Botswana: Court of Appeal

                           Court of Appeal Civil Case No. 021 of 2005

In the matter between

Mr. R. S. Busang assisted by L. Morapedi for the appellant
No appearance for the respondent

                           LORD COULSFIELD JA

AKIWUMI JA

The appellant and the respondent got married in 1992 when the appellant was studying in Germany. He returned in 1994 and he and the respondent lived together until April 2002, when the respondent left the matrimonial home. Prior to this, and when they were still together, the appellant on 18 December 2001, filed in the High Court a suit for divorce together with particulars of claim dated 4 December 2001, which was only served on the respondent on 26 April 2002. The appellant sued his wife, the respondent, under the Matrimonial Cause Act [Cap 29:06] for divorce on the ground that this marriage had broken down irretrievably due to the behaviour of the respondent. The relevant parts of the Act which apply to this appeal are as follows:

“14.      … the sole ground on which an action for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably.

15.      (1)      The court hearing an action for divorce shall not hold the marriage to have broken down irretrievably unless the plaintiff satisfies the court of one or more of the following facts, that is to say –

                  (a)      …

(b)      that the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant.”

2.      

The onus is clearly on the appellant to establish on a balance of probabilities, that it was the behaviour of the respondent which brought this about. The particulars of the respondent’s alleged unreasonable behaviour as set out in the appellant’s particulars of claim are as follows:

“Particulars of defendant unreasonably behaviour:

Defendant has shown no respect for the plaintiff and quarrels, insults and abuses him in front of the children.

11.2    

Defendant spends most of the weekends out of the matrimonial house.

11.3    

Defendant in September 2000 threw the marriage ring at the plaintiff which incident was the second.

11.4    

Whenever defendant arrives home late which occurs very often she always initiates a fight with plaintiff and as a result plaintiff hardly sleeps and these has affected his performance at work.

11.5    

In the early hours of Friday 2^nd February 2001 the defendant broke plaintiff’s spectacles when plaintiff arrived home from work. Defendant then said that she wanted a divorce otherwise she is going to break everything in the house.

11.6    

In October 2000 defendant locked plaintiff inside the house when plaintiff was due to go to work resulting in the plaintiff being unable to attend work that day. Defendant did this in front of the plaintiff’s father for whom she showed no respect.”

3.      

These allegations were denied by the respondent in her pleadings in defence. The appellant gave evidence in support of these allegations and two additional ones, which were challenged in his lengthy cross-examination by the respondent, and who also gave evidence of her version of the alleged mishehaviour and also that of the appellant. The respondent was also cross-examined by counsel representing the appellant. The evidence in these matters were in my view, adequately dealt with in the judgment of the judge a quo. I will, however, deal briefly with the two additional allegations not contained in the appellant’s pleadings but which the appellant alluded to in his evidence. The first one was that he was imprisoned without stating when and where and for how long, for his admitted willful disobedience of a magistrate’s court maintenance order made in the presence of both the appellant and the respondent on 26 November, 2000, for the maintenance of all the respondent’s four children when only two of them were sired by him. This order was subsequently, on 23 July, 2003, in the presence of the appellant and the respondent after the respondent had without his consent, left the matrimonial home in April, 2002, varied to apply only to his own two children. The obtaining by the respondent of the maintenance order for all her four children is not in my view, an act that rendered their marriage irretrievably broken down, and the appellant cannot be said to have regarded it as such as he did not include it in his particulars of claim or did anything about it until 2003. The second new allegation was that the appellant had been detained in 2001, without saying exactly when, in police custody in hospital for three days after the respondent had falsely reported to the police that he had raped her. One would have expected the appellant, if he had been falsely accused by the respondent, to have included this serious allegation, which the respondent denied, in his particulars of claim which as already noted, is dated 4 December, 2001, and filed on 18 December, 2001.

4.       After considering the evidence adduced at the trial, the judge a quo, in his judgment concluded as follows -

“The plaintiff was cross examined at length by the defendant and challenged on each allegation made by him in his declaration and his oral testimony, and, when she gave her evidence, the defendant portrayed a very different matrimonial setting. …

All in all, it is difficult to conceive of a more desperate and wretched relationship than that existing between this married couple. Both parties are adamant that the marriage is beyond redemption, and I can find no basis to question that conviction. That is not, however, the issue now facing this court, for it is simply not sufficient for the plaintiff to establish, as indeed he has done, that this marriage has broken down irretrievably. As I have stated earlier in my judgment, it is for the plaintiff to show, on a balance of probabilities, that that state of affairs was brought about by reason of the defendant’s behaviour, which was such that he could not reasonably be expected to live with her. I am not satisfied that the plaintiff has done so.

I find it significant, and highly incredible, if the plaintiff is to be believed, that the defendant was solely responsible for all the matrimonial strife and that each and every altercation and assault was instigated by her, was totally unprovoked, and involved no combative or retaliatory conduct on the part of the plaintiff. Although she came across as anything but a meek or easygoing individual, the defendant gave her evidence in a candid and forthright manner. Of the two, she was the most credible and consistent witness, and her accounts of the various incidents, complained of by the plaintiff, were definitely more plausible than his.

As a result, this court finds that it has not been shown that any right-thinking person would come to the conclusion that the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with her. Accordingly, this action is dismissed, with costs.”

5.      

The appellant’s main ground of appeal against the judgment of the judge of a quo, is that he erred in making the findings of fact as he did, that on a balance of probabilities, the appellant had not established as he is required to do, that the respondent had behaved in such a way that the appellant cannot reasonably be expected to live with her.

6.      

Counsel for the appellant argued before this Court, that the evidence of the respondent was so seriously flawed that the judge a quo should not have relied upon it in making his decision. This was so because the respondent’s actions concerning the maintenance order had been motivated by the appellant’s refusal to adopt the children she had had with other men; and that the respondent’s evidence was not credible as there were inconsistencies in it such as her saying at one time, that she would not oppose being divorced if the appellant paid her for it, and at another time, that her religion disapproved of divorce. Appellant’s counsel submitted further that the judge a quo erred in not properly applying the doctrine of balance of probabilities as he considered only the evidence of the appellant in determining whether he had proven his allegations against the respondent; and that the judge a quo should not have taken into consideration as he did, “the candid and forthright manner” of the respondent whose evidence in her native tongue, was interpreted to the judge a quo in English.

7.      

The circumstances under which this Court will upset the findings of fact of a trial judge were succinctly set down by TEBBUTT JA as he then was, in the well known case of Bogosi v The State [1996] BLR 702 at 707, as follows:

“It is now well-settled in this court as it is in the courts of other Commonwealth countries, such as the United Kingdom and South Africa, that an appeal court is very reluctant to upset the findings of fact of a trial judge a quo and will do so only where it is convinced that he was wrong, the trial court having had the advantage of seeing and hearing the witnesses and observing this demeanour.”

8.      

Counsel for the appellant referred to the decision in the more recent South African Supreme Court of Appeal case of Santam BPK v Biddulph (2004) (5) SA 586 (SCA), where it was held that –

“While courts of appeal were generally reluctant to disturb findings which depend on credibility, it was nevertheless trite that they should do so where such findings were plainly wrong, and in particular where the reasons for the findings were seriously flawed.”

9.      

The evidence given at the trial was only that of the appellant and the respondent, both of which in my view, the judge a quo reasonably considered. His finding that the respondent gave her evidence in a “candid and forthright manner” even though the respondent cross examined and gave evidence in a language which had to be translated to the judge a quo in English, is not for that reason, plainly wrong. It is possible from the demeanor, action and manner of a witness for one to conclude, though his evidence has to be translated, whether he appeared candid and forthright. Furthermore, in my view, the findings of fact of the judge a quo, are not plainly wrong neither are his reasons for the findings he made seriously flawed. It was, for instance, the appellant himself, who without first seeking the variation of the first maintenance court order, took the law into his own hands and refused to obey that order. The judge a quo, in my view, took into account the evidence of both the appellant and respondent in which each accused the other of misbehaviour, in deciding as he did on a balance of probabilities, the crucial issue that the appellant had failed to establish that the marriage had broken down irretrievably because of the respondent’s behaviour and which was also such that the appellant could not be reasonably expected to live with the respondent.

10.     

The appellant’s appeal is hereby dismissed. The respondent, though aware of the hearing of the appeal, did not take part in the appeal proceedings before this Court. She, however, filed a notice to abide by any order that this Court may make. There will therefore, be no order as to costs.