petitioner himself had extra
marital affairs with two other women and three children were born out of these
affairs. The petitioner claimed she only turned to excessive drinking in order to
cope with the depression she endured because of these affairs. However, the
court made a finding that the respondent had completely reformed and stopped
drinking. Moreover, the parties had stayed with each other for more than six
months since the date of the last incident complained of. Petitioner had extra
marital affairs with Beauty Kalingame during the marriage and claimed it had only
been a cordial relationship due to the absence of the respondent. Despite that,
the petitioner and the respondent stayed together. The respondent took steps to
better herself by going for rehabilitation and maintaining sobriety. The respondent
9
however, even insisted on reconciliation with the petitioner regardless of the
petitioner’s behavior.
5. My lord/lady, with reference to the case of Somanje v Somanje (1972) Z.R.
(H.C.) the brief facts of the case are that the petitioner got married to the
respondent when she was sixteen. Their marriage was arranged and the
appellant did not know the respondent before marriage. On many occasions
when the respondent was drunk he accused the petitioner of infidelity and he
also accused the petitioner of sleeping with her boss at work, causing her to lose
employment. The respondent also attempted to commit suicide on numerous
occasions often citing it was the petitioner’s infidelity. The main issue that the
court determined was whether the court could dissolve the marriage based on
the set of facts. The court made a finding to the effect of that the arranged
marriage was an unhappy one from the start. The real reason was the petitioner
wanted to end the marriage was because she grew tired of living with her
husband and did not love him even after the last occasions of complaints, she
still lived with the respondent for a couple of months or so. This meant the
marriage had not broken down irretrievably since happiness in a marriage cannot
be a ground for dissolution. Hence the appeal was dismissed.
6. My lord/lady, counsel proceeds to make reference to the case of Buffery v
Buffery, where the courts accepted that the parties to the marriage had grown
apart and the marriage could be said to have broken down irretrievably.
However, the parties failed to prove any of the five elements established under
section 9(1) hence, a decree of nullity could not be granted. Similar to facts in the
record of proceeding my lord/lady, the petitioner failed to prove that the marriage
had broken down irretrievably in relation to the elements stated in section 9(1).
PRAYER
Having endeavored to prove to the honorable court that the marriage did not break
down irretrievably, it is counsel’s prayer that the court upholds the decision of the lower
court.
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GROUND TWO
The lower court was on firm ground when it refused to grant custody to the petitioner.
HEADS OF ARGUMENT FOR GROUND TWO
1. My Lord/Lady, our submission seeks to illustrate that the lower court did not error
in judgement when it refused to grant custody to the petitioner.
2. My Lord/ My Lady it is an established principle in law that as seen in section 3
(1) of the Children’s Code Act, 2022 the primary consideration to apply in all
matters dealing with children is the best interest of the child. Section 75 1 (a) of
the Matrimonial Causes Act,2007 reiterates that the court shall regard the
interest of the child as the paramount consideration in proceedings in which
application has been made in respect to the custody of children of the marriage.
During the subsistence of the marriage, the petitioner and the respondent had
three beautiful children namely; Georgia Mwenya, James Mwenya and Michelle
Mwenya.
3. My Lord/My Lady, according to Section 144 2 (a) of the Children’s Code Act,
2022 A court shall in determining whether or not a custody order should be made
in respect of a child in favour of the applicant, have regard the best interests of
the child. Best interest of the child relates to many factors such as the one
provided for in Section 3 (2) (f) of the Children’s Code Act. This provides for
the ability of the parent to meet the needs of the child. From the evidence on
record, it is not a dispute that the petitioner does not have a job. This is because
in beginning of 2022, the petitioner was dismissed from employment. Therefore,
following the section and the factor cited above, it can be seen that due to lack of
employment, the petitioner cannot be expected to be able to meet the needs of
all three children. The needs in question go from education to food and even to
shelter. It is therefore seen that the best interests of the child cannot be said to
be meet in a situation where the parent will find it difficult to provide for the
children.
4. My Lord/Lady, in the case of Colange v Chikachi the High Court stated that: ‘in
considering custody, the welfare of the Child is to be made paramount
consideration. This is in conformity with Article 3 of the Convention on the
Rights of the Child. This Article calls upon the parents and legal guardians to
think about how their decisions will affect the children. The court is required to
consider; ‘who the father is, who the mother is, what they are prepared to do and
all the circumstances of the case.’
5. My Lord/Lady, in the case of Colange v Chikachi and Section 144 2 (c) of the
Children’s Code Act which states that a court shall have regard to the conduct
and the wishes of the parent. From this it can be seen that the decisions and
conducts of the parties is important and to be considered when determining what
is the best interest of the child. In the facts of the case, we can see that the
respondent decided to undergo rehabilitation for alcohol and she had observed
11
sobriety for four years. This shows that she is willing to make the right choices
and be a better parent. This is because her sobriety does in fact affect the lives
of her children. The petitioner also stated that if custody was granted to her, she
would not treat the petitioner in the way he had treated her and she is willing to
reconcile relationship with petitioner. This can be considered as responsible and
reasonable behaviour because she is willing to insure that her children (if
awarded custody) will not witness again any animosity with the petitioner.
6. My Lord/My Lady, this is contrary to some of the conduct we have seen from the
petitioner. Some of the conduct we see from the petitioner includes uprooting the
children from their home whilst the respondent was away on a business trip and
moving them into a smaller and less friendly structure to live in without informing
the respondent. The house where the petitioner decided to take the children is
one where as a mother, the respondent was not comfortable especially with her
female children to live in. According to Section 144 (2) (g) of the Children’s
Code Act which provides that the court must consider whether the child is likely
to suffer harm if custody order is made and according to the facts provided to us
the petitioner drank and became abusive towards the children when he
consumed alcohol. Therefore the children are in a position to be under harm. The
children are also susceptible to harm because the place they were moved to by
the petitioner is not fenced and anything can happen to them such as sexual
abuse. Therefore it is seen that the children are likely to suffer harm if they live
with the petitioner.
PRAYER
Having endeavoured to prove that the lower court did not error in law or in fact when
it refused to grant the custody to the petitioner, it is counsel’s humble prayer that this
honourable court upholds the decision of the lower court.
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IN THE COURT OF APPEAL OF UNILUS
APPEAL No. 20 of 2023
HOLDEN AT LUSAKA
(DIVORCE JURISTRICTION)
IN THE MATTER BETWEEN:
MR. BENSON MWENYA
APPELLANT
AND
MRS. GRACE MWENYA
RESPONDENT
LIST OF AUTHORITIES
STATUTES
The Children’s Code Act, No. 12 of 2022
The Convention On The Rights Of The Child
The Matrimonial Causes Act, No. 20 of 2007
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CASES
Buffery v Buffery [1988] 2 FLR 365, CA
Colange v Chikachi [2016] ZMHC 15
Katz v Katz (1972) 3 AER 219
Mahande v Mahande (1976) ZR 287 S.C.Z
Malama v Malama SCZ Appeal No. 84 of 2000
Mulundika v Mulundika (1991) S.J (H.C)
Somanje v Somanje (1972) Z.R. (H.C)
BOOKS
Family Law in Zambia; Cases and Materials by Lillian Mushota
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