Harendra Bushan Rodrigo Kurukulariya v Chrysoula Rodrigo Kurukulariya (Appeal No. 259/2021) (3 June 2024) – ZambiaLII

IN THE COURT OF APPEAL 0.f..-ZA,~B14,- e Appeal No. 259/2021 /r L 1 HOLDEN AT KABWE ~ lu ~ (Civil Jurisdiction) 3 JLJi,J 2:~! { E~ ~ BETWEEN: ' ~IV, '""' ~ -~0\.)':,~ HARENDRA BUSHAN RODRIGO KURUKULARIYA APPELLANT AND CHRYSOULA RODRIGO KURUKULARIYA RESPONDENT CORAM: Chashi, Muzenga and Patel, JJA On 13th October 2023 and 3rd June 2024 For the Appellant: Mr. C. Samechi & Mr. D. K. Siyangwa, Messrs Philsong & Partners Legal Practitioners For the Respondent: Ms. N. Adam & Mr. B. Chipepo, Messrs D. Findlay & Associates JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Inutu Etambuyu Suba v Indo-Zambia Bank Limited - Supreme Court of Zambia Selected Judgment No. 52 of 2017 2. Nkhata & 4 Others v The Attorney-General of Zambia (1966) ZR 124 J2 3. Toko v The People (1975) ZR 196 4. Malama v Malama (Nee Mukanda) - Supreme Court Appeal No. 84 of 2000 5. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of Kombe, J, delivered on 30th July 2021 in which the lower court dismissed the appellant's petition for judicial separation, and instead dissolved the marriage based on a cross petition by the respondent. 2.0 BACKGROUND 2.1 The appellant petitioned the respondent for judicial separation relying on unreasonable behaviour on the part of the respondent. The particulars of unreasonable behaviour were basically that on two occasions, the appellant was ejected from the matrimonial home by the respondent without any justifiable reason. Further that the respondent planned to leave the country with the children and gardener without the appellant's knowledge or consent. 2.2 The respondent filed an answer and cross-petitioned for dissolution of the marriage alleging irretrievable breakdown of marriage on the fact J3 of unreasonable behaviour. The respondent in her cross petition alleged several things proving unreasonable behaviour including excessive weight gain by the petitioner to about 195 Kilograms, not taking daily baths, smelling badly, refusing intimacy or sex with her, immoral conduct offending Christian principles (his addiction to pornography), violent behaviour and failure to provide for the family among other allegations. 3.0 DECISION OF THE COURT BELOW 3.1 The trial court considered the evidence and found, regarding to the petition for judicial separation, that although the appellant was chased from the matrimonial home, it was because of his violent outbursts and further that the attempt by the respondent to leave the country without his knowledge did not meet the test that any right thinking person can come to a conclusion that the respondent had behaved in such a way that the petitioner cannot reasonably be expected to live with her. 3.2 Concerning the cross-petition, all the other allegations were rejected except for violent outbursts and failure to provide for the family. On that basis, the trial court accepted that the said two allegations J4 constituted unreasonable behaviour and found that the marriage had broken down irretrievably. The lower court thus granted a decree nisi. 4.0 GROUNDS OF APPEAL 4.1 Unsettled by the decision of the court below, the appellant has launched before this Court the within appeal on the following grounds: 1. The learned Puisine Judge erred in fact and in law in assessing the manner and demeanour of the respondent when she found and held that "I have carefully considered the allegations by the respondent that the petitioner has violent outburst. Granted the respondent did not produce the medical report to show that she was physically abused and that any report was made to the police, I intently paid attention to her evidence of and also observed her demeanour. From my assessment, she did not strike me as a person who had fabricated a story about the petitioner's violent outbursts" without addressing and/ or considering the contrary evidence and demeanour of the appellant. 2. The learned Puisne Judge erred in fact and in law when she based her findings of fact upon the demeanour of the respondent who had shown not to be a credible witness as she had made inconsistent allegations at trial to warrant the sudden reversal of characterisation of the witness by the learned Judge below in accordance with the locus classicus set out in several decisions of Superior Courts in Zambia. 3. The learned Trial Judge erred in law and in fact when she found that: "the petitioner has violent outbursts and exhibits violent behaviour in the presence of the children of the family and his mother-in-law" in the absence of relevant evidence thereby warranting a reversal of the said finding. JS 4. The finding of fact by the learned Puisne Judge to the effect that the appellant has violent outbursts and exhibits violent behaviour is perverse as it was made in the absence of any relevant evidence properly before the Court to that effect and was clearly made upon a misapprehension of the facts before the Court and it was such a finding which, on a proper view of the evidence, no trial Court acting correctly can reasonably come to such a conclusion. 5.0 APPELLANT'S ARGUMENTS 5.1 In support of ground one of the appeal, the gist of the appellant's arguments is that the trial judge placed heavy reliance on the demeanor and testimony of the respondent without giving reasons why the said demeanor and testimony was more believable than that of the petitioner and without revealing her mind and or giving reasons for the position that the court took. In support of this argument, we were referred to the case of Inutu Etambuyu Suba v Indo-Zambia Bank Limited1 where the Apex Court held that: "In our recent judgment in Teddy Puta v Ambindwire Friday, we made the observation that where evidence is contentious, the trial court must resolve the matter on the basis of the credibility of the witnesses. We are, indeed, alive to the fact that a trial court should undertake a balanced evaluation of the evidence, which is deployed before it on behalf of the contesting parties. We would also reaffirm that whenever a trial court is confronted with conflicting evidence on contested facts, it should reveal its mind or give reasons as to why it J6 prefers a particular version of the evidence as against the other." 5.2 It was the appellant's further submission that it was the duty of the trial court to resolve the disputed issue of violent outbursts and violent behaviour by assessing the two conflicting pieces of evidence between the petitioner and the respondent. Upon that assessment, the trial court should have accepted one and rejected the other, giving reasons for so doing. We were urged to allow this ground of appeal and set aside the judgment of the trial court on the basis that the trial court omitted to give reasons for having accepted the respondent's testimony. 5.3 The gist of the arguments in support of the second ground of appeal was that the evidence supporting the findings of facts made by the trial court is tainted with a plethora of inconsistencies. We were urged to vacate the said findings of facts. In support of this argument, we were urged to apply the wisdom of the Court of Appeal the forerunner to Supreme Court in the case of Nkhata & 4 Others v. The Attorney General of Zambia2 In this case, the Court of Appeal identified the • following principles: J7 "A trial judge sitting alone without a jury can only be reversed on fact when it is positively demonstrated to the appellant court that: a) by reason of some non-direction or mis-direction or otherwise the Judge erred in accepting the evidence which he did accept; or b) in assessing and evaluating the evidence the judge has taken into account some matter which he ought not to have taken into account, or failed to take account some matter which he ought to have taken into account; or c) it unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or d) In so far as the judge has relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witnesses that he accepted is not credible, for instance, where those witnesses have on some collateral matter deliberately given an untrue answer." 5.4 In support of the third ground of appeal, the appellant contends that the respondent's testimony that the petitioner has violent outbursts and exhibits violent behaviour in the presence of the children of the family and his mother-in-law lacked credence given the inconsistencies of the respondent on several other and material aspects of her evidence that the court ought to have warned herself of the danger of J8 relying on it without independent and corroborating evidence. It was submitted that the respondent's accusation was serious and that the court should have looked for independent supporting evidence either through medical evidence or at the very least a police report of the incident. 5.5 According to the appellant, the trial court should not have placed much weight on the evidence of the respondent as her evidence was inconsistent. We were urged to reverse the finding of fact made by the trial court. 5.6 In support of the last ground of appeal, it was the appellant's contention that the trial court made findings of fact favourable to the respondent which on a proper and well-balanced view of the whole of the evidence including the demeanor of the petitioner and the inconsistent evidence adduced by the respondent no trial court, acting correctly could reasonably arrive at such findings. All in all, we were asked to reverse the perverse findings of facts made by the lower court. J9 6.0 RESPONDENT'S ARGUMENTS 6.1 In responding to the appellant's contentions, the respondent argued ground one and two together. It was submitted that the trial court extensively considered all the evidence placed before it and arrived at the decision it made. The respondent referred us to pages 7-73 of the record of appeal, where the trial court evaluated the evidence before it as follows: "Based on the evidence on the record and the response to the allegation, it seems to me that the respondent does not dispute that she asked the petitioner to leave the house. According to her, the reason was because of his violent outburst which made her get concerned about her safety and that of the children. The petitioner did not deny the violent outburst on this material day. In this regard, I find that although the respondent asked the petitioner to leave the matrimonial home, there was a reason she did that which is that she feared for her safety and that of the children." 6.2 The respondent also referred us to lines 9 to line 20 of pages 62 and 63 respectively where the trial court further analysed the evidence before it and gave its reasoning. It was contended that it is trite that appellate courts cannot interfere with findings of fact made by the trial court unless certain criteria is met. We were referred to the case of JlO Nkhata & 4 Others v. The Attorney General2 where it was held that: "A trial judge sitting alone without a jury can only be reversed on questions of fact if: (a) The judge erred in accepting evidence, or (b) the judge erred in assessing and evaluating the evidence by taking into account some matters which he should have ignored or failing to take into account something which he should have considered, or (c) the judge did not take proper advantage of having seen and heard the witnesses, ( d) External evidence demonstrates that the judge erred in assessing the manner and demeanour of witnesses." 6.3 According to the respondent the trial court thoroughly considered all the evidence on record and gave clear reasons as to how and why it arrived at the decision. It was submitted that the trial court's judgment, by all means, complied with the requirements of what each judgment should contain as guided by the Supreme Court. It was further contended that the trial court rightfully observed and noted the demeanour of the respondent in arriving at its finding which finding ought not to be reversed. According to the respondent, it is trite that J11 courts ought to note the demeanour of witnesses when they are giving evidence to establish the credibility and truthfulness of the testimony tendered. We were referred to the case of Toko v The People3 where it was held inter alia that: "We are unable to interfere with that finding as the court below was in a better position to judge the demeanour of the witness which he did in accordance with the principle laid down by this court in Machobane v The People as to the necessity to record the demeanour of a witness." 6.4 In summation, we were urged not to interfere with the findings of fact of the trial court as the appellant has failed to show that the said finding of fact were not supported by any evidence or were perverse. 6.5 The respondent equally argued grounds three and four together. The gist of the respondent's contention is that contrary to the appellant's contention that in dealing with factual allegations of violence, the court is duty-bound to satisfy itself through hard evidence. It was counsel's submission that it is trite law that in matrimonial causes, factual allegations ought to be proved by the parties on a balance of probabilities. The respondent referred us to the case of Malama v Malama (Nee Mukanda)4 where it was held that "firstly, it is J12 indeed a well-established principle at law that the standard of establishing facts in divorce matters is the same as in other civil matters." 6.6 It was contended that the trial court properly evaluated the evidence on the record that stood undisputed and unchallenged by the appellant. It was contended that the appellant's submission that the trial court acting correctly could have not reasonably arrived at the finding that the petitioner had violent outburst is misplaced and not supported by evidence on the record. In summation, we were urged to dismiss this appeal for want of merit. 7.0 THE HEARING 7.1 At the hearing of the appeal, learned counsel for the parties relied on their respective arguments and briefly augmented. 8.0 DECISION OF THE COURT 8.1 We have carefully considered the record of appeal, the written and oral submissions by counsel. We shall deal with all the grounds of appeal together. We must state at the onset that the appeal as disclosed by the grounds of appeal seems to largely attack the findings of the lower court relating to the cross-petition, in particular, the trial court's J13 decision in believing the evidence of the respondent on violent outbursts by the appellant. We note that the appellant has not appealed against the dismissal of his cause for judicial separation. 8.2 It seems to us that this appeal raises the issue of the powers of an appellate court to set aside the findings of fact made by the trial court. We were referred to various authorities which explain the circumstances under which an appellate court can reverse findings of fact made by the trial court. On the other hand, in responding to the appellant's contentions, the respondent extensively referred us to the different sections of the judgment of the lower court where the trial judge analysed the evidence presented before her and gave reasons for her findings. 8.3 The Supreme Court in the case of Wilson Masauso Zulu v Avondale Housing Project Limited5 held that: "(i) The trial court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality. (ii) The appellate court will only reverse findings of fact made by a trial court if it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts." · J14 8.4 In casu/ the learned trial court analysed the evidence of the appellant and respondent, and concluded, based on the witnesses' demeanour and other considerations, that the version of events given by the respondent was the most credible. As the Apex Court guided in the Avondale Housing case supra/ an appellate court can only reverse . findings of fact made by the trial court only where the findings in question were either perverse or made in the absence of any relevant evidence or upon misapprehension of the facts. 8.5 We agree with learned counsel for the respondent that the findings of fact made by the trial court were supported by evidence and the trial judge properly evaluated the evidence presented before her. We are also alive to the fact that the appellant's arguments raise issues of credibility which in our view, the trial court properly resolved on the evidence before it. 8.6 The trial court was better placed to resolve the issues of credibility as it had the opportunity to see the witnesses as it received the evidence. We, as an appellate court, are starved of that opportunity. We thus find no reason to interfere or set aside the findings of the trial court, J15 subject of the appellant's grievance. The trial court was entitled to make findings it did on the evidence available on the record. 8. 7 In the premises, we find all the grounds of appeal to be bereft of merit. 9.0 CONCLUSION 9.1 Having found no merit in the appeal, accordingly we dismiss it with . CHAS I COURT OF APPEAL JUDGE - - ...........k ~.. A fJ ............. . K. MU GA A. N. PATEL, SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE