News / National
Wife in the dark as house pledged as collateral
09 Aug 2017 at 05:58hrs | Views
A Chinhoyi woman has lost a High Court bid to block the attachment of the matrimonial house over a debt incurred by her husband in a commercial transaction.
Justice Priscillah Munangati-Manongwa made the ruling in the case in which Ms Judith Ishemunyoro sought an order to retain full rights of the matrimonial property.
The house had been attached after her husband, Antony Ishemunyoro, pledged the property as security for $138 000 owed to a company called Tynserve Distributors.
The company supplied goods to Mr Ishemunyoro's business on credit.
After the businessman defaulted on payment, Tynserve successfully sued Mr Ishemunyoro in the magistrates' courts.
In pursuit of execution, Tynserve attached 50 percent of the property to recover what was owed to it.
Mrs Ishemunyoro challenged the decision at the High Court.
But Justice Munangati-Manongwa threw out the application with costs.
The property at the centre of the dispute was acquired by Mrs Ishemunyoro, while she was in the employ of then Ministry of Public Construction and National Housing.
She paid fully the purchase price which was directly deducted from her salary as a Government worker since 1994.
In June 2012, the property was transferred into the couple's names under Deed of Grant 2350/12.
Mrs Ishemunyoro's lawyer, Mr Tendai Biti, argued her client's husband as co-owner was not entitled to introduce structural changes in occupation or encumber the property which is jointly owned.
He said Mr Ishemunyoro pledged the house as security without his wife's consent.
That being the case, Mr Biti argued the pledge was a nullity, as Mrs Ishemunyoro was not part to and never consented.
Based on the assertion that Mrs Ishemunyoro contributed the entire purchase price, Mr Biti urged the court to consider that his client had a far greater share in the property it having been acquired through her employment and therefore entitled to transfer of the whole property.
Tynserve lawyer Ms Fransisca Chinwawadzimba counter-argued that Mrs Ishemunyoro had to establish the manner in which the title had been used was unreasonable.
She said the law of property and Section 72 of the Constitution provided that everyone has a right to property. That being so, Ms Chinwawadzimba said Mr Ishemunyoro had a right to deal with his share in the property.
Ms Chinwawadzimba said there was no need to set the attachment aside. In her ruling, Justice Munangati-Manongwa noted that Mrs Ishemunyoro worked and acquired the property which she, out of her free will and volition, decided to register jointly with her husband.
"No cogent reason was advanced to explain why she decided to include in title her husband who did not, according to her evidence, contribute to the acquisition," said Justice Munangati- Manongwa.
"It can only be concluded that she donated the half-share to her husband and it was only after she was faced with the disposal of the husband's half-share that she panicked and raised this ap- plication."
Mr Biti has since filed the notice and grounds of appeal against the whole judgment.
Justice Priscillah Munangati-Manongwa made the ruling in the case in which Ms Judith Ishemunyoro sought an order to retain full rights of the matrimonial property.
The house had been attached after her husband, Antony Ishemunyoro, pledged the property as security for $138 000 owed to a company called Tynserve Distributors.
The company supplied goods to Mr Ishemunyoro's business on credit.
After the businessman defaulted on payment, Tynserve successfully sued Mr Ishemunyoro in the magistrates' courts.
In pursuit of execution, Tynserve attached 50 percent of the property to recover what was owed to it.
Mrs Ishemunyoro challenged the decision at the High Court.
But Justice Munangati-Manongwa threw out the application with costs.
The property at the centre of the dispute was acquired by Mrs Ishemunyoro, while she was in the employ of then Ministry of Public Construction and National Housing.
She paid fully the purchase price which was directly deducted from her salary as a Government worker since 1994.
Mrs Ishemunyoro's lawyer, Mr Tendai Biti, argued her client's husband as co-owner was not entitled to introduce structural changes in occupation or encumber the property which is jointly owned.
He said Mr Ishemunyoro pledged the house as security without his wife's consent.
That being the case, Mr Biti argued the pledge was a nullity, as Mrs Ishemunyoro was not part to and never consented.
Based on the assertion that Mrs Ishemunyoro contributed the entire purchase price, Mr Biti urged the court to consider that his client had a far greater share in the property it having been acquired through her employment and therefore entitled to transfer of the whole property.
Tynserve lawyer Ms Fransisca Chinwawadzimba counter-argued that Mrs Ishemunyoro had to establish the manner in which the title had been used was unreasonable.
She said the law of property and Section 72 of the Constitution provided that everyone has a right to property. That being so, Ms Chinwawadzimba said Mr Ishemunyoro had a right to deal with his share in the property.
Ms Chinwawadzimba said there was no need to set the attachment aside. In her ruling, Justice Munangati-Manongwa noted that Mrs Ishemunyoro worked and acquired the property which she, out of her free will and volition, decided to register jointly with her husband.
"No cogent reason was advanced to explain why she decided to include in title her husband who did not, according to her evidence, contribute to the acquisition," said Justice Munangati- Manongwa.
"It can only be concluded that she donated the half-share to her husband and it was only after she was faced with the disposal of the husband's half-share that she panicked and raised this ap- plication."
Mr Biti has since filed the notice and grounds of appeal against the whole judgment.
Source - the herald
