TAKUVA J: On or about the 20th
of September 2002, the plaintiff purchased subdivision number 6 of the
remaining extent of Sherwood of Philadelphia held under deed of transfer number
1524/50 from the first defendant. The first defendant was represented by
the second defendant and one Goodwills Masimirembwa. Plaintiff duly paid
the purchase price to the first defendant.
In August 2003, the plaintiff entered into an agreement in terms of which he
sold back the property to the first defendant in what the parties referred to
as the “buy back agreement”. In terms of this agreement, the first
defendant would purchase back the property at a price of ZW$40 000 000,00
payable on or before the 29th of August 2003. The first
defendant breached this agreement and on 8 and 18 September 2003, the plaintiff
indicated to the first defendant that he was cancelling the buyback
agreement. On 2February 2006, in case number HC 3860/04, this court ruled
that the cancellation was valid. Despite this order, first defendant has
refused or neglected to produce the deed of transfer for the relevant
subdivision for the transfer to be effected to the plaintiff.
Plaintiff prayed for an order in the following terms:
(i)
That the first and second defendants shall deliver to the plaintiff's legal
practitioners forthwith upon the service of this order upon them the
certificate of registered title in respect of an immovable property known as,
subdivision number 6 of stand 278 of the remaining extent of Sherwood Estate
situated in the District of Salisbury.
(ii)
In the event that the first and second defendants do not comply for any reason
with the terms of clause 1 hereto, the Deputy Sheriff, Harare or his lawful
deputy shall enter upon the premises of the first and second defendants and
take possession of the certificate of registered title in respect of the
immovable property known a subdivision No. 6 of stand 278 of the Remaining
Extent of Sherwood Estate situated in the district of Salisbury.
(iii)
The third defendant shall in the event of no copy of the certificate of
registered title referred to in clause 1 and 2 above available at the premises
of the first and second defendant, deliver and make available to the
plaintiff's legal practitioners a copy of the said certificate of registered
title forthwith upon the service of this order upon him.
(iv)
The first, second and third defendants be and are hereby interdicted pending
the transfer of the immovable property to the plaintiff from dealing with the
property in any manner or transferring it to any person other than the
plaintiff.
(v)
The first and second defendants shall pay the costs of this suit on an attorney
and client scale.
First and second defendants opposed the
matter on the following grounds:
(a)
that they did not breach the buyback agreement;
(b)
that the plaintiff is not entitled to cancellation;
(c)
that the plaintiff is not entitled to the relief sought in that the property
has been disposed to a third party Dominic Pfumbauta.
At the pre-trial conference the parties
agreed on what they perceived to be the issues. When trial commenced all
parties agreed that it was common cause that plaintiff and first defendant
entered into a buy back agreement. It was also common cause that the first
and second defendants did not pay the full purchase price within the agreed
period. What remained in dispute are the following two issues;
(a)
Whether there was a compromise agreement between the parties;
(b)
Whether the plaintiff has any rights, title and interest in the property in
question.
Since the onus was on the defendants in
respect of the first issue, the second defendant gave evidence first. He
told the court that he is an Architect and a Gemologist. He holds a
Masters' Degree in Property and Rural Development. Mr Mutanga's version
is simply that plaintiff bought the property in October 2002 for ZW$8.4
million. Later in March or April 2003 he decided that he was no longer
interested in that property. He further stated that he could not remember
whether plaintiff had paid the purchase price. According to Mr Matanga,
the market value of this property was now ZW$40 million and plaintiff wanted to
be refunded this amount which request was turned down by the Trust.
However, the Trust suggested that they buy back the property and the buyback
agreement was entered into and he paid ZW$40million to plaintiff by cheque on
10 October 2003. He said this was in order since he had obtained an
extension of time to pay. After payment, they then sold the property to a
third party one D. Pfumbauta and the trust received a letter of
cancellation. As regards the decision in case number HC 3860/04, he said
he never applied for its rescission and up to now he respects this order and is
willing to comply with it.
Under cross-examination he admitted that
the Trust breached the buyback agreement by failing to pay by the 29th
of August 2003. He seemed to suggest that a tender of payment suffices
although later he contradicted himself by saying he saw a cheque attached to
some letters. Asked why if a certificate of registered title was obtained
in 2008, the property had still not been transferred to the plaintiff, his
answer was that the plaintiff was not entitled to the property since he
cancelled the agreement and the Trust refunded him. The defendants closed
their case after this witness' testimony.
Plaintiff testified as follows:
On 20 September 2002, the plaintiff
entered into an agreement of sale with the first defendant represented by the
second defendant. The sale related to an immovable property known as
stand number 278 of the remaining extent of Sherwood of Philadelphia. The
plaintiff paid the full purchase price of Z$8.4 million in instalments.
Later, on 26 August 2003, the parties entered into another agreement they
referred to as a “buy back agreement” wherein the first defendant bought
back the property from the plaintiff for Z$40 million. This purchase
price was payable by the first defendant on or before the 29th day
of August 2003.
Notwithstanding this specific provision
that the purchase price was due and payable on or before the 29th
August 2003, first defendant failed to pay on or before that date. This
prompted the plaintiff to instruct his legal practitioners to write a letter of
demand which plaintiff personally delivered at the domicilium citandi
in terms of clause 8(b) of the agreement. Both defendants did not
respond.
On 18 September 2003, plaintiff through
his legal practitioners and in writing cancelled the buyback agreement.
Plaintiff personally delivered the notice of cancellation at the address for
service in terms of the agreement. Six weeks later on 10 October 2003,
the second defendant tendered payment of the purchase price through his legal
practitioners. However, payment was never made and plaintiff applied to
this court for an order validating the cancellation. The order was
granted under case number HC 3860/04 on 2 February 2006. Plaintiff failed
to obtain from first defendant a deed of transfer for the relevant subdivision
for transfer to be effected to the plaintiff.
According to the plaintiff, he entered
into the buyback agreement after second defendant approached him and indicated
that “things were difficult and plaintiff could not develop the stand since the
paper work had not been completed”. He then offered to purchase the
property for Z$40 million after plaintiff had asked for Z$50 million. The
plaintiff denied entering into a compromise agreement wherein he is alleged to
have agreed to allow the first defendant to sell the property to a third party
and be paid from the proceeds.
Plaintiff prays for an order compelling
the first and second defendants to deliver to the plaintiff's legal
practitioners the deed of transfer in respect of subdivision number 6 of stand
278 of the remaining extent of Sherwood Estate, failing which the Deputy
Sheriff or his lawful assistant are authorized to obtain the said document from
the first and second defendants. The plaintiff further prays for an order
interdicting the first and second defendants from dealing with the immovable
property pending the transfer.
As pointed out before, despite second
defendant's prevarication, there are only two issues to be resolved. As
regards the first issue relating to whether there was a compromise agreement,
it is necessary to closely examine the evidence of the parties. In my
view, the second defendant's testimony is incredible for the following reasons;
(i)
The second defendant testified that he discharged his obligations in terms of
the buyback agreement by paying the full purchase price by cheque. If he
is telling the truth, then the so-called compromise agreement was superfluous.
(ii)
The second defendant failed to discharge the onus of establishing the
compromise agreement in that he failed to substantiate this claim by providing
proof or details of its existence.
(iii)
Further, second defendant did not explain why the parties failed to reduce this
agreement to writing like what they did in respect of the previous agreements.
(iv)
The second defendant's version is highly improbable in that firstly, he claims
to have paid the full purchase price by cheque, secondly, he said he was given
time to pay and thirdly, he said plaintiff authorized him to sell the property
to another person. These are mutually exclusive events which are
glaringly absurd.
(v)
Both defendants did not even argue the case that they pleaded. It was
argued for the first time during addresses that the matter had prescribed and
that it was res judicata. While it is trite that a point of law
and be raised at any stage of the proceedings, this can only be done where it
does not cause prejudice or unfairness to the other party. See Muchakata
v Netherburn Mine 1996 (1) ZLR 153 (S).
In Keavney & Anor v Musabaeka
Bus Services (Pvt) Ltd 1996 (1) ZLR 605 (S) it was held, per McNALLY JA
(as he then was) that “the purpose of pleadings is to define the issues to
enable the other party to know what case he has to meet. It is improper
conduct therefore for a legal practitioner to advance a defence different from
that pleaded … The failure to plead the real defence suggests one
or other of three possible explanations;
(a)
sheer idleness and incompetence on the part of the pleader;
(b)
a deliberate and unconscionable attempt to avoiding attracting the onus of
adducing evidence; or
(c)
The defence was an after-thought.”
In casu,the
defences belatedly raised are a clear after-thought. Raising them at the eleventh
hour causes prejudice to the plaintiff in that he was unable to deal with them
during pleadings and trial.
For these reasons, I find that the
compromise agreement does not exist at all and the 1st issue must be
resolved in plaintiff's favour.
As regards the second issue, it follows
that upon cancellation of the buyback agreement, the status quo ante
was restored namely that the parties reverted to the original agreement of sale
which accorded plaintiff rights, title and interest in the property. It
is common cause that the buyback agreement was cancelled by way of a court
order. The argument that the plaintiff breached the first agreement by
failing to pay the full purchase price is lame in that defendants would not
have entered into the buyback agreement with a party that did not have rights,
title and interest in the property, for one may ask, what rights would
plaintiff pass to defendants?
Much was said about plaintiff's alleged
tardiness to enforce his rights since 2006. In my view this criticism is
baseless in that according to second defendant's own words, the Certificate of
Registered Title was issued in 2008. This then necessitated the plaintiff
to institute fresh proceedings in order to have this document delivered to him.
For these reasons, I find that the
plaintiff has rights, title and interest in the property. The second
defendant stated that he is prepared to comply with the order in case No. HC
3860/04. Consequently, there was no need to defend this case at all.
Accordingly, an order in the following
terms is granted.
(a) That the first and
second defendants shall deliver to the plaintiff's legal practitioners within
seven (7) days from the date of service of this order upon them, the
Certificate of Registered Title in respect of an immovable property known as
subdivision No. 6 of stand 278 of the remaining extent of Sherwood Estate
situated in the District of Salisbury.
(b) In the event that the
first and second defendants do not comply for any reason with the terms of
clause 1 hereto, the Deputy Sheriff, Harare or his lawful deputy shall enter
upon the premises of the first and second defendants and take possession of the
certificate of registered title in respect of immovable property mentioned in
(a) above.
(c) The third defendant
shall in the event of no copy of the certificate of registered title referred
to in clauses (a) and (b) above available at the premises of the 1st
and second defendants deliver and make available to the plaintiff's legal
practitioners a copy of the said certificate of registered title within
fourteen (14) days from the date of service of this order upon him.
(d) The first, first and third
defendants be and are hereby interdicted pending the transfer of the immovable
property to the plaintiff from dealing with the property in any manner or
transferring to any person other than the plaintiff.
(e) The first and second
defendants shall pay costs of this application on an attorney and client scale.
Magwaliba & Kwirira, plaintiff's legal practitioners
Govere
Law Chambers, defendants' legal practitioners
