Mtambalika v Mtambalika (Matrimonial Cause 56 of 2008) [2009] MWHC 232 (13 March 2009)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY MATRIMONIAL CAUSE NO. 56 OF 2008 BETWEEN: ELLEN MTAMBALIBA ............... ccc cceese cece cseeeceeeees PLAINTIFF -AND - BAUTI MTAMBALIBA.............. ccc ccceeee scence neon eees RESPONDENT CORAM: THE HONOURABLE MR JUSTICE J. S. MANYUNGWA Plaintiff, present, unrepresented Defendant, present, unrepresented Mr Manda-— Official Court Interpreter ORDER Manyunewa, J This matter comes to this court for the court to distribute the matrimonial property. It is not coming to this court on appeal. On 19" November, 2008, the Chief Resident Magistrate Court sitting at Blantyre dissolved the marriage between the plaintiff and the respondent and gave custody of the four children of the marriage to the mother. The children were aged between 16 and 6 years. I heard the parties on 12" January, 2009 and I reserved my order. In her testimony before me the plaintiff told the court that they had four children in the marriage and that they were staying at Ndirande and that quite apart from domestic properties which included a Television Screen, Radio, DVD Player, One Chair, a Display Cabnet, Pushing Tray, Washing Basket and Kitchen Utensils and Bed Sheets. The couple also had two houses, one a four door house, and the second one, a three doors house. According to the plaintiff the first house was built in 1991 while the second house of 3 doors was built in 1995. The plaintiff hails from Chingeni Village, T/A Kwataine, Ntcheu district. She is 33 years old. The plaintiff also told the court that when she asked the defendant to build a house for her at her home village at Chingeni, the defendant told her that they had to build a house in town despite the fact that the defendant was given a place on which to build a house by the plaintiff’s aunt whilst for the garden he was told to go and look for one. In his testimony in this court, the defendant told the court that the first house, the one with four doors was bought by him in 1983 and that therefore it was not true that the said house was built in 1991. At that time, he told the court that he was working for the then David Whitehead and Sons now Mapeto David Whitehead Limited. The defendant said the second house, the one with three doors was bought or built in 1989 whilst the plaintiff had gone home. The defendant told the court that they had their chinkhoswe for the marriage in 1991. Yet, he testified that he married the plaintiff in the same year of 1991. Surprisingly, the defendant contradicted himself and then told the court that in 1999 it is when the couple had their chinkhoswe. Then as if confused the defendant told the court that he had been mistaken, apologized and said that he actually married the plaintiff in 1991 and that the marriage advocates from both sides met and agreed on formalities and the couple then begun to stay together, and they then had their first child Lloyd, then Gracian, followed by Pharless and Madalitso was the last. The defendant then told the court that during the trial at the Blantyre Magistrates court he had told the court that he had sold Television Screen and had also sold the radio but that the display cabnet was still there. In answering questions from the plaintiff the defendant told the court that the couple had their chinkhoswe after their first child was born. When it was put to him as to whether or not the couple had their chinkhoswe on 9" July 1991, after the defendant had proposed to the plaintiff on 7" January, 1991, he simply said the plaintiff had forgotten, but when quizzed further as to whether the 1“ house did not have only one door in 1991 the defendant admitted and said that the said house was extended when the plaintiff had already moved in to stay with him. The defendant further admitted that the said house was extended after the birth of their first son. When asked as to whether they did not buy the second house together the defendant admitted 2 indeed that at the time the second house was bought, the two were already staying together, he simply said “yes you were there’. And when the court enquired as to when the second house was bought the defendant said he bought it whilst already married to the plaintiff. The defendant further told the court that he currently occupies the first house with four doors together with three tenants whilst the plaintiff occupies the second house with three doors, and like the defendant she too lives with two tenants. The defendant further told the court that he collects rent from the three tenants who live with him in the first [four] door house, and also from the tenants in the second house in which the plaintiff lives. Further the defendant admitted that truthfully speaking there was no house at the plaintiff’s village, that he never built a house for the plaintiff at her home village. To begin with I wish to note that since custody of the children was granted to the mother, correctly in my view, and since it is usually the case that custody of very young children is granted to the mother, it follows in my view that house — hold property should naturally be given to the mother otherwise young kids who were used to the comfort of the matrimonial home would suffer. In the matter before me the parties told the court that they had some matrimonial property, as earlier on mentioned and, in my considered view, it is only fair then that the plaintiff should be given these matrimonial properties. In any case these were the same properties that were in the matrimonial house, which the plaintiff used before the dissolution of the marriage. Moreover to make matters worse, the defendant sold some of the household properties like the Television Screen and the radio during the time of the trial at the Chief Resident Magistrate Court, and yet he knew at the time that there was an action pending which hinged on the marriage and by extension the matrimonial property and custody of the children. Consequently, I do order that the household property be given to the plaintiff. Further as was ordered by the lower court, it is my order that the defendant should comply with the order of the lower court as regards maintenance of the children. As regards the issue of the house, the position at customary law is that a man who marries under a chikamwini or otherwise called matrilineal system of matriage is under an obligation at customary law to provide or construct a house for his wife at the wife’s home. The rationale of this principle is not difficult to see. Under the matrilineal or chikamwini system of marriage, upon the celebration of the marriage the man, [the husband] is required to 3 leave his home and parents and take up residence at the wife’s home — usually in the village and he then becomes a ‘m’kamwini’ hence the name chikamwini. Now it is only logical that the man should then build a house for the family, as part of his larger obligation to fend for the family. Upon marriage the man is usually allocated a piece of land by the wife’s side on which to cultivate, and feed his family, on top of fending for necessities of life. The wife too has certain domestic obligations like cooking for the husband, washing clothes, looking after the general cleanliness of the house and the children if any. In the instant case, the defendant admitted that since he married the plaintiff he never built a house for the plaintiff at her home in Ntcheu. However it is clear, based on the testimony of the two when they appeared before me that the couple had two houses, the first house of 4 doors is occupied by the defendant and his three tenants. The plaintiff on the other hand is occupying the second house of three doors together with two tenants. The defendant collects rentals from the tenants who reside in both of these houses, which I think is unfair, as the wife too has to look after the children. In the circumstances, and by reason of the foregoing, it is my considered judgement, that since the defendant did not build a house for the plaintiff, and since the couple had two houses aforementioned, it is only fair that the wife should get one of the two houses namely the one with three doors, and I so order. For avoidance of doubt, I do order that the wife should take and occupy the house that has three doors as her own, together with her children. As regards costs, the same are in the discretion of the court and looking at the situation of the parties, I make no order as to costs. Pronounced in Open Court at Principal Registry, this 13" day of March, 2009. Joselph S. Manyungwa UDGE 4