TONDERAI TARIMA

versus

ZIMCOR TRUSTEE (PVT) LTD

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

PATEL J

Civil Trial

HARARE, 31 May 2011 and 8 September 2011

L. Chimuriwo, for the plaintiff

T. Machiridza, for the 1^st defendant

          PATEL J:     The plaintiff in this matter seeks the cancellation of an agreement of sale in respect of a stand in Vainona, Harare, and an order for the transfer of that stand from the 1^st defendant to the plaintiff. The sole issue for determination herein is whether or not the full purchase price was actually paid into the plaintiff’s account.

The Evidence

          Tonderai Tarima, the plaintiff, testified that he sold the stand in question to the 1^st defendant, for the price of ZW$4 quadrillion, in terms of an agreement of sale dated 26 January 2009 [Exhibit B]. He handed the title deeds to Frank Buyanga, who represented the 1^st defendant as its director, and gave him the house keys on the date of signature. However, the purchase price was never paid into his account as agreed. He did receive the sum of US$15,000 from Buyanga in July 2009, but this was his share of a 2007 BMW motor vehicle which he jointly imported with Buyanga in July 2008. Buyanga was his close friend for many years. They knew each other since high school and as students living together in London. He gave up his studies in London and went into business with Buyanga, buying and selling second-hand cars. He trusted Buyanga to honour his obligations. He never paid for the stand despite several verbal demands and left the country in 2009. The stand was transferred to the 1^st defendant in January 2009 and its present market value is US$200,000. Under cross-examination, he accepted that in terms of clause 1 of the agreement of sale the purchase price is acknowledged as having been fully paid at the date of signature, while clause 10 constitutes the entire agreement alterable only in writing. He also confirmed his own signature on an undated acknowledgement of receipt for ZW$4 quadrillion [Exhibit A] as the full purchase price for the stand. He signed this in Harare on the same date that he signed the agreement of sale, i.e. 26 January 2009. He signed both documents in good faith, even though he understood the significance of signing documents of this nature. He denied having seen any RTGS form for the purchase price (contrary to the contents of paragraph 1 of his Replication). He only issued Summons in July 2010 because Buyanga was out of the country.

          Lloyd Hama has been engaged by the 1^st defendant as its driver for the past five years. At the relevant time, the 1^st defendant had three employees and comprised two offices. He confirmed having signed the sale agreement in casu as a witness, simultaneously with the plaintiff, Buyanga and three other witnesses. The fourth witness signed the agreement at the lawyer’s offices. The RTGS payment for the purchase price of ZW$4 quadrillion, from the 1^st defendant’s Stanbic account to the plaintiff’s CBZ account, was effected on the same day as the agreement was signed. He personally saw a copy of the RTGS form when the agreement was signed on 26 January 2009. The plaintiff himself must have seen that copy and was satisfied that the transfer of funds had been effected. The plaintiff also signed the acknowledgement of receipt when he signed the agreement. He then surrendered the title deeds to the stand on the same date and vacated it in May 2009. The witness did not see the plaintiff thereafter. Under cross-examination, he explained that the RTGS payment was handled by the 1^st defendant’s accountant, one Ndlovu, who left the firm at the beginning of May 2011 for further studies. He was told by Ndlovu on 27 January 2009 that payment into the plaintiff’s bank account was confirmed. He saw the 1^st defendant’s bank statement on Ndlovu’s desk but did not examine its details. When the plaintiff issued Summons in July 2010, the RTGS confirmation form was available. However, when the 1^st defendant moved offices two months ago, many files and papers were mixed up and some were lost. He then approached Stanbic Bank and was told that the files in question had been moved to its archives. He was also told that the 1^st defendant’s statement of account for the relevant period could not be availed because the bank’s ZW$ computer accounting system had been removed.

          Frank Buyanga, who represented the 1^st defendant in concluding the sale agreement, did not attend to testify at the trial. According to Hama, he was away in the United Kingdom, engaged in some unspecified business.

Disposition

          Neither the plaintiff nor the 1^st defendant’s witness was particularly impressive in demeanour or delivery of evidence. There were several gaps and inconsistencies in their respective testimonies. Be that as it may, theirs is the only oral evidence that the Court has before it.

The crux of the plaintiff’s case is that he was never paid for the property in question. He trusted Buyanga, his close friend, to honour the 1^st defendant’s obligation to pay the purchase price of ZW$4 quadrillion. The 1^st defendant, on the other hand, contends that purchase price was paid in full, but is unable to avail documentary proof of that payment for various practical reasons. Hama’s evidence in that regard was not materially challenged.

It goes without saying that the burden of proving his case falls squarely upon the plaintiff. His assertion of non-payment is flatly contradicted by the 1^st defendant. More significantly, the documentary evidence before the Court constitutes an insuperable obstacle to the plaintiff’s case. Firstly, there is the agreement of sale, clause 1 of which stipulates that:

“The purchase price is acknowledged as having been fully paid at the date of signature. The signature of the Seller shall, therefore, be confirmation of payment in full of the purchase price and to that end the seller is estopped from denying full payment.”

          This confirmation of full payment upon signature is buttressed by the acknowledgement of receipt in which the plaintiff states:

“I, TONDERAI TARIMA of 35 Vainona Township of Vainona do hereby acknowledge that I have received $4 000 000 000 000 000 .00 (Four Quadrillion Dollars) being the full purchase price of Stand 35 Vainona Township of Vainona”.

          The plaintiff accepts that he voluntarily signed both of the above documents at the same time. He further admits that he understood the legal significance of appending his signature thereto. He also concedes that he willingly surrendered the title deeds and keys to the property to Buyanga and gave vacant possession thereof to the 1^st defendant. In my view, this is a classic case for applying the maxim pactum est servandum, whereby a party to a contract is bound by the express terms of the contract to which he has subscribed without duress or misrepresentation. The plaintiff in casu is, as he has explicitly acknowledged and declared, estopped from denying full payment of the purchase price.

          Having regard to all of the foregoing, it is clear that the plaintiff has failed to discharge the onus of establishing his case on a balance of probabilities. His claim is accordingly dismissed with costs.

Gonese, Jessie Majome & Co, plaintiff’s legal practitioners

Manase & Manase, 1^st defendant’s legal practitioner