J. MAMBARA N.O. (in his capacity as executor dative

of the estate of the late Wilson Madziva)

versus

CAROLINE KUNAKA

and

BOBBY SAMASUWO MANGODZA

and

MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS

AND NATIONAL HOUSING  N.O.

And

REGISTRAR OF DEEDS  N.O.

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 10, 11, 23, 24, & 30 March, 2011

Civil Trial

F. Mageza, for the plaintiff

A.A. Debwe, for the 1^st & 2^nd defendants

No appearance for the 3^rd & 4^th defendants

            MUTEMA J: The plaintiff issued summons against the defendants claiming the following:

1. The setting aside of the agreement of sale between the  first defendant and second defendant;
2. An order directing the third defendant to transfer the rights, title and interest in Flat 196 Block 40 Odzi Flats into the plaintiff’s name; and
3. Costs of suit against the first and second defendants jointly and severally, the one paying the other to be absolved.

The basis of the claim is briefly this: in about October, 2005 the second defendant offered to sell the Flat in question to plaintiff. After being shown the agreement of sale of the Flat between the second defendant and third defendant and proof that the second defendant had fully paid for the flat, the plaintiff accepted the offer. On 2 November, 2005 the parties entered into an agreement of sale and on 3 November, 2005 the full purchase price was paid and second defendant acknowledged receipt thereof. Later, second defendant advertised the same flat for sale but was thwarted by the plaintiff’s 2^nd wife who intervened via court actions. Second defendant later misrepresented to the plaintiff’s 1^st wife that he was a joint owner of the flat and was willing to sell it and share the proceeds equally with the 1^st wife. At the time, the plaintiff was in remand prison. Second defendant purportedly sold the flat to first defendant, fraudulently misrepresenting that the plaintiff had signed the sale agreement yet the plaintiff was in prison at the time. All the documents used to facilitate that sale were forged and thus, there was no sale between first defendant and the plaintiff. 

            The first and second defendants denied the plaintiff’s averments challenging him to prove them. First defendant counter claimed for an order ejecting the plaintiff and all those claiming a right of occupation through him from Flat 196 Block 40 Odzi Flats, payment of $400 per month from 1 February, 2009 to date of eviction for unlawful occupation of her flat and costs of suit at the prevailing Law Society Tariff.

            Plaintiff adduced evidence from two witnesses. Daniel Chawira Madziva, a young brother to the late Wilson Madziva gave the following evidence:

            He knows first and second defendants as people who sold each other a flat in Eastlea. As the plaintiff was in prison at the time he signed the documents relating to the sale on behalf of the plaintiff. Prior to that, in about 2000, second defendant had been offered the flat by third defendant for purchase but second defendant had not enough money to buy it. Second defendant had then asked the plaintiff for money to pay off the third defendant and the two would then have a 50-50 “share holding” in the flat. This was done and the plaintiff put his second wife Evelyn Mashura into the flat to share with the second defendant from 2002 to 2007. Plaintiff in 2007 told him that he had bought out second defendant and documents pertaining thereto were with his 3^rd wife Magret Mtetwa.

            Regarding the sale between first and second defendants, second defendant came to him at his place of employ, viz Vercham Real Estate saying he was retiring and wanted to sell the flat and give him the plaintiff’s 50% share. He advised second defendant to go and see the plaintiff at prison. Second defendant later came back saying he had seen the plaintiff who had given his green light to the sale and he (Daniel) should sign the sale agreement. He called Mary Zivurawa, the plaintiff’s 1^st wife who was not aware that the plaintiff had such a flat, and told her that what second defendant said was what was to be done. She said they should sell the flat. He signed documents pertaining to the sale of the flat on behalf of the plaintiff. He did not know then that the plaintiff had not given his nod to have the flat sold. He also signed an affidavit on behalf of the plaintiff because second defendant had told him that the plaintiff had said he should sign all the documents on his behalf.

            He is not aware whether the plaintiff’s 1^st wife was paid half the purchase price because he was not present when she received it. When the plaintiff was released from remand prison on bail and learnt of the sale of the flat, a dispute ensued.  

            Plaintiff’s other witness was Mary Zivurawa. She told the court that the plaintiff was her husband. She came to know second defendant in February, 2007 when he came to her house. At the time her husband was in prison. Second defendant introduced himself to her saying he had been directed to her by Daniel Madziva – the first witness. Second defendant told her that the plaintiff had a house in Eastlea. She was unaware of the fact. He suggested that they should meet the next day to discuss issues pertaining to the plaintiff’s arrest.

            Next day second defendant, Daniel and herself met. Second defendant indicated that he had an idea that would assist the plaintiff to be released from remand prison. He said they could sell the house and he would give her half of the price while he took the other half. He explained that the plaintiff had given him some money used to buy the house with the two agreeing to share proceeds 50-50 on selling it. He said he had seen the plaintiff at remand prison who had given the go ahead to sell the house.   

            Regarding sale of the house to first defendant she signed the agreement at second defendant’s behest but after signing it she was not given anything. She had not been given the Z$80 million when she signed the document that alleges she received the amount. She signed it expecting second defendant to call her later for the money but he never did.

            She was aware of second defendant’s intention to sell the flat in January and an interdict was sought by the plaintiff’s 2^nd wife who obtained a provisional order. Plaintiff later withdrew that matter following his 2^nd wife’s withdrawal of the same in November, 2009.

            That was the plaintiff’s case.

            The defendants led evidence from three witnesses. First defendant Caroline Kunaka told the court this version of events:

            She resides at 8 Pineliegh Close in Hatfield, Harare and is self- employed. She had a house in Ruwa which she sold intending to purchase a bigger residence to reside at with her children. At the time she was staying in Eastlea. When she saw an advertisement in the newspaper for sale of the flat in question by Vercham Real Estate she went to the estate agents and saw Daniel Chidziva the plaintiff’s 1^st witness – who was the sales agent.

            She was in the company of Mr Chimbare of Fremus Executors. She was told to wait for the property owners who arrived shortly thereafter in the person of second defendant and his legal practitioner. She informed the parties present that she wanted to first verify with the Ministry of Housing who the owner of the flat was. She went to the Ministry offices where it was confirmed that second defendant was the owner of the flat, and that the property was unencumbered. Back at Vercham, Daniel said all was in order. Second defendant said he had a document that needed clarification for he had borrowed some money from the plaintiff. Plaintiff was then in prison. Daniel said there was no big deal as he was the plaintiff’s young brother, was the one who had put the advertisement in the paper and that he would visit the plaintiff at prison that afternoon and would take the document there with him so that the plaintiff would sign it. She asked who the payee would be and Daniel said the plaintiff’s wife who then arrived. This was the second witness for the plaintiff Mary Zivurawa. Daniel said would phone her the next day after solving whatever needed to be solved. The agreement of sale exh 3, was reduced to writing by Vercham Real Estate. The following morning Daniel phoned her to come as everything was now in order. She went and found also the second defendant, Chimbare and Mary Zivurawa and they went to Fremus offices where Daniel produced the document which he said the plaintiff had signed.

After all had been done she produced her suit case containing Z$160 million in two batches of Z$80 million each. Second defendant took his share of Z$80 million and Mary Zivurawa also took hers whilst all were watching. They were then given the agreement of sale (pp1-3 of exh 3) and Mary Zivurawa signed her acknowledgement of receipt (p 4 of exh 3) and the second defendant signed his (p 5 of exh 3). Daniel and Mary then put Mary’s share in a small bag.

            She is aware of proceedings in case number 1471/07 instituted against her and 3 others by Evelyn Mashura and the plaintiff wherein they wanted an order declaring them to have the 1^st option to buy the flat in question. The two later withdrew the application.

            In her counter claim she prayed for the eviction of all those claiming occupation of the flat through the plaintiff because the flat is rightfully hers, having purchased it for cash. Despite buying the flat she has never set foot in it. She is also claiming holding over damages of $400 per month. She was surprised by Mary Zivurawa’s sudden about turn denying receiving plaintiff’s share of the purchase price yet at the time she was grateful for the money saying it would pay the plaintiff’s bail and school fees for her children.

            Bobby Samasuwo Mangodza told the court that he came to know Wilson Madziva when he gave the latter as estate agent, the mandate to sell his stand in Hillside. He came to know the first defendant when he sold her the flat in contention. He denied sever concluding an agreement of sale of the flat with the plaintiff let alone receiving any purchase price for it from the plaintiff.

            He joined the Local Government Pay for your house scheme on 21 November, 1994 and was paying monthly subscription of $650 up to 23 February, 2002 when he was informed that he would get his house but more money was required. The required balance was $224000 and this is the amount that he borrowed from the plaintiff. After paying off that balance he was given the flat in question as his. He had agreed with the plaintiff that the $224000 was a loan to be paid back. Plaintiff was in the business of money lending. After two weeks he went to repay the loan to the plaintiff. He had got the money from National Railways of Zimbabwe as the second portion of his pension.

            It took him long until November to see the plaintiff as he would always find only Daniel in the office. Daniel had a document stating that the plaintiff would get 50% share if he sold the flat. Initially he refused to sign it as it was not what they had agreed on when he borrowed the money. He only signed that document in November when he saw the plaintiff.

            Thereafter he commenced residing at the flat alone. In April, 2004 the plaintiff brought Evelyn Mashura saying she was his 2^nd wife and asked for temporary accommodation for her. Her stay, however, turned out not to be temporary. Feeling uncomfortable staying with her, he decided to sell the flat. He visited the plaintiff who was in prison and advised him of his intention. Plaintiff needed legal fees and agreed with the idea to sell and that his 50% share be paid to his legal practitioners Musekiwa and Associates. Mashura, however, was averse to the sale and challenged it. Plaintiff then directed him to liase with Daniel at Vercham Real Estate to look for a buyer. He also directed that his 50% share should no longer be paid to Musekiwa and Associates but to his 1^st wife.

            He went to Vercham Real Estate and told Daniel about the issue. Daniel said he needed to verify it with the plaintiff first. He asked Daniel for the plaintiff’s 1^st wife’s address and he was given and went and saw her. By arrangement, the plaintiff’s 1^st wife, Daniel, himself and his legal practitioner Mr Mushambadope met at Chicken Inn at Construction House where Daniel advised that he had verified with the plaintiff that the flat be sold. Mushambadope drafted a memorandum of understanding indicating that the plaintiff had agreed that the flat be sold. This document was taken to the plaintiff for signature by Mushambadope.

            Subsequently he entered into a sale agreement with the first defendant for the flat. The purchase price of Z$160 million was paid and the plaintiff’s 1^st wife signed an acknowledgement of receipt and got the Z$80 million representing the plaintiff’s share. For her to allege that she did not receive the money is a blue lie. He denied forging any document to facilitate the sale of the flat to the first defendant.

            Caleb Hatizvigoni Mucheche was the defendants’ last witness. His testimony was this:

            He is a legal practitioner, part time lecturer with the University of Zimbabwe and also an arbitrator.

            He came to know the first defendant on 10 April, 2007 when Mr Chimbare of Fremus Executors phoned him advising that one Mrs Madziva needed services of a Commissioner of Oaths. He went there and was handed a draft affidavit in the name of Wilson Madziva. Wilson Madziva was at Harare Remand Prison. He had been briefed above the issue concerning the flat in question. When he got to the prison and was taken to where Wilson Madziva was, it was clear that Wilson was expecting him. He gave him the draft affidavit and he carefully went through it nodding his head. Madziva chronicled to him the circumstances surrounding the subject matter and he had no kind words for Evelyn Mashura whom he described as a gold digger.

He asked Madziva if he swore that the contents of the affidavit were nothing else but the truth and if so he should raise his right hand and say “so help me God” and he complied and proceeded to append his signature. Thereafter he also appended his signature as the commissioner of oaths and endorsed his stamp. He confirmed that p 7 of exh 3 is the affidavit Madziva signed on 10 April, 2007 at Harare Remand Prison. He does not know any Daniel Madziva and when he went to the remand prison he was under no optical illusion whatsoever regarding what he was required to do. After his evidence, the defendants closed their case.

This was the evidence adduced before me in this case. The issues that were referred to trial for my resolution are five, viz:

1. Whether the plaintiff purchased the property in question from the second defendant;
2. Whether the agreement of sale between the first and second defendants is valid;
3. Whether the first defendant is entitled to evict the plaintiff from the flat in question and all those claiming a right of occupation through him;
4. Whether the first defendant is entitled to holding over damages; and
5. If so, the quantum thereof.

I now proceed to deal with those issues seriatim.

Whether the plaintiff purchased the property in question from the second defendant

On this issue the evidence of the second defendant is clear and straight forward while that of the plaintiff rings hollow. If anything the plaintiff, (may his soul rest in peace), was a crook who after lending the second defendant the Z$224 000-00 to top up the balance needed by the third defendant, subsequently shifted goal posts and coerced the second defendant to agree to the bizarre arrangement that if the flat were ever sold the two of them would share the proceeds on a 50 – 50 basis. That the plaintiff purchased the flat from the second defendant on 2 November, 2005 and paid for it on 3 November, 2005 with the second defendant acknowledging receipt of the purchase price in writing constitute not only bald allegations but the mendacity thereof has been exposed.

Both witnesses for the plaintiff had no first hand knowledge of the alleged purchase. They both said they were told about it by the plaintiff after his release from remand prison in June, 2007. Apart from the hearsay complexion, one wonders why from November, 2005 to June, 2007 the plaintiff was keeping the alleged purchase of the flat under wraps. In para 7 of his declaration, the plaintiff avers that he purchased the flat on 2 November, 2005 in terms of a written agreement of sale and paid the full purchase price on 3 November, 2005 and the second defendant accepted and acknowledged receipt thereof, No such agreement of sale was produced in evidence, no mention of the amount of the purchase price allegedly paid by the plaintiff to the second defendant and no acknowledgment of receipt of the payment by the second defendant was produced. All this goes to show that the alleged purchase is a sham which must be dismissed as such. That the documents were taken by the plaintiff’s third wife, one Margret Mtetwa is also hearsay by Daniel and it does not detract from the alleged purchase being a sham. The court was not appraised of Mtetwa’s whereabouts and why she was not called to come and produce the alleged documents.

Perhaps calling Mtetwa to produce the alleged documents was not at all necessary because there never was such purchase. This conclusion is fortified firstly by exh 2, the provisional order dated 12 January, 2007 in case number HC 105/07 in which the plaintiff and Evelyn Mashura were granted an interdict against the second defendant and Keystone Real Estate from selling the applicants’ half share in flat 4 Block 40 Odzi Flats and secondly by exh 4, the order the plaintiff and Mashura were seeking in case number HC 1471/07 against the first and second defendants and two others in March, 2007, which was later withdrawn wherein they sought inter alia that they “be given the option to be the first purchasers or to buy out” the second defendant. The question is how could the plaintiff, who alleges to have purchased the flat in toto from the second defendant in November, 2005 claim in 2007 to still own a half share in the same flat or to be given the option to be the first purchaser or to buy out the second defendant? This is where the entire case for the plaintiff crumbles and I am constrained to castigate the plaintiff’s counsel for unprofessional conduct in bringing such a disabled suit to court when it was clear as day follows night that the case had no leg to stand on! The inevitable conclusion I reach on this issue is that the plaintiff never purchased the property in question from the second defendant.

Whether the agreement between the first and second defendants is valid

On this issue I have no hesitation whatsoever in finding that the agreement is valid. Firstly the second defendant, as owner of the property did not require the plaintiff’s consent to sell the flat. Secondly, out of sheer courtesy due to the fact that the second defendant had reluctantly agreed to share the proceeds of the sale of the flat with the plaintiff on a 50 – 50 basis in the event of its sale, the second defendant did inform the plaintiff of his intention to sell it and the plaintiff gave his blessings. The second defendant’s version on the aspect is corroborated by the probabilities as well as the relevant documentary evidence. Page 4 of exh 3 constitutes prima facie conclusive evidence that Mary Zivurawa received the plaintiff’s half share of the proceeds from the sale of the flat as per the agreement between the plaintiff and the second defendant. Mary Zivurawa is a form 2 dropout and urbanised. She is therefore not an illiterate woman and this is a proper case to invoke the doctrine of caveat subscriptor against her. I also believe the first and second defendants who witnessed her signing the acknowledgement of receipt of the Z$80 million dollars and disbelieve her and Daniel when they denied that the amount was received. Mary and Daniel are family and I could discern from their demeanour that they had contrived to strive to have the flat as part of the plaintiff’s deceased estate as this is the plaintiff’s dependants’ sole abode.

Also, p 7 of exh 3 buttresses the second defendant’s version. This is an affidavit deposed to by the plaintiff while in remand prison after Mashura had refused to vacate the flat in question. Mr Mucheche who commissioned the affidavit gave clear and straight forward evidence that it was deposed to by the plaintiff and no other person. I have no reason to disbelieve him. Daniel who claimed to have signed that affidavit was clearly lying. One needs no questioned document examiner to compare the signature of the deponent on that affidavit with the one on exh 1 to safely conclude that it belongs to Wilson Madziva. It is strange that in exh 1 the plaintiff was, a month later, reprobating what he had stated on p 7 of exh 3. One can only conclude that the plaintiff was a person who had no regard for truth. In the result the first and second defendants have proven that agreement of sale they concluded is valid.

Whether the first defendant is entitled to evict the plaintiff from the flat in question and all those claiming a right of occupation through him

Having made the findings that the plaintiff never purchased the flat from the second defendant and that the first defendant is the bona fide purchaser and owner of the flat, it inevitably follows that the plaintiff and all those claiming a right of occupation of the flat through him have no legal entitlement to occupy the premises. Over and above the foregoing, it is pertinent to note that the plaintiff did not file any plea to the first defendant’s counter claim for eviction and holding over damages. The court can still enter default judgment for the eviction.

Whether the first defendant is entitled to holding over damages

This was claimed in the counter claim and like for the claim for eviction supra, the plaintiff failed to file any plea thereto with the result that the court can still enter default judgment in favour of the first defendant on that basis. Over and above that, it is not in dispute that ever since the first defendant purchased the flat in question she has never enjoyed any usufruct attached or attendant thereto. It is the plaintiff who has and unlawfully so thereby occasioning the first defendant to suffer damages. The first defendant is accordingly entitled to holding over damages caused by the plaintiff or those claiming a right of occupation through him.

The quantum of the holding over damages

In her counter claim the first defendant pegged the damages at US$400 per month. Exhibit 7 produced by consent done by Knight Frank Zimbabwe estimates the rentals to be between US$500-$600 per month. The first defendant did not seek to amend the amount. It therefore behoves me to exercise my discretion as regards the fair quantum. I consider that since Knight Frank could not be allowed access into the flat by the occupiers and therefore were not able to do a physical inspection of the inside, the $400 initially claimed would be in order.

In the result I make the following order:

1. The plaintiff’s claim be and is hereby dismissed in its entirety.
2. Judgment be and is hereby entered for the first defendant against the plaintiff as follows:
   1. An order ejecting the plaintiff from Flat No. 196 Block 40, Odzi Flats, Eastlea, Harare and all those claiming a right of occupation of the said flat through him;
   2. Payment of the sum of US$400-00 damages per month from 1 February, 2009 for unlawful occupation to date of vacation; and
   3. Costs of suit at the scale of legal practitioner and client.

J Mambara & Partners, plaintiff’s legal practitioners

Debwe & Partners, 1^st and 2^nd defendants’ legal practitioners