ELIZABETH KAMANGA

versus

ESTATE LATE BUTE CHIKONDO

As represented by Oswald Bute Chikondo in his capacity as executor

and

MERCY BUTE CHIKONDO

and

CITY OF HARARE

and

MASTER OF THE HIGH COURT

HIGH COURT OF ZIMBABWE

GUVAVA J

HELD AT HARARE, 22, 23 FEBRUARY 2010 & 7 APRIL 2011

N.P. Munangati, for the plaintiff

W. Muchengeti,for the defendant

            GUVAVA J: The plaintiff issued summons out of this court seeking an order in the following terms:

1.         “That plaintiff be declared the owner of stand No 6203 Mabvuku.

2.         That second defendant facilitates that the first defendant cedes to the plaintiff Stand No. 6203 Mabvuku within 7 days of granting this order failure of which the Deputy Sheriff is authorized to sign all necessary documents to effect transfer into plaintiff’s name.

3.         That the third defendant accepts and act on the documents signed by the deputy sheriff should first and second defendants fail to comply with clause 2.

4.         That the fourth defendant excludes Stand 6203 Mabvuku from the assets of first defendant.

5.         That second defendant pays costs”.

It was plaintiff’s claim, as filed in her declaration, that on 5 September 1985 she

bought stand 6203 Mabvuku from Ali Chikoko for the sum of $3 700. It was her belief at the time that her minor children could not own property. She then entered into an oral agreement with her young sister’s husband Bute Chikondo to have the property registered in his name. Cession was effected into the name of Bute Chikondo by Harare City Council. On 15 May 2005 Bute Chikondo died and the property was registered as part of his estate. His children claim the house as their fathers as it is registered in his name.

            The plaintiff led evidence in support of her claim. She testified that she resides at 36 Chaneka, New Mabvuku. She owns the property in question. In 1985 she met Ali Chikoko, a neighbour, who advised that he was selling his house. The plaintiff decided to purchase the house for her minor children. She then approached her young sister and her husband so that they could use their name to purchase the house as she already owned another house in the same municipality. At the time it was difficult to purchase property on behalf of a minor in the same municipal area that you stayed. The plaintiff stated that she paid the purchase price in the presence of Elizabeth Masaiti, Langton Ngoromo and Levison Yoweni. Mr Chikoko had initially charged $4000 but reduced the amount to $3 700 after some negotiations. She paid cash for the property. She stated that her sister and brother in law asked for $5000 as payment for the use of their name in the purchase of the property. The money was to be deposited every month into their son, Oswald’s, Post Office Saving Bank (POSB) account which was opened for that purpose. Following payment of the purchase price cession was effected into the name of the late Bute Chikondo at the municipal offices. She produced the cession documents which were addressed to the late Bute Chikondo at his work place. She stated that after he received them he gave the documents to her. The plaintiff stated that Mr Ali Chikondo vacated the premises in April 1986 and she thereafter took up occupation by renting out the property.

            When the plaintiff purchased the property it was a four roomed house. She then approached Mr Mushawatu for assistance in extending the house. He looked for someone who drafted a plan for the extension. The plan was approved on 8 August 1988 and she proceeded to carry out the extension. She purchased pit sand, river sand and quarter stones from Mr Mushawatu which had been left over when he extended his own property. The plaintiff explained where she obtained all the other building materials. She explained that she could not produce the receipts for the timber which she bought from Johnson and Fletcher because they destroy their files after every five years. She installed the plumbing and the electricity. It was her evidence that her sister and her brother in law never lived in the house in question. Whenever they came to Harare they lived with her. She had looked after her sister when she was ill at her house. When she died the funeral wake was held at her house. The plaintiff’s sister died in 2003 and her husband followed in 2005.

            She testified that during the life of her sister and brother in law they never had problems and these only arose in 2005 after the death of the late Bute Chikondo. His children then came and claimed that the property was theirs as it was in the name of their father. She also produced receipts for the rates that she paid from the time she purchased the property but these were all in the name of the late Bute Chikondo.

            In cross examination she remained adamant that the property belonged to her. She denied that she was trying to steal her nephews and nieces inheritance. Although she was subjected to a rigorous and lengthy questioning by the defendants counsel she was not shaken in cross examination. The plaintiff appeared to be an open and honest witness. She was a simple woman who had done a lot to assist her sister and her family before her death. It seems that whenever the defendants ever came into Harare they would be welcomed at the plaintiff’s home. The defendants would go there to spend their school holidays with her when they were of school going age. Her story had a ring of truth in it.

I believed the plaintiff’s evidence.

            The next witness for the plaintiff was Kingstone Munyona. He testified that he is an assistant builder by profession and knew the plaintiff through the builder he was working with at the time. He testified that during the period 1987 to 1988 they extended a house for the plaintiff. During that period only the plaintiff and Mr Mashawatu would come and inspect progress on the house. The plaintiff would also bring all the materials they required to build. He stated that at times they had to stop work when she failed to buy the building materials. Their salary was paid by the plaintiff. He testified that he had never heard of the name Bute Chikondo.  

            In cross examination he remained firm in the view that that the property they built belonged to the plaintiff. Whilst he had no knowledge of the sale he confirmed the plaintiff’s story that all the interactions with the builders was done by her. He stated that he would not have known if Bute Chikondo had come to the house in his absence as he did not know him and never met him. He also did not know where the plaintiff got the money to buy the building materials and pay his salary.

This witness was a good witness and told his story in a truthful and simple way. He was forthright in response to questions and readily conceded where he had no personal knowledge. I believed his evidence.

            The next witness was Regis Takawira Mushawatu. He told the court that he resides at 34 Chineka Road, New Mabvuku and he knows the plaintiff as a neighbour. He has known her since 1973. He stated that although he trained as a teacher he is now a free lance estate agent. He said that he came to know that the plaintiff had bought the property in question when she approached him seeking assistance in extending the property. He also sold her some building material which was left over after he had finished extending his house. He introduced the plaintiff to Mr Mudyiwa so that he could draw up a plan for her house. He gave her some tools to use such as a wheelbarrow and shovels. He would advise her and accompany her when she went to inspect the progress made by the builders.

            The witness stated that he did not know the late Bute Chikondo but knew his wife as plaintiff’s young sister. He also knew the second defendant as she used to come and visit the plaintiff during school holidays. He denied that the Chikondos were the owners of the property. He was convinced that the property belonged to the plaintiff because they had never played a role during the construction of the extension or at any stage when they came to visit the plaintiff. He was aware that the property was being rented out from the time it was purchased. Whenever the defendants’ mother visited she would live with the plaintiff. As far as he was aware the late Bute Chikondo and his family lived in Mutorashanga.

            In cross examination he conceded that he had not been present when the property was purchased but he indicated that the plaintiff had told him that she had registered the property in her sister’s name as she could not own more than one property in Mabvuku. He stated that as far as he was aware the plaintiff was a cross boarder trader and had raised money from her trade. He was adamant that the late Bute Chikondo had never bought the property because on all the occasions they visited Harare they never went to see the house in question. He also stated that he never saw him coming to collect the rent. When it was put to him that the plaintiff would collect the rent and deposit it into their account he stated that he had no knowledge about that.

            This witness gave his evidence well and in a coherent manner. He readily conceded what he did not know and insisted on things that he had knowledge of. He was truthful in that he had not been present when the property was purchased but he had been assisting the plaintiff thereafter until the extensions were completed. He is the one whom the assistant builder knew because he went to inspect the building with the plaintiff. I had no hesitation in accepting his evidence.

            Mr Langton Ngoroni was the next witness for the plaintiff. He stated that he knew the plaintiff as a neighbour and her husband who was his friend. The property in dispute belonged to his nephew one Ali Chikoko. He told the court that sometime in 1985 Mr Ali Chikoko visited him at his house Portland Cement and advised him that he wished to sell his house and relocate to Malawi. He also advised him that he had found a buyer for his house and he wanted him to witness the sale. They proceeded to Mr Chikoko’s house where he saw the plaintiff. She was in the company of some people whom he did not know. After the purchase price had been agreed to the plaintiff handed over the money to him and he counted it before passing it on to his nephew. Mr Chikoko stated that he wanted to go and effect cession of the property at the Council offices. He then asked the plaintiff what she would do as she already owned another property in Mabvuku. The plaintiff then stated that she would register the property in the name of her sister. An agreement of sale was drafted during his presence. Two weeks later the plaintiff attended at his work place. She wanted to purchase cement to make extensions on the new house. She gave him her money for 20 bags and he purchased the cement for her.

            In cross examination however he failed to explain who had drafted the agreement of sale nor could he say the contents of the agreement. He initially stated that agreement was signed in his presence but later contradicted himself and said the agreement was signed after he had left. He stated that he left soon after handing over the money to his nephew. He was however adamant that the plaintiff had stated that she was purchasing a second house and was not buying as an agent for another. When questioned by the court he stated that he was 73 years old and his nephew was in Malawi. He said he had last come to Zimbabwe in 1995. He stated that as far as he was aware he was still alive. He had however suffered a leg injury and could no longer travel.

            The witness gave his evidence well in most respects. Although his evidence on the agreement of sale was hazy he had a remarkably clear recollection on all the other issues especially if one takes into account his age.

            The last witness for the plaintiff was Mr Levison Yohane. He testified that he is 67 years old and has lived in Mabvuku all his life. He purchased his house in Mabvuku on 12 December 1972. Mr Ali Chikoko was his brother in law. His young brother was married to Mr Ali Chikoko’s sister. He met the plaintiff for the first time at Mr Ali Chikoko’s house when the sale was concluded. He had also been invited by Mr Chikoko to witness the sale. Mr Ali Chikoko introduced him to the plaintiff as the buyer of his property. She purchased the property for $3 700. The transaction took place on 5 September 1985 at about 4.30 in the afternoon. He stated that they had hoped to go to the Council offices that day to effect cession but by the time they completed the transaction the offices had closed. They arranged to meet the following day. He stated that the plaintiff explained that as she already owned another house she had made arrangements to register the house in the name of another. The following morning he then met for the first time the plaintiff’s brother in law at the council offices. Plaintiff indicated that ownership was to be made in the name of her brother in law, Bute Chikondo. He stated that before they entered the council offices the plaintiff explained that although she had purchased the property it was to be ceded into the name of her brother in law. He stated that this explanation was made in the presence of Bute Chikondo and her sister and he did not protest about the arrangement. The witness testified that he was surprised that the defendants were now claiming the house as belonging to their father. He stated that even when the defendants’ mother died her wake was conducted at the plaintiff’s house and not at the disputed house. In his opinion if the property had belonged to the late Bute Chikondo then her funeral wake would have been held there as per customary law.

            The witness gave his evidence well and did not waver in cross examination. He was present when the sale took place and at the cession. He was adamant that he only saw the late Bute Chikondo and his wife the day after the sale at the council offices. He was also adamant that when the plaintiff explained that the property was to be registered in Bute Chikondos name for convenience only they did not object. He also pointed out that when Benhilda Bute Chikondo died her funeral wake was held at the plaintiff’s house. It was his view that if the disputed property had belonged to them then her wake would have been held at her house and not her sister’s house. I had no hesitation in accepting his evidence.

            With this evidence the plaintiff closed her case.

            The defendants opened their case with the evidence of the second defendant. She told the court that she resides at number 4 Rezende Street in Harare. She is the eldest daughter of the late Mr and Mrs Bute Chikondo. She testified that she was told by her parents stand 6203 Mabvuku belonged to them as it had been purchased by her father. Her parents also owned another property in Mbare. They had never lived in these properties as they resided in Mtorashanga where her father worked as a cook. Prior to her parent’s death the plaintiff would give her parents the rentals for the property. Whenever her parents failed to collect the rent money themselves the plaintiff would deposit the money into a bank account in the name of Oswald the first defendant. She stated that her father was working for Dunstan Transport when he developed the property. She produced a letter from a Mr Mudzingwa from Dunstan Transport stating that they assisted the late Bute Chikondo with building materials. Problems started after the death of their father when the plaintiff demanded their father death certificate. The matter was then resolved at the funeral and the plaintiff started giving them rent from this property for two rooms. After six or seven months the witness then asked for money for four rooms as the money they were getting was not enough to pay school fees for first defendant. The plaintiff then stopped giving them money altogether. The witness stated that she never had problems with the plaintiff until their parents died. She told the court that she had also been told by her mother’s relatives that the house belonged to them.

In cross examination she confirmed that her parents had never lived in the property in question. They had lived in a company house in Mtorashanga until he retired in 1993. Her father then relocated to the rural area. He would however occasionally come to live in Harare and would do part time work as a driver at Bika Brothers. She confirmed that her mother’s funeral wake was held at the plaintiff’s residence and that when she took out a funeral policy for her mother she used the plaintiff’s residence address.

She denied the statement in her summary of evidence that the plaintiff had a dispute with her mother over rent to the property. She also failed to explain how that information would have formed part of her pleadings if she had not told her legal practitioner about it. Although she was cross examined at length on the issue she could not offer any explanation why her parents had never lived in the property in question or allowed them to use the property after they had finished school. She conceded that even when her father had come to Harare after his retirement to do part time work for Bika Brothers he had not made use of that house. She also failed to explain why she was not calling any of her mother’s relatives to support their case since she had indicated in her evidence in chief that they knew that the house belonged to them. I therefore found that her story was not plausible as it had too many unexplained gaps.

Oswald testified that he is the executor of the estate of his father the late Bute Chikondo. He told the court that when he grew up he knew that his parents owned a house in Mabvuku. Tenants were renting the property and the plaintiff would pay the money into his bank account. The plaintiff kept the bank book and he made only one withdrawal in it after he had been convicted of assault charges and needed the money to pay the fine. After his parents died the plaintiff refused to give him the bank book.

In cross examination he stated that he could not bring the documents relating to the property because he had only gone to the council offices to have the property ceded into his name. He stated that he was however aware that there was a court order that had reversed the title back into the deceased’s name. He stated that he had failed to continue with his education because he had no money as his father was old and his mother had died.  When it was put to him that his mother died in 2003 when he was 17 years old and had

finished school he stated that he had repeated various grades several times.  When asked again why he left school he stated that he did not know.  In re examination he explained that he did not know anything because when he repeated classes he had only gone as far as grade four.

            The first defendant was not a satisfactory witness.  He was not forthcoming in his evidence in chief and in cross examination he claimed not to know anything.  His memory on things which should have been within his knowledge was hazy and fragmented.  For instance he could not even explain the three withdrawals that he made in his account save for the one when he was arrested.  For these reasons I could not accept his evidence.

            The Master filed a report in accordance with rule 248 of the High Court Rules, 1971 as amended.  He stated in his report that the registration of the estates of the late Bute Chikondo and Benhilda Chikondo was irregular as the estates where put under one reference number.  He also recommended that as there is a dispute, an independent executor be appointed.  It should be noted that the recommendations of the Master could not be implemented as the issue of the removal of the executor was not before the court.  The sole issue for determination is who should be declared the true owner of the property.

            It is apparent that in this case the court is called upon to make a determination on conflicting facts.  The property in dispute is ceded in the name of Bute Chikondo.  The presumption of ownership thus rests with the title holder.  The presumption may however be rebutted upon clear and satisfactory evidence.  In order to rebut this presumption the plaintiff must show, on a balance of probabilities, that she is the actual owner of the property even if it was not in her name.

            The plaintiff’s evidence was that she had purchased the property but had registered it in the name of her brother in law as it was unlawful to own two properties in the same municipality.  The evidence she place before the court was exhaustive.  She was able to call the persons who were present when the sale took place and she paid the purchase price.  Whilst it is not clear whether or not a written agreement was signed on the day the evidence disclosed that she was the person who was the purchaser of the property.  From the evidence it was apparent that she is the one who approached the seller and paid the purchase price in the presence of a number of witnesses.  Upon the seller vacating the property the plaintiff was the one who was in charge of the property.  She rented out the property and started renovations.  Witnesses testified on the role they played on the purchase of the building  materials and construction of the extension.  They all had direct communication with the plaintiff.  One of the witnesses Mr Mushawatu indicated that he knew the plaintiff’s sister as she used to come and visit the plaintiff but he had never seen her going to inspect the house or collecting rent.  He was the one who assisted plaintiff when the renovations were being done.  The assistant builder who built the property stated that he had only worked with the plaintiff and no one else.

            On the other hand the late Bute Chikondo and his wife never visited the property neither did they live in it.  Whenever they had occasion to visit Harare from Mtorashanga where they lived they would stay with the plaintiff. Their children also did not live in the property or even keep a room for their use.  It was worthy to note that after the late Bute Chikondo retired he went to live in his rural home and even when he came to Harare to carry out part time work for Bika Brothers he would reside elsewhere and not on his property.  It was not in dispute that the late Bute’s wife’s funeral wake was held at the plaintiff’s home instead of at the property in question contrary to custom.  It was telling that even when second defendant took out a funeral policy for her mother she used the plaintiff’s address and not the one at the disputed property.

            The nail on the coffin for the defendants was the evidence of Levison Yohane a sprity 68 year old who has been resident in Mabvuku since 1972.  It was apparent from his evidence that he first met the plaintiff on the day of the sale as he was the seller’s brother in law.  He confirmed that the person who paid the purchase price was the plaintiff and on the following day when plaintiff explained in the presence of Bute Chikondo and his wife about the arrangement to merely put his name for council records there was no objections from them.  He is not related to the plaintiff and in my view no basis was laid to show why he would lie in her favour.

            The defendant’s case on the other hand was incoherent and fraught with improbabilities.  Whilst the court did take into account that the second defendant was only four years old when the property was purchased and the first defendant had not yet been born it was difficult to accept even the facts which they should have been aware of.  The plaintiff explained that it had been agreed with her sister and brother in law that she would pay $5 000 for using his name in the cession documents.  She indeed opened a bank account in the name of first defendant and made deposits therein.  An examination of the deposits shows that they were not consistent and it was not a fixed sum.  For instance the first deposit of $30 was in July 1989 and the next deposit was in May 1990 which was almost ten months later with a deposit of $20.00.  This could not have been money for rent which is paid every month.  It is also noteworthy that although the late Bute Chikondo retired in 1993 there was no evidence that he ever came to collect his own rent.  The management of the property remained firmly in the hands of the plaintiff even where it was not necessary.

            Three withdrawals were made in the Post Office Savings Book.  The first defendant stated that he knew of only one when he needed money to pay a fine.  The defendants tried to argue that the first defendant had failed to continue with his education because he could not access the money in the savings account.  It was however apparent in cross examination that three withdrawals were actually made in the book and by the time their mother died first defendant was 17 years old and would have finished school.  The defendants also failed to explain the fact that when her father left employment in 1993 he could have managed the rentals of the Mabvuku house if he was not happy with the manner in which the plaintiff was collecting and remitting the money.

The defendants could not explain how the cession papers which had been posted to the late Bute Chikondo ended up with the plaintiff.  I did not accept the explanation that the plaintiff had stolen the documents from her mother’s clothes when she died.  It was apparent to me that since the plaintiff had all the relevant documents for the plan and receipts for the building material the late Bute Chikondo had given her the cession papers.  One would have assumed that if she was indeed a caretaker for the defendant’s parents, as alleged by the defendants, she would have handed over all the documents to them for accounting purposes since she would have used their money for the construction.

I also did not accept the defendant’s evidence that the building material which had been obtained by their father from Dunstan Transport had been used for the construction of the Mabvuku property.  Firstly exh 7 which was produced in court by the second defendant did not specify the material that was given to the late Bute Chikondo by his employers.  The letter merely stated that he “was assisted with building materials in the 1980s”.  Secondly there was no evidence of where it was delivered.  A reading of the letter leaves one with the impression that the author of the letter did not seem to know much about the transaction and that he was merely stating what he had been told by the defendants.  It was worthy to note that the late Bute Chikondo chose to go and reside at his rural home after his retirement.  It may very well have been that the material was given for him to build at his rural home.

The second defendant also stated that after her parents died the plaintiff would give them money for rent for two rooms and she would retain money for four rooms.  This was denied by the plaintiff.  I believed the plaintiff because when second defendants sought to remove plaintiff’s tenants and install her own the plaintiff immediately went to court and obtained a spoliation order against her.  This would have been unnecessary if they had agreed to the defendant receiving such rent.

The defendants also stated their mother’s relatives had told them that the property in Mabvuku belonged to their parents.  However it is worthy to note that none of the relatives were called to testify to this effect.  What was undisputed was that the second defendant had taken a funeral policy for their mother and had used plaintiffs address for all communication and not the disputed property.  The defendant’s mother’s funeral wake was held at the plaintiff’s house.  One would have assumed that if she owned a house a few meters away it would have been held at her own house.  These facts in my view lead one to the inescapable conclusion that the property does indeed belong to the plaintiff.

With regards to costs, the dispute in this case involves a property which is registered in the name of a deceased estate.  In normal circumstances the costs would have been borne by the estate.  However, in my view, in this case such an order will unnecessarily burden the estate.  In any event although the plaintiff has succeeded in her claim the whole dispute arose because she did not exercise proper diligence in her affairs.  Had she put her house in order prior to the death of her sister and her brother in law this matter would not have been before us today.  In these circumstances it is only proper that I do not make an order of costs.

Accordingly I make the following order:

1.  The plaintiff is hereby declared the owner of stand number 6203 Mabvuku.
2. The first defendant is hereby ordered to cede stand 6203 Mabvuku to the plaintiff within seven days of the granting of this order failing which the Deputy Sheriff is hereby authorised to sign all necessary documents to effect cession into the plaintiff’s name.
3. The third defendant shall facilitate the cession of the said property into the name of the plaintiff.
4. There be no order as to costs.   

Munangati & Associates, plaintiff’s legal practitioner

Matimba & Muchengeti, 1^st and 2^nd defendants’ legal practitioners