This case has been forwarded to the High Court for the purposes of reviewing a judgment and order made by a magistrate of the second class at Chililabombwe on 20th July, 1978. On the 15th June, 1978, Jenala Nambeye, a complainant, had sworn out an affidavit before the learned magistrate in support of an application for divorce. The complainant stated that she was married to one Chileshe Chirwa on the 26th September, 1974, in a church; that on the 28th August, 1977, the respondent husband had expelled the complainant from the matrimonial home on the grounds that he did not want her; that on the 18th September, 1977, the respondent wrote her a letter through his church confirming that he did not want her as a wife; and that the complainant had made up her mind to divorce the respondent since he was not interested in her. She further stated that there were two children of the family. The learned magistrate then caused a summons to be issued against the respondent
Chileshe Chirwa and he was requested to appear before the court at Chililabombwe on the 26th June, 1978. On the 20th July, both the complainant and respondent appeared before the learned magistrate. After the complainant and the respondent had given their evidence the learned magistrate delivered judgment in the following terms:
This application has been brought by the respondent's wife here in after called applicant seeking divorce on grounds of prolonged separation and that the respondent had once written her a letter confirming that he no longer loved her. The respondent asserts that he had discovered some African herbs with the applicant for which she could not account for and that was the cause of the dispute. On the other hand he is not keen on a divorce. The court has read the letter written to the applicant by the respondent. This coupled with the one year period of no-union has prompted this court to grant a decree nisi, for a period of six months.
Decree Nisi granted for 6 months. If no union is effected during this period, the couple will proceed to the High Court for a decree absolute.
It is not clear from the face of this record whether the learned magistrate entertained the application for dissolution of the marriage under customary law or under the Marriage Act, Cap. 211. Certainly there was no evidence given by either of the parties as to whether they had under gone a marriage in accordance with customary law or a marriage under the Marriage Act. It is possible that the learned magistrate was acting under a mistaken presumption that the parties had been married under the Marriage Act because the complainant had stated in her affidavit that she had married the respondent in a church. When one looks at the form of the order made by the learned magistrate it becomes obvious that he was under the impression that he was determining a matrimonial dispute in respect of a marriage solemnised under the Marriage Act, Cap. 211.
It should be stated quite emphatically that a subordinate court has no original jurisdiction to hear and determine proceedings in respect of marriages solemnised under the Marriage Act, Cap. 211, or in respect of what is known as common law marriages. Jurisdiction to hear and determine proceedings for divorce and other matrimonial matters and causes arising from marriages under the Marriage Act or under the common law are to be exercised only by the High Court. Section 11 (1) of the High Court Act, Cap. 50, provides: The jurisdiction of the Court in divorce and matrimonial causes and matters shall, subject to this Act and any rules of Court, be exercised in substantial conformity with the law and practice for the time being in force in England.
Subordinate courts of the first, second and third classes do not have original jurisdiction in matters affecting the validity or dissolution of marriages under the Marriage Act - See para. (iv) of the proviso to s. 20 (1), s. 21 end para. (iv) of the proviso to s. 22 of the Subordinate Courts Act, Cap. 45. Subordinate courts have original jurisdiction in matters relating
to marriages under African customary law. It should be said that original jurisdiction in respect of marriages under African customary law is also exercised by the local courts under s. 5 and s. 12 of the Local Courts Act, Cap. 54. However, in terms of s. 56 of the Local Courts Act, subordinate courts of the first and second class are also entitled to hear and determine appeals from judgments or decisions of local courts and these would include appeals in respect of matrimonial disputes decided by local courts under African customary law.
Thus when one considers the record in this case it is quite clear that the learned magistrate was purporting to exercise jurisdiction in matrimonial proceedings which were expressly excluded from the subordinate courts. His action was ultra vires his powers since he had acted in excess of his jurisdiction. Jurisdiction in respect of matrimonial proceedings under the Marriage Act, Cap. 211, or marriages under the common law are the exclusive prerogative of the High Court. In those circumstances there was no valid legal basis for the learned magistrate to entertain and determine the application for dissolution of marriage in the form he did. Before proceeding to hear and determine the case, he should have considered whether the marriage between the parties was a marriage solemnised under the Marriage Act, Cap. 211, or whether it was a marriage under customary law. Had he directed his mind to this fact, he would have ascertained whether or not he had jurisdiction to hear and determine the application. If it was a marriage under the Marriage Act, Cap. 211, jurisdiction would have been excluded but if it was a marriage under customary law then he would have had jurisdiction. In the exercise of my powers of review, I would hold that the entire proceedings in this case are null and void. For the removal of doubt, I hereby quash and set aside the order made by the learned magistrate.
Order set aside