Manda v Phiri (Civil Cause 204 of 2016) [2018] MWHCCiv 11 (20 February 2018)

I ~::-i f~c,u;;-) l ~18RARY - ·- J REPUBLIC OF MALAWI MALAWI JUDICIARY IN THE HIGH COURT OF MALAWI BLANTYRE PRINCIPAL REGISRTY CIVIL DIVISION CIVIL CAUSE NO. 204 OF 2016 NYUMA MANDA ............ ........................................... PLAINTIFF BETWEEN -and- WINNIE NOFUNOFU PHIRI . . .......... . .............................. DEFENDANT Coram: Honourable Mr. Justice D. Madise Mr. W. Hara Counsel for the Plaintiff Mr. Sauti Counsel for the Defendant. Not present Mr. M. Manda Official Court Interpreter Madise, J JUDGEMENT 1.0 Introduction 1.1 On 2ih October, 2016 the plaintiff in this matter commenced these proceeding by way of a writ claiming from the defendant damages for adultery as the main head, loss of consortium, emotional distress and humiliation to the dignity of his family. On the appointed day for the hearing of the matter the defendant did not show up despite due service and no reasons were given for his non attendance. His legal counsel apparently ceased to represent him. I allowed the plaintiff to proceed and this is the judgment of the court on the merits. 2.0 The Facts 2.1 The plaintiff contracted a lawfully constituted marriage with one Kettie Mughogho in 1988 and there are two issues from the union. 2.2 However, since 2015 the defendant has been enticing the plaintiffs wife to commit adultery resulting in the plaintiff loosing contortion and affection. The plaintiffs wife eventually abandoned her martial and parental obligation as a result of this unholy union with the defendant. 2.3 That the defendant knew at all material times that he was going out with a married woman. The plaintiff produced call records as evidence that the defendant and his wife have been communicating through text messages. 2.4 The plaintiff and his wife finally separated due to the actions of the defendant. The story as told by the plaintiff has been supported by Alex Khanyina from Malawi Police services. He recalls receiving a complaint from the plaintiff regarding the defendant and his wife. He then obtained a search warrant from court and served it on Telecom Malawi the service provider of the defendant's phone. When the call log arrived it was confirmed that there was contact communication between the defendant and the plaintiffs wife. 2.5 The last witness for the plaintiffs was Ben Kaluwa. He told the court that he was asked by the plaintiffs to find out about the defendant at Rumphi Boma. When Kaluwa confronted the defendant he admitted having an affair with the plaintiffs wife. That marked the close of the plaintiffs case. 2.6 As earlier stated the defendant did not defend this action and he did not attend the hearing. I now proceed to pass my judgement on the merits. 3.0 The Law 3 .1 The burden and standard of proof is this. It is trite law that in civil matters the Barden of proof rests on the one alleging or asserting the claim and wants the court to believe that a particular fact exist i.e. the burden of proof is upon the party who would fail if no evidence at all is adduced on which he bases his claim. The standard of proof is on the scale of probabilities. 3 .2 He who assets a matter must prove and he who denies need not to proof anything. If the claimant is to succeed the court must think his story to be more probable that not. If the probabilities are equal the claim must fail. 3 .3 Section 22 Constitution The family is the natural and fundamental group of the society and is entitled to protection by society and the state. Each member of the family shall enjoy full and equal respect and shall be protected by law against all forms of neglect, cruelty or exploitation. 4.0 The finding 4.1 There is no dispute that the plaintiff and Kettie Mughogho were lawfully married. There is no dispute that the parties have two issues born out of the union. 4.2 The defendant has not defended the allegations levelled against him by the plaintiff that he was having an affair with the plaintiff's wife. The call logs tendered in Court tells a story of man (defendant who was obsessed with someone's wife. The amount of traffic of calls and text messages between the two cheaters are alarming. There is no doubt that the two were having a secret affair. 4.3 The plaintiff's need not to prove adultery. It automatically follows in my view that sexual intercourse did take place between the two cheaters as evidenced by the frequent communications. 4.4 Adultery is rarely proved by direct evidence. The claimant must only prove acts which leave no doubt in the eyes of right thinking members of society that adultery did take place. There must be established instances, inferences and circumstances which point to one logical conclusion that adultery did take place (See Ross vs Ross [1930] AC7) 4.5 There is no doubt in my mind that the plaintiff has made out a good case on a balance of probabilities and I enter judgement in his favour on all the reliefs sought in the summons plus costs. Registrar within 14 days. It is ordered. Pronounced in open Court at Blantyre m the Republic on 20 February 2018. Judge 5