KAMOCHA J: The
plaintiff's claim in this matter was for:-
“(a) An
order compelling 2nd defendant to sign all necessary cession
documents kept at 3rd defendant's offices and transfer the rights,
title and interest on stand number 30583 Entumbane, Bulawayo from his name to
the names of plaintiff or his nominees for the reason that the property was
actually bought by plaintiff from 1st defendant and only transferred
into 2nd defendant's names for convenience due to the then
prevailing restrictive regulations by 3rd defendant. The property actually belongs to plaintiff
who obtained it for value from 1st defendant. Despite lawful demand to effect transfer, 2nd
defendant has unreasonably refused, neglected or failed to effect the property
(sic) into plaintiff or his nominees'
names.
(b) An
order that 2nd defendant be evicted by the Deputy Sheriff from stand
number 30583 Entumbane, Bulawayo and that plaintiff or his nominees be given
vacant, peaceful and undisturbed possession of same.
(c) An
order that 2nd defendant be ordered to pay costs of suit at
attorney-client scale.”
In his declaration the plaintiff stated that he purchased
house number 30583 Entumbane, Bulawayo “the property” from Shadreck Hukuimwe –
the first defendant in 1986 for a sum of $3 000,00 (old currency). Since he had paid the purchase price in full
he was given vacant and peaceful possession of the property that same year.
Instead of occupying the property himself, the plaintiff
allowed one Joseph Mahlatini to do so. Mahlatini
occupied the property on condition that he paid municipal rates and paid for
electricity that he consumed.
The plaintiff at that stage had already acquired another
property, within the Bulawayo Municipal area, which had been registered in his
name. He, therefore, could not have
another property registered in his name as the prevailing Bulawayo Municipal
regulations prohibited individuals from having more than one property
registered in their names.
Mahlatini and Justice Munyamana – the second defendant were
workmates at Datlabs and they still were, at the time of the trial of this
matter. Munyamana was Mahlatini's
superior at work but they were friends.
On the recommendation of Mahlatini the plaintiff agreed with Munyamana
that the property would be registered in Munyamana's name. Munyamana was married and his marriage certificate
was used to effect the transfer of the rights, title and interest into
Munyamana's name from Hukuimwe for no value at all. The parties did that because Munyamana was
one of the plaintiff's friends whom he trusted.
Munyamana did not have a house of his own as a good gesture
the plaintiff allegedly allowed him to occupy house number 33578 Entumbane,
Bulawayo which was one of the plaintiff's houses. He occupied it rent free. All he did pay for was electricity he
consumed and municipal rates.
Trouble started on 27 February 2006 when plaintiff suggested
to Munyamana that he should start paying rentals in respect of house number
33578 Entumbane which he occupied. A
figure of $1 500,00 (old currency) per month was suggested.
On 11 March 2006, Munyamana allegedly used his authority at
work over Mahlatini. He intimidated him
and managed to evict him from house number 30583 Entumbane, Bulawayo. He claimed that the house was his since it
was registered in his name. He then
allegedly took unlawful occupation of the house himself when he had no right at
all over the property. He allegedly
wanted to unjustly enrich himself at the expense of the plaintiff who purchased
the property from Hukuimwe.
When called upon to vacate the property and transfer it into
the plaintiff's name or his nominee, Munyamana refused and claimed that he was
the one who had bought the property from Hukuimwe. The plaintiff averred that Munyamana was just
being dishonest and untrustworthy.
Although Munyamana was married and was on the waiting list
for a house in the Municipality of Bulawayo, he had no money to purchase a
house. The property in issue was merely
registered in his name in trust and he would be advised later to transfer it
into the plaintiff's nominee at a convenient time. The period of the trust was not specified.
In his plea Munyamana stated that the plaintiff did not have
a marriage certificate and was not on the waiting list for a house in the
Municipality of Bulawayo.
He averred that after the plaintiff had purchased the house
from Hukuimwe, he was under pressure from Hukuimwe who wanted to transfer the
house to him. Plaintiff approached
Mahlatini who personally knew Munyamana.
He had knowledge that Munyamana had a marriage certificate and was on
the waiting list for a house in the Municipality of Bulawayo.
Sometime in February 1988 the plaintiff, Mahlatini and
Munyamana met at Save The Nation where the following was verbally concluded:-
(a)
Plaintiff
made an offer to sell the house number 30583 Entumbane, Bulawayo to the second
defendant for the sum of $3 000,00.
(b)
Second
defendant accepted the plaintiff's offer.
(c)
The
house was transferred to the second defendant's names.
The defendant alleged that he attempted to pay the purchase
price to the plaintiff on numerous occasions but the plaintiff kept on
postponing the dates for payment. He
felt that the plaintiff was in fact bent on frustrating him and made it
impossible for him to fulfill his contractual obligations. He concluded that the plaintiff was acting in
bad faith but all the same he himself was willing to pay the purchase price
together with interest at the prescribed rate.
He vowed to hold the plaintiff to the February 1988 verbal
contract and that he would counter claim for an order for specific performance.
He denied that the meeting of 27 February 2006 was for
discussing rentals. His story was that
he had gone there to pay the purchase price to the plaintiff. To his surprise the plaintiff sought to
unilaterally cancel the verbal agreement.
Plaintiff did not end there, he even purported to treat the defendant as
his tenant. Defendant, of course,
refused to accept that.
He denied ever evicting Mahlatini and, instead, alleged that
Mahlatini voluntarily vacated the house.
He then lawfully occupied his own house.
He was merely enforcing their verbal agreement which the plaintiff
purported to unilaterally cancel. He
alleged that the issue of unjust enrichment did not arise at all as the
property was lawfully his. He reiterated
that his occupation of it was meant to enforce the verbal agreement between the
parties.
In conclusion he prayed that the plaintiff's claim be
dismissed with costs and that plaintiff be ordered to accept the purchase price
together with interest at the prescribed rate.
When the parties attended a pre-trial conference before a
judge they agreed on, and formulated, the issues for the trial court as
follows:-
“(1) Whether
plaintiff's claim against 2nd defendant is prescribed in terms of
the law.
(2) Whether
there is an agreement of sale of rights, title and interest in stand number
30583 Entumbane, Bulawayo between plaintiff and 2nd defendant.”
At the trial the defendant moved that the court deals with his
special plea which he had filed in terms of order 21 rule 137(1)(a) of the
rules of court in the hope that the matter would be disposed at that stage if
the plea in bar succeeded.
The defendant submitted that the plaintiff's claim was
prescribed by operation of law in that:-
(a)
Title
in respect of house number 30583 Entumbane, Bulawayo was passed to him on 11
February 1988; and
(b)
The
plaintiff did nothing to claim from him the title for the said house for 19
years.
Further, it was contended that on receipt of the special plea
the plaintiff was required to file an answer to the special plea in bar either
denying that prescription applied or joining issues. That was not done and the inference to be
drawn was that the plaintiff had admitted that his claim had prescribed. Moreover, the plaintiff had done nothing to
interrupt the prescription. Consequently
the plaintiff's claim was prescribed in terms of section 15(d) of the
Prescription Act [Chapter 8:11].
The plaintiff on the other hand contended that the house was
registered in the defendant's name in trust.
Indeed the transfer was effected on 11 February 1988 on condition that
when the plaintiff's nominee was available the property would be transferred
into the name of the nominee who was the plaintiff's son. Transfer was only going to be due when the son
attained majority. He only became a
major in 2006. That, accordingly, was
the time that transfer was due.
The plaintiff went on to submit that defendant did not live
in the said house from the time it was registered in his name in trust until
2006 – a period of 18 years. In
conclusion plaintiff submitted that the plea in bar was devoid of any merit and
must fail with costs.
After the parties had made their submissions the court
dismissed the plea in bar with costs.
The court found that prescription only started to run when the
plaintiff's nominee i.e. son attained majority in 2006 and summons was
instituted on 8 march 2007.
Thereafter defendant through his legal representative sought
leave to appeal against the court's ruling.
The application was opposed on the basis that it was frivolous and
vexatious. Needless to say that the
court found it to be devoid of any merit and dismissed it.
The plaintiff called two witnesses to support his story after
he himself had given evidence.
His evidence was that he was a businessman in Bulawayo who
lived at 64 St Albany Drive, Parklands.
He knew the 1st defendant prior to this case as he as a best
friend of his elder brother's son. Both
used to work for Power Sales. He also
knew the 2nd defendant prior to this case as they were friends who
grew up together in Bulawayo. Plaintiff
was also a friend of Mahlatini who happened to be the best friend of the 2nd
defendant - Munyamana.
Sometime in 1986 plaintiff bought the house at the centre of
this dispute i.e. house number 30583 Entumbane, Bulawayo from Hukuimwe – the 1st
defendant. In 1988 Hukuimwe wanted to transfer the house from his name to that
of the plaintiff. However, the plaintiff
happened to be on the waiting list for a house in the up-market – eastern
suburbs of Bulawayo. City Council policy
at that time did not allow anybody to own two properties under its
jurisdiction. In the light of the
problem that he was facing he spoke to his friends and requested that if he
could use the name of anyone amongst them who did not have a house within the
Municipality of Bulawayo. Mahlatini
informed him that Munyamana had a registered marriage but did not have money to
buy a house. He was, therefore, suitable
to assist plaintiff.
The plaintiff, Mahlatini, Mauchaza and Munyamana then held a
meeting whereat it was agreed that the house would be registered in Munyamana's
name. They also agreed that the house
would later be registered in the name of the plaintiff's son when he attained
majority. The house was accordingly
registered in Munyamana's name on 11 February 1988 on that understanding. He held the house as a trustee.
Mahlatini took occupation of the house after its registration
into Munyamana's name. Munyamana lived
in Luveve where he was renting a house.
In 1997 Munyamana sent word to plaintiff via Mahlatini to the effect
that he needed accommodation. The
plaintiff decided to allow Munyamana to occupy one of his houses in Entumbane –
house number 33578 Entumbane. The spare
room of that house was occupied by a tenant.
Munyamana had preferred to occupy the whole house as he said he had a
big family and suggested that the tenant occupying the spare bedroom should
vacate it. The plaintiff did not accede
to Munyamana's request and told him that he still needed rentals from that
tenant. He went on to offer him to stay
in the house rent-free but he would only pay for the water and electricity that
he consumed. He said Munyamana did not
appear to be happy with the offer. He complained that since he had helped the
plaintiff by having one of his houses registered in his name he deserved a
better deal from plaintiff but the plaintiff stood his ground.
Munyamana remained disgruntled during his stay at house
number 33578 Entumbane. At one time he
demanded to move to house number 30385 Entumbane on the grounds that he had
assisted plaintiff to have it registered in his name but still got no joy.
Matters came to a head in 2006 when plaintiff requested
Munyamana to start paying rent for the portion of house number 33578 which he
occupied. Munyamana then proceeded to
house number 30385 Entumbane which was occupied by Mahlatini and another tenant
and evicted them. He literally removed
their belongings from the house and placed them outside and took occupation of
the house with his family. Plaintiff
tried to talk to Munyamana but all his efforts were in vain.
Plaintiff denied ever selling the house to Munyamana. He never refused to accept any purchase
price. That did not happen at all. The house was never sold to Munyamana.
The plaintiff was cross-examined at some length but stuck to
his story. When it was suggested to him
that the defendant would not sacrifice his being on the waiting list for the
sake of the plaintiff's minor child his reply was that the defendant had told
him that he had no money to buy a house at that stage but if he had raised some
money at some stage plaintiff would have looked for somebody else to assist him
like what Munyamana did. Further when it
was put to him that he refused to accept the purchase price he was emphatic
that the suggesting was not true. He
expressed a laughter and surprise when it was put to him that he had offered
the house for sale at the meeting held in February 1988 attended by Mahlatini. When asked why he was laughing he retorted
that the suggestion was a complete lie.
When it was repeated that plaintiff had in fact offered the house for
the sum of $3 000,00 he challenged Munyamana to either produce a written
agreement or call witnesses to support his assertions. Plaintiff gave his evidence in a straight
forward fashion and was not shaken under cross-examination. He is worth to be believed.
His evidence was corroborated on all material points by the
two witnesses he called. Rendy Mauchaza
is a friend of both the plaintiff and Munyamana. They grew up together. They used to play soccer together and went
out drinking together and they still do so.
Mauchaza told the court that he was present when plaintiff
bought the said house from Hukuimwe but the house could not be registered into
the name of the plaintiff as he did not have a registered marriage then. It was his evidence that plaintiff approached
his friends and asked if anyone of them had a registered marriage. Mahlatini recommended that Munyamana's
marriage certificate could be used since he himself was not using it at the
time. The arrangement was that when the
plaintiff's son attained majority the house would be transferred from Munyamana's
name to the son's name. Munyamana merely
held the house as a trustee pending plaintiff's son becoming a major.
He alleged that plaintiff never sold the house to
Munyamana. He claimed that if that had
happened he would have known about it as the plaintiff and him were best
friends. They even shared secrets. It, therefore, came as a shock to hear that
Munyamana was claiming to have bought the house from the plaintiff and had even
gone to the extent of evicting Mahlatini therefrom. He could not understand why Munyamana did
that when the plaintiff had provided him with accommodation when he was in
need. He finally emphasized that if
there had been any sale of the house between plaintiff and Munyamana he would
have certainly known about is as both men were his friends. This witness gave his evidence well and was
not shaken under cross examination. He
was a credible witness.
The second witness was Joseph Mahlatini whose evidence was
substantially the same as that of the plaintiff and Rendy Mauchaza. He grew up with plaintiff and Munyamana and
they were also his friends. Munyamana
was his superior at Datlabs where they have been workmates from as far back as
1972 to date.
While he confirmed that the house was registered in
Munyamana's name in trust he denied that it was later sold to Munyamana. He said none of his two friends ever told him
about the sale of the house. He lived in
the house from the time plaintiff bought it from Hukuimwe in 1986 until he was
evicted by Munyamana in 2006 but was never told, during that 20 year period,
that Munyamana had bought it. All he
knew was that it had been registered in Munyamana's name in trust. Mahlatini was also a credible witness. He is worth to be believed.
The defendant gave evidence and called his wife to support
his case.
His testimony was that he lived at the house in
question. He explained that by 1988 he
already had four children. His friend
Joseph Mahlatini approached him and told him that plaintiff was selling the
said house. He was not interested in the
house because:-
Firstly, he was on the waiting list for a house with the City
of Bulawayo on the Glencara scheme which offered five roomed houses;
Secondly, he had no problem with accommodation; and
Thirdly, he had no money to buy that particular house.
He told Mahlatini to convey his response to the
plaintiff. But to his surprise Mahlatini
returned with the same offer from the plaintiff. According to him the reason why plaintiff
persisted with wanting to sell the house to him was that Mahlatini was aware
that he had a marriage certificate and was on the waiting list for a house with
the Municipality of Bulawayo.
When he asked why the plaintiff was persistent with the
offer, Mahlatini allegedly revealed that plaintiff had bought the house when he
did not have the necessary documents required by the City Council. He said the plaintiff was under pressure
because he owned two houses in the Municipality of Bulawayo which had
threatened to repossess one of the houses if he did not dispose of it before
the end of February 1988. He said he was
touched by the plaintiff's plight and did not want the plaintiff to lose both
the house and his money.
He then went with Mahlatini to Save The Nation which is the
plaintiff's business. While they were
there plaintiff pleaded with him to get to his rescue by buying the house in
question from him. He agreed.
A verbal agreement of sale of the house was concluded. The purchase price was $3 000 – the same
amount he had bought it for from Hukuimwe two years earlier. The sale was an instalment one although the instalments
were not stipulated. The terms were very
generous since the plaintiff allowed him to pay any amount he could afford at a
time. It never occurred to him that the
agreement could be breached since plaintiff was his good friend. The parties then allegedly agreed to allow
Mahlatini to stay in the house until defendant saw it fit for him to take
occupation.
The house was accordingly registered into his name because he
had bought it. He was not a
trustee. He denied that the arrangement
was that the house would be transferred into the plaintiff's son on attaining
majority. He went on to state that
although plaintiff was his friend he would not have sacrificed his children's
accommodation for the unborn child of the plaintiff. He said only a mad person would do that.
Defendant also denied staying in house number 33578 Entumbane
rent free. He denied ever evicting
Mahlatini from the house in question and alleged that he vacated the house
voluntarily by arrangement.
As far as the paying of the alleged installments was
concerned it was his evidence that he had tried to make payment several times
but the plaintiff initially said it was too early for the payment. When he tried to do so on subsequent
occasions he was told to wait.
He finally invited the plaintiff and Mahlatini to his house
in 1996. The plaintiff still refused to
receive part of the money in the presence of his wife (Munyamana's). Plaintiff was so disrespectful that he even
refused to take a seat at Munyamana's house.
Munyamana faired very badly under cross-examination. It came out in cross-examination that when
the plaintiff's legal practitioners wrote to him on 4 January, 2007 he went to
seek legal advice at the Bulawayo Legal Project Centre and handed the letter to
the legal practitioners who replied as follows on 15 January 2007:-
“According to our consultant's instructions, in around
February 1988, Mr Gonouya approached him and advised him of sale of house
number 30563 Entumbane (sic) which he
had failed to purchase, as he could not meet City Council requirements.
Our consultant received a loan of $1 765,24 as purchase price
of the house from Gonouya and proceeded
to buy the house from Shadreck Hukuimwe.
Our consultant was aware that he was indebted to Mr Gonouya and tried on
several occasions to repay him. We note
with regret that the loan claim has since prescribed.”
Munyamana denied giving his erstwhile legal practitioners
those instructions. He was clearly being
untruthful. As can be seen from the
letter, he also told lies to the lawyers about buying the house from Hukuimwe
and borrowing $1 765,24 from the plaintiff to pay for the house.
Similarly the story he told the court that he bought the
house from plaintiff is also false. It
is also not true that the house was
registered in his name because he had bought it. The truth is that it was registered in his
name in trust as testified by the plaintiff and his witnesses. Equally false therefore, is his story that he
and plaintiff had entered into a verbal agreement of sale of the house. There was no such agreement whatsoever. Furthermore, his story about the instalments
and plaintiff refusing to receive such instalments is clearly false. His whole defence is predicated on lies and
must accordingly be rejected and so is his counter claim which must fail.
He called his wife as a defence witness but she did not take
his case any further. This court accepts
the well given evidence of the plaintiff and his witnesses. The court makes a specific finding that
Munyamana held the house as a trustee and that it was going to be transferred
into the name of the son of the plaintiff when he attained majority.
As regards costs I find that this is a proper case for the
court to award punitive costs. It was
because of Munyamana's unbridled lies that this unnecessary litigation was
instituted. He firstly alleged that
plaintiff's claim was prescribed when the debt only became due in 2006. Secondly, he alleged that there was a verbal
agreement of sale by instalments when that was not true. The plaintiff is entitled to recover his
costs in full.
In the result I would grant the plaintiff's claim in terms of
the draft order at page 1 of this judgment and dismiss the second defendant's
counter-claim on an attorney and client scale.
Marondedze, Mukuku, Ndove and Partners, plaintiff's legal practitioners
Sansole and Senda, 2nd
respondent's legal practitioners
