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 each’s 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 respondent’s 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 appellant’s 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 appellant’s 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. Alice’s contention that it was $200 000.00 is not supported by other evidence. However, it is Alice’s 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 Alice’s 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 judge’s 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 respondent’s 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 judge’s 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 appellant’s 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 appellant’s 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 appellant’s 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 respondent’s 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 respondent’s 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 appellant’s 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