Marble Muzanago v Alexious Mandishona and The Registrar of Deeds N.O.

### Preamble
1
HH 491-18
HC 2765/17
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MARBLE MUZANAGO

versus

ALEXIOUS MANDISHONA

and

THE REGISTRAR OF DEEDS N.O.

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 21, 22 & 23 March 2018, 9 April 2018 & 23 August 2018

Civil trial

T Chiturumani, for the plaintiff

1st defendant in person

MUREMBA J: The plaintiff and the first defendant were in an unregistered customary law union from 2006 to 2016 when it was dissolved. The second defendant is the Registrar of Deeds.

Pursuant to the termination of the union, the plaintiff issued summons seeking the distribution of the movable and immovable property acquired during the subsistence of the union. However, the plaintiff despite being legally represented did not allude to any cause of action in terms of which this court was being called upon to distribute the property. In fact the way the declaration is drafted it is as if the parties were legally married. In response to the plaintiff’s claim, the first defendant who was a self-actor did not raise issues with the cause of action. He just went on to respond to the issue of sharing of property.

Unfortunately, at the pre-trial conference the issue of the cause of action was not raised. The issues for determination at trial were captured as follows:

Whether or not the property called stand 5626 Ruwa Township of Dispute Estate measuring 2566m2  was acquired by the joint efforts of the plaintiff and 1st defendant.

If the issue to number 1.1 is yes, what is the equitable sharing of the property called Stand 5626 Ruwa Township of Dispute Estate measuring 2566m2.

Whether or not the property called Stand 5626 Ruwa Township of Dispute Estate measuring 2566m2 was purchased by Webbles Shipping (Pvt) Ltd and later sold by Webbles Shipping (Pvt) Ltd to one Christopher Chikusvo.”

The issues were silent about the sharing of the movable property being 3 beds, 2 refrigerators, one television set and one radio.

At trial both parties led evidence and closed their cases. In leading evidence the plaintiff did not lead evidence on the cause of action. It was only in the closing submissions that Mr. Chiturumani indicated that the plaintiff was seeking distribution of the immovable property on the basis of the general principles of tacit universal partnership, or alternatively, on the principle of unjust enrichment. He discussed these 2 principles at great length and said that the plaintiff’s claim is founded on both principles and submitted that it was just and equitable that the plaintiff be accorded 50 % of the immovable property.

It was improper and a gross misdirection for Mr Chiturumani to seek to establish the plaintiff’s cause of action in the closing submissions without the plaintiff having pleaded the cause of action in the summons and declaration. Closing submissions are meant to be a summation or a sum up or a concluding statement reiterating the important arguments for the trier of fact. Closing submissions are for explaining how the oral evidence presented during trial proves the party’s case. They also explain how the oral evidence does not support the opponent’s case. They are also meant to highlight other useful evidence and to deal with the credibility of witnesses.

A cause of action on the other hand refers to a set of facts or allegations that make up the grounds for filing a lawsuit. Without a cause of action a civil suit cannot arise because it is in essence the reason that the civil suit exists in the first place. Any claim that is made in the suit flows from the cause of action. The plaintiff should therefore plead the cause of action and allege facts sufficient to support it to enable the defendant to plead his defence(s). In Mandava v Chasweka HH-42-08 it was held that upon the break-up of an unregistered customary law union when the parties approach the courts for distribution of property they must choose which law; customary or general law, they want to apply to the resolution of their dispute. If they choose general law, they must plead a cause of action recognisable at law, as their “marriage” is not recognized as such.

In casu without a cause of action having been alluded to in the pleadings, this court cannot proceed to distribute or share the property as requested by the plaintiff.

In the result, it be and is hereby ordered that:

The matter is struck off the roll.

The plaintiff pays the first defendant’s costs.

Chiturumani & Zvavanoda Law Chambers, plaintiff’s legal practitioners