Judgment No. HB 51/2003

                                                                                    HC No. 4005/2000

 

JONATHAN MADZIKANDA GWATURA

 

Versus

 

RODWELL MADZIMA MUGWENI

 

IN THE HIGH COURT OF ZIMBABWE

CHIWESHE J

BULAWAYO 21 MARCH & 17 APRIL 2003

 

N T Mashayamombefor the applicant

Miss P Rusikefor the respondent

 

Judgment

 

            CHIWESHE J:          In this matter the plaintiff’s prayer is for an order

 

directing the defendant to sign the necessary transfer documents in respect of certain

 

immovable property namely stand 1330 Torwood Township of Ripple Creek Estate

 

situate in the District of Que Que (also known as R 75 Torwood Township Redcliff)

 

to facilitate the transfer of the property to the plaintiff.  Alternatively, failing such

 

signing by the defendant that the Deputy Sheriff be ordered to sign the necessary

 

documents on behalf of the defendant.  Further the plaintiff prays for an order of costs

 

on an attorney and client scale.

 

            The facts of the matter according to the plaintiff are briefly as follows.  On 5

 

November 1998 the plaintiff and the defendant entered into an agreement of sale of

 

the property in question wherein the defendant agreed to sell to the plaintiff the

 

property for the sum of $22 713,00.  The agreement in question has been admitted as

 

exhibit number one.  It is clear from that document that at the time the defendant was

 

the sitting tenant of the property which then belonged to Ziscosteel.  It was

 

understood then that Ziscosteel was desirous and willing to transfer its rights and title

 

 

 

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to the defendant as the sitting tenant upon payment of a certain purchase price by the

 

defendant.  And in terms of the preamble to the agreement between the plaintiff and

 

the defendant, the defendant was desirous of selling his rights, title and interest to be

 

acquired from Ziscosteel to the plaintiff who in turn was desirous to purchase the said

 

rights, title and interest from the defendant.  The agreement stipulates that the

 

purchase price would be the sum of $22 713,00 as between the plaintiff and the

 

defendant.  (It is worth noting that in terms of the offer made by Ziscosteel to the

 

defendant, the same purchase price would be payable to Ziscosteel by the defendant).

 

            In terms of the agreement between the parties the plaintiff was to pay the

 

purchase price directly to Ziscosteel.  Thereafter Ziscosteel would be expected to

 

transfer the property to the defendant who would in turn transfer it to the plaintiff. 

 

Ziscosteel has since transferred the property to the defendant.  The defendant has

 

refused to transfer his newly acquired title to the plaintiff leading to the present

 

dispute.

 

            In his plea the defendant states that the agreement was void ab initio because

 

when it was entered into the seller had not taken over ownership of the property and

 

accordingly could not sell what he did not own.  In any event the seller would have

 

been required to seek the consent of Ziscosteel before he could sell the property. 

 

Such consent was never sought and obtained.  He further pleads that, as the agreement

 

of sale was invalid, the amount paid by the plaintiff can only be regarded as a loan

 

which the defendant tendered and paid into court in full and final settlement of the

 

plaintiff’s claims.

 

             The plaintiff and the defendant both gave evidence under oath.  It is clear

 

from their evidence that exhibit 1 was drafted by Paradza and Partners Legal

 

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Practitioners and duly signed by both in the presence of witnesses in the employ of

 

that firm.  It is also common cause that it was the plaintiff who paid off Ziscosteel

 

on behalf of the defendant.  The property has since been transferred by Ziscosteel into

 

the defendant’s title.  The bone of contention is the purport of exhibit “1”.  The

 

plaintiff says that it is an agreement of sale.  The defendant accepts that on the face of

 

it is an agreement of sale and that he had queried this arrangement before signing the

 

agreement.  He says that he was persuaded by the plaintiff and Mr Paradaza to sign

 

the agreement as it would serve atssecurity for the loan advanced to him.  He was

 

further advised that the agreement would be torn or destroyed once the loan had been

 

repaid.  So far as he was concerned despite what the documents purports to be, it was

 

in fact a loan advanced to him by the defendant in order that he the defendant pays off

 

Ziscosteel who in turn would transfer the property to him.  He says that he never sold

 

the property and never intended to do so.  He said that he trusted the plaintiff as a

 

long-standing friend and neighbour.  He had on previous occasions assisted the

 

plaintiff to source bank loans to pay for a property in Harare and later to buy his first

 

commuter omnibus.  It was with that background that he signed exhibit “1”.

 

            The plaintiff has not denied the nature of the relationship between the parties

 

and the assistance previously rendered him by the plaintiff.  His evidence is to the

 

effect that the defendant had been offered the property by Ziscosteel but did not have

 

the money to pay the purchase price.  The defendant had then approached him with a

 

view to sell the house to him if he plaintiff could pay off Ziscosteel.  The plaintiff

 

agreed to that proposal and together they approached Paradza and Partners who

 

drafted exhibit “1”.  Both sides did not call further witnesses.

 

            The issue to be decided is whether exhibit “1” is an agreement of sale or an

 

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agreement of loan.  On the face of it, it is what it purports to be – an agreement of

 

sale.  Having heard both parties it appears to me that the defendant’s version of what

 

transpired is more probable than that of the plaintiff.  There are two agreement here –

 

one between Ziscosteel and the defendant and another between the defendant and the

 

plaintiff (exhibit 1).  Both of them relate to the same property.  The arrangement

 

according to the plaintiff was that the defendant would pay Ziscosteel in order to

 

secure transfer of title to him.

 

            The amount owing by the defendant to Ziscosteel was $22 713,00.   That

 

amount was duly paid to Ziscosteel and transfer effected in favour of the defendant.  It

 

was the plaintiff who paid Ziscosteel on behalf of the defendant.  Thereafter according

 

to the plaintiff the defendant was to transfer the property to him in terms of exhibit

 

‘1”.  The question to be asked is for what consideration would the defendant be bound

 

to transfer the property to the plaintiff?  The amount that was paid to Ziscosteel in

 

respect of the first agreement between it and the defendant is also the same amount

 

that should be taken as the purchase price in respect of the second agreement between

 

the defendant and the plaintiff.  In other words once the plaintiff had paid Ziscosteel

 

on behalf of the defendant, then he would also have discharged his obligations with

 

regards the defendant in terms of exhibit “1”.  That to me does not make sense.  It

 

means that no benefit accrues to the defendant at all.  Would the defendant have

 

entered an arrangement in which he sold the property in return for nothing?  The

 

plaintiff has attempted to say that the defendant sold his house in return for free

 

tenancy for a period of six months after transfer to the plaintiff.  There is nothing in

 

exhibit “1” to that effect nor is that raised anywhere in the pleadings.  I am satisfied

 

that the plaintiff is not being honest with the court in that regard.

 

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            The defendant has stuck to his story, namely that he was duped into signing

 

exhibit “1” because of his limited knowledge of the law and the trust that he had of

 

the plaintiff and the legal practitioners concerned.  He believed genuinely that despite

 

its wording exhibit “1” had been prepared purely to safe guard the plaintiff’s position

 

as security for the monies advanced.  A month after the transaction he had attempted

 

to repay the loan but the plaintiff to defendant’s surprise refused to accept the money

 

insisting that he had bought the property.  Given that no consideration would have

 

been payable to the benefit of the defendant.  I find it unlikely that the defendant

 

would have sincerely sold his house for nothing.

 

            I would therefore find in favour of the defendant and dismiss the plaintiff’s

 

claim in its entirety with costs.

 

            It is ordered therefore that the plaintiff’s claim be and is hereby dismissed with

 

costs.

 

 

 

Paradza, Dube & Associatesapplicant’s legal practitioners

Makonese & Partnersrespondent’s legal practitioners