Pauline Mutsa Makoni v Julius Tawona Makoni

### Preamble
Judgment No. SC 57/25
1
Civil Appeal No. SC 236/23
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[REPORTABLE   (57)

PAULINE     MUTSA     MAKONI

v

JULIUS     TAWONA     MAKONI

SUPREME COURT OF ZIMBABWE

UCHENA JA, CHITAKUNYE JA & KUDYA JA

HARARE 23 & 24 OCTOBER 2023

T. Mpofu and Ms K. Matsika, for the appellant

W. Ncube and L. Uriri, for the respondent

KUDYA JA:

[1]	The appellant wife appeals against the whole judgment of the High Court (the court a quo) dated 29 March 2023.  The court a quo, dismissed the appellant’s application in case No. HC 3500/16 for the registration and enforcement of the divorce order and consequential relief granted by the High Court of Justice, Family Division, in England (the English Court) on 18 December 2014.  The court a quo conversely granted the earlier application filed by the respondent husband in Case No. HC 50/15, in which he sought a declaration that only a part of the English Court’s judgment was against the public policy of Zimbabwe.  It declared the distribution of the parties’ matrimonial home in Harare by the English Court to the wife to be against the public policy of Zimbabwe for purposes of registration and enforcement.

[2]	 The two applications were consolidated in the court a quo on 13 October 2016.  The Harare matrimonial home is No. 5 Rietfontein Close in Chisipite.  The English Court, in consonance with the relevant provisions of the English Matrimonial Causes Act, 1973 and the Matrimonial and Family Proceedings Act 1984, issued a decree nisi on 9 December 2013 and a financial order on 20 December 2013. The court, confirmed the decree nisi and the financial order in the decree absolute on 18 December 2014.

[3]   At the close of the appeal hearing this Court issued the following order:

“1.  The appeal is allowed with costs.

2.   The judgment of the court a quo is set aside and substituted with the following:

“(i).  The application in Case No. HC 50/15 be and is hereby dismissed.

(ii) 	The application in Case No.   HC 3500/16 be and is hereby granted.

The final divorce order between Pauline Mutsa Makoni and Julius Tawona Makoni entered at the Principal Registry of the Family Division of the High Court of Justice England on 18 December 2014 confirming the decree nisi together with the judgment of Justice Richard Robinson and the financial order of 9 December 2013 dated 20 December 2013 be and is hereby recognized for purposes of enforcement.

Julius Tawona Makoni shall sign all relevant documents to effect transfer of properties awarded to Pauline Mutsa Makoni in respect of No. 5 Rietfontein Close Chisipite Harare being the Remainder of Subdivision A Lot 6 of Rietfontein situated in the District of Salisbury measuring 1.2129 hectares and Stand 159 Chishawasha Hills Township Harare, within 7 days of this order failing which the Sheriff is authorized to sign such documents and effect such transfers.

Costs of the transfers shall be borne by Julius Tawona Makoni.

(iii)	Julius Tawona Makoni shall bear the costs of suit in respect of both applications.”

[4]	The Court indicated that the reasons for the order would follow in due course. These are they.

BACKGROUND FACTS

[5]	In this judgment, it is convenient to refer to the appellant as the wife and the respondent as the husband.

[6]	The facts are generally common cause.

[7]	The parties married under Christian rites in Harare on 31 December 1983.  The marriage was blessed with two daughters, born 23 August 1985 and 19 September 1987.  In 1996, the husband fathered a son out of wedlock.

[8]	The husband is a career banker.  He served the World Bank in Washington DC, USA, between1986 and 1993.  In 1994 he worked at the Bankers Trust in London, England.  He co-founded the National Merchant Bank Ltd (NMB) in Harare with two colleagues in the same year.  He was the managing director and chief executive officer of the bank and its holding company NMBZ Ltd between 1995 and 2004.  He formed the London Trust Bank (LTB) in London with his two colleagues in 2000.  He also became a director and shareholder of Greenjade Finance Ltd, a subsidiary of LTB in 2002.

[9]	In 2004 he went into self-exile in London. He was involved with various banking institutions in London until his appointment as the Anglican Bishop of Manicaland on 22 November 2009.  He purchased various high-end market properties in London between 2002 and 2009.  Chief amongst them were, 172 Campden Hill Road W8, 17 Oak Lodge, Chantry Square W8 and the London matrimonial home Sou Sou West, Hampton Road, East Molesey KT 8 9BP (SSW).

[10]	In October 2010, the parties separated. On 20 December 2010, the wife petitioned the English Court for a decree of divorce and consequential relief in terms of the Matrimonial Causes Act, 1973 and the Matrimonial and Family Proceedings Act 1984 and the Rules of Court made under these statutes.  The parties were both represented by a team of highly experienced specialist solicitors and barristers throughout the entire proceedings.  The proceedings were governed by English law.

[11]	On 29 June 2011 the wife lodged financial remedy proceedings for consequential relief.

[12]	A decree nisi, which is a provisional divorce order, was granted on 9 December 2013.  A dissatisfied party has the opportunity of impugning it before it becomes a decree absolute, which is final and binding.  The decree absolute, dissolving the marriage, was issued on 18 December 2014. The appropriate excerpt reads:

“Referring to the decree made in this cause on the 11th March 2013, whereby it was decreed that the marriage solemnized on 31st December 1983, at the Cathedral of ST Mary and All Saints, Harare, Zimbabwe between Pauline Mutsa Makoni the Petitioner and Julius Tawona Makoni the Respondent be dissolved unless sufficient cause be shown to the court within six weeks from the making hereof why the said decree should not be made absolute, and no such cause having been shown, it is hereby certified that the said decree was on 18 December 2014, made final and absolute and that the said marriage was thereby dissolved.” (Underlining for emphasis)

[13]   At all material times, the husband did not take issue with the jurisdiction of the English Court over him.  He duly participated in all the relevant proceedings including the pre-trial hearings before the district judges who impressed upon him the desirability and importance of making full and frank disclosure of the matrimonial estate, which culminated in the decree nisi on 9 December 2013 and decree absolute on18 December 2014.

THE JUDGMENT OF THE ENGLISH COURT

[14]	The findings of the English Court and the reasons thereof are contained in its 78-paragraph judgment.  The financial order was in the main premised on the provisions of s 25 of the Matrimonial Causes Act, 1973 and on case law.  It cited the cases of Baker v Baker [1995] 2 FLT 859 (CA), Al Katib v Masry [2002] 1 FLR1053 and J v J (Disclosure: Offshore Corporations) [2004] 1 FLR 1042, which hold that skullduggery will reasonably be inferred against a non-cooperating litigant.  The court further adopted the principle set out in Golubovich v Golubovich [2011] 2 FLR 1193 at para 25 that, in a matrimonial cause the co-operating party would not be prejudiced by the antics or games of the non-co-operating litigant, which antics would justify even making an order based on speculation.  The court however applied the eight criteria laid out in the case of NG v SG (Appeal-Non-Disclosure] [2012] 1 FLR 1211 at [16], where Mastyn J stated that:

“Pulling the threads together it seems to me that where the court is satisfied that the disclosure given by one party has been materially deficient, then:

The court is duty bound to consider by the process of drawing adverse inferences whether the funds have been hidden.

But such inference must be properly drawn and reasonable. It will be wrong to draw inferences that a party has assets which, on an assessment of evidence, the court is satisfied he has not got.

If the court concludes that the funds have been hidden then it should attempt a realistic and reasonable quantification of those funds, even in the broadest terms.

In making its judgment as to quantification the court will first look to direct evidence such as documentation and observations made by the other party.

The court will look to the scale of business activities and life style.

Vague evidence of reputation or the opinions or beliefs of third parties is inadmissible in the exercise.

The Al Katib v Masry technique of concluding that the non-discloser must have assets of at least twice what the claimant is seeking should not be used as the sole matrix of quantification.

The court must be astute that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better than if the court were drawn into making an order that is unfair to the claimant.”

[15]	The court awarded the wife the SSW, the London matrimonial home, 5 Rietfontein Close Chisipite Harare (the Harare matrimonial home) and the Shawasha Hills vacant stand in Harare.  She was also awarded all the chattels in SSW, save for the husband’s personal belongings.  The husband was awarded the Omega Cottages in Nyanga, 168 875 580 NMBZ shares held by Cornerstone Trust and 6 447 904 NMBZ shares held in his name, all the chattels in the Harare home, except for the personal belongings of the wife, 172 Campden Hill Road Property in London; 17 Oak Lodge in London, a Northwold or Northfields apartment in central Harare, a Grandi Lodge apartment and an entity called Nyenyedzi in Harare, the  amounts in his Credit Suisse Zurich account,  the Barclays Bank LTB JTM (No.2) Fund offshore accounts in the British Virgin Islands and the Barclays Jersey account, which held “hundreds of thousands of pounds”.

[16]	Irked by the award of the Harare matrimonial property to the wife, he sought leave to appeal before the English Court.  The leave to appeal was granted subject to the following conditions.  Firstly, that he paid £167 850 to the wife’s solicitors within 14 days from the date of the order.  Secondly, that he signed transfer documents and transferred the London matrimonial home and Shawasha land within 14 days of the order.  Thirdly, that he:

“…furnish the wife’s solicitors with all necessary transfer documents fully executed, being signed by him but not dated, in respect of the property known as 5 Rietfontein Close, Harare, Zimbabwe upon the basis that these are to be held by the Wife’s solicitors unused until the conclusion of the husband’s appeal or further order.”

[17]	The husband’s appeal was still born for non-compliance with the conditions specified in the order granting him leave to appeal.

[18]	In the interim period between the decree nisi and the decree absolute, the husband issued divorce summons out of the High Court of Zimbabwe in case No. HC 10 615/14.  He however, withdrew the action soon after filing case No. HC 50/15.

CASE NO. HC 50/15

[19]	On 6 January 2015, the husband preempted the recognition, registration and enforcement of the decree absolute by filing Case No. HC 50 /15 in the court a quo.   He sought a declaratory order against the enforceability of a part of the decree absolute.  He averred in para 4 of his founding affidavit that:

“4.	In the present proceedings I seek an order that the order granted by the High Court of Justice of England, Family Division dated 9 December 2013 and confirmed by the decree absolute on 18 December 2014 be declared not be enforceable in Zimbabwe. The order sought only relates to the proprietary consequences of the orders granted by the 	High Court of Justice of England and not other matters. The declaratory order is sought in terms of s 14 of the High Court Act [Chapter 7:06]. The full terms of the order are set out on the draft order attached hereto.” (Underlining for emphasis)

[20]	The draft order reads:

“IT IS ORDERED THAT:

The distribution of the matrimonial property of the parties by the High Court of Justice of England in its decree absolute dated 18 December 2014 as read with the decree nisi dated 9 December 2013, to the extent that it awards the property known as 5 Reitfontein Close, Chisipite, Harare to the respondent is hereby declared to be against the public policy and law of Zimbabwe and is accordingly not registrable for purposes of enforcement in Zimbabwe.

The respondent shall pay the costs of this application.”

[21]	He averred that he was rendered homeless by the award of all the known matrimonial immovable assets to his former wife.  He impugned the basis upon which the properties were all awarded to her.  He asserted that he neither bettered his position nor falsified his assets by material non-disclosure.  His view was that the impugned portion of the award constituted an unconscionable and palpable injustice, and a patent and obvious inequity, which violated the public policy of Zimbabwe.  He further contended that the award was made without “considering all the relevant circumstances.”  He premised his averments on s 6 (2) (g) of the Civil Matters (Mutual Assistance) Act [Chapter 8:02], s 7 of the Matrimonial Causes Act [Chapter 5:13] and s 74 of the Constitution.

[22]	The wife opposed the application for a declarator on 20 January 2015.  She asserted that the application constituted a disguised appeal against the decree absolute.  She averred that the husband was being inconsistent in his appreciation of local public policy and law, by averring in one breath that it could be partially violated by the distribution of the Harare matrimonial property to her and, in the other, remain intact in respect of the distribution of the other properties.   She further stated that, soon after the conclusion of the divorce proceedings, she left her employment in England and relocated to Zimbabwe in January 2015, where she found employment at Arundel School in Harare.   She prayed for the dismissal of his application.

[23]	In his answering affidavit, the husband pinned the colours of his declarator on the mast of s 7 of the Matrimonial Causes Act.  He maintained that rendering him homeless for spurious reasons offended the public policy of Zimbabwe.

CASE NO. 3500/15

[24]	The wife filed an application for the recognition, registration and enforcement of the English judgment in Case No. HC 3500/16 on 4 April 2016.  It was opposed on 21 April 2016.

[25]	 It is common cause that it was premised on the common law and not on the provisions of s 5 of the Civil Matters (Mutual Assistance) Act [Chapter 8:02]. The statutory provisions were inapplicable and could not be invoked because Great Britain was not a designated country. See Gramara (Pvt) Ltd & Anor v Government of Zimbabwe & Ors 2010 (1) ZLR 59(H) at p 67C-D.

[26]	The wife averred in her founding affidavit that the foreign court was a superior court, which had jurisdiction to entertain the divorce matter. She further averred that its judgment was final and conclusive and was not contrary to the public policy of Zimbabwe.

[27]	The husband predicated his opposition on three factors.  The first was that the application was improperly before the court as it was brought in the face of his pending application in case HC 50/15.  The second was that the judgment sought to be recognized and enforced was not a final judgment.  This was because his appeal against that judgment was pending in England.  The third was that the judgment was in any event against the public policy of Zimbabwe. This was because it left him homeless by awarding all his known immovable properties in Zimbabwe and England to the wife.  He further averred that such an award was unconscionable, repugnant to all notions of civilized justice and violated the positive provisions of s 7 of the Matrimonial Causes Act.

[28]	Thereafter, on 14 December 2016, the appellant, by consent, filed a supplementary affidavit which incorporated the documents produced in Case No. HC 10 028/15 between NMB Bank Ltd v The Trustees for the Time Being of Cornerstone Trust, Julius Tawona Makoni and The Trustees of the Time Being of Ryvonne Trust, which had been filed on 20 October 2015.  The case came to her knowledge after she filed her application for recognition and enforcement.

[29]	The documents disclosed the husband’s overarching role in the acquisition and payment of an immovable property called Innsfree of Millfield of Highlands in the district of Umtali measuring 3213 ha for US$90 000 from a deceased estate on 19 October 2009. There is a mortgage bond against the Harare matrimonial home in favour of NMB, which he registered on 19 July 2013.  There is yet another document in which he secured a revolving credit facility with NMB with a parcel of 16 875 579 shares held by the Cornerstone Trust in NMB. He also executed an unlimited guarantee and power of attorney for US$200 000 over a Northfield property.  There is a host of emails between 2008 and 2013 between him and an executive director at NMB in which he funded his personal needs from a credit facility secured by these properties and his 6 447 904 shares in NMB.  The emails also disclosed his intimate connections with Northfield, Nyenyedzi and Grandi Lodges.  Another e-mail, dated 23 May 2012, from the NMB executive director to the husband indicated that “one of the Shawasha properties” had received a purchase offer of US$85 000. Other e-mails also showed that he paid for a Lexus motor vehicle for in excess of ZAR1.3 million between July and December 2013.

[30]	The parties’ two daughters, who are the purported beneficiaries of the Cornerstone Trust, filed supporting affidavits on 5 July 2016 in respect of the second application.  They attached an e-mail from the respondent posted to them in June 2014 in which he refused to disclose the operations of the Trust and intimated that, although they were beneficiaries, it could be dissolved in the discretion of the Trustees. Both Trustees, however, informed them that they only signed the Trust Deed but never managed the Trust.

[31]	 The husband did not file any opposition to the supplementary affidavit.

CONTENTIONS BEFORE THE COURT A QUO

[32]	In the court a quo, the parties filed three sets of heads of argument, respectively.  The original heads of argument filed by the husband on 30 April 2015 concerned HC 50/15.  The wife filed her heads of argument in rebuttal on 6 July 2015.  Then on 11 June 2017, the wife filed heads of argument in respect of Case No. 2600/16.  To wit, the husband rebutted with his own heads of argument on 11 April 2020.  The wife then filed supplementary heads of argument on 16 March 2021, which were responded to by the husband on 10 May 2021.

[33]	At the hearing of the application, the court a quo accorded to the wife the duty to begin against her counsel’s spirited protestations.  The written and oral heads of arguments of the parties will therefore be related to in this judgment in the manner in which the applications were argued.

THE WIFE’S SUBMISSIONS IN THE COURT A QUO

[34]	Mr Mpofu, counsel for the wife, made the following contentions in the court a quo.  There was no law that allowed the husband to bring an application as he did in case No. HC 50/15. The position contemplated by our law is that he should have waited to oppose if he was so minded an application for recognition and enforcement.  The court did not have the power to issue a declarator of invalidity against a judgment of a foreign court.  The application was misconceived and ought therefore to be dismissed with costs on a legal practitioner and client scale.

[35]	On the merits, Mr Mpofu argued that, just as any court has jurisdiction over persons and property within its territorial limits, the English Court had jurisdiction to determine the rights of the parties in the distribution of the matrimonial property.  He premised his contention on the local case of Steinberg v Cosmopolitan National Bank of Chicago 1974 (4) SA564 (RA) at 575F-H.  He also argued that the foreign court had acted fairly and considered all the circumstances and that its approach was consistent with the provisions of s 7 (2) and (4) of the Matrimonial Causes Act.  He submitted that the relevant circumstances included the husband’s material non-disclosures and lies.

[36]	Counsel further argued that as the husband was the dominus litis, he bore the onus to establish that the financial remedy judgment was contrary to public policy.  He relied on the two-stage approach enunciated in the case of Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 (1) ZLR 337 (S) at 343G-344E for the contentions that, firstly, the husband failed to disclose his legal right or even the legal obligation that the wife had towards him, which he sought to protect.  He therefore did not have a direct and substantial interest to impugn the foreign judgment.  Secondly, even if he had such an interest, this was a proper case for the court to not exercise its wide discretion in his favour.  He premised his submission on the fact that the husband had remarried and moved on with his life.  Further, that there was a positive acceptance by the parties that they were divorced.  He also pointed to the incongruity of the order sought by the husband.  He argued that its indisputable effect was that the husband accepted the validity of the divorce and its consequential financial remedy order.  He therefore contended that it was inconceivable that the appellant could in one and the same breath contend and without contradiction that a part of the order infringed the public policy of Zimbabwe while the remaining portions did not do so.

[37]	Regarding the wife’s application for registration, case No. HC 3500/16, he made the following submissions. The authority of Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd 2018 (1) ZLR 449 (S) at para 25 enunciates the impropriety of a litigant to argue its claim or defence outside the parameters circumscribed by the pleadings.  By reference to paras 4 and 5 in the husband’s founding affidavit in case HC No. 50/15 and paras 7 of the wife’s founding affidavit and para 10 of his opposing affidavit in case No. HC 3500/16, he argued that the husband conceded that the foreign court had jurisdiction to determine the international jurisdiction or competence under the private international law of Zimbabwe to entertain the divorce action.  He further contended by further reference to the cases of Moyo v Zvoma SC 28/10 at para [3] and Muchini v Adams 2013 (1) ZLR 67 (S) at 70A that the husband’s defence stood or fell on his pleaded case and he could not therefore raise the issue of jurisdiction for the first time in his heads of argument.

[38]	Mr Mpofu also submitted that, as the husband’s appeal in the foreign court had been permanently stayed and abandoned, the decree absolute constituted a final, conclusive and binding judgment of a superior court of judicature.  He contended that the wife had therefore established the second requisite for the recognition and registration of the English Court’s judgment.

[39]	In respect of public policy, he contended that the judgment did not violate the public policy of Zimbabwe.  He argued that as a court that is seized with such an application does not peer into the merits of the order, the attempts by the husband to impugn the findings of the court were utterly misconceived.  He contended that reference to the judgment demonstrated that the foreign court had considered all the relevant circumstances of the divorce action before reaching its final decision.  It had deprived the husband of the known properties because by consciously and deliberately hiding his assets and funds that the wife adumbrated in her evidence, he had lied to that court.   The lies, so he argued by reference to Moroney v Moroney SC 24/13 at p 6-7 and Beckford v Beckford 2009 (1) ZLR 271 (S), Wimbledon Lodge (Pty) Ltd v Gore NO & Ors 2003 (5) SA 315 (SCA) 321F-I: Matsika & Anor v Chingwena & Ors SC-144-21, would have constituted a strong reason for a Zimbabwean court to act in the same way.  He also argued that the husband failed to demonstrate that, the application of English law in dealing with the proprietary regime of the marriage on divorce violated any applicable Zimbabwean laws.

[40]	Counsel therefore sought the dismissal of the husband’s application and the grant of the wife’s application with costs on the higher scale.

THE HUSBAND’S SUBMISSIONS A QUO

[41]	The co-counsel for the husband, Mr Ncube and Mr Uriri adopted the original heads of argument filed by the husband in respect of his application and the supplementary and additional supplementary heads of argument.  Mr Ncube argued on the aspect and impact of the domiciliary law on the jurisdiction of the foreign court seen from the prism of Zimbabwe’s private international law. Mr Uriri argued on the foreign court’s purported failure to apply the domiciliary law of the domiciliary court at the time of marriage in the distribution of the matrimonial estate.  They appeared to have abandoned the issue on whether the decree absolute was a final and conclusive judgment.

[42]	In the original heads of argument settled on 30 April 2015, the husband advanced the following argument. The foreign court violated the public policy of Zimbabwe by failing to apply the principles of equity and fairness or consider all the circumstances of the case, which are prescribed in s 7 of the Matrimonial Causes Act, supra, and underwritten by ss 26 and 74 of the Constitution.  It had also failed to make a broad realistic and reasonable quantification of his purported undisclosed assets nor attempt to premise its award on any direct evidence, documents or the wife’s observations in making its award.  This violated the foreign court’s third (iii) and fourth (iv) guidelines set out in the case of NG v SG, supra.

[43]	The supplementary heads of argument and the more detailed additional supplementary heads of argument formed the basis of co-counsel’s submissions in the court a quo.  Mr Ncube submitted that, the question of jurisdiction, being a point of law could be raised any how even in the heads of argument. He further submitted that the finding in the financial remedy judgment that the husband was a Zimbabwean conclusively established that he was domiciled in Zimbabwe.  He contended that the onus was on the wife to establish all the requisites for a recognition and enforcement order.  He further contended that while the pure domiciliary law principle had been diluted by statute in both England and Zimbabwe, the wife failed to plead any statutory based extension of the English Court’s jurisdiction.  He further contended contrary to the earlier argument by Mr Mpofu that the defendant could not in a matrimonial cause confer jurisdiction on the English Court by submission.  Mr Ncube relied on the following cases for his submissions; De Jager v De Jager 1998 (2) ZLR 419 (H), Howard v Howard 1966 RLR 182 (G); 1966 (2) SA 717 (R); Frankel’s Estate v The Master 1950 (1) SA 220 (A) 244, Sperling v Sperling 1975 (3) SA 707 (A) at 716F ,  Smith v Smith 1970 (1) SA 146 (R) at 150B-D and Boswinkel v Boswinkel 1995 (2) ZLR 55 (H) at 60B.

[44]	Mr Uriri submitted that the judgment of the English Court could not be enforced as the court did not apply the law of the husband’s domicile (lex domicilli matrimonii) at the time of marriage when it distributed the matrimonial estate. He confidently contended that Zimbabwe was the lex domicilli matrimonii of the husband at the time of marriage.  He further argued that the judgment breached two Zimbabwean statutes.  The first was the Married Persons Property Act [Chapter 5:12], which prescribes in s 2 that all marriages solemnized in Zimbabwe after 1 January 1929 are out of community of property unless the parties sign a pre-nuptial agreement before their marriage is solemnized.  The second is the Matrimonial Causes Act’s section 7.  He further contended that even though the provisions of s 25 of the English Matrimonial Causes Act, 1973 are coterminous to our s 7 provisions, the application of English law negated the enforcement of the judgment.  He thus submitted that, being in breach of our statutes and law, the judgment was in breach of the public policy of Zimbabwe and could not therefore be enforced.

[45]	Mr Uriri further contended on the basis of para 6.2 of his written heads of argument that:

“To deprive a man of virtually all his known immovable properties and award them to his wife on the basis that he has not made full disclosure and that there must be some other unknown properties elsewhere which render such an apportionment equitable and fair is a principle of law which is not only alien and unknown to Zimbabwean law but which is inherently inconsistent with Zimbabwean law and public policy.”

[46]	Counsel therefore sought the dismissal of the wife’s application for recognition and enforcement.

[47]	In reply Mr Mpofu contended that jurisdiction and the domicile upon which it stands is premised on a conspectus of facts.   He therefore argued on the basis of De Jager v De Jager, supra, that the husband as the disputant on the question of jurisdiction had the duty to establish his domicile.  He further argued that as foreign law must be proved, the application of English law in circumstances where the husband did not prove that Zimbabwean law was different, did not preclude the recognition and enforcement of the order.

THE JUDGMENT OF THE COURT A QUO

[48]	The court a quo held that it was not exercising its powers of appeal or review in considering the applications before it. It found that the provisions of s 12 (1) (a) of the Matrimonial Causes Act did not apply to an application for the recognition and enforcement of the financial remedy order.  This was because the section only applies where:

(i)  the husband is not domiciled in the country where the foreign court is situated;

(ii) which foreign court grants the valid decree or order of divorce, judicial separation or nullity of marriage; and

(iii) the grantor country has grounds for extending the jurisdiction of its courts that are similar or substantially similar to the grounds in s 3 of our Matrimonial Causes Act.

[49]	I reproduce the finding of the court a quo on the question of jurisdiction at p 6 of its judgment:

“The rider as provided above is that the recognition of the foreign orders does not extend to orders dealing with proprietary rights as correctly pointed out by Mr Mpofu.

The other consideration is that the husband was not domiciled in that country.

The question then arises, was the husband not domiciled in the United Kingdom? The question has to be in the affirmative for the decree to be recognized. It is the wife who seeks an order recognizing the decree of divorce who had the onus to prove that the husband was not domiciled in the United Kingdom.  From my reading of the whole documentation on file, the wife has not alleged nor proven that the husband was not domiciled in the United Kingdom.  To the contrary, she alleges in her founding affidavit in para 7(a) at p 106 of the record that the parties submitted to the jurisdiction of the court of England “without contest”.

I revert to the principles as enunciated in Gramara (Pvt) Ltd & Anor v Government of Zimbabwe (supra).  I find that jurisdiction of the English Court was not proven.  It could be proven by recourse to s 12 of the Matrimonial Causes Act [Chapter 5:13].  However, as pointed out earlier it has not been proven that the husband was not domiciled in England.”

[50]	The court a quo further held that the failure to award the Harare matrimonial home to the husband was contrary to public policy because he was left without a place to reside in Zimbabwe or even in England if he was inclined to reside there in the future. It further found that the factors enumerated in s 7 (4) (a) to (g) were not adverted to by the English Court.  The failure to apply all the relevant circumstances as mandated by our law and rendering the husband homeless thus constituted a violation of the public policy of Zimbabwe.

[51]	It therefore granted the order sought by the husband with costs and dismissed the wife’s application for registration and enforcement with costs.

[52]	Irked by the decision of the court a quo, the wife appealed to this court on the following seven grounds.

THE GROUNDS OF APPEAL

The court a quo erred in holding that the question of the jurisdiction of the English Court to grant a decree of divorce as well as consequential proprietary relief arose at all on the pleadings and more so on the relief sought by both parties before that court.

Having found at any rate that the respondent was domiciled in the United Kingdom at the time of the proceedings instituted in England and taking into account that the question of jurisdiction had not been raised by the parties in the divorce proceedings, the court a quo erred in holding that the English Court had no jurisdiction to deal with the matter.

The court a quo misdirected itself and erred in law in making a proprietary determination in circumstances where according to its judgment, no divorce decree was granted and also erred in keeping the parties married contrary to their will and where no such relief had been sought by either of them.

The court in England having made an adverse award against the respondent on the basis that he had withheld from the court the truth and had in many other respects lied, the court a quo erred in coming to the conclusion that such a decision of the English Court was contrary to public policy.

The court a quo failed to engage an issue placed before it by the appellant, namely that a litigant who approaches the court on a false basis forfeits entitlement to relief is part and parcel of our law.

The court a quo erred in holding as a matter of law that a principle exists in our law providing that one of the parties to a divorce matter must invariably be awarded an immovable property in the distribution of assets.

Respondent not having taken issue with the award of the Chishawasha property, the court a quo erred in dismissing in toto the application for the recognition of the judgment of the English Court.

[53]	The wife seeks the following relief:

That the appeal is allowed with costs.

That the judgment of the court a quo is set aside and in its place is substituted the following:

That the application under case No. 50/15 be and is hereby dismissed.

The final divorce order of the court of England between Pauline Mutsa Makoni and Julius Tawona Makoni entered at the Principal Registry of the Family Division of the High Court of Justice England on the 18th of December 2014 confirming the decree nisi together with the judgment of Justice Richard Robinson and the financial order of 9 December 2013 dated 20 December 2013 be and is hereby recognized for purposes of enforcement.

Julius Tawona Makoni shall sign all relevant documents to effect transfer of properties awarded to Pauline Mutsa Makoni (being No. 5 Rietfontein Close and Stand 159 Chishawasha Hills Township Harare), within 7 days of the order failing which the Sheriff is authorized to sign such documents and effect such transfers.

Costs of the transfers shall be borne by Julius Tawona Makoni.”

THE SUBMISSIONS BEFORE THE COURT

The appellant’s submissions

[54]	Mr Mpofu, for the appellant submitted that, having found that the English Court had jurisdiction to entertain the divorce and financial remedy proceedings, the court a quo could not have found that the public policy of Zimbabwe was violated.  He contended that the question of the jurisdiction of the English Court could not arise in the consolidated proceedings, which were before the court a quo.  This was because in his application a quo the husband neither impugned the jurisdiction nor the whole judgment of the English Court.  By reference, firstly, to paras 3, 4 and 5 of the husband’s founding affidavit and to his answering affidavit and para 1 of his draft order and secondly to para 7 of the wife’s founding affidavit and the husband’s response thereto in para 10 of his opposing affidavit, counsel buttressed his submission that the jurisdiction of the English Court was conceded.  He therefore argued that, the respondent was bound by his pleadings and improperly took a contrary position in his heads of argument and submissions a quo. Counsel also contended on the authority of the Medlog case supra, that the court a quo grossly misdirected itself in adjudicating the question of jurisdiction outside the pleadings.

[55]	Mr Mpofu further submitted that the court a quo misdirected itself by falling for the bait raised as an afterthought by the respondent in respect of the application of s 12 of the Matrimonial Causes Act. This was because parties did not plead the applicability of the extended jurisdictional facts which are contemplated in s 12.  They did not do so because s 12 deals with divorce, judicial separation and nullity of marriage and not the proprietary consequences of marriage.

[56]	On the question of domicile, counsel contended on the authority of De Jager v De Jager at 421B that domicile is a question of fact, which must be pleaded. He therefore argued that as it was never pleaded, it was remiss of the court a quo to relate to it in its judgment.  However, having improperly related to it, the court a quo found that respondent was domiciled in England at the institution of divorce proceedings.  Counsel argued that it could conceivably be found that as the respondent, as a person living indefinitely in exile, could have acquired a domicile of choice in the place he was resident.

[57]	Counsel further argued that one of the unintended consequences of finding that the English Court lacked jurisdiction is that the parties remain married. In the absence of divorce, the division, apportionment and distribution provisions of the Matrimonial Causes Act are therefore not invoked.

[58]	On public policy, counsel submitted that the court a quo erred in finding that the distribution of all the known assets of the matrimonial estate to the appellant was contrary to our law and, for that reason, in breach of the public policy of Zimbabwe.   He argued that our law, like English law, recognizes that material non-disclosure by a spouse is one of the considerations which is taken into account in the apportionment of matrimonial property.  As it turned out the non-disclosure finding was confirmed by the court a quo in HC 10 028/15, which established that the Cornerstone Trust is his special purpose vehicle which inured to his own and not to his two daughters’ benefit.

[59]	Counsel further submitted that the fact that the English Court could have been wrong in its application of the non-disclosure principle did not mean that its judgment was contrary to public policy.

The respondent’s submissions.

[60]	Mr Ncube for the respondent argued on the issue of jurisdiction while his co-counsel Mr Uriri related to the issue of public policy.  Both counsel supported the decision of the court a quo.

[61]	Mr Ncube submitted that the court a quo correctly found that the jurisdiction of the English Court had not been established.  He contended that while the English Court had jurisdiction to deal with property in England, it did not have international jurisdiction or competence for the purposes of recognition and enforcement to deal with the Harare matrimonial home.  Counsel contended that the bald reference to uncontested jurisdiction before the English Court in the appellant’s founding affidavit did not adequately plead jurisdiction.  He further submitted that the appellant’s further reliance on that submission was misplaced as under the rules of private international law the doctrine of submission does not apply to matrimonial matters but to causes sounding in money.  He therefore argued that the appellant failed to discharge the onus on her to establish that the English Court had the international competence as determined by the rules of private international law applicable to Zimbabwe to adjudicate on the distribution of the parties’ matrimonial estate.

[62]	On the question of public policy, Mr Uriri made the following submissions.  For the purposes of recognition and enforcement, the appellant had to plead and prove that the foreign court had jurisdiction.  The court a quo found that the appellant failed to establish jurisdiction.  The result of such a finding is that the English Court’s judgment was contrary to public policy.  This is because under the rules of private international law of Zimbabwe, it is the domiciliary court that has the jurisdiction to determine the divorce matter.  The English decision, based as it was on the unknown assets held in the Cornerstone Trust, was inequitable and unjust as it deprived the respondent of his only residence in Zimbabwe where he lived and gave it to the appellant who lived in London.  The ratio decidendi of the court a quo that it is contrary to the public policy of Zimbabwe to award all known assets to one party was correct.  A court cannot give all the known property to one party, adverse inference or no adverse inference, lie or no lie.

[63] 	In engagements with the Court Mr Ncube submitted that nothing should turn on the respondent’s application a quo. Counsel, however, conceded that the order granted by the court should not have been granted. When the Court further engaged Mr Uriri on his submissions, counsel conceded that it was not the public policy of Zimbabwe to reward a liar. By reference to the Beckford v Beckford case, supra, he argued that it was wrong for the English Court to fail to apportion any residence to the respondent.  He also contended that the mainstay of his argument was that the English Court’s failure to apply the domiciliary law of Zimbabwe at the time of marriage was against the public policy of Zimbabwe.  He argued that it was of no consequence that the English Court applied the principles of equity that are substantially similar to the ones that are applied in Zimbabwe.

The appellant’s reply

[64]	 In reply, Mr Mpofu submitted that the respondent did not properly raise the question of jurisdiction in the court a quo. This was because the respondent did not question the English Court’s jurisdiction over him in his own application and in opposing the appellant’s application.  In that context all that was required of the appellant was simply to plead the jurisdiction of the English Court in the manner she did.  Having done so, the duty to substantively dispute it shifted to the respondent. Instead of disputing jurisdiction thus pleaded, he merely premised his opposition on public policy.

[65]	Mr Mpofu also argued that the foreign court was required to apply its own law unless requested to apply the lex domicilii by the party affected by it.  Even then, such law was assumed to be the same as the law of the foreign court (lex fori) unless proved otherwise.  He argued that the English Court applied equitable principles similar to those applicable in Zimbabwe.  He moved for the success of the appeal with costs.

THE ISSUES

[66]	The two issues that fall for determination are:

1.  Whether the court a quo correctly determined the issue of jurisdiction.

2. Whether the court a quo correctly found that the English Court’s decision was contrary to the public policy of Zimbabwe.

ANALYSIS:

Whether the court a quo correctly determined the issue of jurisdiction;

[67]	It is correct that the Zimbabwean rule of private international law in relation to divorce matters is that the court which has jurisdiction to entertain a divorce and ancillary relief is the court of the country in which the husband is domiciled at the institution of divorce.  It is also common cause that s 12 of the Matrimonial Causes Act [Chapter 5:13] has modified this rule of our common law.   The divorce, judicial separation or nullity of marriage order granted by a foreign court of a jurisdiction in which the husband is not domiciled at the institution of a matrimonial cause is recognized if the country in which that court is situate has provisions that extend its jurisdiction that are similar or substantially similar to the provisions in s 3 of our Matrimonial Causes Act.

[68]	The mainstay of Mr Mpofu’s argument on the question of jurisdiction is that, as it did not arise from the pleadings, the court a quo grossly misdirected itself in relating to it.  He contended that, as it was not based on the pleadings, it could not be raised anyhow, even on the basis that it was a question of law.  On the other hand, Mr Ncube who argued the question of jurisdiction on behalf of the appellant argued that the court a quo correctly related to it. He contended that, as it was a question of law, it could be raised any time and any how.

[69] 	The importance of and the manner in which jurisdiction can be raised were adverted to by this Court in the case of Zimasco v Marikano SC 6/14 at pp10 and11. At p. 10, Garwe JA (as he then was) said:

“It is settled law that a question of law can be raised at any time, even for the first time on appeal, as long as the point is covered in the pleadings and its consideration involves no unfairness to the party against whom it is directed.  See Ahmid v Manufacturing Industries (Pvt) Ltd SC 254/96 at p 17 of the cyclostyled judgment and Muchakata v Nertherburn Mine 1996 (1) ZLR 153 (S), 157A.”

And at p.11 the learned judge of appeal further stated that:

“The rationale for allowing issues of law to be raised at any time is to enable a court to have all the information, even at a very late stage, so that it is enabled to make a proper decision.  The issue raised was a serious one.  If a court has no jurisdiction that would be the end of the matter and any determination made thereafter would be null and void.”

[70]	Mr Mpofu correctly contended that, the respondent did not, in his pleadings in the application for a declarator seek relief on the basis that the English Court did not have jurisdiction to preside over the financial remedy order.  Rather, he approached the court a quo on the limited basis that the English judgment had violated the public policy of Zimbabwe by rendering him homeless.  That is what he specifically did in paras 3, 4 and 5 of his founding affidavit, and in his answering affidavit and in para1 of his draft order.  By pleading in this manner, the respondent was clearly accepting, firstly, that the English Court had jurisdiction over him, secondly, that he was properly divorced and thirdly that, he was happy with the distribution of the matrimonial property other than the Harare matrimonial home.

[71]	The Court agrees with Mr Mpofu’s further contention that the pleadings later filed by the appellant in her application for recognition and enforcement must be viewed in the context of the respondent’s own application. It will be recalled that the respondent resisted the appellant’s application, inter alia, on the ground that his application was pending and that the judgement of the English Court violated the public policy of Zimbabwe.

[72]	It appears to the Court that the manner in which the appellant settled her pleadings in her application was informed, firstly, by the requirements set out in the Gramara case, supra and the way that the respondent pleaded in his application.  This is established by the fact that she only pleaded to the elements of jurisdiction, finality and public policy.

[73]	The Court agrees with Mr Ncube that ordinarily a party is not required to plead the law.  The Court, however, also agrees with Mr Mpofu that in the instant case, the appellant pleaded jurisdiction as a statement of fact and not law.  She was required to plead that the English Court had the international jurisdiction recognized by the rules of private international law of Zimbabwe.  She did so in para 7 of her founding affidavit.  It was to that factual pleading that the applicable rules of practice in this jurisdiction required a response from the respondent.  The respondent did not dispute this factual averment. His response in para 10 was premised on public policy and not jurisdiction.

[74] 	It is trite that what is not denied in affidavits is regarded as accepted.  It is also further trite that a party is not required to prove or disprove a common cause fact. See Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise & Ors 1993 (2) ZLR 121 (S) at 127F and Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd 2012 (2) ZLR 132 (S) at 138H-139B.

[75]	It is settled that a point of law can be raised at any time as long as it is not prejudicial to the party affected by it. In Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors 2006 (1) ZLR 373 (S) at 378E the four factors a court considers are set out.  These are:

“(1) the point is covered by the pleadings;

(2) there would be no unfairness to the other party;

(3) the facts are common cause or well-nigh incontrovertible; and

(4) there is no ground for thinking that other or further evidence would

have been produced that could have affected the point.”

[76]	In his pleadings, the respondent did not cover jurisdiction. Further evidence was required on how the question of jurisdiction was pleaded in the English court, as the respondent was now putting his domicile in issue in the court a quo.  Lastly the acceptance of the point was unfair to the appellant.  Had the court a quo applied its mind to these issues it would not have adverted to the question of jurisdiction.  It was clearly not covered in the respondent’s pleadings. It was therefore a gross misdirection for the court a quo to relate to it.  See Medlog, supra at para [25].

[77]	The Court notes that the finding of the court a quo on the question of jurisdiction and domicile is unclear. In the excerpt in para [49] of this judgment, the court a quo found that the appellant failed to prove that the respondent was not domiciled in England. It repeats this finding four times and even sandwiches it to its further finding that: “I find that jurisdiction of the English Court was not proven”, between these statements. No corrigendum was issued to the judgment. Having found that the wife had established that the husband was domiciled in England at the institution of divorce, the court a quo ought to have found that jurisdiction was established.

[78]	 In these circumstances, the first two grounds of appeal have merit.

Whether the Court a quo correctly found that the English Court’s decision was contrary to the public policy of Zimbabwe.

[79] 	In respect of the public policy issue, it is common cause that the ratio decidendi of the court a quo is that it is contrary to the public policy of Zimbabwe for a foreign court to award all known assets to one party without considering all the relevant facts that are set out in s 7 (4) of our Matrimonial Causes Act.

[80] 	Counsel for the parties correctly articulated the rule of private international law of Zimbabwe in respect of the devolution of a matrimonial estate in a matrimonial cause of a marriage celebrated in Zimbabwe.  It is that the internal law of Zimbabwe governs the proprietary consequences of such a marriage on divorce. This principle is referred to as the immutability principle. See Cheshire: Private International Law 7th ed (1965) at pp 461 and 1068 and Forsyth: Private International Law 5th ed (2012) at p.298.

[81]	Mr Mpofu submitted that the application by the respondent was misconceived.  Indeed, even though Mr Uriri argued in support of the judgment of the court a quo, Mr Ncube conceded that the respondent’s application should never have been made.  All that the respondent needed to do was to bide his time until the appellant lodged a recognition and enforcement application.  The Court makes the observation that the effect of the application and the order granted by the court a quo is that the applicant accepted and the court a quo found that only the award of the Harare matrimonial home was contrary to public policy.  The corollary of this is indubitably that the remaining portions of the order were not contrary to public policy.

[82] 	Be that as it may, Mr Mpofu strongly argued that the fact that the English Court did not refer to Zimbabwean law did not mean that it did not apply Zimbabwean law.  Mr Uriri, on the other hand, submitted that the failure to reference Zimbabwean law showed it was not applied.  Mr Uriri therefore argued that the failure to do so was contrary to our public policy.

[83]	This Court is satisfied that the court a quo grossly misdirected itself in its findings on the purported violation of the public policy of Zimbabwe. The English Court applied the provisions of s 25 of the English Matrimonial Causes Act, 1973. It is conceded in para 4.25 of the respondent’s additional supplementary heads of argument a quo that the provisions of s 25 of the English statute are strikingly similar to the provisions of s 7 (4) of our Matrimonial Causes Act.

[84]	The provisions of s 25 at the time of the divorce provided as follows:

“25 	Matters to which court is to have regard in deciding how to exercise its powers under ss. 23, 24 24A, 24B and 24E].

(1)	It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24, 24A, 24B or 24E above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare of a minor or any child of the family who has not attained the age of eighteen.

(2)	As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24, 24A, 24B or 24E above in relation to a party to the marriage, the court shall in particular have regard to the following matters—

(a)	the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b)	the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)	the standard of living enjoyed by the family before the breakdown of the marriage;

(d)	the age of each party to the marriage and the duration of the marriage;

(e)	any physical or mental disability of either of the parties to the marriage;

(f)	the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g)	the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h)	in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.”

[85] 	Section 7 (4) of the Zimbabwean Matrimonial Causes Act [Chapter 5:31] provides that:

“(4)	In making an order in terms of subsection (1) an appropriate court shall have regard to all the circumstances of the case, including the following—

(a) 	the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

(b) 	the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

(c) 	the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;

(d) 	the age and physical and mental condition of each spouse and child;

(e) 	the direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;

(f) 	the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;

(g) 	the duration of the marriage;

and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relation-ship continued between the spouses.”

[86]	Indeed the similarities between the two provisions are striking.

[87]	A proper reading of the judgment of the English Court shows that it considered everything that is required under s 7.

[88]	The finding that our courts do not consider non-disclosure in the distribution of property in a matrimonial cause is incorrect.  In simple terms material non-disclosure constitutes a lie.  It is a wrong.  Our courts do not reward the perpetrator of a wrong.  The cases of Moroney v Moroney and Beckford v Beckford, supra, demonstrate that material non-disclosure is taken into account in the assessment of all the relevant factors.  In para 78 of the English judgment, after taking into account all relevant factors, the court awarded to the respondent all the other assets he failed to disclose.

[89] The court a quo failed to recognize that the English Court listed all the known properties which constituted the matrimonial estate.  It also provided the values of the known properties. The properties awarded to the appellant were valued at slightly under US$2m.  However, their net values after factoring in the charges incurred by the respondent were much lower. The net value of SSW after deducting the charges incurred by the respondent was £52 754, which at the time of the divorce was equivalent to US$84 406.40.  The Harare matrimonial home was similarly encumbered by the NMB debt and had a net value of £202 639 which was then equivalent to US$324 222,40.  The Shawasha stand was valued at US$80 000. The total net value of the three immovables that were awarded to her was US$ 488 628.

[90]	The English Court found that the appellant was the beneficial owner of the Cornerstone Trust whose shares in NMB were at the time of the divorce valued, in para 63 of the judgment, at US$1 350 060.  That the respondent was the alter ego of Cornerstone Trust was confirmed by this Court in the case of Trustees for the Time Being of Cornerstone Trust & Ors v NMB Bank Ltd SC 97/21 at p 8, which was an appeal against the decision of the court a quo in HC 10 028/15.

[91]	The English Court also found that he owned directly and indirectly the following assets in Zimbabwe.

(a)	Omega Cottages in Nyanga, Troutbeck Supermarket and a nearby garage;

The Kariba boat “Par Excellence”;

A Northwold or Northfields apartment, Grandi Lodges and an entity called Nyenyedzi.

A Buffalo Investments Co bank debit card in his name, an account ending with 0107 and a Xator Limited LTB Mauritius account No. 60232856.

Cornerstone Trust, which, according to NMBZ’s 2012 financial statements, held 168 875 580, constituting 6.01% of the equity of 2 807 107 289 in NMBZ. These shares were valued at US$1 350 046 on the date of judgment. He personally owned 6 447 904 shares in NMBZ. He was the alter ego of the Trust.

A Shawasha Hills stand.

The Harare matrimonial home valued at US$750 000 or £477 038 less the NMB charge of between £274 399 and £327 155. The court recognized that the enforcement of the charge by NMB against the Harare matrimonial home would drastically reduce the value of the property awarded to the wife.

[92]	According to the documents produced on 14 December 2016, at the time of the divorce the respondent purchased a Lexus motor vehicle for R1.3 million was closely associated with the properties listed in para [29] of this judgment.

[93]	In addition, at the time of divorce, the respondent was the owner of 172 Campden Hill and 17 Oake Lodge, Chantry Square W8 in England and two offshore accounts, namely, the Barclays Bank LTB JTM No. 2 Fund and an account at the Credit Suisse Zurich in Switzerland. The English Court also recognized that he was a consummate banker who was at the time of the divorce owed in excess of £1.3 million by LTB.  It also found that the respondent was able in the short space of time he was in self-exile in England to move millions of pounds from his offshore accounts to fund his English investments.

[94]	Clearly, the English Court considered all the relevant circumstances before it awarded the wife the three properties inclusive of the Harare matrimonial home. The benefit that accrued to the appellant was just under US$500 000 while the benefit to the respondent was much higher. Cornerstone shares alone, which inured to his benefit were valued at US$1 350 060 while the offshore accounts were estimated to hold “hundreds of thousands of pounds”. The other immovable and movable properties in and outside Zimbabwe that obviously accrued to him were certainly very valuable.

[95] 	The application of the law of England in the distribution of the award may have been wrong. This could only be corrected by appealing the decision in England and not in seeking a declarator in Zimbabwe. The English law is strikingly similar to our own.  No injustice was therefore occasioned to the respondent by the application of English law by the English Court.  Its application does not make our law on the division, apportionment and distribution of matrimonial assets “spin on its head”.  See Jogi v Bulchimex GmbH Import-Export Chemikalen Und Produckte & Ors SC 47/21 at p 8. The Court is satisfied that the application of English law is not against our public policy. In the circumstances, the court a quo ought to have made a similar finding.

[96] 	The Court is satisfied that the third, fourth, fifth, sixth and seventh grounds of appeal are meritorious.

[97]	In the circumstances, the decision of the court a quo was wrong. It ought to have granted the appellant’s application and conversely dismissed the respondent’s application, with costs.

COSTS

[98]	Costs must follow the result.

DISPOSITION

[99]   It was for the above reasons that we allowed the appeal and granted the order encapsulated in para 3 of this judgment.

UCHENA JA			: 	I agree

CHITAKUNYE JA		: 	I agree

Munangati & Associates, appellant’s legal practitioners.

Thompson Stevensons & Associates, respondent’s legal practitioners.