Advanced Law indaba

Question...
In Zambia, same-sex marriages are outrightly prohibited and not recognized as valid marriages. However, in the USA, these marriages are recognized as valid. If a same-sex couple married in the USA travels to Zambia for tourism purposes, is there marriage invalidated upon their arrival in Zambia?

Question...
A pregnant Zambian woman who had travelled to the USA for a visit gets on a plane back to Zambia. The Plane takes off from the US and as it flies over Congo, she gets into labour and gives birth to a baby boy whilst still on the plane. 20 minutes later, the plane lands in Zambia and she is taken to Zambian hospital for further treatment. Legally speaking, would you consider the child to have been born in the USA, Congo or Zambia in determining citizenship by birth?😅

"...the wishes of a deceased person can only be fulfilled where he leaves a Will. Otherwise, the intentions and wishes of a person who dies without leaving a Will die with him." - Court of Appeal tells children who were trying to convince the Court to honour the words of their father on how he wanted his property to be distributed after his death (Mike Kasanda Mwila and Anor v Mavis Kasanda (APPEAL NO. 233/2019) [2021])

A renowned Doctor’s attempt to save a life ends in Court: The case of a Blood Transfusion on a Jehovah’s Witness patient which costed the government of Zambia ZMW 300,000.00 - Kachasu v Manda and Others (Appeal No. 163 of 2021) [2023]

Graphics: JS Media

Buying Land? Protect Yourself from Scams by Taking These Essential Precautions

Land fraud is common and costly. Before you part with your hard-earned money, ensure you take the following steps to safeguard your investment:

1. Conduct a Physical File Search at the Ministry of Lands:

Before signing any contract of sale, request copies of the seller’s NRC or ID and the Certificate of Title. Conduct a search on the physical file at the Ministry of Lands and confirm that the seller’s identity details and title particulars exactly match what is on record. Any inconsistency, no matter how small, is a red flag. Do not proceed with the purchase until those inconsistencies are resolved.

2. Obtain a Computer Printout from the Ministry of Lands:

For a small fee, the Ministry issues a computer printout showing the full transactional history of the property. Use it to confirm that the seller is the lawful owner and that the land is free from encumbrances such as mortgages, caveats, or disputes.

3. Carry Out Beacon and Boundary Verification:

Engage a registered land surveyor to verify that the land on the ground corresponds with what is described on the Certificate of Title and to clearly identify the property boundaries. This step helps prevent future boundary disputes and costly litigation.

4. Make Independent Enquiries from Neighbours and Occupants:

If the property has occupants, establish the nature of their interest. Do not assume they are mere tenants. Where possible, also enquire from neighbouring property owners whether they know the seller to be the true owner.

5. Lodge a Caveat Immediately After Signing the Contract:

Once the contract of sale is executed, promptly place a caveat on the property. A caveat protects you against double sales and prevents the seller from using the land as collateral without your knowledge.

6. Avoid Paying the Full Purchase Price at Once:

Unless exceptional circumstances apply, pay the purchase price in instalments. This allows you to begin the title transfer process before full payment and reduces the risk of the seller disappearing after receiving the entire amount.

7. Engage a Lawyer Where Possible:

If your resources allow, instruct a lawyer to guide you through the transaction. Professional legal assistance significantly reduces risk and ensures compliance with all legal requirements.

A little diligence today can save you years of disputes tomorrow.

“Officer I am dying, I am in pain.” These words, uttered by a severely burnt man while admitted in the Intensive Care Unit prompted police to record a dying declaration in which he stated that his ex-girlfriend, Mirriam Chilosha, had poured petrol on him and set him ablaze. That declaration became the Centre-piece of a murder case that culminated in the ex-girlfriend being sentenced to death in Mirriam Chilosha v The People - Appeal No. 87/2021

The facts of the case were that on the night of 14th to 15th December 2019, Mirriam Chilosha (The appellant) went to her then secret lover (the deceased)’s house at Floriana Lodge in Solwezi. It was testified that the two were believed to be having a secret affair as they each had a fiancé.

Witnesses placed her at the premises late at night and in the early hours of the morning. Shortly thereafter, smoke was seen coming from the deceased’s house and the appellant was observed running out partially undressed. Not long after, the deceased’s house was gutted in fire and the deceased sustained extensive burns and was rushed to Solwezi General Hospital where he was admitted to ICU.

While in hospital, he consistently told close relatives, his employer and a police officer that his ex-girlfriend, Mirriam Chilosha, had twice poured petrol on him and ignited it. When interviewed by police, he stated that he believed he was dying and had no hope of recovery and explained that the attack followed a dispute after he told the appellant that they should end their relationship and focus on their respective fiancés. He later succumbed to his injuries, with post-mortem results confirming death from severe burns covering about seventy percent of his body.

At trial, the appellant denied the allegations and gave a different account. She claimed that the deceased attempted to take his own life after she refused to abort a pregnancy and that he accidentally caught fire when she tried to stop him from lighting a match. She maintained that she ran out of the house to seek help and later went to the bus station, denying any intention to harm the deceased or burn the house. On appeal, her counsel argued that the conviction was unsafe because it was based on weak circumstantial evidence and an unreliable dying declaration allegedly made several days before death, and that her version of events was reasonably possible and should have raised doubt.

The Court of Appeal examined the law on dying declarations and affirmed that such statements are admissible where the deceased had a settled and hopeless expectation of death. The Court found that the deceased’s words, his critical condition in ICU and the severity of his burns clearly showed that he believed death was imminent, making it highly unlikely that he would falsely implicate the appellant.

The Court also found the appellant’s version implausible and inconsistent with her conduct noting her failure to raise alarm, her flight from the scene, and her attempt to distance herself from events. It held that the evidence irresistibly pointed to the appellant as the person who poured petrol on the deceased and set him on fire. Consequently, the Court upheld the conviction and death sentence for murder.

“There is no way, a man who is not married, or does not believe to be married, can file for divorce in a Court. Divorce from what? One files for divorce when they are married and want to be divorced from someone” – The Supreme Court tells man who sought to deny having been married to a woman with whom he had stayed with for over 7 years, had two children with her and had paid k1,000 towards elopement and dowry. (Malema v Nyondo Appeal No. 64 of 2014, Supreme Court of Zambia, Judgment delivered 28 March 2017)

In the year 2000, the Appellant “man” and the Respondent “Woman” eloped (left home secretly in order to get married) which led to them cohabiting. In December 2002, the Respondent’s family convened a meeting at which the Appellant was charged ZMW 1,100 for elopement and ZMW 400 for dowry, totaling ZMW 1,500. A further meeting was held in 2003, during which the Appellant’s family paid ZMW 1,000 towards the agreed amounts leaving a balance of ZMW 500.
After paying the said deposit, the Appellant and Respondent continued to live together as husband and wife for over seven years during which period they had two children, one born in 2003 and the other in 2009. The Parties even obtained a marriage certificate from the local Court.

In 2011, the Appellant commenced divorce proceedings in the Local Court. Divorce was refused, and the parties were advised to reconcile. Thereafter, relying on the Supreme Court decision in Fenias Mafemba v Esther Sitali where the court had held that there is no valid customary marriage if dowry has not been paid, the Appellant withdrew his divorce case and instead instituted proceedings in the High Court seeking a declaration that the relationship between him and the Respondent was mere cohabitation and not a customary marriage on the basis that he had not paid the dowry price. The High Court dismissed the claim, prompting the appeal to the Supreme Court.

Before the Supreme Court, the Appellant contended that no valid customary marriage existed because no dowry or marriage consideration had been paid. He argued that the ZMW 1,000 paid was solely for elopement (damages for running away with the lady to secretly get married) and not marriage dowry. He argued that under customary law, marriage only comes into existence upon payment of dowry relying on the holding in Fenias Mafemba v Esther Sitali among others.

Although there was no opposition filed against the appeal, the Supreme Court found that the Appellant’s conduct was fundamentally inconsistent with his claim that no marriage existed. The Court held that a person who does not consider himself married cannot logically seek a divorce, stating that divorce presupposes the existence of a marriage. The Appellant’s initiation of divorce proceedings was therefore strong evidence that he regarded the union as a marriage.

The Court further examined the documentary evidence and concluded that the payment of ZMW 1,000 could not reasonably be construed as elopement only given that at the time the sum was paid, there was no mention of whether the sum was for elopement or dowry. The Court took the position that the deposit was made towards both dowry and elopement because if the Appellant had intended to pay for elopement only, he should have specified when paying.

The Supreme Court upheld the High Court’s decision and dismissed the appeal in its entirety. It held that a valid customary marriage existed between the parties and that the Appellant was still the husband to the Respondent.

Pay the Bank K139,911.23 for the K9,000.00 Loan You Got from it - Court Orders Debtor

In Investrust Bank PLC v Samuel Banda (t/a Lukusu General Suppliers) & Another (Appeal No. 198 of 2015), the dispute arose from an overdraft facility granted by Investrust Bank in April 2006.

The Bank advanced K15,000.00, repayable with compound interest at 37% per annum. The borrower repaid only K6,000.00, leaving an outstanding principal balance of K9,000.00. Due to prolonged default spanning several years, interest continued to accrue strictly in line with the agreed contractual terms. By November 2013, the outstanding amount had escalated to K139,911.23.

The Bank commenced court proceedings to recover the debt and to enforce its security over mortgaged property situated in Chipata.

The High Court initially intervened, expressing concern at how the loan had grown and ordered a revaluation of the account, striking out what it considered to be penal and unconscionable interest. Dissatisfied with that decision, the Bank appealed to the Supreme Court.

The Supreme Court of Zambia allowed the appeal in its entirety and set aside the High Court’s ruling. The Court entered judgment in favour of Investrust Bank and ordered the debtor to pay K139,911.23, being the outstanding principal and accrued interest as at the date of filing the action. The Court further ordered that the amount would continue to attract contractual interest until full payment and directed that payment be made within 30 days, failing which the Bank would be at liberty to foreclose, take possession of, and sell the mortgaged property without further court order.

The Supreme Court drew a clear and important distinction between compound interest and penal interest. It reaffirmed that: Compound interest is lawful and enforceable where there is an express contractual agreement between the parties. Penal interest, by contrast, is unlawful and unenforceable, even where parties purport to agree to it, as it is prohibited by banking regulations.

The Court found that the overdraft facility letter expressly provided for compound interest, and that the borrower had freely signed and accepted those terms. The High Court therefore erred in law by equating compound interest with penal interest. Crucially, the Court emphasized that a borrower cannot escape contractual obligations merely because interest accumulates over time due to prolonged default. The escalation from K9,000.00 to K139,911.23 was not illegal or unconscionable—it was the natural and foreseeable consequence of time, default, and agreed interest terms.