Katongo Chilufya Elliot v Jonathan Hugh Elliot (Appeal No. 257 of 2022) [2024] ZMCA 271 (4 September 2024)

. ... IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA ( Civil Jurisdiction) BETWEEN : -- __./\1. . / ~ - ( , l , KATONGO CHILUFYA ELLIQ! f;. Appeal No. 257 of 2022 AND JONATHAN HUGH ELLIOT • • I ___ _ r-- ~\,~,,, I ~ \ ~I ~ 4 S[p 2024 Appellant ,.,._ I j ~~/ Respondent CORAM: Makungu, Sichinga and Sharpe-Phiri, JJA on 14 August 2024 and 4 September 2024 For the Appellant: Messrs Mushota and Associates For the Respondent: Messrs Howard and Marietta Legal Practitioners JUDGMENT SHARPE-PHIRI, JA, delivered the judgment of the Court. Legislation referred to: 1. The Rules of the Supreme Court of England (White Book) 1999 Ed ition 2. The English Matrimonial Causes Rules 1973 3. The High Court Rules, Chapter 27 of the Laws of Zambia 4. The Matrimonial Causes Act, No. 20 of 2007 Cases referred to: I. B v B (1977) ZR 159 2. Antonio Ventrigl ia and Manuela Ventriglia V Eastern and Southern African Trade and Development Bank (20 I 0) Vol. I ZR 426 JI ' ' 1.0 INTRODUCTION 1.1 This is an appeal against a Ruling delivered by Malama, J of the High Cou11 on 28 June 2022 in which she allowed an amendment to a Divorce Petition. 2.0 BACKGROUND 2.1 The brief history of the matter is that on 8 November 2019, Jonathan Hugh Elliot, now the Respondent, filed a petition for dissolution of his marriage to Katongo Elliot, the Appellant herein, asserting that their marriage had broken down irretrievably due to the Appellant' s conduct, which made it unreasonable for him to continue cohabiting with her. 2.2 After filing of the Petition, wh ich remains pending adjud ication, the Respondent endeavoured to engage the Appellant in obtaining her consent to a decree nisi on the grounds that the parties had been living separately for a period of two years. However, this attempt did not come to fruition. 2.3 The Petition having remained unheard, and the parties having lived apart for over five years, subsequently prompted the Respondent to file an application before the High Court Judge seeking an amendment of the Petition for dissolution, based on five-year separation instead of relying on the fact of unreasonable behaviour. J2 3.0 APPLICATION FOR AMENDMENT OF PETITION 3 .1 The application to amend the Petition for dissolution for marriage was brought by the Respondent before the trial Judge on 30 March 2022, by Summons pursuant to Rule 17 of the Matrimonial Causes Rules 1973. 3.2 It was supported by an affidavit sworn by the Respondent, in which the Respondent reiterated that the initial Petition fo r divorce was based on the Appel lants unreasonable behaviour but on account of the fact that as of the date of the application, the pai1ies had been living apart for five years, the Respondent sought to amend the petition before the High Court to base his claim on this five- year separation. 3 .3 The Appellant opposed the application by affidavit of 19 April 2022, in which she refuted the Respondent's claim that he sought her consent for a two-year separation before they had been separated for one year, during which time she had outl ined the conditions for her consent. The Appellant further stated that after two years of separation, she advised the Respondent to finalize the necessary documents and agree on terms for chi ld main tenance. However, instead of follow ing this course, the Respondent petitioned the High Court on the grounds of unreasonable behav ior on her part. After reviewing her response to the petition, the Respondent approached the Appellant privately, seeking her consent to amend the petition based on two years separation, on the condition that he would cover the costs of the original petition, a proposal which the Respondent ultimately rejected. J3 3 .4 The Appellant stated that the divorce proceedings have been prolonged due to various circumstances beyond her contro l. She further asserted that she does not oppose the divorce, acknowledging that more than five years have passed since the couple's separation, a fact that obviates the need for her consent for the divorce to be granted. 4 .0 DECISION OF THE HIGH COURT 4.1 In rendering the Ru ling on the Appellant's application to amend the Petition, the Judge made the following observations, as documented on page RS of the Ruling and as noted on page 16 of the record of appeal: "/ have cons idered the summons f or leave to amend petition, th e affidavit and skeleton arg uments in support as well as the affidavit and skeleton arguments in opposition. I wish to state from th e outset that, at the scheduling of this application, this Court directed the Resp ondent to file his application to amend the p etition in this matter f ollowed by the Applicant's affidavit and skeleton arg uments in opposition and the Respondent's reply, if any . However, at th e time of writing this Ruling, no reply was filed by the Respondent. " 4.2 The trial Court further determined, as documented on pages R9 to R 10 of her Rul ing and also appearing on pages 17 and 18 of the record of appeal, that: "From the above cited provisions, it is clear that under the Order 18 Rule 1 of th e High Court Rules, the Court is mandated to allow .14 amendment of proceedings at any stage of the proceedings for purposes of, inter alia, eliminating the delay of a fair trial in a matter and in order to determine the real question in controversy between the parties. Further, under Rule 17(2) of th e Matrimonial Causes Rules, a petition for dissolution of marriage in response to which an answer has been filed, can only be amended with leave of Court." 4.3 The trial Court fu rther noted that the primary issue to be resolved in the main matter was whether the marriage had irretrievab ly broken down. In the Petition filed on 8 November 20 19, the Respondent cited unreasonable behavior on the part of the Appellant, providing detailed patticulars of such behaviour. The trial Court recognized that it was undisputed that the parties had been living separately since March 2017, after the Respondent left the matrimonial home. Consequently, the app lication to amend the Petition for dissolution of marriage was granted . 5.0 GROUNDS OF APPEAL 5.1 Dissatisfied with the Ruling rendered by the learned High Court Judge, the Appellant filed an appeal to this Coutt, articu lating two primary grounds of appeal and reserving the right to submit additional grounds as deemed necessary at a later stage. The grounds of appeal are: (i) The learned Judge in the Court below erred in law and in fact when she held that Order 18 Rule 1 of the High Court Rules, Order III Rule 2 of the High Court Rules both of Chapter 27 of JS the Laws of Zambia and Rule 17(2) of the Matrimonia l Causes Rules 1973 allow the Court to grant leave to amend a petition for dissolution of marriage to that the parties have lived apart for a period of at least 5 years immediately preceding presentation of the petition when the parties had not lived apart for at least 5 years at the time the petition was presented. (ii) The Judge in the Court below e rred in law and in fact when she held that it directed the Respondent to file his application to amend the petition followed by the Appellant's affidavit and skeleton arguments in opposition and the Respondent's reply if any, and that, at the time of writing the Ruling, no reply was filed by the Respondent (the Appellant herein), when not so. 6.0 HEARING OF THE APPEAL 6.1 The appeal was heard before us on 14 August 2024. Counsel for both the Appellant and the Respondent were not present at the hearing as the Appellant's counsel had fil ed a notice of non-appearance. The Appellant and the Respondent fi led their heads of arguments on 30 ovember 2022, 3 February 2023, and 10 February 2023 respectively. The arguments of the parties will not be recast here but referenced in the subsequent ana lys is section, where necessary. J6 7.0 DECISION ON THE APPEAL 7 .1 We have conducted a thorough review of the record of appeal before us, the impugned Ruling, and the respective arguments of both parties. 7.2 In the first gro und of appeal, the Appellant contends that the learned Judge in the lower Court erred in law and fact by ruling that Order 18 Rule 1 of the High Court Rules, Order III Rule 2 of the High Court Rules, both under Chapter 27 of the Laws of Zambia, and Rule 17(2) of the Matrimonial Causes Rules 1977, permit the Court to grant leave to amend a petition for the dissolution of marriage to state that 'the parties have lived apart for a period of at least 5 years immediately preceding presentation of the petition, ' despite the fact that the parties had not in fact lived apart for the required minimum of 5 years at the time the petition was filed. 7.3 The Appellant's mam argument th is ground focuses on the interpretation of the phrase 'the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petifion '. The Appellant asse1ts that the Court is required to asce11ain whether the parties have indeed lived apa11 for the stipulated continuous period immediately before the petition's filing, as established in the case of B v B. 1 The Appellant contends that, contrary to this requirement, the parties did not live apa11 for a continuous five-year period immediately prior to the petition' s presentation. J7 7.4 The Respondent's argument on th is matter was that the amendment to the petition specifically addressed the period during which the parties had lived apart, from March 2017 to 2022. Although the Respondent conceded that explanatory note 20/8/2 to Order 20 Rule 8 of the Rules of the S upreme Court 1965, cited by the Appellant, states that an amendment takes effect from the date of the original document it amends, the exp lanatory note fu rther clarifies that: "Wh ere, however, the amendment soug ht to be made relates to matters going to the remedy claimed rather than introducing a new cause of action, the Court will grant leave to amend the original pleadings in order to allege facts arising s ubsequent to the date of the writ or counterclaim ... " 7.5 The Respondent contended that the High Court allowed the amendment to the petition even though the five-year peri od of separation accrued after the petition 's presentation. This allowance was j ustified on the basis that the amendment related to the remedy sought rather than introducing a new cause of action. 7.6 The issue for this Court to determine is whether the learned Judge in the lower court erred in interpreting and applying Order 18 Rule 1 and Order III Rule 2 of the High Court Rules (both under Chapter 27 of the Law s of Zambia) and Rule 17(2) of the M atrimonial Causes. Specifically, the appellate Court must assess whether these provisions lawfully allow a court to grant leave to amend a petition for the dissolution of marriage to reflect that the parties have lived apart for at least five years J8 immediately preceding the petition's presentation, even though the required five-year period had not elapsed at the time the petition was originall y fil ed. 7.7 We thus begin by recasting the provisions of Order 18 Rule 1 and Order Ill Rule 2 of the High Court Rules which provides that: "Th e Co urt or a Judge may, at any stage of the proceedings, order any proceedings to be amended, whether the def ect or error be that of th e party apply ing to amend or not; and all s uch amendments as may be necessmy or p rop er f or th e purpose of eliminating all statem ents which may tend to prejudice, embarrass or delay the fair trial of the suit, and f or th e purpose of determining, in th e existing s uit, the real question or questions in controversy between th e parties, shall be so made. Every s uch order shall be made upon such terms as to costs or otherwise as shall seem just. " 7.8 Furthermore, Rule 17(2) o f the M atrimo nial Causes Rules 1973 permits the amendment of a Divorce Petition with the Court's leave after it has been served on the other party. Additionally, Order III Rule 2 of the High Court Rules grants a Judge the authority to make any interlocutory order deemed just and necessary. 7.9 Although it is undisputed that the trial Judge possessed the jurisdiction to grant an order fo r amendment, it is necessary to assess whether the order was issued vvithin the legal bo undari es. The Appellant argues that granting such an amendment would render the Petition academic, as an amendment is effective not from the date the amendment is granted, but from the date of the original documents being amended. Order 20 Rule 8(2) of the Rules of the Supreme Court 1999 Edition (White Book) explicitly provides that an amendment takes effect fro m the date of the original document. 7.10 Additionally, Order 20/8/2 of the Rules of Supreme Court of England, stipulates that a party cannot amend their pleadings to include a new cause of action. The provision is outlined as fol lows: "Similarly in the pleadings, once pleadings are amended, what stood before the amendment is no longer material before th e Court and no longer defines th e issues to be tried ... The rule as to the effect of an amendment is the reason why a plaintiff may not amend his writ by adding a cause of action which has accrued to him since the issue of the writ." 7.11 Although it is evident that the trial Judge possessed inherent j urisdiction to grant amendments, such authority does not extend to amendments that introduce or substitute a new cause of action that accrued to a party after the issuance of the court process. Therefore, it is necessary to examine the nature of the amendment sought in the case before the lower Com1 below. In the affidavit supporting the application for amendment, as detailed on pages 24 to 50 of the record of appeal, the Respondent sought to amend the factors of the irretrievable breakdown of marriage from unreasonable behavior to that of five-year of separation. JI 0 7.12 It is important to note that the Petition for dissolution of marriage is based on Section 8 of the Matrimonial Causes Act, which stipulates that a 'petition for divorce may be presented to the Court by either party to a marriage on the ground that the marriage has broken down irretrievably '. This constitutes the sole basis for the Petition for dissolution of the maITiage and forms the cause of action of the divorce petition. 7.13 Additionally, Section 9(1) provides further guidance on the evidence required to establish the itTetrievable breakdown of the marriage. This includes, among other factors, proof of unreasonable behavior by the Respondent or evidence that the parties have lived apart for a continuous period of five years immediately preceding the presentation of the petition. 7. 14 In the present case, both the original and amended petitions were founded on Section 8 of the Matrimonial Causes Act. The Respondent's app lication to amend the petition sought merely to revise the factual basis for the claim for irretrievable breakdown of marriage, thereby assisting the Court in adjudicating the substantive issue before it. Consequently, we find no basis to fau lt the trial Judge's decision to grant the application to amend the Petition for divorce. Therefore, this ground of appeal is dismissed. 7.15 In the second ground of appeal, the Appellant contends that the trial Judge erred in law and fact by inaccurately stating that the Court had directed the Respondent to file his application to amend the petition, followed by the Appellant's affidavit and skeleton arguments in opposition, and any JI I . I reply from the Respondent. The Appellant argues that, at the time of delivering the Ruling, no reply had been filed by the Respondent (the Appellant herein) and asserts that this claim by the Judge is incorrect. 7.16 The crux of the Appellant's argument under this ground is that the trial Court en-oneously mischaracterized the roles of the parties concerning the application. Specifically, the Court incorrectly referred to the Appellant as the applicant for the summons to amend, while designating the Respondent, who was actually the applicant, as the Respondent. This misrepresentation is factually incorrect and undermines the proper consideration of the application. 7.17 Upon reviewing the Ruling and the associated orders and directives, we concur with the Respondent's position that the trial Judge·s error or omission regard ing the roles of the parties does not impact the validity of the decision to grant the amendment of the petition. Consequently, this ground of appeal lacks merit and is hereby dismissed. J 12 8.0 CONCLUSION 8.1 Given the fa ilure of the appeal in its entirety, we order that the costs of this appeal be borne by the Appellant, to be taxed in default of agreement. C. K. Makun COURT OF APPEAL JUDGE ~~ r-· . . Sharpe-Phiri co::FAPPEALJUDGE Jl3