This
is a rather unusual matter in which one of the issues to be resolved by this
court relates to a maternity dispute. I must confess that I had for long
laboured under the mistaken belief that only paternity can reasonably be
expected to be in dispute...,The plaintiff, Ennety Gunda, and the second defendant, ...
This
is a rather unusual matter in which one of the issues to be resolved by this
court relates to a maternity dispute. I must confess that I had for long
laboured under the mistaken belief that only paternity can reasonably be
expected to be in dispute...,
The plaintiff, Ennety Gunda, and the second defendant, Tsitsi Gunda, share the same father, the late Aaron Mukoki Gunda. There is a dispute as to whether they share the same mother, the late Cecilia Gunda, as is reflected on their respective birth certificates or that the plaintiff is not born to the late Cecilia Gunda but to the late Aaron Mukoki Gunda's first wife as is alleged by the second defendant whose maternity is not in issue…..,.
The
plaintiff, whose maternity is in dispute, issued summons out of this court on 5
November 2009 in which she sought the revocation of Letters of Administration
issued to the first defendant, setting aside of the distribution of the estate
of the late Cecilia Gunda, an order directing the re-administration of the
estate of the late Cecilia Gunda, an order setting aside the transfer of
rights, title and interest in Stand Number 5417 Glen Norah 'B' Township, Harare
to the third defendant and cost of suit….,.
The
estate of the late Cecilia Gunda is still to be wound up.
In
her declaration, the plaintiff, who purports to be one of the two daughters of
the late Cecilia Gunda, who passed on 13 December 2005, stated that her young
sister, the second defendant, proceeded to register the estate of the late
Cecilia Gunda without her knowledge. She said on 13 March 2006 the Master wrote
a letter to the second defendant inviting her, together with the late Cecilia
Gunda's next of kin and all interested parties, to attend an edict meeting of
the estate of Cecilia Gunda. The plaintiff alleged that the perusal of the file
of the estate of the late Cecilia Gunda shows no record of the persons who
attended the edict meeting. The first defendant, who then was Susan Zvinoira,
was at the edict meeting and appointed the executrix of the estate of Cecilia
Gunda and issued with Letters of Administration. The plaintiff contends that
she is not known to the said Susan Zvinoira and is not related to her in any
way….,.
The
gravamen of the plaintiff's claim is that the first defendant and the second
defendant misrepresented to the fourth defendant concerning the children and
interested parties in the estate of the late Cecilia Gunda resulting in the
first defendant being unprocedurally appointed as executrix dative of the estate….,.
The
first and second defendants, in their joint plea, stated there was no
misrepresentation made in connection with the administration of the estate of
the late Cecilia Gunda. Instead, they said all facts were duly disclosed and
all procedures were followed by the fourth defendant….,. According to the first
and second defendants, there is no basis for the re-administration of the said
estate….,.
The
first and second defendants submitted that the plaintiff's claim should be
dismissed with costs….,.
The
plaintiff, Ennety Gunda, gave evidence and called one Anderson Gunda as her
witness….,. The second defendant, Tsitsi Gunda, testified and called the
following witnesses;
(a)
Juliet Chinewaro whose father is a brother to the late Cecilia Gunda.
(b)
Isaac Chigidi whose father and the late Cecilia Gunda were siblings.
The
third defendant, Langton Mashiri, testified and did not call any witnesses…..,.
I
now turn to the evidence led in this matter….,.
The
plaintiff, Ennety Gunda, testified that as she is born to Aaron Mukoki Gunda
and Cecilia Gunda and that the second defendant, Tsitsi Gunda, is her sibling
(young sister).
She
said she only became aware that the estate of their mother, Cecilia Gunda, had
been registered and the house sold when she was temporarily evicted and
proceeded to protect her rights by instituting these proceedings. She moved
back into the house the same day she was evicted and is residing there. She has
put in two tenants from whom she collects rentals to date. She told the court
that the second defendant misrepresented to the fourth defendant that the
second defendant was the only child born to Cecilia Gunda - exhibit 4. She said
she is not known to Mrs Susan Zvinoira and that she never had any dealings with
her. All she wants is to have the sale of the house to the third defendant
reversed to enable her to benefit from her mother's estate. She is not
interested in the money allegedly paid by the third defendant for the house.
It
was only under cross examination that meaningful evidence was extracted from
the plaintiff. The plaintiff was unable to explain her marital status save to
say she has two children with two different men. She grudgingly accepted that
in 2005 she was in Njanja and not staying at the house. She was taken to task about
the fact that she is born to Cecilia Gunda. She conceded, under cross
examination, that she does not know her mother, Cecilia Gunda's brothers and
sisters. Her reason was that she has not visited her mother's maiden home since
birth. When it was put to her that Tsitsi Gunda, the second defendant, knows
very well her maternal relations her answer was that the second defendant is
the one who used to visit the maternal relatives in Buhera. She was not able to
explain why she would not, being the elder child, visit her maternal relatives.
The
plaintiff was not able to explain why the second defendant's birth certificate
was obtained four (4) years earlier than hers despite that she was the elder
child. She, however, denied that she shares the same mother with Anderson and
Daison Gunda. She denied that Cecilia Gunda only helped her to get a birth
certificate by putting herself up as her biological mother since her own mother
hand long left and had a mental problem.
The
plaintiff was not able to explain where she was most of the time, and, most
importantly, why Anderson Gunda and Daison Gunda would bring proceedings in
HC740/09 without her involvement and only sought to be joined thereto at the
pre-trial conference stage. The plaintiff was unable to explain why she sought
a joinder in the case HC740/09 to Anderson and Daison Gunda who were
not even Cecilia Gunda's children and not beneficiaries of the estate. She
admitted, under cross examination, that she only instituted these proceedings in casu after
HC740/09 fell away. She, however, denied that Anderson Gunda was
paying her legal fees and that she was being used to further his interests as
they share the same mother.
The
plaintiff was not able to explain the basis upon which she challenged the sale
of the property to the third defendant. In fact, she said she was not able to
do so, save to insist that she is entitled to a ½ share in the said property as
one of Cecilia Gunda's two daughters. The court was pleasantly surprised when
the plaintiff said she was not able to recall when Cecilia Gunda, her alleged
mother died. This is surprising considering the manner Cecilia Gunda died
moreso as she claims to be her elder daughter!...,.
The
second defendant, Tsitsi Gunda, testified that she is the only surviving child of
the late Cecilia Gunda. She said of all the children of Mr Aaron Mukoki Gunda
she is the only surviving child of the late Cecilia Gunda. She said all the
four children of Mr Aaron Mukoki Gunda, that is, Anderson, Daison, Salome
and the plaintiff Ennety share the same mother, one Jestina Mupfuriridzwa. She
did 'O' level and got married in 2000 after which she returned to stay with her
mother at the house in issue. She stayed with the mother, Cecilia Gunda, from
2003 to 2005 until her death in circumstances already explained. She said
she was staying with Anderson and his wife, Daison and his wife, who each had
apportioned themselves rooms in the house. She shared a room with her mother
and her child and there was a tenant occupying the kitchen who paid rentals to
Anderson and Daison Gunda. After the murder of her mother, in December 2005,
and her subsequent burial at the rural home she never returned to the house in
issue. The reason she gave was that the murder of her mother in that same house
traumatized her and that Anderson Gunda, who had not been arrested like Daison
Gunda, had threatened her that similar fate would befall her like her mother is
she pursued the issue of the house. She married her current husband in 2009 and
resides at Hopley Farm.
While
she admitted that exhibit 1, the plaintiff's birth certificate, shows that she
shares the same mother with the plaintiff, she, however, said that was not the
correct position and that this fact was common cause within the Gunda family
except that Anderson Gunda and the plaintiff, for selfish reasons, are now
misleading the court. She said the fact is that her late father, Aaron Mukoki
Gunda, requested her mother Cecilia Gunda to assist in obtaining the
plaintiff's birth certificate as the plaintiff's mother had long left and the
plaintiff was about to write Grade 7 examinations. She explained that it
is the reason why she got her birth certificate, exhibit 1, in 1988 when she
was about to start Grade one but the plaintiff, Ennety Gunda, only obtaining
her birth certificate in 1992 despite that she was older to her and purportedly
shared the same mother with her and they were all staying in Harare. She said
the plaintiff's birth certificate was only obtained in 1992 to enable her to
write Grade 7 examinations and the plaintiff was then 12 years old.
In
her evidence in chief, the second defendant said all her maternal relatives are
aware of the fact that the plaintiff is not a daughter of Cecilia Gunda. She
said the plaintiff is unable to call any such relative because she knows none.
She said what is known in the family is that the plaintiff was left by her
mother, Jestina Mupfuriridzwa, under the care of the second defendant's mother,
Cecilia Gunda, who had just married Mr Aaron Mukoki Gunda when the plaintiff
was just 1½ years old, and Cecilia Gunda took care of the plaintiff. She said
this fact is well-known in the family both from the paternal and maternal side
although some relatives are no longer keen to tell the truth in view of how her
mother was killed. The plaintiff said she grew up knowing that the plaintiff is
not born to her mother and she at no point believed they shared the same
mother. She therefore denied making any misrepresentations in this Death
Notice, exhibit 4, when she said she is the only surviving child born to
Cecilia Gunda. The plaintiff said this fact was notorious in their neighborhood
because as they grew up Cecilia Gunda was known as (Mai Tsitsi) in the Gunda
family and at no point was she called Ennety's mother despite that the plaintiff
was the older. The plaintiff said even the maternal relatives of the plaintiff,
Anderson, Daison and Salome would visit the Gunda family to see all these four
children who were being looked after by the second defendant, Tsitsi Gunda's
mother, Cecilia Gunda. She said that relatives would, at times, take the four
children away leaving her behind and her mother had to explain to her that the
four (4) children shared the same mother.
The
second defendant told the court that the plaintiff did not finish school but
got married in 1997 in Mhondoro some eight (8) years before the death of her
mother and two (2) years before the death of their father. She said it is not
true that the plaintiff used to stay at the house in issue from 1997. She said
from 1997 up to the death of her mother the plaintiff was not staying at the
house. She said she would only meet the plaintiff at family funerals and that
even when Daison Gunda died in 2010 the plaintiff was not staying at the house.
She said even the period between 1999 to 2005, when Anderson and Daison Gunda
were involved in this dispute over the house with her mother, Cecilia Gunda,
the plaintiff was not there but in Mhondoro. She said that is why even after
2003 when she returned to stay with her mother and both would flee from the
house as a result of threats and violence by Anderson and Daison Gunda the
plaintiff was not there and not involved. The second defendant explained that
that is the reason why the plaintiff would not know Mrs Susan Zvinoira, the
Chairperson of the Widows and Orphans Association who assisted Cecilia Gunda
not only with legal advice in the estate dispute with Anderson and Daison Gunda
but would provide food and shelter for Cecilia Gunda and the second defendant
each time they were chased away from the house by Anderson Gunda and Daison
Gunda between 2003 to 2005.
The
second defendant explained how Mrs Susan Zvinoira became entangled in the
estate of the late Aaron Mukoki Gunda and later Cecilia Gunda. She said
Mrs Zvinoira's Association helped widows and orphans in inheritance disputes
and had assisted Cecilia Gunda who was, at that time, involved in a bitter
fight with Anderson Gunda and Daison Gunda after the death of Mr Aaron Mukoki
Gunda over this house. She said Mrs Zvinoira provided her mother, Cecilia
Gunda, with legal advice and at times food handouts as Anderson Gunda and
Daison Gunda deprived her mother any benefits from their father's estate and
money paid by tenants at the house. The second defendant explained, in
evidence, that her own husband she first married in 2000 tried to help her
mother, Cecilia Gunda, in this fight with money for legal advice and Anderson
and Daison Gunda would harass him until her husband could not take it and their
relationship broke down in 2003. The second defendant said her stay at this
house with her mother, Anderson Gunda and Daison Gunda, between 2003 to 2005,
were traumatic as her mother, Cecilia Gunda, was constantly harassed and
threatened with assault. In fact, she said that Anderson Gunda would threaten
to cause the arrest of Cecilia Gunda for misrepresenting that Ennety Gunda, the
plaintiff, was her daughter and obtaining a birth certificate for her…, exhibit
1. The second defendant said she and her mother, Cecilia Gunda, would then flee
and seek shelter at Mrs Zvinoira's house in Greendale, Harare. The second
defendant said Mrs Zvinoira knew her family well and that she was the only
daughter born to Cecilia Gunda and Aaron Mukoki Gunda. She explained that it is
the reason why, after the burial of her mother, she went to stay with Mrs Susan
Zvinoira in Greendale, Harare for 2½ months after which she fled to Chiweshe
fearing for her life when she got word that Anderson and Daison Gunda were
looking for her after she had registered the estate of her late mother.
The
second defendant broke down in court when she explained how the plaintiff,
Ennety Gunda, had sought to exploit the fact that Cecilia Gunda had obtained a
birth certificate for her and raised her up. She said the plaintiff was
well aware of this but was keen to assist her siblings Anderson Gunda (and then
Daison Gunda) in their fight over the house. She said even at the High Court at
the time of this hearing Anderson Gunda approached her and her maternal uncles
advising her to withdraw her defense to allow the matter to be resolved by the
Gunda family. The second defendant says the plaintiff did not stay at the house
in issue but only came there for the purposes of this trial.
The
second defendant went on to explain her role in the registration of the estate
of the late Cecilia Gunda and the disposal of the house. She said she was
assisted in all this by Mrs Susan Zvinoira who had hitherto helped her mother.
She said she registered the estate, providing all information and signed the
Death Notice – exhibit 4. She provided the information to the fourth defendant
of the property left by the deceased, Cecilia Gunda, and also that she, the
second defendant, is the only child. She denied ever making any
misrepresentation to the fourth defendant. She said circumstances of how her
mother Cecilia Gunda is shown in exhibit 1 as the plaintiff's mother are
clearly explained in her evidence.
In
relation to the sale of the house in issue she said as the sole beneficiary of
the mother's estate she realized she could not continue to stay in the house
belonging to her mother where her mother was callously murdered, which house
was still occupied by Anderson Gunda and Daison Gunda who were also threatening
her. She decided to sell the house and later to decide what to do with the
proceeds. She said the decision was her own and she advised Mrs Zvinoira, the
executrix appointed at the edict meeting, to act accordingly. Since she had
left Mrs Zvinoira's residence for fear of her life she was later advised by Mrs
Zvinoira how the house had been sold and that the proceeds had been paid into
the Guardian Fund for safekeeping. She never got the opportunity to access the
proceeds of the sale as she was fearful of the threats posed by Anderson Gunda
and Daison Gunda who occupied the house. She said even after Anderson Gunda and
Daison Gunda were evicted from the house, as per exhibit 13, Anderson Gunda
trekked her to Caledonia Farm threatening her causing her to advise Mrs
Zvinoira that she had to flee for her life. The second defendant said she only
learnt of Mrs Zvinoira's death in 2011. She denied ever meeting or conniving
with the third defendant who bought the house. She said Mrs Zvinoira only
advised her that the third defendant had bought the house….,.
The
second defendant told the court, under cross examination, that she attended the
edict meeting with Mrs Zvinoira and could not have involved Anderson and Daison
Gunda who were threatening her. She said her late mother's sister was also
scared to be involved. She said she was not able to call her aunt, Janita
Chigidi, as she could not raise the bus fare. In relation to the sale of the
house, she dismissed as false that she connived with the buyer. She said she
was told that the house was sold in 2008 and she only met the buyer, the third
defendant, at court in 2009 after they all had been sued by Anderson Gunda and
Daison Gunda in case number HC740/09. She denied that she presented herself as
a minor to anyone. The second defendant insisted that she authorized the executor
to sell the house and was not personally involved. She was asked why she
never sought to get the proceeds of the sale. In response, she said at the time
she met Mrs Zvinoira and advised the house had been sold for 4 trillion
Zimbabwean dollars she was told the money had been put in trust in a Guardian
Fund and she was to be advised by Mrs Zvinoira how to access the money only to
later learn that she had died. The second defendant said she believed the
Master of the High Court is keeping the money and it is safe. She insisted that
she has yet to benefit from the proceeds of the sale of the house as she is
currently survived on vending….,.
The
second defendant's evidence on the maternity of the plaintiff was, to a large
extent, corroborated by Juliet Chinewaro and Isaac Chigidi - both maternal
relatives of the second defendant.
Juliet
Chinewaro regards the late Cecilia Gunda as her aunt. Her father and Cecilia
Gunda are siblings. She was born in Buhera in 1956 and only did Grade 3. She
said she initially got married in Buhera to her first husband but they divorced
after which she came to Harare to work as a maid in 1980 when she was in her
mid 20s. She told the court that the late Cecilia Gunda had three children, all
female, that is, Tecla, Laizah and Tsitsi. Tecla and Laizah were born from her
first marriage and only Tsitsi is born to the Gunda family. She saw the late
Cecilia Gunda married Aaron Mukoki Gunda in 1981 and that before Cecilia Gunda
married Aaron Mukoki Gunda they were staying together. She said after Cecilia
Gunda's marriage to Aaron Mukoki Gunda the plaintiff's mother later came and
left the plaintiff, Ennety Gunda, in the custody of Cecilia Gunda. By then, she
said, Cecilia Gunda had no child born of her marriage to Aaron Mukoki Gunda and
Cecil Gunda virtually became the mother for the plaintiff as she used to carry
the plaintiff on her back. Juliet Chinewaro said by then the second
defendant, Tsitsi Gunda, had not been born as she was only born in 1983. She
dismissed as untrue that the plaintiff, Ennety Gunda, is a daughter of Cecilia
Gunda. Juliet Chinewaro explained that exhibit 1 – the plaintiff's birth
certificate - does not reflect the truth. In fact, she said her aunt, Cecilia
Gunda, explained to her that her husband, Aaron Mukoki Gunda, had persuaded
Cecilia Gunda to assist in obtaining a birth certificate for the plaintiff,
Ennety Gunda, and to present herself as Ennety Gunda's biological mother.
Juliet Chinewaro said she even warned Cecilia Gunda, her aunt, that this may
cause problems for Cecilia Gunda but Cecilia Gunda explained that she was duty
bound to assist her step-daughter - the plaintiff. She confirmed that Cecilia
Gunda was always known in the area and in the Gunda family as Tsitsi's mother
(Mai Tsitsi) and not Ennety's mother (Mai Ennety).
Under
cross examination, Juliet Chinewaro told the court that Cecilia Gunda went to
stay with Aaron Mukoki Gunda as his wife in 1981 and that by then she was not
pregnant. She said she later fell pregnant and gave birth to Tsitsi - the only
child she had with Aaron Mukoki Gunda. She told the court that Cecilia Gunda
was close to her as an aunt and that she is aware that the plaintiff, Ennety
Gunda, was only brought back by her mother, who had left Aaron Mukoki Gunda, to
be looked after by Cecilia Gunda who by then had no child with Aaron Mukoki
Gunda as the second defendant, Tsitsi Gunda, was not yet born. She told the
court that she knows how the second defendant, Tsitsi Gunda, was born as
Cecilia Gunda was in labour for 2 to 3 days resulting in the second defendant
being born through a caesarian section. She insisted, in cross examination,
that Cecilia Gunda told her about exhibit 1 - the plaintiff's birth certificate
- before and after obtaining it and that she had done so to enable the plaintiff
to write examinations. She did not attend the edict meeting as she was at rural
home. She explained that Janita Chigidi, mentioned in exhibit 4 – the Death
Notice - is a sister to Cecilia Gunda but is now also late.
The
testimony of Isaac Chigidi, who was born in 1971 (is now 41 years old), is that
his father and Cecilia Gunda are siblings. He regards the late Cecilia Gunda as
an aunt. He grew up in rural Buhera. He told the court that when Cecilia Gunda
married Aaron Mukoki Gunda she only came back when the second defendant, Tsitsi
Gunda, who was then 3 years old and introduced as Cecilia's daughter with Aaron
Mukoki Gunda. Isaac Chigidi told the court that he does not know plaintiff,
Ennety Gunda, but saw her for the first time at court. He told the court that
the plaintiff is not born to Cecilia Gunda. He explained that he is not aware
how exhibit 1, the plaintiff's birth certificate, was obtained as he was
staying in the rural home. No meaningful questions were put to him in cross
examination.
It
is common cause that a birth certificate is an official document which, prima facie, is proof of the biological parents of the
person to whom it relates.
I,
however, do not believe that its mere existence becomes irrefutable evidence of
one's paternity or maternity. In a proper case, like in casu, evidence may be led which can show, on a balance
of probability, that the person indicated as the mother or father of the bearer
of such a birth certificate is not the biological parent. While I am of
the firm view that DNA tests would have been more conclusive, if not most
appropriate, in this case, to deal with this dispute of the plaintiff's
maternity I am satisfied that on evidence led this court can make a proper and
informed finding of fact in this regard. I have already explained why I am
inclined to accept the evidence of the second defendant, Judith Chinewaro and
Isaac Chigidi in this regard. I need to explain why, despite the existence
of exhibit it 1 – the plaintiff's birth certificate - I am not persuaded that
the plaintiff is Cecelia Gunda's biological daughter.
While
I accept that exhibit 1 is a genuine document issued by the Registrar of Births
and Deaths, sufficient persuasive evidence has been led to explain why the
information which reflects Cecilia Gunda as the plaintiff's mother is not
true. It is not beyond human experience for persons to make such a
misrepresentation to the Registrar of Births and Deaths for various
reasons. In a proper case, where clear evidence has been led, this court
can properly make a finding of fact that the information in exhibit 1, as
regards the plaintiff's maternity, is incorrect. Evidence had been led as to
why Cecilia Gunda misrepresented herself as the plaintiff's mother in exhibit
1.
I
am not persuaded by the evidence of the plaintiff, Ennety Gunda, and Anderson
Gunda in this regard. Anderson Gunda's evidence is tainted by the vested,
if not, even misguided, interest he has in the house. His conduct in this
whole saga totally discredits him and enjoins the court to deal with his
evidence with the utter most caution. His fight for this house is
legendary and a matter of record. It seems he cannot come to terms with
the fact that at the death of his father this house was properly awarded to
Cecilia Gunda and that after Cecilia Gunda's death her estate devolves to her
direct progeny. Anderson Gunda was prepared to institute ill-fated proceedings
in a bid to get this house. The plaintiff's birth certificate, exhibit 1,
may well be his last draw card. I find him to be an incredible witness.
The
plaintiff, Ennety Gunda…, was a very poor witness. All she could say is
that she is a daughter of Cecilia Gunda on account of exhibit 1 - her birth
certificate. She was not able to address or controvert evidence led in
relation to exhibit 1.
I
also find the plaintiff's conduct to be inconsistent with the fact that she is
Cecilia Gunda's daughter but a sibling of Anderson and Daison Gunda. If
the plaintiff was indeed Cecilia Gunda's daughter she would not have failed to
know the bitter wrangle which ensued between Cecilia Gunda and her step- sons
Anderson Gunda and Daison Gunda. She would not fail to know Mrs Zvinoira
who fought from her alleged mother's corner, providing legal advice, shelter
and food hand-outs. The plaintiff's demeanor was self-evidently poor,
moreso when she casually testified on the callous murder of Cecilia Gunda -
whose date of death she cannot even recall! This is so because she is a
step-daughter to her and was not even living at that house at the material time
but only surfaced to thwart the eviction of her siblings Anderson and Daison
Gunda using her birth certificate, exhibit 1, as these siblings can thereafter
lawfully claim occupation of the house through her. The total lack of interest
in Cecilia Gunda's tribulations in her lifetime and in her estate after her
death by the plaintiff is shocking. It can only be explained by the fact
that the plaintiff is not Cecilia Gunda's child. I find it strange that
she would peacefully cohabit with both Anderson Gunda and Daison Gunda who had
tormented her so-called mother - moreso after her brutal murder. Is it possible
for her, if she was Cecilia Gunda's daughter, to happily share the same house
with Anderson Gunda and Daison Gunda given the history of this matter if she
was not their sibling? The plaintiff also surprisingly took no action to
protect the estate of her mother who had died virtually fighting the stepsons
over the same house. She did not bother to register the estate at all or
to inquire anything about it. She was happy to allow Anderson Gunda and Daison
Gunda, in HC740/09, to sue her sister, the second defendant, and her benefactor,
Mrs Zvinoira. She was even prepared to fight in Anderson Gunda and Daison
Gunda's corner in HC740/09 by seeking a joinder, and when this failed she then
instituted these proceedings. It is this conduct I find consistent with
the fact that she is not a daughter of the late Cecilia Gunda despite the
existence of exhibit 1. She is a useful pawn in Anderson Gunda's fight for
the house and she too would benefit from such a stance and as at now she is
getting rentals. Her birth certificate, exhibit 1, seems to be her meal
ticket.
It
is my finding that although exhibit 1 reflects Cecilia Gunda as the plaintiff's
mother evidence led does not support this position. I am inclined to find
in favour of the second defendant in this regard.
