Msindo v Msindo (67 of 2006) [2006] MWHC 15 (13 November 2006);
BETWEEN:
PHILLIP MSINDO ……...……………………...…………………………PETITIONER
RESPONDENT
CORAM :
HON JUSTICE M. C. C. MKANDAWIRE
Mr Masiku for Petitioner
(Ms) Wezi Mesikano for Respondent
Mrs Edith Malani, official interpreter
Mkandawire J,
on grounds of cruelty and adultery.
to the Marriage Act (Chapter 37) of the Laws of Zimbabwe in 1994. After the celebration of their marriage both under Custom and Marriage
Act, the two have lived and cohabited in divers places in Zimbabwe and Malawi. There are four children to this marriage in Malawi.
The four children to this marriage are namely Tendai Msindo born on 1st November 1982, Vimbai Msindo born on 29th April 1988 and
Vongai Msindo born on 24th April, 1992 and Yawukaya. As already pointed out, the Petitioner and Respondent first lived in Harare,
Zimbabwe up to 1999 when the Petitioner was transferred to Blantyre, Malawi to take up a post of Managing Director of Dairy Board
Malawi. Both the Petitioner and the Respondent have been resident in Malawi since then. I am satisfied on the evidence on record
that there have been no previous proceedings in the High Court or any court in Malawi with reference to the marriage either by the
Petitioner or the Respondent. I am also satisfied that there is no collusion between the two parties.
is that their marriage could certainly not work. They had numerous disputes which usually culminated into serious fights, which affected
even their children and their own lives. The Petitioner said that to put it in a nutshell, the Respondent is a person of ungovernable
temper. He explained that as his job is very demanding, there came a time when he could come home late but the Respondent could mistreat
him by literally throwing his things out of the house. There was a time in Harare when he found that the Respondent had hipped all
his personal belongings outside their residential house. Whilst here in Malawi, the Respondent had the habit of going through his
cellphone numbers. Once she found a lady’s number, she could start phoning her. There was a time when things were so bad at
the house that their visitor who happened to be a pastor had to leave. There was also a day in Malawi when the Respondent literally
followed him to the office carrying a gun and threatening to shoot him whilst at the office. She threatened him that if he did not
tell her the name of the girl, she would shoot him. It had to take the intervention of the financial controller. Thereafter, the
Petitioner went to Zimbabwe for counselling.
Zimbabwe before she could follow him. At that time, there were rumours going around that she was going about with certain men. She
could be visited by men at their residence and one day a certain man came at night but she explained that this man had borrowed money
from her and was just returning the money. She could also receive phone calls from men and even his own friends could call her. One
day, a certain man phoned her even asking her if the Respondent was back. He found this very suspicious. The Petitioner also expressed
great suspicious on their last born child. He said that there was a time when he transferred to Bulawayo from Chipinga. The Respondent
however remained at Chipinga. Whilst at Chipinga, the Respondent fell ill. But she could not disclose to him about the admission.
about what finally broke their marriage here in Malawi which has led to their separation since July 2004. He told the court that
on a certain day, he was travelling from Blantyre to Lilongwe on duty. Whilst on the way, the Respondent phoned him on his cellular
phone. She told him not to proceed to Lilongwe or else, she would bring a man home and sleep with him. He could not stomach this
and he called it enough is enough.
due to the issue of girlfriends. Whilst in Zimbabwe, the Petitioner had several girl friends and he has two children out of wedlock.
These children have been brought up by the Respondent. The Respondent said that she used to find a lot of messages on the cell phone
of the Petitioner and these messages were from girls. She could find a message saying "Are you coming to night?"
was not caring for the children he had from these different women . At one point he sent her to Zimbabwe for counselling. He later
on followed her for discussions with the marriage advocates. But he told her that he had gone to a witchdoctor who had disclosed
to him that the last born was not his. The Petitioner later came back to Malawi and when she came, she found that he had taken all
her belongings out of the house and had kept them with Stuttafords Removals. He had also changed all the locks at the house.
sleep with him because he came home late. Then on the other occasion, he beat her up because she had bought SOBO from the SOBO company
which was their business competitor. The Respondent gave other examples of cruelty. For example, he wrote her boss to dismiss her
from work.
With regard to adultery, she denied the allegation. Whilst she confessed that they
were on separation at one point, but the Petitioner used to visit her and they used to have sex. When she fell ill, her boss phoned
the Petitioner and drove to Chipinga. At first she suspected malaria but the doctor later on told her that she was pregnant. She
concluded by saying that she has lived up with all these problems and the Petitioner is fond of committing adultery.
Having narrated the evidence on record this far let me now look at the fundamental
points in relation to the issue of jurisdiction.
In his Petition, the Petitioner has completely neglected to make any comment, positive
or negative, on the issue of domicile. The Respondent in her response to the Petition has also remained silent on this issue. She
has done the same in her cross-petition. What is also vexing about this case is that both learned counsel have remained silent on
this very important issue of domicile. I do not know whether such silence is due to ignorance of the provisions of the law or it
was a calculated move by both sides so that they do take chances with this court.
As per Section 2 of the Divorce Act (Cap 25:04) of the Laws of Malawi, the jurisdiction
of this court to entertain divorce petitions, such as the one before me, depends on whether indeed it can be said that the Petitioner
is domiciled in Malawi. It is therefore very crucial that I should first address my mind towards this issue before I can conveniently
proceed to analyse the evidence before me.
in this case not go give the question of domicile the serious scrutiny that it deserves. I observed that the way the parties had
argued their case appeared as if they had given a foregone conclusion that these two Zimbabwean nationals are domiciled in Malawi.
This is indeed very unfortunate and extremely unusual. It is therefore not amazing that when the petitioner commenced his testimony
he went straight into cruising gear arguing the grounds he relies on for the court to grant him relief in the case and did not in
the least seem to bother about first establishing the issue of domicile.
Similarly when the Respondent embarked on her defence she too went into cruise gear
without being bothered with the question of domicile. She just went straight to start explaining about her husband’s adultery.
The concept of domicile does not require the two parties to silently consent and waive it. It actually requires proof in a court
of law. It was therefore incumbent upon the petitioner to bring proof that he was now domiciled in Malawi. I therefore take it that
despite the fact that these two parties had taken a very casual approach, it is the duty of this court to make a definite decision
on the question whether the Petitioner and Respondent are domiciled in Malawi.
This is more so in light of Section 2 of the Divorce Act, which is quite plain and
unequivocal on the subject who qualifies for the court’s jurisdiction. If the Petitioner is domiciled in Malawi, I will certainly
proceed to determine this case. If on the other hand I am not then I shall not proceed but throw it away. In the decision of Hon
Justice Mead in the case of Whitelock vs Whitelock (1978 – 80) 9 MLR 43, there the question of domicile was taken up as a preliminary issue. The decision by Mead J is very relevant
to the case before me because in that case, it was held that a court cannot assume jurisdiction even by consent of the parties where,
by reason of the Petitioner’s lack of a Malawian domicile, it otherwise has no jurisdiction. I therefore need to be independently
satisfied about the true domicile of the Petitioner. Going by the evidence on the Petition and the one orally given, the Petitioner
is a Zimbabwean citizen. The Respondent too is a Zimbabwean citizen. What has brought them to Malawi is employment whereby the Petitioner
is the Managing Director of Dairy Board Malawi. In other words, if it were not for this job, the Petitioner and the Respondent would
not have been on the soils of this country.
Turning to the law, a person’s domicile is a person’s permanent home.
On the onset therefore, I find that there is nothing else that connects the Petitioner to Malawi a part from employment. If he loses
his job today, he goes back to Zimbabwe. I also take judicial notice of the fact that the company the Petitioner is working for is
Zimbabwean controlled therefore all his allegiance is owed to Zimbabwe. With due respect to both parties including counsel, this
is not a case whereby this court would assume jurisdiction. The Petitioner is not at all domiciled in Malawi. There is not even a
scintilla of indication that he has made attempts to be domiciled in Malawi. One does not become domiciled in Malawi by mere working
here. This is a case which was completely misconceived to be filed with this court.
It is now settled law from the cases of Whitelock vs Whitelock (earlier cited) Bond vs Bond (1984 – 86) 11 MLR 87 that a person’s domicile of origin adheres to him unless and until there is satisfactory evidence
to show that it has been displaced by a domicile of choice, which domicile is only acquired if it is affirmatively demonstrated that
the propositus has formed a settled intention independent of any external pressures to indefinitely reside in that domicile of choice.
This is not the case in this matter as nothing of that fact has been shown.
I therefore find that the Petitioner is not at all domiciled in Malawi as such,
I cannot assume jurisdiction in this petition for divorce. From the evidence on record, it would appear that the parties herein easily
go to their home of origin Zimbabwe. For example, it is on record that the Respondent has even been sent to Zimbabwe for counselling
and the Petitioner later on followed. In that same vein, the Petitioner may as well file the case with the High Court of Zimbabwe,
which has jurisdiction over them. Moreover, Harare is just a stone throw away from Blantyre. I therefore dismiss this petition without
even going into the details of its merits for want of jurisdiction. I hereby do dismiss the Petitioner’s petition with costs.
PRONOUNCED in open court this 14th day of November 2006 at Blantyre.