IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

CIVIL APPEAL CASE NUMBER 18 OF 2020

(Being civil cause number 1264 of 2019 before the Third Grade Magistrate
Court sitting at Blantyre)

BETWEEN

GEORGE DANIEL NYANYALE APPELLANT

AND

EGLY NYANYALE (Nee CHITSEKO) RESPONDENT

CORAM: JUSTICE M.A. TEMBO,

Kosamu, Counsel for the Appellant

Chijozi, Counsel for the Respondent
Mankhambera, Official Court Interpreter

JUDGMENT

1. This is the decision of this Court on the appellant’s appeal against the decision
of the Third Grade Magistrate Court sitting at Blantyre by which the lower
court ordered that some property held by the parties as a matrimonial property
be distributed to the parties to the customary marriage that it had dissolved.

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2. The appellant had sought the dissolution of his customary marriage to the
respondent herein before the lower court. The lower court dissolved the said
marriage. It then heard both parties on the issue of distribution of the
matrimonial property and made an order distributing the said property
pursuant to its powers under section 39 (2) (e) of the Courts Act which grants
jurisdiction to the lower court to dissolve customary marriages.
3. Being dissatisfied with the lower court’s decision on distribution of the
matrimonial property, the appellant filed this appeal and indicated three
grounds of appeal as follows:

1) The lower court erred in assuming jurisdiction on matters clearly without

her jurisdiction as spelt out in section 39 of the Courts Act. The lower
court’s decision is thus ultra vires.
2) The lower court erred in disregarding the appellant’s prayer to distribute
the properties equally.
3) The lower court erred in granting the bulk of the property to the
respondent by solely looking at ownership and intention of the parties
when they acquired the property, while disregarding the underlying
factors to be applied on distribution of property upon dissolution of
marriage as set out in section 74 of the Marriage, Divorce and Family
Relations Act.
4) The lower court erred in disregarding case law as set out in Kamphoni v
Kamphoni and Kishindo v Kishindo. Being a subordinate court, the lower
court was and is bound by these decisions.
5) The lower court erred in simply considering ownership of the property
when distributing without considering section 24 (1)(b)(i) of the
Constitution.
6) The lower court misdirected itself in holding that the appellant lived an
independent life in Nchalo for 21 years and that the appellant did not
know how the property was acquired or how the business was being run
when in fact the evidence suggests otherwise.
7) The lower court erred in law by holding that the intention of the
respondent was to own and enjoy property in total exclusion of the
appellant when in fact they were legally married at customary law.
8) The lower court erred in fact and law by simply regarding monetary
contributions to property when contribution clearly takes many forms.
The lower court also erred by solely considering in whose name the
property is when distributing some of the property.

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 9) The lower court erred in law by not considering the testimony of the
appellant simply by reason of the appellant not being audible enough or
confident enough when he was giving testimony.
10) The lower court erred in holding that the respondent toiled on her own
with no contribution of the appellant when in fact the appellant had taken
an active role in the business investments.
11) The lower court erred in fact and law by disregarding the direct and
indirect contributions made by the appellant regarding distribution of
property on dissolution of marriage as per the dictates of section 74 (1)(g)
of the Marriage, Divorce and Family Relations Act.
12) The lower court erred in holding that the property cannot be subjected to
the principle of equal sharing and that sharing equally would be unfair.
The lower court misled itself as to the law on distribution of property
upon dissolution of marriage.
13) The lower court failed to properly analyse the case before it reached its
decision.
4. This Court wishes to state at the outset that, on hearing civil appeals, this Court
has the following powers as provided in section 22 of the Courts Act:
In a civil appeal the High Court shall have power—

(a) to dismiss the appeal;

(b) to reverse a judgment upon a preliminary point and, on such

reversal, to remit the case to the subordinate court against whose judgment the
appeal is made, with directions to proceed to determine the case on its merits;

(c) to resettle issues and finally to determine a case, notwithstanding

that the judgment of the subordinate court against which the appeal is made has
proceeded wholly on some ground other than that on which the High Court
proceeds;

(d) to call additional evidence or to direct the subordinate court against

whose judgment the appeal is made, or any other subordinate court, to take
additional evidence;

(e) to make any amendment or any consequential or incidental order

that may be just and proper;

(f) to confirm, reverse or vary the judgment against which the appeal is
made;

(g) to order that a judgment shall be set aside and a new trial be had;

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 (h) to make such order as to costs in the High Court and in the
subordinate court as may be just.

5. The appeal is by way of rehearing. That means this Court will subject the
evidence before the lower court to a fresh scrutiny.
6. This Court sets out the evidence adduced before the lower court and the
court’s determination before it deals with each ground of appeal herein in light
of the submissions by the parties on this appeal.
7. The evidence of the appellant before the lower court on distribution of
matrimonial property was that he got married to the respondent at customary
law in August, 1991. And that by then they had no property. Further that as
the time went by, they were able to set up a stationery and a timber business
from which they earned sufficient income enabling them to acquire various
valuable property.
8. The appellant then explained how the stationery business was started. He
indicated that around 2007 a certain Mr. Steyn, a depot Manager at Nchalo
Unitrans, asked the appellant to look for reliable stationery suppliers because
the appellant as controller of all stationery purchases there. He indicated that
he sold the idea to the respondent and they agreed to the supply stationery
themselves and run the business using their family capital. He added that they
also decided they should not be involved in day to day activities of the
intended business to avoid conflict of interest and so they employed some
people.
9. He indicated that they managed to generate enough money due to the large
stationery orders from Unitrans. He added that they used the name CAS
Printers and not the name of their other business, Likuwa Investments, to
avoid conflict of interest. He added further that whenever payment was
received at CAS Printers they normally transferred the money to Likuwa
investments account.
10.He then stated that, apart from Unitrans, they also had other clients who were
unreliable and that around 2011 to 2012 Unitrans was their only client.
11.He then stated that in 2018 he directed that the directors of CAS Printers be
changed to remove himself and the respondent and to have new directors. He
however indicated that despite this change capital was still coming from
Likuwa Investments.

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12.He then explained how properties in issue were acquired. He indicated that
the timber business was started through the help of his brother Frank Nanjiwa
who allowed him and the respondent to join him and start timber business
involving pit sawing since they had no government licence then. He indicated
that their business grew despite their lack of knowledge and experience but
due to help from Mr. Nanjiwa. And that a year later, they obtained their own
pit sawing licence at Viphya Plantation under Likuwa Investments.
13.He then asserted that the name Likuwa is a historical name from his village
where he started school. He added that key staff of their timber business such
as supervisor and accountant were from his home area in Mulanje due to their
expertise in timber processing.
14.He indicated that in the period between 2009 and 2010 their business began
to face financial difficulties. And that at that point, they agreed to withdraw
his pension fund from Old Mutual to boost their collapsing business. He
exhibited proof of payment of his pension benefits in the sum of K2 121
645.10 in October, 2010. He stated that this sum was pumped into their
business enabling it to grow and produce substantial profits. He added that
this helped them to begin buying all the property in issue except the Toyota
Carina which he said was bought using proceeds from their stationery
business.
15.He asserted that from the profits made under Likuwa Investments they were
able to purchase the following property: two timber sawing machine (timber
king machine model 1220 and a sharpener), freightliner truck with trailer in
2014, Toyota Hilux (after selling timber in Mozambique), Toyota Nadia (after
exchanging timber), old Kanjedza house, Kanjedza forest house, Zingwangwa
house and Machinjiri house.
16.He explained that the properties are registered in their different names
depending on what was convenient at the time of registration. Further, that he
was mostly based in Chikwawa due to his employment with Unitrans. And
this resulted in him giving his wife authority to carry out some transactions
even in his absence. He added that this enabled the respondent to register most
of the other properties in her own name.
17.The appellant tendered in evidence what he termed notification of Likuwa
Investment bank accounts balances in October 2019 indicating three bank

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 accounts with zero balance, K195 and US$59 respectively. He indicated that
this is from NBS Bank.
18.He then explained how the business contracts were obtained. He indicated that
Illovo Sugar Ltd advertised in the newspaper. He added that he was assisted
by a Mr Chirwa’s auntie to get the relevant application forms. He indicated
that he signed that contract and his witness was Charles Botolo.
19.Then he referred to a contract with Bakhresa which was secured through Mr.
Aswan a manager on the Malawi-Nacala corridor. And the same was signed
by him and witness by Charles Botolo.
20.He then referred to a contract with Premier Logistics from South Africa which
he said was initiated by their driver Hendrix Dinyero. He explained that he
spoke to the Manager of Premier Logistics and he got some relevant forms
which he signed and were witnessed by Charles Botolo.
21.He then asserted that there was another contract with Reload Aquarius
Shipping Company which was acquired through the respondent’s friend in
Lilongwe Mr. Mazinzwa who sent them forms. He added that he filled and
signed the forms and the respondent signed as well and Charles Botolo signed
as a witness.
22.He then referred to a contract with Cross Africa-South Africa was initiated
through their driver Hendrix Dinyero who gave him contacts for the Logistics
Manager with whom he entered a gentleman’s agreement to operate whilst
waiting for signing of a contract.
23. He then explained that he had not managed to get exact dates of some events
or their undertakings because all documents relating to their businesses are in
their matrimonial home in Blantyre and he is in Nchalo. He added that the
respondent could not allow him to access some information due to their sour
relationship.
24.He indicated that so far the respondent has been transacting on the bank
accounts on her own because he had signed some cheques in advance. He
noted that in September, 2019, Reload Aquarius Shipping made a transfer of
US$2 500 into their Foreign Currency Denominated Account. He tendered in
evidence a copy of what he termed an email notification forwarded to him.
Although the document shows a transfer to Likuwa Investments, it is not
apparent that this was indeed an email notification. He then asserted that it is

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 clear from the notification of bank account balance that all this money has
been used by the respondent alone.
25.He then asserted that the respondent has also used up all the money that was
deposited in the Likuwa Investments Account number 14373594. He noted
that there have been regular payments into this account from Nampak for
transportation fees. He tendered the relevant bank statement.
26.He indicated that they opened the bank accounts for use as a family. And that
they bought the properties using money that came from their businesses. And
that it was only fair that there be equal distribution of the properties according
to the law.
27.On her part, the respondent indicated that at the time she got married to the
appellant she was already working as a cook at the Polytechnic of the
University of Malawi.
28.She indicated that the appellant worked for Unitrans from 1991 until 1994
when his contract was terminated. And that the appellant secured another
contract of employment with Unitrans in 1996 in Nchalo where he has worked
to date. She added that he visited her during weekends.
29.She asserted that during the two years that the appellant had no employment
she tried to support him to start up an imports business but the same did not
work.
30.She then explained that in 2001, whilst still working for the University of
Malawi, she started a business selling cold drinks and assorted items with a
capital of K5 000. She added that she asked the appellant for more capital but
he declined. She then started a second hand clothes business.
31.She then elaborated on how the timber business started. She indicated that in
2005, whilst running her small businesses, she obtained a loan from her work
in the sum of K42 000 as she had met Frank Nanjiwa whom she asked to
incorporate her in his business of timber as he had a timber licence in
Chikangawa Forest and he accepted. She tendered in evidence the loan offer.
32.She indicated that in January, 2006, Frank Nanjiwa informed her that it was
time to go to the forest, but the appellant stopped her from going to
Chikangawa as he was jealousy and afraid that she may engage in an affair
with Frank Nanjiwa hence the appellant volunteered to go despite his past
business failures.

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33.The respondent then explained that the appellant returned from Chikangawa
in February, 2006 but unfortunately he failed to provide an account of how he
had spent money. She indicated that she felt betrayed hence wrote the
appellant a letter expressing her disappointment dated 21 st February, 2006
which she tendered in evidence. She asserted that from then on she took over
and run the timber business alone without any assistance from the appellant.
34.She explained that in 2007, she obtained another loan from her work to boost
her business in the sum of K80 000 which she injected into the timber
business. She tendered evidence of the loan too. She indicated that she got
timber from Chikangawa and sold it at Kudya in Blantyre.
35.She then stated that in 2009, she received her retrenchment package in the
sum of K2 969 545. 43. She tendered evidence of her payment. She indicated
that she decided to register the timber business. She elaborated that, out of
respect for the appellant as husband, she and the appellant registered the
timber business as Likuwa Investments in both their names although the
appellant never contributed at all. She indicated that due to the new machines
business sales improved. She produced evidence of sales.
36.She indicated that she used part of her retrenchment package to purchase a
piece of land at Kanjedza for K444 000.
37.She indicated that in 2011, she bought another timber cutting machine. And
that in 2012, she went to Chikangawa and bought some trees on credit and
started making timber. In August the same year she rented a house there and
moved there permanently. She indicated that the appellant never visited her
indicating that it was very cold up there. She added that the appellant never
made any monetary contribution to the timber business. She indicated further
that the business went so well that she had sales which enabled her to buy
several properties.
38.She then indicated that in 2010, the appellant got his pension in the sum of K2
121 645.10. and that the appellant only gave her K300 000 which was used to
buy a cooker and a fridge.
39.She explained that the appellant invested the rest of his money in his business
which he registered together with Alexander Conndonny styled Algeo
Enterprise. She tendered evidence of the registration. She indicated that this
business involved supplying of bricks to Speedys Limited. She indicated
further that the appellant also ventured into timber business as well. She
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 reiterated that she never benefitted from the appellant’s business started using
his pension money. She tendered evidence of some brick business records.
40.She indicated that in 2014, Chikangawa Forest was closed for business and
she returned to Blantyre the same year.
41.She then elaborated on how the stationery business was operated. She
explained that in 2006, the appellant was indeed asked by his office to find
someone to supply stationery. She indicated that she introduced the appellant
to Mr. Salimu Matondwe with whom she registered a stationery business
called CAS Printers and Binding. She tendered the registration certificate in
evidence. She then explained that they agreed to be giving the appellant 20
per cent of the proceeds as his commission for finding them business. She
insisted that the appellant only acted as an agent for providing business.
42.She then asserted that the appellant used his 20 per cent commission for his
own benefits. And that none of it was ever pumped into the timber business
under Likuwa Investment. She indicated that CAS Printers and Binding was
different and separate from Likuwa Investment.
43.She indicated that indeed in 2019, CAS Printers and Binding was handed over
to other directors and the appellant still gets his 20 per cent commission as an
agent.
44.She then explained about acquisition of properties. She indicated that she has
acquired property mostly from profits from the timber business but that some
were acquired from other sources.
45.She indicated that in 1998, she bought a plot of land in Namiyango after she
had received compensation from the Government following an arrest during
the 1992 multi-party demonstrations. She explained that, using a loan from
the Polytechnic SACCO, she built a house on the plot by 2001 which was
rented out. She added that she handed the house to her mother who received
rentals until she passed on in 2010. She tendered in evidence her
compensation payment, correspondence on the SACCO loan and a copy of
her Namiyango plot allocation.
46.She then stated that, in 2009, she bought a piece of land in Kanjedza Township
using part of the money she got from her retrenchment as earlier stated. She
indicated that this was registered in her name and was later developed into a
four-bedroomed house. She asserted that the appellant never assisted her in
the construction of the house which did on her own using proceeds from the
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 timber and second-hand clothes business. She added that this house is let out
and she receives rentals.
47.She indicated that in 2001/2001, she built a house at her maternal home in
Bangwe despite the fact that the appellant was required to do so at custom.
She added that around 1994 and 1996, she made an initiative to build a house
at the appellant’s home in Mulanje.
48.She then asserted that in 2013, she bought a Toyota Hilux pickup by
exchanging four trips of timber. The registration certificate shows this vehicle
is owned by Likuwa Investments.
49.She explained that in 2013, she personally bought from Mr. Peter Baghwanji,
a freightliner horse and trailer at US$60 000. She indicated that the appellant
did not contribute to this but that Mr. Baghwanji advised her to put the said
horse in the name of the appellant out of respect as a husband. She pointed out
that in 2019, after she discovered the appellant’s infidelity she changed the
ownership into her name. She tendered the registration and the seller’s receipt
of the purchase price in evidence.
50.She then stated that in December, 2013, her friend informed her of a house for
sell in Zingwangwa. She asserted that she bought the house from Mr. Gangire
for K7 500 000 and that she asked her friend Mrs. Kumwembe to help the
appellant with the documentation as she was in Chikangawa by then. She
tendered in evidence the sale agreement signed by the appellant and the
deposit slip for the purchase price signed by herself.
51.She then indicated that in 2014, she the appellant a motor vehicle Toyota
Nadia by exchanging with timber for him to use while at Nchalo given that
the vehicle he was using was old.
52.She then indicated that in February, 2014, she bought a house at Machinjiri
area 5 for K3 500 000 from Mr. Elliot Chiwale. She indicated that this house
is rented out and she has been getting rentals ever since. She tendered the sale
agreement in evidence.
53.She indicated that she also bought another piece of land in Machinjiri area 5
in November, 2015 and put the sale agreement in the appellant’s name in the
hope that he will take part in the development of the land. She noted that
unfortunately the land remains undeveloped and threatened with repossession
by Blantyre City.

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54.She then asserted that in September, 2011, she applied for and acquired a plot
of land at Kanjedza Forest from Ministry of Lands. She explained that this
plot has recently been sold to cover her expenses including legal fees.
55.She then referred to a number of transport contracts. She pointed out that there
was a contract with Illovo Sugar Company which was acquired but expired
several years ago. There was another contract with Bakhresa but it also
expired several years ago. So too a contract with Premier Logistics which
expired three years before 2020. Another contract with Reload Aquarius
International which was active. Another contract with NAMPAK secured in
2019.
56.She pointed out that some of the transport contracts involved other partners
including Frank Mbeta and Chimwemwe Kajawa and others.
57.She indicated that following registration of Likuwa Investments several bank
accounts were operated namely, Likuwa Investment 1 account number
14373586, Likuwa Investment 2 account number 14373594 and Likuwa
Investment FCD account number 14235857. She indicated that these accounts
were mostly active when the timber business was operational. And that the
FCD account was also used for contracts with international companies whilst
for local contracts the other Likuwa Investment 2 account was used.
58.She then pointed out that because other business partners were involved, not
all funds passing through the accounts were for her benefit only. She added
that some of the money was also used to cover expenses.
59.She then asserted that she tried to take care of the appellant as her husband as
best as she could and looked after his three nieces from a young age until two
of them graduated from college. She lamented that despite her efforts, the
appellant showed no interest in their marriage. She asserted that the appellant
forbade her from visiting Nchalo for 23 years as the appellant was involved
with another woman there and lived an independent life for that duration. She
indicated that having toiled on her own to do business it will be unfair for the
property to be shared equally between her and the appellant.
60.Both parties were subjected to cross-examination.
61.Mrs. Kumwembe testified on the purchase of the Zingwangwa house from
Mr. Gangile.
62.The lower court considered the evidence and noted that the Likuwa
Investment was registered in the name of the parties herein although it was
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 started using the money of the respondent. It also found that the fact that
relations of the appellant worked on the business that was not a contribution
by the appellant since those relatives of his were being paid for doing their
work. See Sikwese v Banda MSCA civil appeal number 76 of 2015
(unreported).
63.The lower court also found on the strength of the business records provided
by the respondent, that the business did well during the period prior to the
receipt of the pension by the appellant in November, 2010 such that it was not
proved that the business was dwindling and that the appellant injected his
pension money in the Likuwa investment business. The Court concluded that
the appellant’s evidence that he contributed capital to Likuwa Investments
was not credible. The Court also observed the demeanor of the appellant who
was murmuring and inaudible due to cross-examination.
64.The lower court concluded that the stationery business did not involve the
appellant as he was not on the register for that business but also because he
did not know how any of the business went as he was based in Nchalo for the
21 years of the parties’ union.
65.The lower court observed that the evidence shows that the appellant left for
Nchalo and thereafter the respondent worked hard and purchased the various
properties in contention. Further, that some of the property was in the
respondent’s name and other in the appellant’s name’s though purchased by
the respondent. The lower court concluded that there was no intention to hold
property jointly. It cited as an example the fact that, for the Zingwangwa
purchase, the respondent deposited the purchase price to the seller’s bank
account and the appellant put his name on the sale agreement.
66.The lower court reasoned that it had to consider all the circumstances of the
case, including contribution of the parties and intention of the parties on
acquisition of property, when determining the right of the respondent to a fair
distribution of jointly held matrimonial property on dissolution of her
marriage herein in terms of section 24 (1) (b) (i) of the Constitution as
explained in the matter of Sikwese v Banda MSCA civil appeal number 76 of
2015 (unreported). Further, that marriage in itself is not indicating of joint
holding of property. And in that connection, the lower court properly alluded
to the discussion by the Supreme Court in Sikwese v Banda disagreeing with
the High Court decisions on the subject in Kamphoni v Kamphoni Civil appeal
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 number 1 of 2010 (High Court) (unreported) and Kishindo v Kishindo Civil
cause number 397 of 2013 (High Court) (unreported), and emphatically
stating that where property is owned exclusively by one spouse, and the other
cannot demonstrate any contribution to its acquisition or improvement, the
other spouse cannot claim any share in that property.
67.The lower court then made the following order distributing the property:

(a) Starting with the three businesses, Likuwa Investment, CAS Printers and Binding and
Algeo Enterprise. As for Likuwa Investment this Court having established that this
business started with the respondent’s contribution alone with no contribution from the
applicant and that since the business started to when it closed the applicant never took
part in running the business or the operation the respondent had to toil alone day and
night. I therefore award Likuwa Investment to the respondent together with all the
instruments and machines used in the timber business.
(b) CAS Printers and binding, this business was registered in the name of the respondent
and another person not the applicant and it is on record that the parties herein are no
longer directors hence not matrimonial property.
(c) Algeo Enterprise, this business was registered in the applicant’s name and another
person and not the respondent hence not matrimonial property but applicant’s property.
(d) A house at Kanjedza Township is awarded to the respondent. The applicant has no
interest since this is from proceeds of the respondent’s retrenchment package. The
applicant is still working meaning that when he retires he will not share his package
with the respondent because they are no longer family.
(e) As for the Kanjedza Forest house under construction according to the applicant, the
respondent has submitted that the same was sold due to financial hardship due to
closure of the Chikangawa Forest business. And the same was not refuted by the
applicant and not even cross-examined on. As such, this Court will not belabor itself
distributing a thing which does not exist as matrimonial property.
(f) The house in Zingwangwa is awarded to the respondent since it is from proceeds of the
timber business and she intended to own a house from Malawi Housing Corporation
since 2009 when she got retrenched.
(g) I also award the respondent the Machinjiri area 5 house as this is from proceeds of the
timber business.
(h) As for the semi-detached house in Namiyango, the same is not matrimonial property as
it was handed to the respondent’s mother and this was not disputed.
(i) As for the house at the respondent’s village in Bangwe that is hers.
(j) For the house house built at the applicant’s village that is for the applicant since it is
built on his customary land.

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 (k) Undeveloped plot at Machinjiri, I award this to the applicant since the respondent
bought it for him. This plot was bought in 2013 and has remained undeveloped which
show shows that the applicant depended on the respondent to make investment for him.
(l) Four motor vehicles acquired in the course of the marriage herein. as stated above, all
valuable properties were bought by the respondent out of her effort and all that the
applicant submitted is that we agreed, I and my wife and authorized her to go ahead.
There is nothing saying I bought that or I told my wife to go and buy that or even I
suggested/proposed to but that among the listed properties.

(i) Toyota Hilux D4D, this car is under criminal proceedings in the Magistrate
Court where the respondent was arrested for receiving stolen property and is
now on bail and the same will remain in her hands on trust for the State.
(ii) A freightliner is awarded to the respondent bearing in mind that this is from
proceeds of the timber business.
(iii) Toyota Nadia is awarded to the applicant for the reason of being in marriage
with respondent for 30 years.
(iv) Toyota Carina is awarded to the respondent for the reason that this car was
bought by the respondent to the applicant who used it until it broke down. And
he took it back to the respondent and got another car. He failed to repair it and
it remained unrepaired to date showing that he cannot manage to repair it but
the respondent that is why he took that old car back to her because she is capable
not him.
(m) As for household items, the parties were not staying together since 1998 and applicant
only visited on weekends. The items for distribution are those that were acquired
between 1990 and 1998. And that there is nothing like acquiring household items
between 1998 and 2019. So property for distribution is 20 years old and after that each
party lived separately. The applicant whilst working and staying separately for 20 years
at Nchalo must have a household which he forbade the applicant from seeing.
Consequently, each party shall keep their separate household items as was had in the
separate households in the past 20 years.

68.This Court now deals with the grounds of appeal in turn. On the first ground
of appeal the appellant asserted that the lower court erred in assuming
jurisdiction on matters clearly without her jurisdiction as spelt out in section
39 of the Courts Act. The lower court’s decision is thus ultra vires.
69.In support of the above contention, the appellant relied on two decisions,
namely, Kishindo v Kishindo and Chabira v Chabira Civil appeal number 8
of 2012 (High Court) (unreported) where the courts made obiter dicta
statements to the effect that for jurisdictional reasons distribution of

14
 matrimonial property by the lower court is subject to the limits set in section
39 of the Courts Act. section 39 of the Courts Act sets monetary limits in terms
of jurisdiction in civil matters generally. The same section grants the lower
court jurisdiction to dissolve customary marriages.
70.The appellant concedes that, as submitted by the respondent, the question of
distribution of matrimonial property was determined by this Court and it was
held that having been given jurisdiction to dissolve customary marriages it
follows consequently that the Courts Act granted ancillary powers to the lower
court to distribute matrimonial property thereafter regardless of the value of
the said matrimonial property. See Mvula v Mvula Matrimonial cause number
6 of 2014 (High Court) (unreported).
71.The contention of the appellant is however that the Chabira v Chabira case is
authoritative because it was decided later in time than the Mvula v Mvula case.
The respondent’s contention is that the views expressed in, Kishindo v
Kishindo and Chabira v Chabira were obiter and therefore do not represent
the law on the matter in issue.
72.This Court agrees with the respondent. This Court is not bound by decisions
of the High Court where such decisions are not made on a persuasive basis.
Further, this Court agrees that the views in, Kishindo v Kishindo and Chabira
v Chabira were made obiter and were not made on the basis that the question
of jurisdiction in fact arose.
73.This Court notes that in the case of, Chabira v Chabira the Court neither
discussed nor gave reasons why it decided to depart from the decision in
Mvula v Mvula, an earlier decision made precisely on the question of
jurisdiction herein.
74.For the foregoing reasons, this Court is persuaded that the correct position is
that stated in Mvula v Mvula and agrees with the lower court’s decision to
distribute the matrimonial property in this matter although the said property
value exceeded the subject matter value for disputes in civil matters provided
for the lower court under section 39 of the Courts Act. The reason is that
distribution of matrimonial property is an ancillary relief to the main
jurisdiction of dissolution of a customary marriage and is therefore not subject
to the value limits as was elaborated at length in Mvula v Mvula.
75.The first ground of appeal therefore fails.

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76.On ground number two, the appellant asserted that the lower court erred in
disregarding the appellant’s prayer to distribute the properties equally. This
Court observes that, as correctly observed by the respondent, the lower court
correctly appreciated the law on how it must approach the question of
distribution of jointly held matrimonial property. The lower court correctly
referred to the case of Sikwese v Banda in which the Supreme Court of Appeal
set out that jointly held property will be ascertained by considering the
intention of the parties in that regard and also contribution to acquisition of
the said property creating a beneficial interest in the said property. Further,
that all the circumstances of the case be considered in that regard.
77.This Court finds that, the lower court looked at all the circumstances of the
case herein and was properly guided by the decision of the Supreme Court of
Appeal in Sikwese v Banda in deciding that it should not distribute the
property herein equally. The evidence was properly analyzed by the lower
court and there is a plausible explanation why the property could not be
distributed equally given the contribution of the parties to the businesses
coupled with their intentions as manifested in the manner in which the various
properties were dealt with on registration and subsequently. For instance, the
respondent solely started and run her timber business to the exclusion of the
appellant who never took part as he was stationed at Nchalo. This Court does
not find fault with the reasoning of the lower court and agrees with the
respondent that this ground of appeal must fail.
78.On ground number three, the appellant contended that the lower court erred
in granting the bulk of the property to the respondent by solely looking at
ownership and intention of the parties when they acquired the property, while
disregarding the underlying factors to be applied on distribution of property
upon dissolution of marriage as set out in section 74 of the Marriage, Divorce
and Family Relations Act.
79.This Court observes that section 3 of the Marriage, Divorce and Family
Relations Act provides that it applies to marriages entered into on or after the
date it came into force but that Part IX of the said Act applies to all marriages
regardless of the date they were celebrated.
80.The marriage herein was entered into before the coming into force of the
Marriage, Divorce and Family Relations Act. Section 74 of the Marriage,
Divorce and Family Relations Act is not in Part IX of the Marriage, Divorce
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 and Family Relations Act which provides for the rights and obligations of
parties to a marriage, namely, to consortium, mutual marital confidences and
duty to maintain family. The appellant cannot therefore rely on the Marriage,
Divorce and Family Relations Act. On that basis alone ground number three
fails.
81.This Court observes that, even if it were granted that the Marriage, Divorce
and Family Relations Act applies to the marriage in this matter, in section 74
of the Marriage, Divorce and Family Relations Act, the direct and indirect
contribution made by either spouse to the matrimonial property is one among
many factors the court ought to take into account. As indicated in the
immediately preceding ground of appeal, the lower court was properly guided
as to what is matrimonial property and as to who should get what on the
distribution of the same regard being had to all the circumstances of the case
as guided by the Supreme Court of Appeal which looked at this issue bearing
in mind the dictates of section 24 (1)(b) (i) of the Constitution. This Court
therefore agrees with the respondent that the lower court cannot be said to
have disregarded the dictates of section 74 Marriage, Divorce and Family
Relations Act on distribution of matrimonial property.
82.On ground number four, the appellant asserted that the lower court erred in
disregarding case law as set out in Kamphoni v Kamphoni and Kishindo v
Kishindo. He pointed out that, in that regard, distribution of matrimonial
property at customary law was held to be on the bases of principles of fairness,
reasonableness, proportionality, comity, solidarity and proportionality.
Further, that being a subordinate court, the lower court was and is bound by
these decisions.
83.This ground of appeal must fail for the reason stated by the respondent,
namely, that the Supreme Court of Appeal considered those two decisions of
the High Court and concluded in Sikwese v Banda that they were wrongly
decided in view of section 24 (1)(b) (i) of the Constitution which provides that
upon dissolution of a marriage women are entitled to a fair distribution of
jointly held matrimonial property. The point is that customary law is subject
to the Constitution like any other law and the Constitution prevails.
84.On ground number five, the appellant asserted that the lower court erred in
simply considering ownership of the property when distributing without
considering section 24 (1)(b)(i) of the Constitution. This Court agrees with
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 the respondent that this ground of appeal must fail for the reason that the lower
court in fact clearly discussed at length the applicable law as stated by the
Supreme Court of Appeal in Sikwese v Banda and evaluated the evidence not
only in terms of the ownership of the property but also in terms of what either
party contributed to the same as well as regarding the parties’ intentions. The
lower court also looked at all the circumstances of the case, such as, the living
arrangements of the parties and how either party behaved with regard to the
businesses in issues. This ground of appeal is far from the truth and
accordingly fails.
85.On ground of appeal number six, the appellant contended that the lower court
misdirected itself in holding that the appellant lived an independent life in
Nchalo for 21 years and that the appellant did not know how the property was
acquired or how the business was being run when in fact the evidence suggests
otherwise.
86.This Court has considered the evidence, and observes that the appellant indeed
spent most of his time at Nchalo over the 20 years or so but that he visited the
respondent over the weekends. However, with regard to the businesses in
issue it is clear that in so far as the timber business was concerned the
appellant was largely not aware how that business was run. This business was
solely run by the respondent from Chikangawa in Mzimba and Kudya in
Blantyre. The appellant however was involved in the stationery business as an
agent as found by the lower court. To that extent, the lower court could not
justifiably make a wholesale finding that the appellant was not aware how the
businesses in question herein were run. The foregoing finding however does
not materially affect the findings of the lower court on contribution of the
appellant to the businesses and subsequent property acquisition since the
lower court properly analyzed how the same happened. This ground of appeal
therefore succeeds to that extent only.
87.On ground number seven, the appellant asserted that the lower court erred in
law by holding that the intention of the respondent was to own and enjoy
property in total exclusion of the appellant when in fact they were legally
married at customary law.
88. This ground of appeal fails on account of the reason stated by the lower court,
which was reiterated by the respondent on this appeal, that as far as
distribution of matrimonial property is concerned the fact of marriage in itself
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 does not entail the intention to own property jointly. This is well stated
authoritatively by the Supreme Court of Appeal in Sikwese v Banda. The
lower court therefore never erred in law by holding that the intention of the
respondent was to own and enjoy property in total exclusion of the appellant
when in fact they were legally married at customary law.
89.On ground of appeal number eight, the appellant contended that the lower
court erred in fact and law by simply regarding monetary contributions to
property when contribution clearly takes many forms. The lower court also
erred by solely considering in whose name the property is when distributing
some of the property.
90.This Court agrees with the respondent that the lower court in fact considered
all the factors of the case including the contribution of the parties to the
acquisition of the properties. The lower court properly considered the
evidence and found that the appellant never contributed to the timber business
whether in monetary form or otherwise. It is not clear from the appellant what
sort of contribution he allegedly made to the timber business. There is no
evidence in that regard in so far as the timber business is concerned. With
regard to the stationery business, the lower court properly analyzed the
evidence and found that the appellant got his share upon finding orders for
stationery supply.
91. With regard to lower court allegedly erring by solely considering in whose
name the property is when distributing some of the property this Court
observes that this is vague since it is not stated in the submissions which
property is in question in this regard. That notwithstanding, it is clear on the
evidence that the lower court in fact considered registration of the property
such as Likuwa business but went ahead to analyze the evidence and
determined the ownership of the property in question by considering factors
beyond the mere registration. This Court therefore agrees with the respondent
and is unable to agree with this ground of appeal. Ground of appeal number
eight therefore fails.
92.On the ninth ground of appeal the appellant asserted that the lower court erred
in law by not considering the testimony of the appellant simply by reason of
the appellant not being audible enough or confident enough when he was
giving testimony.

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93.This is an aspect that the lower court was entitled to comment on and consider
in assessing the evidence of the witnesses before it, in this case the appellant
himself. Any court is entitled to determine whether a witness has been shaken
during cross-examination in addition to importantly considering the
consistency of the testimony of such a witness. This Court has considered the
evidence on record and concludes that the lower court considered many other
factors in its determination. It looked at testimony of other witnesses which
included documents. It is therefore not correct that the lower court erred in
law by not considering the testimony of the appellant simply by reason of the
appellant not being audible enough or confident enough when he was giving
testimony. This ground of appeal therefore fails.
94.On ground of appeal number 10, the appellant contended that the lower court
erred in holding that the respondent toiled on her own with no contribution of
the appellant when in fact the appellant had taken an active role in the business
investments.
95.The respondent correctly submitted, on the evidence, that the lower court
properly analyzed the conduct of the parties with regard to the timber and
stationery businesses and concluded that the appellant never took an active
role in the same. It is clear on the record that the appellant never took part in
the timber business. And that for the stationery business, the appellant got a
share as an agent finding stationery supply contracts. The ground of appeal
advanced in this regard accordingly fails.
96.On ground of appeal number eleven, the appellant asserted that the lower court
erred in fact and law by disregarding the direct and indirect contributions
made by the appellant regarding distribution of property on dissolution of
marriage as per the dictates of section 74 (1)(g) of the Marriage, Divorce and
Family Relations Act.
97. As earlier determined by this Court, with regard to ground of appeal number
three, the Marriage, Divorce and Family Relations Act is inapplicable to this
matter. For that reason alone, this ground of appeal fails. Further, in any event,
the record shows that the lower court properly considered the contributions of
the parties herein in arriving at the determination of the distribution of the
matrimonial property.
98. On ground of appeal number twelve, the appellant contended that the lower
court erred in holding that the property cannot be subjected to the principle of
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 equal sharing and that sharing equally would be unfair. The lower court misled
itself as to the law on distribution of property upon dissolution of marriage.
99.This Court agrees with the respondent, that the lower court properly directed
itself on the applicable law as authoritatively stated by the Malawi Supreme
Court of Appeal in the case of Sikwese v Banda in which the implications of
section 24 (1) (b) (i) of the Constitution on women’s right to a fair distribution
of jointly held matrimonial property upon dissolution of marriage were
explained. As has been found earlier, the lower court also properly analyzed
the evidence and justified the decision why the property herein cannot be
subjected to the principle of equal sharing and that sharing equally would be
unfair in the circumstances. The lower court looked at the intention of the
parties and how the property was acquired in view of the history of the
businesses in issue herein. Ground of appeal number 12 therefore fails.
100. On the last ground of appeal, the appellant asserted that the lower court
failed to properly analyze the case before it reached its decision.
101. From what this Court has determined above, this Court is unable to
agree that the lower court failed to properly analyze the case before it reached
its decision. The last ground of appeal therefore also fails.
102. In the final analysis, the appeal herein fails in its entirety and the
decision of the lower court is upheld with costs to the successful respondent.

Made in open court at Blantyre this 14th June 2021.

M.A. Tembo
JUDGE

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