Minjale v Minjale (MSCA Civil Appeal 30 of 2012) [2013] MWSC 3 (24 April 2013)

Hi : jf‘ IG ao : lo ler 7 j | ee AA = y f 4 IN THE MALAWI SUPREME COURT OF APPEAL 4 AT BLANTYRE iG MSCA CIVIL APPEAL NO. 30 OF 2012 : (Being Lilongwe District Registry Civil Cause No. 93 of 2011) @ BETWEEN: L RICHARD A. MINJALE.........sccccscccectecescesseennsoesene APPLICANT k | - AND - i | ENIFA MINGALE, .xccccouscccseccececscescccnscesscseseeeeossee’ RESPONDENT h a ; CORAM ; HON. JUSTICE NYIRENDA, SC, JA : | WTR. REGS 00. i cree deee we citienies arcane own unrepresented Dlr. MEGS «0... swe nnena sass oem ewan oe unrepresented ‘a TAR eee panciis nnieans ss ssn sasnine corn Official interpreter sage eogh qoftindl a uicasine sRRs REMRAAS DRED ES pow needy Recording Officer E. Banda (Mrs), Personal Sccretary i UGH © “ ie RULING OUR URT ] a Ln LIBRaRy | neni } NYIRENDA, SC, JA E This is an application for stay of execution of the judgement of Kachale J. made at the High Court in Lilongwe on 31° August 2012 whereat he upheld the judgment of the Chief Resident Magistrate dissolving the marriage between the applicant and the respondent. In addition to +e hime NAM erat ainsi “aie . - "NIGH COU) WA RY Se i upholding dissolution of the marriage the learned Judge made orders for distribution of matrimonial property as well as orders for the maintenance of the respondent. The orders for maintenance included the sum of K200, 000.00 for the completion of the respondent’s house at her village required at custom. The Court also made an order requiring the applicant to pay the respondent monthly maintenance amounting to the equivalent of K20 % of his gross monthly income unless the respondent remarries. By this application for stay of execution the applicant seeks, in particular, stay of that part of the judgement which requires him to pay 20% of his gloss salary every month to the respondent as maintenance. The applicant sought stay of that order before Justice Kachale and the application was dismissed. There is on record an appeal filed contesting the entire decision of the lower Court. In essence the applicant pleads with the court because the order has placed him in financial hardships as he tries to pay school fees for the children of the marriage and | also hear him submitting that the 20% is excessive. The respondent speaks for her own financial hardships. She further informs the Court that the applicant does not come with clean hands because he has not complied with the order of the Court. The cardinal principle is that courts do not make the practice of depriving successful litigants fruits of judgement made in their favour. It is not the usage of our courts to stay execution of judgement unless there are compelling reasons to do so, see The State, The Governor of the Reserve Bank of Malawi v CLF Forex Bureau “nd others MSCA Civil Appeal No 11 of 2010, Auction Holdings Limited v Sangwani Judge Hewa and others, MSCA Civil Appeal No 69 of 2009. A major consideration in applications for stay of execution of judgement has been whether if judgement was met and the appeal was subsequently successful, the appellant would have no redress; cases abound. To the present application, the Court has been told that the applicant has in fact not attempted or continucd to comply with the order he complains about. He therefore does not come to Court with clean hands. Before me, it did not seem that the applicant vigorously challenged that assertion. He has or is complying wit!) the order to pay K200, 000.00 for the house in the village but he has not come out absolutely clear on his compliance with the 20% of his gross salary as monthly maintenance. Secondly in the nature of the ordcr of maintenance it would not be expected that it would be paid back in the event of the appeal succeeding. Without pre-empting ''ie appeal, the most that would be done is to reduce the amount of maintenance and at worst to remove the order altogether. The question of the appeal being rendered nugatory is therefore highly unlikely. For all these considerations, the scale tilts towards refusing this application and | so do. Each party shall bear own costs. Made in Chambers this 24°" day of April 2013. A. K. CN ironda, SC Justice of Appeal