Lydia Sekai Mvududu v Bernard Norman Chikono

### Preamble
1
HH 267-2012
CIV ‘A’ 382/10
---------


LYDIA SEKAI MVUDUDU

versus

BERNARD NORMAN CHIKONO

HIGH COURT OF ZIMBABWE

HLATSHWAYO  &  MAWADZE JJ

HARARE 05 JULY 2012

Advocate C. Damiso for the Appellant

Advocate L. Uriri for the Respondent

MAWADZE J: This is an appeal against a judgment by the Mutare Magistrates Court delivered on 12 May 2010. The Appellant appeals only against the award made in relation to immovable property.

The facts giving rise to this are appeal in a nutshell are as follows;

The parties in 1984 entered into an unregistered customary law union and three children,

Elton Christen Fidel Chitepo, Rumbi Esther Chitepo and Hezel Nickel Chitepo were born out of the union. The only minor child is Hezel Nickel Chitepo born on 28 November 1999. The parties encountered problems and the Appellant on 27 November 2009 issued summons out of the Mutare Magistrates Court claiming the following relief outlined in paragraph 9 of the particulars of claim;

“9.  	Wherefore the Plaintiff prays for

formal dissolution of the customary law union

sharing property in terms of paragraph 8 above

custody of the minor child

maintenance of the minor child at the rate of US$200 per month

that each party bears its own costs.”

A full trial was conducted. The dispute relating to custody of the minor child, maintenance of the minor child and division of movable property was concluded to the satisfaction of both parties. The Appellant was dissatisfied with the award relating to the division of the three immovable properties, being;

No.2 Thorn Close in Mutare bought in July 1996

No.9 Macanley Road Bulawayo bought in August 1988

No.5 Herbert Road Pardorhurst Bulawayo bought in April 1989.

All the three immovable properties were registered in the Respondent’s name and were awarded to the Respondent. The reasons given by the trial magistrate were that the Appellant did not contribute to the acquisition of the properties and that the properties were purchased by the Respondent with the assistance of his father and hence the Respondent’s father was a co owner of the properties and would suffer an injustice if any share in the immovable properties was awarded to the Appellant. Dissatisfied with the Learned Magistrate’s ruling the Appellant filed a notice of appeal with this Court on 19 August 2010. The grounds of appeal are stated as follows;

“Grounds of appeal;

The learned magistrate erred in making a finding that the three (3) immovable properties acquired during the subsistence of the parties’ marriage were not subject to division.

The learned magistrate further erred in concluding that the three (3) immovable properties were jointly owned by the Respondent and his father when there was no shred of evidence to support that

The learned magistrate misdirected himself by concluding that a deposit to secure a mortgage bond showed a contribution towards the purchase price of the property whereas it was just a security and it remains such a security.

The learned magistrate erred in concluding that the properties were jointly owned by the Appellant and his father yet all the Title Deeds and the Agreements of Sale were and are still in the Respondent’s sole name.

The learned magistrate greatly misdirected himself by holding that the Appellant was not entitled to any share in the matrimonial immovable properties in question yet she also made indirect contributions towards their purchase.”

During the hearing of the appeal both counsel Advocate Damiso and Advocate Uriri properly conceded, in my view, that there would be no need for the Court to dwell on the merits of the appeal as raised in the Appellant’s grounds of appeal.

Two issues exercised our minds in this matter. Firstly, no recognised cause of action was pleaded in the papers and secondly whether the Magistrates court had jurisdiction to deal with this matter. I now turn to these two issues which would inform the order this court would grant.

There is no doubt that the learned trial magistrate and the legal practitioners who represented the parties in the Court a quo fell into error and approached this matter as if the distribution of the assets of the parties was in accordance with a couple that is divorcing in terms of the Matrimonial Causes Act[Cap 5:13]. It is unfortunate that despite the numerous exhortations and guidance by this court magistrates and indeed many legal practitioners seem not to appreciate and understand this pertinent issue. In most cases the particulars of claim confuse a valid marriage and a customary law union. I would, for emphasis only restate the position of the law as regards the validity of a customary law marriage. In terms of section 3 of the Customary Marriage Act [Cap 5:07] no marriage conducted in accordance to a customary law shall be regarded as valid except in the specific instances listed in section 3 (1) (a) to (d) and section 3 (2) of the same Act. See PLAXEDES MAKONDE v PAUL ZENGENI HH 133-11 at pp 2 of the cycostyled judgment.

In casu the trial magistrate properly found that applying customary law in this matter would lead to an injustice. The comments by the trial magistrate on pp15 of the reasons for judgment are pertinent and I quote;

“strict adherence to customary law will lead to an injustice to the plaintiff who would only be entitled to mawoko property”.

It is common cause that the parties in this case did not have a valid marriage but a customary law union. If the court a quo did find that customary law was not the proper choice of law to apply in this case in terms of section 3 of the Customary Law and Local Courts Act [Cap 7:05]  it would therefore follow that the trial magistrate dealt with to this matter in accordance with the general law. A proper cause of action should have been pleaded by the Appellant in the court a quo. The fact that the parties were in an unregistered customary law union is not a sufficient basis to find a cause of action at general law. I cannot do more that to refer to the wise counsel by MAKARAU JP (as she then was) in FEREMBA v MATIKA 2007 (1) ZLR 337 at 341 F-G;

“ I repeat that exhortation herein to all trial magistrates before whom a claim as the one in this appeal comes. It is this; where one party to an unregistered union seeks to have a joint estate distributed before a magistrates court, a justification for not applying customary law must be made and accepted by the court using the choice of law considerations listed in section 3 of the Customary Law and Local Courts Act [Cap 7:05]. When the general law is the correct choice, then a recognised cause of action must be pleaded. Such a cause of action may be unjust enrichment, a tacit universal partnership or joint ownership. An averment merely to the effect that the parties were in an unregistered customary union is not sufficient to found a cause action at general law. Trial magistrates must be wary of this procedural aspect of the matter. See also MTUDA v NDUDZO 2000 (1) ZLR 710 (H), CHAPENDAMA v CHAPENDAMA 1998 (2) ZLR 18 (H)

It is therefore clear that in terms of the pleadings filed in the court a quo there is no cause of action pleaded upon which an award or decision could be made.

I turn to the second issue. Once it is accepted that this matter is governed by general law the next issue the trial magistrate should have considered is whether he/she has jurisdiction to deal with the matter. See MABUTO v BHILLA 2005 (2) ZLR 257 (H); MANDAVA v CHASWEKA 2008 (1) ZLR 300.

It is clear that the magistrates Court had no jurisdiction to deal with this matter. The monetary jurisdiction for civil claims in the magistrates court is set at US$2000 See magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules SI 21 of 2009. The monetary value of the movable and immovable assets in issue in this case far exceeds the jurisdiction limit of the magistrates Court. In fact both Advocate Damiso and AdvocateUriri properly conceded that the court a quo had no jurisdiction to deal with this matter. In essence it therefore means that the whole proceedings in this matter are a nullity. Once this court has made such a finding it cannot accede to the request by Advocate Damiso to include as part of the order of this court that the Appellant, if she so wishes, should commence proceedings afresh in court of competent jurisdiction. Advocate Damiso’s views were informed by her fears that once proceedings are declared a nullity the Appellant’s claim would be deemed prescribed and this would be prejudicial to Appellant’s apparent rights and interests. I do not believe that Advocate Damiso’s fears are well founded. This is so because once the proceedings are declared a nullity the parties revert to the position they were before the proceedings were commenced and the defence of prescription would be difficult to sustain in the circumstances. My view is that once this court pronounces the proceedings a nullity no further directions can be competently given by this court. It remains entirely up to the parties to decide on the next course of action to take in pursuance of each party’s rights properly found on the basis of or arising out of the customary law union between the parties which has ended.

Accordingly, for the reasons aforementioned I make the following Order;

The proceedings held in the Mutare Magistrates Court in case No. C103/09 involving the parties herein be and are hereby declared a nullity.

There shall be no order as to costs.

HLATSHWAYO J: agrees………………………

Makumbe & Associates, Appellant’s legal practitioners

Nyamwanza & Associates, Respondent’s legal practitioners