1
HB 80-15
HCA 53-13
NOMAGUGU IRENE MOYO
and
JUDAS NCUBE
IN THE HIGH COURT OF ZIMBABWE
MUTEMA & TAKUVA JJ
BULAWAYO 20 OCTOBER 2014 & 23 APRIL 2015
Civil Appeal
R. Moyo-Majwabu for the appellant
B. Ndove for the respondent
TAKUVA J: The betrayal of Jesus Christ is chronicled in Mathew Chapter 26 verses 14 to 56. The betrayer was one Judas Iscariot who happened to be one of Jesus’ twelve disciples. Driven by sheer greed, Judas approached the Chief Priest and asked, “What are you willing to give me if I deliver him over to you? So they counted out for him thirty pieces of silver. From then on Judas watched for an opportunity to hand him over.”
The respondent in this case is Judas Ncube (“Judas”) whose betrayal of his late cousin Lawrence Moyo (“Lawrence”) though not as famous as that of his namesake is thoroughly shameful and immoral. It is so in that in a bid to cheat his deceased cousin’s legitimate beneficiary he swore to an affidavit on 25 April 2002, i.e. two years after burying Lawrence on 14 June 1999 that “… In the meantime I was advised to continue paying rentals in the name of Lawrence Moyo. I obliged. That was the last time I met this Mr L. Moyo and it is now almost twenty (20) years, I do not know where he is and I have never met him.” (my emphasis)
The reason for this blatant lie was to enrich himself by falsely claiming ownership of Lawrence’s house at the expense of beneficiaries to Lawrence’s estate. Unshamedly and without any conscience Judas dragged the appellant (Nomagugu Irene Moyo) Lawrence’s only child to the magistrate’s court where using his brothers and wife as witnesses, successfully obtained an order declaring him the “rightful owner” of Lawrence’s house. Aggrieved and dissatisfied by this decision, appellant appealed to this court.
The following facts are common cause.
- In July 1987, Lawrence signed an agreement which had been entered into in February 1983, in terms of which he purchased stand 3897 of Lot 1 Emakandeni Township from the Bulawayo City Council.
- The purchase price was agreed at $2 379,00 payable with a deposit of $100,00 and thereafter by instalments of $21,65 per month with the first instalment payable in February 1983.
- On 22 May 1984, Lawrence signed a letter pre-printed by the Bulawayo City Council on its Letter Head, seeking permission of the Council to allow respondent to occupy his house number 3897 Emakhandeni Township during his absence from Bulawayo. It is clear that this permission was granted by Council, through the Entumbane Housing Officer when he signed the letter written by the late Lawrence.
- The respondent moved into the house after the Housing Officer had approved the letter written by the late Lawrence.
- Lawrence died in 1999.
- Appellant was appointed Executrix of Estate Late Lawrence Moyo.
The appellant’s grounds of appeal are as follows:
“1. The decision of the court a quo went against the weight of evidence adduced in court.
2. The court a quo erred in law in making a finding that the respondent had proved his case on a balance of probabilities when there was no evidence that the respondent had legally acquired the right, title and interest in stand number 3897 Emakhandeni, Bulawayo. All the evidence before the court clearly showed that the stand was registered in the name of the late Lawrence Moyo.
3. The court a quo erred in not giving due weight the letter signed by the parties before the Bulawayo City Council’s Housing Officer on the 22nd May 1984 which clearly sets out the basis upon which respondent was being allowed to occupy the late Lawrence’s stand number 3897.
4. The court a quo erred in accepting respondent’s evidence as credible when the respondent’s evidence was highly contradictory and clearly untruthful.
5. The learned presiding magistrate failed to appreciate the clear legal position disclosed by documentary evidence placed before him clearly showing that on a preponderance of probabilities, the right, title and interest in the said stand rested with Lawrence Moyo.
Relief sought
WHEREFORE the appellant prays for an order setting aside the judgment of the court a quo and substituting it with the following order:-
1.The applicant’s claim of ownership of stand number 3897 is dismissed.
2.The applicant is to pay the costs of suit in the court a quo.
3.The respondent herein is to pay the costs of this appeal.
The first ground is of a general nature while the second and fourth grounds are similar. Consequently, I will combine the latter grounds in my analysis of the reasoning of the magistrate in his judgment. The starting point in my view is the analysis of evidence by the court a quo. Surprisingly, the court only devoted one paragraph wherein it stated:
“Going through the evidence led in this court it would appear that the respondent in this case is simply trying to take advantage of the fact that applicant did not effect change of ownership in question whereas in fact the applicant acquired the house in question all the witnesses who testified in support of the applicant appeared to be credible witnesses who gave their evidence well. It would be very hard for this court to disbelieve their testimony as reflecting the truth of what transpired in this case as I have already pointed out, respondent most likely is attempting to take advantage of change of ownership which was not effected by applicant. In fact if respondent’s father had failed to pay rentals for that house, there is no way he could have managed to extend it. This court rules that applicant be and is hereby declared the rightful owner of the house in question.” (my emphasis)
It should be noted that the court a quo did not give reasons for what turned up to be its findings of fact. The court relied on speculation. For example the conclusion that the appellant was “taking advantage” of the fact that change of ownership had not been effected is pure speculation. As regards credibility the court a quo misdirected itself by assessing the credibility of witnesses as a group when they gave evidence on different areas and periods. Again no reasons were given for concluding that they were truthful witnesses. The court did not say why it believed that the appellant’s father could not afford to pay rentals for that house.
In my view, the finding by the court a quo that the respondent was the “rightful owner of the house in question” is baffling in light of the following evidence:
- Lawrence was the registered owner of stand 3897 Emakhandeni Township when it was first allocated in 1983.
- Ownership was never revoked subsequently as proven by the fact that the agreement of sale between the City of Bulawayo and Lawrence Moyo was never cancelled.
- Subsequent documents signed by the City of Bulawayo including the application for a development permit and the certificate of completion, at page 173, were all issued in the name of Lawrence Moyo.
Overall, the respondent’s evidence cannot be described as credible. On the contrary, it is highly contradictory, improbable and clearly untruthful. I say so for the following reasons:
According to the respondent, he moved into Lawrence’s house in May 2004, the date at which respondent claims that Lawrence had been evicted by the Council from the house for non-payment of rent, but surprisingly, the same Council’s Town Clerk signed the agreement of sale between the Council and Lawrence Moyo on the 28th January 1988. It does not make sense for respondent to claim that the City Council dispossessed Lawrence of his house in May 1984 and reallocated it to him when the same Council signed an agreement of sale with Lawrence Moyo four years later. If the house had been reallocated to respondent in 1984, the 1988 agreement would have been signed with respondent and not with Lawrence Moyo. Certainly, the issuing of the 1988 agreement in Lawrence’s name confirmed that the 1984 agreement was still in place.
Another piece of contradictory evidence from respondent relates to the crucial question, namely, how he acquired ownership of the house. In other words, did he buy the house or was it just given to him by the Council after Lawrence had defaulted in his payment. Initially respondent made the allegation in various affidavits that he purchased the house from Lawrence for US$300,00. Later he made a complete turn-around and said he did not buy the house but that it was given to him for free in 1984.
The third ground of appeal, in my view, highlights the clear misdirection by the court a quo in its failure to consider the basis upon which respondent was being allowed to occupy the late Lawrence’s house. This basis is a letter the Housing Officer allowed Lawrence Moyo to address to the City Council on the 22nd May 1984 which is part of the record. That letter sets out in no uncertain terms the conditions under which the respondent was allowed to move into and to occupy the house. It is clear from that letter that Lawrence, the lessee would not be residing at that property for an unknown period and as a result, he sought permission of the Municipality to allow the respondent to occupy his house during his absence. Further, Lawrence agreed to pay such things as rates, rents, fees, service charges to the City of Bulawayo. Lawrence also agreed that he would be personally responsible to the City of Bulawayo for any breach by the respondent of the terms of his lease agreement with the Municipality. The letter was signed by Lawrence and interestingly the witness to Lawrence’s signature is none other than Judas Ncube (the respondent herein).
In my view, if the court a quo had critically examined the respondent’s evidence, his two brothers’ evidence and his wife’s testimony, it would have been apparent that, that evidence does not establish a legal basis upon which ownership of the house could be said to have changed from Lawrence to respondent. This is so for the simple reason that there is no documentation to prove that respondent at some stage became the “lessee”. Also, the probabilities do not seem to favour the respondent in that a prudent man like the respondent who was employed by the Ministry of Home Affairs would proceed to “extend” a house that was in Lawrence’s name. If indeed he had extended it, he would have demanded transfer when Lawrence was still alive. This he did not do for obvious reasons.
Respondent alleged that he applied for and was granted permission to extend the house to a seven roomed house. However, the documentary evidence that is available all point to the application having been made by Lawrence and the certificate of completion of that extension issued by the Council on 20 September 1989 by the Director of Building and Amenities to Lawrence and not to Judas – see page 173 of the record. Surely if the City Council had reposed the house in 1984 as alleged by the respondent, it is inconceivable that in 1989, Council would still be issuing completion certificates in the name of Lawrence five years later.
In my view, in a case like in casu which comes to litigation when one of the litigants is deceased and the litigation involves his estate, justice will be better served if greater weight is given to the documents signed by both parties when they were alive. The viva voce evidence of the surviving litigant who says things that contradict what the deceased wrote during his life time should be treated with suspicion as compared to documents placed before a trial court. In casu, if the trial court had adopted this approach to the assessment of the evidence, it would not have arrived at the conclusion it reached.
For these reasons, the judgment of the court a quo is set aside and substituted with the following order:
- The applicant’s claim of ownership of stand number 3897 is dismissed.
- The applicant is to pay the costs of suit in the court a quo.
- The respondent herein is to pay the costs of this appeal.
Mutema J …………………………………I agree
James, Moyo-Majwabu & Nyoni, appellant’s legal practitioners
Ndove, Museta & Partners, respondent’s legal practitioners