MUSAKWA J: The plaintiff issued summons in which the following relief is
being claimed:
(a) Payment of US$225,000 together with
interest at the prescribed rate.
(b) An order that the second defendant shall
not transfer stand number 7488 Salisbury Township held under deed of transfer
number 697/02 to the first defendant until payment of US$225,000 has been made
to the plaintiff by the first defendant.
(c) That the first defendant shall pay costs of
suit on a legal practitioner and client scale.
Initially the plaintiff had sued Total Zimbabwe (Private) Limited
(hereinafter called Total) but in due course the claim against Total was
withdrawn. The dispute between the parties emanates from the sale of stand
number 7488 Salisbury Township (hereinafter called Chibuku House) to the first
defendant by Total. The plaintiff is thus claiming commission for facilitating
the sale.
Evidence for the plaintiff was led from its Director, Sales Manager, Property
Negotiator as well as the Health and Safety Manager of Total.
The first witness to testify for the plaintiff was its Sales Manager,
Anthlem Tafirei Gwedegwe. He stated that around November 2009 Angeline
Musarurwa, a property negotiator advised him that the first defendant was
interested in Chibuku House and wanted to know if it was on sale. He then
contacted the Health and Safety Manager for Total, Mr Kafuka. Mr Kafuka
confirmed that the property was on sale but said he wanted to consult the
Finance Manager. After a while Mr Kafuka reverted to him and asked what he
wanted. When the witness asked for a mandate to sell the property Mr Kafuka
advised him that Total was not giving any mandate.
The witness contacted Mr Chidhuza, a representative of the first defendant
and advised him that Total was not giving a mandate. Mr Chidhuza asked him to
work out something as the acquisition of Chibuku House was one of their
priorities. He then asked Mr Chidhuza to make an offer and sent Angeline
Musarurwa with an offer form for confirmation.
According to Anthlem Tafirei Gwedegwe the offer form that was submitted to
the first defendant remained unsigned. He made follow-ups and met Mr Vera the
Investments Director who was in the office of the Finance Director, Mr Mapani. He
queried why they were not making an offer and Mr Vera replied that they might
state too low or too high a figure. He instead told Anthlem Tafirei Gwedegwe
that Total must state their price.
When Anthlem Tafirei Gwedegwe indicated that Total wanted US$3,500,000 Mr
Vera indicated that their budget was US$3,000,000. Mr Vera further wanted an
acknowledgement that Total wanted the higher amount of US$3,500,000. When
Anthlem Tafirei Gwedegwe asked if he could make a bid for US$3,000,000 Mr Vera
was said to have agreed.
In respect of commission Mr Vera is said to have asked what they charged and
Anthlem Tafirei Gwedegwe stated they charge 7,5%. Mr Vera is said to have
stated that if Total showed seriousness they could not forgo their target over
a commission. He further stated that he did not want correspondence signed by a
junior representative from Total.
On 6 November 2009 Anthlem Tafirei Gwedegwe made an offer of US$3,000,000
which he copied to the defendant. There was no reply until the 28 November
2009. In the intervening period the witness claimed he had a discussion with Mr
Chidhuza during which the latter wanted to know why Total was taking long to
respond. When he enquired with Total he was informed that the board had not yet
met.
On 28 November 2009 Mr Kafuka called Anthlem Tafirei Gwedegwe and asked for
proof that there was direct communication between the plaintiff and the first
defendant. Anthlem Tafirei Gwedegwe informed Mr Kafuka that there was no such
communication. On 30 November 2009 Angeline Musarurwa collected a letter from
the first defendant which was then submitted to Total. On the following day Mr
Kafuka called Anthlem Tafirei Gwedegwe to collect a letter from them. The
letter, which was addressed to the plaintiff confirmed acceptance of the offer.
Anthlem Tafirei Gwedegwe then addressed a covering letter to the first
defendant. He was informed by Mr Mapani that he had done his part. The relevant
letters were produced.
A letter was subsequently written to the first defendant enquiring when the
commission would be paid. Mr Gwedegwe stated that he first talked to Mr Vera on
the phone and he was referred to Mr Chidhuza. Mr Chidhuza then said the first
defendant was not supposed to pay the commission. He was referred to the
general manager, Mr Matiza.
The plaintiff's representatives were not involved when an agreement of sale
was drawn up. During discussions with Mr Vera it was indicated that Bard Real
Estate had once been engaged by the first defendant but they had failed to
secure the sale. The witness stated that he was not aware of the involvement of
any other estate agent.
According to Mr Gwedegwe the mandate from the first defendant was to
facilitate and secure the sale of Chibuku House. Mr Vera had said that once
written confirmation that the property was on sale was availed the first
defendant would take over from there. He was not aware that Bard Real Estate
had secured an offer for US$2 500 000. He was also not aware of the
counter-claim.
The witness also stated that when he sought written confirmation from Mr
Vera, the latter indicated that they had been dealing with Bard Real Estate and
nothing had come out of it. That is why they were not willing to give written
confirmation of a mandate. Under cross-examination he agreed when it was put to
him that Mr Vera would deny authorising him to make an offer of US$3,000,000.
Having written to Mr Chidhuza on 6 November 2009, the latter called him on
the following day. The witness also claimed that it was the first defendant's
practice not to stamp letters written to them. However, when it was brought to
his attention that there were letters in the bundle of documents which showed
that they were stamped by the first defendant he conceded by singling out the
letter dated 12 January 2010.
The witness denied that the plaintiff's director, Mr Mugadza was present
during a meeting with the first defendant's officials. When questioned in
respect of the letter of 12 January 2010 he agreed that he did not indicate to
the first defendant that he had a mandate from Total.
Phillip Mugadza, a director of the plaintiff was the next to testify. He
stated that he was not involved in negotiations for the sale of Chibuku House.
He referred to an occasion when he and Mr Ndizeye, a legal practitioner went to
the first defendant's offices and held discussions with Mr Mapani in the
presence of Mr Vera. They discussed the possible financing of fertiliser
procurement and the first defendant's officials referred them to BancABC.
He specifically denied discussing the issue of properties and in particular,
Chibuku House. He further stated that on their way out Mr Vera had indicated
that they had funds to purchase surrounding buildings in order to establish
NSSA Park. He denied ever going to the first defendant's offices in the company
of Anthlem Tafirei Gwedegwe and Angeline Musarurwa.
Under cross-examination Phillip Mugadza stated that he only visited the
first defendant's offices once. He denied ever calling Mr Mapani despite having
been given his business card. According to him, it was Mr Ndizeye who called Mr
Mapani in connection with the fertiliser issue. The call was made from his
office, which he gave as Market Giant. Philip Mugadza was asked about his
mobile phone number and stated it as 0772659200. He denied texting Mr Mapani in
connection with Chibuku House on 9 December 2009.
It was put to him that there was a text message that emanated from his phone
and he stated that because of time lapse he could not recall everything
Angline Musarurwa who used to be the plaintiff's property negotiator
testified that a representative of the first defendant, Mr Matiza informed her
that they were interested in Chibuku House. She was referred to Mr Chidhuza,
again a representative of the first defendant who confirmed the same. Mr Chidhuza
told her to verify if the property was on sale, and if so, the price. She was
also told to establish if the seller was giving a mandate.
Angeline Musarurwa briefed Anthlem Tafirei Gwedegwe. Both of them went to
see Mr Chidhuza to confirm whether the property was on sale. Mr Chidhuza
confirmed so but told them Total was not giving a mandate. He told them to make
an offer of US$2,500,000. They were also told to get their commission
separately. Anthlem Tafirei Gwedegwe went to Total but the offer was turned down.
Instead, Total indicated they wanted a written offer from the first defendant.
Angline Musarurwa then took an offer form to Mr Chidhuza for confirmation.
Subsequently, a second offer was made to Total on behalf of the first
defendant.
The last witness to testify was Josphat Kafuka, the Transport and Safety
Manager for Total.
Being a member of the Management Committee he knew that Chibuku House was on
sale. He confirmed receiving enquiries by way of a phone call from Anthlem
Tafirei Gwedegwe in November 2009. He consulted the Finance Manager, Mrs
Musemwa. With an offer having been made at US$2 500 000 he was told that they
would not take anything less than US$3,000,000.
Later Anthlem Tafirei Gwedegwe brought a written offer which the witness
took to Mrs Musemwa. He recalled that the offer was for US$3,000,000. Later Mrs
Musemwa asked for proof that the plaintiff was acting on behalf of the first
defendant. He relayed this to Anthlem Tafirei Gwedegwe who brought a letter
from the first defendant confirming their interest in the property. He took the
letter to Mrs Musemwa who in turn wrote a letter of acceptance which, upon
being signed by the Managing Director, he gave to Anthlem Tafirei Gwedegwe.
He got to know during their weekly management meetings that the property was
sold to the first defendant. He knew that another agent had made an offer but
he did not deal with the issue. He only met Anthlem Tafirei Gwedegwe when he
brought the offer letter. Under cross-examination he said he was not sure
whether Anthlem Tafirei Gwedegwe had made the offer when he went to see the
Finance Manager. He was also taken to task on why he did not state in his
evidence in chief that the Finance Manager wanted the offer in writing.
At the close of the case for the plaintiff Mr Foroma applied for
absolution from the instance. He submitted that an agent can only introduce a
property with authority from the seller or owner. Conversely, he submitted that
an estate agent cannot introduce a property to a potential buyer without the
authority of the seller or owner.
Mr Foroma made reference to correspondence constituting the first
defendant's bundle. The letter on p 56 of that bundle purported to introduce
the property on behalf of Total. In that respect he submitted that there is no issue
that the plaintiff was acting on behalf of the first defendant. He further
submitted that there is no written proof that the first defendant instructed
the plaintiff to represent it. He also submitted that although Mr Kafuka
testified that the Finance Manager had sought proof that the plaintiff had
authority from the first defendant, all that was availed was an attempt in the
form of a letter from the first defendant in which it expressed interest in the
property.
Mr Foroma further submitted that there was no compliance with s 10
(2) of the Estate Agents (Professional Conduct) (Amendment) Rules (No. 2),
Statutory Instrument 131/1991. This is because, as he submitted, when Angeline
Musarurwa spoke to officials of the first defendant she had no authority from
Total. In short, the thrust of Mr Foroma's submission is that the
documentary evidence was not complemented by the oral testimony of the
witnesses.
In addition, Mr Foroma also paused the question whether the
plaintiff performed any mandate. He raised this in light of the letter by Total
to the plaintiff dated 30 November 2009 in which an offer of US$3,000,000 was
made to the first defendant. The same letter invited acceptance to be made in
writing. Mr Foroma submitted that despite a follow up letter by the
plaintiff there was no such acceptance by the first defendant. In such a
case, it was his submission that there was no relationship of principal and
agent between the first defendant and the plaintiff. Hence, no prima facie
case had been made for the plaintiff. He thus prayed for absolution from the
instance to be granted with costs.
On the other hand Mr Chitapi submitted that Mr Foroma had
not addressed the issue of estoppel which can only be adequately addressed once
all the evidence has been heard. He further submitted that what is of relevance
is a letter addressed to the plaintiff by the first defendant which is dated 30
November 2009. That letters reads as follows-
“NSSA is keen to purchase the property from Total.
Your assistance will be very much appreciated if this deal can be concluded
as soon as possible.”
Mr Chitapi queried what deal was being referred to if the parties
had no prior communication on the issue. He also submitted that the first
defendant only approached Total after its offer of US$3,000,000 had been
accepted. He further contended that the first defendant is estopped from
denying agency because it acted on the communication between Total and the
plaintiff.
Mr Chitapi further submitted that there is evidence of
communication between the plaintiff and the first defendant. After the first
defendant indicated the price at which they were purchasing the property, the
plaintiff's roll was over. According to Mr Chitapi, it cannot be said
that the evidence led is so improbable that any court acting on it might not
find for the plaintiff. Despite the fact that the first defendant did not sign
the mandate form given to it by the plaintiff, the latter continued to
negotiate the sale. The contention here is that the plaintiff would not have continued
to act if it had been told that there was no mandate as argued by the first
defendant. He further contended that the involvement of the plaintiff has
not been denied and in the absence of such denial the first defendant has a
case to explain.
As for the test applicable, Mr Chitapi cited the case of Supreme
Service Station (1969) (Pvt) Ltd vFox And Goodridge (Pvt) Ltd
1971 R.L.R 1 (AD).
The law applicable in respect of an application for absolution from the
instance is well established. In Supreme Service Station (1969) (Pvt) Ltd vFox
And Goodridge (Pvt) Ltd supra which Mr Chitapi cited
BEADLE CJ had this to say at p 4-
“The locus classicus of the cases dealing with the procedure of
absolution from the instance is the old Transvaal case of Gascoyne vPaul
and Hunter, 1917 T.P.D 170. In that case, it was pointed out that an
application for absolution from the instance stands much on the same footing as
an application for the discharge of an accused at the close of the evidence for
the prosecution, but it is stressed (see p 173 of the judgment) that it would,
indeed, be curious if, in civil cases, were to apply a more stringent rule of
practice than in criminal cases. It would seem to me that, as in a criminal
case the onus is always higher than in a civil case, evidence which in a
criminal case would be insufficient to justify refusing an application for the
discharge of an accused might well in a civil case be sufficient to justify
refusing an application for absolution from the instance. Gascoyne's case
stresses that it is perfectly competent for a court to refuse an application
for absolution from the instance when the application is made at the close of
the plaintiff's case, but to grant it if the defendant then promptly closes his
case and renews the application without calling any evidence at all. There is
no inconsistency in two such diametrically opposed orders, though the evidence
before the court in each application is identical.
The reason why there is no inconsistency is because the test to be applied
when application is made before the defendant closes his case is 'what might a
reasonable court do?'; whereas the test to be applied when the application is
made after the defendant has closed its case is 'what ought a reasonable court
to do?”.
Having discussed the distinction between “might” and “ought” the learned
CHIEF JUSTICE went further to state at p. 5
“The test, therefore, boils down to this: Is there sufficient evidence on
which a court might make a reasonable mistake and give judgment for the
plaintiff? What is a reasonable mistake in any case must always be a question
of fact, and cannot be defined with any greater exactitude than by saying that
it is the sort of mistake a reasonable court might make- a definition which
helps not at all.”
What comes out from this decision is that it must always be borne in mind
that consideration must be given to the fact that the defendant would not have
given evidence where an application for absolution from the instance is made at
the close of the plaintiff's case.
Coming to the facts of the present matter it is common cause that the
plaintiff had no mandate from Total. Having learnt from the plaintiff's
representative that the first defendant wanted to know whether Chibuku House
was on sale, the plaintiff, on 2 November 2009 wrote to the first defendant and
introduced the property. Despite having enclosed an offer form, this was not
completed by the first defendant.
It is also common cause that whereas the first defendant was interested in
Chibuku House, it did not want to make an offer. It is also common cause that
the plaintiff exchanged correspondence with both the first defendant and Total
in connection with Chibuku House. At the stage when Total knew that the first
defendant was interested in the property, it requested for proof that the
plaintiff was acting on behalf of the first defendant. It is common cause that
when proof that the plaintiff was representing the first defendant was sought
the best that emerged was a letter which is on page two of exhibit “A” which is
cited elsewhere in this judgment. It is also common cause that when Total
accepted the “offer” of US$3,000,000 from the plaintiff it wrote back to the
plaintiff indicating that there be a written acceptance by the first defendant.
This was not to be as there was no written acceptance by the first defendant.
Nonetheless, an agreement was subsequently concluded between the first
defendant and Total but without the further involvement of the plaintiff.
Although Phillip Mugadza initially denied any involvement in the discussions
on Chibuku House, his responses to questions put to him concerning text
messages from his phone betrayed him. The contents of the text message read to
him were as follows:
“How has been your day uncle? I thought you should know that if you do not
know do something about Chibuku House it will be taken by Africa Sun or
Speciss. There are other agents interested. Bard House is also interested.
Your brother, Mugadza.”
The witness was quizzed about this message and he dismally failed to explain
it. He was also quizzed about other text messages sent by Mr Ndizeye. Overall,
he was defensive, evasive and anticipated questions. I would say he was a poor
witness.
That being so this brings into focus the provisions of the Estate
Agents (Professional Conduct) (Amendment) Rules (No. 2). Section 10 (1) of the
regulations provides that-
“Subject to this section, no agent shall seek or accept a mandate from a
person in respect of a property for which he knows or has reason to believe
that a mandate of the same nature has already been granted to another agent,
unless-
(a) the agent is offered the mandate without having sought
it; and
(b) the person offering it has withdrawn any sole mandate in
respect of the property”.
In light of Phillip Mugadza's testimony, it appears the plaintiff was aware
that another agent was involved. The evidence led does not show that the
requirements laid out in paras (a) and (b) of s 10 (1) were met. Now, it being
known that the seller had not given a mandate to the plaintiff, the provisions
of s 10 (2) of the regulations appear not to have been met.
Section 10 (2) provides that -
“Where an agent receives an instruction from a prospective purchaser or
tenant to endeavour to purchase or hire property in respect of which the agent
does not have a mandate to sell or lease, the agent shall -
(a) make known to the prospective purchaser or tenant that
he shall be liable to meet all costs, including agent's commission or
negotiating fee, unless the owner agrees to share or meet these expenses;
and
(b) approach the owner or lessor and inquire whether he has
appointed an agent with a mandate to sell or lease the property concerned, as
the case may be, and where-
(i) the owner or lessor confirms that no other agent has been appointed to sell or
lease the property concerned, as the case may be, the agent may negotiate the
purchase or lease of that property directly with the owner or lessor; or
(ii) ………………………………”
Anthlem Tafirei Gwedegwe claimed that the first defendant's representatives
agreed to pay the agent's commission verbally. However, the parties appeared to
have conducted their dealings in writing as evidenced by the correspondence
that was produced during the trial. It was not properly explained why there was
no such communication in writing concerning such an important aspect like
commission. The only time the issue of commission came up for the first time
was when the plaintiff wrote to the first defendant on 1 December 2009 after
Total had accepted the offer of US$3 000 000. I am convinced that the plaintiff
failed to comply with s 10 (2) (a) of the regulations with regard to securing
attendant costs, including agent's commission.
Having made these observations it follows that in light of the
unsatisfactory nature of the evidence given on behalf of the plaintiff no
reasonable court might make a mistake and give judgment for the plaintiff.
Absolution from the instance is hereby granted with costs.
T. H. Chitapi & Associates, plaintiff's legal practitioners
Sawyer & Mkushi,
defendant's legal practitioners
