LLOYD MUSANGO

versus

VITALIS NECHAVAVA

and

STELLA NECHAVAVA

HIGH COURT OF ZIMBABWE

PATEL J

Civil Trial

HARARE, 2 June 2011 and 8 September 2011

S. Mugadza, for the plaintiff

1^st defendant (in person)

2^nd defendant (barred)

            PATEL J:        The plaintiff herein claims the eviction of the defendants from the stand in dispute, together with holding over damages, and costs of suit on a higher scale. The primary issue for determination is whether or not the transfer of the property to the plaintiff was properly effected. The plaintiff’s entitlement to an eviction order and holding over damages hinges upon the answer to that question.

The Evidence

            Lloyd Musango, the plaintiff, has been employed by Chitungwiza Municipality as a municipal police officer since 1 October 2005. He testified as follows.  He entered into an agreement of sale for the disputed stand with the 1^st defendant on 15 March 2006. At that time, the property was registered in the 1^st defendant’s name. He paid the full purchase price of ZW$600,218,000 in instalments, the last instalment having been paid in October 2006. He did not ask for any receipts because he did not anticipate any problems. He recorded the payments on the agreement of sale as and when they were made. The agreement of sale and related documents form part of the papers in HC 1561/07. He later filed another application for cession in HC 4434/07 and obtained default judgment in that matter on 20 August 2008 [Exhibit 1]. Cession was effected through the Deputy Sheriff in October 2008 [Exhibit 2] and he obtained a certificate of occupation in the same month [Exhibit 3]. Subsequently, the 2^nd defendant applied for rescission of the default judgment through HC 186/09. This chamber application was dismissed on 20 January 2009 [Exhibit 4]. The 1^st defendant also applied separately for rescission of the same default judgment through HC 2620/09. This application, in which both parties were legally represented, was dismissed on 10 June 2010 [Exhibit 5]. The default judgment in HC 4434/07 has never been rescinded and is still in force. After selling the stand to the plaintiff, the 1^st defendant sold the stand to other parties. Consequently, he was convicted on two counts of fraud and sentenced on 16 October 2009 to an effective prison term of 21 months [Exhibit 6]. The defendants have refused to give vacant possession of the stand despite numerous demands. The plaintiff is presently renting a house in Zengeza and paying rent of US$30 per month per room. He accordingly claims holding over damages of US$90 per month (for three rooms) as from the date of cession, i.e. 1 November 2008, to the date of eviction.

            Vitalis Nechavava is the 1^st defendant. His evidence was that the stand was registered in the names of both defendants. He never sold the stand to the plaintiff. The plaintiff had paid the 1^st defendant’s nephew for some gold which the latter failed to deliver. The plaintiff’s father-in-law is employed in the Housing Department of Chitungwiza Munucipality. The two of them plotted to transfer the stand into the plaintiff’s name to recover the money paid for the gold. Under cross-examination, the 1st defendant denied that he had received any money from the plaintiff. This was despite admissions to the contrary in his opposing affidavit in HC 1561/07, which affidavit he denied having signed. He further denied having seen or signed any of the documents relating to the agreement of sale which were annexed to the plaintiff’s applications in HC 1561/07 and HC 4434/07. Finally, he claimed that he never applied for rescission of the default judgment in HC 4434/07 through HC 2620/09. The 2^nd defendant had filed that application in his name and he was not aware of the decision dismissing the application on 10 June 2010.

            Babson Nechavava is the 1^st defendant’s 19 year old son. He was not aware of any transfer of the house, but he did see some water bills in the plaintiff’s name. According to him, the plaintiff never came to the house to make any payments. However, he accepted that he used to attend school in 2006 and was therefore not at home throughout the day.

            The plaintiff gave his testimony clearly and concisely and did not falter in his stance under cross-examination. He was a very consistent and credible witness. In stark contrast, the 1^st defendant was a thoroughly discreditable witness. He failed to focus on the issue at hand, i.e. the propriety of the cession of the stand into the plaintiff’s name, and failed to convince the Court on virtually every aspect of his testimony. Moreover, his bald denials of ever having seen or signed any of the relevant papers before the Court, including his opposing affidavit in HC 1561/07 and his own application in HC 2620/09, are simply impossible to accept. In short, his evidence was nothing more than a tissue of loosely fabricated falsehoods. Finally, the testimony of the 1^st defendant’s son did not serve to add anything to the evidence already before the Court.

Disposition

            Although this is not an issue for determination in this matter, the papers adduced in previous proceedings, i.e. HC 1561/07 and HC 4434/07, coupled with the plaintiff’s evidence in casu, support the plaintiff’s version as to the agreement of sale. This is a matter that has already been determined in previous litigation, albeit by default. In any event, I am satisfied that the plaintiff purchased the stand from the 1^st defendant and that he paid for the property in full.

            Turning to the transfer of the stand, the 1^st defendant proffered nothing to substantiate his allegations of collusion and impropriety on the part of the plaintiff. It is common cause that the plaintiff obtained a default judgment in HC 4434/07, pursuant to which the Deputy Sheriff duly signed the requisite cession papers. Thereafter, the plaintiff was issued a certificate of occupation by Chitungwiza Municipality. There is nothing before the Court to suggest anything untoward or improper in this process. Accordingly, I am amply satisfied that the cession of the stand into the plaintiff’s name was properly effected.

            As things stand at present, the plaintiff duly obtained cession of the stand in terms of the order of this Court in HC 4434/07. He thereby became the registered owner of the stand. The order was obtained by default but has not been rescinded, despite two separate unsuccessful applications for rescission instituted by the defendants. The order still stands and inasmuch as cession was properly effected into the plaintiff’s name, he is clearly entitled to occupy the stand. Equally clearly, he is also entitled to an order evicting the defendants from the property.

            For the same reasons, there is no basis for denying the plaintiff’s claim for holding over damages. The defendants have been unlawfully occupying the stand that the plaintiff is legally entitled to occupy himself. They must therefore recompense him for that right of occupation at a reasonable rate. The 1^st defendant did not challenge or dispute the reasonableness of the monthly amount of US$90 claimed by the plaintiff. Accordingly, he is entitled to holding over damages in the sum of US$90 per month from the day after the date of cession, i.e. 1 November 2008, to the date of eviction.

            Finally, there is the question of costs. In his closing submissions, the 1^st defendant persists with the absurd contention that he was unaware of any previous court proceedings and that he did not institute the application in HC 2620/09. The records in HC 1561/07 and HC 2620/09 clearly show that he was legally represented in both matters. It is impossible to imagine how that could have happened without his own active involvement. His bare denials in this regard are tantamount to gross abuse of court process, verging on contempt of court and warranting a punitive award of costs. Again, the failure of both defendants to give vacant possession to the plaintiff, notwithstanding his clear entitlement thereto since 2008, is a further reason for showing the Court’s displeasure with respect to costs.

In the result, judgment is granted in favour of the plaintiff as against the defendants, in terms of the Summons as amended. It is ordered that:

1. The defendants and all those claiming the right of occupation through them be and are hereby ordered to vacate Stand No. 2 Pasipanodya Street, Zengeza 5, Chitungwiza, within 10 days of the service of this order upon them, failing which the Deputy Sheriff is hereby authorised to forthwith evict them from the said Stand.
2. The defendants shall jointly and severally, the one paying the other to be absolved, pay to the plaintiff:
3. holding over damages in the sum of US$90 per month with effect from the 1^st of November 2008 to the date of their vacation of the aforesaid Stand or their eviction therefrom, as the case may be; and
4. costs of suit on a legal practitioner and client scale;

failing which the Deputy Sheriff is hereby authorised to attach and sell the defendants’ property in execution to satisfy the plaintiff’s claim.

Madanhi Mugadza & Co Attorneys, plaintiff’s legal practitioners