IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY MATRIMONIAL APPEAL NUMBER 101 OF 2016 (Being matrimonial case number 121 of 2013 before Blantyre Senior Resident Magistrate Court) BETWEEN: CHRESCEUNTIA MSASA APPELLANT AND LEWIS MSASA RESPONDENT CORAM: JUSTICE M.A. TEMBO, Appellant, Present‘and unrepresented Gondwe, Counsel for the Respondent Mtegha, Official Court Interpreter JUDGMENT This is this court’s judgment following a hearing of this matter on appeal against the decision of the lower court. The appellant appeals against the decision of the Senior Resident Magistrate Court sitting at Blantyre by which the lower court granted a real property at area 49 Gulliver to the respondent upon dissolution of the customary marriage between the parties in this matter, The appellant’s view is that she has a stake in that property and that she is entitled, upon a fair distribution of matrimonial property, to a share in the said property. 1The lower court had granted another property, a plot at area 25 which was in issue, to the appellant. On this appeal, this Court is being asked to essentially determine whether the distribution of matrimonial property was properly done in this matter. ‘The lower court considered the evidence of the parties herein on distribution of matrimonial property which was by affidavit. By her streamlined affidavit on distribution of matrimonial property, the appellant indicated as follows. ‘That she married the respondent at customary law on 11" April, 1992. The marriage was registered under the African Marriages (Christian Rites) Registration Act. She added that they lived happily until 1998 when marital problems started. Further, that the parties have two adult children. She stated that beginning in 2005, the respondent rarely assisted the children financially. She added that both her and the respondent were employed throughout the subsistence of their marriage. She then stated that her net salary was more than that of the respondent from 2006 to the date of dissolution of marriage on 20" March, 2014. This was due to the deductions that were effected on the respondent’s otherwise greater gross salary compared to the appellant’s gross salary. She consequently, bore the responsibility of supporting the family financially during the subsistence of the marriage by providing food, utilities, clothing, staff allowances and other household costs. With regard to the area 25 property the appellant stated as follows. ‘That this property is hers and not jointly held with the respondent. Further, that it was not the matrimonial home and that the respondent has never lived there. She added that the respondent has never lived there and promised her that this property which she had purchased would be her own. She stated that she is the sole owner of and contributor to this property. She purchased this property unilaterally from Mr Kachigodo with her own money that she saved from living allowances paid to her as she was studying in the Netherlandsfrom September 2005 to September 2006. She built on the property using her remaining study allowances, savings and other travel allowances. She further stated that this property is in her own name by lease of 14" October, 2008. She added that the respondent never contributed to this property. Rather, that as she was building on this property the respondent was drinking and engaging in adulterous relationships. Further, that the respondent never visited this property until May, 2014. She then stated that she has relied on the rentals from this property since January, 2008 and will continue to do so until she retires from work. With regard to the area 49 property the appellant stated as follows. That this property is joint property that should be valued, sold and have its proceeds distributed equally between her and the respondent. She added that this property was the matrimonial home beginning in May 2012. Further, that it was acquired in 2007 and took five years to construct to a habitable level. The appellant stated that she made substantial contribution to this property. She stated that from 2005 to 2012 she made substantial contribution towards the house provisions and children’s upkeep because the respondent’s salary was heavily deducted due to multiple loans and debts. She added that during the acquisition and development of the property, the respondent's salary was heavily deducted due to education advances, two car loans, maintenance of a vehicle at Likuni garage and repayment of a certain external travel allowance on a failed official foreign trip. She stated that she also contributed to this property by sending money when she was not in Lilongwe, by purchasing building materials, paying labourers and supervising construction. She exhibited receipts for cash deposits she made to the respondent's bank account in August and September 2011 amounting to K35 000 as well as receipts dated between 2011 and 2012 for purchase of some building materials amounting to K158 000.She stated that the money used to purchase this property came from a joint account held by herself and the respondent. She exhibited a receipt for a K40 000 part-payment on the purchase of the area 49 property exhibit CMM9 dated 27 December, 2007. She stated that this receipt shows she helped pay for the area 49 property. The appellant also stated that she contributed K900, 000 of her gratuity towards this property. There was no evidence to support this last item though. The appellant further stated that she also contributed to the family by paying the children’s school fees and for other household provisions such as food, utility bills, house servants during the time she was studying in the Netherlands. She stated that she also sent 1000 Euros to the respondent during this same time. She added that during this same time the respondent was using her ATM card to withdraw her salary. The appellant then stated that during the subsistence of the marriage, the respondent never built a house for her at her village as is required under custom but instead encouraged her to join him to build the area 49 property to be the matrimonial home. The appellant sought an order of the lower court awarding her the area 25 property. And further, that the area 49 property be valued and sold, with proceeds to be divided equally between her and the respondent with the option of that either side have the opportunity to buy out the other’s share. On his part, the respondent also filed an affidavit stating as follows. He stated that the matrimonial property in area 49 was never intended to be jointly owned. He stated that by way of example, in February, 2007 the petitioner acquired land in area 25 and started upgrading it and claimed exclusive ownership of the same. And that in July, 2007 he applied for a plot at area 49 and was offered the same in August, 2007. He exhibited an offer letter and a lease agreement in his name. He added that he bought a motor vehicle PE 1878 and the appellant also bought her own ZA 76 despite his protests.He bought a plot of land in area 46 and the appellant also bought her own in area 17. He then stated that contrary to assertions by the appellant, the area 49 property was bought through a loan that he got from his employer and the bank totalling K487, 677. He attached the loan facility letter as exhibit LM 5. The respondent conceded that he had a joint account with the appellant in 2003, but stated that the same ceased to be when the appellant took it over for her own use in 2004. He however wondered why the appellant did not show a withdrawal slip from that account during the time of the purchase of the area 49 property to show that indeed proceeds from the joint account were used in the purchased as claimed. The respondent stated that he strongly believed that proceeds from the joint account were used to purchase the area 25 property. He added that the appellant was mean with the truth when she claims that she supervised the construction of the area 49 property, paid labourers, purchased building materials as she was busy with her own project at the area 25 property which she claims to have singlehandedly purchased in February, 2007. The respondent added that, further to the foregoing, the issues that led to the dissolution of the marriage came to a head in 2006 when the two were technically on separation and each used to do their own thing including sleeping in separate beds that it was impossible for the petitioner to contribute to the area 49 property as claimed. The respondent attached the appellant's affidavit in support of divorce that shows that acrimony started in 2006 to the time of divorce. The respondent denied the receipts alleged by the appellant to be for materials at area 49, He asserted that these were probably for the appellant’s area 25 property. He added that even if it were to be granted that the receipts were for materials applied to the area 49 property the same could not entitle the appellant to 50 percent share of the said property. He added that the appellant does not know the value of the area 49 property. The respondent then asserted that prior to moving in the area 49 property, he rented a matrimonial home in the same locality and was paying for the household as the 5appellant was away for studies for two years between 1998 and 2000. He added that between 2000 and 2004 the appellant was away to field trips and he does not know where her earnings went. He then stated that he received 1000 Euros from the appellant which he applied for home use but was adjudged to pay back by the lower court at an equivalent of K500 000. He paid back the same. The respondent then stated that the appellant claimed that the area 25 property was only a plot until he produced photos of two semi-detached rental houses standing on the plot. He stated that he was earning money through official travel. And that he moved into the area 49 property in March 2012 whilst it had no electricity and the appellant was away. He rejected that the ceilings that the appellant allegedly bought were applied to the area 49 property and asserted that the property remained incomplete to date. ‘The respondent then assefted that the appellant had not proved that the properties at area 25 and area 49 were jointly acquired. Or that the appellant contributed anything substantial to the acquisition or development of the area 49 property to entitle her to a 50 per cent share. Or that she is entitled to any share of the area 49 property since the appellant at an earlier time that the respondent acquired the area 25 property and applied all her resources to the same. The lower court then considered the decision of this Court, in Mvula v Mvula matrimonial cause number 6 of 2014 (High Court) (unreported) that it has jurisdiction to distribute any matrimonial property whenever a customary marriage has been dissolved regardless of the fact that the value is beyond the maximum value of K2, 000, 000 set for the lower court’s jurisdiction in relation claims before that court. In fact, the lower court observed that the High Court had returned this matter back to the lower court for distribution of matrimonial property following the earlier agreement of the parties to have the same determined in the High Court.The lower court also noted that this Court had stated in the Mvula case that on distribution of matrimonial property following dissolution of customary marriages, the principles that apply on distribution of property on dissolution of marriages entered into under the Marriage Act do not apply. Additionally, the lower court correctly pointed out that the Constitutional provision that there must be a fair distribution of matrimonial property held jointly by the parties to the marriage rules supreme on distribution of matrimonial property on dissolution of customary marriages. This is in line with section 24 (1) (b)(c)(i) of the Constitution. After considering the affidavit evidence, the lower court decided that upon a fair distribution of the matrimonial property held jointly herein as provided under section 24 (1) (b)(c)(i) of the Constitution, the plot at area 25 should be for the appellant as she singlehandedly acquired the same in 2007 using allowances she got when she was doing her further studies in the Netherlands and that the plot at area 49 Gulliver should be for the respondent as he singlehandedly acquired the same from Lilongwe City Assembly in June, 2013. The lower court also observed that it was in the best interests of the parties’ infant grandchild that the said grandchild lives with the respondent at the area 49 property. The appellant now appeals against the decision of the lower court and her three grounds of appeal are as follows. That the lower court erred in proceeding to distribute matrimonial property that was way beyond the jurisdiction of the lower court in that the said matrimonial property falls under the Registered Land Act. That the lower court erred in law and in fact by taking into consideration extraneous and irrelevant factors when it arrived at its decision, namely, that the female child of the parties herein has a baby who is a grandchild to both parties and that it is in the best interest of the said baby that she lives with the grandparent at the area 49 property when in fact the baby has its own parents. That the lower court erred in misinterpreting the effect of the decided case of Mvula v Mvula which, among others, stated that principles applicable on distribution ofproperty on dissolution of marriage under the Marriage Act do not apply to situations on distribution of matrimonial property on dissolution of customary marriages. On the hearing of civil appeals, this Court has the following powers as provided in section 22 of the Courts Act Ina civil appeal, the High Court shall have power— (@) to dismiss the appeal; (b) to reverse a judgment upon a preliminary point and, on such reversal, to remit the case to the subordinate court against whose judgment the appeal is made, with directions to proceed to determine the case on its merits; (©) to resettle issues and finally to determine a case, notwithstanding that the Judgment of the subordinate court against which the appeal is made has proceeded wholly ‘on some ground other than that on which the High Court proceeds; (4) to call additional evidence or to direct the subordinate court against whose judgment the appeal is made, or any other subordinate court, to take additional evidence; (©) to makg any amendment or any consequential or incidental order that may be just and proper; () to confirm, reverse or vary the judgment against which the appeal is made; (g) to order that a judgment shall be set aside and a new trial be had; (h) to make such order as to costs in the High Court and in the subordinate court as may be just. The appeal is by way of rehearing. That means this Court will subject the evidence before the lower court to a fresh scrutiny. Of course, this Court is always mindful that when sitting as an appellate Court it should never lose sight of the fact that the lower court had the advantage of determining the credibility of the witnesses first hand where a matter went to trial and witnesses testified. On this appeal, this Court will examine the affidavit evidence that was before the lower court relative to the three grounds of appeal. This Court will deal with each ground of appeal in turn.‘The first ground of appeal is that the lower court erred in proceeding to distribute matrimonial property that was way beyond the jurisdiction of the lower court in that the said matrimonial property falls under the Registered Land Act. This ground of appeal is untenable as submitted by the respondent. The lower court has jurisdiction to distribute matrimonial property upon dissolution of a customary marriage. It matters not what the matrimonial property is or to what value the same is. Distribution of matrimonial property is an ancillary order that only follows and does not determine the jurisdiction of the lower court given by statute to dissolve marriages entered into at customary law. The foregoing position has been held in various cases cited by the respondent including in Kalwmpha v Kalumpha Civil appeal number 1 of 2010 (High Court) (unreported) and Mvula v Mvula matrimonial cause number 6 of 2014 (High Court) (unreported). In any event, it is the High Court which remitted the present matter for distribution of matrimonial property to the lower court. If anything, the appellant is aggrieved by that decision of the High Court should have appealed against that decision to the Supreme Court of Appeal. For the foregoing reasons, the first ground of appeal therefore fails. The second ground of appeal is that the lower court erred in law and in fact by taking into consideration extraneous and irrelevant factors when it arrived at its decision, namely, that the female child of the parties herein has a baby who is a grandchild to both parties and that it is in the best interest of the said baby that she lives with the grandparent at the area 49 property when in fact the baby has its own parents. The appellant submitted that it was wrong and erroneous for the lower court when distributing the matrimonial property, in particular the area 49 property, in this matter to consider the interests of the parties’ grandchild who has its own adult parents. ‘The respondent argued that did not err by considering the interests of the grandchild.The respondent argued that the main factor considered by the lower court on the granting of the area 49 property to the respondent was that the parties herein intended that the said property be solely for the respondent. He argued that the interests of the parties’ grandchild were considered as an ancillary factor given that the grandchild and her mother had then been staying at the area 49 property for some time. And that it was therefore in the best interests of the grandchild to stay in the area 49 property in line with section 23 of the Constitution. This Court agrees with the appellant that the lower court’s consideration of the fact that the infant grandchild of the parties had anything to do with the distribution of matrimonial property in this matter was erroneous indeed in the circumstances. As correctly submitted by the appellant, the infant grandchild of the parties herein has got its own adult parents who are responsible for its welfare. ‘The parties herein have no legal obligation in the circumstances to be saddled with the interests of their infant grandchild upon distribution of their matrimonial property on dissolution of their marriage. The section 23 of the Constitution is not applicable in this matter given that the lower court was not concerned with a decision involving the grandchild of the parties to this matter. The lower court found that the property at area 25 was singlehandedly acquired and owned by the appellant. This decision is well supported by the evidence of both the appellant and the respondent in this matter. The appellant clarified that she has no problem with this part of the lower court's decision. The lower court then decided that the property at area 49 was singlehandedly acquired and developed by the respondent. The appellant is not happy with this aspect of the decision. The lower court should have only properly applied the principle, that it alluded to, that there must be a fair distribution of matrimonial property held jointly by the parties to the marriage on distribution of matrimonial property on dissolution of customary marriages. This is in line with section 24 (1) (b)(c)(i) of the Constitution which the lower court cited. 10By alluding to the matter of the best interests of the grandchild as pertinent with regard to the area 49 house the decision of the lower court was tainted by an extraneous factor. The second ground of appeal therefore succeeds. The lower court’s decision was affected by the extraneous and irrelevant factor which was not in issue before the lower court, namely, the best interests of the parties’ grandchild. The third ground of appeal is that the lower court erred in misinterpreting the effect of the decided case of Mvula v Mvula matrimonial cause number 6 of 2014 (High Court) (unreported)which, among others, stated that principles applicable on distribution of property on dissolution of marriage under the Marriage Act do not apply to situations on distribution of matrimonial property on dissolution of customary marriages. On this ground of appeal, the appellant contended that despite the lower court recognizing that the marriage herein was entered into at customary law, the lower court did not consider issues of customary law in distributing the area 49 property. In particular, the appellant contended that the lower court overlooked the fact that the marriage herein was entered into under the matrilineal custom and that the respondent did not build’a house for the appellant upon marriage as is required under that relevant customary law. The appellant submitted that although the respondent alludes to the case of Mvula v Mvula matrimonial cause number 6 of 2014 (High Court) (unreported), the respondent has misunderstood how the lower court applied the said case in this matter by saying that the lower court considered the issue of fairness in awarding the area 49 property to the respondent. She added that the issue of fairness cannot be said to have been achieved where the lower court completely disregarded the issue of intention, contribution and conduct of the parties towards the acquisition of the area 49 property. She contended that this Court should make a fair distribution of the area 49 property after considering the principle of faimess and considering the intention, conduct and contribution of both parties in the acquisition and development of the area 49 uproperty. She added that this would be in line with the decision of the Supreme Court of Appeal in Sikwese v Banda MSCA civil appeal number 76 of 2015 (unreported). On his part, the respondent contended that the lower court in arriving at its decision on distribution of matrimonial property following dissolution of the customary law marriage considered fairness as the cardinal principle which is applicable in all types of marriages as held in the case of Sikwese v Banda. He added that to ensure fairness the court must look at all the circumstances of the case of a particular case and such circumstances differ from case to case and include the intention of the parties on acquisition of the property and their contribution towards its development. see Sikwese v Banda. The respondent then contended that the lower court applied the correct cardinal principle on distributing the matrimonial property of the customary marriage in this matter. He contended that the lower court did not err or misinterpret Mvula v Mvula since in that case the Court acknowledged that at customary law the disposition of matrimonial property after dissolution of marriage is based on the principle of fairness which same principle was applied in the present matter. This Court notes that in the Mvula v Mvula case it was stating something in defence of preservation of customary law. This is what this Court stated at page 17 This Court does not agree to the application of principles applicable to distribution of property on dissolution of marriages under the Marriage Act to situations on dissolution of customary marriages. It is important to bear in mind that customary law is distinet from statutory law on marriage. It is actually wrong to uncritically apply principles from the statutory marriage scheme to marriages under customary law. Failure to take the important step to discover what a particular customary law says on an issue of distribution of ‘matrimonial property is actually a breach of the rule of law since the customary law to which the parties ought to be subjected is not followed by the Court, Customary law is not homogeneous. It is important that the integrity of customary law is preserved subject only to Constitutional dictates, This was a word of caution against wholesale application of jurisprudence on distribution of matrimonial property on dissolution of marriages entered into under the Marriage Act to customary marriage settings. 2This last statement was valid then and is valid in relation to this matter. This is true to the extent that, the Court has to consider the customary law requirement on the husband to provide a house for the wife at her home particularly under the matrilineal system of marriage. This should come into play on distribution of property in some cases where the requirement is not fulfilled by the time of dissolution of marriage. However, it must be noted that we now have the Marriage, Divorce and Family Relations Act which provides specifically for how matrimonial property is to be distributed and defines what this matrimonial property is. Contrary to the assertions by the respondent, that Act is not applicable in this matter since the marriage herein was celebrated before the coming into force of the said ‘Act. See section 3 Marriage, Divorce and Family Relations Act which provides clearly that the Act only applies to marriages entered into on or after the coming into force of the said Act. For a detailed discussion on this position see Kay v Kay matrimonial case number 11 of 2015 (High Court) (unreported). It remains to be seen how that Act impacts on distribution of matrimonial property on dissolution of customary marriages. Coming back to the facts in this matter, as correctly pointed out by the appellant, the lower court did not consider the fact that the marriage herein was entered into under the matrilineal custom whereby the respondent was required to build a house for the appellant. That house was never built. This was not fair. And to that extent, the lower court misapplied the Mvula case that it had alluded to. Customary law must, where relevant and proved, affect the distribution of matrimonial property jointly held. As noted by the respondent, the lower Court however correctly identified the principle that, in terms of the Constitution, the cardinal principle is that there must be a fair distribution of jointly held matrimonial property each time a marriage is dissolved. The said principle was however not properly applied. The lower court should have considered that indeed the respondent had not built a house for the appellant as required under custom. This fact was completely ignored and was not taken into account. The lower court did not consider that the appellant and the respondent took the area 49 property as the matrimonial home. BThe respondent contended that it was impossible for the petitioner to contribute to the area 49 property as claimed. The respondent attached the appellant’s affidavit in support of divorce that shows that acrimony started in 2006 to the time of divorce. However, this Court notes that the lower court failed to notice the receipts marked as exhibit CMM 11(a) and (b) which show that the appellant deposited in the respondent’s bank account K25 000 and K10 000 on 15 August, 2011 and 16 September, 2011 respectively. This is evidence showing that the appellant was still sending money to the respondent and contributed her money despite the relationship problems. The lower court was persuaded by the respondent that that the appellant had not contributed anything substantial to the acquisition or development of the area 49 property to entitle her to a 50 per cent share. Or that she is entitled to any share of the area 49 property. However, the evidence shows clearly that it is more probable than not that the appellant indeed contributed to the purchase of the property at area 49 Gulliver as shown by a receipt she Kept for her payment of K40 000 exhibit CMM9. This Court notes that exhibit LM 5 shows that the bank loan facility was for K300, 000. This was granted on 12 September, 2007. Then a payment of K250 000 to Malawi Housing Corporation was made on 14 September, 2007 as per the attached receipt. In exhibit CMM 9, a K40 000 payment was made on 27 December, 2007 reducing the K187 677 balance on the purchase price for the area 49 plot to K147 677. The appellant claims to have made that payment. There is no proof that the respondent paid for the area 49 property singlehandedly using the bank loan and employer's loan. This is because there is no proof of his employer's loan at all. He has proved that he paid K250 000 from the K300 000 bank loan. In the circumstances, this Court is of the view that there is a customary law matter affecting the distribution of matrimonial property in that the respondent had not yet built a house for the appellant as required at custom. On the evidence, it appears that the respondent encouraged the appellant to invest in the matrimonial home in the area 49 property. 14The fairness principle enshrined in section 23 of the Constitution requires that this factor be taken into account on distribution of the matrimonial property. As a matter of fact, the appellant has shown that she contributed to the acquisition of the property at area 49 by making a part-payment of K40 000 then. This was about 8 per cent of the purchase price of K487 000. The appellant also contributed to building expenses as shown by some receipts totaling K193 000 over the five-year period of development of the area 49 property. Additionally, the appellant provided for the home. That eased the respondent's burden. The appellant’s contribution is substantial All the foregoing factors show that the appellant has an interest in the area 49 property contrary to the findings of the lower court. The area 49 property was therefore jointly held matrimonial property amenable to a fair distribution. Despite the views of this Court in Mvula v Mvula on application of principles on distribution of marriage under the Marriage Act to distribution of property on dissolution of customary law marriages, those views are subservient to those expressed by the Supreme Court of Appeal. The Supreme Court has subsequently to Mvula v Mvula, emphatically decided in Sikwese v Banda, that the principle that equality is equity applies on distribution of matrimonial property jointly held under a customary marriage where both parties made contribution but in unascertainable proportions. This Court is bound by that decision. This entails that principles on distribution of property on dissolution of marriages under the Marriage Act may therefore apply on distribution of such property on dissolution of customary marriages. The Supreme Court had the following to say when it upheld the lower court’s decision on distribution of jointly held matrimonial property on dissolution of a customary marriage in Sikwese v Banda 10.2.5.1 With respect to the disposition of the Nyambadwe property, we also note that in the court below, among other things, it was submitted, on behalf of the Appellant, that the court should apply the principle laid down in Kayambo v Kayambo, namely, that where both parties contribute towards the acquisition of a matrimonial home but in 15unascertainable proportions, and there is no evidence of intention regarding the extent of beneficial interest, the court should apply the maxim "equality is equity", and order that the parties own the house in equal shares and, consequently, a 50% distribution for each party would be justified (page 9 of the judgment of the court below). 10.2.6 The court below, having considered the tention of the parties and the contributions made by the Respondent and the Appellant, found that the "most equitable distribution of the Nyambadwe house would be to apportion each party a 50% share in the property", 10.2.7 We have reviewed the evidence and circumstances pertaining to the acquisition of the Nyambadwe property and, in principle, we see no reason to disagree with the approach adopted by the court below, and the determination of the disposition of the Nyambadwe property. In our view where, as in the instant case, it is conceded that the Nyambadwe property was intended to be jointly owned as a matrimonial home, and further that the Appellant made some contribution to the acquisition of the Nyambadwe property, but the extent of that contribution cannot be ascertained with any degree of specificity, the prudent approach is to award each party a 50% share in the property. This Court finds, in the circumstances of this matter, that both the appellant and the respondent contributed to the area 49 property. It was their matrimonial home. However, the actual level of contribution by each spouse is unascertainable in the circumstances. Suffice to say that the appellant contributed significantly contrary to the assertions by the respondent. By reason of her contribution to the acquisition and development of the area 49 property, the appellant acquired an interest in the same. This Court finds that, in view of the substantial unascertained contribution by the appellant, fairness requires that each party be adjudged to hold a 50 per cent interest in the said area 49 property. Consequently, this Court orders that the property at area 49 be valued within 21 days, by a licensed valuer to be appointed by the agreement of the parties failing which this Court may be asked to appoint one. Thereafter, the property shall be sold and each party shall get a 50 per cent share of the proceeds of sale after defraying expenses associated with the valuation and sale. The parties may however agree that either party buy out the other’s interest in the area 49 property after the valuation. 16In the foregoing premises, this appeal succeeds with costs to the appellant to be assessed by the Registrar if not agreed. Made in open court at Blantyre this 3" November 2017. v7