EVERISTO NYANYIWA

versus

KESARI BENHURA

and

CLAYTON GWARINDA

and

CITY OF HARARE

HIGH COURT OF ZIMBABWE

BHUNU J,

HARARE, 10^thand 25^thFebruary, 2004

Mr Thomas for the plaintiff

Mr Hungwe, for the 2^nddefendant

Civil Trial

            BHUNU J:  This case has to do with the double sale of certain immovable property being Stand number 4338 New Mabvuku Harare otherwise known as House Number 15 Muvhimi Street New Mabvuku.

            The facts giving rise to this dispute are to a large extent common cause.  The undisputed facts are that the lst defendant is the previous owner of the property in question.  On the 21^stDecember, 2001 he sold the house to the plaintiff for $300 000,00.

            The Agreement of Sale was reduced to writing by legal practitioners, Chihambakwe, Mutizwa and Partners.  The plaintiff then paid $286 000,00 by bank transfer.  He testified that he paid the balance of $14 000,00 by cash.  There is no reason to disbelieve him because the seller has not complained that he was paid the balance of the purchase price.

            The balance must have been paid because the two attempted to effect transfer in circumstances where Clause 2.2 of the Memorandum of Agreement of Sale provided that -

""Transfer shall be effected once the balance of the purchase price, together with interest has been fully paid".

            Transfer was not effected only because the Municipal authorities insisted on the seller producing the death certificate for his late wife.  The lst defendant undertook to obtain the death certificate to facilitate the transfer at a later date but unbeknown to the plaintiff he must have obtained the death certificate and resold the property to the 2^nddefendant for $700 000, sometime in February 2002 and transfer was effected on the 5^thMarch, 2002.  When the plaintiff experienced delays and the lst defendant was not forthcoming in expediting the transfer.  The plaintiff instituted legal proceedings to compel him to effect transfer.

            On the 15^thMay 2002 the plaintiff obtained judgment against the lst defendant under case number HC 2733/02 in the following terms -

"It is ordered:

1. That the lst respondent (Kesari Benhura) is hereby ordered to cede rights, title and interest in Stand No 4338 Mabvuku, Harare also known as No. 15 Muvhimi Street, Mabvuku, Harare to the applicant within ten (10) days from the date of service of this order, failing which the Deputy Sheriff be and is hereby ordered to sign all necessary documents to cede the rights, title and interest into the applicant's name.
2. That the 2nd respondent (City of Harare) be and is hereby ordered to approve the cession.
3. That the costs of this application be borne by the lst respondent".

The lst defendant did not defend the legal proceedings against him.  He opted to go underground and disappeared into thin air leaving the plaintiff and the 2^nddefendant to fight it out for the determination of their competing rights and interests in the property.

The plaintiff and the 2^nddefendant have since been engaged in vicious legal battles which have seen occupation of the disputed property swinging from one end to the other in a vicious circle.  The plaintiff is currently occupying the property.

Despite the heat which has been generated by the conflict of interests, the issue for determination is a simple one.  Counsel are agreed that the sole issue for determination is whether the 2^nddefendant had knowledge of the first sale when he entered into the second sale or at the time of cession.

The plaintiff called Paradzai Mutaki a lodger occupying the house at the time the two sales were concluded.  He testified that he was given notice by the owner in January 2001 to leave the house because the house had been bought.  He later corrected the date of notice to December 2001.  The error is understandable because he had no direct interest in the case.  He cannot be expected to have accurately kept all the details of the case.

In February 2002 he was approached by the 2^nddefendant's father as he wanted to inspect the house saying that it was on sale.  He advised him that the house had already been bought but he insisted on inspecting the house saying that the witness being a lodger had nothing to do with the sale of the house.  He then allowed the 2^nddefendant's father to inspect the house.  This witness was adamant that the 2^nddefendant bought the house with the full knowledge that it had been bought.

The 2^nddefendant did not call his father to rebut Paradzai's evidence.  He proffered no reason as to why he did not call his father.  Thus Paradzai's evidence stands virtually unchallenged.  He opted  to call his friend Stenford Nhede instead.  His evidence does not take the 2^nddefendant's case any further.  All what he had to say was that he introduced the 2^nddefendant to the seller.  That evidence however contradicts the plaintiff's evidence in some material respects.  In his summary of evidence the 2^nddefendant claimed that he got to know about the sale of the house through an advert in The Herald placed by the executor of lst defendant's wife's deceased estate.

He responded to the advert and was referred by the executor to three houses and he chose the house in question.  The 2^nddefendant's summary of evidence makes no reference to Stenford Nhede.  Because of that material contradiction of facts I hold that Stenford's evidence is no more than a fabrication calculated to bolster the 2^nddefendant's defence to the effect that he was an innocent third party who had purchased the disputed property in good faith.

The 2^nddefendant himself was not an honest and credible witness.  His evidence was to the effect that after buying the house he was not interested in inspecting the house.  He did not care whether or not the house had structural defects. Such evidence was as incredible as it is unbelievable.  In my view it is highly unlikely and not in the least probable that one could buy a house and have no desire to inspect the house and to meet the lodgers occupying the house to announce that he is the new owner of the house.

I am satisfied that the 2^nddefendant's evidence was tailor made to suit his defence that he never came into contact with the lodger who alleges that he told his father that the house had already been bought.

On the evidence before me I am satisfied that the 2^nddefendant bought the house with the full knowledge that it had been bought.  He therefore took a calculated conscious risk.

Both lawyers are agreed that on the authority of the law as articulated in the case of Crundell Brothers (Pvt) Ltd v Lazarus N.O. & Another 1991(2) ZLR 125 the resolution of the dispute hinged on whether or not the 2^nddefendant had prior knowledge that the house had already been sold when he bought it.  Having already come to the conclusion that the 2n^d applicant must have known through his father that the house had already been sold at the time he purchased the property, the plaintiff's claim can only succeed.

It is accordingly ordered:

1. that the agreement of sale between lst and 2^nddefendant be and is hereby cancelled;
2. that the agreement of sale between the plaintiff and lst defendant be and is hereby confirmed;
3. that the lst and 2^nddefendants be and are hereby ordered to cede their rights, title and interest in Stand No 4338 New Mabvuku, Harare also known as No 15 Muvhimi Street, Mabvuku Harare to the plaintiff within 10 (ten) days from the date of service of this order, failing which the Deputy Sheriff be and is hereby authorised to sign all necessary documents to cede rights and title into plaintiff's name;
4. that the 3^rddefendant be and is hereby ordered to authorised the cession;
5. that the 2^nddefendant is to bear the costs of this trial.

Mandihumba, Thomas & Partners, plaintiff's legal practitioners

Hungwe & Partners, defendant's legal practitioners