JOYCE MAMVURA

versus

CHRISPEN MAKANGANYA

HIGH COURT OF ZIMBABWE

HUNGWE and KARWI JJ

HARARE, 3 March 2011

CIVIL APPEAL

T Mutero, for the appellant

F Nyamayaro, for the respondent

KARWI J:  This is an appeal against an order of the magistrate dismissing an application by the appellant seeking the eviction of the respondent from House number 8844 Zengeza 3 (also known as 6 Gate Crescent, Zengeza 3, Chitungwiza), which property the appellant had alleged belonged to her late father. The appellant stated in her grounds of appeal that the court a quo had misdirected itself in relying on forged agreements of sale and receipts of payment which had been produced by the respondent and ignored the expert advice of a questioned documentary examiner. She further stated that the court had erred and misdirected itself in making a ruling on the matter before its order granted against the respondent to have two further agreements relied on and produced by the respondent could be examined by the questioned documentary examiner. It was also her further ground of appeal that the lower court had erred in recognizing that it was most improbable that the respondent failed as he did to have his rights, title and interest in the property ceded to him for a period in excess of twenty one years.

The background of this matter is accurately summarized by the appellant in his heads of argument as follows: The appellant s father, one Ericum Mamvura passed on in August 2004 and his estate was registered with the Master of this court. The appellant was then appointed as the executrix dative of the estate. The appellant’s late father was the owner of stand number 8844 Zengeza 3, Chitungwiza. (hereinafter referred to as “the property”). The appellant was accordingly granted a certificate of authority to cede rights, title and interests in the property to beneficiaries of the estate, which she did. The appellant however discovered that vacant possession of the property could not be obtained as the respondent who had been his late father s tenant since 1983 was refusing to vacate the said property.

The appellate, as executrix dative of her father s estate issued summons in the court a quo against the respondent seeking his eviction from the property. The respondent proceeded to defend the eviction on the basis that he had actually bought the property in question from the late Ericum Mamvura in 1983. In support of his assertion, the respondent produced in court an agreement of sale and receipts showing that he had paid a total of $13000-00 for the property. The matter proceeded to a fully contested trial resulting in the magistrate ruling in the manner he did.

In her heads of argument the appellant submitted that her evidence in the lower court had been satisfactory and clear as she established a clear right over the property as it was registered in the name of the late Ericum Mamvura, whose estate she was administering. She had also shown that the respondent was an unlawful tenant who had since the dead of her father stopped paying rent. She further argued that the respondent’s defence of having bought the property was highly improbable and unbelievable. The respondent had failed to effect cession of his rights, title and interests in the property for 21 years. Even after the death of Mr Mamvura in 2004 the respondent failed to take action to defend his rights and interests. It was only after the appellant had brought an action for eviction that the respondent started to allege that he had bought the property. She urged the court to accept the principle that the court assists those who are awake not those who are asleep (lex subvenit vigilantisbus, non dormientisbus)

It was also argued in support of the appeal that it was the responsibility of the respondent to prove the authenticity of the alleged agreement of sale and the payment receipts. The appellant stated that from the evidence led in court the signature on the agreement that the respondent was purporting to be that of the late Mr Mamvura was not that of the appellant s father. This was confirmed by a questioned documentary examiner. It was stressed that the court a quo had fallen into error by completely ignoring the advice of a handwriting expert.

It was also submitted that the purported agreements of sale and the payment receipts were bogus and forged for all intents and purposes. The appellant’s father’s name was mispelt in all the purported agreements of sale and the so called agreements were written in broken English language yet the appellant’s father was an educated and literate man who could not have mispelt his own name three times in a row.

It was further submitted that the respondent had failed to produce original copies of the purported agreements. The appellant had to file an application seeking the respondent to be compelled to produce the original copies. The appellant’s application for a compelling order was granted but the respondent refused to produce the original documents. It was submitted that in terms of s 11 of the Civil Evidence Act [Cap 8:01] and as per dicta in Standard Merchant Bank Ltd v Creser 1982 (4)671 (W) at 674B the documents which the respondent relied upon were not admissible for want of the originals. Surprisingly, the court a quo proceeded to make a ruling before the compelling order was complied with.

In his heads of argument, the respondent submitted that the appellant had failed to substantiate her claim that the documents he relied upon to show that he had bought the house had been forged. The onus was on the appellant to prove that claim against the respondent. She had to set out clearly and to the satisfaction of the court her reasons for wanting to evict the respondent from the property. She could not adduce evidence to support her claim that the respondent was a tenant. The appellant could have gone further to adduce evidence and produce proof to show that the respondent was indeed a tenant. The appellant had no facts to dispute the respondent’s claim that he had bought the house from the appellant’s father. She also did not dispute the fact that she was only seven years old when the respondent bought the property.

It seems to me that the outcome of this case at the Magistrates’ court entirely depended on the assessment of the evidence by the two parties. The lower court had the onerous task of assessing the probabilities in the case. It seems to me that the lower court properly discharged that responsibility quite well. In its judgment, the court a quo found the evidence of the appellant to be very unsatisfactory. The court correctly found it impossible that she would remember transactions which happened when she was only seven years old, which transactions did not involve her that matter. The court further correctly, queried the delay of twenty-three years before instituting legal proceedings to evict the respondent. The lower court also noticed that the appellant had failed to prove that the respondent was a tenant as she alleged. The learned magistrate also correctly found that the respondent had succeeded in showing that the respondent had bought the property from the appellant’s father. In support of his assertion the respondent had produced agreements of sale which were signed by him and the seller and three witnesses. The respondent had gone further to call three witnesses who were present at the time of sale. The court found the evidence of the respondent to be credible and satisfactory. It also found that the respondent’s evidence had been corroborated by witnesses.

It is settled law that the assessment of the credibility of a witness is par excellence the province of the trier of fact, who in this case was the court a quo. That assessment ought not to be disregarded unless satisfied that the assessment defies reason and common sense. In the celebrated case of Stellenbosch Farmers Winery & Anor v Martel and Cie & Ors, it was stated that:

“In the light of its assessment, the court will as a final step determine the party burdened with the onus of proof that has succeeded in discharging it”.

The court’s findings on the credibility of a particular witness will depend on its impression, that is, the witness’s candour and demeanor, the probability and improbability of particular aspects of the witness’s version.

As a result, there was no error or misdirection on the part of the learned magistrate in the court a quo. The evidence adduced before that court was properly analyzed and the correct decision taken. The appeal cannot succeed. The appeal is therefore dismissed with costs.

Legal Aid Directorate, appellant’s legal practitioners

Kanyenze & Associates, respondent’s legal practitioners