DISTRIBUTABLE
(60)
Judgment
No S.C. 68/03
Civil
Appeal No 20/02
ANNA
CHIPEZEZE v MAGNIFAYI MUNGANI MAVHUNDUKURE
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA
HARARE
SEPTEMBER 11, 2003
N.B.
Nagar,
for the appellant
A.A.
Brooks,
for the respondent
CHIDYAUSIKU
CJ: The respondent, (whom I shall refer to as the plaintiff for
convenience) issued summons for the eviction of
the appellant, (whom
I shall refer to as the defendant) from stand no 5880 Sambarafuta
Crescent, Mucheke Township, Masvingo, (hereinafter
referred to as
the house). The defendant filed a plea and a counter-claim.
Thereafter, the plaintiff applied for summary
judgment. The
defendant opposed the application for summary judgment. Summary
judgment was granted. The defendant was aggrieved
by this and
appealed against the whole of that judgment.
At the
conclusion of submissions by counsel this appeal was dismissed and
the reasons for judgment were to follow. The following
are the
reasons for judgment.
The
facts of this case are as follows:
It
is common cause that the plaintiff is the owner of the house, having
taken transfer in early 1999. The defendant had been staying
in
that house as a tenant of the previous owner and he is still in
occupation of the house. It is also common cause that the plaintiff
concluded an agreement for the sale of the same house to the
defendant. The two parties now accuse each other of breaching that
agreement of sale.
The money
that the defendant had paid to Winterton Holmes & Hill by way of
deposit and transfer of costs was subsequently refunded
to the
defendant who accepted the money. The court a
quo
concluded that the defendant had no defence to the plaintiffs
claim and granted the summary judgment. In this regard the learned
judge in the court a
quo
had this to say:-
The respondent did consult
legal practitioners who did write to the applicants legal
practitioners seemingly accepting that the
agreement had been
breached and that they were going to sue the applicant for damages
arising out of the breach of that agreement.
It would appear
therefore that even the counter claim which is not before me for
adjudication does not seem to have bright prospects
of success in
view of the stance initially taken by the respondent in accepting
that the agreement had been cancelled and that damages
would be
claimed in due course.
But
the most important aspect of this case is that the applicant is the
owner of the house. He wants his house back, apart from
alleging an
agreement of sale the respondent has not put forward any averments
which would amount to a right to occupy the premises.
She relies
simply on the agreement of sale. That agreement, before it is
implemented, does not give rise to any right of occupation
on the
part of the respondent. Her right, if any, is to sue the applicant
to compel the enforcement of the agreement and the consequent
transfer of the house to herself before she can claim occupation of
the house. As of now no right of occupation has been averred
and
consequently the opposition to the application for eviction seems to
be ill-founded in my view.
Accordingly
I will have to make an order for the ejectment of the respondent from
those premises. The claim initially made for holding
over damages
has been properly abandoned by Mr Brooks, who appears for the
applicant, and it consequently falls away. So I will
delete
paragraph 1 point 2 of the draft order and make an order in terms of
the draft as amended.
The above
reasoning and conclusion of the learned judge cannot be faulted.
The remedy of summary judgment is a very stringent
remedy in that it
closes the door to the defendant and should not be readily granted.
However, in a situation such as in
casu,
even if the defendant were to establish as fact at the trial all the
averments found in the opposing affidavits, those facts would
not
constitute a defence to the plaintiffs claim. In such a case
summary judgment should be granted. The learned judge was
therefore
correct in granting such relief in this case..
The
plaintiff is the registered owner of the house. He wishes to secure
occupation of his house. The defendant alleges that
there was an
agreement of sale of the house to her which the plaintiff breached.
Even if the defendant were to establish at the
trial that there was
such an agreement and the plaintiff was in breach of it that would
not entitle the defendant to occupation of
the house. The
defendants entitlement to occupation would only accrue upon
conferment of ownership on her. The agreement of
sale attached to
the papers does not confer on the defendant the right of occupation.
The breach of the agreement of sale alleged
by the defendant does
not confer on the defendant the right of occupation. Indeed as the
learned judge correctly observed her right
of occupation will only
accrue once she has succeeded in having the agreement of sale
declared enforceable and the house consequently
transferred to the
defendant. At the time of the application no right of occupation
had accrued to the defendant nor was any such
right averred.
In the
result the appeal was dismissed with costs.
ZIYAMBI
JA: I agree
MALABA
JA: I agree
Muzenda &
Partners,
appellant's legal practitioners
Winterton
Holmes & Hill,
respondent's legal practitioners