Nicolette Jane Marsh & 5 Ors v Registrar General of Citizenship & 4 Ors

### Preamble
Judgment No. SC 54/21
1
Civil Appeal No. SC 890/18
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DISTRIBUTABLE	(51)

NICOLETTE     JANE     MARSH     (2)     JAMES     MICHAEL   EVANS     (3)     GUY     HUNTLY     EVANS     (4)     LLOYD     DAVID     POWELL     STEVENS     (5)     SEAN     LEE     MULLENS                         (6)     FAYZAL     GIRACH

v

REGISTRAR     GENERAL     OF     CITIZENSHIP                                  (2)     PRINCIPAL     DIRECTOR     OF     IMMIGRATION     (3)     THE ATTORNEY     GENERAL     OF     ZIMBABWE     (4)     THE    MINISTER     OF     HOME     AFFAIRS     AND     CULTURAL HERITAGE     (5)     THE     MINISTER     OF     FOREIGN     AFFAIRS     AND     INTERNATIONAL     TRADE

SUPREME COURT OF ZIMBABWE

GUVAVA JA, MAKONI JA & CHITAKUNYE AJA

HARARE: 6 NOVEMBER 2020 & 17 MAY 2021

T. R. Mugabe, for first to sixth appellants

L. C. Ndoro, for first respondent

No appearance for second to fifth respondents

CHITAKUNYE AJA: 	This is an appeal against part of the judgment of the High Court of Zimbabwe handed down on 31 October 2018.  In that judgment the court a quo granted the first appellant’s application but dismissed the applications by the other appellants. The applications were, inter alia, for declaration of the appellants’ citizenship status. This appeal initially pertained to those appellants whose applications were dismissed.

On the date of hearing Mr Mugabe, for the appellants, submitted that the first appellant having been successful was in fact not appealing against the decision. The second and third appellants had resolved their issues with the first respondent and were no longer part of his brief. The appeal as initially drafted ought to have been by the fourth, fifth and sixth appellants only. His inclusion of the other appellants on the notice of appeal was at the guidance of the registrar. In that regard an amendment was granted by consent on expunging references to first, second and third appellants in the grounds of appeal and substitute same with fourth, fifth and sixth appellants respectively. Counsel further submitted that fourth and sixth appellants had since resolved their issues with the first respondent and were withdrawing their appeal with no order as to costs. The first respondent’s counsel, Mr L. C. Ndoro, confirmed this development and so the appeal in respect of fourth and sixth appellants was withdrawn by consent as parties had amicably resolved their differences.

The appeal that remained to be argued pertained to the fifth appellant, Sean Lee Mullens.

The facts relevant to fifth appellant’s case may be summed up as follows:-

The appellant approached the court a quo for a declaration of his status as a citizen of Zimbabwe by birth in terms of s 36(2) (a) of the Constitution of Zimbabwe Amendment No.20 of 2013.

The appellant was born in Poole, United Kingdom of Great Britain and Northern Ireland on 21 March 1979. His father, Alexander Gordon John Batte, was born at Rusape, Zimbabwe on 12 April 1956. The father was thus a Zimbabwean citizen by birth.

The fifth appellant’s mother, Sherron Susan Batte (nee Downs) was born at Wells Somerset, United Kingdom of Great Britain and Northern Ireland. The mother was a British citizen.

The appellant alleged that though he was born in the UK, at the time of his birth his father was a Zimbabwean citizen and both his parents were ordinarily resident in Zimbabwe.

The appellant thus sought a declaration of his status based on the citizenship of his father and the principle of ‘ordinarily resident.’

The first and fourth respondents opposed the application. They contended that the appellant had not approached their offices for verification of the status he claims. They also contended that based on his assertions the appellant was born in the United Kingdom and has not shown that at the time of his birth his parents were ordinarily resident in Zimbabwe.

After an analysis of the evidence tendered by the appellant, the court a quo ruled that he had failed to meet the requirements of s 36 (2) of the Constitution as he had not established that either of his parents was ordinarily resident in Zimbabwe as at 21 March 1979 when he was born. The above conclusion was also influenced by the failure by appellant to attach some of the documents referred to in his application as attached when in fact they were not attached and none was tendered in court. The application was thus dismissed with no order as to costs.

Aggrieved by that decision the appellant appealed to this Court. The grounds of appeal relevant to fifth respondent’s case were as follows:-

The learned judge in the court a quo erred at law in declining to found and declare the applicant’s citizenship of Zimbabwe in terms of s 43(1) of the Constitution of Zimbabwe 2013;

The learned judge in the court a quo erred in fact when she found that neither of the fifth appellant’s parents were ordinarily resident in Zimbabwe at the time of the fifth appellant’s birth;

The learned judge in the court a quo erred in law in her interpretation of the phrase “ordinarily resident” in the context of a Constitutional claim;

The learned judge in the court a quo erred in law in declining to afford an order to set up facilities that enable citizens to assert and enjoy the Constitutional right  to access identity and travel documents;

The learned judge in the court a quo erred in dismissing the application in respect of the fifth appellant.

The appellant seeks the setting aside of the judgment and its substitution with an order that:

“1. It is declared that the 5th Applicant Sean Lee Mullens born 21st March

1979 in Poole, United Kingdom, is a citizen of Zimbabwe by birth in terms of section 36 (2) (a) of the Constitution of Zimbabwe, 2013 with all attendant rights, duties and entitlements including but not limited to a citizen identity card and travel documents;

2. Consequently, the first respondent shall forthwith, and upon sight of this

order issue the 5th applicant with Zimbabwe Citizen identity card and passport;

3. Applicant’s legal counsel are granted leave to serve this order, and

4. Costs of this application on attorney and client scale are to be borne by the first

respondent.”

Though 5 grounds of appeal were raised I am of the view that three of them, that is grounds 1, 4 and 5, are not valid in the circumstances of this case. These will be disposed first as follows:

In ground 1 the appellant stated that:

The learned judge in the court a quo erred at law in declining to found and declare the applicant’s citizenship of Zimbabwe in terms of s 43 (1) of the Constitution of Zimbabwe 2013;

This ground of appeal pertains to the failure by the court a quo to advert to s 43(1) of the Constitution. That section provides for continuation and restoration of previous citizenship in these terms;

“Every person who, immediately before the publication day, was a Zimbabwean citizen continues to be a Zimbabwean citizen after that date.”

In its judgment the court a quo aptly noted that the appellant in his founding affidavit was not relying on an assertion that as at 22 May 2013, he was a citizen of Zimbabwe which would have put him in the purview of s 43(1). The appellant relied on the status of his parents.

This finding cannot be faulted as nowhere in the founding affidavit did the appellant allude to having been a citizen of Zimbabwe as at 22 May 2013 and that such citizenship had been deprived of him. It may also be noted that in motivating the appeal Mr Mugabe, for the appellant, conceded that s 43 was not the basis for the application and he did not argue on the basis of that section. He further conceded that in the circumstances the court a quo cannot be faulted for not finding in favour of the appellant on the premise of s 43. It may also be noted that even before this Court the relief sought makes no reference to a declaration in terms of s 43(1) at all. Clearly this ground has no support and cannot stand.

The next ground to consider is ground 4. In that ground the appellant stated that:

The learned judge in the court a quo erred in law in declining to afford an order to set up facilities that enable citizens to assert and enjoy the constitutional right to access identity and travel documents.

In motivating the appeal counsel did not address this ground at all. Further, the relief sought does not speak to this ground of appeal.

It is apparent to me that grounds 1 and 4 are simply a cry in the wilderness without any relief sought to address the alleged error or misdirection.

Ground number 5 states that:

The learned judge in the court a quo erred in dismissing the application in respect of the fifth appellant.

This ground is invalid as it does not allege any misdirection but simply expresses dissatisfaction with the decision. It is also too general by not addressing any specific aspect of the error or misdirection committed by the court a quo. A ground of appeal must specify the finding of fact or ruling of law being appealed against.

S v McNab 1986(2) ZLR 280 (S) and S v Nyamukapa HH60/12.

The only grounds that were sufficiently motivated to warrant serious consideration are grounds 2 and 3.

The key issue from the submissions made is whether the court a quo erred and misdirected itself in finding that the appellant had failed to establish that either of his parents was ordinarily resident in Zimbabwe at the time of his birth on 21st March 1979 in Poole, UK.

The question of whether either of the appellant’s parents was ordinarily resident in Zimbabwe at the time of his birth is a question of fact. The court a quo’s finding in this regard was that the appellant had failed to prove this fact. In order to overturn a finding of fact the appellant must show that the finding of the court a quo was contrary to the evidence adduced or was so outrageous in its defiance of logic that no sensible person applying his/her mind would have come to it.

In Nyahondo v Hokonya & Others 1997 (2) ZLR 475(S) this Court held that-

“An appellate court will not interfere with the decision of a trial court based purely on findings of fact unless it is satisfied that having regard to the evidence placed before the trial court the finding complained of is so outrageous in their defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision.”

Also- Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC)

In casu, the appellant having based his application on s 36(2)(a) was expected to establish the requirements of that section. These are that at the time he was born either of his parents was- i) a Zimbabwean citizen; and ii) ordinarily resident in Zimbabwe.

In this bid the appellant tendered his father’s birth certificate to prove the father’s citizenship. On the second aspect of being ordinarily resident in Zimbabwe he unfortunately did not tender anything. In his founding affidavit he made reference to having attached his maternal grandfather’s Residence permit showing that the grand father came to Zimbabwe in  copy of his mother’s old passport showing her Zimbabwe residence permit and her movements into and out of Zimbabwe, a reference letter from City of Salisbury dated 30 November 1981 showing that his mother was employed by the City Council in the period 1 November 1979 to 30 November 1981 and a divorce order dated 19 August 1981.

A perusal of the record of proceedings confirms as was aptly noted by the court a quo, that the appellant did not actually attach his maternal grandfather’s Residence permit and the old Zimbabwe passport for his mother on which he sought to rely for the assertion that at the time of his birth his parents were ordinarily resident in Zimbabwe. Besides the father’s birth certificate the other documents attached – mother’s employment letter and the divorce order - both related to events well after he had been born in UK. They do not relate to the time of his birth in March 1979.

In his submissions Mr Mugabe conceded that the court a quo’s observation on the missing documents was correct. He, in fact, conceded that other than his father’s birth certificate, the mother’s reference letter from City of Salisbury and the parents’ divorce order, there was nothing else to prove ordinary residence. It was in that vein that he sought to anchor his argument on the fact that the appellant’s father was born in Zimbabwe. He thus argued that a citizen by birth is always ordinarily resident in the country of birth. On motivating this argument counsel made reference to the case of The Registrar General v Tsvangirai SC12/02.

It is pertinent to recognise that whether one is ordinarily resident at a particular place is a question of fact.

In Braimah v Braimah 1996 (1) ZLR 571 (H) at 574D F SMITH J cited with approval the conclusion by GUBBAY  J (as he then was) in Kennedy v Kennedy 1978 RLR58 (G) that a person may be residing in one country but be ordinarily resident in another.

At p 575B the judge opined that:

“It seems to me that in para (C) the qualification adverb ‘ordinarily’ was intended to indicate that the residence required, though it need not necessarily be continuous and may be broken by a temporary absence, has to be more than casual or intermittent. It must be the country where, in the settled routine of life, the de cujus regularly, normally or customarily lives. In Cohen v Commissioner for Inland Revenue 1946 AD 174 at 185, SCHREINER JA said:

‘But his ordinary residence would be the country to which he would naturally and as a matter of course return from his wanderings; as contrasted with other lands it might be called his usual or principal residence and it would be described more aptly than other countries as his real home.”

In Chidoda v Mhangaki 1996 (2) ZLR 111 (S) at 113H- 114A this Court stated, inter alia, that:

“To be ordinarily resident in a place there must be some degree of continuity of abode apart from incidental or temporary absence. To be ordinarily resident in a place is a matter of fact to be deduced from all the surrounding circumstances.”

In casu, the circumstances the appellant sought to use in establishing ordinary residence of his parents included documents he failed to attach or produce before the court a quo. Those he tendered were insufficient to show that his parents or either of them was ordinarily resident in Zimbabwe at the time of his birth. The father’s birth certificate of 1956 could only serve to confirm the father’s citizenship. It does not on its own prove that as of March 1979 the father was ordinarily resident in Zimbabwe.  The argument that a citizen by birth is ordinarily resident in his country of birth misses the point that one has a choice of place of abode. If the legislature intended that one’s place of birth is invariably their place of ordinary residence it ought to have clearly stated so by excluding citizens by birth from the requirement of being ordinarily resident. The other documents being reference letter from the City of Harare in respect of his mother and the divorce order were both obtained well after his birth. The reference letter was for the period November 1979 to 1981 whilst the divorce order was for August 1981. Clearly these documents could not establish that as of March 1979 appellant’s father was ordinarily resident in Zimbabwe.

It is thus my view that the court a quo cannot be faulted for concluding that the appellant had failed to establish that either of his parent was ordinarily resident in Zimbabwe at the time of his birth.

On the of issue of costs,  whilst the respondent asked for costs on the premise that fifth appellant never approached their offices but came straight to court, I am of the view that that is not a good cause for costs. The approach was important in order for the issue of his citizenship by birth to be clarified.   In the circumstances each party shall bear their own costs of suit.

DISPOSITION

It is hereby ordered that the appeal by fifth appellant be and is hereby dismissed with each party bearing their own costs.

GUVAVA JA:			I agree

MAKONI JA:			I agree

TRM Legal Counsel, appellant’s legal practitioners.

Thondlanga & Associates, 1st respondent’s legal practitioners.