BHUNU
J: The dispute in this case is essentially between the plaintiff and the first
defendant who both claim to have purchased stand number 2110 Solani Epworth
from the second defendant. The plaintiff claims to have bought the property on
12 March 2000 but did not take session of the purchased property. The second defendant
however, later purchased the same property from the first defendant and took
cession on 21 of March 2003. The session was duly registered by the third defendant
in its capacity as the Local Board and owner of the property in dispute.
On
27 June 2006 plaintiff issued summons against the defendants claiming
nullification of the sale agreement between first and second defendants. The
plaintiff was met with the special plea that its claim against both defendants
has since prescribed.
The
preliminary issue which arises is therefore whether or not plaintiff's claim
has since prescribed. The plaintiff claims that she bought the property on 12
March 2000. Thus the plaintiff became entitled to acquire session of the
disputed property from that date. On the other hand the seller that is to say first
defendant became obliged to facilitate session of the property to the
plaintiff. To that extent the first defendant was indebted to effect transfer
to the plaintiff as from that date. In other words the debt became due on 12
March 2000.
In terms of s 15 of the Prescription Act [Cap. 8:11] such a debt prescribes after
3 years without interruption. In terms of s 16 of the Act prescription begins
to run as soon as the debt becomes due.
In
terms of s 7 of the Act the running of prescription can be interrupted by the
issuing of process. In this case it is common cause that the plaintiff issued
summons on 27 June 2006, more than 5 years after the due date. By then her
claim had already prescribed against both defendants. The issuing of summons
did not therefore interrupt the running of prescription as the debt had already
prescribed.
In
the result the plaintiff's claim cannot succeed. It is accordingly ordered that
the plaintiff's claim be and is hereby dismissed with costs.
Sawyer & Mkushi, plaintiff's legal practitioners
F.M Katsande &
Partners, 2nd defendant's legal practitioners
