Nyirenda v Sichali (Civil Appeal 5 of 2021) [2022] MWHCCiv 68 (6 May 2022)

_ Mea Se AND Beep Doay IN THE HIGH COURT OF MALAWI CIVIL DIVISION MZUZU DISTRICT REGISTRY CIVIL APPEAL NO. 5 OF 2021 Being Civil Cause No. 1486 of 2020 in the TGM’s Court sitting at Mzuzu BETWEEN JOSEPH NYIRENDA 000.000.0000 0c0cccccccccueeceeesseeueecsessesereseseeueeesseeuuteesecee, APPELLANT AND DORIS SICHALL 0.0.2... ...cccccseeeeeeeseeecceesveseeeeeeseseesssssssseresseeeae 15! RESPONDENT BENJAMIN NYIRENDA ....0... 000. cccccceecceececuucccucceeecesuuecaecaeceners 28P RESPONDENT CORAM: Honourable Justice T. R. Ligowe L. Mbulo, Counsel for the Appellant K. Thadzi, Court Clerk RULING Ligowe J, 1. This is a ruling on the Appellant’s application styled “inter-partes application for preservation order/ an order restoring the stay order dated 4"" November, 2020 (under section 11 (iv) as read with section 23 of the Courts Act). It is stated in the body that it is “an application on the part of the Appellant for an order restoring the stay order/ a preservation order of the house on plot number KHO/032 situated at Luwinga, Area 1B location pending hearing and determination of the Appeal before this Court.” tN The facts are that the 1* Respondent in this case successfully brought a petition for divorce against her husband, the 2" Respondent in the Third Grade Magistrate’s Court sitting at Gao Mzuzu. Before matrimonial property was distributed between them, the Appellant, the father of the 2"! Respondent brought before the court an application purported to be an interpleader under Order XXVI of the Subordinate Court Rules. He brought the application in anticipation that the house on plot No. KHO/032 situated at Luwinga which he claimed to be his and not for the Respondents would be listed among other property for distribution between them as matrimonial property. The record of the court below shows that only the 1‘' Respondent defended that application. At the end, in its order dated 28" October 2020, the court found that the plot belongs to the Appellant. He bought it in 2009 from a Mr Dickson Munthali. He constructed a foundation of the house on it around 2012/13. However, after the 1 Respondent married the 2" Respondent in 2016 she contributed to the further construction of the house until it was completed upon agreeing with her husband. The court therefore found that she has interest in the house such that it had to be listed for distribution. The appellant was not satisfied with decision. He therefore appealed against the decision on the grounds that: - (a) The lower court erred in law and in fact by disregarding the title documents of the house which are in the name of the Appellant; (b) The lower court erred in law and in fact by holding that the ownership of the plot is different from the ownership of the house constructed on it. (c) The lower court erred in fact by disregarding the evidence of the Appellant which clearly showed that he is the owner of the property — plot and the house. (d) The ruling of the lower court is against the weight of the evidence submitted by the Appellant. After lodging the appeal, the Appellant applied ex parte and was granted by the lower court an order on 4" November 2020, suspending execution of the order of 28" October 2020 pending determination of the appeal. Thereafter, there is on record an order dated 11'" June 2021, which has led to the present application by the Appellant. In its order the lower court said: - “The Appellant Joseoh Manotha being dissatisfied with the said order made an application before this Court to have this decision stayed. The order on suspension was granted by this Court on the 3"? November, 2020. And a Notice of Appeal was served to this Court on the 3" of November, 2020. To the surprise of the Court the order on suspension was not served on the Defendant up until when the Defendant came to follow up on the date when the Court was going to make an order on how the house was to be disposed of in distribution. This was when the Defendant was made aware of the existence of the order on suspension and a Notice of Appeal. The Defendant (Doris Sichali) the made an application to have the stay discharged. Due to the development the Court had issued Notices of Hearing (inter parte) in order to hear an application on discharge of the stay. The Notice was issued on the 8" of February and was set down for hearing on the 15" of February 2021. It was upon the receipt of this Notice of Hearing that the Applicant served Defendant with the Notice of Appeal and the order suspending the order of this court on the house so we learnt. The Defendant was served on 11" of February, 2021 an order on suspension to the applicant on 30" October 2020. It was served 4 months later. On the set date of hearing, the Applicant and his Counsel were absent. We were not given any reasons as to why none of them was not in attendance that day. It is against this background that the Court after hearing from the Petitioner has noticed and seen that there is want of prosecution from the Applicant. The stay and Notice of Appeal was only obtained to deprive a successful litigant of the fruits of litigation. The fact that the order of stay and the Notices of Appeal were only served on the Petitioner who was the Defendant in this application four months after it was granted confirms that. A successful litigant as has been held, deserves to enjoy the fruits of his litigation see Monk v Bartram (1891) 1 Q. B. 346. Therefore under section 53 of the Courts Act this Court discharges its earlier order on suspension of execution of the said Judgment and will therefore proceed with its earlier order. Which was to have a surveyor assess the present market value of the house.” (sic) 5. Counsel for the Appellant deposes in his sworn statement in support of the application that he had not been served with the notice of hearing issued on 8" February 2021. That the court seems to have proceeded with the hearing without being satisfied that the Appellant was duly served with the notice. That the court declined the Appellant’s application to restore the order of 4" November 2020 on the basis that service had been effected on the party cited who had the right to notify the Appellant. That if the decision of the lower court is allowed to stand there will be irreparable damage, as the house will have been disposed before the hearing of the appeal. Hence, the application for a preservation order under section 11 (a) (iv) of the Courts Act or in the alternative, an order restoring the order of stay of 4" November 2020. Preservation of property 6. Section 11 of the Courts Act provides for additional jurisdiction of the High Court. It states in subsection (a) (iv) that without prejudice to any jurisdiction conferred on it by any other written law the High Court shall have jurisdiction to provide for the interim preservation of property the subject matter of any cause or matter by sale or by injunction or by the appointment of a receiver or by the registration of a caveat or /is pendens or in any other manner whatsoever. This is a jurisdictional provision and not necessarily the provision under which the application for an order of preservation of property has to be made. Ordinarily, all applications for interlocutory or interim orders have to be made under Order 10 of the Courts (High Court) (Civil Procedure) Rules unless specifically provided for under any other particular law. The preservation of property for which the High Court is given jurisdiction by section 11 (a) (iv) of the Court Act is so that, by sale or by injunction or by the appointment of a receiver or by the registration of a caveat or /is pendens or in any other manner whatsoever, the subject matter of any cause or matter may be preserved until final determination. Therefore the application to be made is not necessarily going to be one for a preservation order but an order for sale or for an injunction or for the appointment of a receiver or for the registration of a caveat or /is pendens or any other order as may be appropriate whose effect will be to preserve the property in issue. An application for stay of the proceedings would have been appropriate in the present case. This in effect would have been to restore the order of stay of 4" November 2020, had the distribution of matrimonial property not come to finality. It will be clearer in this ruling why the order for stay was important before consideration of the distribution of matrimonial property after dissolution of the marriage. For now, let us turn to the interpleader the Appellant made before the lower Court under Order XXVI of the Subordinate Court Rules. Interpleader under Order XXVI of the Subordinate Court Rules This is a way by which a person who is sued or expects to be sued by two or more people may seek relief from the court in respect of any debt or property in which he claims no interest otherwise than for charges and costs. The relief is normally that the applicant be discharged from the proceedings so that the claimants may claim against each other in respect of the debt or property. Order XXVI, rule 1 provides that where any person is sued or expects to be sued by any two or more persons for or in respect of any debt or property in which he claims no interest otherwise than for charges and costs, and such persons claim adversely to one another, the applicant may seek relief by way of interpleader in the Court in which he has been sued or, if not yet sued, in any Court in which he might be sued. The applicant in such an application is the person sued or expecting to be sued. The procedure to be followed after the application has been filed is provided for in Rule 2. If the applicant has been sued, the application has to be filed within five days after service of the summons. A copy of the application has to be served on every person (including any plaintiff in an action against the applicant) believed by the applicant to be a claimant and, every claimant so served, except a plaintiff in an action against the applicant, shall before the hearing file either a notice that he makes no claim or particulars of his claim. . Under rule 3, on the hearing of the application, the Court may make such order for the consolidation and further conduct of all relevant proceedings as may be just, and may in particular make an order that the applicant, on paying any money into Court, or dealing with fi. IZ. the property in issue as the Court may order, may be dismissed from the proceedings and that his costs may be paid out of the money or property in issue or in such other manner as the Court may direct, or it may determine all the matters in question in a summary manner. It should be noted now that the Appellant purported to bring an interpleader before the Magistrate under Order XXVI of the Subordinate Court Rules, but his application was misconceived. He was at the time not sued or expecting to be sued by the Respondents in respect of a debt or property in which he claimed no interest himself. He rather claimed that the house in which the Respondents lived as husband and wife was his and it needed not be considered for distribution as matrimonial property upon dissolution of their marriage. What then should he have done to make his claim? No rules of procedure for matrimonial causes currently We currently do not have straightforward rules of procedure for matrimonial causes, be it for customary or civil marriages. The respondents in this case married at custom. Jurisdiction in such cases was initially vested in Traditional Courts before they were abolished. Section 11 (a) of the Traditional Courts Act provided for cases excluded from the ordinary jurisdiction of a Traditional Court in the sense that no Traditional Court had jurisdiction “in any proceedings in connexion with marriage, other than a marriage contracted under or in accordance with Islamic or customary law or the African Marriage (Christian Rites) Registration Act, except where both parties are of the same religion and the claim is one for bride-price founded on customary law only.” Rule 39 (2) of the Traditional Courts (Procedure) Rules provided that proceedings for the dissolution of a marriage celebrated in the area of the Court’s jurisdiction in accordance with customary law only, would take the form of a civil case under the Rules and would be commenced by a complaint made and entered respectively under rules 6 and 11 by one of the parties to the marriage. The defendant would be the other party to the marriage or his, or her, nkhkoswe. The Traditional Courts and their rules of procedure were effectively abolished when Malawi adopted a new Constitution which came into operation on 18" May 1994. The Constitution now makes no provision for Traditional Courts as they used to be. It rather makes provision in section 110 (3) for traditional or local courts presided over by lay persons or chiefs with jurisdiction exclusively limited to civil cases at customary law and such minor common law and statutory offences as prescribed by an Act of Parliament. The traditional and local courts are not operative until now, despite the passing of the Local Courts Act in 2011. 13. Meanwhile, the jurisdiction over customary marriages is in the Magistrates’ Courts. Section 39 (2) (e) of the Courts Act provides that no subordinate court shall have jurisdiction to deal with, try or determine an civil matter, except especially provided in any written law for the time being in force, wherein the validity or dissolution of any marriage celebrated under the Marriage Act or any other law, other than customary law is in question. The Subordinate Court Rules, which are the rules of procedure for the Subordinate Courts however do not provide for the procedure for such cases as did the Traditional Courts (Procedure) Rules. Luckily the Subordinate Court Rules provide in Order I that: 1. Nothing in these rules shall affect any special mode of procedure prescribed for particular matters by any law or confer on any Court jurisdiction to hear and determine any proceedings which it would not otherwise have had jurisdiction to hear and determine. 2. (1) In any matter of practice or procedure not provided for in these rules the court may apply any appropriate provision thereof by construing the same with such modification not affecting the substance as may be necessary or proper to adapt the same to the matter before it. (2) In any such matter in which it is not possible to apply sub rule (1) the court may give such orders and directions as appear proper to do substantial justice between the parties, having regard to the summary settlement of matters in issue and to the saving of costs. 14. Before the Marriage, Divorce and Family Relations Act came into force, the fall back rules to be construed with modification would according to rule 2 of the Divorce Rules made pursuant to section 44 of the Divorce Act, be the Matrimonial Causes Rules, 1950, as amended by the 15. 16. Matrimonial Causes (Amendment) Rules, 1951, of England. The Marriage, Divorce and Family Relations Act in section 114 repealed the Divorce Act among others, without saving its subsidiary legislation. Section 87 of the Marriage, Divorce and Family Relations Act confers power upon the Chief Justice to make Rules regulating the procedure for petitions for divorce, judicial separation or nullity of marriage under the Act. The Act was passed in 2015, yet no such rules of procedure have been promulgated up to now. Therefore, there is a gap which leaves the courts in a quagmire in as much as rules of procedure for matrimonial cases are concermed. Nonetheless, we still have to deal with, try and determine matrimonial cases. To that end, Order I, rule 2 (2) of the Subordinate Court Rules becomes instructive that the court may give such orders and directions as appear proper to do substantial justice between the parties. Taking it from the fact that in the time of the Traditional Courts, proceedings for the dissolution of a marriage celebrated in accordance with customary law would take the form of a civil case under the Traditional Courts (Procedure) Rules, it would not be wrong to suggest that in the absence of specific rules for matrimonial cases under the jurisdiction of the Magistrates’ Courts, the Subordinate Court Rules should apply. For cases in the High Court, a combination of the Courts (High Court) (Civil Procedure) Rules and The Matrimonial Causes Rules, 1950, as amended by the Matrimonial Causes (Amendment) Rules, 1951, of England would be helpful, until the appropriate rules of procedure are in place. Provision for adding parties under the Subordinate Court Rules Order V, rule 3 of the Subordinate Court Rules provides that the Court may at any stage of the proceeding strike out, substitute or add any party in such manner and upon such terms as may be just. Provided that no person may be made a plaintiff without his consent, or, if under disability, the consent of his intended next friend or manager. This is the appropriate rule under which the Appellant should have intervened in the proceedings in the lower court. Provision for a party to be added under the Courts (High Court) (Civil Procedure) Rules 17. 18. The Courts (High Court) (Civil Procedure) Rules are helpful in that they provide for the adding of a party to proceedings already commenced. Order 6, rule 5 provides that the court may, on an application by a party, order that a person becomes a claimant in a proceeding where the person’s addition as a party is necessary to enable the court to make a decision fairly and effectively in the proceeding. Rule 5 is about a new person being added on an application by an existing party to the proceeding. Rule 7 provides for an application by a person not yet a party to the proceeding. It states that a person affected by a proceeding may apply to the court for an order that he should be added as a party in the proceeding. This way, the interests of the likes of the Appellant would be covered in a case proceeding in the High Court. What happens after a third party is added Vis a Vis the proceedings for distribution of matrimonial property? I have found no precedent by the Courts in Malawi on this question. However, I find that the decision of the High Court of Justice, Court of Appeal (Civil Division) of England in the case of Goldstone v Goldstone [2011] EWCA Civ 39 is instructive. In paragraphs 36 and 37 of the judgment, Lord Justice Thorpe said: 36. In the first case Mr Mostyn had identified the procedure for the determination of third party claims with admirable clarity. It is worth citing the material paragraphs of his judgment in full: "33. It is well established that a dispute between a spouse and a third party as to the beneficial ownership of property can be adjudicated in ancillary relief proceedings: see Tebbuit v Haynes [1981] 2 All ER 238, per Lord Denning MR at 241: ‘It seems to me that under section 24 of [the Matrimonial Causes Act 1973], if an intervener comes in making a claim for the property, then it is within the jurisdiction of the judge to decide on the validity of the intervener's claim. The judge ought to decide what are the rights and interests of all the parties, not only of the intervener, but of the husband and wife respectively in the property. He can only make an order for transfer to the wife of property which is the husband's property. He cannot make an order for the transfer to the wife of someone else's interest.' 34. It is to be emphasised, however, that the task of the judge determining a dispute as to ownership between a spouse and a third party is, of course, completely different in nature from the familiar discretionary exercise between spouses. A dispute with a third party must be approached on exactly the same legal basis as if it were being determined in the Chancery Division. 35. Mr Brett makes the valid complaint that this issue has never been properly defined, pleaded or particularised. At no stage since the first appointment has this discrete issue been the subject of any case management, notwithstanding that the parties have been before the court on numerous occasions. 36. In my opinion, it is essential in every instance where a dispute arises about the ownership of property in ancillary relief proceedings between a spouse and a third party, that the following things should ordinarily happen: (i) The third party should be joined to the proceedings at the earliest opportunity; (11) Directions should be given for the issue to be fully pleaded by points of claim and points of defence; (11) Separate witness statements should be directed in relation to the dispute; and (iv) The dispute should be directed to be heard separately as a preliminary issue, before the financial dispute resolution (FDR). 10 37. In this way, the parties will know at an early stage whether or not the property in question falls within the dispositive powers of the court and a meaningful FDR can take place. It also means that the expensive attendance of the third party for the entire duration of the trial can be avoided. ..." 19. It makes a lot of sense that the issues with regard to the interests of the third party and the 20. Zl. parties to the dissolved marriage over the property in issue be dealt with before the process of distribution starts. The hearing for the distribution of the property would have to be stayed until the preliminary issue of the third party’s interest in the property in issue is resolved. Somehow, this was done in the present case when the lower court allowed the Appellant to intervene by way of the purported interpleader and made its determination. After the court declined the Appellant’s application to restore the order of 4" November 2020, it proceeded to determine the distribution of the matrimonial property and with respect to the house in issue, in its order dated 6" December 2021, the Court awarded the 1% respondent a 4 share of the value of the house which after valuation was found to be K10 820 000. The Court ordered the 2nd Respondent to pay the 1*' Respondent her share or the house would be sold to be able to realise that share. By this, the case was finally concluded in the lower court. The appeal is against this order. The Appellant’s present application should rather be treated as a whole new application for stay of execution pending appeal rather than for the restoration of the order of 4" November 2020. Considerations for applications for stay of execution pending appeal The law on this point was well stated by the Supreme Court of Appeal in Mulli Brothers Limited v. Malawi Savings Bank Limited, MSCA Civil Appeal No. 2014 in its judgment of 3" July 2015 when it said: “In Malawi the case of Stanbic Bank Lid v Phiri [[2005] MLR 410 (HC)] is instructive on stay of execution generally. It was stated in that case that the law is settled that it lies within the discretion of the court whether to grant or refuse an application for stay of execution [Order 59 and 13 of the Rules of the Supreme Court]. Further, respecting a stay pending an appeal our mind should be drawn to the case of Chilambe and another v Kavwenje A [[1995] 1 MLR 70 (HC)] where Chimasula J, as he then was, said that the case of the Malawi Supreme Court of Appeal in AR Osman and Co v Nyirenda [[1995] 1 MLR 13 delivered on 10 January 1995] authoritatively lays down the law and the practice to be followed when considering applications similar to the one at hand. In AR Osman and Co v Nyirenda [Ibid.] the learned Justices of Appeal had this to say which is instructive and is accordingly adopted: “The general principle governing the execution of judgments is that the Court does not make a practice of depriving a successful litigant of the fruits of his litigation, pending an appeal. But against this principle is the consideration that when a party has appealed, which is a right, the Court should see to it that the appeal, if successful, is not rendered nugatory. See Anne Lyle [1886] 11 PD 114 and also Wilson v Church (No. 2) [1879] 12 Ch D 454. The Court should try and strike a balance between these two considerations in exercising its discretion as to whether it should grant a stay or not. In Aftorney General v Emerson [1889] 23 QBD 56 it was stated that in exercising its discretion the Court should consider whether there are ‘special circumstances’ which speak in favour or against granting a stay. Evidence showing that there was no probability of getting back money awarded under the judgment, if the money so awarded was paid to the respondent, has been held to constitute ‘special circumstances’ which could influence the court to grant a stay. But as was stated in Nyvasulu v Malawi Railways Ltd MSCA Civil Appeal No. 4 of 1993 (unreported) the mere fact that the respondent would not be able to pay back the money cannot in all cases operate as a stay of execution of a judgment. It is open to the Court to refuse a stay if on the facts of the particular case it would be ‘utterly unjust’ or ‘unconscionable’ or ‘inexpedient’ not to do so. See Stambuli v ADMARC Civil Cause No. 550 of 1991 (unreported).”” 22. In the course of its judgment, the Supreme Court of Appeal further added: “During the course of considering an application, the court will consider the balance between the needs of the judgment debtor, and whether those needs displace the judgment creditor’s ordinary entitlement to prompt satisfaction of the judgment.” And that: 12 23. 24. 25. “Tt would appear that the factors that the court should consider when faced with the question whether or not to stay execution of a money judgment pending an appeal is where the balance of convenience lies.” Or, as Hoffmann J put in Films Rover International Lid v. Cannon Film Sales Lid. [1986] 3 All E. R. 772 at 780: **,. the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘“wrong.”” For the application to be granted in the present case, it must have been disclosed in the sworn statement in support that there are ‘special circumstances’ which speak in favour of granting the stay. With that in mind then I have to consider where the balance of convenience lies. Counsel for Appellant deposed in his sworn statement in support of the application that if the decision of the lower court is allowed to stand there will be irreparable damage as the house will have been disposed and that the appeal is raising serious questions that need to be resolved by the court. Indeed, disposal of the house would mean irreparable damage to the Appellant if his appeal were to be successful. For this reason, | must also consider the prospects of success of the Appeal. On this point, the Supreme Court of Appeal in Mulli Brothers Limited v. Malawi Savings Bank Limited, (supra) had this to say: “It follows directly that once the matter has been decided at trial, it is not legitimate to consider the principles of law applicable pending trial. Indeed, this was the position taken by the Supreme Court in Canada in Laboratoire Pentagone Ltée v. Parke, Davis & Co. [1968] SCR 269, a patent case in which the Canadian Supreme Court refused a stay of execution pending appeal where it surmised that the burden upon the appellant is much greater than it would be if trial was pending. In a matter where trial is pending the Court must consider the balance of convenience as between the parties, because the matter has not yet come to trial. The converse is true. Thus, in the present case we are being asked to suspend the operation of a judgment of the High Court Commercial Division, delivered after full consideration of the merits. The balance of convenience test or approach would 13 not be ideal. In any event, whatever the reason for either decision, it is time to address these questions afresh on a principled basis, rather than continuing to torture the 35 year old Cyanamid decision in conditions it was never meant to endure. We find therefore that the approach should be whether the appeal has merits. 26. An appeal which has merits is one which has prospects of success. Considering that what is obtaining on record is that the plot in which the house was built belongs to the Appellant and he had built the foundation when the 2"! Respondent continued it to completion in 2016 with the support of the 1 Respondent, I do not see prospects of success in the grounds of appeal advanced by the Appellant. The grounds are that the lower court disregarded the title documents of the house which are in the name of the Appellant, the court erred in law and in fact in holding that the ownership of the plot is different from the ownership of the house constructed on it, the court disregarded the evidence that the Appellant is the owner of the property including the plot and the house and that it is against the weight of the evidence submitted by the Appellant. 27. | would therefore dismiss the application for stay of execution. The Respondents did not appear at the hearing of the application and so I make no order for costs. 28. Made in chambers this 6" day of May 2022. 14