On
17 April 2007 the plaintiff issued summons against the defendants
claiming the following:
“(a)
An order that the plaintiff be declared the owner of Stand Number
14826 Unit 'O', Seke, Chitungwiza;
(b)
An order that the third defendant be ordered to cede rights, title
and interests in House Number 14826 Unit 'O', Seke, Chitungwiza
to the plaintiff; and
(c)
Costs of suit.”
In
these proceedings the first defendant, who is late, is represented by
Herbert Muwirimi, the executor of her estate.
The
brief facts leading to the above claim are these:
On
18 July 2005 the plaintiff and the first defendant entered into an
Agreement of Sale whereby the plaintiff purchased from the first
defendant Stand Number 14826 Unit 'O' Seke, Chitungwiza (“the
property”) for $80,000,000= (Eighty million dollars). The amount
was paid in instalments, and, as at 27 November 2005, the full amount
had been paid. Transfer of property, however, remained outstanding.
Notwithstanding
the above Agreement of Sale between the plaintiff and the first
defendant, on 16 March 2006 the first defendant, through another
Agreement of Sale, sold the same property to the second defendant for
$500,000,000= (five hundred million).
The
property was then immediately transferred to the second defendant
without the plaintiff's knowledge.
The
above facts are common cause.
The
plaintiff gave evidence in support of his claim. He confirmed the
Agreement of Sale between him and the first defendant and stated that
following full payment of the purchase price he took vacant
possession of the property on 1 February 2006. He remains in
possession.
The
plaintiff said apart from requesting the first defendant, on three
occasions, to attend to the transfer of the property, he had actually
visited her at her rural home where upon she had promised to come to
Chitungwiza to attend to the transfer. It was the plaintiff's
evidence that when the first defendant finally came to Chitungwiza,
during the first week of March 2006, she indicated that she was no
longer willing to proceed with the sale of the property. This was so
because her family members had objected to the sale of the property
for the reason that it was a 'family house'.
The
plaintiff's reaction was that he could only move out of the
property if the first defendant bought him a similar property. He
said he never agreed to the cancellation of the agreement. He also
said there was never any suggestion of a top up. The first defendant,
he testified, never advised him of the second sale of the property to
the second defendant. He only discovered that the property had been
transferred into the name of the second defendant through water bills
which bore her name.
The
plaintiff said the first defendant, in the company of the second
defendant and her husband, visited him at the property during the
second week of March 2006. It was then that the second defendant had
disclosed that she had bought the property and therefore wanted him
to move out. He refused to move out.
The
plaintiff denied that he ever agreed to pay rent to the second
defendant. He had paid the full purchase price and the property was
now his. All what remained was transfer of the property to him. He
denied ever receiving any reimbursement.
After
his testimony, the plaintiff closed his case.
Herbert
Muwirimi, the executor of the first defendant's estate, gave
evidence, which, in the main, was based on hearsay. He said that the
late first defendant was his aunt and was the owner of the property
in dispute. He, however, only became aware of the contract between
the plaintiff and the first defendant when he came to court. He was
not aware of the second sale to the second defendant. All what her
aunt had told him was that the plaintiff had not paid the 'top up'.
He trusted that his brother, Onismus Muwirimi (Onismus), had
accounted for all the money that had been paid by the plaintiff
through him. The money was for the first defendant (i.e payments
towards the agreed purchase price of $80 million).
Onismus
Muwirimi, who was called as the last witness for the first defendant,
testified that he was involved in the negotiations that led to the
purchase of the property by the plaintiff. He said the first
defendant was his aunt. He confirmed that an Agreement of Sale was
signed between the plaintiff and the first defendant. The full
purchase price of $80 million, including a top up of $2.5 million,
was paid by the plaintiff. He said the 'top up' had arisen as a
result of complaints from the first defendant's brothers who felt
the price of $80 million was low.
Onismus
Muwirimi, who was a close friend of the plaintiff, testified that her
aunt's first legal practitioners, Messrs C Mutsahuni, Chikore &
Partners had paid a refund of $82.5 million to the plaintiff. A
receipt (exhibit 5) was produced. He, however, said the plaintiff had
refused to accept the refund. The witness said he had told the
plaintiff that because of his failure to pay the top up price, of $50
million, his aunt, the first defendant, was considering selling the
property to someone else. Furthermore, his aunt's brothers were
accusing him of conniving with him (the plaintiff) in order for the
plaintiff to purchase the property at a cheaper price. He said when
the property was finally sold to the second defendant, he did not
disclose the first sale to her (the second defendant).
The
second defendant gave evidence in support of the second sale of the
property to her and was supported by two other witnesses. She
confirmed that through a Mr Chihota, she had, in terms of an
agreement of sale dated 16 March 2006, purchased the property from
the plaintiff for $500 million. She said upon checking on ownership
details with the Council, she had, within five days, proceeded to
have the property transferred into her name before paying the
purchase price. She also said she had not viewed the property since
she had a general knowledge of the types of houses in the area. She
had to move fast because she had been advised that there was also a
soldier who was keen to pay more money for the property. She said she
only discovered that the property had also been sold to the plaintiff
after she had already transferred ownership to herself. The first
defendant had only told her that a relative of hers was staying at
the property.
The
second defendant said one of her main aims in buying the property was
to build a bigger house. She said that upon proving her ownership of
the property to the plaintiff, he had initially agreed to pay $10
million per month as rental pending his final departure from the
property. She said the plaintiff had, however, reneged on the rental
arrangement.
Mr
Livingstone Chituriro Chihota testified that he had indeed
facilitated the purchase of the property by the second defendant. He
said all negotiations leading to the purchase of the property by the
second defendant had been conducted at his house, which was about 300
metres away from the property in issue. He said it was, however, not
his duty to show the second defendant the property that the first
defendant was selling. He said that his only duty was to find a buyer
for the first defendant. Once he had found a buyer he sent Onismus
Muwirimi for the first defendant, with the second defendant paying
for Onismus's transport to the rural area to fetch the first
defendant.
Clement
Nhau was called as the last witness for the second defendant. He said
the second defendant was his wife and that he had been present at
Livingstone Chituriro Chihota's house when the purchase of the
property was discussed and concluded. Like the second defendant, he
also confirmed that they had not seen or viewed the property. He and
the second defendant had been told that there was a soldier who was
also interested in buying the property. He said, as a result, moving
with speed became necessary in order not to lose the property. In the
main, his evidence corroborated that of the second defendant.
In
order to put all the evidence and submissions from the parties'
legal practitioners in proper prospective, I think, in the face of
the evidence now before me, it is necessary to restate the issues
identified for trial at the pre-trial conference. The agreed issues
were:
“1.
Whether or not plaintiff was in breach of the contract between him
and first defendant.
2.
Whether or not the Agreement of Sale between the plaintiff and the
first defendant was ever cancelled.
3.
Whether or not second defendant is an innocent third party.”
Upon
restating and evaluating the evidence of the plaintiff, counsel
for
the plaintiff
submitted
that the double sale situation had arisen as a result of greed on the
part of the first defendant. He submitted that the plaintiff had paid
the full purchase price in terms of the agreement. There was no
dispute that the sum of $80 million had been paid.
Relying
on Chimponda
v Rodgriques and Others
1997 (2) ZLR 63,
counsel for the plaintiff correctly submitted that it is the primary
right of a wronged first buyer to have the remedy of specific
performance unless there is some equitable reason disqualifying
him/her from obtaining such a relief. He said, in
casu,
there were no special reasons/circumstances militating against the
plaintiff's right to specific performance.
Counsel
for the plaintiff submitted that the second defendant had conducted
herself in a suspicious and questionable manner and hence leaving
room for one to conclude that she was aware of the first sale i.e the
sale of the property to the plaintiff. That being the case, counsel
for the plaintiff argued, the second defendant's remedy was in an
action for damages against the estate of the first defendant i.e the
seller of the property. All in all, counsel for the plaintiff's
position was that the plaintiff's rights under the contract entered
into between him and the first defendant should be enforced by this
court.
Counsel
for the first defendant also cited the case of Chimponda
v Rodgriques and Others
1997 (2) ZLR 63 and
submitted that in a double sale situation the basic rule is that, in
the absence of special circumstances, the first purchaser should
succeed. Also relying on Guga
v Moyo and Others
ZLR 2000 (2) 458 (S), she went on to state that the special
circumstances to be looked at are:-
“(i)
Who has paid more money than the other.
(ii)
Who has taken possession of the property and expended considerable
sums on the house.
(iii)
Whether first purchaser took any action to protect his interest when
he became aware that the seller was behaving dishonestly.”
Counsel
for the first defendant
submitted
that in
casu
the second defendant had paid more money than the plaintiff i.e. $500
million as compared to $82,5 million paid by the plaintiff. She said
the plaintiff had, in any case, failed to protect his interest after
being told, in February 2006, by his wife, that the second defendant
was inquiring about whether or not the house was still on sale. She
went on to say the plaintiff had also not reacted swiftly when told
by officers at Chitungwiza Municipality that the file had been taken
to the Head Office. She argued that such information should have
indicated to the plaintiff that something was happening to the house.
The plaintiff, she argued, did not, however, take prompt action to
protect his interest. She concluded her submissions by urging the
court to regard the second defendant as an innocent purchaser in
whose favour the special circumstances should lie so as for her to be
awarded the property.
Counsel
for the second defendant submitted that the important factor to
consider in a double sale was whether or not the second purchaser was
aware of the first purchase of the same house. He submitted that at
the time of the agreement to purchase the property and also at
cession of rights, title and interest in the property, the second
defendant was not aware or had no knowledge of the first sale. He
said
that
the fact that the second defendant went on to purchase the property
without seeing or viewing it could not be construed as conduct
confirming that she had known of the first sale. In any case, he
argued, the second defendant had given adequate explanation for her
conduct. He said whereas the second defendant had protected her
interests by quickly seeking transfer of property, the plaintiff had
done nothing to protect his interests despite the fact that he had
become aware of the first defendant's reluctance to proceed with
the sale (i.e. through asking for a 'top-up'). Furthermore,
counsel for the second defendant argued, the second defendant had
paid more money than the plaintiff. He therefore submitted that the
second defendant's case should succeed. The plaintiff, he
suggested, could seek damages from the estate of the first defendant.
The
facts in
casu,
in
my view, clearly establish the existence of a double sale.
The
first sale was completed on 27 November 2005 when the last instalment
towards the purchase price of $80 million was paid by the plaintiff
to the first defendant. The payment was in terms of the Agreement of
Sale dated 18 July 2005. The issue of a top up only came some three
months after the plaintiff had fulfilled his obligation under the
contract. What remained to be done under that agreement was cession
of rights, title and interest in the property to the plaintiff. The
purported reversal of the Agreement of Sale, in March 2006, does not,
in my view, invalidate the first sale.
The
second sale was concluded on or before 16 March 2006 when the second
defendant paid $500 million to the first defendant in terms of the
agreement signed between the first defendant and the second defendant
on that date.
In
concluding that the evidence confirms the existence of a double sale,
I am in the same vein stating that the plaintiff complied with his
obligations under the Agreement of Sale dated 18 July 2005. The
plaintiff did not breach that agreement. There was therefore nothing
on which the first defendant could anchor cancellation on and worse
still without notice.
In
her plea filed of record on 6 July 2007, and prepared during her life
time, the first defendant said she had cancelled the agreement
between herself and the plaintiff because:-
“(i)
He had failed to pay the full purchase price.
(ii)
He chased away first defendant's lodger without her permission and
he imposed himself on the property in question.
(iii)
He started cutting trees at the house without permission.”
The
above 'breaches' were never placed before the plaintiff.
The
issue of a top-up amount is not mentioned anywhere in the pleadings.
It was only raised during the hearing in court.
The
plaintiff, who, I must say, I found to be a credible witness, denied
that he had paid an additional sum of $2,5 million as a top up. He
said the reason for the purported reversal of the agreement, as given
him by the first defendant, was that the property “was a family
house”. The family had therefore decided not to have it sold.
This
does not tally with reasons given in the pleadings. The plaintiff had
refused to accept a refund arguing that if anything, it was the first
defendant's duty to get him a similar property.
Exhibit
5, showing the purported reimbursement of $82.5 million on 7 April
2006, through Messrs C Mutsahuni Chikore & Partners, throws mud
in the first defendant's story.
The
said legal practitioners are not mentioned anywhere in the pleadings,
and, if indeed they had handled the matter one would have expected
them to proceed against the non-rent paying plaintiff who had
allegedly imposed himself on the property on 1 February 2006. That
piece of evidence is suspect. I have, however, already indicated that
as at 27 November 2005 the plaintiff had complied with the Agreement
of Sale. He had, in terms of the agreement of sale, paid the only
agreed and known purchase price of $80 million. Accordingly, in the
absence of a breach, any purported cancellation of the agreement was
of no effect. This finding disposes of the first two tissues; namely;
(i)
Whether or not the plaintiff breached the agreement; and
(ii)
Whether or not as a result of a breach the first defendant cancelled
the agreement.
The
last issue to be determined is whether or not the second defendant is
an innocent purchaser.
I
am unable to accept counsel for the second defendant's
submission
that the second defendant's conduct should not be construed as to
mean that she had knowledge of the first sale. Admittedly, there is
no direct evidence of knowledge. However, the following factors lead
me into believing that the second defendant had knowledge of the
first sale and that all she needed to do before parting with $500
million, was to establish that transfer of the
property to the plaintiff had not yet taken place. That, as per her
own evidence, she proceeded to do with speed.
The
factors that confirm my belief that the second defendant knew of the
first sale are these:-
1.
The negotiations of the second sale were hurried and confined to
Livingstone Chituriro Chihota's house despite the fact that the
first defendant knew the plaintiff very well. The plaintiff had even
helped her (first defendant) in registering the estate of her late
husband, Mr White. That fact was not disputed. I find no good reason
as to why the hurried negotiations were not held at her house which
was only 300 metres away from Mr Chihota's house. The first
defendant had no long association with Mr Chihota;
2.
The second defendant did not bother to view the property which was
only 300 metres from where the negotiations were taking place. The
mere fact of buying the property, at a high price of $500 million,
without inspecting/viewing it is strange. The only reasonable
conclusion I can make is that the first and second defendants
colluded to deprive the plaintiff of the property. This plan was
enhanced by the fact that transfer of property had not yet been
effected. The second defendant was even prepared to go out of her way
to pay Onismus Muwirimi's transport costs in order for him
(Onismus) to fetch the first defendant from her rural home;
3.
The speed at which the transaction was concluded is quite unusual.
Once the second defendant had established that transfer had not yet
occurred she made sure that everything got sealed within five days.
This was so in order to ensure that the plaintiff would remain in the
dark until the transaction, particularly transfer of property, was
through; and
4.
The plaintiff only issued summons in this case on 17 April 2007. That
is one year after the sale of the property to the second defendant on
16 March 2006. I believe that, were it not of the second defendant's
knowledge of the dirty deal she had entered into with the first
defendant, she would have, with the same speed she had employed in
the transaction, caused the eviction of the plaintiff, who, worse
still, according to her evidence, had refused to pay rent.
On
the basis of the above factors, my conclusion is that there was
connivance between the first defendant and the second defendant.
They
were assisted in the execution of their plan by Onismus
Muwirimi and
Livingstone
Chituriro Chihota.
All ensured that the plaintiff would only be told after transfer of
the
property to the second defendant had been effected. That, as shown by
evidence, is exactly what happened. That is the only reasonable way
to explain the reason for confining the negotiations to Livingstone
Chituriro Chihota's
house and the failure to view the property which was only 300 metres
away. The four knew they were doing something wrong, something whose
results the plaintiff would only know when it was too late.
Accordingly,
my finding, on a balance of probabilities, is that the second
defendant was fully aware of the first sale.
In
view of the foregoing, and given the authorities cited by counsel for
the plaintiff, I fully agree that in the absence of special
circumstances militating against the plaintiff, there is every reason
for me to rule in his favour. The plaintiff is therefore entitled to
his primary right of specific performance.
The
fact that he paid less than the second defendant cannot be used
against him in a situation where it has been established that through
her conduct, the second defendant displayed her knowledge of the
first sale. The court cannot ignore the manner in which both
defendants conducted themselves.
I
am also not persuaded by the argument that the plaintiff did nothing
to protect his rights.
Having
fulfilled his obligation under the agreement, the plaintiff quickly
took possession - and is still in possession. Evidence shows that
even before and after 16 March 2006, the plaintiff was pestering the
first defendant with his demand for the transfer of the property to
his name. The subsequent intentions of the first defendant only
became clear after the second sale had been fully executed. Clearly,
the plaintiff was duped and the second defendant was a big player in
the clandestine transaction.
All
in all, the equities in
casu
favour the plaintiff. The second defendant, if she so wishes, can
proceed to claim damages from the estate of the first defendant. See
both Chimponda
v Rodgriques and Others
1997 (2) ZLR 63 and Guga
v Moyo and Others
ZLR 2000 (2) 458 (S).
The
plaintiff's claim succeeds and it is therefore ordered as follows:-
1.
That the plaintiff be and is hereby declared the lawful owner of
Stand Number 14826 Unit 'O' Seke, Chitungwiza.
2.
That the third defendant be and is hereby ordered to cancel the
cession of rights title and interest in Stand Number 14826 Unit 'O'
Seke, Chitungwiza, made in favour of the second defendant.
3.
That the third defendant be and is hereby ordered to cede rights,
title and interest in Stand Number 14826 Unit 'O' Seke,
Chitungwiza to the plaintiff; and
4.
That the first and second defendants shall pay costs of suit jointly
and severally.
