Judgment No. 33/15
Case No. HC 490/14
X REF DRBY 226/13
MASIWA HWARA
Versus
EUBERTINNAH MUDIMU (in her capacity as the
Executrix of the Estate of the late Felix Mudimu)
And
ADDITIONAL ASSISTANT MASTER OF THE HIGH COURT N.O.
IN THE HIGH COURT OF ZIMBABWE
MUTEMA J
BULAWAYO 3 & 19 FEBRUARY 2015
J. Tshuma for the applicant
First respondent in person
No appearance for the second respondent
Opposed Application
MUTEMA J: Applicant herein seeks an order that second respondent re-open the estate of the late Felix Mudimu so that she may lodge her claim for the transfer of a property known as house number 5747 Nketa 9, Bulawayo. The application is opposed by first respondent who is the widow of the late Felix Mudimu. From the outset second respondent was legally represented by Messrs Ahmed and Ziyambi Legal Practitioners who went on to renounce agency soon after applicant had filed her answering affidavit.
The following salient facts have been established on the papers:
The applicant and the late Felix Mudimu concluded a written agreement of sale of stand number 5747 Nketa 9, Bulawayo for an agreed purchase price of Z$14 000,00. As lay persons are wont to do, the parties drafted a simple handwritten agreement of sale on 2 December, 1993 (Annexure ‘P’). However, when the parties attended at the offices of Beverley Building Society who held a mortgage bond over the house, they were advised to seek services of a legal practitioner and have a proper sale agreement drafted. This they did at Webb, Low & Barry Legal Practitioners on 9 March, 1994.
The late Mudimu acknowledged receipt of a deposit of Z$6 000,00 by 9 March, 1994 as reflected on annexure “Q”. Applicant lodged the agreement with Beverley Building Society and took over the monthly repayment for the mortgage bond number 8490/91 in the sum of Z$8 000,00 which was due and owing then. By 19 December, 2002 applicant had completed payment of the mortgage bond. Meanwhile, unbeknown to applicant, Felix Mudimu had passed away on 25 May 1997 in Chivhu rural. When applicant traced the late Mudimu to his rural home in Chivhu with a view to have the house transferred into her name, she discovered that Mudimu had died. Applicant tracked down Wonder Mudimu, Felix’s brother in Harare and requested him to register Felix’s estate but Wonder indicated that he could not since first respondent was alive. She then waited for first respondent to register the estate.
Since the date of signing the sale agreement applicant has enjoyed undisturbed possession of stand number 5747 Nketa 9, Bulawayo. She has never paid rent or any other consideration to first respondent during her tenure at the property neither has first respondent made any claim to the property until she registered the estate of the late Felix Mudimu in August, 2013.
Applicant has extended and developed the structure from a single room to a seven roomed house during her tenure and has paid all water, rates and electricity charges thereon for the entire period of her occupation. First respondent only registered the estate after Wonder had informed her that applicant wanted assistance in transferring the property from the estate into her name.
First respondent registered the estate without informing the applicant and she went on to advertise for claims against and for the estate in 2013, which advertisements applicant never saw. Despite the fact that first respondent was well aware of the sale of the property to applicant she willfully chose not to alert applicant about the registration of the estate.
However, inspite of the foregoing first respondent opposed the application. Three main planks were raised as the basis of the opposition, viz, in limine, that there is no founding affidavit by the applicant because the signature thereon is not hers hence no court application before the court and that if the property was purchased on 9 March, 1994 then applicant’s claim is prescribed and lastly on the merits, that the agreement of sale is not valid therefore not enforceable at law. I will deal with the three points raised in opposition hereunder.
1.WHETHER THE COURT APPLICATION IS FATALLY DEFECTIVE FOR ALLEGED LACK OF PROPER SIGNATURE ON APPLICANT’S FOUNDING AFFIDAVIT
On the disputed affidavit the applicant signed M. Hwara and the agreement of sale signed on 9 March, 1994 she signed Masiwa Hwara. At the time of raising this point of opposition in limine these were the only two documents first respondent had seen to enable her to compare applicant’s signatures. There is no law which stipulates that a person’s signature must be consistent or be the same on each and every document that he/she appends a signature to. Prior to raising this point first respondent had never seen applicant sign on any document. No expert evidence by a questioned document examiner was furnished to buttress the contention that the signature is not that of applicant. The allegation is just first respondent’s ipsissima verba. The affidavit was deposed to before a legal practitioner who is a commissioner of oaths. The claim therefore is without merit and is hereby dismissed as mere attempt at sophistry.
2.WHETHER APPLICANT’S CLAIM FOR TRANSFER OF THE PROPERTY IS PRESCRIBED
The first respondent premised this point on the Prescription Act. She simply averred that because applicant purchased the house on 9 March, 1994 then in terms of that Act, her claim is prescribed. She did not state what chapter is the Prescription Act, what the period of the alleged prescription is or what section of that Act is the applicable one as if her allegation is trite. This is bad pleading. If first respondent was alluding to the three year period of prescription of debts in section 15 (d) of the Prescription Act, [Chapter 8:11] then she must have missed her law by a mile. That provision does not apply to the instant case.
The applicable provision here is section 17 (1) (e) of the Prescription Act. It provides as follows:
“17. When completion of prescription delayed
- If –
…
(e) the creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed;
and the period of prescription would, but for the subsection, be completed before or on, or within one year after, the date on which the relevant impediment referred to in paragraph (a), (b), (c), (d) or (e) has ceased to exist, the period of prescription shall not be completed before the expiration of the period of one year which follows that date.”
Clause 8 of the agreement of sale states that transfer of the property would only be effected once applicant had completed paying off the mortgage bond to Beverley Building Society. Applicant fulfilled this suspensive condition on 19 December, 2002. Meanwhile Felix Mudimu had died on 25 May, 1997 in Chivhu. Applicant could not claim transfer from a deceased person and also before fulfilling the suspensive condition. Only the executor of the estate, once the suspensive condition had been fulfilled, could legally pass transfer of the house.
The estate was only registered and the executrix appointed on 9 August, 2013. On the authority of section 17 (1) (e) above, by the time applicant put in motion the legal process of claiming transfer, viz 3 March, 2014, the one year prescriptive delay had not yet run its full course from 9 August, 2013.
In the result, it is a legal fallacy to allege that applicant’s claim has prescribed.
3.WHETHER THE AGREEMENT OF SALE IS INVALID AND NOT ENFORCEABLE AT LAW
The main legal thrust by the first respondent regarding this contention is that the agreement of sale is not valid on account of clauses 2 and 3 thereof being contradictory. The alleged contradiction is difficult to comprehend. Clause 2 states that:
“2. The purchase price of the property shall be the sum of $14 000,00 to be paid as follows:-
(i)$6 000,00 cash, which amount the seller acknowledges to have already been paid to him;
(ii)The purchaser will pay the balance of the purchase price by paying for and on behalf of the seller the sum of $8 000,00 which he owes to Beverley Building Society together with all the interest accruing to the loan granted to the seller.
3. Occupation of the property shall be given to the purchaser after payment of the sum of $6 000,00.”
Apart from first respondent’s mere say so there is no discernible contradiction exitant between these two clauses. Maybe it would have been apparent had first respondent elaborated on the averment and brought out the alleged contradiction.
Factually, the first respondent, like a runaway horse, in an endeavour to prove that the agreement of sale is invalid and unenforceable at law, told a story that flies in the face of common sense and logic. She alleged that applicant was a mere tenant who took over payment of the Beverley mortgage bond in lieu of paying rentals. First respondent averred that she also paid some of the mortgage bond repayments as reflected on annexure “A1”. However, the said annexure “A1” was never attached to her papers. If her story were true common sense and logic would dictate that after paying off the mortgage bond in December, 2002 first respondent would have arranged that applicant pay rentals for the property directly to her. Nothing of the sort ever happened. Also, would applicant have been magnanimous if not stupid qua tenant, as to improve a house that was not hers from one room to seven rooms? The alleged tenancy arrangement cannot stand in the way of the written sale agreement which by any standards meets all the requirements of a valid contract. I find that first respondent’s attempt to show that the agreement of sale is invalid and unenforceable amounts to digging in the ashes.
In the result, on the totality of the findings made above, the application succeeds and I grant an order in the following terms:
- The second respondent be and is hereby ordered to reopen the estate of the late Felix Mudimu for the purposes of determining the claim of the applicant regarding the property known as stand number 5747 Nketa 9, Bulawayo.
- The first respondent shall pay the costs of this application.
Messrs Webb, Low & Barry, applicant’s legal practitioners
