MATHONSI J: The plaintiff instituted
proceedings against the four Defendants seeking an order, inter alia,
nullifying the transfer from herself to the first Defendant of stand 6638 Nketa
9 Bulawayo.
In her declaration filed with the summons, the Plaintiff averred that
some time in 2007, the second Defendant had called a meeting of widows in the
township of Nketa in Bulawayo which she attended, during which he told them
that he was assisting widows with money and food, but as security for such
assistance their houses were required.
Title Deeds for the houses would have to be surrendered.
The Plaintiff further averred in the declaration that she later held a meeting
with first and second Defendants during which she was made to sign a document
she did not know which later turned out to be an agreement of sale of stand
6638 Nketa 9 Bulawayo to the first Defendant.
She went on to aver that she received money but that the second
Defendant had told her the money was the widows' assistance referred to at the
initial meeting.
She went on to allege in the declaration that her house was fraudulently
transferred from her to the first Defendant through the use of a power of
attorney she had no knowledge of and never signed. She therefore prayed for the reversal of that
transfer and the nullification of the power of attorney given to Munyaradzi Nzarayapenga and Simbarashe Chivaura of the law firm of Dube-Banda, Nzarayapenga and partners.
Surprisingly the summons was never served upon the second Defendant
although Mrs Tachiona who represented
the Plaintiff acknowledged before commencement of trial that the dispute
evolved around the second Defendant. The
latter was said to be in prison.
The action was strongly contested by the first Defendant who also filed
a counter claim seeking an order for the eviction of the Plaintiff and those
claiming through her from the premises.
The first Defendant averred that he had lawfully entered into a sale
agreement involving the said premises with the Plaintiff in October 2007. The Plaintiff was being assisted by the
second Defendant who acted as her agent and the full purchase price was paid to
the Plaintiff in the presence of witnesses. The first Defendant further alleged that he
was given receipts for the three instalments he paid and, in addition to that,
the Plaintiff signed at the back of the agreement in acknowledgement that the
full purchase price had been paid.
The first Defendant further averred in his plea and counter claim that
immediately after payment of the last instalment he took the Plaintiff to his
legal practitioners Messrs Dube-Banda,
Nzarayapenga and partners where she signed the power of attorney to pass
transfer and the declaration by the seller to facilitate the conveyancing
process. It is this power of attorney
which the Plaintiff is disputing. In her
replication to the first Defendant's plea the Plaintiff alleged that she is illiterate
which exposed her to the trickery of the first and second Defendants.
At the trial, the Plaintiff gave evidence in person and called two other
witnesses, widows from her township, who claim to have been swindled in similar
fashion. The Plaintiff's evidence is at
variance with the averments made in the pleadings. While in her pleadings she claims that the
second Defendant called a meeting of widows in Nketa Township to invite them to
join the association of widows he had formed, her evidence in court was to the
effect that she was walking about in the township when she saw a poster tied to
a pole advertising this widows association.
She read the advert and took down the details which led her to a house
where she found a lady called Lindiwe Khumalo who took down her details and promised
that a follow up would be made. She said
when this happened she was alone and after a while the second Defendant arrived
at her house driving a white minibus and explained to her how he would assist
her. She was then advised by second
Defendant to bring the required documents to the office at Hunicot Building in
town.
While in her pleadings the Plaintiff alleges that she had a meeting with
the first and second Defendants during which she was made to sign a document
she did not know, in her testimony the Plaintiff told a different story. She maintained that she never met the first
Defendant and that when she signed the “document” she was only with the second
Defendant who was sitting across the table and hiding the contents of the
document with his hand.
In her declaration, the Plaintiff stated clearly that she was given some
money after signing the document although she was made to believe it was the
widow's assistance she had been promised by the second Defendant. She did not give the exact amount she
received. Throughout her testimony she
categorically denied having received any money or even seeing any money at all. She reluctantly admitted under cross
examination having seen Minlot Moyo, the first Defendant's father, passing
something to the second Defendant. Now,
money is something a person cannot forget having received except if that person
wishes to mislead. It must be accepted
therefore that the Plaintiff did receive some money and when she admits having
seen something being passed on to second Defendant, it is safe to conclude that
the money she received came from the first Defendant or his father.
In her pleadings the Plaintiff claims to be illiterate and that first
and second Defendants took advantage of this factor to hoodwink her into signing
the sale agreement without knowing it.
She tried to develop this point further in her evidence in chief by
alleging that she cannot read and write and that “even a grade one child can
write better than (her)”. Having
declared her illiteracy that way, she found her fingers burning on being asked
how, if she had been alone as she claimed, she was able to read the poster that
had been put up by the second Defendant and also how she was able to record the
details on it which helped her locate the second Defendant's house. She equally had difficulties explaining how
she was able to read the list of names on the document she alleges second
Defendant got her to sign before the latter blocked her view with the palm of
his hand.
The Plaintiff's testimony regarding her literacy levels is so improbable
that no one can take it seriously.
Indeed she ended up giving the absurd explanation that while she can
read some less important documents, she cannot read “serious documents”. This, coupled with her incredible story that
the second Defendant got her to sign the sale agreement even though he was
hiding the contents with the palm of his hand to obstruct her view, means that
the Plaintiff not only exaggerated her poor literacy levels, but was also out
rightly untruthful. I therefore make a
finding that when she signed the agreement of sale, it had been read to her as
alleged by the first Defendant and she knew exactly what the contents
were. She knew that she was selling her
house and this whole story about the widows association and what it stood for
is a figment of her imagination. Not
that it would change the outcome of her contractual relationship with the first
Defendant.
The Plaintiff challenged the legality of the power of attorney used to
pass transfer to the first Defendant.
Other than her bare denial, there is nothing that has been put forward
to question the authenticity of her signature on that document or indeed on the
declaration by the seller. When the agreement of sale between herself and
the first Defendant was put to her, the Plaintiff confirmed that her signature
is appended on that document. She did
not even deny signing at the back of that document in acknowledgment of receipt
of the full purchase price. Of course
she sought to say that she signed without reading and that she recalls signing
only once.
The significance of her verification of that signature is that there is
a striking resemblance between the Plaintiff's signature or writing on the
agreement and on the power of attorney and the declaration by the seller. Both documents were produced by consent in
the bundle of exhibits for trial.
Without the aid of expert evidence to the contrary, which the Plaintiff
did not bother to elicit, I have no reason to believe that the Plaintiff did
not sign the power of attorney and the declaration. According to my value judgment, it is the
Plaintiff who signed those documents.
Overall, the Plaintiff was not a credible witness. She appeared extremely shaken even when
presenting her evidence in chief and was worse under cross examination. Her story was also incredible especially as
she does not pass out as an unsophisticated woman who would be fooled to sign
away her house without even reading the document. She admitted that no undue influence was
brought to bear upon her before she signed the documents now before me.
The Plaintiff's two witnesses, Florence Chawira and Ngonidzashe Mlauzi
did not take her case anywhere. Clearly
they appeared over-coached and desperately wanted to present themselves as
victims of the machinations of the second Defendant. They tried to give an impression that they
fortuitously met the Plaintiff and leant of her plight which is similar to
their own.
It turns out that the two are not independent witnesses at all because,
as much as they tried to conceal it, they are Plaintiff's neighbours. In addition to that they have a direct
interest in the outcome of this case given that they both have matters pending
in this court where they are also resisting transfer of their own houses.
The first Defendant's case is simply that his father wanted to buy him a
house and played an active part in hunting for such house, negotiating the sale
and paying the purchase price. His role
was limited to signing the requisite documents.
The first Defendant's father Minlot Moyo testified that after
discovering that the Plaintiff's house was on sale, he and his wife went to
view it. They met the Plaintiff who
readily confirmed the house was on sale and showed them around. After they had agreed on the purchase price
the Plaintiff insisted that they should go and conclude the sale at the offices
of her agent, the second Defendant. Minlot Moyo and his group met the Plaintiff at
the offices of the second Defendant the following day, the 11th
October 2007. They concluded the sale
even though the Plaintiff had increased the price alleging that this was to
take care of the agent's commission.
In the presence of witnesses the parties signed the agreement of sale
after it had been read out. He then paid
the first instalment of $2, 7 billion (Zimbabwean currency) which money was
handed over to the Plaintiff and counted in the presence of all concerned. On that day he also paid the costs of
preparation of the agreement. He was
given the Deed of Transfer by which the Plaintiff held the house.
The same formula was employed when the second and third instalments were
paid on the 26th October 2007 and 9th November 2007. Minlot Moyo confirmed that he was issued with
receipts in first Defendant's name by Plaintiff's agent in the name of Deflant
Hardware and Construction. Each time
payment was made money was handed over to the Plaintiff who counted it before
passing it on to his agent.
On the 9th November 2007 when the last instalment was paid
the Plaintiff was made to sign behind the agreement acknowledging that payment
had been made in full. All the receipts
have been produced as exhibits. The same
day, Minlot Moyo says he insisted on taking the Plaintiff to Messrs Dube-Banda, Nzarayapenga and partners,
legal practitioners he had consulted earlier for her to sign documents to pass
transfer and this was done.
Minlot Moyo was a credible witness whose evidence was given with confidence
and an air of honesty. It was also
backed by documentation which made it impossible for anyone to cheat him and
his son even if they wanted to. I have
no reason to doubt it.
There is no doubt in my mind that
when the Plaintiff met the first Defendant she had already established a
relationship with the second Defendant which enabled her to insist on
transacting with the first Defendant in the presence or with the assistance of
the second Defendant who was clearly her advisor, if not her agent. I have already concluded that not only did
the Plaintiff sign the agreement of sale, the power of attorney and the
declaration by the seller, she also received money in consideration of the sale
of her house.
Accordingly, the Plaintiff's signature brings into operation the caveat
subscriptor rule. That rule was
expressed by R. H. Christe in Business Law in Zimbabwe at page 67 as
follows:
“The business world
has come to rely on the principle that a signature on a written contract binds
the signatory to the terms of the contract and if this principle were not
upheld any businss enterprises would become hazardous in the extreme. The general rule, sometimes known as the
caveat subscriptor rule is therefore that a party to a contract is bound by his
signature, whether or not he has read or understood the contract----. And this will be so even if he signed in
blank--- or it is obvious to the other party that he did not read the document.”
Having come to the conclusion that the Plaintiff knew she was signing an
agreement of sale, there was no misrepresentation as would entitle the
Plaintiff to a defence. I also consider
it unnecessary to discuss the issue of whether or not the second Defendant was
an agent of the Plaintiff or whether he had a mandate to sell the house. This is because the evidence shows that at
all material times the first Defendant dealt with the Plaintiff. She is the one who showed them the house and
negotiated the price, she led them to the second defendant where the agreement
was signed in her presence and she is the one who received the purchase price
and proceeded to sign the documents to pass transfer.
I have no doubt in mind that the second Defendant is a crook who may
have specialised in the business of swindling people of their properties. It may well be that after the transaction he
swindled the Plaintiff of her money hence decision to go back on her promises.
This however has nothing to do with the first Defendant who was an innocent
purchaser who paid his money to the Plaintiff.
In her wisdom the Plaintiff elected to pass on the money to a trickster
and must therefore live with the consequences of her choice.
In the result, I find in favour of the first defendant and make the
following order, to wit,
(1) The Plaintiff's claim be and is hereby
dismissed.
(2) Judgment
be and is hereby entered in favour of the first Defendant to the effect that he
is the lawful owner of stand 6638 Nketa 9, Bulawayo.
(3) The
Plaintiff and those claiming through her should vacate the said premises within
21 days from the date of this order failing which the first defendant is
entitled to evict them.
(4) The Plaintiff shall bear the costs of
suit.
Bulawayo
legal project centre, plaintiff's legal practitioners
Dube-Banda, Nzarayapenga
and partners, 1st defendant's legal practitioners
