MUSAKWA
JA:
This is an appeal against the entire judgment of the High Court
delivered on 5 February 2020.
The
court a
quo
held
that eighty-five percent (85%) of Number 16 Hawkshead Drive,
Borrowdale, also known as Lot 1 of Lot 4 of Lot FA Quinnington
situate in the District of Salisbury measuring 1,2770 Morgen held
under Title Deed 3999/96 be awarded to the respondent as her sole and
absolute share with the appellant being awarded the remaining 15 per
cent share.
BACKGROUND
FACTS
The
appellant and the respondent married in terms of the Marriage Act
[Chapter
5:11]
in 1996. Both parties were business partners involved in the property
sector. The appellant was into property development and the
respondent was into real estate management. Both were directors of a
company called Bern-win Development Company.
This
company was liquidated, and the parties lost everything.
They
were advised by their lawyers to separate their business properties
from their family assets by forming trusts.
Consequently,
Mai-Kai Property Development Trust was formed in January 2000 and
Paradza Trust in July 2000. The beneficiaries of both Trusts were
Tsitsi Mutanga, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga
and Rusiya Mutekenya who is the appellant's mother.
It
was the intention of both parties that Paradza Trust be the asset
holding Trust while Mai-Kai Property Development Trust would be the
property selling Trust.
The
proceeds of the business were pooled together and used to buy assets
for the family which were registered under Paradza Trust.
Unfortunately
for the parties, their marital relationship broke down and the
respondent issued summons for divorce in which she cited
irretrievable breakdown of the marriage as the cause for divorce. She
further sought an order for distribution of the assets of the
parties.
PROCEEDINGS
BEFORE THE COURT A
QUO
During
the proceedings in the court a
quo,
the parties agreed on all ancillary issues including custody and
maintenance of their children save for the distribution of one
immovable property which is No.16 Hawkshead Drive, Borrowdale
(hereinafter referred to as the property).
According
to the appellant the property was not an asset of the spouses.
He
claimed that the property belonged to a private company called
Brabourn Investments (Private) Ltd and that the company was wholly
owned by Brabourn Trust of which the respondent was neither a trustee
nor a beneficiary.
The
appellant further claimed that the reason why the property could not
be distributed in terms of section 7 of the Matrimonial Causes Act
was that Paradza Trust had failed to raise the purchase price and
hence the sale was not perfecta.
He
also claimed that it was at that point that Brabourn Trust purchased
the shares in Brabourn Investments (Private) Limited.
He
however failed to produce evidence to the effect that Paradza Trust
had failed to raise the purchase price and that the contract had been
cancelled.
According
to the evidence adduced by the respondent during the trial the
property was acquired through the purchase of shares in Brabourn
Investments (Private) Limited by Paradza Trust. Paradza Trust
purchased 100 per cent paid up shares in Brabourn Investments
(Private) Limited which represented ownership of the property. The
effect of such acquisition was that the property now vested in
Paradza Trust in which the appellant, the respondent, their children
and the appellant's mother were beneficiaries.
The
respondent claimed that the property in dispute was an asset owned by
both parties and as such was distributable in terms of section 7 of
the Matrimonial Causes Act [Chapter
5:13].
The
respondent further testified that Brabourn Trust which was purported
to own Brabourn Investments (Private) Limited was fraudulent.
She
highlighted to the court that the Trust Deed creating Brabourn Trust
was null and void as it did not have the mandatory protocol number,
that the dates in the Deed were inconsistent with the sequence of
events and lastly that the legal practitioner who purported to have
drafted and registered the Trust Deed was still at law school at the
time of such registration and as such was not yet practicing law.
Basing
on the evidence placed before it the court a
quo
held that No.16 Hawkshead Drive Borrowdale was an asset that belonged
to Paradza Trust. It further held that the property was distributable
in terms of section 7 of the Matrimonial Causes Act. It also held
that Brabourn Trust was a stratagem by the appellant to thwart the
respondent's claim to the property.
The
property was then distributed with the respondent being awarded an 85
per cent share in the property while the appellant received the
remaining 15 per cent share.
Aggrieved
by the decision of the court a
quo,
the
appellant noted an appeal to this Court on the following grounds:
1.
The court a
quo
misdirected itself in finding that number 16 Hawkshead Drive,
Borrowdale was a family asset and registered in Paradza Trust that
could be distributed, a finding which is contrary to the evidence
presented.
2.
The court a
quo
misdirected itself in finding that the Brabourn Trust Deed was null
and void.
3.
The court a
quo
erred at law when it concluded that Paradza Trust was the original
purchaser of Brabourn Investments (Private) Limited with 100 per cent
paid up shares being the only one with a claim to number 16 Hawkshead
Drive Borrowdale.
4.
The court a
quo
erred at law when it concluded that the respondent
was entitled to a share of number 16 Hawkshead Drive Borrowdale, not
just as a spouse but as a beneficiary of Paradza Trust when there was
no evidence that Paradza Trust acquired the property.
5.
The court a
quo
misdirected itself in granting an order that number 16 Hawkshead
Drive Borrowdale also known as Lot 1 of Lot 4 FA Quinnington situate
in the District of Salisbury held under title deed number 3999/96
measured 1,2770 Morgen instead of 1,0938 hectares.
SUBMISSIONS
ON APPEAL
The
appellant's counsel argued that the property in dispute did not
belong to the appellant individually, and that it had not been
purchased by and was not owned by Paradza Trust. He submitted that it
did not fall under the ambit of property that was distributable under
section 7 of the Matrimonial Causes Act as it was owned by a third
party which is Brabourn Investments (Private) Limited.
He
further argued that besides the agreement of sale of the 100 per cent
shares in Brabourn Investments (Private) Limited, there is no proof
of transfer to Paradza Trust which further clarifies the position
that the property belonged to Brabourn Trust.
Counsel
for the respondent per
contra
argued
that the property belongs to Paradza Trust.
She
submitted that the parties lived on the premises until the time they
decided to lease it out. She further submitted that to date, the
property belongs to Paradza Trust and all monies derived from that
property go to the beneficiaries of the Trust who at the time of
registration were Rusiya Mutekenya (appellant's mother), their two
children Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga and the
respondent herself.
As
will become apparent shortly, both counsels were asked to address
this Court on the non-joinder of the trustees of Paradza Trust.
Mr
Ranganai
submitted that the trustees of Paradza Trust should have been joined
in the proceedings a
quo.
On the other hand Ms Mtetwa
submitted that the issue of joinder was defeated by the appellant's
claim that the property belonged to Brabourn Trust. That is why the
chairman of the trust was subpoenaed to testify before the court a
quo.
Ms
Mtetwa
also placed reliance on section 7 of the Matrimonial Causes Act which
provides that a court can direct that property of one spouse be
transferred to another spouse.
ANALYSIS
In
view of the non-determination by the court a
quo
of an issue that was argued before it this appeal stands to be
disposed of on that very issue.
It
therefore becomes unnecessary to advert to the appellant's grounds
of appeal.
At
the onset of trial in the court a
quo,
Mr Zhuwarara
who appeared for the appellant highlighted to the court a
quo
that it was now seized with an issue in relation to whether or not
the trustees who administered the property should be ordered to
transfer property to either of the parties, when the trustees had not
been cited in the proceedings.
He
further submitted that there had been a material non-joinder of
interested parties in the proceedings in that the court a
quo
was being asked to distribute the property of other people who were
not parties to the proceedings.
Mr
Zhuwarara
went further to submit that while in terms of the rules a Trust can
be cited in its own name, it does not hold property in its own name,
but it does so for the benefit of the beneficiaries. Hence the
trustees should have been cited.
Lastly
he submitted that it would be more convenient, just and proper for
the administration of justice for the Trust to be joined to the
proceedings to enable it to protect the interests of the
beneficiaries.
Ms
Mtetwa
who appeared for the respondent in the court a
quo
drew the court a
quo's
attention to the joint pre-trial conference minute in which one of
the issues was whether any trustees should be ordered to transfer
assets to the parties. She further submitted that, that was why the
joint pre-trial conference minute had been crafted in such a fashion.
She also submitted that there had been difficulties in establishing
the identities of the trustees. The appellant was also blamed for not
furnishing the respondent with all the documentation that had been
requested.
One
of the issues in the joint pre-trial conference minute was:
“Whether
it would be fair and equitable to order any Trustees to transfer any
of the Trust assets to either of the parties.”
The
court a
quo
resolved to proceed with the matter notwithstanding that the issue of
joinder had been raised.
In
its judgment at the conclusion of the proceedings the court a
quo
did not address the issue of joinder of the trustees.
I
agree with Mr
Zhuwarara's
submissions a
quo
regarding the non-joinder of interested parties to the proceedings,
especially the trustees. This is the same submission made by Mr
Ranganai
following questions from the bench.
The
duty of an appellate court is to determine whether a trial court came
to the correct conclusion of the case that was placed before it. In
this respect see the cases of Goto
v Goto
2001 (2) ZLR 519 (S) and Cole
v Government of the Union of South Africa
1910 AD 263.
A
court is enjoined to determine all issues placed before it unless the
issue that it determines to the exclusion of other issues is
dispositive of the dispute before it. See the case of Longman
Zimbabwe (Pvt) Ltd v Midzi And Others
2008 (1) ZLR 198 (S).
According
to the decision in
Arafas
Mtausi Gwaradzimba v C.J. Petron and Company (Proprietary) Limited
SC12-16
failure by a court to consider an issue placed before it amounts to
gross irregularity.
Therefore
the failure by the court a
quo
to determine whether the trustees should have been joined to the
proceedings amounts to gross irregularity.
DISPOSITION
In
terms of section 25 of the Supreme Court Act [Chapter
7:13]
the Supreme Court has certain powers that are vested in it which
include the power to review proceedings and decisions of lower
courts.
Of
particular importance is subsection (2) which provides that the
powers to review can be exercised whenever it comes to the attention
of a judge or the Supreme Court that an irregularity has occurred in
any proceedings notwithstanding that such proceedings or decision is
not the subject of appeal.
It
has come to this Court's attention that there was an irregularity
in the proceedings of the court a
quo
and such irregularity is not the subject of appeal. The irregularity
pertains to the court a
quo's
omission to determine the issue of joinder despite the fact that such
issue was argued before the court a
quo.
In
light of the disposition of the appeal on a ground not raised in the
notice of appeal, the appellant will not be awarded costs.
The
matter will have to be remitted to the court a
quo
for hearing afresh before another judge since the trial judge is no
longer on the Bench.
This
will be subject to joinder of other interested parties.
In
the result, it is ordered as follows:
(1)
The appeal be and is hereby allowed.
(2)
The judgment of the court a
quo
be and is hereby set aside.
(3)
The matter is remitted to the court a
quo
for hearing afresh before another Judge.
(4)
Each party shall bear its own costs.
MAVANGIRA
JA: I
agree
UCHENA
JA: I
agree
IEG
Musimbe and Partners,
appellant's legal practitioners
Mtetwa
& Nyambirai,
respondent's legal practitioners
