Goodson v Chidothi (Civil Appeal 6 of 2020) [2024] MWHC 50 (4 October 2024)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CIVIL APPEAL NO. 6 OF 2020 (Being Civil Cause No. 21 of 2019 in the Third Grade Magistrate Court Sitting at Machinga) MAUREEN GOODSON APPELLANT AND CIDRICK CHIDOTHI RESPONDENT CORAM: HON. Z NTABA, J. Mr. S. Mchenga, Counsel for the Appellant Respondent Absent and Unrepresented Mr. D. Banda, Official Interpreter and Court Clerk Ntaba, J JUDGMENT 10 BACKGROUND 1.1 The Appellant brought a matrimonial cause before the Third Grade Magistrate sitting in Machinga around early 2019 and the claim was against Cidrick Chidothi, Joshua Phiri and Spy Gawamadzi. Both parties were self-represented. The Appellant cited a number of grounds including desertion by the 1“ Defendant and interference by the 2" and 3" Defendants who was the 1* Defendant’s marriage advocates. The lower court heard evidence that the two were engaged and started cohabiting in 2015. She also stated that she followed her husband who was living in the Republic of South Africa in 2018, but they returned to Malawi for a chinkhoswe. In February, 2019, she returned to Malawi to nurse her sick mother. As she was in Malawi, she was informed that she should not return to South Africa by the Respondent. According to the Respondent, he made this decision because of the Appellant’s refusal to convert to his religion, that is, Seventh Day Adventist as well as insubordination for terminating their relationship. In response, the Appellant sought the assistance of the 2"! Defendant as well as 3! Defendant to resolve the matter. However, when they failed, she returned to South Africa where she was denied entry to their matrimonial home, and she was also informed that the Respondent is seeing another woman. She had argued that she had not joined the Seventh Day Adventist religion because at the time of their marriage, he was practicing Islam as she was. Further in terms of the issues raised by the Respondent, the same were not raised with the Appellant’s marriage advocate as per custom. Notably, Maureen Goodson v Cidrick Chidothi 1 at the lower court the Respondent did not appear in person despite being notified of the proceedings. The 2" and 3 Defendants gave testimony and confirmed that the Appellant had lodged a complaint with them but that they failed to resolve the matter and stopped after the Appellant returned to South Africa. 1.2 On 15" May, 2019, the lower court delivered its decision and found that there was no customary marriage between the parties as set out in section 26, 27 and 28 of the Marriage, Divorce and Family Relations Act (hereinafter referred to as ‘the MDFRA’). The lower court found that the Appellant did not prove any of her grounds however ordered the Respondent to pay her K500, 000.00 as compensation as well as monthly support of K25,000.00 for the child as an interim order until a substantive order of the Child Justice court. On 15” July,2019 the lower court delivered a distribution order in which Mike Chidothi was allowed to join as an. The lower interested party. The lower court ordered that both properties were the subject of the application were not joint property and Mike Chidothi’s application was dismissed court proceeded to award the house in Chinamwali to the Respondent and the vehicle to the Appellant. On 18 September, 2019, she prayed for the lower court to stay its decision and which was granted on 24 September, 2019. It is against the lower court decision that that the Appellant has appealed on and raised the following as grounds - 1.1.1 the lower court erred in law in finding that there was no marriage between the Appellant and the Respondent; 1.1.2. the lower court erred in law in failing to make an order that the Respondent should build the Appellant a customary house; 1.1.3 the lower court erred in law in refusing to make orders with respect to property acquired by the parties outside the jurisdiction; 1.1.4 the lower court erred in law in failing to recognize the Appellant’s interests (share) in R and M Interiors and distribute the same; accordingly, and 1.1.5 the lower court erred in law in awarding and ordering that the Chinamwali house should be given to the Respondent. 1.2. During the appeal petition, the Appellant adopted her grounds of appeal as well as skeleton arguments. She argued that there was a customary marriage between her and the Respondent as per section 26 of the MDFRA. The Appellant did concede that there must be notification to the Registrar of the intention to marry as per section 27 of the MDFRA. She cited that her marriage was duly witnessed by advocates as per Kamangira v Kamangira [2004] MLR 135 (HC). She further argued that courts have always recognized marriages as valid customary marriages where there is consent to marry from families of both parties and have marriage advocates as per as Agnes Sande v Bernard Sande, Matrimonial Cause No. 46 of 2008 (HC)(PR)(Unrep). Additionally, she argued that on the issues of validity of a customary marriage that has failed to conform to statutory formalities, the approach for Malawian courts is to look at substance rather than form as held in Kamcaca v Nkhota [1966-68] MAL 518. 1.3 She further argued that the principles of distribution of matrimonial property upon dissolution of a marriage are provided for under section 24(1)(a)(i1) and 24(1)(b) of the Constitution. In terms of matrimonial property, she relied on Maureen Goodson v Cidrick Chidothi 2 Watchel v Watchel [1973] Fam 72 @ 90 where it was described as those things which are acquired by one or both parties with the intention that there should be a continuing provision for the joint lives and used for the benefit of the family as a whole. She also cited the Supreme Court decision of Rachel Sophie Sikwese v Gracian Zibelu Banda MSCA Civ. Appeal No.76 of 2015 where it was held that section 24 of the Constitution is conversely true that both parties in a marriage can independently acquire and own property different from the property that is owned jointly. Property held jointly has the intention that property will be held jointly or some contribution to the acquisition by the party claiming a beneficial interest. Further Nriva J in Esther Chanza v Frank Chanza stated that court should take into account when distributing matrimonial property, direct and indirect contributions made by spouse through performance of domestic duties. She contended that the law in terms of its applications to the facts of this case were in her favour that a marriage subsisted between her and the Respondent. Further that the lower court failed to fairly distribute matrimonial property. The Appellant prayed for the following reliefs — 1.3.1 an order that there was a valid marriage between the Appellant and Respondent; 1.3.2 an order reversing the ruling on distribution of matrimonial property and redistributing the property; 1.3.3. an order that the Respondent build the Appellant a house under customary law; and 1.3.4 an order condemning the Respondent with costs of this action. 1.4 The Respondent was not present nor represented. He also did not put into court any documentation to support his case as he had done in the lower court despite being served with notice of the hearing of the appeal. 2.0 LAW AND FINDINGS 2.1 Appeals in Malawian courts are supposed to be heard de novo, that is, they are to be heard like a rehearing of the matter which means that fresh evidence can be adduced. In terms of the matter herein, this Court did not hear the matter de novo because the appeal was uncontested and further, there was adoption by the Appellant of their evidence in the lower court. Additionally, this appeal was determined on the skeleton arguments filed by the Appellant. Accordingly, the Court will therefore review the entire lower court record and inquire further into the matter as justice may require. In determining the appeal, the High Court shall satisfy itself as to the correctness, legality or propriety of any finding, decision or order recorded or passed, and as to the regularity of any proceedings before any such subordinate court. 2.2 At the onset of this appeal, the Court determined if it had jurisdiction to hear this appeal in terms of the MDFRA. The said Act is applicable to marriages entered into on or after the day it came into operation however Part IX on rights and obligations of parties to a marriage shall apply to marriages regardless of the date they were celebrated as provided in section 3. The MDFRA according to the Malawi Gazzette Supplement dated 31st July, 2015, came into operation on 3rd July, 2015. Notably, the lower court evidence showed that the parties Maureen Goodson v Cidrick Chidothi 3 undertook marriage formalities in 2015 with no specific date or month indicated, this Court therefore determined the MDFRA 1s applicable to this matter to determine the type of marriage however even if not for the type of marriage, the Act is fully applicable to the nghts accruing thereunder upon divorce. 2.3 Secondly, the Court in determining this matter examined on whether the Third Grade Magistrate Court had jurisdiction to handle the divorce petition as well as distribution of the property as per section 39 of the Courts Act deals with the civil jurisdiction of courts magistrates. Section 39 (1) (d) provides that subject to this or any other written law, in exercise of their civil jurisdiction the courts of magistrates of third grade shall have jurisdiction to deal with, try and determine any civil matter whereof the amount in dispute or the value of the subject matter does not exceed K750, 000.00 in the case of a magistrate of the third grade. Notably, in Ellen Shaba v David Kaonga, Civil Cause No 96 of 2008 (Mz HC)(Unrep) the court stated that where a customary law divorce is sought, the lower court should proceed to determine the matter and proceed to deal with all other ancillary matters to do with custody of children and distribution of property save of course where land is in issue or the value of the property exceeds the jurisdiction. 2.4 Thirdly, in dealing with this divorce petition, this Court also reviewed another jurisdiction issue, that is domicile as one party was not domiciled in Malawi. Notably, in this matter, both parties are Malawians, and the Appellant is domiciled in Malawi. Furthermore, the alleged marriage was conducted in Malawi. Accordingly, this Court is satisfied that there are sufficient links for domicile purposes as such it will proceed with handling this petition. 2.5. Turning to the appeal, the lower court which had the jurisdiction to hear athe matter ruled that the parties had done the traditional formalities however he did not hold that there was a customary law marriage because they did not fulfill the formalities set done in section 37 of the MDFRA. It highlighted that the parties should have traditionally publicized their intention as such there was no desertion as well as negligence. Surprisingly, the same lower court went on to conclude in the last two paragraphs of the judgment that — “In as much as this court appreciates that marital issues are very emotive and always requiring diligence when handling them as an advocate. I find the effort invested by the third defendant in trying to help the complainant commendable though not suited to the complainant’s interest. As for the second defendant, it is clear that he did not want to help the situation. There is nothing tangible about his involvement. He is a very bad example of an advocate..... In conclusion, looking at the circumstances of this case that the first defendant has made up his mind not to maintain his union with the complainant. This court therefore finds him liable for the breach of promise to marry. He is ordered to compensate the complainant in the sum of K500,000. Further, the first defendant is ordered to be providing monthly support for their child in the sum of K25.000. This order is made in the interim and will Maureen Goodson v Cidrick Chidothi 4 remain effective until a substantive order by a Child Justice ” court is made. 2.6 In dealing with this issue, section 26 of the MDRFA which states that subject to sections 14 and 15, the procedures preceding the celebration of a religious or customary marriage shall be governed by the customs or rites which are usual among the ethnic group, religion or sect under which the marriage is celebrated. Interestingly, the parties and lower court agreed that the traditional formalities were fulfilled as it was noted that per their customs or rites, their families met, and advocates were present. Furthermore, the lower court record also showed that both parties acknowledged that they were married. Notably, the magistrate raised section 27 of the MDFRA for stating that the parties did not fulfill this critical aspect for a valid customary marriage. Section 27 states - (1) A person intending to marry under this Part shall, in addition to the customs or rites referred to in section 26, give notice of intention to marry in writing to a registrar in Form B in the First Schedule. (2) The registrar shall enter the notice in the Marriage Notice Book. (3) The notice shall be displayed for twenty-one days in a conspicuous place on the premises of the office of the registrar. 2.7 Furthermore, the lower court also highlighted that the parties also did not fulfill the prescripts of section 28 of the MDFRA which provides - (1) At the expiry of the twenty-one days referred to in section 27, the registrar shall issue a marriage permit in Form D in the First Schedule. (2) A marriage permit under subsection (1) shall be issued 1f— (a) the parties have complied with sections 14 and 15; and (b) there is no caveat under section 30 lodged against the marriage or if a caveat was lodged, it has been removed in accordance with the procedure set out in Part VI. 2.8 This Court’s review of the lower court record noted that both parties have maintained that they were married, and this was confirmed by the witnesses in the lower court who indicated that they were advocates for the parties. Furthermore, the said witnesses also indicated that the parties were married. It is evident from the lower court record as the Appellant’s submission in this appeal, that they did not comply with section 27 of the MDFRA. This Court is mindful that the law on customary marriages post 2015 is that section 27 of the MDFRA must be complied with. Further that it is the duty of any court with evidence before it, that the marriage was not published and the no marriage certificate was issued, then the ceremony cannot be considered a valid customary marriage even if all the necessary customs and rights have been followed. Accordingly, this Court is unable to fault the decision of the lower court in holding that there was no valid customary marriage on the basis that section 27 and 28 of the MDFRA were not complied with. 2.9 Taking into account the facts herein, it is critical that the Court points out that the non-adherence to the prescripts of section 27, 28 and 29 of the MDFRA Maureen Goodson v Cidrick Chidothi 5 cannot be faulted on the parties. This Court is stating this because this Court has noted that before and after 2015, the only marriages that are published are civil and religious ones. Judicially, this Court took a perusal of cases post 2015 and the decisions have shown that dissolution of customary marriages cases do not address this issue, and courts have rarely verified this aspect. It should be noted that this issue has taken place at different levels of the court from the magistracy all the way to the Supreme Court of Appeal. Incidentally, in the case herein, the lower court only addressed this matter in its judgment and nowhere in the court record did it raise this matter with the parties. If the same was raised, maybe the parties would have addressed the issue or brought evidence if any. It is important the judicial officers remind themselves that they are allowed to pose questions or issues to parties to be addressed so that the responses assist in the determination. 2.10 It is therefore imperative that this Court deal with the parties herein to ensure that justice is delivered. Furthermore, taking into account the issues that the said section 27, 28 and 29 of the MDFRA raise a very fundamental lapse in enforcement, this Court was at pains on how to address it. Firstly, the implications of non-adherence of this section by the highest population of marriages means that a lot of marriages would be rendered null and void. It is not the intention of the Court to create such panic in society. It is however important the Court acknowledges that the law once promulgated must be strictly adhered to by all. It is critical to highlight that a significant reason on why the above sections have been ignored is because the Government through the relevant Ministries of Gender, Justice and to some extent Local Government did not do the needful. The MDFRA created a new regime especially for customary marriages, 2.11 In expanding, the new regime increased the scope of who could be considered a registrar. In section 2 of the MDFRA, a registrar is defined as the Registrar of Marriages or other public officer or other person acting under his or her authority as specified under section 4 (3) whilst the Registrar of Marriages is the public officer designated as such under section 4. . Notably, section 4 of the MDFRA provides that — (1) There shall be the office of the Registrar of Marriages which shall be a public office. (2) The officer for the time being holding or acting in the office of Registrar General shall be the Registrar of Marriages. (3) The following offices shall perform the functions of the Registrar of Marriages subject to the general or special direction of the Registrar of Marriages (and are, in this Act, hereinafter referred to as “registrars” )— (a) the District Commissioner in respect of the district of his or her jurisdiction; (b) a traditional authority with powers to register a marriage under the Act; and (c) a cleric. 2.12 Therefore, the new role that the MDFRA gave to Chiefs was not properly capacitated and further Malawians for the looks of things were also not made Maureen Goodson v Cidrick Chidothi 6 aware of how the new law should be adhered to as previously as long as a customary marriage followed the rights and such was indicated in court, it was sufficient for a court to determine that a customary marriage existed. The case of Mbumba v Mbumba and Another, Civil Case No. 687 of 2006(HC)(Unrep) recognizes that chinkhoswe is a form of marriage at custom. The change in regime means that a lot of investment should have been made and the lack of the said investment could lead to negative legal ramifications as noted in section 5 of the MDFRA which states that the Minister shall, by order published in the Gazette, publish a list of registrars of marriages under this Act whilst section 6 states that the Registrar of Marriages shall deliver to the several registrars marriage register books in duplicate and with counterfoil in Form A in the First Schedule as well as the several registrars shall have custody of the books of marriage certificates delivered to them. 2.13 In buttressing the above, the Court wants to fundamentally note that where parties were all of the idea that they were in a valid marriage, the Courts in Malawi have been empowered under the MDFRA to review the marriages before them and determined on having reviewed the facts and taking into account section 12 of the MDFRA as well as the formalities prescribed in the said Act to determine whether a marriage is a civil marriage; customary marriage; a religious marriage; or a marriage by repute or permanent cohabitation. Notably, for a civil, customary and religious marriage, the formalities to be complied with are provided for in the said Act however for a marriage by repute or permanent cohabitation, the Court has recourse to section 13 of the MDFRA which provides - A marriage by repute or permanent cohabitation shall only be recognized under this Act upon a finding of a court of competent yurisdiction where that court considers— (a) the length of the relationship, which, in any event, shall not be less than five years; (b) the fact of cohabitation; (c) the existence of a conjugal relationship; (d) the degree of financial dependence or interdependence and any agreement for financial support between the parties; (e) ownership, use and acquisition of property; (f) the degree of mutual commitment to a shared life; (g) whether the parties mutually have, care for, or support, children; (h) the reputation of the parties in the community as being married and the public display of aspects of their shared relation; and (1) any other factors that the court considers fit. 2.14 Interestingly, this safeguard of declaring these customary marriages which did not meet the prescripts of section 27, 28 and 29 of the MDFRA as marriages by repute or permanent cohabitation is not available. For instance, for the marriage herein, would fall short as it does not meet the criteria set forth above. Therefore, turning back to the Court’s reasoning that the holding that no customary marriage that did not comply with section 27, 28 and 29 of the MDFRA is invalid or null is evident from the prescripts of section 7 of the MDFRA that every marriage celebrated in accordance with this Act shall be registered by a registrar. Noting that civil and religious marriages do not face these problems of registers etc, one would almost conclude that those married Maureen Goodson v Cidrick Chidothi 7 under custom are discriminated against. This Court is reminded that it is mandated under section 9 of the Constitution which is that it shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws and in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law. As acourt of law, this Court is further reminded that this Constitution shall bind all executive, legislative and judicial organs of the State at all levels of Government and all the peoples of Malawi are entitled to the equal protection of this Constitution, and laws made under it. Accordingly, it is important that those who are married under customary also enjoy the rights and protections espoused in the Constitution including equality and non- discrimination in section 20(1)that is discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, disability, property, birth or other status or condition. 2.15 Accordingly, this Court reminds the executive of its constitutional mandate under section 7 which states that they shall be responsible for the initiation of policies and legislation and for the implementation of all laws which embody the express wishes of the people of Malawi and which promote the principles of this Constitution. It is evident here that the executive with regard to customary marriages and the MDFRA, they have failed Malawians. They have clearly failed to implement the said Act as it relates mostly to customary marriages as noted by the fact that traditional authorities have not been gazetted nor given the requisite instruments to implement the said Act. 2.16 Before this Court moves to the final aspects of this appeal, it is critical that as a Court reminds itself that justice is beyond the legal or traditional meaning which is protecting rights and punishing wrongs using fairness. It is possible to have unjust laws, even with fair and proper administration of the law of the land as a way for all legal systems to uphold this ideal. Notably, justice and fairness are most times closely related and often used interchangeably. There are times courts move beyond justice and look at equity, which is the issue which this Court is stressing in this determination and its emphasis on ensuring that all marriages are equally treated within the law as it was envisaged in the Constitution and even the MDFRA itself. 2.17 In terms of distribution of property after dissolution, Malawian courts have indicated that the issue of distribution of matrimonial property is an issue which should be examined in line with the laws on marriage and divorce with special regard to the Constitution. Consequently, section 20 of the Constitution has stipulated that courts should deal with parties before them equally and without discrimination. Furthermore, there has been a further constitutional protection for women provided for in section 24(1)(a)(11) which guarantees married people the right to acquire and hold property either as individuals or as a couple. Therefore, following the pronunciation of divorce, a court in determining distribution of matrimonial property has recourse as to the type of marriage the parties celebrated. Imperatively, since this case is centred on custom, it 1s Maureen Goodson v Cidrick Chidothi 8 important to highlight Kachale J’s sentiments in the case of Bisweck Mbwana v Patricia Kanthiti, Civil Appeal No. 109 of 2011(HC)(Unrep)(LL) where it was stated that - “The recourse to the wisdom of well-worn jurisprudence becomes all the more pertinent in the context of the manifest socio-economic transformation which has resulted in rapid urbanization and the corresponding dilution of so-called customary law which by its very nature is an evolving concept. In the considered opinion of this court, therefore, it has to ensure that justice is done to the parties without hiding behind some indeterminate rules of custom which were, sadly, not even discussed by the affected parties as may be expected in proceedings of this nature. Thus the court has to ensure that the rights of all the parties are given expression as much as may be possible within reason. In this regard, where a marriage has broken down there is the subsisting need for the living standard of the affected parties to be preserved, as much as practical and economic realities may permit. Furthermore, where there are children, the court would seek to minimize the hardship which inevitably arises in the context of a divorce. In weighing all these matters, where children are concerned, the overriding consideration remains the best interest of the children.” 2.18 Interestingly, property distribution principles for customary marriages used to be based on the customary law under which the marriage was celebrated but with constitutional principles being observed. The case of Lingstone Walita v Juliet Walita, Mat. Cause No. 255 of 2005 (unreported) where the late Justice Mwanyungwa observed that section 24 (1) (b) of the Malawi Constitution modifies any customary law principles on the subject matter by prescribing principles of fair disposition as the operative framework within which the process of sharing family assets must be conducted upon divorce. Incidentally this view was also expressed by Justice Chipeta (as he then was) in Amina Ndalama v Henry Jumbe, Civ. Appeal No. 145 of 2006 (unreported) which held that whereas under applicable customary rules equality of shares may not be applicable however it was his opinion that courts must distribute by ensuring the most equitable and fair distribution. Notably, this position changed with the the Supreme Court in Rachel Sophie Sikwese v Gracian Zibelu Banda MSCA Civ. Appeal No. 76 of 2015 which held that although parties were married under customary law in 1997 however the distribution of their matrimonial property would be based on English common law principles of ownership and intention of the party when purchasing the said property. In terms of the case herein, the facts herein were distinguished in that, despite the Respondent having purchased the said land where the current properties are, the court found that the Appellant significantly contributed to the said purchase as well as the development on the said lands. Furthermore, this court also noted that despite the distinction, the Sikwese decision does not apply to this case as it is a decision that was delivered on 2" February, 2017 whilst this decision was made on 31* August, 2016. 2.19 Consequently, this Court in this case also had to review the circumstances of Maureen Goodson v Cidrick Chidothi 9 the case herein and determine whether Sikwese could be implemented in full. Notably, in this case herein, both parties failed to produce documentation in terms of the Chinamwali property. Incidentally, the Respondent argued that he bought(----) in 2014 whilst the Appellant indicated 2015 and that for the time she was in the country after being chased, she and her father were the ones caretaking and undertaking the construction on the same. Therefore, this Court was highly persuaded by the decision of Kamphoni v Kamphoni, Mat. Cause No. 7 of 2012, which held that ‘jointly held’ does not mean jointly owned as ownership is not the relevant language of the Constitution. Therefore, jointly held must entail the whole array of rights to the property including legal and equitable rights to such property. Notably, Panji Mvula v Maurine Mvula, Mat. Cause No. 6 of 2014 decided that one party to a marriage can have legal tittle while the other party can have equitable rights to the same property. In the end evidence of who acquired the property, with whose money and in whose name the property is registered will not be conclusive evidence of joint ownership. 2.20 Accordingly, this Court fully endorses the words of Justice Mwaungulu (as he then was) in Kamphoni where he concluded that at customary law disposal of matrimonial property at dissolution of marriage is based on principles of fairness, justice, reasonableness, proportionality, comity, conformity and solidarity - “The duty of a customary law court is to espouse the customary law in space and time from the principles of customary law. The customary law principles themselves may change, albeit gradually, but it must be the functions of customary law courts to derive the customary law from the principles of customary law exigent at a given point in time. There is no doubt whatsoever that at customary law the disposal of matrimonial property on dissolution of marriage based on principles of fairness and justice. In Matimati v Chimwala, Southworth, C. J, after laying down the customary law as given to him by assessors, said: “This Court accepts the three assessors’ exposition of their people’s law and custom, which is in accordance with fairness and justice, and can see no reason to disagree with their assessment of the amount due from the respondent to the appellant.” At customary law disposal of family property bases on the customary law principles of fairness, justice, reasonableness, proportionality, comity, conformity and solidarity. Customary law courts, which this one is, apply these broad principles to different situations and the following customary law emerges in relation to disposal of matrimonial property in this Court. The following customary law is based on decisions on customary law marriages where the Common law never and should not have applied. All decisions are from this Court; there has been no Supreme Court decision on disposal of matrimonial property on a customary law marriage.” 2.21 Regarding issue of compensation, customary law in the matrilineal system states that a man is obligated to build a house for the wife. The court in Matimati v Chimwala [1964-66] ALR Mal 34 at 36 held that under customary law a man Maureen Goodson v Cidrick Chidothi 10 has an obligation to provide his wife with a house when he marries, and if he divorces his wife before doing so, this will not relieve him of the obligation. Justice Mzikamanda (as he was then) held in Gomani v Chitenje, Civil Appeal No. 47 of 2005 (HC)(Uunrep) stating that - “Tt is indeed the position at customary law in Malawi that where a marriage is contracted under customary law of the matrilineal system, a husband is required to build a house for his wife at her village during the subsistence of the marriage. This is the position for any customary marriage contracted under matrimonial system regardless of which part of Malawi and regardless of minor differences in the various areas of the country. (See also Rose Magombo vy Luka Magombo Court Appeal No. 23 of 2002). The purpose for the house being built at the home of wife emphasizes the “Chikamwini” system where the husband is expected to live in the village of the wife. However as we know customary law is as dynamic as society is In recent times it has been recognized that a woman can choose to live away from her original home (See Section 39(1) of the Constitution). In those circumstances courts have accepted that the wife may choose where her house should be built, not ’ necessarily being her home village.’ 2.22 The evidence in this matter with regard to this issue, it should be noted that the Appellant did not highlight to the Court that the customary marriage that she contracted with the Respondent was one where in its subsistence including dissolution required the building of a house. On the other hand, in his evidence, the Respondent including in South Africa claimed that he had built the Appellant two houses, one for her and another for her sibling. He also indicated he purchased land near her village which he was willing to surrender and assist in developing the property. The Court reminded itself that for customary law to be proved, a person alleging the same must fulfill the provisions of section 64 of the Courts Act states that if in any proceeding a matter of customary law is material, such law shall be treated as a question of fact for purposes of proof. In determining such law, the court may admit the evidence of experts and persons whom the court considers likely to be well acquainted with such law; provided that a court may judicially note any decisions of its own or of any superior court, determining the customary law applicable in alike case. Notably, itis only when a person has done this would a court to award them the said house. 2.23 In terms of the argument that the Court should distribute shares in R and M Interiors because she and the Respondent started the business together, the lower court record showed that she had also instituted divorce proceedings in terms of the South Africa property. Interestingly, the Respondent exhibited documents, that is 2 affidavits. In one where he claimed R and M Interiors belonged to him and his sibling Cassim Mussa and not him and the Appellant. Interestingly, he also attached the business registration for the said business which showed that it was registered as Rashid Interior Solutions on 13 August, 2018 with him as the only director. It should be noted that the other affidavit offered interesting insights. This Court based on this evidence finds that the Appellant’s appeal on this ground cannot be sustained. Maureen Goodson v Cidrick Chidothi 11 3.0 2.24 2.25 The final property was the vehicle in contention which was purchased and sent to Malawi. The Respondent in his South African affidavits indicated it was bought in Malawi in 2018 and given to his sibling Mike Chidothi as a present to run his business. In terms of the other vehicle in his possession, it was the business vehicle, and he produced evidence showing the same registered to Rashid Interior Solutions. In terms of the Malawi vehicle, it was noted from the Appellant’s evidence that the car was purchased outside of Malawi and exported here and interestingly the said car was in her possession as she had been using it. Furthermore, she had possession of the blue book as she had been in the process of changing the blue book when the divorce commenced. In terms of this property, the evidence shows that the car was intended for her use as well as the child who she had in Malawi. Finally, it should be noted that for distribution of household items, the Respondent even in South Africa had indicated that there were multiple household contents which he was willing to surrender to her. He concluded by asking the court to visit the property in Malawi to appreciate his efforts. It is this Court’s considered opinion that the lower court should have taken the Respondent’s position on household items and distributed the same between the parties in terms of the properties in the Matawale property. CONCLUSION 3.1 3.2 3.3 The appeal by the Appellant in terms of the whole judgment of the Third-grade Magistrate succeeds only in parts of the finding that there was a customary marriage and in some areas in terms of distribution of matrimonial property. The Court has taken into consideration all the relevant facts as well as the applicable law in Malawi finds that there was a customary marriage between the parties celebrated in 2015 and the same is hereby dissolved. In terms of distribution of property after dissolution of marriage, the lower court’s order is hereby nullified and voided and the following orders are stipulated for the parties— 3.3.1 the motor vehicle in Malawi is ordered to remain with the Appellant as ordered by the lower court and the Respondent shall not have a claim on the said property; 3.3.2 the Appellant and Respondent shall equally share the Chinamwali house and either party can buy the other one out if they fail to jointly own the same; and 3.3.3 the Court confirms the lower court’s decision on distribution of the matrimonial property and maintains the order in terms of the household properties as well as the Matawale property 3.3.4 The lower court did not err in law in — Maureen Goodson v Cidrick Chidothi 12 (a) (b) (c) failing to make an order that the Respondent should build the Appellant a customary house because the same has to be strictly proved and the Appellant can do so in a separate application; in refusing to make orders with respect to property acquired by the parties outside the jurisdiction as the same needed specific proving and no evidence was provided on the same; and in law in failing to recognize the Appellant’s interests (share) in R and M Interiors and distribute the same; accordingly, and 3.4 — In light of what this Court had stated in its determination, this Court makes these declarations and orders the executive through the Ministry of Justice, Ministry of Gender and Ministry of Local Government together with the Legislature - 3.4.1 3.4.2 3.4.3 move with speed, and in any event within three (3) months from the date hereof, to ensure that customary marriages which were celebrated post 2015 and did not fulfil the prescripts of section 27. 28 and 29 of the MDFRA are legalized to avoid such marriages being the only ones not fully recognized in Malawi; operationalize and capacitate section 5 of the MDFRA by gazetting the traditional authorities who are designated as registrars under section 4 of the MDFRA within one (1) month; and deliver the relevant documentation to enable the implementation of the law by all relevant registrars especially the traditional leaders as per section 6 of the MDFRA within one (1) month’ 3.5 The Court shall not disturb the custody arrangements as the same were not appealed against however, the Court reminds the Appellant that child support must be reviewed annually and a child’s needs to be properly indicated for instance, shelter, food, clothing, education, medical needs to mention a few. 3.6 Each party shall bear its own costs. I order accordingly. Delivered on this 4 day of October, 2024 at Zomba. Z. J. V. Ntaba JUDGE Maureen Goodson v Cidrick Chidothi 13