Ngang'ambi v Mkandawire (Civil Appeal 68 of 1981) [1981] MWNTAC 2 (26 August 1981)

IN THE NATIONAL TRADITIONAL APPEAL COURT SITTING AT MZUZU CIVIL APPEAL CASE NO. 68 OF 1981 BETWEEN TRYNESS NGANG’AMBI ………………………………...…………………. APPELLANT AND BLACKWELL MKANDAWIRE …………………………….………………. RESPONDENT CORAM: The Hon. Acting Chairman / Judge Chief Chimutu The Hon. Member / Judge Chief Kabunduli The Hon. Member / Judge Chief Mlonyeni The Hon. Member / Judge Mr. B. W. Kalukusha The Hon. Member / Judge Mr. D. F. Mwaungulu COURT OFFICIALS Mr. L. A. Malunjika – Official Courts Interpreter Mr. F. Zamawe – Court Reporter APPELLANT – Present RESPONDENT – Present MWAUNGULU J. JUDGEMENT The appellant, Tryness Nyang’ambi, married the respondent, Blackwell Mkandawire in 1951. They married at customary law. They have got five children of the marriage. It does seem that since 1967 both of them had lived here in Mzuzu with their children where the respondent was working in the Department of Civil Aviation. The appellant left for home in 1980 together with the children and the respondent retired in 1981. He also went home. The appellant instituted these proceedings in 1981 in order that her marriage should be dissolved. The Bolero Traditional Court found no reason to dissolve the marriage and it declined so to do. The appellant appeals to this court against the order of the trial court. She insists that her marriage should be dissolved. According to our custom, marriage is regarded with veneration and dignity which is only outmatched by the reverence which mortals confer to the deity. It is for this reason that great joy, pomp and formality attend it when two people enter into wedlock. Our custom provides for marriage advocates who are supposed to deal with the normal wear and tear of marriage. At its best marriage is both joyful and painful. It creates a mutual joy and cohesion between families, and clans which are the bullwork of the society, community and the nation. It is for this reason that dissolution of the marriage is made more difficult by our custom. Our custom requires that before a marriage is dissolved the spouses must have allowed the advocates from both sides to discuss the matter. As much as possible efforts are made to reconcile the spouses and penalize the wrongful party. These are mechanisms which hold the union together. The spouse, therefore, who seeks the dissolution of the marriage in court is embarking on something serious. It is upon that spouse to show to the satisfaction of the court that there are reasons that justify his actions. Even adultery, which is considered a ground for dissolving the marriage under the Marriage Act, is a matter of compensation at customary law. Seldom is it a ground for bringing the marriage to an end. A spouse cannot come to court and seek dissolution of his marriage simply because he does not love the other spouse any more. In this case it was upon the appellant to show circumstances in the lower court which entitled her to the relief which she sought. According to her, her main ground for dissolving the marriage was that her husband does not support her and the children. She said that her husband does not care for her health. This was just a general allegation; it was not supported by evidence. The appellant just said the respondent does not support her and pay school fees for the children. What beats us is that there are some children who are adults and in principle should not be supported by their parents who are at this stage aged. In any case up to about 1980, the children were living in Mzuzu with their parents and they were being supported then. The problems that have now arisen about supporting her and the children only cropped up because the appellant and the children decided to go and live at her village. In her argument of appeal, she raised some points which were not even raised in the court of first instance. She also raised some things which were contradicting what she had raised in the court below. For instance, she said here on appeal that she had been chased by her husband yet in the court below she said that she had bidden farewell to her husband. Even in the court below, her evidence was unreliable. In her evidence in chief she said: “…..he goes on to say he will never call the children to be his children.” The assessor the asked her and she replied: Q. “Are you saying the truth that since you bore the children with the defendant he has never called them to be his children A. No” Even her witness cannot be relied on. In his evidence in chief he said: “ … and when the complainant is sick in the hospital the defendant does not help her. It is me who assists her.” Cross-examined by the respondent, he says: : You assisted the complainant when she was admitted in the hospital.” She did not, in our view, raise any substantial ground on which she could be granted the relief which she sought. The Bolero Traditional Court was therefore right in dismissing her claim. In our view also, the appeal should be dismissed with costs to the respondent. We are of the view, however, that the respondent was guilty of some squabbles in the marriage. Even though the appellant says she does not want to go back to her husband, the advocates do not favour a divorce. Hew own advocates only prayed that the respondent should support the appellant. We do note that in some ways the respondent did not support his wife but this is not sufficient to permit the court to dissolve the marriage. It is just a matter of mere compensation between the parties. Since the appellant has got adult children, there are her parents, husband and guardians at the place where the appellant is married. These children are the reasons why she should be glued to her husband’s place even in if her husband is hostile. These are the dictates and precepts of our custom. In Tumbuka it says “para bana alipo nthengwa yindamale”, or “bana ndibo bakuzenga nthengwa”. We order the respondent to pay K50.00 to the appellant as a way of compensation but the two are still husband and wife. PROUNCED IN OPEN COURT AT MZUZU THIS 26TH DAY OF MAY, 1983