Jimmy Menyani Sakala v Khadija Mvula (APPEAL NUMBER 42/2019) [2019] ZMCA 426 (28 August 2019)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NUMBER 42/2019 J1 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: JIMMY MENY ANI SAKALA AND KHADIJA MVULA CORAM: CHISANGA J . P, MAJULA, NGULUBE JJA On: 21 st August and 28th August, 2019 For the Appellant: M Phiri & C. Phiri, Messrs Mwansa Phiri, Shilimi and Theu Legal Practitioners For the Respondent: E. Chis hone, Legal officer National Legal Aid Clinic fo r Women JUDGMENT NGULUBE, JA, delivered the Judgment of the Court Cases referred to: - 1. Mahande v Mahande(l976) ZR 287 2. Sithole v State Lotteries Board (1975) ZR 106 3. Nkhata & Four Others v The Attorney-General of Zambia (1966) Z . R . 124 (CA). 4. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 Legislation referred to: 1. Matrimonial Causes Act Number 20 of 2007 Other works referred to: 1. Halsbury's Law of England Fourth edition 2. Brownley's Family Law, By PM Bromley and NV, 3. Rayden & Jackson's Law and Practice in Divorce and Family Matters, 16 Edition. t h 4. Bromley's Family Law by P. M. Bromley and N. V. Lowe 1. Introduction J2 1.1 . This is an appeal against the Judgment of the court below delivered on 23rd October, 2018 in which the Honoura ble Justice Newa found that the marriage between the parties herein had broken down irretrievably and granted a decree nisi. She also found that the appellant had behaved in such a way that the respondent could not reasonably be expected to live with him. 2. The background to the dispute in this Appeal 2 . 1. The brief background of this appeal is that the parties were lawfully married on 30th April, 1999 and last cohabited as husband and wife on 21 st January, 2018. During the subsisten ce of the marriage, the parties were blessed with five children. Further, there are also three children who were born to the appellant and another woman during the subsistence of the said marriage . 2.2. The facts alleged are that throughou t the duration of the marriage, the appellant has been abusive to the respondent wh enever he takes alcohol and the said abuse h as extended to the children of the family. Being unha ppy with the continued a busive behaviour of the a ppellant, the respondent petitioned the court below for th e dissolution of the marriage. J3 2.3. The respondent pleaded that the marnage had broken down irretrievably by reason of the fact that the appellant had behaved in such a way that she could not reasonably be expected to live with him. 2.4. The appellant filed an answer in which he denied the ground that the marriage had broken down irretrievably. He accepted abusing alcohol and having gone to seek help but denied the alleged unreasonable behaviour. According to the appellant in his answer, it was the respondent who had been violent and that he since had made attempts to reconcile with her. 2.5. The learned trial Judge, after a verbatim reproduction of the Petition and the Answer, summarized the oral evidence. The Court found that the marriage between t h e two parties had broken down irretrievably and dissolved the marriage on 23 rd October, 2018. The court accordingly granted the respondent a decree nisi to be made absolute after six weeks. 3. Consideration of the matter by the Court below 3.1. The respondent's petition for dissolution of marriage was anchored on the appellant's unreasonable behaviour. She testified that apart from enduring the appellant's infidelity in the first ten years of their marriage, out of which three children were born, the appellant was very abusive, and would often threaten to kill her. It was her testimony J4 that on several occasions while in their matrimonial bedroom, the appellant threated to strangle her. She stated that the appellant would behave that way wh en intoxicated. 3 .2. The respondent cited several instances of the appellant's abu s ive behaviour including one where in self-defen ce, she beat the appellant with a shoe on his head and he ende d up in hospital. It was her contention that the appellant had tried to go for counselling at church but this yielded nothing. 3 .3. She further stated that the a ppellant's violent behaviour also extended to the children of the family and that because she feared for h er life and h er children's safety, she left the matrimonial home . 3.4. In disputing the claim, the appellant stated that the marriage had not broken down irretrievably. It was his contention that h e was willing to change his habits and that h e sought counselling. He denied being violent or ever physically abusing the respondent and stressed the point that he desired to reconcile with the respondent. In summary, his contention was that h e h ad changed his behaviour and that he wanted to be a better husband and father. 3.5. After the learn e d Judge in the court below c onsidered the evidence, and arguments by the two parties, she observed that the several instances of unreasonable behaviour cited by the responden t were JS such that the she could not reasonably be expected to live with the appellant. 3 .6. In her reasoning, the learned Judge stated that the parties not having lived together since the last violent incident, it was a fact that could be used to assess the unreasonable behaviour. She stated that violence can be physical, emotional, or financial among others. The court further stated that the security of any person is paramount, and if not preserved can lead to death and that no reasonable person could be expected to wait for death or for grievous bodily harm to be done to them. Given this the Learned J u dge granted the parties a decree nisi to be made absolute after six weeks. 4 . Grounds of appeal to this Court. 4 .1. Dissatisfied with the Judgment of the learned Judge in the court below, the appellant appealed to this Court advancing four grounds of appeal as follows- ( 1) That the court below erred in law and fact by deciding that the respondent cannot reasonably be expected to live with the appellant due to his unreasonable behaviour. (2) The court below erred in law and fact when it took into account the respondent's testimony as regards the purported threats without any corroborative evidence, documentary evidence and J6 police repor ts, wh en in fact the record will show that it was the respondent wh o was violen t and th e appellant a d duced documentary evidence to that effect. (3) The court below erred in law and in fact when it did not take into account the appellant's testimony and evidence on the violence and behaviour of th e respondent. (4) The court below erred in law and fact in arriving at the decision t h at the marriage had broken down irretrievably and there by dissolving it . 5 . The arguments presented by the parties 5.1. The parties filed heads of argument which they relied upon at the hearing of the appeal. We have considered the arguments along with the judgment of the court below. 5.2. In relation to ground one, the appellant contends that the respondent is merely bored of the marriage and misled the court below by presentin g fabricated reasons for the alleged irretrievable breakdown of the marriage . To support this contention, the appellant referred this court to the provision s of the Halsbury's Laws of England, fourth edition at page 283 paragraphs 574 which provides that: The court must consider the effect of the respondent's behaviour, whether such behaviour is voluntary or J7 involuntary, on the particular petitioner. This involves a consideration not only of the behaviour of the respondent but of the character, personality, disposition and behaviour of the petitioner. A party's disinclination and boredom with marriage does not entitle the court to dissolve it. Conduct of sufficient gravity to justify a spouse leaving may be relied on .... 5.3. It was the appellant's contention that the sanctity of the institution of marriage cannot be dissolved merely because one of parties is bored or is no longer interested in the marriage for whatever reason. That the respondent failed to provide any evidence, or call any witnesses to testify about the violence and drunken behaviour of the appellant, which motivated the respondent to rely on the fact of unreasonable behaviour. 5.4. To support this argument the appellant referred to the case of Mahande v Mahande 1 in which inter alia, the Court stated that- "I have to consider not only the behaviour of the respondent as alleged and established in evidence, but J8 the character, personality, disposition and behaviour of the petitioner. The general question may be expanded thus: can this petitioner, with his or her character and personality, with his or her faults and other attributes, good and bad, and having regard to his or her behaviour during the marriage, reasonably be expected to live with this respondent?" 5.5. He further contended that the respondent did not prove the elements required by section 9 (b) of the Matrimonial Causes Act1 and that the respondent's allegations of threats do not meet the standard required. He stated that in the twenty years the parties have been married, he has never laid a hand on her. 5 .6. With respect to ground two and three, it is the appellant's contention th at the respondent made serious allegations of unreasonable behaviour and threatened violence but failed to provide any evidence before the court and did not call any witness to corroborate her very serious allegations . 5. 7. That on the other h and, the app ellant d id provide evidence of the violence done to him in the form of a police report and a medical report, and strongly emphasized that he had forgiven the respondent for the said violence and is strongly of the position that the marriage J9 has not broken down irretrievably. Further, he contended that he subjected himself to counselling by the church but the respondent refused to get involved . 5.8. With regards to ground four of the appeal, it is the appellant's contention that the respondent did not provide any evidence to validate the commencement of the petition for the dissolution of marriage and the grant of the decree nisi. He contended that the respondent left the matrimonial home after she assaulted him, and she used that as a ground for divorce. 5.9. It was contended that the Court can only grant a divorce under one ground which is, that the marriage has broken down irretrievably after the petitioner has proved one of the five facts contained in section 9 of the MCA, 2007. He stated that the petition was premised on fabricated lies and some trivial matters that he does not dispute took place during the course of their marital relationship. 5.10. All in all, the appellant contends that the marital problems between the parties can be resolved and that the marriage has not broken down irretrievably. He stated that there is an element of love and that there is a possibility of reconciliation, if only the respondent can be an active participant in the process and demonstrate genuine effort and willingness for the reconciliation. J10 5.11. In responding to the said appeal, the respondent argued grounds two and three together and ground one and four together. In responding to grounds two and three, it was the respondent's contention that the trial court's findings were based on the proceedings found at pages 69 and 70 of the record of appeal where the appellant expressly admitted that he abused alcoh ol and that he had since subjected himself to rehabilitation. In support of this argument, the respondent cited the case of Sithole v State Lotteries Board2 and Nkhata & Four Others v The Attorney-General of Zambia3 • 5.12. It was pointed out that the trial Judge was aware of the circumstances of the case as required in the case of Nkhata cited above and that the decision of the trial Judge must not be faulted as on a preponderance of probabilities, the respondent had established that she cannot reasonably be expected to live with the appellant. It was submitted that this is a proper case where t h e decision of the trial court on a question of fact may not be faulted. 5 . 13. In responding to ground 1 and 4, the respondent contends that the record of appeal s h ows that on a preponderance of probabilities, the trial Court fou nd as follows on page 31: "Therefore, the parties not having lived together since that last incident, it is a fact that can be used to assess Jll unreasonable behaviour. The violence can be physical, emotional or financial among others. The security of any person is paramount, and if not preserved can lead to death. No reasonable person can be expected to wait for death or for grievous bodily harm to be done to them. The effect of the respondent's behaviour on the petitioner can be seen from her failure to reconcile with h im , even after having been counselled by the church. It can be deduced from this that she cannot reasonably be expected to live with the respondent as a result of his behaviour, which is precipitated by his abuse of alcohol. 5 .14. It was contended that the trial court did not err in assessing and evaluating the evidence before it and that the decision of the trial Court cannot be faulted. It is argued that the trial court was on firm ground as it complied with the tenets set out in the case of Nkhata already cited. 5.15. In conclusion, the respondent prayed that the appeal be dismissed for lack of merit. 6. Decision of the Court. 6.1. We have considered the record of appeal, and written submissions by counsel for both parties. It seems to us that the real questions to J12 be answered is wheth er given the circumstances of this matter, the trial court could reach the conclusion that the marriage b etween the parties had indeed broken down irretrievably and if so, whether this Court can interfere with that finding. 6.2. The case of Wilson Masauso Zulu v Avondale Housing Project Limited5 summaries the circumstances under which an appellate court can r everse the findings of fact made by the trial Judge. In this case it was h eld inter alia that: "Before this court can reverse findings of fact made by a trial judge, we would have to be satisfied that the findings in question were, either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were on a proper view of the evidence, no trial court acting correctly could reasonably make." 6.3 . Given the facts and circumstances of this case, it is clear that the m arriage between the parties has suffered a fair deal of problems. It is on record that the appellant consumes excessive amount of alcohol which makes him behave in a manner not pleasant to t h e respondent. In finding this fact, the trial Court did not act perversely , or misapprehend the facts before it. It is our consider ed view t h a t J13 any trial court acting correctly could have come to a similar conclusion. 6.4. With respect to the question whether the marriage had broken down irretrievably on the fact of the appellant's unreasonable behaviour, the learned author of FAMILY LAW IN ZAMBIA: Cases and Materials2 at page 157 cites Sir B McKenna as having described "irretrievable breakdown of marriage" as a marriage which stood no chance because the parties to the marriage ceased co-habiting and one of the parties (or both) intends not to resume cohabitation. In proving irretrievable break-down of marriage, one of the facts which can be relied on is that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent 6.5. Further, the authors of Rayden & Jackson's Law and Practice in Divorce and Family Matters, 3 h ad t h e following to say concerning unreasonable behaviour: "Any conduct, active or passive, constitutes behaviour. The behaviour is not confined to the behaviour by the Respondent: the behaviour may have reference to the marriage although it is to other members of the family or to outsiders. Any and all behaviour may be taken J14 into account: the Court will have regard to the whole story of the matrimonial relationship. But behaviour is something more than a mere state of affairs or a state of mind. Behaviour in this context is action or conduct by the one which affects the other. The court has to decide the single question whether the Respondent has so behaved in such a way that it is unreasonable to expect the wife to live with him: in order to decide that, it is necessary to make findings of fact as to what the Respondent actually did, and findings of fact as to the impact of that conduct on the Petitioner." 6.6. In casu, it was established that the conduct of the appellant when he is drunk was unreasonable. The respondent demonstrated, how on sundry days, the appellant had drunk to the detriment, not only of himself, but also to the respondent and the family as a whole; that the respondent further highlighted the conduct of the appellant towards the children and how the same had traumatized her and the children of the family . 6.7. In support of the a ppeal, the appellant submitted that the trial court made a wrong finding that the marriage had broken down due to his JlS unreasonable behaviour when no evidence was adduced in support of such a claim. 6.8. The duty of the trial Court in divorce proceedings was well articulated by the Authors of Bromley's Family Law by P. M. Bromley and N. V. Lowe4 , where at page 192, it is stated as follows: "The court must have regard to the personalities of the individuals before it, however far these may be removed from some theoretical norm, and it must assess the impact of the respondent's conduct on the particular petitioner in the light of the whole history of the marriage and their relationship. The test generally accepted is that formulated by Dunn J. in Livingstone-Stallard and adopted by the majority of the Court of Appeal in O'Neill: would any right - thinking person come to the conclusion that 'this' husband has behaved in such a way that 'this' wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties." 6 .9. In our view, the trial Court adopted a correct approach in dealing with the fact of unreasonable behaviour. Further, there is overwhelming evidence on record. The respondent stated that in self J16 defence, she did at one point hit the appellant with a shoe and he ended up in hospital. Further the respondent stated that the appellant has on one occasion threated one of the children of the family with a gun. 6.10. It is not a secret that domestic violence cases are on the rise in our country. The Courts of law have decided a number of these cases. Physical violence and any other type of violence in marriages should be condemned at all costs. The parties herein had been married for twenty years prior to the petition being filed into court. The respondent has not condoned the appellant's behavior. She filed the petition on 23rd April, 2018. The evidence was not precise enough except for this portion. 6.11 . The phrase "cannot reasonably be expected to live with the respondent" necessarily refers to the particular petitioner before the Court. To answer the question whether the petitioner can or cannot reasonably be expected to live with the respondent, the court has to consider not only the behaviour of the respondent as alleged and established in the evidence, but also the character, personality, disposition and behaviour of the petitioner. The general question can be expanded thus; can this petitioner, with her character and Jl7 personality, with her faults and other attributes, good of bad, rea sonably be expected to live with this respondent? 6.12. The lower court reached the conclusion that t h e respondent had not shown herself to be of such a character and personality and her behaviour had not been such that the court could conclude that she could reasonably be expected to live with the a ppellant. The Court was satisfied that the marriage had indeed broken down irretrievably due to the appellant's unreasonable behaviour. 6.13. We do not find merit in all the four grounds of appeal as they lack merit and are accordingly dismissed 6.14. It is hereby ordered that the issue of custody and maintenance of the children of the family be dealt with expeditiously . 6. 15. The net effect is that the appeal fails and we dismiss it. Costs to follow the event and in default, will be taxed in default of agreement . ... .. ......... ..... ~.~ ...... .. .... . F. MC~GA JUDGE PRESIDENT, COURT OF APPEAL ......... ~P . ............... . I3.-M. ·~JULA COURT OF APPEAL JUDGE P. C. M NGULUBE COURT OF APPEAL JUDGE