Young v Young (Appeal 53 of 1987) [1991] ZMSC 39 (3 December 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal no. 53 of HOLDEN AT NDOLA ■ ■ ---- (Civil jurisdiction) JAMES YOUNG Appellant -v- j GRACE YOUNG Respondent CORAM: Ngulube, D. C. J., Gardner, J. S. and Bweupe, A. J. S. On 14th and 15th June, 1988 and 3 December, 1991 For the appellant: J. M. Kapasa of Luanshya Chambers For the respondent: No appearance JUDGMENT Ngulube, D. C. J. delivered ^the judgment of the court ■ ‘■ ■■ ■ < ■ ■>< On 14th June, 1988 we heard this appeal and indicatedthat • - , . the judgment would be rendered the next day. On 15th June, 1988, our brother Bweupe, A. J. S., who was then assigned the task of delivering an extempore judgment announced the decision allowing the appeal and indicated we would give our reasons later. This we now do. The delay in giving such reasons is regretted but was occasioned by the unfortunate fact that todate none of the court’s copies of the case record can be traced and finally we have had to borrow one from counsel for the appellant. ■ This was an appeal against the refusal by the learned trial judge to grant an immediate decree nisi of divorce after the hearing. The learned trial judge postponed his final decision for a period of three years from 23rd June, 198Z, “to see if the parties would not In the meantime have come together and reconciled". Mr. Kapasa who appeared for the appellant informed us that his opponent, Mr. Nyembele who did not attend, had told him he would .not oppose the appeal. Mr. Kapasa argued to the effect that since the irretrievable breakdown of this marriage had been established, there was no 2/.,....justification ■i J 2 - justification in adjourning the grant of the decree nisi for so long a period as three years when the learned trial judge would have had to dissolve the marriage on the failure of reconciliation. He pointed out that the petition was based on the respondent’s unreasonable behavior which included her refusal to live with the appellant* a fact allegedly contained in letters written by the respondent herself, and also the way in which she had squandered their money which was Intended for use i in the future. We considered the arguments and the facts of the case and came to the conclusion that the learned trial judge could not be supported. Where a petition is based on irretrievable break-down due to the alleged ; misbehavior of the respondent, it is necessary to have due regard to the position of the petitioner who has asserted that he finds it intolerable to live with the respondent. In this case, we find that itB^ was not realistic to entertain a doubt, even if apparently only provisional concerning the irretrievable break-down of this marriage when the wife had actually refused to live with the husband. It was also unrealistic, in our view, to excuse the proven financial mismanagement on the basis that wives should not be left to run accounts on their own and that husbands who have allowed this should not thereafter complain. The unreasonable behaviour had clearly been established and it was wrong to postpone the grant of a decree nisi for three years in the face of the evidence already before the court* - < It was for the foregoing reasons that we allowed this appeal, set aside the order postponing the decree nisi, and granted the same. The question of custody of the children was reserved to a judge of the High Court at chambers while the question of maintenance was reserved to the District Registrar. We understood that the husband was not asking for costs and accordingly make no order in this respect. 3/............. /M. M. S. W. ?; ' : : : \ ■ ■■ M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE d.i. uaruner ACTING SUPREME COURT JUDGE