Fidelis
Josiah Chiwedza issued summons against the defendants claiming the
following:-
1.
A declaratory order that the Agreement of Sale (Annexure B) which was
entered into between him and the first defendant's deceased husband
be and is hereby held to be valid; and
2.
An order that the plaintiff be declared to be the lawful purchaser of
the deceased's rights, interest and title in Stand 2384, Highfield
Township, Harare; and
3.
An order compelling the fifth defendant to accept and approve
documents signed by the second defendant and/or fourth defendant,
upon the upliftment of the caveats registered against the property,
transferring the property from the deceased to the plaintiff failing
which the fifth defendant be ordered to accept and approve the
documents, signed by the seventh defendant or his lawful deputy
transferring the property from the deceased to the plaintiff; and
4.
An order that the sixth defendant confirms that he approved and/or
approves the sale of the property from the deceased to the plaintiff;
and
5.
An order directing and authorising the seventh defendant to uplift
caveats no.309/88 and 744/95 registered over the property under Deed
of Transfer No.6771/85.
6.
An order that the costs of suit be paid by the first, second and
fourth defendants, jointly and severally, the one paying the others
to be absolved.
Fidelis
Josiah Chiwedza thereafter died and has been substituted by his wife,
Osburga Ndolvu, who was appointed executrix dative of his estate.
The
first defendant, Lusia Gombarume, is the surviving spouse of the late
Paradzayi George Gombarume who entered into the Sale Agreement with
the plaintiff. The second defendant, Polka Executors Services, is the
executor dative of the late Paradzayi George Gombarume's estate.
The
third defendant, Africa Real Estate, is an estate agent which has
been mandated to sell the house in dispute by the second defendant.
The
fourth defendant, P. W Makunike and Partners, was a firm of legal
practitioners. Mr Makunike, who filed a consent to judgment on 22
August 2014 indicated in that document that Makunike & Partners
(is now obsolete). Mr Makunike was formerly practising with Hove,
Mutasa and Associates. He apparently took the late Paradzayi George
Gombarume's file with him when he left Hove, Mutasa and Associates (see exhbibit 12).
Osburga
Ndolvu, who testified for the estate late Fidelis Josiah Chiwedza,
told a simple and straight forward story of how her husband bought
Stand 2384, Highfield Township from the first defendant's late
husband.
They
were looking for a house to buy.
Her
husband had recently become a pensioner and had funds from which they
could buy a house. They, among several other houses, viewed the late
Paradzayi George Gombarume's house. They found the first defendant
at home, who confirmed that the house was on sale, as had been
advertised in a newspaper. She asked them to come back and talk to
her husband who was responsible for the sale of the house. They went
back in the evening and found the first defendant's husband not yet
at home. He however arrived and agreed with her husband on the sale
of the house. The parties eventually agreed to involve the seller's
legal practitioners leading to the sale agreement being drawn by
Hove, Mutasa and Associates. They agreed on occupation taking place
three months later. They moved into the house and lived there
peacefully though the late Paradzayi George Gombarume died before
transferring the property to her husband.
Her
husband also died before the property was transferred to him.
This
led to several court cases being filed by her husband and against him
till she took over as the executor of her late husband's estate.
She produced several supporting documents with the defendant's
legal practitioner's consent. She told the court that she was, on
most occasions, present when her husband transacted with the late
Paradzayi George Gombarume. She said she was present when the late
Paradzayi George Gombarume took them to his lawyers where the
agreement was reduced to writing.
The
first defendant, who was the only witness for the defence, disputed
that the property was ever sold to the plaintiff. She told the court
that the late Fidelis Josiah Chiwedza and his family were their
tenants who refused to continue paying rent after her husband died.
The
issue to be determined is whether or not the plaintiff bought the
house in dispute from the late Paradzayi George Gombarume.
The
determination of the case hinges on the credibility of the witnesses
and the corroboration of their testimonies by documental evidence.
The
plaintiff's witness gave her evidence convincingly. Most of her
evidence is supported by documental evidence. She stood firm under
cross-examination. She gave information which could only have been
given to her and her late husband by the seller.
The
first defendant was not a truthful witness. She lied about not
knowing her husband's legal practitioners. She, at some stages,
acknowledged them, but deliberately denied knowing them when it
became clear that their involvement confirmed the sale.
The
fact that the seller's legal practitioners drew the Agreement of
Sale is proof that the seller sold his house to the plaintiff. It is
inconceivable that the plaintiff would, on his own, discover the
seller's lawyers and purport, with their co-operation, to have
bought their client's house. It is further inconceivable that the
buyer would know, without the seller's cooperation, details of the
seller's mortgage bond. It is also inconceivable that if the
plaintiff and his family were tenants, the first defendant would not
have enforced her right to be paid rentals.
The
paper trail from the Agreement of Sale to the fake transfer proves
the existence of a sale which the plaintiff wanted finalised.
Counsel
for the defendant raised the issue of the forged title deeds as an
indication that the agreement of sale and other documents could also
have been forged.
I
agree that the forging of the Title Deeds suggests that the lawyer
concerned cannot be trusted.
This,
however, does not affect the Agreement of Sale which was prepared by
Hove, Mutasa and Associates whose credibility cannot be affected by
Mr Makunike who forged the title deeds long after he left their law
firm. The forging of the Title Deeds does not suggest collusion
between Mr Makunike and the late Fidelis Josiah Chiwedza; as if that
was the case, he would not have reported him to the Law Society as he
did through exhibit 12 in which he gave details of how he had been
following up the transfer with Mr Makunike who eventually told him,
in 2000, that the title deeds were now available. Receipts for the
payment of the purchase price issued by Hove and Mutasa (exhibit(s) 2
and 4) are also not affected by Mr Makunike's forgery. The forgery
of the title deeds, years after the sale, suggests an attempt by the
legal practitioner to silence a purchaser, whose demands for
transfer, he was failing to meet. The Agreement of Sale was signed at
Hove and Mutasa on 5 February 1995. Payments were receipted at Hove
and Mutasa on 6 and 16 February 1995. This fits well into the
sequence of events explained by Osburga Ndlovu.
I
am therefore satisfied that the first defendant's late husband sold
Stand 2384, Highfield to the plaintiff.
The
declaratory order, and ancillary orders sought, will therefore be
granted except that seeking the upliftment of the caveats. The
plaintiff did not cite the Cold Storage Commission and the other
person in whose favour those caveats were registered. A court cannot
grant orders against a party who has not been cited and given an
opportunity to defend himself.
The
confirmation of the sale by the Master of the High Court is not
necessary as the sale took place during the seller and purchaser's
lifetime.
It
is therefore ordered as follows:-
1.
It is declared that the Agreement of Sale (Annexure B) which was
entered into between the late Fidelis Josiah Chiwedza and the late
Paradzayi George Gombarume be and is hereby held to be valid; and
2.
The Estate late Fidelis Josiah Chiwedza be and is hereby declared to
be the lawful purchaser of the late Paradzayi George Gombarume's
rights, interest and title in Stand 2384, Highfield Township, Harare;
and
3.
The fifth defendant shall accept and approve documents signed by the
second defendant, upon the upliftment of the caveats registered
against the property, transferring the property from the estate late
Paradzayi George Gombarume to the estate late Fidelis Josiah
Chiwedza, failing which the fifth defendant shall accept and approve
the documents signed by the seventh defendant or his lawful deputy
transferring the property from the estate late Paradzayi George
Gombarume to the estate late Fidelis Josiah Chiwedza; and
4.
The costs of suit shall be paid by the first and second defendants,
jointly and severally, the one paying the other to be absolved.
