REPORTABLE (18)

Judgment No. SC 28/08

Civil Appeal No. 303/06

AMBRITON MAKUSHA v

(1) ROSE CHIHOHO (2) ESTHER CHIHOHO

(3) LESLIE GURAJENAH (4) REGISTRAR OF DEEDS N.O.

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA JA & ZIYAMBI JA

HARARE, SEPTEMBER 2 & OCTOBER 23, 2008

Ms P Kadembo, for the appellant

No appearance for the first respondent

M Kamudefewere, for the second respondent

No appearance for the third respondent

No appearance for the fourth respondent

CHIDYAUSIKU CJ:

This is an appeal against the judgment of KAMOCHA J. In the court a quo the appellant applied for an order to set aside an Agreement of Sale entered into by and between the second respondent, Esther Chihoho (hereinafter referred to as “Esther”), and the third respondent, Leslie Gurajenah (hereinafter referred to as “Mr Gurajenah”), on the ground that the Agreement of Sale was null and void by reason of the appellant (hereinafter referred to as “Mr Makusha”) being the lawful owner of the stand. Mr Makusha also sought an order directing Esther to transfer the stand in dispute to him.

Esther opposed the application. In support of her opposition she filed an affidavit from Boniface Chihoho (hereinafter referred to as “Boniface”). Boniface is Esther’s natural father. He had a general power of attorney from Esther. The first respondent, Rose Chihoho (hereinafter referred to as “Rose”), is the mother of Esther. Boniface and Rose were once husband and wife but have since divorced. Esther is the daughter of Boniface and Rose, born during the subsistence of their marriage. The fourth respondent is the Registrar of Deeds and is cited in his official capacity.

The facts of this case are briefly these –

Boniface and Rose jointly purchased stand no. 1631/11 Bluffhill Township, situate in the District of Salisbury (as it then was) (hereinafter referred to as “the stand”), from Trevor Harry Hockley (hereinafter referred to as “Mr Hockley”). In terms of the Deed of Sale signed by the parties on 26 May 1999 transfer of the stand to Boniface and Rose would only take place upon payment of the purchase price in full. It was also a condition of the Deed of Sale that the purchasers would apply for a mortgage to pay the purchase price of the stand within six months of signing the Agreement of Sale. The Deed of Sale agreement prohibited the purchasers from selling, ceding, assigning or transferring all or any of the rights in the stand without the written consent of the seller.

On 25 July 2000 Mr Makusha and Rose entered into an Agreement of Sale, in terms of which agreement Rose sold to Mr Makusha the stand for the sum of $225 000. $100 000 of the purchase price was payable as a deposit upon the signing of the Agreement of Sale. In terms of the special conditions in the Agreement of Sale “the balance of the sum of $125 000 will be paid over a thirteen month period at a monthly instalment of $10 000, commencing on 1 September 2000 without interest charged”. According to my calculation, the last instalment was payable by 1 October 2001.

On 15 October 2002 Boniface and Rose jointly sold the stand to Esther, their daughter, for the amount of $585 000. The Agreement of Sale is signed by all the parties, Boniface, Rose and Esther. Mr Makusha disputes the authenticity and bona fides of this Agreement of Sale. According to Boniface, the money received from Esther as the purchase price was used by Boniface and Rose to pay the outstanding balance of the purchase price in terms of the Deed of Sale agreement between them and Mr Hockley. According to Boniface, upon the payment of the purchase price in full to Mr Hockley in terms of the Deed of Sale, Boniface and Rose instructed Mr Hockley to transfer the stand to Esther. This was duly done on 10 October 2003 under Deed of Transfer No. 491/03. The stand is presently registered in the name of Esther.

On 15 July 2005 Esther sold the stand to Mr Gurajenah for the amount of $80 million. She initiated the process of transferring the stand to Mr Gurajenah, but was interdicted from transferring the stand to Mr Gurajenah when Mr Makusha launched these proceedings.

Mr Makusha contends that this was a case of multiple sales of the same stand to multiple purchasers and that he is entitled to have the stand transferred to him because his Agreement of Sale with Rose preceded the other Agreements of Sale of the stand.

As I have said, Esther opposed the application. She opposed the application on the grounds - (a) that Mr Makusha’s claim had prescribed, his cause of action having arisen in 2001; and (b) that the Agreement of Sale between Rose and Mr Makusha was invalid because it was entered into by one co-owner, as opposed to both co-owners, of the stand. Put differently, Rose had no authority, being only the co-owner of the stand, to sell the stand without the consent or authority of the other co-owner, Boniface.

The learned judge in the court a quo concluded that Mr Makusha’s claim had indeed prescribed and dismissed the application on that basis.

Dissatisfied with the judgment of the court a quo Mr Makusha appealed to this Court on the grounds set out in the notice of appeal, which read as follows:

“1. The learned judge in the court a quo erred by holding that the matter is prescribed. The learned judge decided the matter on the point in limine in isolation and failed to give due consideration to the fact the fraud that was committed by the second respondent and her father Boniface Chihoho on the appellant led to the delay in the transfer.

2. The learned judge in the court a quo erred by holding that since the purchase price had been paid in full in 2001 the period of prescription started to run from that time. It is worth noting that as per the seller’s agent’s request the applicant paid the sum of five hundred thousand dollars ($500 000,00) to ensure transfer in March 2005. Consequently prescription was supposed to run from March 2005.

3. The learned judge in the court a quo clearly misdirected himself, thus his analysis of the matter can be successfully challenged.”

The first ground of appeal was abandoned and the third ground of appeal is meaningless.

Accordingly, the issue raised in the second ground of the notice of appeal is the only issue that falls for determination by this Court, namely whether the court a quo was correct in concluding that Mr Makusha’s cause of action had prescribed.

I respectfully agree with the conclusion of the learned Judge in the court a quo.

Section 16 of the Prescription Act [Cap. 8:11] provides as follows:

“16 When prescription begins to run

(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.

(2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises;

Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”

Section 16 makes it abundantly clear that prescription begins to run as soon as the debt is due. In terms of the Agreement of Sale relied on by Mr Makusha, assuming that the Agreement of Sale is valid, the debt or Mr Makusha’s entitlement to transfer accrued in or about October 2001 when Mr Makusha was entitled to tender payment and claim transfer. In my view, Mr Makusha’s failure to pay the balance of the purchase price by the agreed date does not postpone the date the cause of action arose. Thus, in my view, Mr Makusha’s contingent debt or entitlement to transfer accrued in or about October 2001. That is when prescription commenced to run.

I find untenable the contention by Mr Makusha that prescription only commenced to run when he learned in 2005 that the stand was about to be transferred by Esther to Mr Gurajenah. As I understand Mr Makusha’s contention, the cause of action arose when he discovered the alleged fraudulent sales of the stand to Esther and Mr Gurajenah.

It is quite clear on the papers that Mr Makusha’s cause of action is contractual, alleging a breach of the Agreement of Sale as opposed to the cause of action being delictual, based on fraud. Mr Makusha must have known from the Agreement of Sale he signed that he was entitled to the transfer of the stand upon the payment of the balance of the purchase price and he had thirteen months within which to make the payment.

Apart from this, the validity of the Agreement of Sale between Rose and Mr Makusha is open to serious doubt for a number of reasons, among them (a) the agreement between Rose and Mr Makusha was signed by Rose alone as the owner of the stand when in fact she was only a joint owner of the stand; and (b) the rights in the stand could not be alienated without the written consent of the owner of the stand in terms of the Deed of Sale between Rose and Boniface on the one hand and Mr Hockley on the other. Such consent is not alleged to have been obtained prior to the signing of the agreement between Mr Makusha and Rose. However, those issues would have been relevant if this Court was seized with the merits of this case.

In the result, I am satisfied that prescription against Mr Makusha’s cause of action commenced running in October/November 2001. Three years elapsed long before Mr Makusha launched his application.

Accordingly, the appeal cannot succeed and is hereby dismissed with costs.

SANDURA JA: I agree

ZIYAMBI JA: I agree

Gutu & Chikowero, appellant's legal practitioners

Musunga & Associates, second respondent's legal practitioners