IntroductionOn 16 February 2017, the plaintiff sued out a summons against the first defendant seeking an order couched in the following terms:“(i) An order confirming the cancellation of an agreement of sale entered into by and between plaintiff and defendant in respect of a property known as a certain piece ...
Introduction
On 16 February 2017, the plaintiff sued out a summons against the first defendant seeking an order couched in the following terms:
“(i) An order confirming the cancellation of an agreement of sale entered into by and between plaintiff and defendant in respect of a property known as a certain piece of land being Stand number 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo and which cancellation was occasioned by defendant's breach of the terms and conditions of the said sale agreement.
(ii) An order evicting the defendant and all those claiming through him from the aforesaid premises on the basis that the defendant and his claimants no longer have a lawful right to remain in occupation of the premises following the cancellation of the sale agreement.
(iii) An order that the defendant pays occupational damages to the plaintiff in the sum of US$800 per month or US$26=67 per day, from the 4th September 2015, this being the date of the sale agreement was cancelled to the date of eviction.
(iv) Cost of suit at an attorney and client scale.”
The defendant referred to in the order sought by the plaintiff is the first defendant in this matter. The second and third defendants were joined to this matter by an order of this Court in Case No. HC3144/18 granted on 8 January 2019.
At a case management meeting held on 19 February 2020, before a judge of this court, the parties agreed to file a written statement of agreed facts and to refer the matter to the Court for determination by way of a special case in terms of Order 29 of the High Court Rules 1971. A statement of agreed facts was drawn, signed and filed on the 1 October 2020.
The matter then proceeded as a special case in terms of the rules of court.
On 11 February 2022, the plaintiff filed a notice to amend the summons, declaration, and pleading filed of record in terms of Rule 41(1) of the High Court Rules 2021. The notice sought to delete the names of Thabani Siziba N.O. to be substituted with the name of Batandi Michael Mpofu N.O.
There was no written objection to the proposed amendment within the ten days of the delivery of the notice, the amendment sought was therefore effected.
The Facts
For the purposes of clarity and completeness, I reproduce in ex extensio the statement of agreed facts signed and filed by the parties in this matter. These are the agreed facts:
(i) That the plaintiff and first defendant, sometime in November 2014, entered into a written agreement of sale over Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo (hereinafter 'the in initial agreement'). A copy of the initial agreement is annexed hereto and marked, “A”.
(ii) That the first defendant took occupation of the property immediately upon the signing of the initial agreement pursuant to the terms thereof.
(iii) That in terms of the initial agreement, the first defendant agreed and undertook to pay the full prescribed purchase price in respect of the property, being the sum of USD105,000 as follows:
(a) A deposit in the sum of USD25,000 upon the signing of the agreement.
(b) The balance of USD80,000 to be paid by way of three (3) equal instalments commencing on 28 February 2015, and subsequently on or before 28 April 2015, and finally on or before 31 July 2015.
(iv) That the purchase price prescribed in respect of the property in terms of the initial agreement was as per the then prevailing fair market value.
(v) That the first defendant initially paid a deposit of USD37,000 by 12 March 2015. A copy of the defendant's proof of payment of the deposit is annexed hereto and marked “B”.
(vi) That the first defendant breached the agreement of sale by failing to pay the balance of the purchase price of USD68,000 in the manner prescribed in the initial agreement.
(vii) That the notice of termination of the initial agreement of sale over the property was, according to the Sheriff's Return of Service, served upon the first defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on 12 August 2015, by handing a copy thereof to the first defendant's worker. A copy of the notice of the termination and the Sheriff's Return of Service hereto marked 'C' and 'D' respectively.
(viii) That in terms of the notice of termination, the initial agreement of sale was cancelled on 4 September 2015.
(ix) That an action was instituted by the plaintiff on 16 February 2017, under cover of case No. HC446/17, seeking:
(a) An order confirming the cancellation of the initial agreement;
(b) An order evicting the first defendant and all those claiming occupation from the property in question (sic);
(c) An order that the first defendant pay occupational damages to the plaintiff in the sum of USD800 per month or USD26=67 per day from 4 September 2015, being the date on the cancellation of the initial agreement to the date of eviction.
(x) The default judgment was granted on 19 May 2017, confirming the cancellation of the initial agreement and granting the rest of the relief as prayed for in the summons in the matter under cover of Case No. 446/17. A copy of the default judgment is annexed hereto marked 'E'.
(xi) That in terms of the writ of execution and ejectment issued out on 8 February 2018, pursuant to the default judgment in the matter under cover of Case No. HC446/17, the first defendant was evicted from the property in question. A copy of the writ of execution and ejectment is attached hereto and marked “F”.
(xii) That the default judgment in the matter under cover of Case No. HC446/17 was rescinded and set aside on 22 November 2018 in terms of the Order issued in the matter under cover of Case No. HC1576/18, a copy of which is annexed hereto marked “G”.
(xiii) That the first defendant entered an appearance to defend the action under cover of Case No. HC446/17 on 26 November 2018, and filed a special plea on 18 February 2019, but has not pleaded over to the merits of the matter.
(xiv) That during the period when the order in Case No. HC446/17 was extant, and on 14 March 2018, the plaintiff entered into a written agreement of sale over the property with the second defendant (hereinafter “the second agreement”). A copy of the second agreement is annexed hereto and marked “H”.
(xv) That in terms of the second agreement, the second defendant agreed and undertook to pay the full prescribed purchase price in respect of the property being the sum of USD130,000 as follows:
(a) A deposit in the sum of USD70,000 upon the signing of the agreement.
(b) The balance of USD60,000 to be paid between 31 April 2018 and 31 July 2018.
(xvi) That the purchase price prescribed in respect of the property in terms of the second agreement was per the then prevailing fair market value.
(xvii) That in accordance with the terms of the second agreement, and by 18 July 2018, the second defendant had paid the sum of USD130,000 to the plaintiff, being the full prescribed price in respect of the property in question. The prescribed purchase price was paid into the bank account of Waterbuck Trust (Pvt) Ltd as evidenced by the attached proof of payment marked “I”.
(xviii) That the third defendant was made aware of the second agreement of the sale in terms of a report by the plaintiff and duly recorded such sale in its minutes in respect of a creditors meeting held on the 21 June 2018. The minutes of such meeting are duly contained in the third defendant's final liquidation file under CRB2/10 and attached hereto marked “J”.
(xix) That on 21 March 2018, the only secured creditor of Tabs Avon Lighting (Pvt) Ltd (the company under liquidation) being, NMB Bank Limited, approved of the second agreement of sale and the third defendant was duly made aware of such approval. The letter by the said sole secured creditor of the company under liquidation is contained in the third defendant's final liquidation file under CRB2/10 and is attached marked “K”.
(xx) That in the aftermath of the granting of the order in the matter under cover of Case No. HC1576/18, and after the conclusion of the second agreement of sale and the payment of the full purchase price in respect of the property by the second defendant, the first defendant took steps aimed at remedying his breach of the initial agreement of sale by depositing into the plaintiff's legal practitioners trust account the balance of the purchase price being USD68,000 in terms of the correspondence attached hereto marked “L”.
(xxi) The steps taken by the first defendant, aimed at remedying his breach of the initial agreement, were not accepted by the plaintiff in terms of correspondence attached marked “M”.
(xxii) The plaintiff's legal practitioners tendered back to the first defendant the amount paid into its trust account in the sum of USD68,000. This amount is currently held in trust by the plaintiff's legal practitioners as per the correspondence attached hereto marked “M”.
(xxiii) That by way of an Order granted in the matter under cover of Case No. HC3144/18, the second defendant was joined to the main proceedings, duly entered an appearance to defend the action and filed his plea thereto.
(xxiv) That as at the date of this statement, and following the first defendant's eviction therefrom in terms of the writ of execution and ejectment issued against him in the matter under cover of Case No. HC1576/18, neither of the parties are in physical or lawful occupation of the property nor has any party taken transfer thereof.
The Issues
The issues for determination by the Court are as follows:
(i) Whether the initial agreement of sale over Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo between the plaintiff and the first defendant was lawfully terminated.
(ii) Whether there existed any legal impediment to the conclusion of the second agreement of sale entered into between the plaintiff and the second defendant at the material time.
(iii) To whom should the property, being Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo be transferred?
Factual Disputes
There is a preliminary issue to be put out of the way before dealing with the substantive issues arising in this matter.
In his submissions, counsel for the first defendant submitted, that, there were disputes of fact in this matter such that it could not be resolved by way of a special case. Counsel contended that the dispute of facts were these:
(i) First, was that the Sheriff's return of service did not relate to the service of the notice of cancellation of the agreement of sale between the plaintiff and the first defendant. It was contended further that the letter of cancellation was written on 4 August 2015, however, the return of service related to a notice of set down served on 6 March 2017. Counsel submitted further that the first defendant does not dispute that the notice of cancellation of the agreement was served on his gardner on 12 August 2015. What was disputed was that the return of service did not relate to the service of the notice of cancellation.
(ii) The second turned on the identity of the property sold to the second defendant.
This contention was anchored on the fact that the agreement of sale between the plaintiff and the second defendant speaks to Stand number 6512 Bulawayo Township of Stand 6541A Bulawayo Township situate in the District of Bulawayo, when the dispute in this matter turns on Stand number 6505.
Counsel submitted, that, because of these disputes the matter was to be referred to trial.
Per contra, counsel for the plaintiff submitted that the alleged factual disputes were not germane to the resolution of the issues before the court.
Counsel contended further, that, the first defendant was bound by the statement of agreed facts, and could not purport to renege from such agreed facts.
Counsel for the second defendant argued, that, it was not in dispute that the notice of cancellation was served; what was in dispute was that the Sheriff's return of service did not relate to the service of the notice of cancellation. Counsel argued further that there was a mix up of Stand numbers in the agreement of sale between the plaintiff and the second defendant, but nothing material turned on that because the parties were agreed on which Stand was in issue.
Counsel argued that there was no basis to refer this matter to trial.
In dealing with agreed facts, the court in Kunonga v The Church of the Province of Central Africa SC25-17 said:
“Once the facts are agreed, the court should proceed to determine the particular question of law that arises and not delve into the correctness or otherwise of the facts. It is bound to take those facts as correctly representing the agreed position and to thereafter determine any issues of law that may arise therefrom. It is not open to the parties to the Stated Case to seek to re-open the agreed factual position or to contradict such position. Nor can either party seek to ignore existing legal principle or findings of fact made in connection with the same matter by another court.
Of course, either party has a remedy at common law, to withdraw any concession made in a stated case owing to justus error, fraud, mistake, or any other valid ground.
It has become necessary to restate what a Stated Case is owing to the fact, that, in some instances, the appellant in this case has made submissions contrary to the stated case brought before the court. The appellant has also ignored, in part, the decision of this court on which the stated case is predicated.
It bears stating that if this happens, a party will be kept strictly to the terms of the agreed facts, as it is on the basis of those facts that the court would have been invited to make a determination on some specific question of law.”…,.
In the Statement of Agreed Facts, in respect of service of the notice of cancellation, it was recorded that:
“That the notice of termination of the initial agreement of sale over the property was, according to the Sheriff's Return of Service, served upon the 1st defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on the 12th August 2015, by handing a copy thereof to the 1st defendant's worker.”
The first defendant agreed that the notice of termination of the initial agreement of sale was served upon the first defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on 12 August 2015, on the first defendant's worker.
The first defendant is bound by the statement of facts.
In his submissions, counsel for the first defendant contended that the first defendant does not dispute that the notice of cancellation of the agreement was served on his gardner on 12 August 2015. What was disputed was that the return of service did not relate to the service of the notice of cancellation.
In the statement of agreed facts, in respect of the identity of the property in issue, it was recorded that:
“That during the period when the order in Case No. HC446/17 was extant, and on the 14th March 2018, the plaintiff entered into a written agreement of sale over the property with the 2nd defendant.”
The property referred to is Stand number 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo.
There is no factual dispute about the identity of the property in issue. In the statement of agreed facts, the parties are agreed as to the identity of the property in issue in this matter.
Counsel for the first defendant submitted further, that, when the statement of agreed facts was signed, the first defendant had not had sight of the Sheriff's Return of Service and the agreement of sale between the plaintiff and the second defendant.
This is unattainable.
I say so because the statement of agreed facts was signed by the parties legal practitioners. It is unthinkable that a legal practitioner could append his signature on a document to be used in court proceedings without having had sight of all supporting documents.
In Grain Marketing Board v Arenel (Private) Limited and Ors SC30-21, the court said:
“The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.”
The first defendant cannot be heard, at this stage, to start attacking the statement of agreed facts on the basis that when it was signed it had not seen the supporting documentation. Worse still when the statement was signed by a legal practitioner.
In any event, no application was made to withdraw from the statement of agreed facts.
Further, in respect of the attack on the return of service, the first defendant accepts that the notice of termination was served on his worker. The issue for determination is not whether service was done, but whether it was valid service in terms of the law.
I hold the first defendant strictly to the agreed facts.
The first defendant signed a statement of agreed facts; and, further, the disputes of fact alleged by counsel for the first defendant are not germane to the resolution of the issues in dispute in this matter.
The first defendant does not dispute that the notice of cancellation was served; he disputes that it was served in accordance with the provisions of the law. Further, the statement of agreed facts shows that the parties were clear as to the identity of the Stand in issue.
In the circumstances, there is no basis to refer this matter to trial.
