CHRISTMAS MUSONI

versus

NABOTH JOKONOKO

and

SHURUGWI TOWN COUNCIL

 

 

HIGH COURT OF ZIMBABWE

CHITAKUNYE J

HARARE, 7, 8 July, 20, 22 July 2009 and 17 March 2010

 

 

Civil Trial

 

 

T Mawere, for the plaintiff

W P Zhangazha, for the first defendant

No appearance for the second defendant

 

 

CHITAKUNYE J:      The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of house number 360 Makusha Township, Shurugwi

In his summons and declaration the plaintiff alleged that on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D Katerere”) in respect of house number 360 Makusha Township Shurugwi. The plaintiff was the purchaser and D Katerere was the seller.

In pursuance of that agreement D Katerere and himself attended at the offices of the second defendant and caused all rights, title and interest D Katerere had in the property in dispute to be formally transferred and registered in the plaintiff’s name. Thereafter the plaintiff took occupation of the house as the new holder of such rights and interests in the house.

In 1986 he vacated the house to take occupation of a plot he had just bought in the same town. He left some people in occupation of the house. The proprietor of Popular Bakery Mr Gokwe, who was his brother in-law requested him to let some of his employees occupy the house. He acquiesced to this request. Amongst the Popular Bakery employees who took occupation was Raphias Jokonoko, the first defendant’s elder brother. They took occupation in 1986 when the plaintiff left. When later on the first defendant was employed by Popular Bakery he also took occupation in the house together with his elder brother.

It was only in about January to June 2000 that the plaintiff said he discovered that the second defendant had formally transferred and registered his rights and interest in the property in the name of the first defendant. Upon this discovery he demanded that such transfer be reversed and that the house be transferred back into his names as the lawful holder of rights, title and interest in the house. Both the first and second defendants did not accede to this demand hence this suit filed on 15 May 2002.

In this suit the plaintiff’s claim is for an order:

 

1. Declaring him to be the lawful holder of all the rights, title and interest in house number 360 Makusha Township;
2. Directing the second defendant to formally transfer and register all the rights, title and interests in house number 360 Makusha Township, Shurugwi in the name of the plaintiff; and
3. Costs of suit jointly and severally against the first and second defendant with one paying the other to be absolved.

 

The first and second defendants filed a joint plea in which they disputed the plaintiff’s claim and entitlement to have the house transferred and registered in his name. In their plea the defendants denied that:

 

1. Dickson Katerere’s rights, title and interest in the property were ceded or transferred to and registered in the plaintiff’s name.
2. The property in dispute was ceded by the second defendant to the first defendant.
3. The house in question is or ever was on home ownership scheme contending that Dickson Katerere was a mere tenant of the second defendant just like the first defendant.
4. That the plaintiff acquired any title to the house in question.

 

The issues for determination were identified as:

 

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute;
2. Whether or not Dickson Katerere’s rights, title and interest in the house were transferred or ceded to and registered in the plaintiff’s name; and
3. Whether or not the plaintiff is entitled at law to the relief that he seeks.

 

The plaintiff gave evidence and called two witnesses namely Gertrude Nhendereko and Thomas Mandiamba. He also tendered into evidence a bundle of documents he relied on in his evidence. The first defendant thereafter gave evidence. He also tendered a bundle of documents in support of his case.

From the evidence adduced in court it was apparent that the house in question was at one time registered in the name of Dickson Katerere. It was also apparent that the nature of the lease that the plaintiff alleged D Katerere had was not an outright purchase.

The plaintiff’s evidence was to the effect that D Katerere had a lease to buy agreement and it is this agreement that he took over.

On taking over he filled in cession forms and lease to buy agreement forms at the second defendant’s office. This was in 1981. The lease to buy forms he filled in were similar to the lease to buy agreement that the first defendant had as part of his bundle of documents titled “purchase/sale agreement conversion of rental accommodation into homeownership”. This form has three parties to it being Shurugwi Town Council as owner of the house, the Government as the owner of the land onto which the house is built and the purchaser.

In Hundah vMurauro 1993 (2) ZLR 403 (S) at 403 the court alluded to the fact that:

 

“Land in the high density suburbs belonged to the local authorities or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the 4^thcategory of lodgers or dependants). They are:

 

1. Simple tenants under a lease agreement with the local authority or central government;

 

1. Tenants to buy under an agreement which permitted them to take title once the property was surveyed and the full price paid; and

 

1. Owners, who graduated from category two in the fullness of time”.

 

In casu the plaintiff claimed that the house in question was under category two whilst the first defendant contended that it was under category one.

It is pertinent to point out at this stage that at the time the two defendants filed their joint plea up to the close of pleadings, they were represented by the same law firm.

On 6 October 2008 that law firm renounced agency in respect of both defendants. On 20 April 2009 a new law firm assumed agency on behalf of the first defendant. This was after the defendants had both been served with the notice of set down for a pre-trial conference and in fact this pre-trial conference had been held on 31 March 2009. Only the first defendant was present at the pre-trial conference. The second defendant defaulted or at least was not present. Equally at trial the second defendant was not represented.

Mr Mawere for the plaintiff indicated that the second defendant indeed defaulted at the pre-trial conference and has not appeared to contest the plaintiff’s claim since then.

The record before me is however silent on what happened when the second defendant defaulted at the pre-trial conference despite having been served with the notice of set down.

I now turn to the issues at hand.

 

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute.

 

The plaintiff’s evidence on the issue was to the effect that on 20 August 1981 he entered into an agreement of sale with Dickson Katerere in respect of house number 360 Makusha Township, Shurugwi. The house was in D Katerere’s name and it was in a homeownership scheme. In that regard he referred to p 2 of the bundle of documents, as the agreement of sale. The document is an uncertified photocopy. It reflects the parties to the agreement as C G Musoni and Dickson Katerere. It is dated 29 August 1981.

The main body of the document states that:

 

“C Musoni Matambo has paid Mr D Katerere the sum of four hundred and forty eight dollars for house number 360 in Makusha, up easy                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Stereo Radiogram, two speakers $360-00. Total paid for the lot $808-00”.

 

The plaintiff confirmed that it was only him who appended his signature to the document.

As proof that the house in question was on the second defendant’s homeownership scheme, the plaintiff referred to p 1 of his bundle of document exh 5. This is a document containing a list of houses he contended were on the second defendant’s homeownership scheme. The house in question is number 6 on that list. Apart from the house no other details pertaining to this house included type- Up easy, Purchaser – Dickson Katerere, Date 1 April 1980, Purchase price $980-25, period of purchase, 5 years, monthly rent $18-68, land value $125-00 and monthly rent, service electricity - $33-06. The heading/title of the list is hardly legible.

It was the plaintiff’s evidence that after paying D Katerere a total of $448-00 the two of them approached the second defendant with the intention of effecting cession. They indicated to the second defendant’s officials that he had bought D Katerere’s rights and interests in the house so can the house now be registered in the plaintiff’s name.

The second defendant’s officials did not deny that the house was in D Katerere’s name. their only query was that they should have approached the second defendant before entering into the purchase agreement so that D Katerere’s lease is cancelled first and the plaintiff would then enter into a fresh lease to buy agreement with the second defendant. The plaintiff said the second defendant’s official he dealt with was one named Mr Nhubu. At no time was it ever said that D Katerere was a mere tenant with no rights or interest to sell in the house.

Gertrude Nhendereko gave evidence next on this issue. She indicated that as a resident of Shurugwi she knew that the house in dispute was amongst houses that were for home ownership. She confirmed that exh 1(a) is indeed from the second defendant and it does confirm that the house in question was on the homeownership scheme. She knew this as a resident of Shurugwi and later as a councilor.

It was her evidence that she had known the plaintiff for a long time as a fellow resident of Shurugwi. At one time they lived in the same neighbourhood before the plaintiff moved into the house in question in 1981.

Apart from the above most of this witness’s evidence was based on reports she received from the plaintiff which is of no probative value.

The first time she came to know that there was now a problem with the house in question was in 2000 when the plaintiff came to the second defendant complaining about the manner in which the house in question had been registered in the first defendant’s name when he had infact bought it from D Katerere and had had it ceded to him at the second defendant’s offices in 1981. Getrude said she got to know this as she was now a councilor with the second defendant and she was in the committee that was tasked with looking into such complaints and cases of double allocations.

As far as the nature of lease D Katerere had Gertrude could not be of much use as she had not seen the lease agreement between D Katerere and the second defendant. The most she could do was to confirm that to her knowledge the houses in question were for homeownership from inception. She also confirmed that most of the documents tendered by the first defendant were in the file pertaining to the house in question when this dispute came to light.

Further support of the nature of lease D Katerere had, is gannered from the first defendant’s documents. For instance, on p 15 of the first defendant’s bundle of documents is a letter dated 7 June 1982. The letter is addressed to Dickson Katerere and was authored by J M N Nhubu. This J M N Nhubu was the second respondent’s Township Superintendent. The letter reads in part:

 

“RE:    HOUSE NUMBER 360 MAKUSHA BREACH OF CONTRACT

It came to the notice of council late 1981 that you are no longer staying at the above house and that you have allocated the house to someone without council authority. Any efforts to get in touch with you have failed as we gather you had gone to Malawi.

 

I now say that you have breached the contract you entered into on 8 April 1980 to purchase the above house for homeownership purposes for over a period of five years. In pursuing my explanations, therefore, I quote para nine of the home ownership forms:

 

‘Until title to the property has been granted to the lessee by government, the lesser shall not without written consent of the council let property or any portion thereof to any person nor without such consent shall any person other than the lease or his dependants occupy the same or any portion thereof”’.

 

Mr Nhubu made it clear the contract D Katerera had entered with the second defendant on 8 April 1980 was for the purchase of the property in question over a period of five years. The scheme was for homeownership and not mere tenancy. Further correspondence between the second defendant and the Ministry of Local Government over this house and others; further confirm that this was a lease to buy agreement on what is termed homeownership scheme.

I am satisfied beyond reasonable doubt that Dickson Katerere occupied this house on a lease to buy agreement. Such agreements by their very nature do not confer title or ownership to the lessee till the lessee has complied with all the terms of the contract or in the fullness of time

In casu there is no denying that D Katerere had not met all the requirements. The rentals towards the purchase price had not been paid in full. The plaintiff confirmed that as at the time he bought the property, D Katerere had not paid in full. The plaintiff was to take over payment of the rentals. Title had therefore not passed to D Katerere. By virtue of entering into the lease to buy agreement D Katerere had acquired certain personal rights and interests in the property but not title or ownership.

The concept of ownership entails that one has full title to the property. This was not so with D Katerere. It may also be noted that the evidence adduced and the documents tendered into evidence show that D Katerere was not a mere tenant. As already alluded to he had entered into a lease to buy agreement with the second defendant. That agreement gave him certain rights and interests that he purported to sell to the plaintiff. He had no title to pass to the plaintiff. One would say the sell was conditional on the second defendant granting its consent and accepting the plaintiff to step into the shoes of D Katerere.

This brings me to the second issue namely:

 

1. Whether or not Dickson Katerere’s rights, title and interest in the house were transferred to and registered in the plaintiff’s name.

 

The plaintiff’s evidence was to the effect that pursuant to the agreement of sale D Katerere and himself attended at the second defendant’s offices with the intention of having D Katerere’s rights and interests ceded to him. On their first visit they met resistance from Mr Nhubu who indicated that they should have come to the second defendant before entering into the agreement. The second defendant would then have cancelled D Katerere’s lease before entering into a new lease with the plaintiff. They left without filling in the necessary forms for cession. He sought ministerial guidance as he believed Mr Nhubu’s point of view was incorrect. Later D Katerere and himself were called back to the second defendant’s offices. On this occasion he was made to fill in and sign cession forms together with lease to buy agreement forms. He was given a copy of the cession forms. On the lease, he was told that those forms would be sent to the Ministry of Local Government for execution by ministry officials on behalf of the government.

He was further advised that the process would take three to four years for the forms to be executed and returned. He thus waited to no avail. He nevertheless took occupation and continued paying the lease to buy rentals as per the agreement.

When asked to produce a copy of the cession forms, the plaintiff said he could not produce this copy as it was being kept by his late wife. Efforts to locate the forms since his wife’s death have yielded nothing.

As regards payments towards the lease to buy agreement the plaintiff produced some receipts showing some payments he made to the second defendant in respect of this house. He could not produce a lot of such receipts due to lapse of time and the fact “that the receipts were being kept by his late wife”. As with the cession form, he could not locate more of the receipts. Those that he produced do show that he indeed made some payment.

It was his further evidence that he continued making the payments till the five years period was up. He also remained in occupation of the house till 1986 when he moved to a plot he had bought within the same town. At the time he moved out he had made the full payment for the house.

Though the plaintiff could not produce most of the receipts and the cession forms due to the reasons he advanced, his evidence that he signed the cession form and the second defendant thus consented to him taking over from D Katerere was largely unchallenged.

The second defendant as the other party to the cession and lease to buy agreement could easily have rebutted that evidence had it not been true. Equally if the plaintiff had not paid the sums of money he claimed the second defendant was better placed to rebut that. The second defendant’s default meant that the plaintiff’s evidence in that regard went unchallenged.

The first defendant could not sustainably challenge the plaintiff’s evidence or assertion as he was not privy to the agreement and was not even in the picture during the period in question.

The first defendant’s contention that the plaintiff’s failure to assert his rights over the property for a long time while the first defendant occupied it casts doubts to the credibility of the plaintiff’s version is without merit.

If the first defendant seriously believed the plaintiff’s version was not the truth, he could easily have called witnesses from the second defendant who were alleged to have dealt with the plaintiff during the period in question. These would have been better placed to rebut the plaintiff’s evidence.

The first defendant also attempted to rebut the plaintiff’s evidence by referring to events that occurred after the date of the agreement of sale and cession. In this regard, he referred to the second defendant’s purported cancellation of D Katerera’s lease in 1982. As already alluded to that letter of 7 June 1982, contradicts the defendants plea in which they contended that D Katerere was a mere tenant and the house in question was never on a homeownership scheme. That letter confirmss to the contrary.

In any case by 7 June 1982, the plaintiff said he had already signed cession forms and the agreement of lease to buy at the second defendant’s offices. So for all intents and purposes, at the time that letter was written the house had been ceded to the plaintiff and no longer in D Katerere’s name. The second defendant did not avail itself to rebut the plaintiff’s evidence in that regard.

I am of the view that the probabilities are that D Katerera’s rights and interest were transferred to and registered in the plaintiff’s name.

The third issue is:

 

1. Whether or not the plaintiff is entitled to the relief that he seeks?

 

The plaintiff’s claim was for an order:

1. declaring him to be the lawful holder of all rights, title and interest in house number 360 Makusha Township, Shurugwi;
2. directing the second defendant to formally transfer and register all the rights, title and interest in house number 360 Makusha Township, Shurugwi; and costs of suit.

The plaintiff’s evidence was to the effect that he discovered that the property had been unlawfully registered in the first defendant’s name in the year 2000 when he went to the second defendant’s offices to inquire about the price for the land as he had long paid up for the house. From his own words therefore he had not paid for the land or at least he was not certain that he had paid for the land hence the inquiry. The standard lease to buy agreement, which he said is similar to the one he signed states the parties to the agreements as three. Shurugwi Town Council as the first part and owner of the dwelling; the government of Zimbabwe as the second part and owner of the land on which the dwelling is built. The dwelling and the State land together are referred to as the “property”. The third part is the purchaser.

The first defendant contended that the non-joinder of the State through the Minister responsible for Local Government and National Housing in this suit is fatal to the plaintiff’s relief. The plaintiff only cited two parties with a contractual interest in the property but left out the owner of the property who has real rights. The relief seeking a transfer of the rights, title and interests to the property is not competent if it does not compel the owner of the property. In support of this posture the first defendant’s counsel cited the case of Rose v Arnold & Ors 1995 (2) ZLR 17 (H).

The plaintiff on the other hand argued that failure to cite the Minister responsible for Local Government and National Housing was not fatal to the plaintiff’s claim. The plaintiff’s counsel argued that the second defendant is a form of decentralized government which was established under the Rural Districts Council’s Act, Chapter 29:13 with powers to sue and be sued in its own name. (See s 12 of the said Act).

Section 71(2) of the said Act provides for the derogation of administrative functions.

            In this regard counsel cited the case of Reddy v Town Council for the Borough of Kloof 1964(3) SA 280 wherein court held that once authority has been delegated, it is a misjoinder to cite the superior controlling body as the delegated officer is responsible for the exercise of the delegated authority on its own.

            The plaintiff’s counsel argued that in casu the second defendant was endowed with delegated authority by the Minister of Local Government and National Housing to handle the allocations, leases, sales and transfers of the houses and stands within its area.

            Further second defendant is the authority that is actually responsible for the transfer and registration of rights, title and interest in the houses within its area.

            The relief being sought is therefore capable of being granted and effectively enforced as against the second defendant alone. Whilst the plaintiff’s argument was forceful counsel could not cite any authority or piece of legislation where the minister granted the second defendant authority to pass title on the land.

            A reading of the Standard lease to buy agreement that was tendered by the first defendant shows that the second defendant owned the dwelling whereas government owned the land on which the dwelling was built.

            In its administration of its area the second defendant took upon itself certain responsibilities when entering into the lease to buy agreement. The second defendant can be ordered to fulfil those responsibilities.

            Whilst the lease agreement cites 3 parties the second defendant and government are infact joint sellers in as far as the second defendant owns the house whilst government owns the land. The second defendant was given overall responsibility in the leasing out and selling of the house and the land on which the house is built. The house is leased/sold on the second defendant’s own behalf whilst the land is sold on government’s behalf. It is the second defendant that must account to government for the State land. The government’s side seems to be a mere formality of granting title when Council has fulfilled its part and made such a request in favour of its lessee or purchaser.

            This is apparent from the fact that the consent required for one to obtain.cession or to deal with the property in any other way is that of the second defendant. No where does the standard agreement refer to the need for consent by government.

            For instance clauses 11 and 20 make it clear that the consent is that of the second defendant.

            Clause 11 states that:-

“Until title to the property has been granted to the purchaser by the government the purchaser shall not without the prior written consent of the council let the property or any portion thereof to any person nor without such consent shall any person other than the purchaser or his dependants occupy the same or any portion thereof”.

 

Clause 20 states that:-

 

“The purchaser shall not part with the possession of the property or any part thereof nor cede nor assign nor hypothecate this Agreement or any rights hereunder to any person without the previous consent in writing of the council”.

 

            In terms of the agreement the term property is used to mean the dwelling owned by Council and stand (land) owned by government.

            It is apparent therefore that in granting consent over the property Council will be granting consent over state land as well. That is as Council was empowered by government.

            The government’s role as reflected in clause 18 is that it ‘agreed to grant title in accordance with the provisions of clauses 16 and 17.

            These two clauses deal with the purchaser paying agreed sums to council or satisfying council that payment has been guaranteed.

            Clause 16 states that:-

“The purchaser may on payment of any principal outstanding and any other charges payable in terms of this agreement to the Council including the charges referred to in clause 18 hereof which charges may be paid in instalments in such amounts as maybe agreed to be Council and on payment by the Council to the government of the sum of …….. due to it for the land and the sums due in terms of clause 18 hereof receive title to the land”.

 

Clause 17 states that:-

 

“Notwithstanding the provisions of Clause 16 hereof title to the property maybe granted to the purchaser in terms of this clause provided the purchaser satisfies Council that:- 

 

1. he has been granted a loan to be secured by mortgage bond over the property ; and
2. the principal and interest outstanding and any other charges payable in terms of  this agreement have been paid or guaranteed to the satisfaction of the Council against issue of the title”.

 

Clearly though two parties are cited as sellers, it is Council that is saddled or clothed

with all the administrative functions Council virtually exercises all the functions of the seller after which government grants title as a formality. It is council that passes the purchaser as deserving of title and government merely caps the purchaser.

            The first defendant also contended that the plaintiff did not obtain prior written consent of the second defendant before entering into a sale agreement with D Katerere and so such agreement it void ab initio.

            The issue of absence of written consent at the time parties enter agreement of sale has been a subject of a number of court decisions. The point is now settled.

            In Mukarati v Mkumbu 1996(1) ZLR 212(S) when faced with such a scenario court held that:-

“…….. the agreement between the parties was not exactly void. The seller could validly contract to sell but could not pass title without the councils approval. This made the contract a conditional one with an implied term that the sale was subject to the consent of the council. This cast an enforceable duty on the seller to seek the council’s approval. If the approval were given, transfer could take place.  If it were refused, the contract would be unenforceable until such time as the seller was in a position to pass title. The buyer would then have to elect either to seek restitution or to wait until the property was no longer encumbered and transfer could be effected without the council’s consent”.

 

In David Tobaiwa v Clemence Kaseke and 2 Ors HH 74/2006 MAKARAU JP at p 4 of the cyclostyled Judgment after quoting EBRAHIM JA in Mukarati v Mkumba (supra) went on to say that:

“I would venture to suggest at this stage and following the remarks of EBRAHIM JA that it appears to me legally possible for a person in the position of the first respondent to enter into a contract of sale not only of the property itself as suggested by EBRAHIM JA, but of the rights, title and interest that he has under the suspensive agreement of sale and which rights will in due course mature into real rights in respect of the property. Thus, it is my view that those personal rights that are conferred by the suspensive agreement of sale are capable of being sold and bought without the prior consent of the local authority concerned “.

 

            In casu, D Katerere could validly sale his rights and interests in the property to the plaintiff conditional on obtaining council’s consent. The plaintiff’s evidence was to the effect that such consent was later obtained as council approved of the cession of the property and had it registered in his name and he was made to sign the lease to buy agreement forms that he was made to believe would be sent to the Ministry of Local Government. This occurrence was not challenged by second defendant. If that took place, albeit after initialresistance by  Mr Nhubu, it means the property was ceded to the plaintiff and the plaintiff acquired all the rights and interests that D Katerere had in the property in 1981.

            The first defendant’s challenge of this evidence was without foundation. The plaintiff’s claim and basis thereof were brought to the attention of the second defendant as the other party to the cession documents. Despite filing a joint plea with the first defendant, the second defendant defaulted and has not sought to further challenge the plaintiff’s claim.

            The plaintiff’s evidence was thus unchallenged.

            The first defendant sought to rely very much on the absence of documents in the file pertaining to this house on the agreement between D. Katerere and Council and also the absence of documents showing that the second defendant approved cession to the plaintiff.

            Unfortunately for the first defendant, the keeper of those documents who would have testified to the existence or non-existence of such documents at any time in the past, decided not to come to testify against the plaintiff. The plaintiff clearly indicated that he completed and signed all the necessary documents at the second defendant’s offices.

            Gertrude Nhendereko also alluded to the absence of such documents in the file but proceeded to say that there were a lot of double allocations of houses and in some instances documents were missing from the files. She attributed the double allocation and the missing documents to corruption within the second defendant.

            It may also be noted that from the first defendant’s own evidence there was something amiss on this house. It was the first defendant’s evidence that his elder brother and himself moved into this house in about March 1987. They found the house vacant. It is also evident from a letter dated 7 June 1982 (Page 15 of the first defendant’s bundle of documents) that as of June 1982 Mr D Katerere was no longer in that house. D. Katerere had instead put someone else whom Council wanted moved out. There is an unexplained vacuum in the occupation and registration of this house in the period from when D Katerere moved out to 1987 when the first defendant said he took occupation with his brother.

            The vacuum is in the file pertaining to this house and kept by Council. No explanation was offered by the first and the second defendants for the vacuum.

            The plaintiff on the other hand testified that there was never a vacuum as he took occupation from D. Katerere in 1981 soon after obtaining cession. He remained in occupation of the house till 1986. In 1986 he moved to a plot he had bought in the same town. On moving out he left some people who included the first defendant’s elder brother Raphius Jokonoko.  Raphius Jokonoko was at the time employed by Popular Bakery.

            The proprietor of Popular Bakery, Mr Gogwe, who was the plaintiff’s brother in law, had requested the plaintiff to allow his employees to occupy the house.

            Being related to Mr Gogwe and since he had paid in full, the plaintiff said he did not demand rent from Mr Gogwe or his employees but that they pay service charges. It was whilst R Jokonoko and another employee of Popular Bakery were in occupation of the house that the first defendant joined them when he started working for Popular Bakery.

            As far as the plaintiff was concerned the house was occupied by employees of Popular Bakery at the request of Mr Gogwe.

            Mr Thomas Mandiamba gave evidence on this aspect. He was at the time employed by Popular Bakery. He confirmed the plaintiff’s version on how Raphius Jokonoko and other employees of Popular Bakery came to occupy the house in question. Mr Mandiamba indicated that he was the one sent by Mr Gogwe to the plaintiff with a request for accommodation for Popular Bakery employees.

            As a result of the discussion between Mr Gogwe and the plaintiff two bakery employees who included Raphius Jokonoko were given occupation of the house with Popular Bakery paying service charges.

            That version was, as with the plaintiff’s evidence, virtually unchallenged. If, therefore the plaintiff acquired rights and interests in the property from D. Katerere and thereafter had the house ceded to him, it is clear the plaintiff has a claim against second defendant.

            Council as owner of the dwelling can be ordered and directed to register the dwelling in the name of the plaintiff as the lawful holder of rights and interests in the dwelling.

            Council as administrator of state land can be ordered and directed to do/take such steps as are provided for in the lease to buy agreement to ensure that government is appraised of the plaintiff’s status as the holder of rights and interests in the dwelling built on stand 360 Makusha Township and thus entitled to be granted title per government’s undertaking in terms of clause 18 of the lease to buy agreement. It will then be upto government to grant title.

            In a bid to stave off the plaintiff’s claim, the first defendant contended that he has better title to the property and so the plaintiff should not succeed. In that regard he referred to a lease to buy agreement that he entered into on 17 December 2002. He also referred to several payments he made in furtherance of that agreement.

            That agreement is titled “PURCHASE/SALE AGREEMENT CONVERSION OF RENTED ACCOMMODATION INTO HOME OWNERSHIP: MEMORANDUM OF AGREEMENT”.

            It is common cause that as at the time the plaintiff’s summons were issued the first defendant claimed he occupied the house as a mere tenant.

            In para 1-3 and 1-4 of their plea the defendants denied that the house was ever on homeownership scheme and challenged the plaintiff’s to prove that:

 

“1.3     that the house in question is or ever was on homeownership scheme. Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

 

 1.4      That the plaintiff acquired any title to the house in question from Dickson Katerere who was a mere tenant.”

 

After having pleaded in that manner the first defendant said he was offered the property for homeownership in November 2002 and the lease to buy agreement was entered into on 17 December 2002.

            The first defendant’s attempt to raise a new defence of better title acquired after summons has its own hurdles to overcome.   

            Order 20 rule 135(3) of the High Court rules states that:

“where any ground of defence arises after the defendant has delivered a plea, the defendant may within twelve days after such ground of defence has arisen, or at any subsequent time by leave of the court, file a further plea setting forth the same”.

 

When the further ground of defence arose, the first defendant should have amended his plea to encompass the new ground.  

In Chiviya v Chiviya 1995(1) ZLR 201(H) at p 213A ROBINSON J had this to say about such failure to amend:-

“Accordingly before setting down his application for a decree of divorce, the applicant should have attended to amend his declaration in this respect since it is notcompetent to lead evidence on a material matter which has not been pleaded” (emphasis is mine)

 

The plaintiff’s counsel properly submitted that with the closure of pleadings and joinder of issues on 17 June 2002, the matter became litis contestatio. Litis contestatio occurs when pleadings in a matter are closed. See Government of South Africa v Ngubane 1972(2) SA 601(A) at 608 D-F andJankowiak & Anor v Parity Insurance Co. Ltd 1963(2) SA 286(W) at 289 E.

When litis contestatio is reached, the property in dispute becomes res litigiosa, and cannot be alienated.

See Exparte Deputy Sheriff Salisbury; Inre Doyle v Salgo 1957 R & N 530 (SR Scholtens (1958) 75 SALJ at 139-40.

In casu it is clear that although the second defendant had in their joint pleas said that the first defendant was a mere tenant in respect of the property in dispute, the second defendant went on to execute a Purchase/Sale Agreement with the first defendant on 17 December 2002 in respect of the same property. When the defendants entered into the agreement they were fully aware these proceedings had reached litis contestatio and the property had become res litigiosa.

Accordingly the defence of better title based on non-pleaded defence and events after the closure of pleadings cannot avail first defendant.

            The first defendant’s contention that the matter was not litis contestatio because the lease to buy was entered with the state is no saviour. It is the second defendant that according to the first defendant, invited him to enter into the agreement. Clearly in my view both defendants intended to defeat the plaintiff’s case.

They cannot be allowed to succeed in this regard.

The issue as to who had better title must be decided as at the time summons were issued and pleadings were closed.

After a careful analyses of the evidence and the nature of the relief sought, it is my view that the second defendant cannot pass title. The standard lease to buy agreement clearly shows it is government that grants title upon the second defendant confirming it is satisfied with payment or arrangements for payment by lessee.

            In the same vein the second defendant can be ordered to do that which is in its power to enable title to be granted. This includes registering the property in the plaintiff’s name pending the issuance of title by government and confirming with government that the plaintiff has met the conditions of the lease to buy agreement.

Accordingly judgment is hereby entered for the plaintiff’s as follows:

 

1. The plaintiff is hereby declared to be the lawful holder of all rights and interests in  House No. 360 Makusha Township Shurungwi

 

1. The second defendant is hereby ordered and directed to formally register all rights and interests in  house No. 360 Makusha Township Shurungwi in the name of the plaintiff

 

1. The second defendant is hereby ordered and directed to do all such things and sign all such documents as are necessary to cause rights, title and interest in Stand 360 Makusha Township Shurungwi to be transferred to the plaintiff.

 

1. The first and second defendant to pay the plaintiff costs of suit jointly and severally with one paying the other to be absolved.

                                               

 

 

 

 

Mawere & Sibanda. plaintiff’s legal practitioners

Chinamasa, Mudimu, Chinogwenya & Dondo, defendant’s legal practitioners