MAWADZE J: This is an opposed
application in which the third defendant took out an exception to the
plaintiff's claim in terms of Order 21 r 137(1)(b) of the High Court Rules 1971
(hereinafter the rules). The application is opposed by the plaintiff only. Mr Deme for the first defendant declined to
make submissions in the matter.
I
have deliberately cited the parties as they appear in the many action for
clarity purposes rather than to cite the third defendant as an applicant in
this matter.
It
is proper for me to give the full background history of this matter as
discerned from the plaintiff's declaration in order to put the third
defendant's exception into context.
The
plaintiff issued out summons out of the court on 11 May 2011 claiming the
following jointly and severally against all the defendants:
"13.1 The reference case number HC 576/99; HC
18029/99 and HC 1276/04 be and are hereby consolidated.
13.2 The reference case numbers HC 576/99;
18029/99 and 1276/04 be and are hereby reconciled as follows:
(a) That the order granted in HC 18029/99 be
and is hereby cancelled since it was granted erroneously in that Noah
(Musaruro) first defendant) was given the sole rights of the property when in
fact he was only appointed Executor and not heir since he is not direct issue
of the late Vasco Musaruro (sic).
(b) That the order granted in HC 1276/04 be
and is hereby cancelled since it was also granted erroneously in that it did
not cite all the interested parties he knew since court orders was filed with
fifth defendant only (sic).
(c) That the order granted in HC 576/99 be
and is hereby upheld and revived.
13.3(a) That the rights, interests and title in
stand 7298/95 shall be
ceded into the plaintiff's
name Basimon Tapfumaneyi.
(b)
The cession effected in favour of the third defendant by the fifth
defendant be cancelled.
13.4 Ejectment of the third defendant from stand
7798-95th Crescent Glen View 8 Harare and all those claiming
occupation through her or through either first and second defendants.
13.5 Costs of suit" (sic).
I have no doubt
in my view that the plaintiff's prayer is not drafted in a clear and astute
manner expected of a legal practitioner. The property in issue is clumsly
identified in different manner in the prayer and the parties not precisely
cited. The language used is not succinct. It is however clear that the
plaintiff is seeking firstly the consolidation of three cases HC 576/99, HC
18029/99 and 1276/04, secondly the reconciliation of the above cited cases by cancellation
of the order granted in case number HC 18029/99 and HC 1276/04 which the
plaintiff contends were issued in error, thirdly that the order granted in
plaintiff's favour in case No. HC 576/99 be upheld as the valid order and be
effected, and that the rights, interest and title in stand No. 7298/95 Crescent
Glen View 8 be ceded to the plaintiff and the cession of the same rights in
favour of the third defendant by fifth defendant be cancelled and lastly that
the third defendant be evicted from the said property.
The dispute in
this matter is centred on the property, or house in Glen View Harare known as
No 7298/95 Crescent Glen View Harare. This property has allegedly been sold to
the plaintiff, the second and third defendants respectively by the fourth
defendant at various times. The first defendant who has entered a plea in this matter claims to be the
executor of the estate of late Vasco Masaruro and legitimate son of late
Vasco Musaruro. The fifth and sixth defendants are simply cited in their
official capacities.
The facts
alleged in the declaration though clumsly drafted give rise to the following
scenario:
On 9 September
1998 the plaintiff entered into an agreement of sale with the fourth defendant
(Tsaurayi Musaruro) in respect of the property No. 7298/95 Crescent Glen View 8
Harare (hereinafter Glen View House) measuring 300m2. The agreement
of sale is attached as Annexture 'B' to the plaintiff's declaration and was
drawn up by RESULT REAL ESTATES (PVT) LTD and can be described as a standard
agreement of sale of immovable property. I find no need to deal in any manner
with the provisions of the agreement of sale save to state that the agreement
of sale is signed by the plaintiff, the fourth defendant, witnesses and a
representative of the estate agent mentioned. The purchase price of the Glen
View house is given as Zimbabwe $90 000-00. The plaintiff claims to have paid
the purchase price in full. The problem seems to have started when the plaintiff
sought to be given vacant possession of the Glen View house by the fourth
defendant in terms of the agreement of sale. The plaintiff alleges that the
fourth defendant became evasive and therefore could not cede title, rights and
interest in this property to the plaintiff. This compelled the plaintiff to
institute litigation in this court in case No. HC 5576/99 seeking an order to
compel the fourth defendant to abide by the agreement of sale. In that matter
the fourth defendant and the fifth defendant are cited as respondents. On 9
June 1999 MUBAKO J who dealt with the matter granted the following order:-
"IT IS ORDERED:-
1.
That the first respondent (fourth
defendant in casu) cede his rights,
title and interest in stand no 7298-95th Crescent Glen View 8 Harare
to the applicant (plaintiff in casu)
by signing a Deed of cession at the
office of the second respondent (fifth defendant in casu) at Remembrance Drive, Mbare Harare within seven (7) days
of service of this order upon him failing which the Deputy Sheriff of this
Honourable Court be and is hereby empowered to sign such Deed of Cession on
behalf of the first respondent.
2.
That the second respondent be and is
hereby ordered to consent to cession by the first respondent of his rights,
title and interest in stand no. 7298-95th Crescent, Glen View 8
Harare to the applicant.
3.
That the first respondent pays the costs
of suit".
The
relevant order granted by MUBAKO J directing the fourth defendant
to cede his rights, title and
interest in the Glen View property and for the fifth defendant to facilitate
that cession is attached as "Annexture C" to the plaintiff declaration.
The
plaintiff as per the order by MUBAKO J said when he approached the fifth defendant
to facilitate the cession he was advised to engage the Deputy Sheriff
presumably on account of the fourth defendant's evasiveness. The plaintiff said
this took some time as he had to raise enough funds to engage the Deputy
Sheriff. Meanwhile other developments were unfolding in the matter.
On
30 September 1999 the first defendant was duly appointed through letters of
Administration DR H1060/98 as Executor Dative in the estate of late Vasco
Musaruro and the first defendant was further authorised by the Master of the
High Court to transfer the Glen View house from the deceased's name to the heir
(who is not named) This is the same property the plaintiff had purportedly
bought a year before in 1998.
The
drama in this matter continued to unfold. The plaintiff said in 1999 one
Brighton Muzanenhamo instituted proceedings by way of a court application
against the plaintiff claiming that he, Brighton Muzanenhamo had bought the
same Glen View house form the fourth defendant. The plaintiff however said this
court application in HC 9667/99 was withdrawn hence it is not part of the
reference cases now cited by the plaintiff. This however did not seem to be the
end of the plaintiff's woes.
On
8 December 1999 the first defendant Noah Musaruro the executor dative (as per
Annexture 'A' attached to the plaintiff's declaration) instituted a court
application in case No HC 18028/99 in which the plaintiff, the fourth
defendant, the fifty defendant, the sixth defendant and one Brighton
Muzanenhamo were cited as the respondents. The nature of the order sought in
the court application HC 18028/99 is not stated by the plaintiff. All what is
attached to the plaintiff's declaration as Annexture 'E' is a notice of
withdrawal of the case No. HC 18028/99 in which the applicant therein Noah
Musaruro (first defendant) withdrew the court application with the third
respondent herein (the plaintiff) paying the costs. This was on 17 January
2007. The reasons for the withdrawal of this court application HC 18028/99 are
not clear and it would appear the defendant Noah Musaruro had again instituted
another court application in HC 14360/99 in February 2000 against the same
respondents as in HC 18028/99 later withdrawn. See Annexture 'D' to the
plaintiff's declaration.
It
would appear that the appointment of the first defendant Noah Musaruro as the
Executor Dative of the Estate of the late Vasco Musaruro nullified the
appointment of the fourth defendant in the same capacity or as the heir to the
estate.
According
to the plaintiff this is the reason why the court application HC 18028/99 was
withdrawn. The plaintiff believed the dispute could be resolved by engaging the
first defendant who was now the Executor Dative of the Estate.
The
plaintiff said when he sought to have the property ceded to him by the fifth
defendant the fifth defendant again refused on the basis that the fifth
defendant had been served with two court orders from the same court which
orders are apparently in conflict. It is not clear which the two orders are but
the order filed of record is in case No. HC 5576/99 by MUBAKO J and HC No.
18028/99 was only withdrawn in January 2007. I am not privy as to the order
sought in HC No. 14360/99 nor the outcome thereof of that application. Suffice
to say that the plaintiff had sought to have the property ceded to him for the
second time on 29 September 2000 and the fifth respondent's reply to that
request is captured in a letter Annexture 'F' dated 29 September 2000 written
to the plaintiff's lawyers which states as follows:-
"RE:
STAND 7298-95TH CRESECENT GLEN VIEW
I
acknowledge receipt of your letter where you represent Mr Basimon Tapfumaneyi.
Please
be advised that these offices will not do any cession or transfer until the two
court orders are reconciled".
As
already stated the two court orders to be reconciled are not cited in
that letter. The bottom line
however is that as per Annexture 'F' the fifth defendant declined to cede or
transfer the Glen View house to the plaintiff on account of two contradictory court orders in existence
in 2000.
The
plaintiff was dissatisfied by the response by the fifth defendant as per
Annexture 'F' and proceeded to institute a court application in HC 1224/07 to
compel the fifth defendant to cede the property to him. It is not clear why
this was necessary when in fact a similar order had been granted by MUBAKO J in
HC 5576/99. My assumption is that this may have been on account of the
involvement of the first defendant in this matter who was no part to the order
granted by MUBAKO J. The plaintiff said
he did not succeed in HC 1224/07 and was advised to have the two existing court
orders reconciled.
It
would appear that when all this was happening the fourth defendant was still in
the picture. According to the plaintiff the fourth defendant in the midst of
this confusion proceeded to sell the same Glen View house to the second
defendant Garikayi Muchineripi Mudzudzu. Apparently the second defendant could
not take transfer of the property and had to also institute litigation to
compel the fourth defendant to transfer the Glen View house into the second
defendant's name. The second defendant instituted a court application HC
1276/04 in which only the fourth defendant and the fifth defendants were cited
as respondents. On 7 April 2004 HLATSHWAYO J granted the following court order
in HC 1276/04:-
"IT
IS ORDERED THAT:-
1. The
first defendant (fourth defendant in casu)
is hereby ordered to effect transfer of House No 7298-95th Crescent
Glen View 8 Harare into the name of the plaintiff (second defendant in casu) upon the service of this order.
2. The
Deputy Sheriff be and is hereby advised to sign all necessary papers to effect
transfer of the property and evict the first defendant (fourth defendant in casu) and all enjoying occupation at
No. 7298-95th Crescent Glen View Harare with immediate effect.
3. The
second respondent (fifth defendant in
casu) is hereby ordered to record this transaction of change of ownership.
4. The
first defendant to pay cost of this application".
It
would appear that on the basis of the order granted by
HLATSHWAYO J on 7 April 2004 the
second defendant managed to enforce that order. The drama in the matter
continued to unfold.
The
second defendant who now had presumably assumed ownership of the Glen View
hence proceeded to sell the same house to the third defendant Jane Chinyerere
Matiyenga and cession was effected into her name contrary to the earlier protestations
by the fifth defendant in the letter dated 29 April 2000. Currently therefore
it is the third defendant who has title, rights and interest in the Glen View
house and is actually staying at the house. It is therefore on the basis of this background that the plaintiff issued
out summons out of this court and cited all the six defendants herein on 11 May
2011.
It
would appear from the record that only the first and the third defendants have
entered appearance to defend in terms of the rules and that the first defendant
has entered a plea to the claim.
I
now turn to the facts giving rise to the exception raised by the third
defendant.
The
third defendant on 17 May 2011 entered on appearance to defend. On 15 June 2011
the plaintiff filed a notice to plead and intention to bar as the third
defendant had not entered a plea. The third defendant proceeded in terms of
order 21 r 140 of the Rules by writing a letter to the plaintiff's legal
practitioners raising an exception to the effect that the summons served on the
third defendant do not disclose the exact
grounds upon which the cause of action is based and that the summons
falls foul of Order 3 r 11(c) of the Rules which provides that the summons
shall contain "a true and concise statements of the nature, extent and grounds
of cause of action and the relief or remedies sought in the action". The third
defendant asked for this anomaly to be
rectified within 24 hours to enable the third defendant to plead failure of
which the third defendant would file an exception.
On
23 June 2011 the plaintiff's legal practitioners replied the third defendant
and were unimpressed by the concerns raised by the third defendant. The
plaintiff in response stated that the claim was clear as it sought
consolidation and reconciliation of apparently conflicting orders pertaining to
the same property, the Glen View house, which house the third defendant has an
interest moreso as the plaintiff seeks to nullify the transfer of the house to
the third defendant, and the eviction of the third defendant from that house.
This explanation did not find favour with the third defendant and on 27 June
2011 the third defendant took out an exception in terms of Order 21 r 137(1)(b)
of the rules on the following grounds:-
"1. That the plaintiff's summons does not
describe any averment which is necessary to sustain an action against the third
defendant.
2. Whilst the summons is clogged with
averments by the plaintiff, none of the said averments are directed to or
involve the third defendant.
3. The third defendant on that basis is at
pains as to what to she is being required to answer as against the plaintiff's
claim whereof the third defendant pray for the dismissal of the plaintiff's
claim with costs".
I
am not persuaded by the argument raised by the third respondent in filing out
the exception in this matter. The third respondent's contention is that the
plaintiff's summons and declaration fall foul of the Order 3 r 11(c) which
provides as follows:-
"Contents
of summons
Before
issue every summons shall contain -
(a) ...
(b) ....
(c) A
true and concise statement of the nature, extent and grounds of the cause of
action and the relief or remedies sought in the action.
(d) ....."
My
considered view is that facts of this matter as particularised in the
declaration can be summarised as
follows:-
(a) That
the plaintiff bought the Glen View house from the fourth defendant on the basis
of a valid agreement of sale and that this court as per the order granted by
MUBAKO J compelled the fourth defendant to cede the title, rights and interest
in the property to the plaintiff. This order has not been set aside.
(b) That
the fourth defendant has not acted in good faith as he has sold the same
property to the second defendant without complying with the order granted by
MUBAKO J and whilst there was further pending litigation in respect of the same
property.
(c) That
the second defendant proceeded and obtained another court order from this court
in respect of the same property granted by HLATSHWAYO J compelling the fourth
defendant to transfer the title, rights and interests in the property to the
second defendant, which prima facie
contradicts another valid court order by MUBAKO J.
(d) That
the second defendant has now proceeded to sell the same property Glen View
House to the third defendant on the basis of this order granted by HLATSWAYO J
and that the third defendant now has title, rights and interests in the Glen
View house property.
Although
the plaintiff's declaration is drafted in a rather long and
winding manner ( may be on account
of the long and complicated history of
the matter) it is a very clear statement which sets out the nature, extent and
grounds of the cause of action. The plaintiff seeks the reconciliation of the
court orders which are in apparent conflict and a determination of the various
parties' (defendants') rights, interests and title in the property in
issue. The history of the matter is
therefore clear as per the plaintiff's perspective.
It
is not correct that the averments made in the declaration are not directed to
or involving the third defendant. Paragraph 12 of the plaintiff's declaration
is very clear that the property in issue was sold to the third defendant despite
the existence of the court order by MUBAKO J and an undertaking to the contrary
by the fifth defendant as per Annexture 'F'. This averment links the third
defendant to the matter more so as the third defendant is the current
registered owner of the property and is staying at the same property. The
plaintiff, through the history of the matter explains not only the involvement of
the third defendant but the basis of challenging the
rights, interests and title in the
property which have accrued to the third defendant. It is therefore clear that
the averments made by the plaintiff sustain an action against the third
defendant.
The
remedy sought by the plaintiff is clear as he seeks to vindicate his rights in
the property in issue. The plaintiff seeks to reverse the cessation of the
property in issue to the third defendant and the eviction of the third
defendant from the property. It is therefore puzzling that the third defendant
purports not to appreciate the cause of action against the third defendant and
the relief sought against the third defendant. The third defendant is therefore
properly cited in these pleadings as failure to do so would render the
plaintiff's claim meaningless. The third defendant should, and I believe
clearly understands what she is required to answer to. In short the third
defendant has to defend her title, rights and interests in the property in her
possession.
I
am not persuaded by the point taken in argument by Mr Diza that the third defendant is prejudiced if she is ordered to
plead to the plaintiff's claim in terms of order 18 r 116(1). It is therefore
my finding that the cause of action in respect of the third defendant is
sufficiently particularised. The link or the involvement of the third defendant
is sufficiently clear. The relief sought affects the title, rights and interest
of the third defendant in the property in issue. The exception taken out by the
third defendant is therefore unfounded and without basis.
In
the result, I make the following:-
1. The
third defendant's exception is hereby dismissed with costs.
2. The
third defendant is ordered to enter her plea in terms of Order 18 r 119 within
10 days upon the service of the order.
Mushonga
& Associates, plaintiff's legal practitioners
Chibune
& Associates, first defendant's legal practitioners
Musunga & Associates, third defendant's
legal practitioners
