Banda v George (Civil Appeal Case No. 101 of 1912) [1979] MWNTAC 1 (22 October 1979)

IN THE NATIONAL TRADITIONAL APPEAL COURT SITTING AT LIMBE, BLANTYRE. CIVIL APPEAL CASE NO. 101 OF 1912 BETWEEN ROBERT KATUNDULU BANDA ……………………………APPELLANT AND ENELESI GEORGE ……………………………………………RESPONDENT JUDGEMENT Thin is an appeal at the instance of Robert Katundulu Banda from the decision of Nchima Traditional Court. The appellant sued the respondent in detinue claiming a return of his property consisting of certain items of clothing, beddings and some household property, to the value of K713.25, which property was alleged to have been wrongfully removed by the respondent from the appellant's house at Chikwawa Police Lines, and also cash amounting to K195.00. After a full trial, the Court found the respondent not liable and dismissed the appellant's claim accordingly. According to the evidence taken at the trial, the appellant had proposed marriage to the respondent, and assured her that he had divorced his first wife and had sent her back home to Kasungu, which was also the appellant's home. The respondent accepted the appellant's proposal and told him to bring his advocates to meet her people according to the customary law of marriages prevailing in her area -Thyolo District, but the appellant stated that he would bring his advocates at a later date since they were far away in Kasungu. The parties then went into cohabitation and lived together in Police Lines at divers Police Stations where the appellant was employed as a Police Officer. In the Police Force no, one is allowed to keep a woman in the Police Lines unless he is lawfully married to her, but the appellant told this Court that by special agreement with various Police Officers-in-Charge, he was permitted to keep the respondent in the lines as his lawful. wife, although he stated that no marriage was intended, but mere concubinage. It appeared to us, however, that the appellant did not make known his intention to the respondent. The parties lived together happily for nine years, but there was no issue. The respondent from time to time, reminded the appellant about his advocates, but the appellant played delaying tactics until one day, his first wife re-joined him at Chikwawa. The appellant kept the two women together in his house, but they would not get on well. Troubles started in the family. According to the appellant, the respondent was not happy with the appellant's wife, and so, she quarrelled with the appellant. The appellant started to treat the respondent with cruelty and beat her frequently. The respondent told both the trial court and this court that he even beat her with a baton and she reported the incident to the Officer-in-Charge of the Police Station. But the- appellant beat her again and told her that should she report to the Officer-in- Charge, again, he would kill her. The respondent sustained a leg injury in the course of being beaten by the appellant and was admitted in hospital where she stayed for one month. Upon being discharged from hospital, she [informed the appellant that she wanted] to go home, but the appellant pleaded with her and persuaded her to stay on. The respondent insisted that she should go home. The appellant reported the matter to the Officer-in- Charge and requested him and other Officers to assist, but the respondent would not change her mind. At the material time, the respondent's mother was with her at Chikwawa, having gone there to see the respondent's child which was sick, end she saw what was going on. According to the respondent, the appellant grew angry and started to throw the respondent's various items at her. The respondent picked those items and packed them, in a suitcase and early in the following morning, left the Police Lines with her mother to go home The appellant and his uncle, a Mr. Mbingwa, later followed the respondent to her home and there told the people that the respondent had ran away with his property worth K713.25 and also K195.00 cash. The respondent told him that the things she had brought home, were those which he had thrown at her by himself and that she had even left a of her own things in the house. And since the two could not reach any agreement, the appellant instituted court proceedings in detinue, which action was dismissed by Nchima Traditional Court. After a careful. consideration of the evidence obtaining on the record of the trial court, and upon hearing both parties, we were satisfied that the appellant did not intend a marriage with the respondent because he knew that one day, his wife from whom he was living in separation, would re-join him, which she did, thus putting a stop to his concubinage with the respondent. And in the eye of the law, although the two lived together in cohabitation for as long a period as nine years, they did not, and could not, derive any rights or obligations under that union in the absence of Chinkhoswe. This court has stated in a number of cases before that it does not, and will not recognise a union of any duration whatsoever as amounting to a valid marriage if Chinkhoswe rules have not been complied with in accordance with customary law. Emphasis has been put on the fact that Chinkhoswe, does not only validate a marriage, but it does create rights and obligations enforceable by our courts. In the circumstances of this case we concur fully with the decision of the trial court, although it merely said that it was not satisfied with the evidence adduced by the complainant, and did not elaborate. Our reasons for concurring with the decision are as follows: - (1) In our traditions, when a wife, a concubine or a prostitute lives with a man in his house and renders him all services required of her as a wife, a concubine or prostitute and in the end that man lets her down, and under annoyance or frustration of her hopes she damages, or take, away his property, she does not commit any offence or a tort to entitle the man to recover; he has no remedy whatsoever. And in the case before us, even if it were proved to the satisfaction of the trial court that the respondent had, as a matter of fact, removed and taken away the property which she was alleged to have done, that would not have constituted an offence or a tort in which the appellant would have been entitled to recover. This would have been purely a domestic affair within the jurisdiction of ankhoswe. (2) The appellant told this court that he, and his Officer-in-Charge accompanied by the appellant's uncle, Mr. Mbingwa, followed the respondent to her home and there, confirmed that the respondent had arrived safely with the properly, but the property was not produced to them, and so, they had a discussion with the Village-headman after which they went away. Both the appellant and his Officer-in-Charge, and also the said Mr. Mbingwa, were men of their calling, who would have been expected to be capable of dealing with the situation and to know what to do. And being persons of some authority, there was nothing to prevent them to obtain a search warrant from the nearest Police Station to enable them to search the respondent, her mother and relatives in order to recover the property. If they had dispossessed the respondent of the property, they could have taken it away, and that would have been their good luck, although the respondent would have fought for it. (3) It was in evidence that when the matter was discussed with the Village headman, the appellant suggested that the respondent should not attend the discussion, why? In our view this tended to show that there was something fishy about the allegation. (4) The respondent told the trial court that on the one occasion, the appellant used a baton in assaulting her. This piece of evidence was not challenged by the appellant, or if it was, the fact was not recorded by the court and in the absence of anything to the contrary, we have to accept her evidence. In our view, that was an unprecedented cruelty, because we do not think that batons are issued to Police officers so that they can use them in beating their wives. We would have thought that batons were intended to be used on criminals, but the respondent was not a criminal and yet, to our surprise, the Officer-in-Charge, to whom the incident had been reported, did not take any action on it. Their Lordships take a very serious view of this fact. On the whole of the evidence, therefore, we are satisfied that a part from anything else, the appellant treated the respondent with cruelty towards the end of their cohabitation, a thing which he ought not to have done by reason of the fact that he was not lawfully married to her. We, therefore find no justification for interfering with the decision of the trial court and, accordingly, we dismiss the appeal. Appeal dismissed HON. JUDGE CHIEF CHIMUTU (ACTING CHAIRMAN) HON. JUDGE CHIEF KATULI H ON. JUDGE CHIEF MSAKAMBEWA HON. JUDGE MR. C. C. J. CHIPINGA (MEMBER) HON. JUDGE MR. B. W. KALUKUSHA (MEMBER) PRONOUNCED IN OPEN COURT AT LIMBE, BLANTYRE THIS 22ND DAY OF OCTOBER 1979.