I
dismissed this application after hearing submissions from the contestants and
indicated that my full reasons would follow in due course. These are they.
The
applicant in this matter was seeking an order in the following terms-
“It
is ordered that:-
(1)
Applicant's appeal in case number HCA43/04 be and is hereby reinstated.
(2)
Costs of suit as against 1st ...
I
dismissed this application after hearing submissions from the contestants and
indicated that my full reasons would follow in due course. These are they.
The
applicant in this matter was seeking an order in the following terms-
“It
is ordered that:-
(1)
Applicant's appeal in case number HCA43/04 be and is hereby reinstated.
(2)
Costs of suit as against 1st respondent only if he opposes.”
The
order that the applicant sought to appeal against was in fact an order by
consent granted by the Magistrates' (Customary Law) Court on 26 April 2004 and
reads-
“It
is ordered by consent:-
(1)
That the immovable property be shared as per the attached annexure “A”; and
(2)
That House Number 3299 Cowdray Park, Bulawayo to be sold at market value and
proceeds shared equally between the two parties.”
A
month later…, the applicant had appeal papers drafted which were filed at the
beginning of June 2004. Her complaint
was that the court a quo had erred at
law in holding that the respondent was entitled to a half share of the proceeds
of the sale of the said property on the ground of an unregistered customary law
union. In the alternative, the order by consent was assailed on the allegation
that the trial court had erred on a point of law, and fact, in holding that the
respondent was entitled to a half share in the immovable property on the ground
of tacit universal partnership or unjust enrichment because that was not the
cause of action brought before him, and, in any event, he did not have the
jurisdiction to deal with the matter based on either of the said causes of
action.
A
year later, on 15 April 2005, the applicant withdrew her appeal. She, however,
blames her erstwhile lawyer, Mr Mazibisa, for the withdrawal of the appeal
which she alleges she always had wanted to prosecute. She alleged that Mr
Mazibisa had no mandate from her to do that.
It
was her assertion that the appeal had merit.
The
applicant sought to appeal against a judgment granted by the consent of both
parties.
The
parties approached the judicial officer and requested the court to record what
they had agreed on. They had agreed to
share the proceeds from the sale of the immovable property 50% each. Such a
judgment is unappeallable. See Calvera & Ors v Mudzimunoera 1994 (2) ZLR
371.
Her
application to this court is devoid of any merit and must fail.
In the result, the order of this court is that
the application be and is hereby dismissed with costs on an attorney and client
scale.
