Judgment No. SC 65/03
Civil Appeal No. 146/03
(1) FORTUNE CHARUMBIRA (2) PRICILLA
CHARUMBIRA v (1) JOHN WILKE & (2)
STACEY CHANDOS
WILKE (3) THE REGISTRAR OF DEEDS
SUPREME COURT OF ZIMBABWE
SANDURA JA, CHEDA JA, &
GWAUNZA JA
HARARE, NOVEMBER 27 2003 &
MARCH 2004
RY
Phillips, for the appellants
AA
Brooks, for the respondents
GWAUNZA JA: In the court
a quo, the respondents successfully
sought an order;
setting
aside the registration of the transfer to the appellants of certain
immovable property under Deed of Transfer 14076/2001.
authorising
the Registrar of Deeds to transfer the property back to the
respondents,
compelling
the appellants to effect certain payments to the respondents in
respect of occupational interest and as reimbursement
of what was
paid to the Estate Agent concerned and that the appellants should
pay the costs of suit.
The respondents were aggrieved by the
judgment of the High Court and now appeal against it.
The facts of the matter are largely
common cause. The appellants are married to each other, as are the
respondents. On 17 August
2001, the parties signed an agreement of
sale, in terms of which the respondents sold to the appellants
certain immovable property
situated in Harare, for $8 700 000.
A deposit of $870 000 was paid, upon
signing of the agreement, with the balance, according to the
agreement, being payable upon
transfer. Before the balance was
paid, a Secretary employed by the legal practitioners for the
respondents, by error, had the registration
of the transfer of the
property into the appellants names, effected. The said legal
practitioners then withheld the new Title
Deeds and made several
demands, from the appellants, for payment of the balance of the
purchase price.
The appellants at no time disputed that this
balance was duly owing and outstanding. Their only defence was that
the first appellant
needed time to travel to Tanzania, where he held
an offshore account, in order to access the relevant funds and then
forward them
to the respondents. The first appellant failed twice
to meet the deadlines that he himself had set, for this course of
action.
The appellants having failed by the extended deadline to
effect the payment, in question and after having been placed in
mora on 4 February 2002, the
respondents cancelled the agreement in question. This was on 9
April, 2002.
It
should be noted that the parties, on the same day that they signed
the main agreement of sale, signed another one which simply
expressed
the purchase price in United States (USD) dollar terms. According
to that agreement the total purchase price would be
USD 30 100. The
deposit of USD 3000 was to be paid upon signing while the balance of
USD 27 100 was to be paid upon transfer.
The appellants do not
dispute the respondents assertion that the parties intention
was that the two agreements were to be
considered as alternative to
each other, so that payment under one would extinguish the other
agreement. The learned trial judge
correctly noted that the court
had not been called upon to determine the issue of which of the modes
of payment local or foreign
currency was the one to which the
parties were to be held. Nothing therefore turns on this issue.
Even after the respondents filed this
application in the court a quo,
the appellants did not dispute that the balance of the purchase price
was still owing. In paragraph six of the appellants opposing
affidavit, the first appellant stated as follows:
The applicants should
accept payment of the purchase price in local currency, payment of
which will be made within fourteen (14)
days of filing this notice of
opposition. The only reason why the balance of the purchase price
remains outstanding is that I do
not have funds to travel to Tanzania
and pay the balance in foreign currency from y offshore account.
The
appellants again failed to honour the promise to pay the relevant
within fourteen days of the filing of their notice of opposition.
The appellants thus fully appreciated the fact that they had
committed a major breach of the agreement of sale. Since the
agreement
is very clear in clause 12 as to the consequences of such a
breach, I do not believe the appellants did not appreciate the same.
Despite this appreciation, or because of it, the
appellants sought to rely on technicalities in order to evade
liability in terms
of the respondents claims. In her judgment
the learned trial judge dismissed the various technical defences that
the appellants
sought to raise. She found no merit in the
appellants contention, which they have cited as a ground of appeal in
casu, that they had not been properly
place in mora.
The learned trial judge noted in this
connection, at page eight of her judgment that;
the absence of
protest by the respondents to the letter of cancellation or for that
matter the previous correspondence warning
of the consequences of
failure to pay by the agreed date
is suggestive of acquiescence
on the part of the respondents. The
respondents have, it is noted,
not argued that there was no due notice given prior to cancellation.
The learned judge also dismissed as devoid of
merit the respondents somewhat belated reliance on the principle
of election.
I find no fault with her conclusion that, having
perused the affidavits of the parties, she found nothing to suggest
there was at
any stage an election by the respondents to abide by the
agreement in the event that the respondents failed to pay the amount
outstanding.
By submitting in one of their grounds of appeal that
the court a quo
erred in not finding in their favour on this point, the appellants do
in fact persist with this defence. In their heads of argument,
respondents counsel in my view effectively discredits this
argument as follows:
clearly, in its
letter to the appellants on 4 February 2003, first and second
respondents elected to proceed with cancellation
of the sale in the
event that the appellants did not make good on their breach of the
payment of the balance of the purchase price.
Although it was later
agreed between the parties that the appellants will be given a
certain amount of extra time to pay the balance
of the purchase
price, (see record 18), the contents of the mora letter of 4
February 2003 make it abundantly clear that, failing payment, the
election of the first and second respondent as a result
of the breach
by the appellants was to proceed with cancellation of the sale.
This they were clearly entitled to do by virtue of
Clause 12 of the
Pam Golding Agreement.
The appellants
submission that because the respondents had not tendered restitution
in their founding papers, their election
to cancel was of no force or
effect, also failed to impress the learned trial judge. Again, I do
not find any fault with her reasoning.
The respondents correctly
contended that they were not obliged to tender restitution of any
sums paid as Clause 12 of the agreement
of sale entitled them to
retain as and by way of Rouwkoop all sums of money which may
have been paid or deposited by the purchaser,
as security.
In their heads of argument, the
appellants indicated they would not advance any argument in respect
of their three original grounds
of appeal. In one of these grounds
the appellants had challenged the correctness of the learned trial
judges order that they
pay the amount claimed by the respondents
in terms of the agreement, as occupational interest. I will take
the appellants assertion
in this respect as an abandonment of that
ground of appeal.
The papers before the Court point to a distinct
lack of a genuine defence on the part of the appellants. What is
more, it is in
my view evident that the appellants fully appreciated
their predicament. Their persistence, in the face of all this, with
their
opposition to the respondents claim smacks of an intention
to cause as much delay as possible in the finalisation of this
matter.
The learned trial judge noted correctly in my view, that
the appellants sought to rely on additional and unspecified agreement
between the parties, contrary to S 17 of the agreement of sale. I
agree fully with her finding to the effect that the appellants
were
clearly lacking in bona fides,
and that they blew hot and cold in the face of admitted facts.
I find in all the circumstances that
the appeal is devoid of merit and must therefore fail.
It is in the premises ordered as
follows:
The appeal is dismissed with
costs.
SANDURA JA: I
agree.
CHEDA JA: I agree.
Messrs
Dube, Manikai & Hwacha, appellant's legal practitioners
Messrs Costa &
Madzonga, respondent's legal practitioners