MWAYERA J: Central to the action before the court is
stand number 6130 Dzivarasekwa Phase 1. The plaintiff issued summons commencing
action in the magistrate court and the court ruled that the Magistrate Court
had no jurisdiction in view of the value of the property. Summons were
then issued in this court on 31/01/11. The defendant defended the matter and
also counter claimed which counter claim was opposed by the plaintiff.
At pre-trial conference stage the parties agreed on the issues for referral to
trial. The following issues were agreed parameters for ventilation and
determination during the trial.
1. (a) whether or not the
plaintiff claim has prescribed under the prescription Act [Cap
8:11].
(b) whether the allocation to the plaintiff by the Ministry
of National Housing Social
Amenities was valid.
(c) whether the Ministry of National Housing and Social
Amenities allocated stand
6130 Phase 1 Dzivarasekwa Township
to the defendant as well.
(d) whether the Ministry of National Housing and Social
Amenities ceded its rights of
action to the plaintiff.
2. Whether the plaintiff can
proceed with the claim without citing the Master of High Court, Executor of
Estate late Edgar Chikwezvero, Ministry of National Housing and Social
Amenities and City of Harare.
3. (a) whether stand 6130
Phase 1 Dzivaresekwa was registered under the Estate of the
late Edgar Chikwezvero
(b) If not whether or not it is procedural to proceed with
the claim of an unregistered
estate.
4. (a) whether the defendant
is occupying stand 6130 Phase 1 Dzivarasekwa Township
illegally or not.
(b) If not whether the Ministry of National Housing and Social Amenities can
have a
pronouncement on allocation of the said stand.
5. (a) whether or not there
was a double sale of stand 6130 Phase 1 Dzivarasekwa
Township
(b) If so who is to suffer for actions of officers in the
Ministry of National Housing and
Social Amenities
6. (a) whether the defendant
legally acquired stand 6130 Phase 1 Dzivarasekwa
Township.
(b) whether the defendant paid for the stand to Ministry of
National Housing and
Social Amenities.
7. (a) whether the defendant
is entitled to compensation for developments he effected.
(b) If so how much is the defendant is entitled to?
A close reading of the issues clearly shows most of the issues are interlinked
and were unnecessarily split to come up with a multiplicity of issues as will
be unravelled in disposition of the matter. I propose to deal with legal issues
raised from the issues guiding parameters of the trial and from the totality of
evidence adduced before the court. The question of locus standi in judicio.
This can be looked at when viewed in conjunction with the background of stand
in question number 6130 Phase 1 Dzivarasekwa hereafter referred to as the
stand. The stand was allocated to the plaintiff's husband one Edgar Chikwezvero
in 1995 and the said Edgar passed away in 2003. The evidence of the plaintiff
and the relevant Ministry official one Mr Tshuma clearly shows Edgar
Chikwezvero died before taking transfer of the property. The stand was then
allocated by the relevant Ministry to the complainant Nomusa Chikwezvero. The
stand was one of the many under a a government programme “Start paying for your
house scheme”, spear headed by the relevant Ministry to assist with low cost
houses for government employees. The plaintiff was allocated the stand and as a
legal allocatee obtained personal title to the stand as the leasee. The
plaintiff's evidence in so far as the allocation of the stand was firmly
buttressed by the Ministry official. It was apparent from the evidence that the
plaintiff has the locus standi to bring the action in her own right.
The none Joinder of the Ministry is not fatal to the plaintiff's case as the
property was ceded to her and her action is based on her personal right not
that she is bringing an action on behalf of a Principal. In an event even if it
were to be accepted the property that is the stand had accrued to Edgar
Chikwezvero her husband's estate (which is not the position because the stand
in question is State land being administered by the relevant Ministry when the
Mr Edgar Chikwezvero died. No title had passed so the stand is not part of the
estate) the plaintiff was appointed executrix of that Estate and is entitled to
bring action in that capacity. I have already pointed out that the stand did
not accrue to the estate of Edgar Chikwezvero as title had not passed. This
factor brings us to the other legal aspect raised that the none citation of the
Master of High Court would be fatal to the plaintiff's action. If the central
issue that is the stand is not part of a deceased estate then there is no need
for the Master to have been joined in the proceeding for the obvious reason the
office is not on interested part.
The fourth legal issue raised is pertaining to whether or not the plaintiff's
claim has prescribed in terms of the Prescription Act [Cap 8:11].
It is important to look at the relevant Act and see if the claim falls under
it. Section (2) of the Act defines a debt thus “debt without limiting the
meaning of the term, incudes anything which may be sued for or claimed by
reason of an obligation arising from statute, contract, or delict otherwise”
section 15(d) provides that any other debt shall prescribe after a period of 3
years. From the evidence and nature of claim the plaintiff brought the action
in her capacity as a cessionary in a cession of right of action by the owner of
the property (The State) with the plaintiff as the creditor. The action is a
vindicatory action in respect of which the period of prescription is 30 years
as given in section 4 of the Prescription Act. In an event it is
clear from section 15 of the Act that Prescription begins to run as soon as the
debt is due that is when the creditor became aware of the facts from which the
debt arises and becomes aware of the creditor. In the case of Shell
Zimbabwe (Pvt) Ltd v Webb 1981 ZLR 498 it was spelt out that a
cession places the cessionary in the shoes of the cedent. The evidence
presented before the court can be briefly outlined as follows. The plaintiff
was allocated the stand in 2005 and signed a lease agreement with the Ministry.
It was after the husband Edgar Chikwezvero had died in 2003 and the Ministry
saw it appropriate to allocate the plaintiff with the same stand. The scheme
clearly spelt out that developing was to be effected after servicing of stands
before any construction occurred. In 2010 when the plaintiff noticed
construction on the piece of land she instituted action in the Magistrate Court
then 2011 High Court for want of jurisdiction in the Magistrate Court. Given Mr
Tshuma's evidence the plaintiff's evidence that construction was to begin after
serving of stands and Mr Tshuma's evidence that some Ministry officials at some
stage used under hand means to sell stands to other parties not on the list of
beneficiaries of the scheme, the plaintiff's position that she was not aware of
developments and identity of the defendant until 2010 when there was a
structure cannot be said to be farfetched or improbable. The defendant's
evidence is that the plaintiff ought to have known earlier. That position, in
the wake of the purported under hand and fraudulent manner the stand was
allegedly sold cannot cloud the position that the plaintiff sprout to action
when she got to know of the facts from which the debt arose and identified the
debtor. The claim can therefore not be held to have prescribed.
Having disposed of legal issues above it remains for the outstanding issues to
be disposed off regard being paid to the totality of the evidence presented
before the court.
It was apparent from the plaintiff Nomsa Chikwezvero that after her husband
late Edgar Chikwezvero joined the housing scheme in 1995 and that after his
demise in 2003 the Ministry made a decision that she be allocated the same
stand. The plaintiff was subsequently issued with a letter confirming the
status as the legal allocatee or beneficiary and this letter was annexed to the
bundle of the plaintiff and tendered as exhibit. The plaintiff's status as the
legal lessee was confirmed by Mr Tshuma the legal officer of the Ministry.
Mr Tshuma confirmed that the plaintiff entered into a lease agreement with the
ministry in 2005. He also pointed out that in 1998 the defendant was unlawfully
allocated the same stand through same fraudulent scheme which the Ministry
discovered was perpetuated by some rouge officers of the Ministry acting
together with some members of the public. He pointed out that some of the
Ministry officials were prosecuted and or fired. In a bid to rectify to the
anomaly the Ministry publicised in the local press the list of the rightful
owners and invited them to attend the Ministry offices for verification. It was
then that the plaintiff's status was confirmed by issuance of a confirmation
letter. The witnesses highlighted that the Ministry did not expressly or
impliedly rectify the illegal allocations and that the defendant was not issued
with a confirmation letter of the stand. Mr Tshuma explained the possession of
the defendant of undated government documents such as receipts as emanatingfrom
the illegal underhand dealings and he drew the attention of the court to
features on some of the documents which were issued genuinely from the relevant
Ministry which were missing on the fake documents. It was clear from Mr Tshuma
that the Ministry never sanctioned the illegal allocations and that the plaintiff
is the legal allotee of the stand in question. The defendant Tendai Chinhomora
in turn recounted how he went to the Ministry's offices in 1998 and then he
bought the stand in 1999. He referred the court to his bundle of documents
which was produced as exhibits for purposes of showing he bought the stand. It
was clear from his evidence oral and documentary that when the advertisement by
Ministry was done in press pertaining to the scheme for stands he did not get a
confirmation letter but that he saw one Mr Gahadzikwa and Mrs Mollen at
Ministry offices and they advise him to go back home without any queries being
raised. He proceeded from 2004 to put up a structure and connected water and
electricity. The defendant claimed for compensation pointing out the
improvement effected to the stand totalled US$16 000 and this included a dural
wall erected. In support of the claim the defendant tendered before the court
an Evaluation report.
I propose to deal with the aspect of possession of the stand by the defendant
first and then revisit the issue of whether or not there is unjust enrichment
occasioned. As clearly pointed out by Mr Tshuma whose evidence was clear and
straightforward living the court with no reason to disbelieve him the
plaintiff, is the legal allotee of the land. There was no double sale by
the Ministry but the defendant obtained the stand through the conduct of some
rogue and unscrupulous Ministry official who sold the land on their own behalf
and not Ministry. Whether it was to the defendant's knowledge or with his
participation that is acting in cahoots with the rogue official or not the fact
that is clearly spelt out from evidence is that the defendant obtained the
stand through illegal means. The court cannot perpetuate on an illegality by
imputing liability on the legal allotee whose lease was confirmed by
confirmation letter and who signed a genuine lease agreement with the Ministry.
The plaintiff was clearly not part and parcel of the acquisition project by the
defendant and as such there is no basis for ordering her to compensate the
defendant. In an event there is no unjust enrichment occasioned to the
plaintiff as clearly connection of water and electricity is by other
authorities but approval is Ministry's prerogative. That renders the structure
put up an illegal structure. Even if the structure was legally put up the
plaintiff is not responsible for she was not part and parcel of the chain
leading to the defendant's possession. Further no evidence has been placed
before the court on quantification of expenditure and how it came up to 16 000
US dollars considering that the building or the construction was in the Zim
dollar era. There has not been laid before the court proof or extent of
expenditure. The case of Tumatemore (Pvt) Limited vs Oragplale
Limited HH 114/11 is instructive. Further the circumstances of the case do
not portray the defendant as a bona fide possessor who innocently
engaged in construction but rather he continued with construction despite
knowing the plaintiff's claim. The defendant cannot seek redress in
compensation when he continued to effect construction after being given notice
of competing claim in the property more so given his name was not on the
beneficiary list issued by the Ministry. The case of Reza v Nyangoni
2001 (1) ZLR 202 is relevant..
In the face of evidence that the plaintiff is the genuine and legal allotee
whom Ministry signed lease agreement with and that she by virtue of the cession
had authority to sue and be sued in respect of the stand the counter
claim by the illegal possessor has no firm ground on which to stand..
Accordingly it is ordered that
1.
The defendant and all those who claim right of occupation through him of stand
6130 Phase 1 Dzivarasekwa extension be ejected from the stand
2.
The counter claim by the defendant be and is hereby dismissed
3.
The defendant shall pay the costs of suit.
Zimbabwe Women Lawyers Association, plaintiff's
legal practitioners
Mushonga
Mutsvairo & Associates, respondent's legal practitioners
