Manchichi v Manuel (Civil Appeal 1 of 1979) [1979] MWNTAC 4 (29 May 1979)

IN THE NATIONAL TRADITIONAL APPEAL COURT SITTING AT LIMBE, BLANTYRE. CIVIL APPEAL CASE NO. 1 OF 1979 BETWEEN W. N. MANCHICHI …………………………………….……………. APPELLANT -VS- FANNY MANUEL ……………………………………………………... RESPONDENT CORAM: HON. JUDGE CHIEF CHIMUTU (CHAIRMAN) HON. JUDGE CHIEF NAZOMBE (MEMBER) HON. JUDGE CHIEF MLONYENI (MEMBER) HON. JUDGE MR. C. C. J. CHIPINGA (MEMBER) HON. JUDGE MR. N. J. MHONE (MEMBER) This is an appeal against the decision of Tambala Traditional Court. JUDGMENT The appellant and the respondent promised to get married, and before their proposed marriage was sanctioned by ankhoswe, they went into cohabitation and lived at the appellant's grocery. Efforts were made by the parties to get the ankhoswe of both sides together so that they should meet and sanction the marriage, but this was to no avail, and so the marriage failed to acquire any legal recognition. During their cohabitation, the appellant started to treat the respondent with cruelty and later, he chased the respondent from the grocery, accusing her with being too jealous with him. After the respondent had returned to her home village; the appellant built a house for her there, but thereafter, he wilfully neglected her. In April, 1978, the respondent sued the appellant on the ground that he had chased her without any proper reason, and the court ordered the parties to reconcile and also to get their marriage sanctioned by ankhoswe, but ankhoswe never met in order to establish a legal marriage. Upon hearing both the appellant and the respondent in this court, it is clear that ankhoswe of both sides were not willing to sanction the marriage. At first it was the respondent's ankhoswe who refused to meet their counterparts, but later when these were willing to come forward, the appellant's ankhoswe refused to compromise, and so the marriage remained illegal for 6 years, and cohabitation completely ceased and as a result of this, the respondent instituted court proceedings on the grounds of desertion and wilful neglect in the same court that had ordered a reconciliation [the court of first Instance]. The Tambala Traditional Court found the appellant liable and ordered him to pay K150.00 compensation to the respondent with costs, and thence the case found its way to this court. The trial court purportedly ordered a dissolution of the marriage. There was not issue to the said marriage, but the appellant has informed this court that he built a house for the respondent at her home village. After considering the evidence very carefully, and upon hearing both the appellant and the respondent, this court is satisfied that there was no marriage between the parties, such as could be recognised by this court, or any other Traditional Court. We know that marriage is a social agreement between two persons, but in order that such agreement may acquire legal recognition under traditional customary law, the agreement must be sanctioned by the establishment of chinkhoswe. And as it has been said in a number of oases, this court does not recognize any union, or cohabitation and constituting a valid marriage in the absence of chinkhoswe. In those areas where the payment of 'lobola' is the prerequisite of a valid marriage, legal recognition can only be acquired on the payment of 'lobola'. Chinkhoswe does not only validate a marriage, but is also of a binding force on the parties, and does create rights and obligations enforceable by the courts of law. In the present case, the parties and their sides failed to establish chinkhoswe for 6 years and, therefore, the purported marriage was null and void because it did not conform with the customary law rules for the creation of a valid marriage. This being so, the court erred by ordering the appellant to. pay the sum of K150.00 to the respondent as compensation, or any sum at all because the parties' marriage had no rights and obligations attached to it. It would have been otherwise had there been any issue for in that case the court would have considered the welfare of the children because the courts do not regard the innocent children as being a party to the illegality. See Civil Appeal Case No. 16 of 1979 Khembo -vs- Khembo, where this court confirmed a maintenance order of K12.00 per month for three children born of an illegal marriage and the mother got nothing. In the circumstances of this case, therefore, we are inclined to allow the appeal and quash the order for payment of any compensation to the respondent. If the appellant paid any part of the sum of K150.00 in response to the order of the court, we hereby direct that the money so paid be refunded to the appellant. Appeal allowed. DELIVERED IN OPEN COURT AT LIMBE, BLANTYRE THIS 29TH DAY OF MAY, 1979