MATRIMONIAL CAUSE NO. 9 OF 2002
CAROLINE ANGELLA BROWN.............................RESPONDENT
CORAM: HON. JUSTICE A.C. CHIPETA
By Originating Summons the Applicant, Drew Brown, seeks an order from this court under Section 8(1) of the Divorce Act (Cap 25:04) of the Laws of Malawi that he be at liberty to file a petition for the dissolution of his marriage with the Respondent, Caroline Angella Brown, notwithstanding that three years have not passed since the date of their marriage, on grounds that he has suffered exceptional hardship. The Originating Summons is supported by an affidavit to which is exhibited the proposed divorce petition. The exceptional hardship complained of has been particularized as consisting in persistent adultery and late night outings between the Respondent and Co-respondent as well as a battering of the Applicant by a third party on 5th April, 2002 at the instance of the Respondent.
It is indeed the law in Malawi that a party seeking a divorce under the Divorce Act cannot present a petition therefor in this court before the marriage in question has been in existence for a minimum of three years, unless he/she obtains advance leave of the court in this regard. Per the proviso to Section 8(1) of the Act the only recognized grounds for granting such leave are that either the intended petitioner has suffered exceptional hardship, which is the ground raised by the Applicant in this Originating Summons, or that the case is one of exceptional depravity on the part of the Respondent.
Before I can go into an examination of whether indeed in this case the
Applicant has raised a case of exceptional hardship on his part, the question
whether or not this court
It came to light during the time the Applicant was being cross-examined that the Applicant is not a Malawian and that he was not born in Malawi. Although it did not clearly come out where exactly he was born, it was sufficiently apparent that he was born somewhere in England. It also emerged during the hearing of this Originating Summons that contrary to the Applicants’s deposition in paragraph 3 of his affidavit in support, which is to the effect that there have been no previous applications for leave, this happens to be the Applicant’s second application this year for leave to present a petition for divorce within the first three years of marriage.
In the affidavit of the Respondent the Applicant’s first application has been referred to as having been made in Civil Cause No. 1506 of 1902. In the presentations this previous application was however referred to as having been made in Civil Cause No. 1506 of 2002. From the presentations of Counsel for both parties it appears that application was withdrawn on 27th May, 2002. In his evidence on oath the Applicant affected not to recall whether an earlier application like this one had been initially filed in court and later withdrawn and as for paragraph 3 of his present affidavit which represents this as his first application, while conceding
The Respondent has alleged in her affidavit and in the presentation made on her behalf that in the said first application for leave it was the Applicant’s affidavit evidence that he was domiciled in England. She thus wondered how a person who swore thus only in May, 2002 can only a month or so later claim that he is domiciled in Malawi by seeking leave to petition for divorce in this court.
On this allegation although I can have recourse to the material court record as and when I want, I really would have expected that the Respondent would have found it necessary to exhibit the Applicant’s first affidavit in the previous case. The Applicant however appeared to concede the point raised and under cross-examination tried to explain away the anomally by saying that initially he did not understand the meaning of the word “domicile.” Actually the reaction of learned Counsel for the Applicant was one of surprise at why the Respondent’s side was dwelling so much on an application that was withdrawn. In fact Counsel hereafter even ventured into the arena of giving testimony as he tried to explain the circumstances that led to the withdrawal of the first application which he said was filed by a different lawyer.
I think it is only fair and indeed in the interests of justice that
the Respondent has exposed the application the Applicant wants hushed up
so that the present application is determined from its full and true context
rather than from a falsified context. Thus in examining such further
evidence as was presented in this case regarding the current domicile of
the Applicant I will throughout bear in mind that a month ago or thereabouts
there was filed in this court an affidavit sworn by this very Applicant
to the effect that he was domiciled in England. In so doing I take
it that it is the professional duty of every Counsel acting on instructions
from a client to be candid and thorough with his client in explaining the
law and its terms of art as they bear upon the client’s case. At
the same time I maintain my reverence for the sanctity and sanction of
the oath and my lamentation when deponents think they can take an oath
in vain without fully appreciating what they are swearing to.
As the cases put it, it requires nothing short of the strongest evidence to show that a domicile of origin has been replaced by a domicile of choice and the propositus, who bears the burden of proof when he asserts change of domicile, must not only manifest intention to acquire a new domicile, but he must also demonstrate that he has put that intention into execution by actually acquiring the intended new domicile. To put it more clearly the authorities suggest that for a court to accept that the propositus has changed domicile there must be shown a clear, unequivocal, and fixed intention to permanently abandon one domicile and to permanently adopt another. Among the many cases I have had recourse to, are the cases of Winans -vs- Attorney General (1904)A.C. 287, Fuld (No. 3)(1968)P. 675, Coombe -vs- Coombe (1923-60)1 ALR Mal. 115, Whitelock -vs- Whitelock (1978-80)9 MLR 43 and Bond -vs- Bond (1984-86)11 MLR 87, among others.
Reverting to the case at hand, my first observation is that by his affidavit in this Originating Summons the Applicant completely left out any reference to the question of his domicile as at present. Coming as we are from a background where only in May, 2002 he deponed in a different affidavit to the effect that he was domiciled in England, that application having been withdrawn, I am at a loss as to how the Applicant sought his current silence on that point to be construed in his current affidavit.
From evidence extracted from the Applicant as a result of opportunity of cross-examination and its consequent re-examination it has come to light that the Applicant came to Malawi in 1993 to work. He has throughout been on Temporary Employment Permit. He has investments in a brick making company in the region of K1-2 million and has for a year or so with the help of Knight and Frank, a real estate company, been trying to purchase a home. He says since he came to Malawi he has only been out of the country twice and that he has no investments in any other country. He added that to date Malawi is his main home.
On the evidence available, both oral and through affidavits, notwithstanding the shortfalls I have already pointed out, I believe I cannot be accused of drawing a far fetched conclusion if I hold that the Applicant’s domicile of origin is or was England. I accordingly do find it as a fact that the Applicant’s domicile of origin was/is English. Bearing in mind the stand of the law as I have ventured to discuss in this ruling, if the Applicant has since abandoned his domicile of origin and adopted Malawi as his domicile of choice, the onus was throughout on him to demonstrate de animo et facto that this is the case. The question I must now answer is whether the Applicant has discharged his onus.
Further as also already observed, the Applicant in his present application
has been silent on the subject of domicile and has so coached his application
as if his domicile is a matter of foregone conclusion or as if the question
of domicile is of no relevance to his application. Lastly, as also
already observed above, the Applicant has only come to court to discuss
his domicile on prayer of the Respondent and on basis
In trying to answer the question whether the Applicant has in this case indeed established that he has abandoned his domicile of origin and in its place acquired a domicile of choice in Malawi I have subjected the Applicant’s entire conduct in the case as above discussed to the legal tests I have earlier alluded to on change of domicile. I have thus finally asked myself whether in the circumstances revealed by and in this Originating Summons I can say that the Applicant has shown to this court a clear, unequivocal, and fixed intention of permanently abandoning England as a home and permanently adopting Malawi as his new home.
At this point I find the dictum of Lord Westbury in Udny -vs- Udny (1869)L.R. 1 Sc and Div. 441 particularly significant and I proceed to quote from the learned judge as follows:
After all this exercise I am afraid I do not find myself convinced by the evidence that the propositus Drew Brown has amply shown me that he has acquired a Malawian domicile in place of his English domicile. As such, per S. 2 of the Divorce Act, this court would have no jurisdiction to entertain a petition from him for divorce even if it otherwise qualified for presentation under the S. 8(1) test of exceptional hardship. Accordingly on account of that lack of jurisdiction I cannot grant him the leave he seeks to file a divorce petition in this court. The Originating Summons thus stands dismissed and I so dismiss it with costs.
Made in Chambers this 18th day of July, 2002 at Blantyre.