Mwalwanda v Mwalwanda (MSCA Civil 51 of 2008) [2009] MWSC 42 (21 July 2009)

Gry COUR IN THE MALAWI SUPREME COURT OF APPEAL LL oe ; —eeany | Sista High Coum Hv aptaoal7 wt 3008) Se Vr, 2: "BETWEEN: | NU DOREEN DAWILA MWALWANDA.......c.cccccccceceeseseee APPELLANT (nee CHAVULA) and LUGHANO OWEN MWALWANDA........cccccccececeee RESPONDENT CORAM: THE HON JUSTICE TAMBALA SC, JA THE HON JUSTICE MTAMBO SC, JA THE HON JUSTICE TEMBO SC, JA Mr Chilenga of counsel for the Appellant Mr Silungwe of counsel for the Respondent Mrs Matekenya, official interpreter JUDGMENT Tambala SC, JA i fy wr The parties to this appeal were spouses. The appellant was wife of the respondent. The matter started in a 1° Grade Magistrate Court at Lilongwe where the appellant brought a matrimonial suit seeking divorce from the respondent , on grounds of the husband's adultery. The suit was successful and the divorce was granted. Both parties were pleased with that outcome. But the 1° Grade Magistrate, after dissolving the marriage, proceeded to distribute property of the family, without hearing evidence from the parties. He gave a house on plot No. 47/4/722 to the appellant and undeveloped plot No. 47/2/263 to the respondent. The respondent was unhappy with the court’s distribution of the property since his wish was that the rental income from the house should be distributed equally among his four children. He appealed to the High Court at Lilongwe District Registry. The appeal was successful. Chombo J., in the court below reversed the Magistrate's decision on the distribution of property. bo She gave the undeveloped plot to the appellant and ordered that ownership of the house on plot No. 47/4/722 be given to the four children of the respondent jointly. The appellant takes the view that the decision of the learned Judge is unfair to her. She therefore brought the present appeal. There are three grounds of appeal. Grounds one and two are closely related and basically raise one and the same issue, namely, that the learned Judge did not consider documentary evidence contained in a supplementary affidavit which was filed in the High Court. It is, therefore, convenient to deal with these grounds together. The manner in which evidence was brought in the High Court was curious and unsatisfactory. The matter came to the High Court on appeal. It is not the duty of a court on appeal to hear or receive evidence. It was, therefore, incumbent upon the High Court to send the case file back to the trial Magistrate with a direction that he should receive evidence from the parties relating to the distribution of property and decide the matter on the basis of such evidence. However, it would seem that the decision of the Magistrate on the issue of distribution of the family property was reached without trying the issue on merits. Therefore in terms of Order 59 rule 10(2) the court on appeal could allow evidence by affidavit to resolve the issue. Counsel for both parties supported the procedure. It must also be appreciated that in civil matters the jurisdiction of the court on appeal is to re-hear the matter. The court below was, therefore, entitled to call for evidence by affidavit on the issue before it in order to dispose of the case fairly and without causing an undue delay. The respondent filed an affidavit in the court below. The appellant also filed two affidavits. There is RESPONDENT’S AFFIDAVIT EVIDENCE ON APPEAL. This is undated. There Is another affidavit tiled RESPONDENT’S AFFIDAVIT IN REPLY. This one is dated 26™ June 2006. It must be borne in mind that in the court below the present appellant was the respondent. The respondent’s affidavit in the court below clearly showed that he acquired plot No 47/4/722 in 1997 from the Malawi Housing Corporation and that it was allocated to him in his own name. That fact is fully supported by a document LM6 attached to the affidavit. The respondent said, in the affidavit, that he began developing the plot with funds realised from the proceeds of the sale of his other plot No. 47/2/86. The respondent said, in his affidavit, that at the time that he acquired and commenced construction of the house, the appellant was on interdiction and remained on interdiction for two years, from 1997 to 1999. The information relating to the appellant’s interdiction is well supported by documents attached to the respondent's affidavit. There is therefore evidence that during the appellant’s interdiction the respondent was solely responsible for supporting the family. It is also the affidavit evidence of the respondent that in order to complete the construction of the house he obtained a loan of K200, 000*from New Building Society. Again, that fact is well supported by a document: LM7. The affidavit evidence showed that in 2003 he was advised by the New Building Society that the balance on the mortgage loan was K95,984.34 He then asked his tenant to be paying the entire rent direct to the New Building Society. It was also the respondent's affidavit evidence that in July 2004 the New Building Society informed him that the mortgage loan was fully repaid and that there was an overpayment of K48, O00Pwhich was repaid to him. These facts are fully supported by documents attached to the affidavit and marked as LM9, LM11 and LM 12. The distinct feature of the respondent's affidavit evidence was that the statements made in the affidavit were clear, logical and well supported by clearly marked documents. In contrast with the appellant’s evidence, the first affidavit filed by the appellant, which was undated, was not supported by any document. It consisted of bare allegations made by the appellant. Perhaps, realising the inadequacy of that affidavit, the appellant filed another document which was called affidavit in reply. The affidavit in reply, which the appellant claims was ignored by the learned Judge in the court below, contained some documents. But most of those documents were irrelevant or immaterial. The affidavit still contains vital statements unsupported by documents. For instance, the appellant claims, in paragraph two, that while she was on interdiction she was running various businesses. She has not produced a single document to establish the existence of such businesses or the income that she was making. Because, its one thing to run a business, but it is another thing to run a successful business. There is no evidence showing any profit the appellant was making. Then in paragraph 12 the appellant claims to have made payments to the New Building Society. But there is no document evidencing such payments. There is no receipt from the New Building Society to support payments claimed by the appellant. Is the appellant truthful as a witness? In paragraph five of her affidavit the appellant claims that the loan which the respondent obtained from the New Building Society was not for the construction of the house on plot No. 47/4/722, but for running a butchery business. But this seems to be contradicted by the document from New Building Society evidencing the loan. The document shows the mortgage account number and also the relevant plot number. Nowhere in that document is the business of a butchery mentioned. The appellant attached a document marked D. D. C.1 to support the allegation made in paragraph five. But again, the document does not mention butchery business. It is also unclear whether the New Building Society is in the business of supporting butchers with loans. In paragraph ten of her affidavit the appellant claims that she obtained loans from her employers to pay the mortgage loan. She has attached documents DDC6 — DDC11 to support the claim. What those documents show is that she applied for the loans from her employers and was paid the money. Crucially, what the documents do not show, is what the appellant did with the money. There is no document evidencing payment to New Building Society. There is no document evidencing receipt of money by the New Building Society. The appellant said that she was engaged in running various businesses. Could that money be required to support such businesses? The appellant's affidavit in reply, filed in the court below, was inadequately supported by vital and relevant documents. The learned Judge in the court below was entitled to come to the conclusion that the respondent had successfully made out his case that he acquired the property and constructed the house as his personal property. The learned Judge was also right when she came to the conclusion that the appellant had failed to prove her claim to the property and that the extent of her contribution to the acquisition of the property was unclear. Counsel for the appellant takes the view that the learned Judge, in the court below, ignored the evidence contained in the RESPONDENT’S AFFIDAVIT IN REPLY. Surprisingly learned, Counsel! for the respondent holds the same view. The two affidavits sworn by the appellant are part of the appeal record. There is no evidence that the affidavit in reply was not part of the case record when the matter was considered by the learned Judge in the court below. The first affidavit filed by the appellant had no document to support any of the statements made in the affidavit. It was the second affidavit, the affidavit in reply which had some 14 documents attached to it, DDC1 - DD14. In her judgment the learned Judge said | have considered all the documentary evidence attached to the two affidavits in order to arrive at what | think is an equitable determination on this matter. The affidavit of the appellant has attached to it all the pertinent documentation that would convince any reasonable person that what he has submitted has the necessary backing. lf the learned Judge considered documentary evidence attached to two affidavits, then she must have examined the respondent’s affidavit and the appellant's affidavit which had documents attached i.e. the RESPONDENT’S AFFIDAVIT IN REPLY. The learned Judge must have therefore, seen the affidavit in question. But she was simply not convinced that the documents were pertinent and that they supported her claim to the property. Having examined all the affidavits which were available before the learned Judge we hold the same view as did the learned Judge in the court below. The documents attached to the appellant’s affidavit in reply were simply unconvincing. In the third ground of appeal it is argued that the learned Judge erred when she applied the case of Malinki veMalinki 9 MLR 441 to the present case. The substance of the argument was “that the facts \ in the Malinki’s case were different in that the wife in the Malinki’s , NS N as 6 case made no contribution to the acquisition of the property while in the present case there is evidence of the wife’s contribution. The learned Judge cited two cases in the judgment. The first case she cited was Chibweya v6)Chibweya 10 MLR 279. She (2 quoted a passage in the case as follows — lmLe 279 i f I eaisaid nan at The duty of the court in application of this nature is to discover as far as it can the intention of the parties at the time the property was acquired. The learned Judge went on to state that the question of what the intention of the parties was would have to be decided on the __ facts. She observed that in the case of Malinki v-Malinki_ 9 MLR [(9:97¢-8> 441 where the man had bought and developed a plot in his own ~~ iA euilt name with his own money the court ruled that the intention was that he owned the property exclusively. Our clear view is that in reaching her decision, the learned Judge was guided by the principles stated in the Chibweya and Malinki cases. The learned Judge did not state in her judgment that the Malinki case was similar with the present case. The learned Judge, in our view, simply took into account relevant principles of law - expressed in the two cases in the course of reaching her decision. We find no fault in her approach. In conclusion, we are compelled to state that we find nothing wrong with the manner in which the learned Judge distributed the property and the order which she made in favour of the four children of the respondent. We affirm the decision of the court below. The appeal is dismissed with costs. MADE in open court this 2{@day of July 2009 DU, D. G. TAMBALA SC, JA | JMTAMBO SG; aN SSN me a A. K. TEMBO SC, JA