DISTRIBUTABLE
(72)
Judgment
No. SC 83/02
Civil
Appeal No. 240/01
ALICE
NYANGONI v CLEOPAS NYANGONI
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
CHEDA JA & GWAUNZA AJA
HARARE,
JULY 8 & OCTOBER 21, 2002
W
Mutezo,
for the appellant
F
J Gijima,
for the respondent
GWAUNZA
AJA: The parties were divorced by order of the High Court in 1997.
They had signed a consent paper which, inter
alia, provided as
follows:
Proprietary
Rights
2.1 In full settlement of the
parties claims against each other arising out of the marriage, the
parties shall retain the moveable
assets presently in eachs
possession.
2.2 The
plaintiff is awarded 35% while the defendant is awarded 65% of the
net value of the matrimonial home, No. 9 Jacobs Road,
Cranborne,
Harare.
2.2.1 The defendant shall be
entitled to exclusive ownership of the matrimonial home, being No. 9
Jacobs Road, Cranborne, Harare,
provided
she pays to the plaintiff his 35% share of the net value of the
matrimonial home which is agreed by the parties to be $59 580.00.
2.2.2 This
amount is to be paid over a period of twenty-four months, failure of
which the house shall be sold and the proceeds shared
accordingly.
(my emphasis)
In issuing
the divorce decree, the learned judge, who ordinarily should have
repeated these provisions word for word, effected one
minor but very
significant amendment to para 2.2.2. That paragraph, with the
amendment, reads as follows:
3.3 The amount (35% of
$59 580.00) is to be paid over a period of twenty-four months,
failure of which the house shall be sold
and the proceeds shared
accordingly.
Since a
decree can only repeat what is in the consent paper, the amendment in
question cannot be explained in any way except that
it was an attempt
by the learned judge in question to clarify what was meant by
amount. Obviously, the amount referred
to was the one
mentioned in the preceding paragraph, i.e. para 2.2.1 of
the consent paper.
The parties
interpreted this amendment differently.
The
appellant interpreted it literally to mean 35% of $59 580.00,
which translated to $20 853.00. She tendered payment
of this
amount to the respondent, a day or so beyond the date by which she
should have paid what was due to him. The respondent
refused to
accept this amount, on the ground that it fell short of what the
court ordered should be paid, i.e. $59 580.00.
His
interpretation of the amendment in the divorce decree was that it
contained a typographical error, that is, that it should have
read
35% or
$59 580.00 and not of.
The parties
having failed to agree on the correct interpretation of the amendment
in question, the respondent proceeded to institute
action in the High
Court for an amendment to para 3.3 of the divorce order so that
the word of was changed to or.
The court a
quo agreed with the
respondents interpretation of the amendment and ordered that the
appellant pay the respondent $59 580.00
within a period of four
months, with interest at the prescribed rate from 8 March 1999
to the date of payment.
The
appellant now appeals against this order.
In his
evidence, the respondent asserted that at the pre-trial conference
the parties had agreed that the value of the matrimonial
home was
$260 000.00 and that he would get 35% of the net value and the
appellant 65%. After deducting from this amount $90 000.00
owed to the Ministry of Construction, the net value would be
$170 000.00. Thirty-five percent of this, which was his share,
would be $59 500.00. This amount, he asserted, had, however,
been incorrectly stated as $59 580.00 at the pre-trial
conference.
The
appellants evidence was to the effect that the net value of the
house at the time of the pre-trial conference was $59 580.00.
She went further to state that the agreed gross value of the house
was $200 000.00, not $260 000.00 as asserted by the
respondent. To arrive at the net figure of $59 580.00, the
appellant subtracted from $200 000.00 a total of $140 420.00,
which she termed expenses. These included, apart from what
was owed to the Ministry of Construction, a half share of the
value
of a Kombi vehicle, and arrears in respect of rent, rates,
electricity and water. To prove some of these arrears, the
appellant
produced documentary evidence in the form of receipts.
She abandoned an amount of $462.81 from the $99 462.81 that was
reflected
as owing to the Ministry of Construction, leaving the round
figure of $99 000.00. She did not do the same with the other
expenses.
The learned
trial judge rejected the appellants calculations, and therefore
her interpretation of the amendment in question and
accepted the
evidence of the respondent. He made the following remarks:
There
was some ambiguity in the consent paper signed by the parties and
that is why the judge concerned added the words in dispute.
It was
to remove the ambiguity.
Where
the parties to a marriage are getting divorced and have signed a
consent paper, then the divorce order must reflect what is
contained
therein, unless of course it is contra
bonos mores or there
is some other reason why the court cannot be associated with the
provision in question. In this case, there is no good
reason why
the provisions of the consent paper relating to the disposal of the
matrimonial property of the parties could not be included
in the
order. To my mind, the evidence given by Cleopas is to be
preferred. It is more consistent with the probabilities. His
contention that the parties agreed that the value of the house was
$260 000.00 is supported by his pleadings in the divorce
action.
Alices contention that it was $200 000.00 is not supported
by other evidence. However, it is Alices calculations
as to how
the net value was reached that are highly questionable. Firstly,
she rounds off the amount that she claims was due to
the Ministry of
Construction by writing off $462.81, but then the arrears for rent,
rates, electricity and water are not rounded
off. The resulting
figure for expenses comes to exactly $140 420.00, which results
in the magic figure of $59 580.00.
However, the figure for
rent arrears is understated by $10.00. If the correct amount of
$12 252.00 for rent arrears was
reflected, then the answer would
not have been $59 580.00. Another reason for not accepting
Alices calculations is because
it is highly improbable that in
calculating the net value of the house, items such as arrears for
rent, rates, electricity and water
would be included. It is even
more unlikely that the value of the Kombi would have been included in
the calculation. If the parties
had intended that Cleopas should
pay the arrears and also pay Alice for a half-share of the Kombi,
that would have been included
as a separate clause in the consent
paper.
I am in full
agreement with the learned trial judges assessment of the evidence
that was before him.
There
was, indeed, an ambiguity in the words 35% share of the net value
of the matrimonial home which is agreed by the parties
to be
$59 580.00. The 35% can easily be read to relate either to
the net value (of the house) or to $59 580.00.
That being
the case, it is quite possible that the learned judge concerned,
having read 35% as referring to $59 580.00, added
the words in
dispute, in an effort to clear the ambiguity.
I am not
persuaded, in the light of this likelihood, that the respondents
contention that the word of in the disputed amendment
was a
typographical error which should have read or is correct. To
the extent that the amendment was intended to clarify
the original
position, the words 35% or $59 580.00 would not have
achieved this end. To do that, 35% would have
had to be
qualified, in this case by the words of the net value of the
house. On its own, the phrase is clearly vague, and
would have
negated the learned judges intention to clarify matters.
It is, in
any case, not the amendment, but the original provision in the
consent paper, which is the true expression of the parties
intention. The amendment in question merely sought to replicate,
and clarify, para 2.1. of the consent paper and its meaning.
The parties
agreed and signed a consent paper. In the ordinary course of
events, this meant the divorce action, being uncontested,
did not
proceed to trial. Therefore the learned judge who issued the
divorce order did not hear evidence on the various issues
the parties
reached agreement on, which included the matrimonial home.
Confronted
with a situation where the parties to the consent paper were now
interpreting one clause differently, the court a quo
therefore did not have much to rely on beyond the probabilities
presented. I find no fault in the way the learned trial court
assessed
those probabilities. In particular, I agree with his
observation that it is highly improbable that in calculating the net
value
of the house, items such as arrears for rates, electricity and
water, and the value of a motor vehicle, would have been taken into
account. It would, anyway, be improper to do so. The net value of
immovable property is usually arrived at after subtracting
from the
total value thereof, the value of encumbrances such as mortgage bonds
and related charges, not expenses that have no bearing
whatsoever on
the value of such property. Specifically, the value of the motor
vehicle would not have been taken into account,
given that in the
consent paper para 2.1 provided that each party was to retain
the moveable assets then in his or her possession.
There is
something else that puts in question the correctness of the
appellants calculations. The evidence of the respondent
was that
at the pre-trial conference the quantum of the Ministry of
Construction loan (i.e. $90 000.00) was a mere estimate
that the
parties agreed on. The appellant in her evidence confirmed this
assertion and specifically stated that she only obtained
a statement
in relation to the loan after the parties had signed the consent
paper, and in order to prepare for the case now before
the court. It
follows, therefore, that if the parties did not know the exact amount
of the loan, the calculation as to the net value
of the matrimonial
home, done at the PTC, could not have been on the basis that the loan
was $99 000.00, as the appellant now
claims. Apart from
casting doubt on the correctness of her calculations, this evidence,
and the fact that she wrote off $462.81
in order to come up with the
round figure of $99 000.00, lends credence to the assertion by
the respondent that the appellant
had simply worked her figures
backward, starting with the figure of $59 580.00 in order to
come up with the computation
that supported her defence. It should
be noted that the other receipts that the appellant produced in the
court a quo,
and on which she based her calculations, had not been produced at the
pre-trial conference. Like the Ministry of Construction
loan, these
specific figures had not been taken into account in the original
computation of the net value of the house.
All this,
added to the irregular manner in which the appellant calculated the
other expenses, so as to arrive neatly at the figure
of $59 580.00,
leads to the inevitable conclusion that she attempted to snatch an
opportunity to avoid obligations that she
had voluntarily assumed.
I am persuaded by the submission made for the respondent that this
clearly puts in doubt the appellants
bona
fides.
The learned
judge in the court a quo
was not satisfied, despite the slight delay in tendering payment
(which in any case was insufficient) by the appellant to the
respondent,
that it would be equitable to require that the house be
sold forthwith. Again, I can find no fault with this decision.
The finding
relating to the appellants lack of bona
fides has a bearing on
the question of the interest payable by her.
The
appellant takes issue with the order of the trial court, that she is
to pay interest on the amount ordered, with effect from
8 March
1999 to the date of payment.
It is
contended for the appellant that the payment of 35% of $59 580.00
to the respondents legal practitioners within the
stipulated
period must result in her being absolved from paying interest,
notwithstanding that the money was returned to her. It
is contended
further that it was not necessary for the respondents lawyers to
return the money and, having returned the money,
the respondent
should not be allowed to charge interest as if nothing had ever been
offered for payment.
I do not
find merit in this contention. The evidence before the court
clearly establishes that the appellant knew she was putting
a wrong
interpretation on the amendment in the divorce decree. That being
the case, her tender of $20 853.00, in effect, amounted
to no
tender of payment at all. Because of her interpretation of the
amendment, and her consequent refusal to pay the amount that
was due
to the respondent, it was necessary for the latter to institute fresh
proceedings in the court a quo
to prove his case. That, and the subsequent appeal by the appellant
to this Court, has resulted in the respondent not being able
to
access what was due to him for all of three years. Had the
respondent received the money in 1999, as he was meant to, he would
no doubt have received more value for it than he would now, given the
fall in the value of the local currency. The appellant, in
the
meantime, has since 1997 had the benefit of living in the house in
question.
There
can, therefore, be no doubt that the appellants conduct has
resulted in the respondent suffering great financial prejudice.
I
do not find, in the light of all this, that it was unreasonable for
the court a quo
to order that the appellant pays interest at the prescribed rate from
8 March 1999 to the date of payment. This was the day
following that on which the appellant was to have paid the correct
amount to the respondent. It should also be recalled that two
years
had elapsed between the time the divorce decree was granted, and the
time that she eventually tendered some payment to the
respondent.
The court
a quo,
in my view correctly, considered a grace period of four months,
within which the appellant was to pay the required amount, to be
reasonable. That period has, however, and due to the appeal,
expired. The same grace period will be granted, except that it will
now be reckoned from the date of this judgment.
In the
premises, it is ordered as follows:
(1) The
appeal is dismissed with costs.
(2) The
order of the court a quo
is amended to read
2 If
payment in terms of paragraph 1
hereof is not made by 21 February 2003, the house shall be sold
and the net proceeds shall be shared in the proportion
65% to the
defendant and 35% to the plaintiff.
SANDURA JA:
I agree.
CHEDA JA:
I agree.
Mutezo &
Partners, appellant's
legal practitioners
F G Gijima
& Associates,
respondent's legal practitioners