This
is an appeal from a judgment of the High Court in which it granted an
application for an eviction order against the appellant on the basis
that the respondent was the owner of the property known as Stand
number 3182 of Subdivision A of 159 of Prospect, Harare. The
appellant was found not to ...
This
is an appeal from a judgment of the High Court in which it granted an
application for an eviction order against the appellant on the basis
that the respondent was the owner of the property known as Stand
number 3182 of Subdivision A of 159 of Prospect, Harare. The
appellant was found not to have a right of occupation.
The
appellant had challenged the vindicatory action instituted by the
respondent on the basis that she had a right of occupation derived
from an agreement of sale of the property entered into between her
and a company called Champion Constructors (Pvt) Ltd, duly
represented by one of its directors and a shareholder, Ms Elizabeth
Chidavaenzi.
After
hearing argument from counsel for both parties, the appeal was
dismissed. It was indicated then that reasons for the decision would
follow in due course.
It
was not in dispute that the respondent was the registered owner of
Stand number 3182 of subdivision A of 159 of Prospect, Harare. The
issue before the court a
quo
was whether there was a binding agreement of sale which gave the
appellant the right of occupation.
The
court a
quo
found against the appellant.
The
question before this Court is whether the decision of the court a
quo
is correct on the evidence placed before it by the parties.
The
facts of this case are as follows.
The
respondent issued summons for the ejectment of the appellant from
Stand number 3182 of Subdivision A of Stand 159 Prospect in Harare on
9 June 2008. In her plea, the appellant sought the dismissal of the
claim on the basis that she was a legitimate possessor and occupier
of the property. The contention was that the right, title and
interest in the property was lawfully transferred to her by a
declaratory order issued by the High Court in case No. HC7594A/06.
The
appellant contended that she was in occupation of the property
pursuant to an agreement of sale entered into between herself and a
company called Champion Constructors (Pvt) Ltd. The appellant
contended that, alternatively, the respondent was estopped from
denying that Champion Constructors (Pvt) Ltd was the holder of
rights, title and interest in the property and was entitled to
dispose of the property as it did.
The
respondent, through its managing director, Mrs Elizabeth Chidavaenzi,
tendered various documentary exhibits in support of its position. She
denied that Champion Constructors (Pvt) Ltd had ever been authorised
to dispose of the property in the manner alleged or at all.
The
appellant relied on her own testimony and on the evidence of two
former workers of Fingold Real Estate, which had allegedly been
mandated by Champion Constructors (Pvt) Ltd to dispose of the
property to her.
The
court a
quo
accepted that the respondent was the registered owner of the property
in question on the basis of irrefutable evidence - the title deeds to
the property. The court also accepted that Mrs Elizabeth Chidavaenzi
was the managing director and controlling shareholder of the
respondent. The evidence placed before the court a
quo
pertaining to the relationship between the respondent and Champion
Constructors (Pvt) Ltd was that the respondent company had contracted
Champion Constructors (Pvt) Ltd to service the land and develop
residential houses on the subdivisions. The agreement between the
parties was that Champion Constructors (Pvt) Ltd would be paid in
kind for its services or in the form of completed houses which it
would, in turn, sell to prospective home-owners in order to recoup
its expenses.
Mrs
Elizabeth Chidavaenzi told the court a
quo
that, in the past, the respondent had mandated Fingold Real Estate to
sell two of its properties but it did not sanction the sale of the
property in issue. She testified, further, that this is the reason
why the agreement of sale was not signed by the seller. Her testimony
was to the effect that the appellant was involved in a fraudulent
sale which had been masterminded by John Chagaresango of Finhold Real
Estate, a close relative of the appellant.
Ms
Chidavaenzi said that the first time she became aware of the
purported agreement of sale of 26 September 2006, between the
appellant and Champion Constructors (Pvt) Ltd, was in November 2006
when lawyers for the appellant began pestering her with demands that
she sign the document. She also told the court a
quo
that on the two occasions that she had mandated Fingold Real Estate
to sell properties on the respondent's behalf, she had given them
instructions in writing, which she denied doing in this case.
The
appellant admitted before the court a
quo
that John Chagaresango of Fingold Real Estate was a close relation of
hers, her elder sister's son. She testified that she signed the
agreement of sale before John Chagaresango, Mr Phiri and Faith
Muzungu on 26 September 2006. Thereafter, she paid Z$32,500,000= on
28 September 2006, 9 October 2006 and 3 November 2006. The
appellant's evidence before the court a
quo
was that the terms of the agreement of sale were not fully explained
to her. She admitted that Ms Chidavaenzi had never authorised her to
make improvements to the property.
The
court a
quo
found that, despite being a major shareholder in both the respondent
and Champion Constructors (Pvt)
Ltd,
Ms Chidavaenzi was a “focused, confident and convincing” witness
whose “evidence proclaimed loudly and boldly that there was no
contract to talk about between Champion Constructors and the
appellant.”
The
court found, further, that, Fingold Real Estate could not possibly
have been mandated to sell the property in question to the appellant
by Champion Constructors (Pvt) Ltd or anyone else. The estate agent
failed to produce proof of its mandate to sell that particular
property.
On
the effect of the High Court order relied upon by the appellant as
bestowing or confirming that the appellant had acquired the rights,
title and interest in the property, the court a
quo
found that the order was made in default and was against Champion
Constructors (Pvt) Ltd and Elizabeth Chidavaenzi. The court's view
was that the order was not binding on Drawing Services (Pvt) Ltd or
enforceable against it, because, despite being the registered owner
of the property, it had also not been cited as a party to the
proceedings.
According
to the appellant's testimony before the court a
quo,
John Chagaresango, who worked for Fingold Real Estate, advised her
that the property in question was for sale. Accompanied by John
Chagaresango, she went to view the property. The property was in the
care of Champion Constructors (Pvt) Ltd, which, together with Drawing
Services (Pvt) Ltd, the respondent, were under the directorship and
shareholding of Elizabeth Chidavaenzi and Keroni Tevera (according to
form CR14 produced before the court a
quo).
Elizabeth
Chidavaenzi testified that Keroni Tevera was a passive participant in
the management of the affairs of Champion Constructors (Pvt) Ltd.
According to the evidence before the court a
quo,
after the visit to the Stand, John Chagaresango contacted Elizabeth
Chidavaenzi and advised her that the appellant wished to purchase the
Stand. It would appear that, upon instruction, Fingold Real Estate
drew up a draft agreement, in terms of which the seller, Champion
Constructors (Pvt) Ltd, held itself out as being the holder of the
rights, title and interest in the property, and as agreeing to sell
to the purchaser, the appellant, its right, title and interest on
some of the following conditions:
1.
The purchase price of the property of Z$32,000,000= (thirty two
million Zimbabwe dollars) plus 15% value added tax be paid.
2.
A deposit of Z$21,000,000= (twenty one million Zimbabwe dollars) to
be paid in full within 48 hours of signing the agreement of sale,
failing which the seller shall be entitled to cancel the agreement
without further notice.
3.
A cash deposit was to be paid by Bank cash transfer to Champion
Constructors (Pvt) Ltd.
Clause
8 of the document of sale provided that there would be no variation
of the conditions of the agreement unless the variation was in
writing and signed by the parties.
In
Clause 14, the parties acknowledged that the written agreement
between them would be the only agreement and that no other
conditions, stipulations, warranties or guarantees would be valid
unless included in the agreement.
The
appellant signed the proposed agreement on 26 September 2006 before
two witnesses. The respondent did not sign. Champion Constructors
(Pvt) Ltd did not sign. Elizabeth Chidavaenzi alleges that the estate
agents drafted the document without her knowledge and consent. The
appellant paid the deposit before the respondent signed the agreement
of sale.
Her
first instalment was paid on 28 September 2006. It took her up to 3
November to pay the deposit in full, contrary to the provisions of
clause 1 of the alleged agreement of sale which stipulated that the
deposit must be paid in full within 48 hours of the date of the
signature of the agreement. If the appellant signed the alleged
agreement on 26 September, and assumed that the seller had done the
same, the deposit ought to have been fully paid by 28 September 2006.
It
is not in dispute that the appellant subsequently paid the purchase
price in full to Champion Constructors (Pvt) Ltd. When she sought to
take occupation she was prevented from doing so by the respondent.
The appellant applied to the High Court seeking an order declaring
that the document she signed on 26 September 2006 constituted a valid
and binding agreement of sale between herself and Champion
Constructors (Pvt) Ltd. On 19 September 2007, the High Court issued
an order on the following terms:
1.
The provisional order in case number HC7594A/06 be and is hereby
confirmed on the following terms:
(a)
That the agreement of sale between the applicant and the first
respondent, signed on 26 September 2006, in respect of Stand 3182 of
Subdivision A of 159 Prospect be and is hereby declared to be legally
binding and enforceable against the first respondent.
Armed
with the order, the appellant took occupation of the property against
protestation by Elizabeth Chidavaenzi. On 9 June 2008 the respondent
issued summons out of the High Court claiming, by vindicatory action,
ejectment of the appellant from Stand 3182 of Subdivision A of Stand
159 of Prospect Harare. It alleged that it was the owner of the
property in terms of Deed of Transfer DT5668/72.
The
respondent alleged that the appellant had no right to occupy the
property as she had not entered into an agreement of sale with the
registered owner of the property. The respondent alleged that there
was no privity of contract between the appellant and the respondent.
In
resisting the action, the appellant raised three points:
1.
She denied that the respondent was the owner of the property and
argued that the right, title, and interest in the property had been
lawfully transferred to her by virtue of the declaratory order issued
in her favour by the High Court order of 19 September 2007.
2.
The appellant alleged that she had a right of occupation to the
property by virtue of the agreement of sale with Champion
Constructors (Pvt) Ltd.
3.
The appellant denied that there was no privity of contract between
the respondent and Champion Constructors (Pvt) Ltd as they were both
under the directorship of Ms Chidavaenzi, who, according to the
appellant, knew about the agreement of sale.
After
hearing the evidence of the parties relating to the issues, the court
a
quo
found that the appellant was not a credible witness. The court was
not assisted by the evidence of the witnesses called by the appellant
to bolster her case. It found Evis Monica Mutodi to have given “a
hopelessly confusing piece of evidence”, which, under cross
examination, was not consistent with that of the appellant even on
the purchase price.
The
court found that the appellant said that the purchase price was
pegged at $32,000,000= while Evis Monica Mutodi said the purchase
price was $32,000,500=. While Evis Monica Mutodi told the court that
she had discussed the clauses of the alleged agreement of sale with
her, the alleged appellant denied this and testified that she only
discussed the agreement of sale with John Chagaresango.
On
the veracity of the evidence of John Chagaresango, the court found
that he testified to being given a mandate by Elizabeth Chidavaenzi
to sell certain of her properties, including what he constantly
referred to as Stand 1382, which, in reality, was Stand 3182. The
court found his evidence at variance with that of Evis Monica Mutodi
when he said that Ms Chidavaenzi had visited the site prior to the
appellant doing so. The court also found that when directed to
clauses that the appellant had not complied with, all John
Chagaresango could say was that the agreement was not based on what
the appellant and the witnesses had signed, but other verbal
assurances by Ms Chidavaenzi.
In
contrast, the court found the evidence of Ms Chidavaenzi to be
precise and to the point. It found that the evidence was consistent
with her plea and summary of evidence; and, in her evidence-in-chief,
and under cross-examination, she maintained the denial that she gave
Fingold Real Estate, or anyone, a mandate to dispose of the property.
Having
dismissed the defence by the appellant, the court granted the
eviction order. It is against the order that the appeal was
instituted on the following grounds:
1.
The court misdirected itself in concluding that Elizabeth Chidavaenzi
was a credible witness, yet her demeanour and the inconsistencies and
improbabilities in her evidence justified a finding that she lacked
credibility.
2.
The Judge misdirected himself by relying on what he considered as not
having been put to the plaintiff's witness in cross-examination,
yet, those matters related to areas where the evidence of the
witnesses was mutually destructive.
3.
The court misdirected itself by failing to determine that Elizabeth
Chidavaenzi represented both the plaintiff and Champion Constructors
(Pvt) Ltd when she sold the property in dispute to the defendant.
4.
The Judge misdirected himself in his conclusion that Evis Monica
Mutodi's evidence was “hopelessly confusing.”
5.
The court misdirected itself in accepting, without criticism, the
evidence of Elizabeth Chidavaenzi to the effect that she did not
mandate Fingold Real Estate to sell the property in dispute.
6.
The court misdirected itself by coming to a contrary conclusion in
respect of a fact which was issue estoppel.
7.
The court misdirected itself by relying on principles applicable to a
lessee to conclude that the defendant, a bona
fide
possessor, had no right of retention pending compensation for
improvements.
8.
The Judge misdirected himself by failing to consider that the right
of retention arises by operation of law upon the defendant showing
that she is a bona
fide
possessor, and not upon the defendant instituting proceedings to
enforce the agreement of sale.
The
question whether the respondent, Drawing Services (Private) Limited,
was a party to the proposed agreement of sale with the appellant must
be answered in the negative. This means that there was simply no
privity of contract between the appellant and the respondent. The
appellant purported to contract with Champion Constructors (Pvt)
Limited - a separate legal entity from the respondent.