Court name
High Court General Division
Case number
174 of 2010
Case name
Elijah Kalagho v Jarvis Nkango
Law report citations
Media neutral citation
[2011] MWHC 9
Judge
Madise J

IN THE HIGH COURT OF MALAWI

 

MZUZU DISTRICT REGISTRY

 

CIVIL CAUSE NO. 174 OF 2010

 

BETWEEN:

 

ELIJAH KALAGHO                                             PLAINTIFF

-AND-

JARVIS NKANGO                                              DEFENDANT

 

CORAM     :         HON. MR. JUSTICE D.T.K. MADISE

Mr.  A. Chunga, Counsel for the Plaintiff

Mr. M. Amidu, Counsel for the Defendant

Mr. R.S.D. Kahonge/M.K. Luhanga, Official Interpreters

Mr. C.B. Mutinti, Reporting Officer

 

 

Madise, J

JUDGMENT

 

Introduction

The Plaintiff in this matter Elijah Kalagho took summons for adultery against the Defendant Jarvis Nkango on allegation that the Defendant was having an affair with his wife during the subsistence of their marriage.  The Plaintiff claims damages whose particulars are spelt out in the statement of claim.  The Defendant denies the claim and called the plaintiff to strict proof.

 

Brief facts

On 9th August, 1997 the plaintiff married his wife Edith Nyasulu at the Assemblies of God Church in Mzuzu and the said marriage was registered under the African marriage (Christian Rites) Registration Act.  There are three issues of the marriage. On 15th April, 2010 the Plaintiff’s wife obtained an order dissolving the marriage on the ground that the marriage had irretrievably broken down due to an alleged adultery purportedly admitted by the wife.

 

Statement of Claim

The writ was accompanied by a Statement of Claim which we produce as filed;

 

1.      At all material times the Plaintiff was the lawful husband of one Edith Kalagho (nee Nyasulu) and the Defendant former Branch Manager for National Bank-Mzuzu where Edith worked.

 

2.      On various dates from 2007 to 2010 April or thereabout the Defendant had had adulterous affair with the said wife of the Plaintiff.

 

 

3.      Consequential to adulterous exploits stated above the said Edith Kalagho filed a petition for divorce whereafter their marriage was dissolved.

 

4.      The plaintiff lost a home as a result of the said divorce.

 

5.      By reason of the matter aforesaid the Plaintiff has suffered various degrees of trauma.

 

Particulars.

 

(i)                 The Plaintiff was denied conjugal rights.

 

(ii)               The Plaintiff was tormented by electronic messages from the Defendant to Edith Kalagho.

 

(iii)              The Plaintiff has suffered and still suffers stressful moments.

 

(iv)            The Plaintiff has suffered separation and desertion.

 

(v)              The Plaintiff’s legitimate expectation of bringing the kids together with his wife has been shuttered.

 

AND the Plaintiff claims:

 

(a)    General damages and

 

(b)    The costs of this action.

 

 

Statement of Defence

In denying the allegations the Defendant filed a statement of defence as per the rules which we reproduce as filed;

 

1.      Paragraph 1 of the Statement of Claim is admitted.

 

2.      Paragraph 2 of the Statement of Claim is denied and the Plaintiff is put to strict proof thereof.

 

3.      The said Edith Kalagho, the then wife of the Plaintiff filed a Petition for divorce on grounds of cruelty, lack of maintenance by the husband and the husband’s failure to provide for the home.

 

Particulars:

 

(a)     In June, 2009, due to a slight misunderstanding the husband took an axe in a quest to hack the wife.

 

(b)     Over ten years, the wife has provided for the family.

 

(c)     During the course of their marriage, the husband borrowed K100, 000.00 from staff welfare fund of the wife’s employers for business and failed to pay back consequently, the wife had to borrow elsewhere to refund it.

 

(d)     The husband borrowed other funds from another financial institution and without her consent, he pledged a fridge and a computer, all belonging to the wife.  He failed to pay back the financial institution and the said assets were confiscated and sold.

 

4.      The defendant refers to Paragraph 3 of the Statement of Claim and states that if the marriage was nullified, then there was no marriage at all under which the Plaintiff can enforce any rights;

 

5.      The Defendant refers to Paragraph 3 hereof and while denying Paragraph 4 of the Statement of Claim, the Defendant states that if at all the Plaintiff lost a home, the loss was as a result of his own making and the Defendant had had no any other connection with the said Edith Kalagho save being a workmate.

 

6.      The Defendant denies the contents of Paragraph 5 of the Plaintiff’s Statement of Claim and the Plaintiff is put to strict proof thereof;

 

7.      The Plaintiff brought the said marriage to an end by his own acts and the last bit that worsened it all being the axe with which he wanted to hack the wife and people had to wrestle with him for the axe.

 

8.      SAVE as herein expressly admitted the Defendant deny each and every allegation of fact in the Statement of Claim as if each were herein set out and traversed seriatim.

 

The issues

There are basically two issues for determination before this court.

 

(1)       Whether adultery did take place between the Defendant and the Plaintiff’s wife?

 

(2)       Whether damages are payable?

 

The Evidence

The Plaintiff gave a witness statement in which he stated as follows;

 

(1)     I am Elijah Kalagho, ex-husband to Edith Kalagho (nee Nyasulu) of Box 334, Mzuzu, the Plaintiff in this action.

 

(2)     I lawfully married my ex-wife (Edith Kalagho) and the said marriage was celebrated on 9th August, 1997.  See marrIage Certificate exhibited herein and marked “EK 1”.

 

(3)     I and my wife had been living together happily for almost 10 years.

 

(4)     It was only in 2007 that my wife started to have adulterous affair with the Defendant that problem begun in my family.

 

(5)     Consequential to the adulterous exploits of my wife by the Defendant, my wife filed a petition for divorce and our marriage was dissolved.

 

(6)     On 15th April, 2010 my wife obtained an order dissolving our marriage on the ground that the marriage had become ‘irreparable’ and also on the ground of adultery which my wife admitted to have committed with the Defendant.  See a copy of judgment exhibited and marked “EK 2.”

 

(7)     For three years before the dissolution of our marriage, my wife continuously refused to have normal sexual intercourse with me and when the matter was brought before the Church Deacons of the Assemblies of God Church, my wife admitted to have been

 

 

 

committing adultery with the Defendant during the said period of time.

 

(8)     The Defendant also confessed before the said Church Deacons to have been committing adultery with my wife and the Defendant apologized to me.

 

(9)     Despite the said apology, the Defendant continued to commit adultery with my wife and thus ultimately culminated in my wife’s successful petition for dissolution of our marriage.

 

(10) I have lost home as a result of the said divorce.

 

(11) By reason of matters aforesaid I have suffered various degrees of trauma.  Hence this action.

 

(12) The contents of this statement are true to the best of my knowledge and belief.

 

The Plaintiff tendered in evidence a copy of the marriage Certificate and a copy of the judgment from the lower court which dissolved the marriage. They were marked Exhibit P1 and P 2.

 

In cross-examination, the Plaintiff told Court that he was not present at the meetings that took place at Mzuzu Lodge between the Defendant and the Church elders.  He denied that he was merely jealousy of his wife. He insisted that the wife admitted to the adultery when he confronted her in front of Church elders. 

 

The Plaintiff called only one witness Mr. Alfred Phiri.  He gave a witness statement which we reproduce as follows;

 

(1)      I am Alfred Phiri, one of the Church Deacons at Mzuzu Local Assembly, P.O. Box 334, Mzuzu.

 

(2)      The Plaintiff lawfully and happily married his ex-wife (Edith Kalagho) and the said marriage was celebrated on 9th August, 1997.

 

(3)      In or around 2007, the Plaintiff’s wife started having adulterous affair with the Defendant.

 

(4)      When the Plaintiff reported the shocking news to the church, the Church summoned the Defendant to a confidential meeting which was held at Mzuzu Lodge.  See copy of the letter marked “AP1” for exhibit.

 

(5)      The said meeting took place on 10th January, 2009 and the Defendant confessed to have been in an adulterous affair with the Plaintiff’s wife for more than one year.

 

(6)      At the end of that meeting the Defendant promised not to continue flirting with the Plaintiff’s wife.

 

(7)      However the Defendant did not keep the promise and continued having adultery with the Plaintiff’s wife.

 

(8)      When the church learnt of the same, we arranged another meeting with the Defendant.  See copy of the letter marked “AP 2” for exhibit.

 

(9)      Despite of the said meeting the Defendant never changed his immoral behavior until the Plaintiff’s marriage was finally dissolved on the grounds of adultery.

 

(10)   The contents of this statement are true to the best of my knowledge, information and belief.

 

The witness tendered in evidence two letters which he had written on behalf of the Church to the Defendant.  The letters were addressing the concerns that the Plaintiff had with the conduct of the Defendant. In these letters PW2 also summoned the Defendant to a confidential meeting to discuss the issue.

 

In cross-examination PW1 stated that the wife when confronted admitted having an affair with the Defendant and he was present.  He also stated that the Defendant admitted the affair at the meeting which took place at Mzuzu Lodge on 10 January 2009. He however stated that no minutes were recorded at the two meetings that took place at Mzuzu Lodge.  He denied witnessing the adultery.  That marked the close of the Plaintiff’s case.

 

The Defence

In response to the allegations leveled against him the Defendant one Jarvis Nkango gave a witness statement which we reproduce as follows;

 

 

 

1.      I am Jarvis Nkango, the Defendant in this Matter.

 

2.      I worked with the National Bank and once I was the Branch Manager for the National Bank in Mzuzu.

 

3.      Mrs. Edith Kalagho a workmate at Mzuzu Branch.

 

4.      I am not responsible for the break down of the Plaintiff’s marriage as that remained a personal aspect between the Plaintiff and his wife.

 

5.      I have never committed the alleged adultery with the Plaintiff’s wife as alleged by the Plaintiff herein.

 

6.      It was the behavior of the Plaintiff suspecting his wife that she was committing adultery with her work place’s personnel.

 

(a)      Prior to my coming to Mzuzu, there was rumour the Plaintiff suspected his wife to have been committing adultery with a member of her work place’s management?

 

(b)      When I arrived in Mzuzu, Mr. Mtendere Banda my workmate briefed me about this.

 

7.      I had no reason to confess before anyone and, in fact, I have never confessed before any person that I committed the alleged adultery with the Plaintiff’s wife, therefore, the alleged confession is categorically denied.

 

 

 

8.      The Plaintiff caused the break down of his marriage by his own acts and in my own findings after these proceedings were instituted against me, I discovered that:

 

(a)    Problems in the marriage started in 2006.

 

(b)    In 2007, the Plaintiff’s wife left the matrimonial home without informing the Plaintiff or her relations in Chipoka, Salima then to her father in Phwezi.

 

(c)    While the Plaintiff’s wife was away, the wife’s relation came to insult, in fact, they insulted the Plaintiff right at his house at Chibanja.

 

(d)    It is stated that the Church intervened and re-united the Plaintiff and his wife.

 

(e)    In 2008, problems arose again in what was said to be that the wife was refusing the Plaintiff in bed, the Church intervened again.

 

(f)       The Church separately called the wife to inquire into the problems and the wife clearly told the church elders that the Plaintiff was not being responsible towards the family affairs, for example, He, Elijah, had no kind words to her relations and that he was not stable in whatever he was doing so she felt that the whole family responsibilities were upon her shoulders, and over ten years, the wife has provided for the family.

 

(g)    The problems continued and sometime at night in November, 2009, due to a slight misunderstanding, the husband called for an axe in

 

 

a quest to hack the wife and was rescued by neighbors and the deacons.

 

(h)    In the course of their marriage, the husband borrowed k100,000.00 from staff welfare fund of the wife’s employers for business and failed to pay back consequently the wife had to borrow elsewhere to pay back.

 

(i)        The Plaintiff borrow other funds from other financiers and without the wife’s consent, he pledged a fridge and a computer, all bought by the wife.  The Plaintiff failed to pay back and the financiers grabbed the fridge and computer and sold them.

 

9.      From the foregoing it is clear that if at all the Plaintiff lost a home as he alleges, though he owned no home in the first place as the house they were living in was owned by the Plaintiff’s wife through a loan she obtained from her employers, the loss was as a result of his own making and I had no any other connection with the Plaintiff’s wife save as she was working at a National Bank Branch where I happened to be a Branch Manager.

 

10. The Plaintiff brought the said marriage to an end by his own acts and the last bit that worsened it all being the axe with which he wanted to hack the wife and people had to wrestle with him for the axe during that night.

 

11. The said Edith Kalagho filed a petition for divorce on grounds of cruelty, lack of maintenance by the husband and the husband’s failure to provide for the home.

 

12. I have never received any letter or communication neither by hand nor through post calling me to a meeting with any Church elders be it from the Plaintiff’s church or otherwise and on issues to do with the plaintiff’s marriage.

 

13. On the Plaintiff’s list of Documents dated 5th January, 2009 and 8th May, 2009, I have noted two letters; alleged to have been sent to me by a church, having seen the said letters through inspection I wondered whether the same reached iTs intended destination as they do not bear any addressee and do not have an address for its destination further more, there is no any indication that their recipient acknowledged any service of the same by hand, if at all.

 

14.  The said letters were never copied to all parties concerned, if all, especially Mrs. Kalagho as she is being quoted having allegedly confessed.

 

15. The only letter that reached me was that dated 11th May, 2009 addressed to the Chief Executive Officer and the Head Office forwarded it to me upon reading it I made the following observations;

 

(a)    It was made up of fabricated stories;

 

(b)    I have no powers to promote any person as such powers are rested in the office of the Human Resources.

 

(c)    In view of the foregoing I have no audacity to entice any and the Plaintiff’s wife in particular.

 

(d)    The Plaintiff’s wife has been with the organization for over ten years and the Human Resources Division sought to promote not only her but together with and Mr. Shadreck Gama while Mr. Mtendere Banda the instigator of the whole thing was promoted earlier.

 

16. Powers to hire, fire and promote is vested in the Human Resources Division for that reason a person of my capacity could not have enticed the Plaintiff’s wife on promotion as alleged by the Plaintiff in this matter.

 

17. I have never been involved with the Plaintiff’s wife as alleged by the Plaintiff.

 

18. The Plaintiff’s own actions brought about the breakdown of his marriage and the same ought not to be attributed to anybody else.

 

19. I make this statement believing the same to be true to the best of my knowledge and believe.

 

The Defendant tendered in evidence a letter which was written by the Department of Human Resources at National Bank promoting Edith Nyasulu.  The letter was intended to show that he did not influence the promotion nor did he make the promotion himself. He also tendered in evidence a letter the Plaintiff wrote to his the Head of Human Resources on the alleged adultery.

 

In cross-examination, he stated that when he arrived at National Bank, Mzuzu, he had heard of the Plaintiff’s trouble marriage.  He told Court that he was condemned unheard in the magistrate court.  He denied ever

 

confessing about the adultery in the presence of any one.  He also denied attending any of the alleged meetings at Mzuzu Lodge.  He denied having an affair with the Plaintiff’s wife.

 

Law and Evidence

Burden and Standard of Proof

In civil matters there are two principles to be followed. Who is duty bound to adduce evidence on a particular point and what is the quantum of evidence that must be adduced to satisfy the court on that point? The law is that he who alleges must prove. The standard required by the civil law is on a balance of probabilities. Where at the end of the trial the probabilities are evenly balanced, then the party bearing the burden of proof has failed to discharge his duty. Whichever story is more probable than the other must carry the day.

 

What is adultery?

Black Law Dictionary 6th Edition 1991, describes adultery as voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife or by a person with a person who is married to another.

 

The vice about adultery is historical.  Once two people (male and female) are married they are supposed to enjoy conjugal rights amongst themselves and to the exclusion of all others. Throughout the establishment on the modern legal system based on common law, courts worldwide have come to accept that adultery as a social evil is difficult to prove. Ordinary and reasonable people do not engage in sexual intercourse in the open.  Even married couples who are perfectly entitled give the pleasure of sexual intercourse the dignity it deserves by concealing its performance.  However, like any other matter before any court of law, adultery can be proved without direct evidence.

 

For adultery to stand there must be proof that the other party to the act was married at the time the act was committed. The law demands that there should be more than mere opportunity. When two people are found in the same house it cannot be said that adultery did take place.  There must be more than that. In Chilakolako vs. Chilakolako [1978-80] 9 MLR, 355 Villiera, J quoting a paragraph in Latey on Divorce 15th edition at 103 (1973) stated.

 

“Although inclination coupled with opportunity is often accepted by the court as proof of adultery it is a refutable prescription.  Indeed behavior or familiarities short of sexual intercourse raise a very strong prescription of adultery but the court must be convinced that the wife has transgressed not only the bounds of delicacy but also of duty and that there has been a surrender not only of the mind but also of the person.”

 

In this matter, the Defendant and Plaintiff’s wife were workmates at National Bank Mzuzu Branch. The former was the Branch Manger and the latter his junior. There has been adduced no evidence to suggest that the two had conducted themselves, at the work place, in the manner as to suggest that they were having an affair.  There is no evidence that the two were caught red handed or were seen together in a compromising position, at an unlikely place during awkward hours.  There is a mention of Kaning’ina Lodge but no one saw this man and the Plaintiff’s wife there.  Were the two seen in the motor vehicle together at any given time?  There is none in the evidence. How then does the Plaintiff insist there was adultery?

 

In Ross vs. Ross (4) [1930] A.C at 7 it was stated that:

 

“Adultery is essentially an act which can barely be proved by direct evidence.  It is a matter of inference and circumstance.  It is easy to suggest conditions which can leave no doubt that adultery has been committed but the mere fact that people have been thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by documents e.g. letters and diaries or any conduct that the association of the parties was so intimate and their mutual passion so clear that adultery may reasonably be assured as a result of an opportunity for its occurrence.”

 

The only evidence presented before me in this matter is one of confessions.  It is alleged the wife confessed to the Plaintiff that she was having an affair with her boss the Defendant herein.  It is alleged she sought for forgiveness and promised to terminate the affair.  What prompted this confession?  The Plaintiff stated that the wife has been denying him conjugal rights for a period of 3 years and when he wanted to know why it is when the wife confessed.

 

It is further in evidence that when Alfred Phiri was called together with other Church elders the wife also confess to the adultery and sought for forgiveness. Mr. Phiri stated that she promised to terminate the affair but

 

when it was apparent that the wife was still enjoying sexual intercourse outside marriage with the Defendant, the Plaintiff returned to the Church elders. This is what prompted the Elders to write the Defendant. There is no evidence that the Defendant replied.

 

Mr. Phiri told the Court that the Defendant suggested that they should meet at Mzuzu Lodge.  At the meeting Mr. Phiri told Court that the Defendant admitted the affair and promised to stop seeing the Plaintiff’s wife. Apparently, there was no change and Mr. Phiri called for another meeting at the same Lodge where the Defendant also admitted and promised to change his immoral behavior.  The Defendant has denied receiving such letters.  He has also denied attending any such meetings and worse admitting the adulterous affair. In the absence of direct evidence this Court must now decide which story is more probable than the other.

Conclusion

I had before me both the Plaintiff and the Defendant. They all gave evidence. Surely one of them is not telling the truth. I have on the bench long enough to know the credibility and demeanor of witnesses. I am of the opinion that the story as told by the Plaintiff makes more sense in the circumstances.  I believe what he told me.  I believe that indeed the wife confessed to this immoral act.  I believe the Plaintiff that indeed the wife sought forgiveness and promised to change.  Unfortunately, she was too much in love with the Defendant that she could not afford to terminate the secret love affair.

 

I believe Mr. Phiri when he said that the wife confessed in his presence. I believe Mr. Phiri when he said the Defendant confessed to the

 

 

sins at the two meetings he attended at Mzuzu Lodge.  I see no reason why Mr. Phiri should tell lies in this court. Actually it is on record that the wife confessed before the FGM Court that she was having an affair with the Defendant. This is clearly written in the judgment of the lower court.

 

For the Defendant I understand his predicament.  I did not expect him to tell the Court that indeed he had an extra marital affair with the Plaintiff’s wife.  He has a reputation to protect.  Unfortunately his actions have come to light.  He admired someone’s wife against the provisions of law and morality. The lesser evil could have been to have an affair with an unmarried woman if he so desired.  He must be condemned.

 

Order

I will now turn to the issue of damages as prayed by the Plaintiff in this matter. The law is very clear on this point. Where adultery has been proved the Court should proceed to award the damages on the basis of Section 23 Divorce Act.

 

(1)     A husband may by petition claim damages from any person on the ground of his having committed adultery with the wife of the petitioner.

 

(2)     Such claim may be made either in a petition for dissolution of marriage or for judicial separation or by petition for that purpose only.

 

I therefore agree with the Plaintiff that he had suffered due to the conduct of the Defendant.  He was denied sexual intercourse due to the actions of the Defendant.  He suffered mental anguish due to the actions

 

of the Defendant.  He has lost his marriage and all future expectations have been shuttered due to the cruel acts of the Defendant.  He must be compensated accordingly.  The Plaintiff must file summons for assessment of damages before the Registrar within 21 days.

 

Costs

The Defendant is condemned in costs of this acTion.

 

Pronounced in Open Court at Mzuzu in the Republic this 14 October 2011

 

 

 

 

D.T.K. Madise

JUDGE