Chitala v Mwambazi (Appeal 34 of 1987) [1988] ZMSC 59 (22 March 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 34 of 1987 HOLDEN AT LUSAKA (Civil Jurisdiction) !. V letter $0 tin rd$$©mtert * ” • i/r > , * ABLAM BINES VCHITALA Appellant ■ ; ury? (l#;) J' ' ' .... ■ STAIVELMWAMBAZ^^^ CORAM: Ngulube, D. C. J/, Gardner;- j.’S.7and-Bweupe, AJIS.^^ H. Silweya, of Silweya and Company, for the appellant N. S. Simango Legal Aid Counsel, for the respondent 22nd March, 1988 Ngulube, D. C. J. delivered the judgment of the court. < - . JUDGMENT •* • 1 ' - : r M . < A. ‘ - J , । ' ■ t ■ c di I 51 tO<! nir Wife tO SCCC >3$r the _ _ Case Referred to: ~ ; 7 - ; (1) Nkhata & Four Others -v- The Attorney-General (1966) ZR 124 fK, i fit-iS 1 S' •SV i Ov , -l!' ffOOl ili/u . I •■b? - ; ■;■!•;;; travelled to Lusaka-in the company of.. This is an appeal, against ftlie idecis.ioi),.ofta High.fCourt €jjidgeiCe who reheard a local court.case.in which :the respondent was .awarded ■ .• ‘ । , i • 1 . li;.' ; 't. .•.>*<•«»<...« .■ v. ■ ■ ■. * . V > ■ K800 compensation in respect of,the break-up.,of-.his. marriage,/Which was attributed to the fact that, the-appellant was-.a 11 eged to taken the.respondent's wife without,permission.-! The partieSr.were +iie agreed that, in terms of Mambwe customary ,law,:i-.it is a civil, offence for a man to take away_jnotherr;man's wif^e ^without, the. latten- /;;,1 permission and that this was„sq Regardlessfwhrt^ place or not. There was evidence that- the appellant,.had Just.-won, an election .to Parliament to represent.the Mbala .constituency-and that arrangements were,being made .for;him .to travelito Lusaka for the official opening of.the mew-Parliament.; There was also evidence.that the respondent's wife.wished to travel ,tqriLusaka to ,witnesstthe ,.; .rj proceedings at the ceeemqnial opening of Parliament., In pursuance Lakifv.' -.o LU’iika v/hsT* he prousbiy had an 2/............ ........... of . :;/.r,v........ ........... On of this arrangement, the appellant wrote a letter to the respondent which was in.the following terms: ......1 ' ‘ "Brother M^l,^ W? ... W tear Young Brother/ f . : and the Olm’s versi™ I an starting off for Lusaka on fifth (5th) November 1983 and we are..... ..... opening the House of National Assenbly on 7th Novenber, 1983, on Friday. ... .... Kindly allow your wife, M's Mobazi to go with me and try wife so thatnc I uc inns she attends the celebrations of opening parliament on 7th November, 1983. , ,ri , ; Kindly al lew her please./>., xhe appall art, iaipre5si->n tnat tneir Your elder brother, 'nean since th^re was a difference, . * v”- , A. B. Chitala..................... ......i r, . ■ ?> Ustifnony of DW5 end th* , ’ \ “RJ7-------- co Cmnsall or to when ’ ';i? ic< trial judge also held against The respondent-who was the plaintiff in .the action-testified[ to tije^effect that,y on receipt of this letter he was surprised and;so, was his wife. v... His position was that he did not allow his wife to accompany the ;ii,. Chitalas to Lusaka. The appellant's^evidence,, (Which came from&h|me and a number of witnesses, was:tocthe effect,,-that,.having written that letter, the appellant himself,.travelled,to Lusaka.in the company of > two other Members of Parliament from]the.r;d|stfict.j!;There was evidence from the appellant's wife land from ithe^ respondent lsrwlfe that, Af}1 meanwhile, back in Mbala, thet respondent discussed .the trip., with .the, (c women and allowed his wife .to?, accompany Mrs Chitala. The women accordingly travelled to Lusaka where they joined the appellant at the National Assembly Motel ? The sleeping arrangmerits/faccord1ng?to<the and, appellant and the women,-were that the'appellant went to'share .a,'room‘ced with one of the M. P.s from Mbala'while the"'women kept his* own^ The issue which fell for determination at the rehearing was whether: the respondent had not given'permission and the appellant had taken the respondent's wife to Lusaka without permission'and for'a was dishonourable purpose. ‘ The learned trial'-judge found "that the ;letter written by the appellant was evidence against him and that it showed that he had both an intention and an inclination to-seduce the respondent's wife by taking her to Lusaka-where'he-probably'had an opportunity to commit adultery^with her.3'*4^®’ tound as sinister t * 3/............................ On 4/ .. :>nd J J3 : On behalf of the appellant, Mr. Silweya advanced a number of grounds as well as a number of arguments. The most important argumen which was advanced, in our considered opinion, was one which critlcis the learned trial judge's finding on the question of credibility as"' between the respondent's bold assertion and the appellant's version which was supported by an impressive array of witnesses, among whom w two Members of Parliament. Mr. Simango, in reply to the arguments advanced, supported the learned trial judge's reasoning and conclusioi The learned trial judge gave, as one of the reasons for resolving the issue of credibility against the appellant, his Impression that their evidence appeared to have been rehearsed since there was a difference, for example, between the testimony of DW5 and the respondent's’ *il;'’ wife as to whether she was proceeding to Chinsali or to Mbala when they met at the bus stop. The learned trial judge also held against the appellant the fact that they had forgotten the number of the room they had slept in at the motel and what bus fares were paid.’ The ' learned trial judge also criticised the fact that the appellant and hi wife appeared to have given conflicting evidence in that, while the’ appellant said after the opening ceremony they travelled to Lundazi to to see a sick father, the wife said it was a sick mother. On the basi । a........... ,* ■...., ■ * • 1 th?* 11 ri of such alleged contradictions, the learned trial’judge found that the appellant must have travelled to Lusaka with’the respondent's wife onl without his own wife, and that he must have introduced the respondent' . ■ ■■ j . ■ • •. , ■ ti;? . i. v: .c wife in Lusaka as his own wife. • ■ '■ - ’f»l f; lil COF’*: $ - inai dec is ion on the matter We have considered the arguments and submissions in this case ar in particular, we have considered the misdirection which clearly; emerge when the learned trial judge found that the evidence of the two Member; । of Parliament had contradicted the evidence of the appellant and the women on the question of sharing rooms on the ground that the parliamentary witnesses did not allude to such sharing. This was cleai a misdirection and Mr. Simango, on behalf‘of the respondent, quite properly conceded that this was so. They had not been asked any questions on the matters Weh a ve'a Iso "considered the other unsatisfactory reasons which the learned’trial judge advanced in . . , * :• -.t- > • resolving the issue of credibility. For’example, he found as sinister 1 5/............ ..that, 4/..............and. "■ i 1 ."i? wife vj without ■ ? and evidence of an adulterous:inclination, the.factrthat the.appellants <;?:! : J4 : \ wrote a letter to the.respondent at all.. ,We have -looked ;at thisrlettec and we do not find.anything, whether• in.the rterms, in. which it is? pouched or in the fact that it was.written at all.^that suggests: anything(Others than that the appellant was doing;the'correct thing, both under custom zand in keeping with normal standards of behaviour and conduct, when he sought permission from the respondent; to-^1 low the?.latter1 spwife;to accompany him and his wife to Lusaka. As-we.have indicated,’i.the . respondent was the plaintiff in the action but the.learned trial-judge made it clear in his judgment that the appellant had to prove, not only that he got permission, but also that the trip to Lusaka,was an innocent one and that he did not commit adultery... There was certainly no evidence to establish the commission of any adultery in this matter. But the important point is that it is quite clear;to,usjthat .the ;1 earned tr^^ judge hadiShifted the burden of proving the case to the wrong party. For the reasons which we have indicated, we find that, although the issue in the case was stated to be one which had to be resolved on an issue of credibility, the misdirections which we have pointed out entitl'. this court to interfere, in accordance with the decision in Nkhata & Four Others -v- The Attorney-General (1). We find that it now falls upon this court to determine this case. The question which arises is whether, on the material in the record, this court can in fact come to a final decision on the matter : despite the fact that the issue was one of credibility. We have examined this matter from that point of view and we find as significant the fact that the appellant's conduct throughout ‘this incident .......... .... appeared to be open and above board.<j.;;Th,e$yery,fact that he wrote a letter, far from being sinister, was in fact evidence in his favour. What is more, we cannot conceive of any situation where the appellant' could have taken another man's wife for sinister motives in the presence of his own wife. We entertain very serious ,doubts _qs .to whether: .it .was conceivable for the appellant to have behaved in, the manner found by the learned trial judge. But what is conclusive in this case is the fac that the claim had to be proved by the respondent. He set out to prove 5/................ that, r vi t /J’k- ■ /J 5 * • ' • I LG. ?• < L-• l5d7 that, because the appellant had gone with his wife to Lusaka without his permission, the marriage broke down. The only evidence that he was able to advance was that both he and his wife were surprised to receive the letter which requested the wife to be allowed to travel. Quite clearly, the respondent had failed to,prove his case and his,action ough to have collapsed of its own inanition. Respondent For the reasons which we have outlined, we allow this appeal; v j reverse the decision below; and enter Judgment for the appellant. The appellant will also have costs which,will, be taxed in default of agreement both in this court and.the. court below. HBut if on the other hand, the respondent has been legally aided the order for costs will necessarily be subject to the Legal A ___ ___ ________ ___ _ J i; '■) M E U i We understand that the appellant had paid the damages; these.must be refunded to him. ' VQ* churl. i AtidrW” Setter ; ZR 124 .tv decision- of a High Court Judge ■ ■ ? 0. ;'y. * b. tb;,. rPSiWiJl/l. c . M. S., Ngulube,.., hi<- ‘ DEPUTY CHIEF JUSTICE' 7 r which it th* pel lent was allsgcT to have ■ VlOUt i cs ware . '/. H i- - thrr man's wife without, the latter's c'S Bo vT.’-arGardnenbether ^diHtery took SUPREME^QOURI JUDGE laTtt hiU just >/cr an constituency and that . 1 m im t.o t r-aveJ. .to' Lusaka for the >>i Par? nent. There was also evidence that i * A" J* *1^* ’.tiValCa* *lV* *j u* sTAV ’ b’ B. K. Bweupe ACTING SUPREME’iCOURT 1 JUDGE n ; ursunn '