Sililo Sitali v Scholastica Sitali (SCZ Appeal 168 of 2010) [2014] ZMSC 27 (12 February 2014)

IN THE SUPREME COURT OF ZAMBIA 168/2010 HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ/APPEAL № BETWEEN: SILILO SITALI AND APPELLANT SCHOLASTICA CHIPANI SITALI RESPONDENT CORAM: MWANAMWAMBWA, JS, LENGALENGA AND HAMAUNDU, Ag. JJS On 11th July, 2013 and 13th February, 2014 For the Appellant : In person For the Respondent : Clinic Miss R. P. Bwalya, National Legal Aid For Women J U D G M E N T LENGALENGA, Ag. JS, delivered the Judgment of the Court. Cases referred to: 1. MARCUS KAMPUMBA ACHIUME – SCZ Judgment № 2 of Legislation referred to: J2 2. MATRIMONIAL CAUSES ACT, № 20 OF 2007 Other works referred to: 3. RAYDEN & JACKSON’S LAW AND PRACTICE IN DIVORCE AND FAMILY MATTERS, 16TH EDITION at page 214 4. BROMLEY’S FAMILY LAW, BY PM BROMLEY AND NV, LOWE at page 192 5. LILLIAN, MUSHOTA, FAMILY LAW IN ZAMBIA: Cases and Materials at page 157 The appellant herein being dissatisfied with the judgment of the Court below, lodged his appeal on 18th May, 2010, appealing against the whole judgment. The appeal is based on three grounds of appeal, which are set out as follows: “1. The learned Judge in the Court below erred in law and 2. in law 3. and fact by not agreeing with any one of my particulars of unreasonable behaviour of the respondent and never considered my evidence highlighting the same despite the respondent admitting all but one. The learned trial Judge in the Court below erred and fact by crowning it all that I had forgotten all about the past issues which I had highlighted in my evidence. The learned Judge in the court below erred in law fact by concluding that the physical appearance of the appellant is more brawny than that of the respondent’s and that he doubted that the J3 respondent would withstand the appellant’s shove.” The appellant argued the three grounds of appeal by making oral submissions whilst the respondent’s Counsel filed into court heads of arguments on which she relied. As the appellant argued his appeal it became apparent to us that he was totally clueless as to the manner in which to prosecute his appeal. In fact, he tried to reinstate evidence from the petition that was heard and determined in the Court below: The appellant did not file his heads of argument and he alleged that it is because the respondent grabbed his record of appeal. Therefore, without the heads of argument, it was very difficult for us to follow the appellant’s arguments on appeal. As we earlier stated, he sought to re-instate the evidence such that the appeal was no appeal as the grounds were not satisfactorily argued by the appellant. We turn to the respondent’s heads of arguments on which Counsel for the respondent relies. With respect to the J4 appellant’s ground one, the respondent’s response is that the learned trial Judge was on firm ground by not agreeing with any of the appellant’s particulars of unreasonable behaviour, pertaining to the respondent and by not considering any evidence highlighting the same. Counsel for the respondent argued that in order for the court to grant a decree for dissolution of marriage, one must prove that the marriage has broken down irretrievably. She relied on section 9(2) and (3) of the Matrimonial Causes Act № 20 of 2007, which provide that: “On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can into the facts alleged by the petitioner and into any facts alleged by the respondent. If the court is satisfied on the evidence of any fact mentioned in subsection (1), then unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall grant a decree of dissolution of marriage.” She submitted that the learned author of FAMILY LAW IN ZAMBIA: Cases and Materials at page 157 cited 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 J5 (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. Counsel for the respondent submitted that this is the ground that the petitioner relied on in his petition. She submitted further that the trial Judge was not satisfied with the evidence of the respondent’s alleged unreasonable behaviour and that it was such that the petitioner could not reasonably be expected to continue living with her. Counsel for the respondent submitted that, therefore, the learned trial Judge was on firm ground in arriving at the decision that he did. She pointed out that one of the particulars of unreasonable behaviour alleged by the petitioner in his testimony was that when the parties got married, the respondent told the petitioner that he was not responsible for the pregnancy. She submitted that inspite of allegedly being told that he was not the father of her unborn baby, he proceeded to arrange a Canter vehicle to transport the respondent to join him in Lusaka, from Kabwe. Counsel for the respondent added that they accepted the findings J6 of the trial Judge that if it was true that the respondent told him that, he would not have arranged the said transport. She further drew our attention to the fact that in cross- examination, the petitioner admitted having had sex with the respondent, after the divorce petition was already filed in court. She submitted that it was also the respondent’s testimony, that was unchallenged by the petitioner, that at the hearing of the petition, she was two months pregnant from the petitioner. Counsel for the respondent referred to RAYDEN & JACKSON’S LAW AND PRACTICE IN DIVORCE AND FAMILY MATTERS 16 th Edition where the learned authors stated at page 214: “The behaviour is not confined to 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 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.” With regard to the petitioner’s ground two, the respondent’s response, through Counsel, was that the learned trial Judge did not err in law and in fact when he held that the respondent had J7 forgotten about the past issues which the petitioner highlighted in his evidence. She contended that the petitioner’s confirmation to having sexual relations with the respondent even when the divorce petition was pending in court and his failure to challenge the respondent’s evidence that she was two months pregnant at the hearing of the divorce, indicates that the parties were relating normally, as husband and wife. Further, the petitioner’s testimony that the issues he alleged were resolved by the elders indicates that they were forgotten issues, argued Counsel. She submitted that those issues therefore, had no effect on the petitioner at the time he filed his petition. She referred to BROMLEY’S FAMILY LAW at page 228 where the learned authors observed: “This provision (relating to unreasonable behaviour) is frequently but erroneously abbreviated to ‘unreasonable behaviour’ thereby suggesting that all one has to look at is the quality of the respondent’s behaviour, whereas in fact, what is important is the effect of that conduct upon the petitioner.” Counsel for the respondent further relied on RAYDEN & JACKSON’S LAW AND PRACTICE IN DIVORCE AND FAMILY J8 MATTERS, 16 th Edition at page 214, where the learned authors stated: “The court has to decide the single question whether the respondent has so behaved 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.” Counsel for the respondent submitted that as the trial Judge rightly stated in his judgment, the petitioner appeared to have been highlighting past issues which he said were resolved by the elders and thus forgotten. Turning to ground three, Counsel for the respondent submitted that it is trite law that an appellate court which only has the transcript of evidence before it and which does not have the advantage that the trial Judge had of seeing and hearing the witnesses should not lightly interfere with the findings of the trial judge. To support that argument, she relied on the case of MARCUS KAMPUMBA ACHIUME 1 where this court held inter alia: “The appeal court will not reverse findings of fact made by a J9 trial judge unless it is 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 findings which, on a proper view of the evidence no trial court acting correctly can reasonably make.” Counsel for the respondent, therefore, submitted that the finding that the petitioner is more brawny than the respondent and that it was doubtful that she would withstand the petitioner’s shove be withheld as the trial Judge had the advantage of seeing and hearing both parties unlike this Court which only relies on the record. In conclusion, it was the respondent’s submission, through Counsel, that the appellant failed to establish, on the balance of probability, that the respondent’s conduct was such that he could not reasonably be expected to live with her and, therefore, failed to prove irretrievable breakdown of marriage. We are grateful to learned Counsel for the respondent for the submissions which have shed more light on the appeal and the respondent’s position in this matter. From the submissions and arguments advanced by Counsel, it is clear that the appellant J10 failed to satisfy the trial Judge on the evidence relating to the allegations of unreasonable behaviour on the respondent’s part, as the issues referred to had already been resolved by the elders. Further to the appellant’s failure to satisfy the trial court on the particulars of unreasonable behaviour, the appellant exhibited behaviour that is inconsistent with his claim that he could not reasonably be expected to continue living with the respondent. He alleged that the respondent told him that the child that she was carrying was not his, yet he arranged a Canter vehicle and transported her from Kabwe to Lusaka. He filed a petition for dissolution of his marriage to the respondent but continued having sexual relations with her and he even impregnated her. All this was undisputed by the appellant. How could the trial judge have accepted his allegations of unreasonable behaviour when the evidence before him portrayed a normal relationship between husband and wife. It is, therefore, clear that the trial Judge considered the aspect of behaviour of both parties when he refused to accept the appellant’s evidence. We also accept that the appellant did not satisfy the trial court on the issue of unreasonable behaviour. We are, therefore, J11 of the considered view that the learned trial judge was on firm ground when he declined to accept the appellant’s particulars of unreasonable behaviour. Further, with respect to ground two, considering the appellant’s own evidence that the issues were resolved by the elders, the learned trial judge did not err in law and fact when he held that the appellant had forgotten all about the past issues. Since the issues were resolved by the elders, they could not emerge as part of the evidence at trial. On this ground too, the learned trial judge was on firm ground in his finding. Ground three referred to a finding of fact by the trial court as it referred to physical appearance of the appellant and respondent. As submitted by learned Counsel for the respondent, an appellant rarely interferes with findings of fact unless such findings are perverse or made upon a misapprehension of the facts or lack supporting evidence. This ground also lacks merit. In conclusion, all three grounds of appeal fail as they lack merit. The net effect is that the appeal fails and we dismiss it. Costs to follow the event and in default, to be taxed. J12 ……………………………………………………. M S Mwanamwambwa ACTING DEPUTY CHIEF JUSTICE ……………………………………….. ……………………………………………. F M Lengalenga E M Hamaundu ACTING SUPREME COURT JUDGE ACTING SUPREME COURT JUDGE