REPUBLIC OF MALAWI

MALAWI JUDICIARY

IN THE HIGH COURT OF MALAWI

MZUZU DISTRICT REGISTRY

CIVIL APPEAL CAUSE NO. 43 OF 2011

BETWEEN

JOSEPH SEME APPELLANT

-AND-

MARGRET NYIRENDA
RESPONDENT

CORAM: HON MR JUSTICE D.T.K. MADISE

Mr. A. Siadi Counsel for the Appellant
Mr. C. Ghambi Counsel for the Respondent
Mr. I.Z. Bondo Official Interpreter
Mrs. J.N. Chirwa Court Reporter

Madise, J

JUDGMENT
 Introduction
The parties in this matter were married in 2003 but there is no issue of the
marriage. Due to disagreements which could not be resolved the parties got
divorced at the Rumphi Magistrate Court on 18 July 2009. At divorce the
court below ordered that the Appellant should pay the Respondent the sum
of K50, 000 as compensation and K800, 000.00 as a share from a joint
business. The court further ordered the Appellant to give her the following
household items:

Television Screen
Double bed and mattress
Decoder
DVD player
Blankets and bed sheets
Glass table
Shoe rake
Dressing table
Fan
Curtains
Kitchen ware

The Appellant argue that the Respondent had already collected these items
and that he also gave her a plot at St Dennis and a shop at Rumphi market.
Being unsatisfied with the decision of the lower court he now appeals to this
court against the orders made by the court below.

Appeals in this Court

I’m reminded that appeals in this Court are by way of rehearing. When this
Court is considering an appeal from the court below, it proceeds by way of
re-hearing of all the evidence that was before the court below, the findings of
fact and the law applied and then consider in the light of all that took place
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during trial whether the court below was within jurisdiction in coming to its
conclusion.

Grounds of Appeal
The Appellant filed 6 grounds of appeal which we reproduce as filed.
1. The Subordinate Court erred in law in disregarding the Appellant’s
prayer to call witnesses.
2. The Subordinate Court erred in law in holding that the Appellant should
pay the Respondent the sum of K800, 000 without considering the fact
that the Appellant had already paid the Respondent K300, 000 which
was demanded by the Respondent after the parties had failed to
reconcile their marriage.
3. The said amount ordered by the Subordinate Court is excessive taking
into account that the Respondent had already given K300, 000 after
the parties had failed to reconcile.
4. The Subordinate Court erred in law and fact in ordering the Appellant
to pay K500, 000 by the close of business the same day (13 th June
2011) or else be committed to a civil prison.
5. The Subordinate Court erred in law in failing to consider the fact that
the Respondent had already taken the said property from the
Appellant’s house such as a television screen, mattress, Sony radio,
blankets, a complete set of free to air television, DVD player, home
theatre, bed sheets, set of curtains and all kitchen ware which the
Respondent was demanding again in court.
6. The Subordinate Court erred in law and fact in making an order to pay
K800, 000 without inquiring into the means and capacity of the
Appellant.

Cross Appeal
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 The Respondent crossed appeal and filed two grounds which are also
reproduced as filed.
1. The trial court undervalued the value of the shops, resulting into
unproportional share of K800, 000 for the Respondent.
2. Upon finding that the husband was responsible for the breakdown of
marriage the court did not order any compensation for loss of
marriage.

The Issues
There is basically one issue for determination before me. Whether the court
below was justified in law when it made the order of compensation and
distribution of property.

The Evidence
The evidence before the lower court and according to the Respondent was
that at the time of marriage the parties were very por. They had engaged in
several businesses just to bring food on the table. Later in the years
prosperity came and they open shops in Rumphi. Then in 2009 the marriage
went soar. The Respondent claimed a share of the property.

The Respondent summoned Shame Nyirenda as her witness. He was the

Respondent’s brother. He confirmed that indeed one evening in 2009 the
Appellant ordered the Respondent to close the two shops and hand over the
keys to him. When confronted the Appellant stated that he was no longer
interested in the Respondent.

The last witness was Mercy Kasambala, the Respondent’s mother. She was
called from Karonga to come and sort out the differences in the family. Upon
arrival the Appellant disowned his wife in front of her. He alleged that the
wife was very wasteful. He even challenged that he would share the shops
and the house. He rejected the wife even when the church Bishop arrived.
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The wife left and came back after some few days only to find another woman
who was using her room. She was very disappointed and cried all night but
the husband could not listen. Since that time the Respondent has been
staying with her as a mother.
Defence
In his defence the Appellant said that he was a businessman dealing in
kitchen ware and general distribution of assorted goods. He married the
Respondent in 2003. She went away in November 2008 and in April 2009, or
thereabout. According to the Appellant the Respondent was seen at Paris
Motel and Bottle Store in Luwinga, Mzuzu. He followed and asked her to
return home, but she refused. That she had demanded money from the
Appellant to redeem her clothes from the Motel. He paid K42, 000, but still
she refused to accompany him. She then went to Karonga. After two
months she returned to Rumphi with a child and demanded her household
items. She was allowed to choose.

She chose a mattress, screen, decoder, beddings and all kitchen utensils.
She also got a plot at St Dennis. The marriage ended when she got the
items. She declined to get the materials from the shop but wanted money
amounting to K300, 000 which he paid in three lots; K50, 000; and K50, 000
and lastly K200, 000.

Law and Evidence

It is clear that on entering the contract of marriage the parties never
considered the consequences of separation and there was no evidence of
any express agreement regarding the property. In Nyangulu vs. Nyangulu
(1983) 10 MLR 433 Villiera, J was of the view that:

“it could not be inferred from the mere fact of

marriage that the property had been intended to be
jointly owned; instead, it will be the duty of this court
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 to give legal effect to what, in the changed
circumstance, the parties would have taken as
having intended had they given consideration to the
matter at the point of entry into marriage. It makes
no much difference whether the petitioner had made
financial contribution or merely worked to help
construct the house. It is the duty of the court to
look at the conduct of the parties.”

It is in evidence that the parties started very small as they were poor. Both
were doing business in order to bring food on the table and further develop
their businesses. In the course of the years prosperity came and the parties
opened a big shop in Rumphi. There is no dispute that the other small shop
belonged to the Appellant’s younger brother. It is clear in my mind that the
Respondent’s contribution had been substantial both in terms of money and
money’s worth and the court would therefore infer an intention that she
would have a beneficial interest in the matrimonial property

In Appleton vs. Appleton (1965) 1 WLR 25 a husband appealed against an

order made by the Registrar in response to an application by the wife for the
sale of the matrimonial house which belonged to the wife. The husband
sought a share of the proceeds of the sale on the ground that he had
contributed to its improvement. The Registrar had declined to give him a
share on the basis that although he had contributed to the improvement of
the property, there was no evidence of any bargain or express intention as to
the proceeds of sale. On appeal Lord Denning M.R. ([1965] 1 All. E.R. 44)
said;

“I think that was an erroneous direction on point of

law. As the husband pointed out to us, when he was
doing the work in the house, the matrimonial home,
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 it was done for the sake of the family as a whole.
None of them had any thought of separation at that
time. There was no occasion for any bargain to be
made as to what was to happen in case there was a
separation, for it was a thing which no one
contemplated at all.”

It is the finding of this Court that ordinary people do not go into marriage
while at the same time contemplating as to what will happen when they
separate. Ordinary people do not keep receipts or figures as to how much
they have invested in family property. Therefore it is the duty of this Court to
put meaning to the intention of the parties and make an order as to how the
property should be distributed. In the case of Re: Rogers’ Question (1948) 1
All E.R. at 328-9 Evershed L.J, said;
“In this as in most similar cases, the difficulties of a
judge are aggravated by the circumstances that the
two parties are now extremely hostile to each other
and that the conditions of a broken marriage which
now subsist were not fully appreciated by either
party, even if as the learned judge thought, they
were not absent from the mind of one of the parties,
when the transaction in question was entered into.

When two people are about to be married and are

negotiating for a matrimonial home it does not
naturally enter the head of either to enquire
carefully, still less to agree, what should happen to
the house if the marriage comes to a grief. What the
judge must try to do in all such cases is, after seeing
and hearing the witnesses, to try to conclude what at
the time was in the parties’ minds and then to make
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 an order which the parties in the judge’s finding must
be taken to have intended at the time of the
transaction itself.”

Many a times, men tend to have a novel view of the amount of contribution a
house wife makes to the overall properties a family holds. Many wrongly
believe that the mere fact that a woman was not working puts her in a weak
position when it comes to sharing property. The general principle is that a
house wife is entitled to a good share of the property. Her contribution can
easily be quantified as cooking, washing, cleaning the house, looking after
the husband and children all of which she does without being paid a salary.
The same applies to a jobless man vis-à-vis a working wife mutatis mutandis.

As earlier stated in the above cited authorities, it is trite law that at divorce
parties are entitled to a share of the matrimonial properties. The ratios
depend on the circumstances of each case and the contributions each party
made. It is settled law that a party who simply assisted in organizing or
arranging but never contributed money is equally entitled to a share of the
matrimonial property. A party’s non monetary contribution should therefore
translate into shares which must be easy to calculate in my view.

This Court is therefore convinced that the Respondent had intended to

benefit from the matrimonial house hence these proceedings. Unfortunately
there is no evidence as to the extent of her contribution in the overall
business the family owned. In the case of Kayambo vs. Kayambo (1987-89)
12 MLR at 408 Mkandawire, J stated that;
“In such circumstances where there in no way of
discovering the parties’ intentions and no fair way of
distinguishing between their respective
contributions, the maxim “equality is equity” would
be applied. Accordingly the real property in the
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 present case would be ordered to be sold and the
proceeds divided equally between the parties.”

Although Kayambo vs. Kayambo made a 50% distribution, this Court would
divert a little from the above principle not as a display of disregard for
persuasive precedent, but rather with the view to achieve the justice of this
case. The lower court visited the shop and saw for itself the amount of
goods which were in the shop. In its wisdom the lower court was of the view
that the sum of K800, 000.00 was going to be an adequate share to the
Respondent. The Appellant argue he had already paid her the sum of K300,
000.00. This was brought to the attention of the court below. However the
court below still ordered the Appellant to pay the sum of K800, 000.00 based
on the estimated value of the shop. I was not there and looking at the
reasons the lower court gave, I see no error of law in the findings of the court
below. The Appellant further argued that the Respondent had already
collected her item. The lower did not believe this story. I also find it hard to
believe that she collected her items.

I therefore order that all the orders that the lower court made must be
complied with within 14 days. This appeal was an abuse of the court’s
process and it is dismissed with costs. The cross appeal must also fail. I do
not think the lower court undervalued her share when it ordered the
Appellant to pay her K800, 000.00. The amount was reasonable and so I find.
As to compensation after divorce, the lower court ordered the Appellant to
pay K50, 000.00 which in my mind I find to be reasonable in the
circumstances. To order otherwise will cause an injustice. The cross appeal
was ill conceived. It must fail.

Pronounced in Open Court at Mzuzu in the Republic this 12 th November,

2012.

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Hon Justice D. Madise
JUDGE

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