Sande v Sande & 2 Others (Civil Cause 117 of 1985) [1987] MWHC 21 (11 November 1987)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CiviL CAUSE NO.117 OF 1985 BETWEEN : IGDORAL DD SANDE eG eo os o»2 PETITIONER == ang —— SUSAN SANDE...... 0s wee es ees Dae ee ee ees ak e*+ RESPONDENT =— and —— PETER MKUKUMILA...... ee ese re oeeo CO~RESPONDENT = and - INES? MAGOMBO......ce.ce <5 pos Cs ae =e ee PARTY CITED Coram: UNYOLO, J. Nampota, Legal Aid Advocate, for the petitioner Respondent, present, unrepresented Co-respondent, present, unrepresented Longwe, Court Reporter Namvenya, Official Interpreter JUDGMENT The petitioner, McDonald Sande, asks for the dissolution ef his marriage with the respondent, Susan Sande, on the ground of the respondent's adultery with the co-respondent, Peter Mkukumila. The respondent denies the allegation herein and in turn cross-petitions for the dissolution of her marriage with the petitioner on the ground of the petitioner's adultery with the party-cited, Inesi Magombo. The petitioner denies the allegation. The petitioner and the respondent were married at the office of the Registrar General in Blantyre on the 4th August 1979. Both of them are Malawians, resident and domiciled in the country. After the celebration of the marriage the parties lived and cohabited firstly at Zingwangwa and then at Bangwe, in the City of Blantyre. There are two children of the marriage, a girl and a boy born on the 4th February, 1980 and the 19th December, 1981 respectively. ae it iS, I think, pertinent that I go back a little at this juncture. It is evident from the total facts that relations between the petitioner and the respondent soured not long after the parties were married. It was in the respondent's evidence that things got worse after the birth of the second child in 1981 when the petitioner intimated that he wanted her to leave the matrimonial home. She testified that having noticed that she would not leave, the petitioner then packed up his belongings on the 7th July, 1932 and walked out of her. He did not come back or send any kind of support to her or the children. The respondent said that after several days she reckoned that she had no option but to leave and so she went to live with her elder sister, DW2. Vhat was on the 1lith duly, 1982. These facts, it is to be observed, were not seriously disputed. Indeed it is common case that the petitioner and the respondent were living apart at the time the matters forming the subject matter of the petition herein allegedly occurred. Pausing there, let me say very briefly that I have reminded myself about the standard of proof required in divorce cases. I would cite the case af Nvangulu_v. Nyangulu, Civil Cause No.108 of 1982 (unreported) which, in my view, correctly sets out the applicable law on this subject. I shall deal with the petition first. The petitioner testified that he went to the house of DW2 in company of two members of the youth league where, as I have indicated earlier, the respondent was living. He said this was in the evening just after eight o'clock. It was in his evidence that when he and the other two men arrived at the house they found the door locked. He knocked but nobody answered the door. He said that if anything the lamplight inside the house was immediately extinguished and that it was only when one of the members of the youth league spoke that the respondent opened the.door, dressed only. in a "“chitenje" wrap-around cloth, Next the co-respondent appeared From . the bedroom and he was wearing long trousers only; the shirt was in his hand. He said that he concluded the respondent and the co-respondent had been committing adultery in the house. With the aid of the two members of the youth league, so the petitioner. said; he took the respondent and-the. co-respondent to the party chairman in the area and lodged a complaint there. The only other material witness called on the part ef the petitioner, in so far as what transpired at DW2‘s house is concerned, was PW2, one of the two members of the youth league, already mentioned. This witness said that he remembered the exact date when the incident occurred; on the 28th October, 1984. The witness testified that he was at his house when at 9.30 p.m. the petitioner came and asked for assistance. He amplified this by saying that the petitioner actually said that he, the petitioner, had found a man at his house and had failed to apprehend the man in question on his own, And it was PW2's evidence that in response he and a colleague of his accompanied the petitioner to the petitioner's house where they found the respondent and a man, who turned out to be the co-respondent herein, in the house. It was also this witness‘ evidence that when they got to the house the lamp was on and that the light was however put out when they knocked at the door. It was also this witness! evidence further that when the door was opened he saw the respondent and the co-respondent only dressed ina chitenje cloth and long trousers respectively. Finally, the witness said that then and there the respondent and the co-respondent were taken to the party chairman. Such was the evidence adduced on the part of the petitioner on this aspect. t now turn to the respondent's evidence. The respondent testified that she continued to live with her sister, DW2, up to 1984. In the meantime she had picked up a job - her former employers had taken her back. She lived there with her two children by the petitioner and shared the house with DW2 and her child. The respondent testified that she spent the day on 28th October, 1984 normally with pw2. in the evening they prepared supper. They had vegetables for relish. She said that when they sat to partake the food her child found the vegetables unpalatable and refused to eat. This was before 8.00 p.m. and it was in the respondent's evidence that for the child's sake DW2 left and went to a neighbour's house to ask for some other kind of relish which the little one would perhaps accept. The respondent testified that not long after DW2 had left, the co~respondent knocked at the door and he was let in and offered a seat. He asked for DW2 and the respondent told him where she had gone and asked him to wait as DW2 would not take long. It was the respondent's evidence that DW2 had told her she had a boy-friend and that when the co~respondent came she concluded this was the man. I will have something more to say on this aspect later on. It was in the respondent's evidence further that shortly thereafter she heard another knock. She opened the door and saw it was the petitioner. She said that the petitioner entered the house and asked who the correspondent was. She explained, i.e., that he was DW2's visitor and further explained where DW2 had gone. The respondent testified that then and there the petitioner Started beating the co-respondent. She said that she tried to remonstrate with the petitioner but without success. It was her evidence ~ that the petitioner disclosed he had received reports to the effect that she had an affair with someone. So he continued to beat the co-respondent. The respondent denied having committed adultery with the co~respondent either on that day or any other day. She denied that the co-respondent was for that matter her boy-friend or lover, She denied that she and the co-respondent were found in the house in the circumstances described by the petitioner and/or PW2. he DW2 was brief in her testimony. She told the court that the co-respondent was at all material times her boy~friend. She said that this relationship had actually gone on steadily for sometime and that the co-respondent did come to the house to visit her on many occasions. She denied that the co-respondent was a boy-friend of the respondent or that the co-respondent came to the house, on the material day, for the respondent. It was also in her evidence that she had gone out to beg for relish the time the co-respondent came to the house. Such was the evidence adduced on the part of the two sides. Simply, the issue here is one of credibility. Whom, as between the petitioner and his witnesses on the one hand and the respondent and her witnesses on the other, should the court believe? That is the pertinent question. Pausing here, I can say at once that my task in resolving this question has not been quite easy. Referring first to the petitioner's case I must say with respect that the petitioner was a very poor witness. He was both a confused and confusing witness. He gave his testimony as if he was deposing to matters he had not himself seen or done. And it is significant to remember that it was the petitioner who ‘deserted’ (I use the word loosely) the respondent, leaving her to fend for herself and for the children yet he knew full well the respondent was not working at the time. The evidence shows that even long after he left he did not care to send any support to the respondent and/or the children. These facts give some pointers as to what manner of man the petitioner was and what his feelings were toward the respondent. Frankly, I did not think that he was a truthful witness. There is another point. This comes out in the evidence of PW2. I have indicated earlier that this witness’ testimony was, inter alia, that when the petitioner came on the material day he said he had found a man at his house and that he needed help because he had failed to apprehend the man in question on his own. Two observations can be made here. First, the petitioner did not say anything of the sort in his evidence and it is odd that such evidence should come only from PW2 and not the petitioner. Secondly, it staggers my imagination to think that if the petitioner had found the co-respondent in the heuse in the circumstances described, would the co-respondent have stayed on in the house while the petitioner went to summon PW2's assistance? Surely, he would have decamped immediately rather than make himself a Sitting duck, as it were, tere in the house. Further, pyw2 himself did not impress me very much as a reliable witness. This witness said that the incident herein occurred not at DW2's house but at the petitioner's house. fe said that he knew both DW2's house and the By ie sas petitioner's house and asserted that the incident occurred at the petitioner's house - an assertion which cannot stand in the light of the total evidence in this case. It may well be true, like the respondent said, that this witness did not actually come to DW2's house but that he joined in on the road as the party was going to PW3's house. To make a long story short, I also have doubts about the truthfulness of Pl2. it is also to be noted that according to Pii3 both the respondent and the co-respondent were properly and fully garbed at the time these two were brought before him that evening. This contradicts, in my judgment, the petitioner's and PW2's evidence who said that the resnondent and the co-respondent were only drassed in a chitenje and Teng trousers respectively at the time they came to DW2's house. So when did the respondent and the co-respondent dress up? Surely I should expect the petitioner to have brought the respondent and the co-respondent before the party chairman, PW3, still suspiciously dressed and use that as evidence of the allegation that the two had been committing adultery. This weakens the petitioners case aven further. On the contrary, I found both the respondent and DW2 to be very impressive witnesses. They gave their evidence in cool and dispassionate manner. DW2 actually emerged unshaken in her assertion that the co-respondent was her boy~friend and not the respandent's. She denied the co~respondent came to the house far the respondent. I am mindful of the fact that this witness is related to the xespondent but all the same I think that she spoke the truth. She was also supported by the co-regpondent himseIF on this aspect. I think that the petitioner was just looking far faults with the respondent. and that. he used the incident herein and twisted the facts in order to avail himself of a pretext for formally terminating the marriage. I regret the petition cannot succeed on the available evidence and I dismiss it. I now turn to the cross petition. Here, I can say at once that the cross petition must fail on a technical and procedural point. I have already indicated that the respondent's case on this aspect is that the petitioner. committed adultery with the party-cited. It is however noted that the party-cited was not served with the -cross. petition in question. Under the provisions of Rule 17(3) of the Matrimonial Causes Rules 1950, the respondent was required to have the cross petition served on the Selves: In fairness to the respondent it must be mentioned that. an attempt was made to serve the cross petition but the party cited was reportedly not found at the address given. The respondent did not however apply to the court for substituted service or for an order that service of the said cross petition be dispensed with altogether. With respect the rules are clear. JI can only sympathise with the respondent in that she was not properly advised. I cannot however proceed to consider the merits of her case in these circumstances. I therefore dismiss the cross petition, leaving it open to the respondent to start all over again if she is so minded in this regard. I now turn to the question of costs. Here, it is well settled by well-known authority that the court has a discretion whether or not to grant costs although, of course, such discretion is exercised judicially. With regard to the petition not only have the respondent and the co-respondent defended themselves successfully, I can also find no reason upon which the court would refuse them their costs. I therefore condemn the petitioner in both the respondent's and the co~-respondent's costs of the petition. Such costs are to be agreed or taxed, if not so agreed. I, however, make no order as to the costs in regard to the cross petition simply because the respondent has, in this judgment, failed only on account of a procedural point. I also wish to add, with respect, that regrettably the appropriate officers of the court, along the line, did not handle the processing of the case herein with the desired alertness. It would, in my view, be grossly unfair to condemn the respondent in costs on these facts. Pronounced in open Court this llth day of November, 1987 at Blantyre. oo) LE. Unyolo JUDGE