Mailes Victoria Ng'andwe Finnie v Finnie (Appeal 148 of 2000) [2001] ZMSC 131 (26 April 2001)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 148/2000 HOLDEN AT LUSAKA BETWEEN. MA1LES VICTORIA NG’ANDWE FINNIE APPELLANT AND JAMES JOHN FINNIE RESPONDENT CORAM: SAKALA,A. DCJ., CHIRWA, LEWANIKA JJS On 26th April, 2001 For the Appellant - In Person For the Respondent - A. J. SHONGA of Shamwana and Company. JUDGMENT LEWANIKA JS delivered judgment of the court. This is an appeal against the decision of a judge of the High Court granting the Respondent a decree nisi of divorce. The evidence on record is that the parties were married on the 27th of March, 1987 at a Registry Office in Lusaka. The Respondent who was the petitioner in the court below filed for dissolution of his marriage to the Appellant on two grounds namely 1. that the Respondent had behaved in such a way that the Petitioner could not reasonably be expected to live with her as the Appellant had committed adultery with one Lenton MULUNGA who was the co-Respondent in the court below. - J2 - 2. that the Appellant was a woman of a violent nature and that she had attacked the Respondent on numerous occasions and inflicted injuries which necessitated his being admitted in hospital on a number of occasions. The Appellant defended the proceedings in the court below and filed an answer and the learned trial judge, after listening to the evidence of the Appellant and the Respondent, found that the Respondent had made out his case and granted him a decree nisi of divorce. He had reserved the question of custody of the children as well as maintenance of the Appellant and the children of the family. The Appellant has appealed against the grant of the decree nisi and she has filed two grounds of appeal which consist in the main, of a claim by her that the learned trial judge misdirected himself in holding that the marriage had broken down irretrievably and the other ground is that the dissolution of the marriage has occasioned her and the children of the family financial hardship because since the grant of the divorce the Respondent has made no provision for her or for the children of the family. We have examined the evidence on record and it is quite apparent to us that the marriage between the Appellant and the Respondent, based on the findings made by the learned trial judge, had broken down irretrievably. - J3- The learned trial judge had the advantage of listening to the evidence of the Appellant and the Respondent and observing the demeanor and as we have said in the past as an appellate court, we cannot interfere with findings of fact made by a trial judge unless it can be shown to us that the learned trial judge either mis-apprehended the evidence adduced before him or misdirected himself on the evidence before him or that his findings were perverse and were not supported by the evidence on record. This is not the situation in the case before us. We would have no justification what-so-ever in interfering with the findings made by the learned trial judge that this marriage has broken down irretrievably. The other ground relating to the financial hardship which has been experienced by the Appellant since the dissolution of marriage cannot be a ground of appeal as the Appellant is free to make an application to the Deputy Registrar in chambers for maintenance and other financial provisions for herself as well as for the children of the family. In truth, we find no merit in this appeal which we dismiss, but in the light of the Appellant's financial circumstances, we will make no order as to costs. E. L. Sakala ACTING DEPUTY CHIEF JUSTICE - J4 - D. K. Chirwa SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE