Mwangobola v Mwangobola (Civil Appeal 4 of 1980) [1981] MWNTAC 3 (4 May 1981)

IN THE NATIONAL TRADITIONAL COURT OF APPEAL SITTING AT (SOCHE) BLANTYRE CIVIL APPEAL CASE NO. 4 OF 1980 MR. VERSON MWANGOBOLA………………………………... APPELLANT -vs- MRS. MERCY MWANGOBOLA ………………………………RESPONDENT CORAM: HON. JUDGE CHIEF CHIMUTU (CHAIRMAN) HON. JUDGE CHIEF CHIGALU (MEMBER) HON. JUDGE CHIEF MSAKAMBEWA (MEMBER) HON. JUDGE MR. D. P. MWAUNGULU (MEMBER) HON. JUDGE MR. N. J. MHONE (MEMBER) JUDGEMENT The appellant and the respondent appeared before the Chairman sitting at Blantyre Traditional Court in a suit in which the appellant was seeking an order for the dissolution of a friendship with the respondent and an order to stop the respondent from using his name as if she was his spouse. The Chairman ruled that he could not dissolve the "friendship" because a marriage existed between the appellant and the respondent at customary law. For the same reason, one would think, the Chairman could not restrain the use of the name by the respondent. It is against this Order that the appellant appeals. He has laid down five grounds of Appeal. The appellant is Mr. Mwangobola and the respondent is Mrs. Mwangobola. The two knew each other in Blantyre when the respondent was teaching at Chiradzulu and the appellant was in school at Teachers' College. In course of that friendship the respondent became pregnant. The appellant took the respondent to his home immediately he finished his training. Their marriage was registered in Blantyre with ankhoswe from both sides. The appellant was according to the marriage certificate supposed to pay K120.00 for Lobola. At the time of registration, the appellant paid ten kwacha (K10.00) as part of Lobola. The union, however, was not a happy affair. It was rife with disputes right from the early years. In 1974 the parties were in Court for the first time and frequented the Courts thereafter. They had separations more than once. There are four children to the marriage even though the appellant denies the paternity of the fourth. It was on the findings of these facts that the Chairman declined to dissolve the friendship. The appellant has filed four grounds of appeal and their Justices want to deal with them seriatim. In the first ground of appeal the appellant states that they have been separated with the respondent since August 15, 1977. The respondent had a child during this period. For the above reason the respondent should not use his name. After examining the totality of the evidence and the arguments of the parties to this appeal their Lordships find no merit on the ground of appeal. The important question to ask is whether the appellant and the respondent were married. If they were cadit questro. During the subsistence of the marriage the female spouse has a right to use either her maiden or marriage name. She can use his name even after the death of her husband. At common law a wife can use her husband's name even after a decree absolute unless if she uses his name to injure her former spouses' interest or repute. Their Lordships were of the view that a similar right existed at customary law, especially where there were issues of the marriage. Their Lordships however were of the view much like the Lower Court that a marriage existed at customary law which had not been sufficiently proved to be dissolved. Since there is subsisting marriage the respondent was entitled to use the appellant's name. The fact that the respondent has committed adultery during the subsistence of a marriage in no way disentitles the respondent from using her husband's name. In any case it has not been shown that the respondent has committed adultery which fact would have been relevant in a divorce proceeding but bears no relevance in the instant case. Moreover, it is a rebuttable presumption of law that a child, born during lawful wedlock, is legitimate and the husband had access and this presumption can only be displaced by a strong preponderance of evidence and not by mere balance of probabilities PRESTON-JONES V. PRESTON-JONES (1951) A. C. 391, FRANCIS V. FRANCIS (1960) P. 17. Their Lordships therefore cannot restrain the respondent from using the name. In ground two (2) the appellant is challenging the validity of marriage in that no "proper" advocates were present in the marriage with the respondent. On this ground too their Lordships find no merit whatsoever. At customary law anybody can properly be a Nkhoswe to a marriage. And indeed a custom situation would occur where either because the parties’ actual relations were far and a party could not furnish proper marriage advocates. At customary law such an impasse was resolved by the guardian or even the party's close friends assuming the functions of a marriage advocate. Their Lordships dismiss as mere pedantry the appellant's contention that all the advocates come from the respondent's family. Their Lordships therefore find that there were proper advocates to the marriage. In ground three (3) the appellant say that the Marriage certificate produced in Court was made under duress. In other words, he is challenging the validity of the marriage on this score. In law a marriage which is unexceptionable in point of form remains a valid marriage until some evidence is adduced that the marriage was in fact nullity. TWENY V. TWENEY (1546) P. 180,182. In the instant case the marriage certificate was signed and stamped by an authorised person and the Court is duty bound to presume the validity of the marriage. There are dicta to suggest that evidence to rebut the presumption must be beyond reasonable doubt D. B. V. W. B. (1935) P.80. The Lower Court did not believe the appellant's contention neither do their Lordships, in this case. Ground four (4) raises the same problem in ground one (1). In ground five (5) the appellant states that the fact that the parties to this marriage never visited each other’s village clearly shows that the parties were not married. Their Lordships find this to be a novel requirement to the validity of the marriage. Indeed, it would be a strange intrusion into the law if the law would require spouses to do that. Such visits would always be done after the spouses have lived together and it would be idle to deny the spouses the legal status which everybody envies and wait until they visited each other’s villages. Such visits are done as a matter of course but do not confer any validity to marriage at customary law. After carefully examining the record and hearing to the arguments from both sides their Lordships are reluctant to interfere with the finding of the Lower Court. Their Lordships find that since a lot of things want to be proved before and after the dissolution of the marriage the parties may have to take the matter to the Court with jurisdiction on the marriage. The Lower Court had no jurisdiction on this matter and this Court therefore, has no jurisdiction to dissolve the marriage. The appeal is dismissed with costs to the respondent. DATED THIS 4TH DAY OF MAY, 1981, SITTING AT BLANTYRE