DISTRIBUTABLE
(34)
Judgment
No. SC 37/04
Civil
Appeal No. 354/02
STELLA
GUYO v
(1)
MUSHONGA & ASSOCIATES (2) COLLET JOHN
MAWIRE
(3) THE
MASTER OF THE HIGH COURT
(4) THE
REGISTRAR OF DEEDS (5) THE DEPUTY SHERIFF
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, CHEDA JA & GWAUNZA JA
HARARE,
FEBRUARY 17 & JUNE 10, 2004
J
Munyuki, for the
appellant
H
Simpson, for the first
respondent
No
appearance for the second, third, fourth and fifth respondents
CHEDA
JA: The appellant was married to Agrippa Guyo, who died at
Chinhoyi on 10 December 1997. The late Agrippa Guyo
had a
second wife, Sandra Guyo. He married both wives married
according to customary law. Agrippa Guyos estate consisted
of, among other things, a house at No. 676 Delmitis Road,
Orange Grove, Chinhoyi, a house at B3448 Gunhill, Chinhoyi,
a house at Chikonohono, another building complex and some shops.
According
to the Masters report, the estate was initially registered at
Chinhoyi magistrate's court. A son of the deceased
was appointed
executor, but subsequently died. The provincial magistrate for
Chinhoyi, in his capacity as Assistant Master of the
High Court,
appointed and authorised Shepherd Mushonga of Mushonga &
Associates to administer and distribute the estate
of Agrippa Guyo,
including transfer of stand no. 4449, Cold Stream into the
names of Stella Guyo and Sandra Guyo,
and to sell house no.
676 Delmitis Road, Chinhoyi (the house). With this
authority, Shepherd Mushonga sold the
house to the second
respondent for $1 million.
Stella Guyo
has now complained that she did not consent to the sale of the house
at that price. She says she agreed with
the first respondent to
sell the house for $2 million after some advertisements failed
to attract a buyer for $2,5 million
or $3 million. She
later learnt that the house had been sold for $1 million.
Stella Guyo
launched an application at the High Court seeking an order:
1. That
the
Agreement of Sale as between the first respondent and the
second respondent be and is hereby cancelled.
2. That
the fourth respondent be and is hereby ordered to cancel the transfer
of house no. 676 Delmitis Road, Orange Grove,
Chinhoyi
in favour of the second respondent.
3. That
the first respondent be and is hereby removed from his position as
Executor of the estate of the late Agrippa Guyo.
4. That
the first respondent bears the costs of this action.
The
judgment of the court a quo
is incomplete and starts as follows:
and
soon afterwards it applied for a set down days (sic).
By this time the applicant had not been moved to file either an
answering affidavit or even heads of argument.
The applicant only filed the
answering affidavit in March of 2002, well after the first
respondents heads of argument had been
filed and the first
respondent had already prepared the records for setting down. The
applicant filed her heads (of argument) on
3 September 2002,
accompanied by a court application for this application; that is, the
upliftment of the automatic bar.
The
application for the upliftment of the bar was opposed on the basis
that the applicant showed serious negligence which the court
ought
not to condone. The court a
quo then decided that,
even in the absence of the first respondent's legal practitioner, it
was not inclined to grant the application.
It
was submitted in the court a quo
that the applicants legal practitioner did not attend timeously to
both the preparation and filing of the record, the answering
affidavit and heads of argument. The applicant was to file her
heads of argument not later than 17 January 2002. She only
filed them on 3 September 2002, a delay of eight months.
The
court a quo
also considered the merits and stated as follows:
I
consider, having perused the papers, there are so many contradictions
in the applicants case that do indicate and strengthen
the first
respondents case against her.
The
appellant sought to challenge Mr Mushongas appointment and
authority. A copy of the authority issued by the Chinhoyi
magistrate shows that Mr Mushonga was properly appointed and
authorised to sell the house, the subject of the complaint.
Mr Mushongas
affidavit shows that the appellant and her relatives were given an
opportunity to find a buyer at the price
the appellant wanted but
failed to do so. Stella Guyo confirms this in her letter to
The Ombudsman. The affidavit of Sandra Guyo
shows that the two
families discussed and were happy with what was being done.
Sandra Guyo
says it was only after Stella Guyo held separate meetings with
her own children that she raised different
issues to those that were
agreed on. Mr Mushongas affidavit confirms this and adds
that by then the two widows had got
a house from the estate
transferred into each ones name. Stella Guyo was also aware
that there was a debt to be paid to
CABS. Sandra Guyo also
reveals that Stella Guyo preferred that the house in the high
density suburb should be sold, yet
the proceeds of that house would
not clear the debt to CABS.
It
is for the reasons given above that I agree with the court a quo
that condonation was properly declined.
Even
on the merits, my view is that the appellant has no prospects of
success.
The
appeal has no merits and it is dismissed with costs.
CHIDYAUSIKU
CJ: I agree.
GWAUNZA
JA: I agree.
Mugabe,
Munyuki & Partners,
appellant's legal practitioners
Mushonga
& Associates,
first respondent's legal practitioners