Selemani v Selamani (Civil Cause 381 of 2017) [2017] MWHC 886 (24 January 2017)

NE cet HIGH ee COURT ? wi BR aA fe ww i “Weterctimene f Ron seman IN THE HIGH COURT OF MALAWI CIVIL DIVISION PRINCIPAL REGISTRY CIVIL CASE NO. 381 OF 2017 BETWEEN MARGARET SELEMANT..........ccccessessesteeseeeseesseeeseeeseeeseeeneees CLAIMANT TAONA SELEMANI........ 00. cceceece eee ee eee eaee ceneeneeees DEFENDANT CORAM His Lordship N’riva, Judge Mr. E Banda of counsel for the claimant Mr. Kuleza Phokoso of counsel for the defendant Mrs. Mtegha Court Clerk RULING The claimant commenced this summons for an interlocutory injunction. She seeks the court to make an order prohibiting the defendant by himself or any the other person from keeping Mr Charles Selemani from her in a marriage. The claimant is a wife of Charles Selemani. Mr Selemani is said to have suffered stroke and is need of regular care. In her statement, the claimant states that she has been, all along, taking care of Mr Selemani. One time, Taona Selemani, the defendant and son to Mr Selemani, offered to relieve her and take care of Mr Selemani for three weeks. At the expiry of that period, Taona never returned Mr Selemani to her. Therefore, the claimant is seeking the order of the court ordering the defendant to stop keeping Mr Selemani and, as she put it, harbouring him away from her as his wife. According to the sworn statements when she went to see her husband, she observed that his health had deteriorated. She said that the defendant was kept in a dark small room and was not being taken care of. She initiated proceedings at the First-Grade Magistrate’s court sitting at Thyolo district which gave a judgement in her favour. Later, the High Court stayed the decision. Later, the Supreme Court stayed all the proceedings concerning the parties. The claimant argues that her case is that the defendant is depriving her of the right to consortium with her husband. She said despite indications that the issue could be resolved amicably, there is lack of seriousness and dishonesty on the part of the defendant by failing to attend meetings. She said that all that she wants is to have her husband back have proved to be futile. She said she suffered gross embarrassment to her dignity in the community as people in her community know that the defendant has snatched her husband from her. She said that she has legal advice that the rights of the defendant could not supersede her rights. She argues that an interlocutory order would be appropriate so that the defendant should give her access to her husband. She argues that inconvenience weighs more against her not having her husband than the defendant not having his father. She also said that the husband is the breadwinner and therefore she is deprived of her livelihood as by that time they would have been cultivating in their field. Counsel for the claimant argues that before this court is a new claim all together. The claim is of loss of consortium and that the court should make an order stopping the defendant from harbouring the patient until the determination of the matter. Counsel has argued that there is a serious issue to be tried in this matter, which is whether the claimant’s right to consortium can be safeguarded. Counsel further argues that damages would not be an appropriate remedy arguing that no damages can meet the right to consortium such as expression of love and the recognition of marriage. Counsel argues that these are emotional issues which cannot be remedied by an award of damages. Counsel argued that marriage has to be respected as it is a constitutional right. Counsel argued that it is only just for a man to be living with his wife and that there was no good reason why the claimant should be deprived of her husband. On the other hand, counsel for the defendant has argued that the application in this court is an abuse of the court process. Counsel argues that this has been a long- standing matter and that it is pending in the Supreme Court. Counsel said that the Supreme Court gave orders that Mr Selemani should be brought before a board of doctors to certify if he is in a vegetative state. Counsel said that after that, the parties would be free to commence guardianship proceedings. Counsel has argued that the defendant acted on the orders of the court by writing the Queen Elisabeth Central Hospital board of doctors to set a date for certification. He said that all the courts mentioned in this matter were aware that the claimant as a wife has a right to consortium and to maintenance. He said that in the proceedings the courts were not satisfied that the claimant was not fit to have custody of Mr Selemani. Counsel further argue that the Supreme Court did not order custody of Mr Selemani to the claimant. He said that there was an order to set aside the injunction of the High Court but it did not set aside the order granting custody of Mr Selemani to the defendant. On that point, counsel argued that this application is an abuse of the court process. He retaliated that the SC to give directions on which the bodies had to act upon. while the defendant started acting on the directions of the court, the claimant brought in this new proceeding before this court. Counsel cited the decision of Zgambo v Kasungu Flue Cured Tobacco Services (Malawi) Ltd [1987-89] 12 MLR 311 where the court said that seeking the same reliefs in different courts is an abuse of court process. Secondly, counsel argued that the claimant did not bring to the court all these facts. Counsel argued that the status quo is that the patient is currently with the defendant. Counsel further said that the claimant has suppressed material facts such as that the High Court made a freezing order of the accounts of Mr Selemani. He further said that it was not true that the defendant had access to Mr Selemani’s bank account but that the court froze the account and allowed the defendant to withdraw K4,000,000 for the benefit of Mr Selemani. This issue, of bank account, did not come up in the claimant’s sworn statement. It has, however, arisen in the skeleton argument. Therefore, it seems to me that the issue of money or Mr Selemani’s bank account is also in issue in this matter. Of course, the claimant argues all that she wants is to have access to her husband and nothing else. Nonetheless, elsewhere the claimant raises the issue that Mr Selemani is her bread winner. She says by then they would have been cultivating in the field. It appears there is also the issue of money. Elsewhere, there are arguments that the Court froze the account in question. This only shows that there is much more to this application for an injunction and also the issue of claim for consortium, as it were. In any event, not all the circumstances of the matter are coming out clearly. The claimant has not brought enough material on the proceedings that took place in the Magistrate’s court, the High Court and the Supreme Court. It seems to me that these proceedings have a direct bearing on this application, much as the claimant argues that the issue in this matter is independent of those proceedings. The claimant is not coming out clearly as to how the other courts dealt with the issues of the relationship and connexion between the claimant and the defendant in relation to Mr Selemani. Of course, it is said that the Supreme Court suspended all the proceedings. It seems to me, however, that notwithstanding the stay, the issue before the Supreme Court is related to the matter in this application. As the order shows, before Lord Justice Twea SC was an application for an order as to who should be the guardian for Mr Selemani. Hearing the parties, there has been a long history of litigation between the parties. There have been issues of the claimant’s fitness to have the custody of Mr Selemani. Surely, I believe there cannot be a disconnection between the issue of custody of Mr Selemani in relation to his wife and the wife’s claim of right of a married life to her husband. In my considered opinion, the claimant’s assertions are not coming out with a full and frank disclosure of material facts. It seems to me that it would be unsafe to grant the injunction to the claimant. There are, seemingly, more issues to be dealt with. | have been informed that the Supreme Court gave direction that Mr Selemani should undergo medical assessment. I have had a look at the order of the Court. The order suggests that issues akin to proceedings for the protection of Mr Selemani might follow from that exercise. As | have pointed out, we cannot separate the issue of custody or protection from the issues that the claimant is raising. Any order that would follow from proceedings subsequent to the result of medical examination would affect the association between the claimant and her husband. It is not incumbent on me to delve into how such an issue can be pursued. Suffice to say that if a Court orders the protection for Mr Selemani, whichever way, that would have practical ramifications on the matrimonial relationship in the matter. Therefore, much as medical assessment is not a court proceeding, I believe that that exercise is arising out of a judicial proceeding that emanates form several other judicial proceedings concerning the same parties. The issues are related. They arise from the same factual background. I tend to buy the defendant’s argument that the claimant’s application is an abuse of the court processes. The medical examination emanates from the very facts that are supposed to be before this court. The aim of the medical report, I believe, is to forge the way forward on the wrangles between the parties in this matter. In summary, | dismiss the application for an interlocutory injunction with a right of appeal to the claimant. I will not award costs to the defendants. This is because although the hearing was with notice to the defendant, the defendant filed documents very late and I ordered the documents to be ineffectual. DELIVERED the 24" day of January 2017 J N’riva JUDGE