The
plaintiff, Stephen Pasipanodya, in his capacity as the executor to the estate
of the late Edna Pasipanodya, issued summons against the late Betty Ruwizhi in
her capacity as the successor to the estate of the late John Ruwizhi, and the
Director of Housing Municipality of Chitungwiza, on 18 November 2003 claiming
cession of rights over Stand Number 11192 Rusununguko, Zengeza 4, Chitungwiza,
certificate of occupation of the same, an eviction order against the late Betty
Ruwizhi and all those claiming occupation through her and costs of suit.
On
the other hand, upon Betty Ruwizhi's demise, Tracy Ruwizhi, the daughter of the
late John Ruwizhi, was duly appointed as executor to his estate.
The
basis of the plaintiff's claim was that he had inherited the property from his
late aunt one Edna Pasipanodya.
The
plaintiff's claim was vigorously resisted on the basis that the late John
Ruwizhi had duly purchased the property from the late Edna Pasipanodya.
When
the matter came before me for trial, on 31 May 2010, the plaintiff testified
that the matter had, in fact, been amicably settled between him and Tracy
Ruwizhi. In short, all what he was seeking now was enforcement of the
settlement terms.
It
is common cause that the parties hammered out a verbal agreement to settle out
their dispute. The terms of the agreement were later reduced to writing but the
written document was only signed by the first defendant. The purported
settlement document reads as follows -
“________________________________________________________
By Consent
_______________________________________________________
The
parties have agree(d) as follows:
(a)
That the first defendant shall pay the plaintiff US$9,000= (nine thousand
dollars).
(i)
$6,000= against the signing of the agreement.
(ii)
The balance of $3,000= shall be paid in two installments of US$1,500= each.
(b)
That within 48 hours (forty-eight) hours the payment of the US$6,000= the
plaintiff and the defendant shall attend at the offices of the second defendant
to effect cession in favour of the first defendant of the right, title and
interest in Stand 1192 Rusununguko Road, Zengeza 4, Chitungwiza.
(c)
That each party shall bear his/her own costs.”
In
fulfillment of that Settlement Agreement the first defendant proceeded to
deposit the amount of US$9,000= into the plaintiff's trust account with his
legal practitioners.
Upon
payment of that amount the parties proceeded to the second defendant's offices
with a view to effect cession in terms of the Settlement Agreement. Upon
perusal of the file kept at the first defendant's offices in respect of the
property in question the first defendant stumbled upon written documents to the
effect that John Ruwizhi had, in fact, paid the whole purchase price to Edna
Pasipanodya before their demise. Edna Pasipanodya had acknowledged receipt of
the full purchase price in consequence whereof she had completed the necessary
forms to effect cession to John Ruwizhi.
The
first defendant sought to resile from the Settlement on two grounds. Firstly on
the grounds of duress and, secondly, that the Settlement Agreement was induced
by a common error to both parties….,.
Turning
to the question of error, the first defendant appears to be on firmer ground.
It
is clear that had she known beforehand of the existence of the contractual and
official documents tending to show that the whole purchase price had in fact
been paid, she would not have entered into the Settlement Agreement. For that
reason alone I hold that the Settlement Agreement was vitiated by error and to
that end null and void. That being the case, there is no basis upon which the
plaintiff's legal practitioners can continue to hold onto her money when the
reason for which they have been holding onto the money has fallen away.
It is accordingly
ordered:
1.
That the plaintiff's claim that the matter has been settled be and is hereby
dismissed.
2.
That the plaintiff's legal practitioners be and are hereby ordered to refund to
the first defendant the US$9,000= paid by her into their trust account.
3. That costs be costs in the cause.
