Omerjee
J: This is an appeal against the
decision of the magistrate's court granting an order of eviction against the
Appellant. The Respondent in this matter is a family trust which purchased an
immovable property belonging to the estate of late Stanlake Gahadzikwa Mano
Timbe.
In support of the appeal the
Appellant has advanced two main grounds, namely that -
1.
The magistrate erred in not realising that the registration
of title to the property into respondent's name had been achieved by fraudulent
means.
2.
The magistrate erred in granting an order for ejectment when
a matter involving the status of appellant's children was still pending in the
Supreme Court.
There are some unusual aspects in the
background to this matter.
Stanlake Gahadzikwa Mano Timbe ("The
Deceased") died intestate on 18 February 2004. He left an estate that included
an immovable property whose street name is 104 Airport Road, Hatfield, Harare
("The Property"). It is this property that is in the centre of dispute.
It is common cause or at least not
strongly disputed that during his lifetime and before he met the Appellant the
deceased had sometime in 1963 contracted an earlier marriage with another
woman, Grace Marufu, in terms of the Marriages Act [Cap. 5:11]. This
marriage was never terminated and subsisted to the day of his demise.
However, prior to his death, in or
about 1983 the deceased took Appellant as his wife under the regime of an
unregistered customary law union. Later, on or about 5 November 1985, this
union was purportedly formally registered as a customary marriage in terms of
the then African Marriages Act [cap. 236]
now the Customary Marriages Act [Cap. 5:07].
Before giving further background it
is necessary at this juncture to briefly deal with the status of this second
marriage as this has some bearing on whether or not the eviction order was
valid.
As already alluded to the deceased
had contracted a monogamous marriage that was still subsisting when he entered
into a registered customary marriage with Appellant. It is trite law that under
such circumstances the second purported marriage is a nullity. This is so even
for the limited purposes of administration of estates where through legislative
intervention some recognition has, in recent times, been afforded to customary
marriages as against civil marriages. However, the legislative scheme only
affords recognition in circumstances where a registered customary marriage
pre-dated a subsequent civil marriage to a second party. In this regard s. 68 of the Administration of Estates
Act [Cap. 6:01] is to the effect that:
Although a
marriage contracted according to customary law shall be regarded as a valid
marriage for the purposes of Part IIIA notwithstanding that it has not been
solemnised in terms of the Customary Marriages Act, such marriage shall not be
regarded as valid for the purposes of that Part "if, when it was contracted,
either of the parties was married to someone else" in accordance with the
Marriage Act. (see the proviso to subs (3)). Further, in subs (4), it is put
beyond doubt that a marriage contracted according to the Marriage Act shall be
regarded as valid for the purpose of Part IIIA "even if, when it was
contracted, either of the parties was married to someone else in accordance
with customary law, whether or not that customary law marriage was solemnised in
terms of the Customary Marriages Act [Chapter 5:07]"
The papers filed in the present
appeal reveal that at one point the Appellant had advanced a contention that
from the time the deceased and herself entered into the customary marriage up
to the time of his death she had no knowledge of the existence of a prior
monogamous marriage between the deceased and another woman. Indeed in other
proceedings her erstwhile legal practitioner, on 25 November, 2005 filed a
certificate of urgency with this court, wherein it was intimated that the
Appellant intended "to apply to have a
certain spouse who pitched up after 21 years of separation from the deceased
declared NOT to be the surviving spouse." No such application was ever
made. Yet surprisingly, in her closing submissions at the eviction proceedings
before the magistrate's court the Appellant, through her legal practitioners of
record, made startling submissions to the effect that the earlier 1963
monogamous marriage had terminated thereby leaving the Appellant as the only
legitimate surviving spouse and accordingly, the estate, including the
immovable property in question devolved upon her.
The startling nature of these
submissions is clearly exposed when regard is had to the fact that at one
point, in yet another court proceeding, the Appellant in apparent concession
that her purported marriage was a nullity, filed an application with this court
wherein she was claiming, inter alia,
part ownership of the property on the basis of an alleged universal partnership
with the deceased (see case No. HC 1049/2005). It cannot be gainsaid that if
she bona fide believed herself to be
the deceased's surviving spouse she would have predicated her claim of rights
to ownership on the provisions of s. 68F(2)(d)
of the Administration of Estates Act [Cap.
6:01], which provisions clearly
state that matrimonial immovable property shall devolve upon a surviving
spouse. That she did not do this leads to the irresistible inference that she
accepts that the law does not recognise her as a surviving spouse.
In the light of the above this court
finds absolutely no merit in the argument that the eviction order could not be
granted because the Appellant was a surviving spouse.
Having so determined I now revert
back to the background facts.
During the period of their
cohabitation, the Appellant gave birth to two children. The deceased considered
these children to be his own and in fact through his active participation his
name was entered in the register of births as the father of each child.
In 2001 the deceased and Appellant's
sister were involved in an incident which ended tragically. There was an
altercation that ensued between the two that ended up with the Appellant's
sister being shot dead by the deceased.
The deceased was subsequently
arraigned on a murder charge, where at the trial he raised a defence of
provocation, the substance of which was that the dead woman had humiliated him
by taunting his manhood in front of the children. This allegation prompted the
trial judge to order that a medical examination be conducted with the view of
ascertaining the truthfulness of the allegation that he had no sexual organs.
The results of the examination revealed certain unusual features pertaining to
the deceased sexual reproductive organs. The examining doctor did not, however,
go as far as expressing an opinion as to the deceased capabilities of bearing
children. It is on the basis of the medical findings that the trial court
returned a lesser verdict of culpable homicide.
Unfortunately, subsequent to the
conviction the deceased was involved in a road traffic accident that claimed
his life on 18 February 2004.
The next point of significance which
followed this tragic event is that the relatives of the deceased armed with the
results of the medical examination and an opinion compiled by another doctor,
approached the Registrar of births requesting him to direct the cancellation of
the birth certificates of the two children on the basis that the deceased could
not bear children. After conducting some inquiry the Registrar of birth, on or
about 17 March 2005, was moved to cancel the registration of the births of the
children citing the ground that false information had been given that the
deceased was their father.
The Appellant reacted by challenging
this administrative decision in this court. She was unsuccessful prompting her
to lodge an appeal with the Supreme Court against the High court's decision. It
was during this period when the appeal was pending at the Supreme Court that
the Respondent instituted eviction proceedings against the Appellant in the
magistrate's court. This application found favour with the magistrate and an
order for eviction was duly granted. It is this order that forms the subject
matter of the appeal before us.
Although much has been advanced on
behalf of both sides, the resolution of this case centres on a simple issue,
i.e. whether or not the sale of the immovable property belonging to the estate
of the late Stanlake Gahadzikwa Mano Timbe was valid in law.
To determine this the following
questions must be answered.
1.
Did the property wholly belong to the deceased's estate?
2.
Did the Executor dative to the estate possess legal authority
to sell the property?
3.
If so, was there any legal impediment barring the Executor
dative from selling the property?
As regards the first question above,
I have already answered the issue of whether or not Appellant can be recognised
as a surviving spouse. For the avoidance of doubt it is this court's conclusion
that Appellant is not a surviving spouse and as such she can not claim any
right in the property on that basis.
I further find that her other claim
to rights in the property on the basis of an alleged universal partnership with
the deceased is redundant and without merit. This is so because in separate
legal proceedings before this court the same issue or one substantially similar
was adjudicated upon and a definitive pronouncement on the merits was rendered.
The claim was dismissed. No appeal was lodged and therefore the matter is res judicata and need not detain us any
further.
I now turn to the second
question. It is not in dispute that
Davison Shoniwa was duly appointed as Executor dative of the deceased's estate,
by the Master of the High Court and he was granted letters of administration on
9 February 2005 thereby authorising him to wind-up the estate.
In the exercise of his authority he
deemed it to be in the best interests of the beneficiaries to dispose of the
property and share the proceeds thereof amongst them. To this end he sought for
and obtained the consent of the deceased's siblings and that of one Grace
Marufu, the woman who was considered the legal surviving spouse of the
deceased.
Armed with such consent the Executor
sought for and was granted authority to dispose of the property by the Master,
who subsequently also issued his consent to transfer the property. It follows
therefore that the answer to the second question must be in the affirmative,
namely, that the Executor was possessed of the legal authority to dispose of the
property.
Turning to the third question I have
not overlooked the fact that during all these developments the Appellant
attempted to resist the sale of or disposal of the property, through a
multiplicity of applications filed with this court. She was, however,
unsuccessful in all her applications. It was in light of this that the Executor
arrived at the conclusion that there existed no legal impediment barring him
from disposing of the property. He thus proceeded to publicly advertise the
same inviting offers. It is important to note that Appellant was also formally
invited to submit her own offer if she was so inclined. She submitted her offer
on or about the 13 October 2006 which offer was far much below the amount
offered by the then highest bidder.
Subsequent to her submission of an
offer the Appellant on or about the 24 October 2006 filed yet another court
application in the form of an urgent application seeking to interdict the
Executor from proceeding with the disposal of the property. This application
met the same fate as the others and was dismissed for want of urgency.
The next significant event is that
the Executor accepted the offer from the Respondent who was the highest bidder
following a re-valuation of the property. The property was finally sold to the
Respondent on or about the 20 December 2006, following which transfer was
effected on or about the 31 January 2007.
Appellant has alleged that transfer
of title to the Respondent was achieved by way of fraud, in that the Executor
well knowing that she held the original title deeds misrepresented to the
Registrar of deeds by making an application for replacement of lost title deeds
and that but for this fraudulent misstatement he would not have obtained
replacement title deeds to enable him effect transfer to the Respondent. This
allegation is however, not supported by any evidence of what transpired in
regard the sale and transfer of the property. In short this court finds that
both the sale and transfer of the property were done above board and are not
tainted by any illegality.
Appellant has further contended that
the sale and subsequent transfer of the property amounted to a nullity because
they were done with the knowledge on both the Executor's part and that of the
Respondent that there was a pending appeal before the Supreme Court relating to
the status of her two children. If the disposal of the property were to proceed
before a final determination on the status of the children was made this would
cause the children, as beneficiaries to the estate, to suffer irreparable
prejudice, so the argument goes.
It is true that at the time the sale
and transfer of the property were effected there was an appeal pending with the
Supreme Court against the decision of this court, confirming the administrative
action taken by the Registrar of births to expunge the original birth
certificates of the two children. The effect of which was that the deceased was
not the father of the two children and therefore they had lost their status as
beneficiaries to his estate.
Be that as it may it is hard to
conceive how the restoration of the children's original status vis-Ã -vis the deceased, if the pending
appeal succeeded, would irreparably prejudice their rights as beneficiaries to
his estate.
It must be remembered that the free
residue of the estate of late Stanlake Gahadzikwa Mano Timbe, including the
property in question, fell to be distributed under the provisions of the
Deceased Estates Succession Act [Cap.
6:03] and therefore the entitlement of any of his dependants would be
determined within that legal framework. In short the restoration of the
children's status would not afford to them superior right over the immovable
estate property than that of their co-beneficiaries to the estate.
The restoration of their original
status would only repose back to them their personal rights vis-Ã -vis the estate, thus enabling them
to claim their share of benefits thereto. Personal rights are in law considered
to be subservient to real rights and therefore cannot, on their own, be
successfully used as a defence to an action of eviction. In casu the Respondent had legally acquired
real rights to the property and as such was within his legal entitlement to
institute the eviction proceedings in order to vindicate his rights to the
property.
As it turned out the result of the
Supreme Court appeal (see Case No. SC 25/08) was such that it restored the
original status on the two children, subject to any future applications that
may be made. They are therefore, as long as no future successful application is
made, entitled to benefit from the estate including a share in the proceeds
derived from the sale of the property. Fortunately, in casu the Executor had wisely decided to withhold the disbursement
of the free residue in the estate, thereby protecting and preserving the shares
of all those with a legitimate entitlement to it. For this he must be
commended.
In the result it is held that the
magistrate's decision ordering eviction is unassailable. Accordingly it is
ordered as follows -
Appeal is hereby dismissed with
costs.
Mavangira
J: I agree
Mutezo, Mushangwe and Company, Appellant's Legal Practitioners
O.
Matizanadzo and Associates,
Respondent's Legal Practitioners