REPORTABLE ZLR (51)

Judgment No. SC 59/06

Civil Application No. 64/06

CHALMERS SATE

v

(1) F CHIMBARI (2) ANNE KASEKE (3) THE MASTER OF THE HIGH COURT (4) CHITUNGWIZA MUNICIPAL COUNCIL

SUPREME COURT OF ZIMBABWE

SANDURA JA, MALABA JA & GWAUNZA JA

HARARE, JULY 3 2006 & JANUARY 23, 2007

T Batasara, for the applicant

T Nyawo, for the first and second respondents

No appearance for the third and fourth respondents

MALABA JA: This is an application for leave to adduce further evidence on appeal. The appeal against the judgment of the High Court was noted on 11 January 2006.

The facts are these –

The applicant instituted action in the High Court against the respondents claiming an order of transfer of stand number 17742 Unit M, Seke, registered in the name of the late Simon James. The ground on which the claim was based was that he entered into an agreement of sale with the deceased during his lifetime, in terms of which the said property was sold to him for $58 900 which purchase price he had paid in full.

The first respondent is the executor of the deceased’s estate, whilst the second respondent once lived with the deceased in an unregistered customary law union as husband and wife. The first and second respondents opposed the claim by the applicant in the High Court.

It was common cause that the deceased and the second respondent lived together in 1963 as husband and wife. They had a child together but later separated. It was also not disputed that in 1981 stand 17742 was allocated to Simon James. In 1994 it was transferred into his name under a lease-to-buy scheme established by the fourth respondent. It was further not in dispute that Simon James entered into an agreement of sale with the applicant in terms of which he agreed to sell the stand for $58 900. He died before transfer could be effected into the applicant’s name.

At one time the applicant successfully had the deceased’s rights in the stand ceded to him with the consent of the fourth respondent. The cession was, however, subsequently reversed by the High Court at the instigation of the second respondent who disputed that the deceased had real rights in the stand to cede to the applicant.

The applicant then instituted action in the High Court claiming transfer of the stand into his name, alternatively the refund of the purchase price. The issues before the High Court were agreed by the parties at a pre-trial conference as being –

1. Whether or not there was a valid contract of sale between the plaintiff and the late Simon James.

2. Did the plaintiff pay the full purchase price in terms of the contract of sale?

3. In the event of the court granting the alternative claim, should the plaintiff be refunded the actual purchase price paid or the current open market value of the house?

Apart from the evidence of the agreement of sale, the applicant did not adduce any other documentary evidence of ownership of the stand by the deceased. The second respondent’s case was that she applied for the stand. At that time women were not allowed to hold identity documents. The deceased agreed to have his identity document used to get the house for her. His particulars, as reflected on the identity document, were used to complete the application. They were entered in all other documents relating to the house. The deceased signed these documents. She said that although it appeared from the records that the deceased owned the house he never lived in it. It was her house.

The learned judge who heard the case found that the second respondent and her witnesses were credible witnesses. He found that the second respondent’s story was supported by an affidavit sworn to by the deceased during his lifetime, in which he acknowledged that she had a share in the ownership of the house. At one time he asked the fourth respondent to remove the second respondent’s name from the records relating to the house. The learned judge said that it was unlikely that the deceased could have acknowledged the second respondent’s right in the ownership of the house when they had separated from each other a long time ago and were not living together in the house. He found that there was no valid agreement of sale on the basis of which the applicant could be granted transfer of the property. It was also the learned judge’s finding that the applicant had not paid the purchase price. The claim was dismissed with costs prompting the appeal to this Court.

In the meantime, the applicant changed legal practitioners. He placed before us documents which he claims contain evidence of ownership of the property by the deceased. These documents are copies of the application for the house made in the name of the deceased. They included the notification of the decision by the fourth respondent to allocate the deceased the stand, and the agreement of the lease-to-buy entered into between the deceased and the fourth respondent on 8 March 1994.

The applicant now applies for leave to adduce the documentary evidence on appeal to show that the deceased had the right, in the stand to cede to him and that the second respondent’s claim that the house belonged to her was false. He has not denied the allegation that the fresh evidence he seeks to adduce on appeal was available at the offices of the fourth respondent and that as public documents they were easily obtainable. The applicant disclosed that at the time he personally perused a file which contained the documents at the fourth respondent’s offices. His position was that the evidence was not adduced during the trial because his erstwhile legal practitioner did not appreciate its probative value in the determination of the issues by the High Court.

The first and second respondents have opposed the application. Their main ground is that the fresh evidence the applicant wants to adduce on appeal was available and easily obtainable from the fourth respondent’s offices before and during the trial. They said that the applicant did not allege that he did not see the documents when he perused the relevant file. It was their contention that the leading of the evidence would not have an important influence on the result of the case.

In considering the application it is important to bear in mind that this Court has a discretion in the matter. The factors it has to take into account in the exercise of that discretion have been stated in numerous decided cases. These are whether –

(a) the evidence could not with reasonable diligence have been obtained in time for the trial;

(b) the evidence is apparently credible;

(c) the evidence would probably have an important influence on the result of the case although it need not be decisive; and

(d) conditions have changed since the trial so that the fresh evidence would prejudice the opposite party.

See Farmers Co-op (Pvt) Ltd v Borden Syndicate (Pvt) Ltd 1961 R & N 28 at 31 B – C; Leopard Rock Hotel Co. (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) at 260 G and Warren-Codrington v Forsyth Trust (Pvt) Ltd 2000 (2) ZLR 377 (S) at 381 B.

On the first point, I agree with the first and second respondents that the evidence sought to be adduced on appeal was available and could easily have been obtained by the applicant before and during the trial. The applicant has not argued that the evidence was difficult to get. He did not say that he did not see the documents containing the evidence at the time he perused the file relating to the house at the offices of the fourth respondent. His contention is that his erstwhile legal practitioner failed to appreciate the relevance of the evidence to the proof of the issues raised at the trial. The statement is an admission that the legal practitioner who was the applicant’s chosen agent deliberately decided not to adduce the evidence because he did not consider it of probative value.

An error of judgment on the part of a litigant or his legal practitioner as to the probative value of a piece of evidence is not a good ground on which an appellate court can grant leave to adduce the evidence on appeal. To do so would be tantamount to allowing a party to re-open a case as opposed to leading further evidence which was not available to the party at the time of trial but was discovered after the trial. In Kearns v Walters Enterprises SC 160-90 cited in Warren-Cordrington’s case supra at p 381 F, McNALLY  JA said:

“In the circumstances we do not wish to set a precedent for litigants to treat the Supreme Court as a second court of first instance, a court in which they can try out the issues again on fresh facts if the first set proves to be inadequate.”

In Colman v Dunbar 1933 AD 141 at 161 WESSELS CJ said:

“It is essential that there should be finality to a trial and therefore if a suitor elects to stand by the evidence which he adduces he should not be allowed to adduce further evidence except in exceptional circumstances.”

The documentary evidence the applicant seeks to adduce on appeal does not necessarily disprove the basis of the finding by the learned judge that the second respondent had rights in the stand. The learned judge made the finding on the basis of the affidavit made by the deceased himself and on the credibility of the evidence adduced by the second respondent and her witnesses. Apart from the fact that an appellate court will not lightly interfere with a finding of a trial court on the credibility of witnesses, it is clear that the second respondent gave evidence which supported the contents of the documents sought to be adduced as fresh evidence on appeal.

Without referring to the documentary evidence, the second respondent’s evidence was in effect an admission of the fact that the identity particulars of the deceased were recorded in the documents relating to the application for the allocation and ownership of the house. The learned judge, in accepting her story, found as a fact that the identity particulars of the deceased were on these documents because they were contained in the identity document used by the second respondent to apply for the house. It appears to me that the adduction of the documentary evidence which, on the evidence of the second respondent, contained facts that were common cause would not probably have an important influence on the finding by the learned judge on the credibility of the second respondent’s evidence as to why the identity particulars of the deceased were on those documents. It appears to me that the adduction of the documentary evidence would probably not have an important influence on the result of the case. Whether the decision of the court a quo is correct or not is not for this Court to determine at this stage of the proceedings.

The application is accordingly dismissed with costs.

SANDURA  JA: I agree.

GWAUNZA JA: I agree.

Musunga & Associates, applicant’s legal practitioners

Mandizha & Company, second respondent’s legal practitioners