a THE SUPREME COURT OF ZAMBIA APPEAL NO.34/2010 HOLDEN AT LUSAKA. SCZ/8/49/2010 (CIVIL JURISDICTION) BETWEEN: KABAWE KISEMBO APPELLANT AND GEORGINA KISEMBO RESPONDENT Coram: Chibesakunda, Ag. CJ, Chibomba, JS, and Lengalenga, Ag.JS. On 20" February, 2014 and on 30" July, 2014. For the Appellant: For the Respondent: Mr. W. Mubanga of Chilupe and Permanent Chambers. Mrs. L. Mushota of Mushota and Associates. JUDGMENT Chibomba, JS, delivered the Judgment of the Court. Cases referred to: F vs F (1983) 4 FLR 382 aes (2002) ZR 70 White vs White (2001) 1 AI ER 1 Noo Legislation referred to: Attorney-General vs D.G. Mpundu (1984) ZR 13 The Attorney-General vs Sam Amos Mumba (1984) ZR 17, Patricia Rawnsley and Collin Townsend vs Gwendoline Martha Townsend Calderbank vs Calderbank (1975) 3 AIL ER 333 Zambia Revenue Authority vs Hitech Trading Company Limited (2004) ZR 17. 1, The Rules of the Supreme Court, 1999 Edition7 2. The Matrimonial Causes Act, No. 20 of 2007 Works referred to: 4. Jill Black, Jane Bridge and Tina Bond, A Practical Approach to Family Law. Editi 4 jon, London: Butterworths 2. Rayden and Jackson on Divorce and Family Matters, 16" Edition, Volume 1 London: Butterworths. The Appellant appeals against the Ruling of the High Court at Lusaka, dated 24" February, 2010, in which the Court below ordered the Appellant to pay K11,500,000.00 per month as maintenance of the family pending suit. (All figures in this Judgment are as they were before the rebasing of the Kwacha). The Court below also ordered the Appellant to pay maintenance arrears from the date of presentation of the Petition for divorce into Court. Costs of the application were also awarded against the Appellant. The history of this matter is that the Appellant and the Respondent are husband and wife. On 26" August, 2006, the Appellant filed in the Court below, a Petition for divorce. The Respondent applied for maintenance for herself and the children of the family pending suit. After hearing both parties, the learned Judge awarded the sum of K11,500,000.00 as maintenance pending suit. She back-dated the payments to the date of presentation of the Petition in Court.B Dissatisfied with the above orders, the Appellant appealed to this Court advancing three Grounds of Appeal in the Memorandum of Appeal. These are:- 4, The learned trial Judge in the Court below erred in both law and fact by making a final order for maintenance without due regard to the abundant evidence on record in favour of the Appellant to the effect that he was providing maintenance to the Respondent as well as the children of the family during the period pending the court's determination of the Appellant's Petition The learned trial Judge in the Court below was biased by making a Ruling in favour of the Respondent on a matter that was not specifically pleaded or applied for. And further that such Order of maintenance in arrears was not only unconscionable but amounted to unjust enrichment of the Respondent. The Court below misdirected itself in law by awarding costs to the Respondent in that the Respondent had not manifested any justification to be awarded costs against the Appellant and therefore did not deserve to be awarded costs.” In support of this Appeal, the learned Counsel for the Appellant, Mr. Mubanga, relied on the Appellant's Heads of Argument which he augmented with oral submissions. In support of Ground one, it was submitted that the argument that the Appellant was supporting the family is supported by paragraphs 4 and 5 of the Affidavit in Support of the Summons for Maintenance Pending Suit as the Respondent, stated therein, that the Appellant was providing maintenance by paying K850,000.00 every two weeks which worked out to be K1,700,000.00 per month. That this is corroborated by paragraph 4 of1a the Appellant's Affidavit. That this fact was not also disputed by the Respondent. Further, that the Respondent, in paragraph 5 of her Affidavit, averred that the sum of K1,700,000.00 was last paid on 30" April, 2009 - meaning that there was continuation in the maintenance paid up to the end of April, 2009. Therefore, that since it was not in dispute that the Appellant was providing maintenance up to 30" April, 2009, it was a misdirection for the learned Judge, to have made a finding that the Appellant had failed to maintain his family fully since the filing of the Petition for Divorce especially that the Respondent herself, stated to the contrary in her Affidavit. It was Mr. Mubanga's contention that the learned Judge did not act reasonably as she did not give any justification for awarding the sum of K11,500,000.00 when in paragraph 13 of the Affidavit in Reply, the Respondent had proposed a sum of K10,000,000.00 as monthly maintenance while the Appellant had indicated an amount of K6,000,000.00 which he thought was reasonable and was not based on imaginary profits from the businesses. Therefore, that the sum of K11,500,000.00 ordered by the Court below was off the parameters suggested by the parties. It was further argued that the Court below fell into error by ordering the Appellant to pay the Respondent all the arrears of K11,500,000.00 per month from the date of filing of the Petition into Court. It was pointed outJs that the Appellant's contention is that if as averred and admitted by the Respondent, the Appellant was paying maintenance up to 30" April, 2009, then why should the Court order arrears of the maintenance when the Respondent had already enjoyed the monthly maintenance during the period in question and he was up to date? It was argued that the order by the learned Judge that the Appellant pays the Respondent all the arrears of maintenance at K11,500,000.00 per month from the date of filing of the Petition up to the date of Ruling should therefore, be set aside. On the other hand, in response to Ground one, the learned Counsel for the Respondent, Mrs. Mushota, begun by giving the history of this matter. This was followed by a quotation from the learned authors of Rayden_and Jackson on Divorce and Family Matters’ under the heading: “Maintenance Pending Suit: how assessed; matters to be considered.” It was argued that the learned Authors have stated that the Court has an unfettered discretion toward such sum as it thinks reasonable. Further, that the learned Authors made reference to the case of F vs F* and commented that this is the only case where the law lays down the principle: “as the Court thinks reasonable”16 Counsel also cited what the learned Authors of A_Practical Approach to Family Law” stated on the nature of maintenance pending suit. This is that:- sit is quite likely that one or other spouse will be in financial difficulties as a result of the breakdown of the marriage..... maintenance pending suit exists to bridge the gap between the commencement of proceedings and final determination of the suit and is essentially a temporary measure.” It was submitted that for such an application to succeed, a matrimonial offence must be proved, such as the Appellant's willful refusal or neglect to provide reasonable maintenance for the Respondent and the children of the family. That in the current case, there is no doubt that several matrimonial offences were committed, including the Appellant's flagrant position with a woman called “Sikopo Imutowana” and his leaving of the matrimonial home and he was the Petitioner. Therefore, that he has not come to equity with clean hands as he petitioned for dissolution of the marriage on factors of his own making. As regards the claim that the Appellant maintained the Respondent, it was submitted that this was by payment of a paltry sum of K1,700,000.00 from January to April 2009 and for four months only after which he stopped until the Order by the single Judge of this Court. So, from May, 2009, he did not pay maintenance for his wife and children. Counsel, therefore,a submitted that the question to be determined before this Court in Ground one of this Appeal is whether, having regard to the resources available to the parties by both their sweat and sweet, the man who is in control of those family resources, ought not to fairly share the sweet by maintaining his wife and children, by providing a “reasonable” amount out of those resources in order that they meet their actual needs, since that is the overriding consideration in maintenance pending suit, as per Rayden and Jackson on Divorce and Family Matters’, paragraph 29.7 In response to the Appellant's contention that the learned Judge erred by not properly assessing the Appellant's means in arriving at the award that she did, it was Mrs. Mushota’s contention that the Respondent did give an estimate of the Appellant's income from his various businesses. These are as follows: from the buses — K250,900,000.00; Cyber World Business Centre — K20,000,000.00; BP Filling Stations at Chilanga and Kafue — K200,000,000.00; Two Club Vegas Night Clubs — K250,000,000.00 and FGS Conference Consultants — K32,500,000.00. (See pages 40-44 and 49-56 of the Record of Appeal). Mrs. Mushota submitted that in accordance with the lifestyle and resources the parties had, the Respondent's monthly expenditure is K22,770,000.00 (See page 43 of the Record of Appeal). That although the Court below had asked for means, the Appellant did not show his means8 but that the Respondent had showed the Appellant's sources and the capital assets the parties acquired together. Mrs. Mushota indicated that the Respondent was prepared to receive K10,000,000.00 as monthly maintenance. Citing the case of Patricia Rawnsley and Collin Townsend ve Gwendoline Martha Townsend’, Mrs. Mushota submitted that the learned Judge in the Court below properly directed herself on the facts and the law applicable when she made an order on the maintenance Sum as she did and she cannot be faulted for considering what the parties had together in making a manifestly just maintenance order. Counsel submitted that the Respondent's position was that all these properties and businesses were acquired during the subsistence of the marriage but that the Appellant also bought a property in Uganda, his home country, without the knowledge or consent of the Respondent at Us$92,000.00. Therefore, that Ground one of this Appeal must fail as there is abundant evidence that the Appellant would provide reasonable maintenance to the Respondent and her children In support of Ground two, it was argued that the Court below erred by ordering payment of arrears which the Respondent did not pray for. Citing the Summons for Maintenance Pending Suit and the Affidavit in Support, it was submitted that the Respondent was very specific in her prayer in that310 K11,500,000.00 per month was arrived at and not only in the absence of an affidavit of means, but also arrears which had not been prayed for. It was pointed out that the Appellant, at page 12 of the Record of Appeal, had proposed the sum K8,870,000.00 per month which had not been responded to by the Respondent. That the Respondent, in her affidavit in support, did not pray for a specific figure but for a reasonable percentage of the Appellant's total earnings which had not been fully analyzed and determined by way of assessment before the Deputy Registrar. In response to Ground two, reference was made to Section 52 of the Matrimonial Causes Act (the Act) which provides for maintenance pending suit and stipulates the period such maintenance begins and ends, namely, not earlier than date of filing of the Petition for divorce and not later than date of determination of the Petition for Divorce. It was Mrs. Mushota’s further contention that the Court below took note of the paltry sum of K3,000,000.00 which the Appellant was paying in arriving at the award of K11,500,000.00. Further, that the Court did not order that the K3,000,000.00 paid should be ignored. In response to the Appellant's argument that the Respondent did not ask for maintenance arrears, Mrs. Mushota argued that in fact, thesn Respondent did ask the Court below to consider payment of arrears from the date of the Petition as evidenced at page 8-11 of the Appellant's Supplementary Record of Appeal. Further, that the Court below had power to grant arrears of maintenance under Section 63 (1) of the Act. In response to the Appellant's argument that the Court below was biased by ruling on a matter that had not been specifically pleaded or applied for and the argument that the order for payment of maintenance in arrears was not only unconscionable but also amounted to unjust enrichment and the authorities cited in support thereof, Counsel argued that the Respondent's claim was not about such damages or any damages at all even though the Respondent was entitled to claim damages under Section 11 of the Act. It was submitted that the Appellant appealed against the modest maintenance sum of K11,500,000.00 insisting on paying K8,750,000.00. That the single Judge of this Court ordered the Appellant to pay K8,800,000.00 pending determination of this Appeal. That the Appellant had proposed K10,000,000.00 while the Respondent proposed K22,770,000.00 and showed that the Appellant had capacity to pay. It was Mrs. Mushota’s further submission that Lord Nicholles in White vs White’, reviewed the development of ancillary claims over some thirty years and stated as follows: -wz suuAs a general guide, equality should be departed from only if, and to the extent that there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the Court to focus on the need to ensure the absence of discrimination.” Counsel submitted that the learned Authors of Rayden and Jackson on Divorce’ in paragraph 29.7 put the overriding consideration as: “the actual needs of the parties pending suit.” But that after dissolution of marriage, however, the above principle of “the actual needs of the parties,” is not the overriding consideration but the equality rule, as propounded in Calderbank vs Calderbank® where it was held that: - “Husbands and wives come to the judgment seat ..... upon a basis of complete equality.” Therefore, that ground two should also fail as it is misconceived and without merit, She submitted that it is absurd to talk of unjust enrichment over K2,700,000.00 considering that as a foreigner, the Appellant could not have acquired all the wealth without involving the Respondent. We do not need to recast the rest of the submissions under Ground two suffice to restate Counsel's prayer that the appeal should be dismissed for lack of merit with costs to the Respondent In reply to Ground two, Mr. Mubanga submitted that as shown at page 10 of the Record of Appeal, the Court below ordered the Appellant to pay all maintenance arrears from the time the Petition was filed into Court.413 It was further submitted that in the Respondent's Affidavits in Support and in Reply, it was not indicated that she sought payment of arrears from date of presentation of Petition as can be confirmed by Counsel for the Respondent's submission where she told the Court below that:- nowhere has the Applicant sought maintenance to cover the period before the petition, the Petitioner is in fact saying that the Court should consider maintenance from the 15" December, 2009 which is the date on his exhibit “KK1.” (See page 11 of the Supplementary Record of Appeal). However, that at the hearing of this Application in the Court below, Counsel for the Respondent raised the issue of backdating the maintenance period to date of filing of the Petition as indicated at page 11 of the Supplementary Record of Appeal where she told the Court below that “we beg the Court to take judicial notice that the Matrimonial Causes Act No. 20 of 2007 provides for arrears payable to the date of the petition.” That this was against the principle laid down in Zambia Revenue Authority vs Hitech Trading Company Limi " in which we held that “arguments and submissions at the bar spirited as they may be cannot be a substitute for sworn evidence." In support of Ground three which challenges the award of costs to the Respondent, no arguments in support of this Ground were advanced in the Appellant's Heads of Argument. Amazingly, Mr. Mubanga argued this Ground in the Heads of Argument in Reply and submitted that since theJ14 Respondent did not react or respond to this Ground of Appeal, then the same should be upheld. He repeated this in his oral submissions. In response to Ground three, Mrs. Mushota submitted that she did not submit on Ground three in the Respondent's Heads of Argument purely because the award of costs is the discretion of the Court and these generally, follow the event and that this Court will make its own finding on costs both in this Appeal and in the Court below. We have seriously considered the three Grounds of Appeal together with the arguments advanced in the respective Heads of Argument, the oral submissions by the learned Counsel for the Parties and the authorities cited. We have also considered the Ruling by the Court below. It is our considered view that the major question raised in this Appeal is whether the learned Judge in the Court below was on firm ground in awarding the sum of K11,500,000.00 as maintenance pending suit and by ordering payments of maintenance in arrears effective from the date of filing of the Petition for divorce. We shall deal with Grounds one and two together for convenience and to avoid repetitions. We must also point out from the outset that our intention is not to go into details as the Order appealed against is an interim Order and the divorce Petition has since been determined and the issue of maintenance and property settlement has been referred to the Deputya5, Registrar. As to the authorities cited by both parties in support of Grounds one and two, we do not wish to repeat them suffice to say that we have taken them into account in arriving at our decision. The gist of the Appellant's arguments was that the learned Judge in Court below did not take into account the fact that the Appellant had been paying maintenance pending suit up to April, 2009 despite their being evidence to that effect. Further, that the learned Judge awarded the sum of K11,500,000.00 without any justification when in fact, the Respondent had proposed the sum of K10,000,000.00 in paragraph 13 of her Affidavit in Reply (page 4 of the Respondent's Supplementary Record of Appeal) while the Appellant had proposed, in paragraph 6 of his Affidavit in Opposition, the sum of K6,000,000.00 (page 98 of the Record of Appeal). On the other hand, the thrust of the Respondent's arguments was that the learned Judge did consider the “paltry” sum that the Appellant was giving the Respondent as maintenance. Further, that the Respondent had shown that the Appellant was in control of the family businesses and was capable of contributing more for her and the children’s maintenance. And that as expounded by the leaned Authors of Rayden_and Jackson on Divorce’, the overriding consideration in maintenance pending suit is: “the actual needs of the parties pending suit”, in contrast to the consideration of maintenance after dissolution of marriage where theJ16 overriding principle is the equality rule as propounded in Calderbank vs Calderbank®. We have considered the above arguments. Perusal of the Record reveals that in paragraphs 4 and 5 of the Affidavit in Support of the Summons for Maintenance Pending Suit, the Respondent clearly stated that the Appellant had been providing maintenance by paying K850,000.00 every two weeks which translates to K1,700,000.00 per month. The Appellant also confirmed this in paragraph 4 of his Affidavit in Opposition. Further, the Respondent, in paragraph 5 of her Affidavit, averred that the sum of K1,700,000.00 was last paid on 30" April, 2009. This suggests continuation in the maintenance payment up to the end of April, 2009. The learned Judge ought to have taken this into account — “paltry” as it may have been. Perusal of the Record has also shown that the learned Judge simply awarded the sum of K11,500,000.00 “claimed” by the Respondent's Counsel in her oral submissions. She did not at all give any reasons or explained how she arrived at this sum. This was notwithstanding that the Respondent and the Appellant had proposed the sums of K10,000,000,00 and K6,000,000,00 respectively, in their Affidavits as monthly maintenance. We are also of the firm view that the learned Judge should have been guided by what the parties themselves had proposed and certainly not bys17 merely awarding the sum of K11,500,000.00 mentioned by Mrs. Mushota as 50% of what the Applicant (the Respondent) had claimed as her monthly expenditure without proper assessment. We are also persuaded that had the learned Judge properly directed herself, she could not have allowed some of the items reflected in the Respondent's income and expenditure. For example, at pages 41 to 43 of the Record of Appeal, the Respondent gives her own monthly income and expenditure which includes on expenditure, costs for monthly maintenance of the borehole and servicing of her personal/utility vehicles. Surely, one does not maintain or service a borehole and motor vehicles on monthly basis. There is also no explanation why the Appellant would be expected to contribute to the payment of the drivers engaged in the Respondent's business. There is also no indication that the learned Judge did consider the income and expenditure of the Appellant as she only accepted the estimates of what the Respondent considered the Appellant was making from the businesses. The learned Judge also seemed to have totally cast a blind eye to the evidence on record that the Appellant had been providing maintenance to the Respondent and the children up to 30" April, 2009 and that he continued paying school fees for the children We must also observe that the learned Judge did not apply the guidance that in such applications, the overriding principle is “the actualJ18 needs of the parties” as propounded by the learned authors of Rayden on Divorce’, as nowhere did she mention this principle in her Ruling. In view of the above observations, we agree with Mr. Mubanga’s submission that the learned Judge erred by awarding the sum of K11,500,000.00 without any justification or explanation for deeming it a “modest sum’. We also agree that this was contrary to the parameters the parties suggested in their Affidavit evidence. As regards Mr. Mubanga’s submission that the learned Judge erred by ordering the payment of maintenance arrears from the date of presentation of the Petition for divorce when this was not prayed for or pleaded and Mrs. Mushota’s response that Section 52 of the Act, allows. the Court to order maintenance arrears from the date of filing the divorce Petition and her argument that the Respondent did in fact ask for maintenance arrears from the date of presentation of the Petition; we agree with Mrs. Mushota that the Court has power to order maintenance arrears under Section 52 of the Act. This Section provides that:- ““(1) Ona petition for divorce, nullity of marriage or judicial separation, the Court may make an order for maintenance pending suit. (2) ‘An order made under Sub-section (1) may require either party to the marriage to make to the other such periodical payments for that party’s maintenance and for such periods, beginning not earlier than the date of the presentation of the petition and ending on the date419 of the determination of the suit, as the Court thinks reasonable.” The question however, is whether in this case, the learned Judge was on firm ground in awarding maintenance arrears from the date of filing the Petition for divorce. Paragraph 14 of the Respondent's Affidavit in Support of the application for maintenance pending suit, shows that the Respondent claimed for maintenance pending suit from May, 2009 and not from the date of presentation of the Petition. Paragraph 14 of the Affidavit in Support states as follows:- “That in the premises | beg this Honourable Court to order that the Petitioner pays a reasonable percentage of the total earnings as maintenance with effect from May, 2009.” In view of the above averment by the Respondent, there can be no doubt that the learned Judge misdirected herself by ordering maintenance pending suit from date of presentation of the Petition as that was contrary to what the Respondent requested for. The argument by Mr. Mubanga that this amounts to unjust enrichment of the Respondent is therefore plausible as it has some merit. The learned Judge did not also give reasons for departing from what the Respondent asked for.320 We further agree that the learned trial Judge misdirected herself by failing to take into account what the Appellant had been paying as maintenance, “paltry” as it may have been as was argued by Mrs. Mushota. We further find Mrs. Mushota's contention that the Respondent claimed maintenance pending suit from the date of filing of the divorce Petition to be erroneous as this flies directly in the teeth of paragraph 14 of the Respondent's Affidavit in Support recast above and contradicts her own client's evidence. This also amounts to Counsel testifying from the bar which also flies directly in the teeth of our decision in Zambia Revenue Authority vs Hitech Trading Company Limited’ and a plethora of other authorities in which we have held that: “arguments and submissions at the bar spirited as they may be cannot be a substitute for sworn evidence.” The record further shows that before the single Judge of this Court, the parties, by Consent, agreed on the monthly sum of K8,800,000.00 as maintenance pending suit. We find no reason to interfere with or disturb the sum agreed as the same is reasonable in the circumstances of this case. We, therefore, set aside the award of K11,500,000.00 as monthly maintenance pending suit. We, also set aside, the Order for payment of maintenance arrears from the date of filing of the Petition for divorce. In itsoa place, we order monthly payment of K8,800,000.00 as maintenance pending suit. We, also order that this be effective from May, 2009, until the date of determination of the divorce Petition as provided under Section 52 of the Act, less the amount(s) that has/have already been paid by the Appellant. Grounds one and two of this Appeal, therefore, succeed Regarding Ground three, Counsel on either side did not argue this ground in their respective Heads of Argument. Mr. Mubanga, however, raised this issue in the Appellant's Heads of Argument in Reply and in his oral submissions. Mr. Mubanga’s submission, strangely enough, was merely that since the Respondent did not react or respond to this ground in the Respondent's Heads of Argument, then it should be upheld. Mrs. Mushota’s response was that since the award of costs is in the discretion of the Court and that these generally, follow the event, that this Court will make its own finding on costs. We have considered the above arguments. It is settled that the award of costs is in the discretion of the Court. Although this ground was not argued and in view of the fact that we have upheld Grounds one and two of this Appeal and considering the circumstances of this case, we set_—————— ———————————————————ooOoOEeEeeeeeeee—eere_—e—eEeEeEeEeEeEeEeEeeeeeee “ ‘ s22 Wo a aside the order for costs in the Court below and order that each party bears its own costs in this Court and in the Court below. In summing up, this Appeal wholly succeeds. LP. Chibesakunda | ACTING CHIEF JUSTICE nattara Gomi H.Chibomba SUPREME COURT JUDGE “FM. Lengalenga _ = ACTING SUPREME COURT JUDGE—