A HARARE family is locked in a legal battle for the ownership of a house acquired in 1960 through a marriage certificate from one of the members.
Tendai Bothwell Ndoro, the executor of the late Grace Mandaza’s estate and Catherine Mandaza, the executor of Joel Mandaza’s estate, unsuccessfully filed an appeal at the Supreme Court seeking the eviction of their relative Dorothy Mandaza from the property.
They had cited Master of the High Court and Registrar of Deeds as respondents.
The matter was heard by the Supreme Court bench consisting of Justices Antonia Guvava, Tendai Uchena and Nicholus Mathonsi.
The applicants were appealing against a High Court judgment handed down on October 19 last year on an application launched by Ndoro.
The late Grace was sued by Dorothy in the High Court in her capacity as the executor of the estate of her late husband Joel as well as in her personal capacity.
The court heard that shortly before the judgment was handed down Grace passed away and Ndoro replaced her as the appellant leaving a lacuna in the proceedings.
They also filed an application to join Catherine the daughter of the deceased couple to represent Joel.
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The appeal hearing then proceeded with the two deceased estates of the couple being represented by Ndoro and Catherine as the appellants.
The dispute was over a small undeveloped house in New Canaan in Highfield.
After Joel’s death, his then surviving spouse, Grace, was appointed the executrix dative of his deceased estate.
The first respondent Dorothy is the widow of the late Addison Mandaza, who died on November 22, 2009.
Joel and Addison, both late, were brothers and the house in dispute was initially a municipal house belonging to the City of Harare.
The house was applied for in March 1960 using the marriage certificate of the late Joel and Grace.
The City of Harare then allocated the house to Joel and Grace sometime in 1960 at a time when they had migrated to Zambia.
Addison and Dorothy were allowed to immediately move into the house and lived in the house until the former’s death. Dorothy is still residing there.
The late Joel and Grace returned to Zimbabwe in 1978 but, on their return, they did not take possession of the house, but bought houses in Houghton Park and Gunhill.
The appellants insisted that Joel and Grace were the ones who used their marriage certificate to obtain the house and it was allocated to them. Out of generosity, Joel and Grace allowed Addison and his wife to occupy it.
However, Dorothy argued that it is herself and her late husband who wanted accommodation because the other family members already had a house elsewhere in Highfield.
She argued that they approached Joel and Grace requesting that they use their marriage certificate to apply for a house as they were yet to solemnise their own marriage.
Dorothy said the house belonged to them as they paid all dues and lived in it for the past 64 years.
Dorothy also argued that about March or April 1960, she and her late husband completed forms for the rental of a house using the late Joel and Grace’s names.
She submitted that after Joel’s death, the late Grace sought the authority of the Master of the High Court to sell the house, claiming to be the rightful owner of the house.
Following a full trial, the High Court dismissed the appellant’s plea in abatement based on prescription after finding that the Mandaza family had breached the law by assisting each other to acquire houses using marriage certificates not belonging to those who applied for housing.
It concluded that the arrangement was for the appellants to transfer the house to Dorothy and her husband.
Aggrieved by the High Court decision they approached the Supreme Court for recourse, arguing that the lower court erred in granting the claim in favour of Dorothy.
The Supreme Court bench, however, ruled in favour of Dorothy saying her evidence in the trial is that she was the one who paid all the money for the house.
“The court a quo cannot be faulted at all for coming to the conclusion that the circumstances surrounding the acquisition of the house were truthfully explained by the first respondent.
“It is also significant to note that in granting relief to the first respondent, the court a quo exercised judicial discretion to relax the in pari delictum rule given that the parties had acted outside the law in the process of acquiring the house,” the judges ruled.
The bench said no case had been made on both the grounds of appeal and the submissions made on appeal for interference.
“No case has been made for interfering with that exercise of discretion. The appeal ought to fail. The appellants have been unsuccessful. There is no basis for sparing them the consequences of such failure. They should bear the costs,” they said.
