Namandwa v Namandwa (Civil Appeal 42 of 2018) [2020] MWHCCiv 23 (27 August 2020)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL APPEAL CASE NUMBER 42 OF 2018 (Being Matrimonial cause number 3560 of 2016 before the Senior Resident Magistrate Court at Blantyre) BETWEEN: JEAN NAMANDWA APPELLANT AND DAPHTER NAMANDWA RESPONDENT CORAM: JUSTICE M. A. TEMBO, Alide, Counsel for the Appellant Malijani, Counsel for the Respondent Mankhambela, Official Court Interpreter JUDGMENT 1. This is this court’s judgment following a hearing of the appeal in this matter. The appellant appeals against the decision of the Senior Resident Magistrate Court sitting at Blantyre by which the lower court distributed the matrimonial property following dissolution of her marriage to the respondent. The appeal is opposed by the respondent. 2. The parties started cohabiting in 1992 and got married in 1998 under a customary law. 3. The lower court heard the evidence of the parties on distribution of matrimonial property. 4. The property in question comprised three houses. The house at Mandala in Blantyre (the Mandala house). The house at Old Naisi in Zomba (the Zomba house). And a house at area 12 in Lilongwe (the Lilongwe house). The evidence is essentially that all the three houses were purchased by the respondent through mortgages. 5. The Mandala house was purchased in 1998 at K710 500.00 through a mortgage. The respondent has developed the said house by putting up a brick wall, a guest house, water tank and a bore hole. 6. The Zomba house was purchased in 2006 at K4 000 000.00 through a mortgage. The Lilongwe house was purchased in 2009 at K13 500 000.00 through a mortgage loan. 7. The appellant was not employed for the greater part of her marriage since the respondent asked her to be a full-time housewife considering that he was in a well-paying job and would provide for her and the family. Around 1993 she had sought leave from her work at ADMARC to do some studies resulting in her obtaining a Bachelor Degree but never went back to work at the insistence of the respondent. Whilst staying at home, she was looking after the family and also notably after one of the children of the marriage who needed a lot of care due to a medical condition between 2001 and 2012. That child sadly was deceased in 2012. 8. She asserted that she should get the Mandala house since she cannot get back to work and the said house holds dear memories for her. She asked that she also get the Zomba house for her own and the two children’s maintenance. The respondent sought the Mandala house asserting that he prepared it for his retirement. He said the appellant could get either the Zomba or Lilongwe house with a recommendation for the former. He also submitted that the Lilongwe house should be managed for the benefit of the children of the marriage. 9. There appears to be difficulties in the relationship between the respondent on one hand and the two children that are due to go to do tertiary education. It was indicated in evidence that the two will go to the Polytechnic in Blantyre but that they wished to study outside the country. 10. The respondent indicated that in 1995 he had encouraged the appellant to go back to work at ADMARC where both worked prior to their involvement and by then the respondent had resigned from ADMARC but the appellant declined to do so on account of having had a child out of wedlock. He asserted that after the appellant got her Degree she was unlucky to get any job. 11. The lower court then distributed the matrimonial property. It ordered that the respondent get the Mandala house since he renovated it in contemplation of his retirement. It ordered the appellant to get the Zomba house. It then ordered the respondent to manage the Lilongwe house for the benefit of two of the three children of the marriage who are above 18 years but in need of going to do tertiary education. 12. Being dissatisfied with the lower court’s decision, the appellant filed several grounds of appeal. 13. On the first ground of appeal the appellant asserted that the lower court misdirected itself on point of fact when it awarded the respondent the Mandala house instead of awarding it to the appellant. 14. On the second ground of appeal the appellant asserted that the lower court misdirected itself on a point of law by awarding the respondent the Mandala house on the basis that it was bought and renovated by the respondent for purposes of a retirement home. 15. On the third ground of appeal the appellant asserted that the lower court erred in failing to give the appellant the Mandala house as the appellant spent all her valuable years in the said house and is not marketable on the job market because of taking care of the family and sick child and keeping the family together. 16. On the fourth ground the appellant asserted that the lower court erred in putting the Lilongwe house under management of the respondent instead of a neutral person or institution. 17. On her part, the appellant made the following submissions in support of her appeal herein. She observed correctly that during the hearing of the appeal, both parties herein as well as the court reached a consensus, upon consideration of legal principles, that the issue of jurisdiction of the magistrate’s court in distributing property exceeding K2 000 000.00 could not be sustained. It was further directed by the court that issue of custody ought not to have arisen herein since the children are of age of majority. 18. She then correctly asserted that in light of the above, the appeal wholly rested on the remaining ground, that of distribution of the matrimonial property, specifically the Lilongwe House, Mandala House and Zomba House. 19. The appellant observed that section 3 of the Marriage, Divorce & Family Relations Act, 2015 provides for the application of the said Act in the following terms, namely, that this Act shall apply to marriages entered into on or after the day it comes into operation, but Part IX shall apply to all marriages regardless of the date they were celebrated. 20. Further, that section 50 of the Marriage, Divorce and Family Relations Act, 2015 which is under Part IX of the said Act provides that the non-monetary contribution of each spouse shall also be taken into account when determining the contribution of a spouse to the maintenance of the other spouse or children of the marriage. 21. The appellant then observed that section 68 of the Registered Land Act provides remedies available to a chargee where there has been default of payment by a charger in the following terms: (1) If default is made in payment of the principal sum or any interest or any other periodical payment or of any part thereof, or in the performance or observance of any agreement expressed or implied in any charge, and continues for one month, the chargee may serve on the chargor notice in writing to pay the money owing or to perform and observe the agreement, as the case may be. (2) If the charger does not comply, within three months of the date of service, with a notice served on him under subsection (1), the chargee may – a) appoint a receiver of the income of the charged property; or b) sell the charged property. 22. She asserted that section 71 of the Registered Land Act gives a chargee the power of sale and in the exercise of such power, a chargee may effect a transfer that can be registered and upon such registration, the interest of a chargor passes to and vests in the transferee. 23. She then submitted that in the case of Sikwese v Banda, MSCA, Civil Appeal No. 76 of 2015 the Supreme Court of Appeal laid down principles to be considered in the disposition of property on the dissolution of marriage in the following manner: Where property is owned exclusively by one spouse and the other cannot demonstrate any contribution to its acquisition or improvement, the other spouse cannot claim any share in that property. The mere fact of marriage does not create an inference or presumption that property would be jointly owned. Whether or not in any particular case property is held jointly is a matter of fact, and will depend on the circumstances of the case, including the conduct and intention of the parties in relation to the acquisition of the property; it is not a mere conclusion to be drawn from the existence of marriage. There must be evidence that the property is held jointly. Fairness is a cardinal principle in cases of disposition of property on dissolution of a marriage. However in order to ensure fairness in the disposition of property upon dissolution of a marriage the court ought to take into account all the circumstances of the particular case, and the circumstances that need to be considered in assessing fairness differ in each case. The non-monetary contributions that a party makes towards the house fall within the “do it yourself”; things that a wife or husband does for the benefit of the family without altering the title to, or interest in, the property. 24. She then observed that in Kishindo v Kishindo, Civil Cause No. 397 of 2013, Justice Mwaungulu (as he then was) was persuaded by the principles laid down in the cases of White v White and Miller v Miller: McFarlane v MacFarlane, especially the remarks of Lord Justice Nicholson in Miller v Miller; McFarlane v McFarlane who stated as follows: ………. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently, both parties work. Sometimes it is the wife who is the money-earner and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party……. If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no basis in favour of the money-earner and against the home-maker and the child-carer. 25. She also observed that in Yasin v Yasin, Matrimonial Cause No. 18 of 2015, Justice Madise on 24th July, 2018 held as follows: Many a times, people tend to have a novel view of the amount of contribution a house wife/husband makes to the overall properties a family owns. Many wrongly believe that the mere fact that a woman or man was not working puts him/her at a disadvantage or a weak position when it comes sharing of property. The general principle is that a house wife/husband is entitled to a good share of the property. His/her contribution can easily be quantified as cooking, washing, cleaning the house, working at the farm or plot and generally looking after the husband/wife and children all of which he/she does without being paid an allowance or salary. 26. She also observed that in Kishindo v Kishindo, (supra) Justice Mwaungulu (as he then was) had this to say on maintenance upon divorce: Disposal of property after marriage dissolution comingles with the wife’s maintenance at the level of fairness. Specifically, section 24 (1) (b) (ii) of the Constitution requires the court in making a fair maintenance order to consider the husband’s means and the children’s needs. The latter does not apply to the case here. The former connotes that what the husband gets on a fair disposal principle could be affected by the fair maintenance principle. There could be claw back on what the husband gets on the fair disposal principle. Once again, I do not think that the section should be understood as being discriminatory against men. The assumption must be that generally matrimonial property would be disposed to ensure maintenance of spouses. As and when that occurs, the wife is entitled to a fair maintenance. Any other construction would comport that in circumstances where the woman maintains the man, the man on divorce cannot seek such maintenance from the wife. The section must mean that where both spouses can maintain themselves or the husband cannot maintain the woman it is not fair to require the husband to maintain the the wife. Where the wife cannot maintain herself or where the woman can only maintain herself to a lower standard from her marriage, section 24 (1) (b) (ii) of the Constitution requires fair maintenance. 27. The appellant then submitted that during the hearing of the appeal it was directed by this Court, upon noting that there was reference made by the appellant to some provisions of the Marriage, Divorce and Family Relations Act, 2015, that both parties had to address it on the applicability of the said Act in the present case where the marriage was celebrated before the said Act came into force. 28. The appellant brought to this Court’s attention the provisions of part IX of the Marriage, Divorce & Family Relations Act, 2015 which applies to all marriages irrespective of when they were celebrated. She submitted that it therefore follows that the said provision applies to the present case herein. With specific reference to section 50 of the said Act, which makes mention of the non-monetary contribution of a spouse which has to be taken into account when determining the contribution of a spouse to the maintenance of children, she wondered whether we can say that the inclusion of non- monetary contribution therein was by accident. She holds the view that the inclusion of the said non-monetary contribution by the legislature was by design and intended to address cases like the present so as to ensure fairness as envisaged by the Constitution of the Republic of Malawi. 29. She then submitted that from the foregoing, the issue of non-monetary contribution cannot be overlooked as the respondent, premised on the Sikwese case would like the court to believe. She posed a question, that, if indeed non-monetary contributions fall within the “do it yourself” things as the Sikwese case suggests, would the legislature have provided for the same as a consideration in the maintenance of children? She begged to differ. 30. In the premises, she submitted that the Marriage, Divorce & Family Relations Act, 2015 is applicable herein as regards the issue of non- monetary contributions which contributions ought not to be treated as trivial. She therefore called upon this Court to consider the issue of non- monetary contribution of the appellant as relevant to the present case. In the case of Yasin v Yasin, Justice Madise quantified what non-monetary contribution relates to by stating that contribution can be quantified as cooking, washing, cleaning the house, working at the farm or plot and generally looking after the husband/wife and children all of which he/she does without being paid an allowance or salary. She observed that in the Sikwese case, the Supreme Court also defined the term non-monetary contribution as things that a wife or husband does for the benefit of the family. 31. She submitted the that legislature deliberately provided for the consideration of non-monetary contributions in section 50 of the Act with the intention of curing the evil that arises in circumstances like the present where a spouse is not in a position to contribute financially. It is her submission that her non-monetary contributions should be considered in the determination of the appeal herein. 32. She then submitted on the lower court’s order with respect to the Mandala house. She submitted that the lower court in distributing this property, did acknowledge that there was no evidence to show that when the property was acquired it was only meant to benefit the appellant or the respondent. As such, the lower court was left with two options, to look at the amount of resources used when acquiring the property and the principle of equity and fairness. She noted that, however, in holding that the property was acquired by the respondent, the lower court indicated that the appellant had not contributed anything towards the purchase of the property provided by the respondent. And that, with that in mind, the lower court distributed the Mandala house to the respondent on the ground that the respondent works in Blantyre hence he should not have found himself a destitute when he had well planned for his life while working. 33. It is the appellant’s argument that the said reasoning was against the tenets of equity and fairness. She contended that the court erred in not considering the appellant’s non-monetary contributions and also the fact that it was the respondent himself who necessitated the appellant’s inability to contribute financially to the acquisition of the property due to his conduct of restraining the appellant from working and further prolonging the appellant’s unemployment by not assisting their sick child which led to the appellant staying at home to look after their sick child. 34. She contended that these foregoing facts ought to have been considered by the lower court as per the Sikwese case which provides that fairness is a cardinal principle in the disposition of property on dissolution of a marriage and that in order to ensure fairness, the court ought to take into account all the circumstances of the particular case since circumstances that need to be considered in assessing fairness differ in each case. She observed that the lower court clearly failed to consider all the circumstances of the case herein as per the above. 35. She submitted further that, without an iota of doubt, the circumstances in the present case and that of the Sikwese case are distinguishable in that the appellant herein failed to contribute financially to the acquisition of the Mandala house due to the fact that the respondent instructed her to stop working as such she had no source of income. She noted that she had no other choice but to submit to the respondent’s demands for fear of being physically abused. She asserted that the respondent has violent tendencies which are ably captured in the videos presented before this Court. Further, that the respondent, through his conduct made sure that the appellant had no chance whatsoever of returning to work by refusing to provide their now deceased child, with the required medical support/attention even though the respondent had the means to do so. She asserted that she had no other choice but to stay home and take care of their late child who needed specialized medical attention. 36. She then pondered whether, having conducted himself in such a manner, is it fair for the same respondent to come around and state that she did not contribute financially to the acquisition of the Mandala property? She asserted that the respondent does not have clean hands and equity would not come to his aid but to her aid. Further, that fairness would require that the Mandala house be distributed to her. She added that even if we were to pay a blind eye to the fact that the she failed to financially contribute to the Mandala house, equity and fairness would demand that the Mandala house be distributed to her on the ground that her contribution was non-monetary in nature. She asserted that she took care of the home, looked after the children and the respondent, cooked and washed. And that this was her non-monetary contribution towards the Mandala house as per the definition provided in the Sikwese case which held that non-monetary contributions that a party makes towards the house are things that a wife or husband does for the benefit of the family. She contended that, accordingly, her non- monetary contributions were towards the Mandala house. 37. She then submitted that, in addition to the above, the lower court also failed to consider her health condition. She observed that it was in evidence in the lower court that she has a long term and chronic back injury which resulted from the respondent’s conduct of subjecting her to domestic violence. And that consequently, she has a spinal injury which she sustained in September 2010 as per exhibit marked “JWS 20” which was presented in the lower court. She stated that she receives treatment from Queen Elizabeth Central Hospital which is the only hospital that has MRI facility in the country. She noted that the respondent wishes to advance the argument that she can be travelling from Zomba to Blantyre in seeking medical attention. She asserted that, however, the respondent is blind to the fact that she is unemployed and has no business that would generate income for her to meet things like fuel expenses. 38. She then asserted that the lower court dwelt on the idea that since the respondent works in Blantyre, he would find himself destitute if he was not allocated the Mandala house. She asserted further that even if we are to pause here, on what basis did the lower court reach such a conclusion that the respondent would be destitute? She pointed out that the evidence in the lower court overwhelmingly pointed to the fact that the respondent is financially sound/stable in light of his retirement insurance where he will receive a gratuity of K 8,000,000.00, that he is engaged in consultancies, owns multiple savings accounts, shares in companies in addition to receiving rentals. She noted that the lower court further failed to consider the fact that she obtained a protection order against the respondent in October, 2016 effectively giving her and the children exclusive occupancy of the Mandala house due to the violent nature of the respondent towards them. And that since then, due to his financial muscle, the respondent has afforded other accommodation i.e. has alternative homes in Blantyre. She added that there has been no evidence to date that the respondent is destitute whatsoever. 39. She then submitted that the lower court disregarded all of the above circumstances quite contrary to the constitutional provisions and Sikwese case. She wondered whether it can be said that the distribution of the Mandala house to the respondent was fair. She asserted that absolutely not. And that fairness requires that the said Mandala house be allocated to her and the children. 40. With regard to the Zomba house, she submitted that it is undisputed that the Zomba house is free from encumbrances. She noted that the said house was allocated to her by the lower court. Further, that it is trite that in disposing matrimonial property, the same has to be done to ensure maintenance of spouses. She added that a wife is entitled to fair maintenance. And that in instances where the wife cannot maintain herself or where the woman can maintain herself to a lower standard from her marriage, fair maintenance is required as per our Constitutional requirements under section 24 (1) (b) (ii). See Kishindo case. 41. She then submitted that in the present case, it is undisputed that she has no means of maintaining herself as she has no source of income. She stated that she relies on her daughter Mweri for support. Further, that the respondent has threatened to cease assisting the children in school fees, in other words, the respondent does not wish to maintain her and the children as well. She asserted that it therefore follows that the appellant is entitled to fair maintenance. She contended that since the Zomba house is free from encumbrances, it would only be fair that the said house be allocated to the children who shall use the proceeds from rentals for their maintenance and that of herself. 42. 43. With respect to the Lilongwe house, she submitted that the respondent appears to suggest that she did not bring any evidence proving that the Lilongwe house is mortgaged. She noted that, however, the lower court in its judgment clearly and unequivocally stated that the court was advised that the Lilongwe house was purchased using loans from the respondent’s employer. She observed that, based on the said revelation, the lower court desisted from allocating the said house to either her or the respondent since it had encumbrances. She noted that the lower court however stated that in the event that the loan is liquidated, the said house be allocated to the children to assist them in their education through collection of rentals and that the said house would be managed by the respondent. 44. She noted that the respondent further argues that even if the Lilongwe house had encumbrances, the legal principles on title and ownership would take precedence premised on the law that a charge shall not operate as a transfer but shall have effect as a security only. And that registration of a charge does not confer title on the chargee as title remains with the proprietor. 45. She raised concerns that in the event of default in servicing the loan, the bank would repossess the Lilongwe house and the children would have no redress as regards their maintenance. She added that her fear is genuine in light of the legal provisions of the Registered Land Act where in the event of default in servicing the loan, the chargee would have the remedy of selling the mortgaged property. See section 68 of the Registered Land Act. 46. Further, that a chargee has the power of sale and in the exercise of such power, may effect transfer. And that once the transfer is registered, the interest of the chargor passes to and vests in the transferee. See section 71 of the Registered Land Act. 47. She contended that, in light of the statutory provisions above, there is a risk that the children might lose the Lilongwe house due to default in servicing the loan by the respondent. She then pointed out that there is no evidence that the respondent has serviced the loan to date. She argued that in all fairness, the Lilongwe house should be allocated to the respondent. 48. In conclusion, she submitted that the lower court erred in allocating the Mandala house to the respondent by disregarding all the relevant circumstances of the case herein. She observed that the respondent’s conduct in refusing the appellant to work, precipitating an environment that did not enable the appellant to return to work, the non-monetary contributions of the appellant, the appellant’s sickness due to a spinal injury and the appellant’s lack of employment had to be taken into account by the lower court which would have enabled the court to fairly distribute the Mandala house. She posited that failure to do so resulted in the unfair distribution of the Mandala property which is contrary to the constitutional provisions as well as the principle of fairness laid down in the Sikwese case. 49. She further submitted that the lower court erred in allocating the Lilongwe house to the children when there was clear evidence that the said property has encumbrances which raise a potential risk that leaves the children vulnerable in the event of default in servicing the loan by the respondent. 50. Again she submitted that in the principle of fair maintenance, the lower court ought to have allocated the Zomba house to the children and the appellant since the same is free from encumbrances. 51. In addition to the above, she stated that she has given satisfactory grounds to satisfy this Court to change the distribution that the lower court made. 52. She therefore prayed and entreated this Court to distribute the property as follows: the Mandala house should be allocated to her and the dependent children. The Zomba house should be allocated to her and the children for their maintenance where rentals would be used for their school fees and upkeep since the respondent is bent on not providing maintenance to her and the children. The Lilongwe house should be allocated to the respondent. And that each party bears its own costs. 53. On his part, the respondent made the following arguments in opposition to the appeal. He correctly observed that, following some directions by this Court and on appreciating the settled legal principles, the issue of jurisdiction of the lower court in distributing matrimonial property beyond set thresholds was dropped. Similarly, the issues relating to children of the family were not considered, both parties having conceded that the children were beyond majority age. 54. The respondent observed that this appeal centred only on one ground, that is, the distribution of the three houses. And that for the record there are three (3) houses that the lower court had distributed between the Appellant and the Respondent as follows: a house on Title No. Blantyre East 55, Mandala, Blantyre (hereinafter referred to as “the Mandala house”) which the lower court gave the Respondent; a house on Title No. Chikamveka West 13, Old Naisi, Zomba (hereinafter referred to as “the Zomba house”) which the lower court gave the Appellant; and a house on Title No. Alimaunde 12/95, Area 12, Lilongwe (hereinafter referred to as “the Lilongwe house”) which the lower court allocated to two dependent children of the family to assist them in their education. And that management of the said house was to be by the Respondent on trust for the children. 55. The respondent then observed that, according to the grounds of appeal the basis for the appellant’s dissatisfaction was that the lower court misdirected itself on a point of fact when it awarded the respondent the Mandala house instead of awarding it to the appellant for the reasons that both the Zomba house and the Lilongwe house which were awarded to the appellant and the children are both under mortgage. Further, that according to the appellant it was only the Mandala house that was free from encumbrances and should have been allocated to her. 56. The respondent submitted that, at the hearing he demonstrated that the Zomba house was actually free from any encumbrances and was not mortgaged or charged to any bank. 57. He then observed that, during the hearing, the appellant brought in further reasons to justify her argument that she should have been allocated the Mandala house as follows: She said during her early years of marriage with the respondent she was working. It was the respondent that asked her to stop work and take care of the home. She also said she spent some of her valuable years taking care of the family and a sick child who later died. She therefore has an emotional attachment to the house. She also stated that she was currently attending to medical attention that was only available at Queen Elizabeth Central Hospital. Further she has known the Mandala house since 1998 and it has been her only home. For these reasons it would only be fair and reasonable that she be allocated the Mandala house. 58. The respondent then noted that the appellant alleges that the Lilongwe house is under mortgage. And that as such it should not have been allocated to the children or for their benefit as, in case of repossession by the bank due to the respondent’s failure to service the loan, the children would fail to attend studies. Further, that the Appellant suggests that the Zomba house should be for the benefit of the children while the Lilongwe house should be allocated to the respondent. 59. The respondent asserted that the appellant has not shown any evidence that the Lilongwe house is under a mortgage. And that, however, even if it were and for the legal principles that we will advance in relation to title to land, there was no error by the lower court in allocating the Lilongwe house to the respondent for the benefit of the children. 60. The respondent then submitted on the relevant law and his case on this appeal. He started by addressing the applicability of the Marriage, Divorce and Family Relations Act, 2015. 61. He pointed out that the Marriage, Divorce and Family Relations Act came into operation on 3rd July, 2015 (see Government Notice No. 20 of 2015, published in Government Gazette dated 31st July, 2016. 62. He asserted that section 3 of the Marriage, Divorce and Family Relations Act is in his view clear and unambiguous. And that it states in plain language that the Marriage, Divorce and Family Relations Act applies to marriages entered into on or after commencement date save for Part IX which applies to all marriages regardless of the date they were celebrated: see Cathcart Kay v Cathcart Kay and Henderson, Matrimonial Cause No. 11 of 2015, HC/PR. See also Mkulichi v Mkulichi, Matrimonial Cause No. 37 of 2010, HC/PR. 63. He observed that the marriage between himself and the appellant herein was entered into in 1998. And that this was well before the commencement date. And that, in the premises, by reason of section 3 of the Marriage, Divorce and Family Relations Act the marriage herein and all issues arising from or ancillary to it will still be governed by the law existing prior to the enactment of the Marriage, Divorce and Family Relations Act, save for, of course, matters falling within Part IX of the Marriage, Divorce and Family Relations Act. 64. The respondent then pointed out that the principles applicable to the disposition of property on dissolution of a marriage are largely guided by the decision of the High Court in Kayambo v Kayambo [1987-89] 12 MLR 408. Further, that the Malawi Supreme Court of Appeal in Sikwese v Banda MSCA Civil Appeal No. 76 of 2015 approved the said principles and went further to indicate that the principles have not changed even after the country adopted a new Constitution in 1994. 65. The respondent then submitted that in the Kayambo case the court held that where it was clear that, on entering into marriage, the parties never considered the consequences of separation and there was no express agreement regarding property, it may not be inferred from the mere fact of marriage that property had been intended to be jointly held; instead it was the duty of the court to give legal effect to what, under the changed circumstances, the parties would be taken as having intended. He noted that in that case, Villiera, JA at p.415 observed that: The question of determining the intention of the parties is always a difficult one and a judge can only draw inferences from the parties conduct. Indeed, it is unnecessary to show an agreement express or implied that a wife or husband should have a share of the property should the marriage come to grief. Further, that the judge went on to observe that: In considering an application of this nature, it is important to ascertain wherever possible, what the intention of the parties was when a particular piece of property was acquired. An inference of joint ownership of property is not to be made from the mere fact of marriage. Admittedly, it may be difficult to ascertain what the parties’ intention were after the marriage has broken up because the contending claims are coloured by bias. But as stated in Gissing vs Gissing, in determining whether there was a common intention, regard can of course be had to the conduct of the parties. 66. He then pointed out that in the Sikwese case the Supreme Court expounded on the principles of disposition of property on dissolution of a marriage and observed the following: (i) That where property is owned exclusively by one spouse, and the other cannot demonstrate any contribution to its acquisition or improvement, the other spouse cannot claim any share in that property. (ii) That the mere fact of marriage does not create an inference or presumption that property would be jointly owned. (iii) Whether or not in any particular case property is held jointly is a matter of fact, and will depend on the circumstances of the case, including the conduct and intention of the parties in relation to the acquisition of the property; it is not a mere conclusion to be drawn from the existence of marriage. There must be evidence that the property is held jointly. (iv) That fairness is a cardinal principle in cases of disposition of property on dissolution of a marriage. However in order to ensure fairness in the disposition of property upon dissolution of a marriage the court ought to take into account all the circumstances of the particular case, and the circumstances that need to be considered in assessing fairness differ in each case. (v) The non-monetary contributions that a party makes towards the house fall within the “do it yourself”; things that a wife or husband does for the benefit of the family without altering the title to, or interest in, the property. 67. He then submitted on the effect of a charge (mortgage) on title. He observed that section 25 of the Registered Land Act is in the following terms: The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of the court, shall be rights not liable to be defeated except as provided in this Act and the Land Act and shall be held by the proprietor, free from all other interests and claims whatsoever, but subject to- (a) to the leases, charges and other encumbrances, if any, shown in the register; and ....... 68. He indicated that his understanding of the above provision is that the indefeasible rights provided therein are that of the owner of the land or lease, or those who have subsequently acquired title or ownership to the land or lease for valuable consideration after the first registration. And that this is the reason why the interest of a lessee, or chargee are treated as encumbrances under subsection (a). 69. He added that, to further illustrate his point of view on the meaning of the proprietor as envisaged under section 25 of the Registered Act and to show the supremacy of the owner’s rights to land or lease over that of a charge (mortgagee), he drew this Court’s attention to section 60 of the Registered Land Act which specifically deals with the effect of a charge (mortgage). He pointed out that the relevant parts of that section are in the following terms: (1) A proprietor may, by an instrument in the prescribed form, charge his land or lease or charge to secure the payment of an existing or a future or a contingent debt or other money or money’s worth or the fulfilment of a condition, .....” (4) A charge shall not operate as a transfer but shall have effect as a security only. 70. He then submitted that the proprietor in this section means the owner of the land. And that following registration of a charge (mortgage), title to the land or lease does not pass to the chargee (Mortgagee). Further, that the charge (mortgage) is only registered as an encumbrance to secure a debt. And that a charge (mortgagee) does not obtain title to the land. 71. He reiterated that, as he had observed, registration of a charge does not confer title on the chargee (mortgagee). And that title to the property remains with the proprietor. 72. He then submitted on the application of the law to the grounds of appeal. He observed that the appellant’s ground of appeal is that the learned Magistrate misdirected himself on a point of fact when he awarded the Respondent the Mandala House instead of awarding it to the Appellant mainly for the reason that the Zomba House was under mortgage. 73. He then noted that he had demonstrated by evidence from the Land Registry that the Zomba house was not mortgaged. He submitted that, however, even if the house had indeed been under mortgage/ charge the same is only registered as an encumbrance to secure a debt. And that a chargee (mortgagee) does not obtain title to the land. Further, that a charge does not operate as a transfer but has effect of security only. 74. His argument is that he is the title holder of the properties in issue and even if the properties had been mortgaged should not have prevented the lower court from passing title to the respective beneficiaries herein. But that, that said, the fact remains that the Zomba house is not under any mortgage. 75. He then noted that the appellant’s other grounds in support of the need to be allocated the Mandala house are that during her early years of marriage with the respondent she was working and that it was the respondent that asked her to stop work and take care of the home. Further, that she also spent some of her valuable years taking care of the family and a sick child who later died. And that she therefore has an emotional attachment to the house. Further, that she was currently attending to medical attention that was only available at Queen Elizabeth Central Hospital. And further, that she has known the Mandala house since 1998 and it has been her only home. 76. He then submitted that, based on the evidence, the lower court made a finding of fact that all the property, including the Mandala house was acquired by the respondent while working with various institutions. And that some property was acquired using loans, mortgages, salaries and bonuses from his work place. And that the appellant did not make any monetary contribution towards the purchase of the property. 77. He noted that, that the appellant had been working at some point during the marriage relationship is not in dispute. And that there is nothing however to suggest that out of that work she made some monetary contribution to the acquisition of the property. He observed that it was therefore him who solely acquired the properties. 78. He then submitted that, in applying the principles enunciated in the Sikwese case as to the intentions of the parties and, in the circumstances, the fairness of the case, the lower court determined that on those facts, the respondent should get the Mandala House. 79. He observed that in the Banda v Sikwese Matrimonial Cause No. 34 of 2013 (High Court) (unreported), a similar claim was made by the respondent in that case where she claimed that she made some non- monetary contribution to the house in the form of energy, time, airtime, and fuel, supervising in detail all the structural works and details. She also averred that she recommended the finishing furnishings and picked finishing material like type and colour of tiles, electrical fittings, kitchen fittings, wardrobe, fridge and display cabinet, bedroom fittings and usage space. She further claimed that work involved attending several meetings with suppliers, sales agents, and technicians on site, showrooms and sometimes their house. The respondent further stated that she personally did landscaping and personally selected, procured and ferried grass and plants from as far as Mangochi. In the course of doing this she spent energy, time, airtime and fuel. 80. The respondent pointed out that Justice Mwase in determining the issue of non-monetary contributions said this, on pages 18 to 19 that: As regards the non-monetary contributions that the Respondent made towards the house, I think they fall within what Lord Denning termed in Button v Button ... as the “do it yourself” jobs. Even if the version by the Respondent is to be believed, I would think that what the Respondent did are things which a wife does for the benefit of the family without altering the title to, or interest in, the property. .... I just have to emphasize that the Respondent has been fully compensated for all her contribution towards domestic expenses through the share that she has been allocated in the Nyambadwe house. 81. The respondent reiterated that, in the present case the appellant does not claim she made any contribution towards the Mandala house, whether monetary or non-monetary. He noted that her contribution, as claimed, is looking after the sick child and “keeping the family together”. And that, unlike in the Sikwese case these contributions are not to the house. And further, that even if they were to the house, they are, in the words of late Justice Mwase “what a wife does for the benefit of the family without altering the title to, or interest in, the property”. 82. The respondent then submitted that the appellant’s argument that she had actually been working before the respondent stopped her from going to work is irrelevant to the issue of distribution because there is no suggestion on the part of the appellant that she put any proceeds from her work towards the acquisition of the property. And that, if however the insinuation is that she could have made some monetary contributions had she continued to work, that would be mere speculation. 83. The respondent asserted that the appellant herein has been fully compensated for all her contribution towards domestic expenses through the allocation to her of the Zomba house. 84. He then submitted that the appellant has shown no evidence to show that she is currently receiving any treatment at Queen Elizabeth Central Hospital, for how long or indeed that whatever treatment she may be receiving could only be obtainable at that hospital. Further, that the distance between Zomba and Blantyre would be manageable for somebody in the circumstances of the appellant. 85. He noted that the appellant argues that she has stayed in the Mandala house from 1998 and it is the only place she considers home. He asserted that, apart from acquiring it and extensively renovating it to the dislike of the appellant, he has considered the Mandala house as his retirement home and has lived there since its acquisition until he was forcibly removed in 2016 through an Order of Occupation and Protection brought by the appellant and issued by the lower court. 86. The respondent submitted that he single-handedly toiled throughout his working life to acquire all the property. And that he is now quite advanced in age but still works in Blantyre. He asserted that he renovated the Mandala house in preparation for his retirement. And that it was in evidence, admitted by the appellant herself, that she disliked the renovations that the respondent carried out on the house as she felt the respondent wasted money for nothing. 87. He submitted that it would be extremely unfair and unreasonable to deprive the respondent of his valuable investment just because he had previously been married to the applicant who has been adequately compensated for her non- monetary contributions. 88. In conclusion, the respondent submitted that the lower court made no error in awarding the Mandala house to him. And that there is no mortgage on the Zomba house. Further, that even if there had been mortgages it could not affect the respondent’s title to the same. Further, that the appellant’s emotional attachments to the house, if any, is no relevant factor to disposition of property on dissolution of a marriage. 89. He also submitted that the lower court made no error in deciding that management of the Lilongwe house should be with the respondent for the benefit of the children. Further, that the appellant has not shown any evidence to show that the Lilongwe house is mortgaged. And that, even if it were, the legal principles title and ownership would take precedence. 90. He also submitted that the appellant has not given any grounds to satisfy this court to make any changes to the distribution that the lower court made. He prayed therefore that this court upholds the decision of the court below and dismiss the appeal. And further that the appellant should bear the costs of the appeal. 91. On hearing of civil appeals, this Court has the following powers as provided in section 22 of the Courts Act In a civil appeal the High Court shall have power— (a) 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; (c) 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; (d) 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; (e) to make any amendment or any consequential or incidental order that may be just and proper; (f) appeal is made; to confirm, reverse or vary the judgment against which the (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. 92. 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. 93. This Court observes that the marriage between the parties herein was entered into in 1998. This was well before the commencement date for the Marriage, Divorce and Family Relations Act. In the premises, as correctly submitted by both parties, by reason of section 3 of the Marriage, Divorce and Family Relations Act the marriage herein and all issues arising from or ancillary to it will still be governed by the law existing prior to the enactment of the Marriage, Divorce and Family Relations Act, save for, matters falling within Part IX of the Marriage, Divorce and Family Relations Act. 94. This Court further observes that indeed section 50 which falls in Part IX of the Marriage, Divorce and Family Relations Act recognises non-monetary contribution of a spouse to the maintenance of a family, that is, of the other spouse and children. 95. As submitted by the parties, the law on distribution of matrimonial property is as stated in the case of Sikwese v Banda MSCA civil appeal number 76 of 2015 in which it is authoritatively held that parties to a marriage may have what is matrimonial property amenable to distribution on dissolution of a marriage but may also have property owned individually. 96. Before a Court disposes property as matrimonial property it must be satisfied that the same was jointly held by the couple. And Courts are bound by the decision of the Supreme Court of Appeal in the Sikwese case at para 8.3.6.8 where it stated that In our view, whether or not in any particular case property is held jointly is a matter of fact, and will depend on the circumstances of the case, including the conduct and intention of the parties in relation to the acquisition of the property; it is not a mere conclusion to be drawn from the existence of marriage. There must be evidence that the property is held jointly. Thus, where a woman, in exercise of the right conferred by section 24 (1) (a) (ii) of the Constitution, acquires property independently, prima facie such property belongs to the woman, and such property would not be held jointly, unless there are compelling reasons to the contrary. Similarly, where a man, in exercise of the right conferred by section 24 (l) (a) (ii) of the Constitution, acquires property independently, such property belongs to the man, and such property would not be held jointly, unless there are compelling reasons to the contrary. Consequently, what is distributable upon dissolution of marriage is only property that is held jointly by the spouses. 97. Whether property is jointly held is therefore a question of fact to be determined depending on the circumstances of each case, including the conduct and intention of the parties in relation to the acquisition of the property; it is not a mere conclusion to be drawn from the existence of marriage. 98. With regard to fair disposition, courts are also bound by the decision of the Supreme Court of Appeal which stated in the Sikwese case at para 8.4.4 that Thus although section 24 (1) (b) (i) of the Constitution requires "fair disposition of property" for women on the dissolution of marriage, when assessing what is fair in the circumstances of a particular case all the other circumstances of the case must be considered; and certainly the conduct of the parties including their intentions when acquiring the property, and their respective contribution, if any, in the acquisition of the property ought to be considered. 99. What comes out is that, in assessing fairness on distribution of matrimonial property, all the circumstances of the case must be taken into account, among these being, the conduct of the parties including their intentions when acquiring the property, and their respective contribution, if any, in the acquisition of the property. 100. With regard to the Mandala house, the lower court considered that the respondent considered it his retirement home and renovated the same accordingly in that regard. However, as observed by the appellant she had been stopped from working and made contributions to the success of the respondent through her keeping the family together and also by looking after the couple’s late child. 101. The couple herein had been married for a long time, that is, since the 1990s. The respondent concedes that the appellant has been adequately compensated for her contribution through being allocated the Zomba house. He concedes that she is to be compensated for her contribution in the home. 102. In these circumstances, the only fact that tipped the balance before the lower court, in terms of allocating the appellant the Zomba house instead of the Mandala house, is the fact that the respondent prepared the Mandala house for his retirement and would be destitute without it. The lower court having found that there was no evidence that when the property was being acquired it was for either spouse only. 103. The question is whether indeed the allocation of the Mandala house to the respondent as opposed to the appellant was fair in all the circumstances of this case. This Court is persuaded that the appellant ought to have been allocated the Mandala house. Both parties have spent all their married life in this Mandala house. The factor that tips the balance of fairness in favour of the appellant is that she will have the children with her as they plan to embark on their tertiary education. Although these children of the marriage are of majority age they are bound to be supported by their parents herein to go through tertiary education. All indications are that there is a strained relationship between the respondent and these children to the extent that it is highly likely that they will continue to stay with the appellant as they enroll for tertiary education in Blantyre. This situation of the appellant is in contrast to the respondent’s situation who will not have such responsibility. The respondent can conveniently relocate to Zomba and easily carry on his activities here in Blantyre which is not a long drive away. In any event he has not been destitute between 2016 and the date of distribution of the matrimonial property herein contrary to the fears of the lower court herein in the event the Mandala house was not allocated to the respondent. The same cannot be said of the appellant whom the respondent instructed not to work and who is likely to face hardship to stay in Zomba and keep the children in school here in Blantyre. The appellant may also have difficulties accessing medical attention in Blantyre as indicated. 104. In view of the foregoing, this Court agrees that fairness required that the Mandala house be allocated to the appellant. The lower court’s decision in that regard is reversed accordingly. And the following first three grounds of appeal succeed, namely, that the lower court misdirected itself on point of fact when it awarded the respondent the Mandala house instead of awarding it to the appellant; that the lower court misdirected itself on a point of law by awarding the respondent the Mandala house on the basis that it was bought and renovated by the respondent for purposes of a retirement home; and, that the lower court erred in failing to give the appellant the Mandala house as the appellant spent all her valuable years in the said house and is not marketable on the job market because of taking care of the family and sick child and keeping the family together. 105. In the foregoing circumstances, this Court is of the view that it is only fair that, with regard to the Zomba house, the respondent be awarded the same as he is still working in Blantyre and is due to retire soon. It would be grossly unfair to force the respondent to relocate or change his focus to Lilongwe after his retirement when he has mostly spent his life within Blantyre which is in the vicinity of Zomba. 106. In that regard, this Court is not persuaded by the arguments of the appellant that she be allocated the Zomba house. This was not even an issue raised on the appeal itself. It arose only by implication in the circumstances. As per the appellant’s arguments she also seeks to be allocated the Zomba house as this would go towards her maintenance, which she is entitled to under the Constitution, together with the tertiary education going children. To let the appellant have two significant properties at the expense of the respondent does not sound fair at all no matter the reasons advanced by the appellant to do with her maintenance and that of the children through their tertiary education. 107. This Court is surprised that the lower court never made any determination on the issue of the maintenance of the appellant as a spouse yet that issue was specifically raised before the lower court. She had sought the same at a lump sum of K3 000 000.00. This was a fair request on the part of the appellant given that she will now not be allocated the Zomba house for that purpose. This Court in exercise of its powers on appeal as indicated above, and considering the respondent’s means, orders that the respondent pays the sum of K3 000 000 as a lump sum award of maintenance to the appellant. 108. The appellant is entitled to maintenance which is an issue that is specifically provided for under the Constitution. The lower court’s failure to address that issue has led to the same being conflated with the issue of distribution of matrimonial property which should not be the case. With respect, the issues of distribution of matrimonial property and maintenance of a woman on dissolution of marriage are separate issues that fall to be considered as such under section 24 (1) (b) (i) and (ii) of the Constitution respectively, contrary to the submission by the appellant that the two issues are to comingle citing the Kishindo case. Section 24 (1) (b) of the Constitution provides that on the dissolution of marriage, howsoever entered into— (i) to a fair disposition of property that is held jointly with a husband; and (ii) to fair maintenance, taking into consideration all the circumstances and, in particular, the means of the former husband and the needs of any children. 109. With regard to the last ground of appeal, which implicates the Lilongwe house, this Court will not disturb the lower court’s decision. The appellant however sought that the said house not be under the management of the respondent but some neutral person or entity. That house is owned by the respondent whether it be subject to a charge or not. 110. The reason why the appellant sought that the Lilongwe house be under the management of a neutral person or entity was that it may be sold to realize the loan used to acquire it under the charge. There is no evidence that the said property is under a charge. Even if it were, in the eventuality of its sale under the charge, the responsibility of providing for the tertiary education support will still remain with the respondent as ordered by the lower court. 111. The respondent supports the lower court decision with respect to the Lilongwe house and the same shall be upheld. 112. Considering all the circumstances of this appeal, it is ordered that each party bears its own costs on this appeal. Made in open court at Blantyre this 27th August 2020. M. A. Tembo JUDGE 25