CHITAKUNYE J. The plaintiff
and fourth defendant were married in terms of the African Marriages Act [Cap
238] (now 5:07) in 1978. In 1980 plaintiff entered into a Memorandum of
Agreement for the purchase of Stand 8237 Seke Township, Chitungwiza from the
Chitungwiza Municipality and the Government of Zimbabwe. By virtue of that
agreement the plaintiff became a registered holder of rights and interests in
the said property.
In 1997 the plaintiff sued fourth
defendant for the dissolution of their marriage. Though no copy of the court
decision or judgement was tendered it appeared accepted that a decree of
divorce was duly granted. The court order did not deal with the sharing or
distribution of immovable property as this was not placed before court by
either party.
On 18 May 2007 the fourth defendant
obtained an order by default for the sharing of the Stand 8237 Unit K, Seke,
Chitungwiza in the ratio of 70% to fourth defendant and 30% to plaintiff from
Chitungwiza Magistrates Court in case No. CC13/07. That order reads as follows:
-
“The
house which the parties bought together namely House No. 8237 Unit K, Seke,
Chitungwiza be sold and the applicant to get 70% and the respondent 30% of the
selling price.”
On 20 June 2007 the plaintiff
applied for a rescission of the default judgment and stay of execution. On 24
July 2007 the application for rescission of judgement was granted. (See exhibit
5).
It is common cause that the fourth
defendant thereafter sold the property Stand 8237 Unit K, Seke, Chitungwiza to
the first defendant through Sparkfin Properties (Pvt) Ltd. In the Agreement of
Sale Nancy Kutyauripo (fourth defendant), is described as the seller and the
registered owner of the house no 8237 Unit K, Seke. She apparently sold the
same property to more than 2 people as is evident from an extract of a court
record of convictions tendered and supported by documents tendered unchallenged
to the effect that the fraud convictions pertained to sales of the property the
fourth defendant had done.
Clause 2.1 of the Agreement of Sale
provided, inter alia, that:-
“Transfer
to be processed within three months from the date of signing by both parties to
the main agreement.
The
purchaser shall be entitled to cancel agreement in the event that transfer is
not completed within the agreed time.”
Clause 5 also provided that the
purchaser can seek specific performance in the event that the seller is at
fault in effecting transfer.
It is apparent that there were
some challenges in the first defendant obtaining transfer hence he approached
the High Court for relief in case No. HC 6685/08
On 7 January 2009 the first
defendant obtained an order by default against the fourth defendant, Sparkfin
properties (Pvt) Ltd and Director of Housing, Chitungwiza in case No. 6685/08.
In that case the fourth defendant was cited as the first respondent, Sparkfin
Properties (Pvt) Ltd was cited as the second respondent and The Director
Housing was cited as the third respondent. The order stated that:-
“It is ordered that:-
a)
The 1st respondent be and is hereby ordered to make herself
available at the 3rd respondent's offices within 48 hours upon
service of this order on her in order to effect change of ownership in respect
of House No. 8237 Unit K, Seke, Chitungwiza into Applicant's names
b)
The 1st respondent be and is hereby ordered to cede all her rights ,
title and interest over House No. 8237 Unit K, Seke, Chitungwiza to the
Applicant forthwith.
c)
If clause 1 and 2 herein above is not complied with then the Deputy Sheriff be
and is hereby directed and authorised to take all such necessary steps to sign
the required cession forms and any other documents in order to effect change of
ownership of the above mentioned property into the Applicant's names.
d)
The 3rd Respondent be and is hereby to consent to such transfer
e)
The 1st and 2nd Respondents jointly and severally with
the one paying the other to be absolved pay costs of this application.”
As a consequence of this order
on 5 February 2009 the second and third defendants approved cession to the first
defendant of the property in question. On 18 February 2011 the first defendant
obtained a Deed of Grant in respect of the said property.
In the meantime on 15 February 2011
plaintiff issued this court action against the four defendants. The plaintiff
alleged that before the 20th December 2010 he was the registered
owner of rights and interest to title of Stand 8237 Unit K, Seke, Chitungwiza.
On that date the first, second and third defendants unlawfully ceded the rights
to the first defendant.
He further alleged that the first
defendant misrepresented to the High Court that the fourth defendant was the
owner of rights and interest to title in Stand 8237 Unit K , Seke, Chitungwiza
and secured a court order in case No. HC 6685/08 against the fourth defendant,
when for all intents and purposes the first defendant knew this was not the
case. The second and third defendants then acted unlawfully by ceding
plaintiff's rights to the first defendant when the order presented to them was
against the fourth defendant and not the plaintiff.
In the circumstances the plaintiff
sought an order:-
1.
Declaring unlawful the cession of
his rights and interests to title in Stand8237 Unit K, Seke, Chitungwiza to 1st
defendant.
2.
Directing 2nd and 3rd
Defendants to reverse the cession of rights and interests to title in Stand No.
8237 Unit K, Seke, Chitungwiza back into plaintiff's name, Steven Vhavha.
3.
For the eviction of 1st
defendant and all those claiming occupation underneath him from Stand 8237 Unit
K, Seke, Chitungwiza.
4.
For holding over damages at the rate
of USD200.00 per month with effect from 1st December 2010 to date of
ejectment.
5.
Interest on the amount at the prescribed rate from date of service of summons
to date of payment in full.
The first defendant was the only
defendant to defend the action. In his plea, he contended that he is now the
legal owner as the property is now registered in his name. He denied
misrepresenting to court that the property belonged to the fourth defendant. He
further contended that the property was matrimonial property and court had
awarded the fourth defendant a 70% share and the property was then sold to him.
As far as he is concerned the sale was proper and the cession and grant of title
that followed were proper.
At a pre-trial conference the issues
identified for trial were:-
1.
Whether the plaintiff or the third defendant representing the Ministry of Local
Government Rural and Urban Development was owner of property, being Stand No.
8237 Unit K, Seke, Chitungwiza at the time of the sale.
2.
Whether the second and third defendants acted unlawfully in ceding plaintiff's
rights and interest to title in Stand No. 8237, Unit K, Seke, Chitungwiza to
the first defendant.
3.
Whether the order in case No. HC 6685/08 affected the plaintiff's rights and
interest
to title in Stand 8237, Unit K, Seke, Chitungwiza.
4.
Whether plaintiff is entitled to the order sought and holding over damages and
quantum
thereof or to a dismissal of his claim.
5.
Which party to bear costs of suit and the scale.
At the commencement of trial the
plaintiff's pleadings were amended by consent in the following manner:
paragraph 1 of the relief sought to read:-
“In addition the Registrar of Deeds
Harare be and is hereby ordered to cancel Deed of Grant Number 576/11 dated 7
February 2011 made in favour of 1st defendant, Msizi Dube (Born 9
August 1968).
An addition to the declaration of
paragraph 10(b) to read:-
“In pursuant to the illegal cession
the 1st Defendant proceeded to secure transfer of the property in
his favour in the form of a Deed of Grant Registration number 576/11 dated 7
February 2011.”
The plaintiff gave evidence and
tendered documentary evidence in support of his case. In his evidence he
basically confirmed the sequence of events as outlined above. He confirmed that
he acquired rights and interests in the said property in 1980 by virtue of a
Memorandum of Agreement he entered into as purchaser on the one hand and
Chitungwiza Municipality and the Government of Zimbabwe as seller on the other
hand. That document was tendered as exhibit 1. In that agreement he is cited as
the purchaser and his then wife Nancy Kutyauripo is not cited as co-purchaser.
In 1997 he divorced the fourth
defendant. He however allowed her to continue residing at the property in order
to take care of their children.
When he learnt that 4th defendant
had obtained a default judgement against him for the sharing of the immovable
property in the ratio 70:30 on 18 May 2007 at Chitungwiza magistrates court in
case no.CC 13/2007 he applied for the rescission of that judgement and the
application was duly granted on 24 July 2007.
During this time he was resident at
his place of employment whilst the fourth defendant was at the property with
their children.
The plaintiff confirmed that he was
not aware of the agreement of sale between the first defendant and fourth
defendant. At no time had he authorised the fourth defendant to sell the
property.
When the first defendant approached
the High Court in case HC 6685/08, he was not cited as party and so was not
aware of such proceedings till well after cession had been effected into the
first defendant's name and occupants of the property were being evicted.
Under cross examination plaintiff
denied knowledge that his purchase agreement with the Council and government
had been cancelled. He argued that he was never served with a document
cancelling the agreement referred to by the defence. In any case Council had at
no time disturbed his holding of rights and interest in the property. As at the
time cession to the first defendant was effected, he was still the registered
holder of eights and interest in the property.
The plaintiff's evidence was brief.
As far as he is concerned the court order that led to the Council ceding the
property to the first defendant pertained to the fourth defendant and not to
the plaintiff's rights and interests in the property.
He also alluded to the fact that his
claim for holding over damages had not been denied by the first defendant in
his plea and so he deserved such.
The defendant on the other hand
contended that the plaintiff's claim should be dismissed as he is now the
holder of title to the property. He is now the owner in view of the Deed of
Grant issued to him by the Government of the Republic of Zimbabwe.
In his evidence the first defendant
stated that his ownership came about as a result of him buying the property
from the fourth defendant. He duly paid the purchase price and the property was
ceded to him after he had approached the High Court as the fourth defendant was
not forthcoming to effect the cession or transfer.
Though it is common cause that this
is how the first defendant acquired the property, the first defendant's effort
at repelling the plaintiff's claim was riddled with inconsistencies and
contradictions. He found himself having to change his stance at certain
intervals. For instance, in paragraph 2 of his plea the first defendant denied
that he misrepresented to court that the property belonged to the fourth
defendant. He went on to say instead the property was matrimonial property of
which the fourth defendant was awarded 70% and the plaintiff 30%. In his viva
voce evidence the first defendant said that on his first visit to Chitungwiza
Municipality Offices he was told that the property belonged to the fourth
defendant. He was in fact shown confirmation of this on the Municipality's
computers. In his amended summary of evidence he alluded to the fact that when
he approached the Chitungwiza Municipality Offices it was confirmed to him that
the fourth defendant owned the property. As a result of such confirmation he
went on to buy the property.
The above stance is not consistent
with paragraph 2 of his plea where he gives the impression he was aware the
property was matrimonial property subject to an order for sharing.
In his initial summary of evidence
the first defendant stated that he purchased the property from the fourth
defendant with the consent of the plaintiff yet in the amended summary of
evidence he seemed to admit the plaintiff was not involved in the sale as he
did not know him. That initial summary of evidence further states, inter
alia, that:- “
a)
he met plaintiff and the fourth defendant and they both showed him a
court order for disposal of the property; that
b)
since the fourth defendant had 70% share in the said property the
agreement of sale was supposed to be entered between him and the plaintiff also
consented to that;
c)
after payment the fourth defendant promised to give the plaintiff his share of
the proceeds;
d) after
lodging a complaint with police when transfer was delayed they went to court
and at court they were advised to settle and he requested plaintiff and 4th
defendant to pay his legal fees which they did.”
As it turned out from his amended
summary of evidence and viva voce evidence all these aspects were not
true. The plaintiff had never consented to the sale as the first defendant met
him for the first time in 2009 well after the sale and court appearances
referred to by the first defendant.
Under cross examination the first
defendant admitted that it was the fourth defendant who sold the property to
him in the absence and without the participation of plaintiff. He went on
to concede that at the time he bought the property he thought the fourth
defendant was the owner as she had ZESA and water bills in her name.
In approaching the High Court in HC
6685/08 the first defendant indicated that he did not produce any document
confirming the fourth defendant as the registered holder of rights and
interests in the property. He merely stated so. The first defendant further
indicated under cross examination that when his name was being substituted as
holder of rights and interests he discovered that the registered holder of
interests and rights in the property was in fact Steven Vhavha and not the
fourth defendant. He conceded that the High Court Order in HC 6685/08 was in
fact obtained against the wrong party, a party who was not the registered
holder of rights and interest in the property in question.
Despite this discovery he accepted
cession into his name after which he proceeded to apply for and obtained a Deed
of Grant.
From the above evidence it is clear
the first defendant was not a credible witness. The contradictions and
inconsistencies alluded to above coupled with the concessions he made under
cross examination serve to confirm his desire not to be candid with court.
The evidence as outlined above from
both parties brings to the fore such issues as:-
a)
Whose rights and interests did 1st defendant buy in stand 8237 Unit
K, Seke,
Chitungwiza;
b)
Did that person have such rights and interests in the property to sell?
From the pleadings filed of record
and evidence adduced it is clear that whilst the parties seemed to believe that
the property was owned by the person in whose name it was registered this is
not so. The Memorandum of Agreement that plaintiff entered into with the
Chitungwiza Municipality and the government clearly shows that this was a case
of cession and not ownership or title in the property. Ownership lay in the
government
The issue of such properties has
been commented upon by these courts on several occasions. Parties and their
legal practitioners have been called upon to take heed of the fact that
properties in High Density suburbs fall into different categories. These
include:-
1)
Simple tenants under a lease agreement with the Local Authority or Central
Government;
2)
Tenants- to- buy, under an agreement which permitted them to take title once
the property was surveyed and the full price paid; and
3) Owners, who
graduated from category two, in the fullness of time.
(
see Hundah vMurauro 1993(2) ZLR 401 (S).
Each category has aspects that need
to be considered. The need for legal practitioners, magistrates and estate
agents dealing with such properties to be alive to the categories alluded to
above cannot be overemphasised. The capacity of parties to dispose of the
property is sometimes dependant on the category of rights and interests held.
In casu the agreement between
the plaintiff on the one hand and Chitugwiza Municipality and Central
government on the other hand fell into category two which upon payment of full
purchase price would graduate to category three.
In that regard Clause 19 of the
agreement states that:-
“The purchaser shall not part with
possession of the property or any part thereof nor cede nor assign nor
hypothecate without the previous consent in writing of the Council.”
There is no denial that when the
first defendant purported to buy the property from the fourth defendant no
consent whether in writing, as required, or in any manner had been obtained
from the Council. When the first defendant obtained cession it was because the
Council felt compelled by a court order and not that Council was giving its
Consent.
In Hundah vMurauro (supra),
Council found itself having to accede to cession in order to comply with a
court order. The Honourable McNALLY JA, at p 405, had this to say regarding
such scenario:-
“But Mr. Biti, for Mr.
Murauro, argues that the Municipality has cured the invalidity. He has produced
a letter dated the day before the postponed hearing of the appeal on 25
November 1993. The letter contains the following relevant sentence:
'Please be advised that Council will
abide by the Supreme Court's decision just as it has done with the High Court's
Order.'
The honourable judge of appeal went
on to say this letter and the fact that Council had gone on to consent to an
agreement of cession between Hundah and Murauro with the deputy Sheriff
signing in place of Mr Hundah, was not a waiver of rights by Council but a
compliance with a Court Order.
Such act of compliance did not
validate the cession at all.
Incasu, it is clear Council
acceded to cession in order to comply with a court order. This is evident from
the fact that in May 2009 the Council, through is Director of Housing purported
to apply for the reversal of the cession. In the founding affidavit the
Director of Housing Chitungwiza stated in paragraph 5,inter alia,
that:-
“ 2nd respondent (Nancy
Kutyauripo) apparently had sold the said property which is registered in the
name of Stephen Vhavha her ex-husband- to 1st respondent (MSIZI
DUBE) relying on judgement in case Number CC13/07 which judgment the
Municipality had also relied on in approving cession until we got another
judgment CC13/08 (sic) which ordered non-disposal of the
property.”(emphasis is mine)
It is common cause that case CC
13/07 did not cite the Chitungwiza Municipality or the Government of Zimbabwe
as a party and neither had the Council's consent been obtained for this
property to be sold as ordered by the court.
It is my view that at the time the
fourth defendant purported to sell the property she had no property to sell.
The judgment she paraded as granting her property to sell, at the most only
granted her personal rights against her ex-husband. It is nevertheless the
judgment the Director of Housing said Council relied on in consenting to
cession.
The High Court Order in HC6685/08
which the fourth defendant said he utilised to obtain cession was not against
the holder of rights and interests in the property, but against the fourth
defendant who had given out herself as owner of the property when she was not.
That order –
-calls upon 4th
respondent to make herself available for change of ownership when, as is common
cause, she was not the owner;
- it orders 4th defendant
to cede all her rights title and interest over house no. 8237 Unit K Seke,
Chitungwiza to 1st defendant when, as has been shown above, she had
neither title nor rights and interests to cede.
The order further compels the Council to consent to transfer when there was no
transfer to be effected.
It is apparent to me that the order
in HC 6685/08 was obtained after serious misrepresentations were made. These
included that the fourth defendant was the owner and thus holder of title,
registered rights and interests in the property in question which she could
transfer when in fact and in truth this was false.
The first defendant's housing
application form, exh 8, has an endorsement dated 5 February 2009 stating that:
“Cession approved per court order
No. 6685/08”.
At p 56 of the defendant's bundle of
documents is a Chitungwiza Council document dated 5 February 2009 apparently
reflecting a discussion within Council culminating in the decision to allow
cession. The document reads:
“Upon consultation with the Director
of Housing, it has been agreed that cession to Mr. Dube proceed since order for
disposal of property still stands. Mr. S. Vhavha can proceed against Nancy for
any recourse.”
This in my view confirms that
Council was merely complying with a court order. This should not be seen as
validating the sale agreement between the fourth defendant and the first
defendant. The consent to dispose could only be sought by the person with
rights and interests in the property; that is the plaintiff. Had it been
plaintiff who had purported to sell it could be said that as a holder of rights
under a suspensive agreement of sale with Chitungwiza Municipality, he could
sell his rights under the agreement but he could not pass transfer/ title as he
had none. The fourth defendant not being a holder of rights in the property is
far removed from plaintiff's scenario. She clearly had nothing to sell.
The fourth defendant contended that
since he has been granted title he should retain it as the owner. I am however
of the view that he sought and obtained title well after he had become aware
that the person who had purportedly sold the property to him was neither the
owner nor the holder of rights and interests in the property. He was then aware
of the correct registered holder of rights and interest in the property but
chose not to cite that party. It is my view he acted in bad faith in proceeding
as he did. He clearly acted dishonestly in proceeding to obtain cession and
then title when he had become aware of the truth regarding the holder of rights
and interests in the property.
The above adequately answers the
issues referred to trial. It is clear that in terms of the Memorandum of
Agreement between the plaintiff and Council, the property in question was not
owned by the plaintiff but by the government of Zimbabwe, the Central
government as owner of the Land, and the local government as owner of the
dwelling on that Stand. (See the 2nd and 3rd paragraphs
on pages 1 of the agreement). The plaintiff was a holder of rights and
interests in the property at the time of the sale to the first defendant.
I also make a finding that the
second and third defendants acceded to the cession purely to comply with a
Court order. Unfortunately the court order referred to rights, title and
interest of the fourth defendant in the property and she had none of that in
the property. The second and third defendants therefore acted unlawfully in
ceding the plaintiff's rights and interests in the property when what was
sought were rights, title and interests of the fourth defendant. They ought to
have indicated that according to their records the fourth defendant had no
rights, title and interest in the property.
As regards whether the order in HC
6685/08 affected the plaintiff's rights and interests in Stand 8237 Unit K,
Chitungwiza, that goes without saying. His rights and interests were ceded to
the first defendant without his consent or even knowledge.
I am of the view that the plaintiff
is entitled to have his rights and interests in the property restored to him.
The plaintiff sought an order for
holding over damages. From the evidence adduced in court no denial was made
that the plaintiff is entitled to holding over damages if he succeeds on the
other claim. The first defendant's contention was on the quantum of which he said
the property is fetching 150 United States dollars per month and not the 200 or
300 per month claimed by the plaintiff. The plaintiff on his part could not
adduce evidence to counter that contention. In the circumstances holding over
damages in the sum of 150 United States dollars per month is reasonable.
On costs I am of the view that the first defendant should pay the plaintiff's
costs on the general scale. The circumstances do not warrant costs on a higher
scale.
There is also a prayer for eviction.
I believe there is no reason not to grant such.
In view of the above findings it is
hereby ordered that:-
1. The
cession of the plaintiff's rights and interest in Stand 8237 Unit K, Seke
, Chitungwiza to 1st defendant was unlawful
2. The
2nd and 3rd defendant's are hereby directed to reverse
the cession in favour of plaintiff, Steven Vhavha within 30 days
3. The
Registrar of Deeds Harare be and is hereby directed to cancel Deed of
Grant Number 576 dated 7 February 2011 made in favour of the 1st
defendant, Msizi Dube (Born 9 August 1968)
4. An
order be and is hereby granted for the eviction of 1st defendant,
Msizi Dube, and all those claiming occupation through him from Stand Number
8237 Unit K, Seke, Chitungwiza within 14 days from the date of service of this
order failing which the Sheriff, Chitungwiza be and is hereby authorised to
evict the 1st defendant and all those claiming occupation through
him.
5.
First defendant shall pay holding over damages to plaintiff in the sum of 150
(one hundred and fifty United States dollars) per month with effect from 1st
December 2010 to date of eviction.
6.
1st defendant shall pay interest on the above sum at the prescribed
rate from the date of service of the summons to the date of payment in
full.
7.
First defendant shall pay plaintiff's costs of suit on the general scale.
Mapondera
& Company,
plaintiff's Legal practitioners
C. Nhemwa & Associates, first defendant's Legal Practitioners.
