Antonio Manuel Jussub v Anjum Jussub (Matrimonial Cause 8 of 2024) [2026] MWHC 38 (19 May 2026)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY FAMILY AND PROBATE DIVISION MATRIMONIAL CAUSE NUMBER 8 OF 2024 ANTONIO MANUEL JUSSUB ……………………………………………………………….......APPLICANT AND ANJUM JUSSUB……………………………………………………………………………..…RESPONDENT

Coram

HONOURABLE JUSTICE JEAN ROSEMARY KAYIRA Counsel Gonjetso Dikiya of Counsel for the Applicant Counsel Kuleza Phokoso of Counsel for the Respondent Ms. C. Kazembe Court Clerk and Official Interpreter

RULING ON AN APPLICATION TO SET ASIDE AN ORDER OF SALE Kayira J

Introduction

This is a ruling on an application to set aside the order of sale pursuant to Order 10 rule 1 of the Courts (High Court) (Civil Procedure) Rules of 2017-CPR. The parties filed their sworn statements and skeleton arguments which this Court examined thoroughly. The parties argued their respective cases in this Court. This Court reserved its ruling. Today the matter resumes for the delivery of the said ruling.

Background

On 21st February, 2024, the Respondent Anjum Jussub filed a petition for divorce. Apart from praying for the dissolution of the marriage, she prayed for the distribution of matrimonial properties and costs of the action. After trial, this Court granted the prayer dissolving the marriage. The Court had a hearing on

ancillary issues specifically on distribution of matrimonial properties. The parties filed their submission and this Court delivered its order on the distribution of matrimonial properties on 24th January, 2025. The order shared the properties in a 55%:45% to the Applicant and Respondent respectively. On 17th March, 2025 Counsel for the Respondent applied for the appointment of an independent valuer for the valuation of the house situated at Plot Number Njewa 9/420. The application so ught that the Commissioner for Valuation should appoint a government valuer or authorised valuer duly registered under the Property Valuation Act of 2024 to carry out the valuation of the matrimonial houses in order to ensure fair, just and proper implementation of the judgment of this Court of 24 th January 2025. This Court duly granted this order which is in the following terms:

1. That the Commissioner for valuation carry out valuation of property land title Number Njewa 9/420 to determine the current market value of the property on the said land; and/or

2. That the Commissioner for valuation should appoint a government valuer or authorised valuer duly registered under the Property Valuation Act, 2024 to carry out valuation of property Land Title Number Njewa 9/420 to determine the current market value of the property on the said land.

3. That upon such determination, the two houses must be sold at the current market value and the proceeds be shared per the court’s ruling of 45 percent to the Petitioner and 55 perc ent to the Respondent; and

4. That the valuation costs be shared equally between the parties. On 12 th July, 2025 Pioneer Properties valued the property at K595, 000, 000.00. The Respondent obtained a Court order to sale the property and the property was sold to Sana Hamsa Haroon on 15 th December, 2025. The sale had two witnesses from the court confirming the authenticity of the court order on the sale. Counsel for the Respondent informed this Court through a letter dated 24 th February, 2025. This letter was copied to Counsel Ayuba James who was then a Legal Practitioner for the Applicant. On 2nd March, 2026, this Court directed Counsel Phokoso to file three things;

1. Paper trail on the choice of the valuer;

2. Paper trail on evidence of payment to the valuer; and

3. Valuation report for purposes of the court record. Counsel undertook to file the documents but never filed then until today. On 2nd April, 2026, the Applicant applied for an inhibition order.

Submissions by the Parties

The Applicant supported his application with a sworn statement. In the sworn statement of 1st April, 2026, the Applicant accepts the share of 55% and 45% respectively. It is his belief that once the property is valued, he is going to buy out the share of his former spouse. It is what followed after the judgment which compelled him to make an application for an inhibition order and an order setting aside the sale of the property. The Applicant deposes that he did not know about the valuation and eventually sale of the property under paragraph 2.3 of the sworn statement. From paragraphs 2.4 to 8.2, he believes that he has been arbitrarily deprived of his property and the right to be heard by the Counsel. In paragraph 5, he acknowledges and believes that his Counsel made mistakes by not informing him about the progress of the case and receiving his input in form of instructions as to how to move forward. According to the Applicant, this mistake is prejudicial to him because he damages cannot be adequately compensate him. This Court duly granted the inhibition order on 8th April, 2026. The Court resumed for hearing on interpartes application to set aside the order of sale. The Applicant filed a sworn statement in support of the application which is similar to what he filed when h applied for the inhibition order. On her part, the Respondent filed a sworn statement in opposition to the application to set aside the sale of the matrimonial property and continuation of the inhibition order. The Applicant then filed a sworn statement in reply to the sworn statement in opposition to the application to set aside the sale of matrimonial property and for the continuation of the inhibition order. In his response, the Respondent through Counsel, vehemently opposed the application to set aside the sale of t he property. She opposes the application on the ground that the Applicant had dirty hands, suppressed and withheld material facts; and that the application was an abuse of the Court process as it attempts to appeal behind the backdoor; has no merit and is hopeless and does not cite the specific law under which it is made. Counsel further submitted that the present matter was determined already by this Court. As such this Court has no jurisdiction since it is functus officio. Counsel argued that the Applicant is bound by the notice, knowledge, actions or omissions of his Counsel. Since the matter was concluded, it was Counsel’s submission that litigation must come to an end and successful litigants must not be deprived of the fruits of their litigation. Couns el finally submitted that the Applicant has not suffered any prejudice. Therefore, this Court must dismiss the present application with costs. The Applicant’s reply to the sworn statement of the Respondent submits that his last communication with his former Counsel was through an email of 4th March, 2025. In that email, the former Counsel forwarded correspondence from the Respondent’s Counsel. The Applicant accepts receipt of KRP2 on the appointment of an independent valuer for purposes of implementing the judgment of this Court dated 24th

January, 2025. However, he laments that he received this email on 4 th March, 2025 when in actual fact it was sent to him on 20th February, 2025. This was outside the timeframe that he was supposed to send his opinion on the appointment of an independent valuer. The Applicant depose that he made efforts to communicate with his former Counsel but they yielded nothing. The next communication was on 12 th March, 2026 through a WhatsApp platform where Counsel informed the Applica nt that the property had been sold and that his cheque was ready for collection at the Court. He then reminded him of the applicable legal fees owing to him in the sum of K50, 000, 000.00-AMJ2.

REASONED ANALYSIS OF THE COURT The Respondent raised a preliminary issue of jurisdiction of this Court. Counsel argued that Order 10 rule 1 of the CPR; and Order 10 rule 27 of the CPR as read with Section 78 of the Marriage, Divorce and Family Relations Act-MDFRA as well as Sections 123 and 139 of the Registered Land Act do not confer jurisdiction on this Court. Counsel further argued that this Court has no jurisdiction since it delivered its final determination in the present matter. In response, Counsel for the Applicant submitted that this Court has jurisdiction to hear an application to set aside an exparte order. The arguments from the parties were comprehensive. This Court considers the principles applicable in order for the doctrine of being functus officio to apply. The order which the Applicant seek to be set aside was gr anted when the Respondent applied without notice. In such instances, this Court bears in mind the fact that such orders can be set aside if the interest of justice dictates so. It is the considered understanding of this Court is that an application to either stay enforcement or set aside an order which was made exparte does not fall within the ambit of a court being functus officio. Therefore, this preliminary argument falls off.

The Applicant argues that he was deprived an opportunity to express his interest to buy the share of his former wife because he did not know about the steps taken from the day judgment was issued to the day he was informed by Counsel Ayuba James that his property was sold and he should collect his payment. The Respondent argues that the Applicant is bound by the notice, knowledge and action or omissions of his Counsel. It is abundantly clear to this Court that Counsel for the Applicant received all the communications from Counsel for the Respondent. On 2nd April, 2024, Counsel Silvester Ayuba James filed a notice of appointment as a Legal Practitioner for the Applicant. He filed a response, a defence and cross petition for divorce on behalf of the Applicant. Throughout the trial, Counsel Ayuba James was the Legal Practitioner for the Applicant. Counsel Ayuba

James actually wrote this Court on 17 th March, 2026 and he confirms that he acted for the Applicant in this matter from the beginning until the final order was made and through the sale process. Since there is no notice from Cou nsel Ayuba James that he ceased to act for the Applicant, this Court safely concludes that he was the Legal Practitioner of the Applicant until 14 th April, 2026 when another Legal Practitioner took over the matter. The record clearly confirms the communica tions made from Counsel Phokoso to Counsel Ayuba James on each step that the Respondent intended to take and sought their input within a specified timeframe and the indication that they will proceed seeking a Court order in the evet that the Applicant does not respond. The communications are also clear on the subsequent decisions made and progress of the sale. In all these comprehensive and articulate communications, it is striking to note the loud silence from the Applicant. In as far as the Court record is concerned, there is no corresponding response from the Applicant either in the affirmative or negative; or counter offer or protest to all the communications made. These communications are detailed and clear in terms of what the Respondent did. To this Court, there is sufficient evidence that the Applicant received thorough and comprehensive communication without suppression of material facts from the Respondent.

The Applicant argued that the order of the Court did not give power to the valuer to sale the property. The sale of the property by the valuer is an extension of the powers vested in him. Counsel for the Applicant wondered if the valuer was a qualified agent capable to sale properties. Further, Counsel questioned how a valuer would be objective in the valuation whilst knowing that he is also responsible for the sale of the property. According to Counsel for the Applicant, the valuer will be estimating t he value of the property whilst bearing in mind that he has monetary interest. He therefore found a combination of these roles as a recipe for conflict of interest. It was his argument that since the valuer is entitled to a certain percentage, he would value the property at a lower amount with the intention to sale the property without difficulty. On the contrary, Counsel for the Respondent submitted that they were transparent and professional in all their dealings with the valuer. It is his firm submission that the valuer did not extend his powers. Counsel further argued that the found the argument a s speculative because there was no empirical evidence to show that the valuer had a conflict of interest. It is the Respondent’s further argument that the communications to the Applicant’s former Counsel provided room for clarification and contact whenever he considered it necessary. Counsel Phokoso further submitted that this Court ordered that the property should be valued, sold and the proceeds should be shared between the parties.

The Respondent deposed that they wrote Counsel for the Applicant on 11 th March, 2026 regarding the implementation of the judgment on the distribution of matrimonial properties. In the letter, they suggested the appointment of an independent valuer to determine market value of the property for transparent sale and distribution to the parties -KRP1 & KRP2 . The letter was received on behalf of Khonyongwa and Associates, by Phalula on 11th March, 2025 at 4pm. In this letter, there is clear indication that it must be brought to the attention of Counsel Ayuba James. Apart from explain ing the judgment of this Court, Counsel Phokoso kindly requested Counsel Ayuba James to confirm his client’s position on the appointment of an independent valuer within 7 days from that date. This meant by 18 th day of March, 2026. Apart from that, Counsel Phokoso indicated if there is no response, he will proceed to make an application to the Court for an order of appointment of an independent valuer. Counsel Phokoso observed that the Applicant’ s Counsel has been using delaying tactics from the beginning of the case. This according to Counsel, is to frustrate expeditious conclusion of the present matter. After receiving this letter, Counsel Ayuba James did not respond. After 7 days, Counsel Phokoso applied for an order to appoint an independent valuer. This Court granted the order as outlined above-KRP3 and KRP4. This order was served on the Applicant on 9th April, 2026 as confirmed by a stamp from Khonyongwa and Associates by the same Phalula. Counsel then wrote the Secretary for Lands as per KRP5 on 2 nd April, 2025 . Below is the content of the letter on their LETTERHEAD:

02nd April, 2025 Secretary for Lands Private Bag 311 Lilongwe.

RE: REQUEST FOR VALUATION OF PROPERTY OF LAND TITLE NUMBER NJEWA 9/420 We refer to the above subject matter and write to formally request a valuation of the property identified as Land Title Number Njewa 9/420. We act as the legal practitioner for Mrs Anjum Jussub, who was involved in a legal case against Mr. Antonio Manuel Jussub. Pursuant to the court’s judgment, the matrimo nial house on Land Title Number Njewa 9 of 420 was distributed as follows:

 45% to Mrs. Anjum Jussub  55% to Mr. Antonio Manuel Jussub. Following this distribution of matrimonial property, we have obtained a court order directing the office of the Commission er for valuation to appoint a duly registered and authorised valuer to conduct an official valuation of the said property. Kindly proceed with the necessary arrangements to facilitate this valuation at your earliest convenience. Should you require any additional documents or clarifications, please do not hesitate to contact us at your earliest convenience. The Respondent delivered this letter to the Ministry and it was received by L. Nyando on 2nd May, 2025. According to KRP6, on 12 th May, 2025, the Princip al Secretary for the Ministry of Lands and Urban Development responded as follows:

Phokoso and Company

Attention: Mr. Ian Nkoka Dear Sir, RE: REQUEST FOR VALUATION OF PROPERTY OF LAND TITLE NUMBER NJEWA 9/420 Reference is made to your letter dated 2 nd April, 2025 in which you requested for valuation of property of Land Title Number Njewa 9/420 following a Court Order which you obtained that directs the office of the Commissioner for valuations to appoint a duly registered and authorised valuer to conduct an official valuation of the property referred to. In view of the foregoing, Land Economy Surveyor/Valuer George L. Nthachi has been appointed to carry out the valuation of the property Land Title Number Njewa 9/420. By copy of this letter, Land Economy Surveyor/ Valuer George L. Nthachi is informed to liaise with Phokoso amd Company in carrying out valuation of property of Land Title Number Njewa 9/420… In terms of his qualifications, he is a Land Economy Surveyor/ Valuer -KRP5 and KRP6 . On 19th May, 2025 Counsel Nkoka wrote Counsel Ayuba James on the appointment of the valuer-KRP7. In this letter, Counsel explains the above steps and informs Counsel Ayuba James on the appointment of the valuer