GARWE
JA
[1] After
a full trial, the High Court made an order for the eviction of the
appellant, and
all
claiming through her, from premises known as 8916 Hwiramiti Street,
Chesvingo
Suburb, Masvingo and for payment of arrear rentals in the sum of
$14,000
as well as holding over damages in the sum of $6,67 per day. The
court
further
ordered payment of interest at the prescribed rate together with
costs of suit.
This
appeal is against that order.
FACTUAL
BACKGROUND
[2] The
first respondent, Molly Chiuraise, got married to one Walter Style
Matumba
(“Matumba”)
at Masvingo on 6 August 1993. Having been on the housing waiting
list
of the second respondent since 1996, Matumba and the Ministry of
Local
Government
and National Housing entered into an agreement of sale in respect of
Stand
Number 8916, Chesvingo Township, Masvingo (“the property”). In
terms of
the
agreement, payment of the balance of the purchase price was to be
effected in
monthly
instalments and the purchaser was to take occupation of the property
from
1
June 1999. It was also a condition of the agreement that until such
time as title
to
the property was transferred to the purchaser, he was not, without
the prior
written
consent of the Minister, to let the property to any other person, or
part with
possession
or otherwise cede or hypothecate any rights thereunder.
[3] Between
2001 and 2002, the appellant and her husband Simbarashe Shuro
(“Shuro”)
took occupation of the property. The basis of such occupation was
bitterly
disputed between the parties in the court a
quo.
The appellant alleged that
her
husband, Shuro had purchased the property from Matumba in December
2001
and
that, as a consequence, her family had taken occupation in March
2002. The
first
respondent's version, on the other hand, was that the appellant and
her family
were
paying rentals in respect of their occupation of the property.
[4] As
fate would have it, Matumba became ill and passed on in January 2005
at his
rural
home in Bikita. As surviving spouse, the first respondent registered
the estate
of
her late husband and was given authority to administer the estate in
January 2006.
She
proceeded to administer the estate and, as executrix, caused notices
to be
flighted
in the Herald and other major papers calling upon all creditors and
other
interested
persons to lodge any claims with her. There having been no claims
lodged,
she proceeded to wind up the estate and, in particular, awarded the
property
in
question to herself as surviving spouse. The final distribution
account was
subsequently
accepted by the Master of the High Court in November 2006. On
8
December 2006, pursuant to the winding up of the estate, the second
respondent
formerly
ceded the property in question to her, which cession she duly
accepted.
[5] Thereafter
the first respondent's legal practitioners wrote a letter to the
appellant's
husband,
Shuro, demanding that he vacates the property. In turn, Shuro
approached
the
Masvingo Legal Projects Centre who wrote a letter to the Master of
the High
Court
on 12 April 2007 submitting a claim against the estate. The response
by the
Master
was that the distribution had since been completed and that Shuro was
free
to
approach the courts for relief. Nothing of significance occurred
until
31
May 2009, when Shuro also passed on.
PROCEEDINGS
BEFORE THE HIGH COURT
[6] In
December 2014 the first respondent instituted an action in the High
Court for the
eviction
of the appellant and all who claimed title through her. She also
sought an
order
for the payment of arrear rentals, holding over damages and interest
at the
prescribed
rate on the amounts claimed. The basis of her claim was that upon the
rights,
title and interest in the property being ceded to her by the second
respondent,
she
had become the owner thereof. Since the appellant had stopped paying
rentals
and
owing to the fact that she now wanted to use the premises for her own
purposes,
she
now demanded the eviction of the appellant as well as the payment of
arrear
rentals
and holding over damages.
[7] The
appellant, as defendant, entered an appearance to defend. She
averred that her
late
husband, Shuro, had purchased the property from the first
respondent's husband, Matumba. The purchase price of $600,000 had
been paid in full after which Shuro and his family had consequently
been allowed to take occupation of the property in question. She
attached a copy of what she alleged was the written agreement of sale
between the two. She averred that, following the demise of her
husband, she had become the owner of the property. She accordingly
prayed for an order dismissing the claim and in her counterclaim
prayed for an order compelling the first and second respondents to
facilitate the cession of the property into her name and for the
first respondent to pay her costs.
[8] During
the trial proceedings, the first respondent and her niece gave
evidence whilst
the
appellant and one Jakata, who described himself as an unregistered
property
consultant,
gave evidence for the defence. It was Jakata's evidence that he was
present
when the appellant's husband, Shuro, paid the deposit of $550,000
by bank
cheque
and the balance in cash.
[9] During
submissions before the court a
quo
various issues were raised and, in
particular,
whether the remedy of the actio
rei vindicatio
was available to the first
respondent.
The real issue that fell for determination, in my view, was whether
the
property
in question was correctly included as part of the deceased estate of
the late
Matumba.
In order for the court a
quo
to answer this question, the need arose to
determine
the claim by the appellant that the property in question had been
purchased
by her late husband and that therefore it ought not to have formed
part
of
the estate of the late Matumba but rather that of her late husband.
[10] In
its analysis of the evidence adduced before it, the court a
quo
came to the
conclusion
that the version given by the first respondent was the more probable.
It
found
that the appellant's version was riddled by inconsistencies and
that the
authenticity
of the written agreement allegedly entered into between Matumba and
Shuro
was questionable. The court further found that the appellant had not
been
able
to substantiate how the deposit of $550,000 had been paid and had not
produced
any proof in regard thereto. Further, having seen water bills in
respect of
the
property in the name of the first respondent, the appellant and her
late husband
had
done nothing to regularise the situation. The court was also of the
view that,
not
having been appointed as executrix dative or heir to the estate of
the late Shuro,
her
locus
standi
to defend this action was doubtful.
[11]
As regards the evidence of Jakata, the court found that his evidence
was unreliable
and
that he had been discredited. Jakata had been unable to explain how
the appellant and her husband had approached him at his office when
it was common
cause
that the property had been advertised by Messrs Mugabe and Partners,
Legal
Practitioners.
He had admitted he had no mandate from anyone to sell the property.
He
could not remember giving the late Shuro a receipt for the cash he
paid to him
for
onward transmission to Mugabe and Partners. He did not himself get a
receipt
for
the money he had transmitted to Mugabe and Partners. He further
claimed, contrary to a clause in the agreement which recorded that a
cash deposit had been
paid
on signature, that the deposit had been paid by bank cheque. The
appellant's
version
during the trial was that it was a bank transfer. The court found
Jakata to
be
evasive and expressed the view that he gave the unfortunate
impression that he
was
a hired witness. He could not say who had paid him for all his
troubles or how
much
he had been paid. All the evidence considered, the court preferred
the
evidence
of the first respondent and rejected that of the appellant.
[12] On
the probabilities, the court found it highly improbable that, in the
written
agreement
of sale he allegedly entered into with Matumba, Shuro would have
used
the address of the property in question as his own when he was still
to buy the
same.
It found that since the late Matumba's bank statements were being
delivered
at
the property in question, it was not surprising that the appellant
and her husband
had
been able to have access to them and had thereafter fraudulently
incorporated
some
of Matumba's personal details into the agreement in question.
[13] The
court also found that in any event, Matumba's estate had been wound
up in
terms
of the law and the property properly ceded to the first respondent
who had
then
legally acquired the property. The appellant could not have relied on
the
agreement
allegedly signed by her late husband as she had not been appointed
executrix
dative. Nor could she, for the same reason, seek an order directing
that
the
property be transferred to her by the second respondent.
[14] After
considering all the above-mentioned features, the court a
quo
made a finding
in
favour of the first respondent and, consequently, issued an order for
the eviction
of
the appellant and for her to pay arrear rentals as well as holding
over damages.
Hence
the present appeal.
PROCEEDINGS
BEFORE THIS COURT
[15] In
her notice of appeal, the appellant listed nine grounds upon which
she sought to
attack
the decision of the court a
quo.
Shortly thereafter, she filed an additional
three
grounds of appeal. At the hearing of this matter, she however
abandoned
some
of the grounds, in particular grounds 7,8 and 9.
[16] Perusal
of the grounds of appeal shows that what is impugned is the finding
by the
court
a
quo
that no sale agreement had been concluded between the first
respondent's late husband and the appellant's husband and that,
consequently, the
appellant
and her late husband had taken occupation of the property as tenants
and
not as purchasers. What is also impugned by the appellant was the
decision of
the
court a
quo
awarding arrear rentals and holding over damages in a situation
where, so the appellant contended, the first respondent had not
proved the quantum of such arrear rentals or holding over damages.
[17] The
various grounds of appeal are repetitious. The same issues are
regurgitated
through
the use of different terminology. This is not acceptable. Various
decisions
of
this Court have stressed the need for grounds of appeal to be
formulated with
clarity
and precision. The same decisions have stressed the need to avoid
unnecessary
repetition and prolixity. In my view grounds 2,3,4 and 5 correctly
reflect
the basis upon which the judgment of the court a
quo
is being attacked.
These
grounds are valid. Consequently the remaining grounds stand to be
struck
off.
It is so ordered.
[18] A
further issue that has arisen is the propriety of the Prayer. Ms
Banda,
for
the
appellant,
moved
for the amendment of the prayer to include an order for the
dismissal,
in the court a
quo,
of the plaintiff's claim and for the grant of the
defendant's
counterclaim. Although the request to amend was opposed, this Court
was
satisfied that the prayer was not fatally defective and consequently
granted the
amendment.
APPELLANT'S
SUBMISSIONS ON APPEAL
[19] The
appellant's submissions before this Court are as follows. The first
respondent
is
neither the owner nor lessor of the property. Consequently the actio
rei vindicatio
is
not available to her. She cannot, therefore, seek the eviction of
the appellant.
Secondly,
that although the quantum
of rentals had been put in issue, the court a
quo
had failed to make a determination on the matter. In the absence of
evidence
proving
the monthly rentals payable in respect of the property, the court a
quo
erred
in
awarding arrear rentals and holding over damages based on a monthly
rental of
$200.
The court therefore wrongly exercised its discretion and its decision
should
therefore
be set aside. Lastly she submitted that the court a
quo
erred in finding
that
the appellant was a tenant of the first respondent in the absence of
any evidence
pointing
towards the existence of a lease agreement between the parties and in
the
face
of the written agreement of sale which confirmed the sale of the
property in
question
to the late Shuro.
THE
FIRST RESPONDENT'S SUBMISSIONS ON APPEAL
[20] In
her submissions, the first respondent argues that she acquired real
rights in the
property
and is therefore entitled to vindicate the property. The property,
initially
ceded
to her late husband, had subsequently been ceded to her. She further
submitted
that the many findings of fact made by the court a
quo,
in particular,
that
no sale agreement had been concluded, were made after a careful
analysis of
all
the evidence. She further submitted that rental in the sum of $200
per month
had
been proved.
ISSUES
FOR DETERMINATION
[21]
It seems to me, on a consideration of the submissions made by the
parties to this
appeal,
that the real issue between the parties is whether the court a
quo
correctly
found
that no agreement of sale had been concluded between the late Matumba
and
the
late Shuro. The disposition of this issue would in turn dispose of
the question
whether
the appellant and her late husband were tenants, in which event they
would
have
been obliged to pay rentals, or whether they had validly purchased
the
property,
in which event the prayer for her eviction and payment of rentals
would
fall
away. In the event that this Court finds in favour of the appellant,
two other
issues
would arise, namely whether the agreement of sale would have been, in
any
event,
valid and whether the appellant, who is not executrix dative, is
entitled to
sue
for specific performance.
WHETHER
THE PROPERTY WAS PURCHASED BY THE LATE SHURO
[22] It
is clear, on a perusal of the agreement of sale entered into by and
between the
Minister
of Local Government and National Housing and the late Matumba, that
the
first respondent was not, in fact, a co-purchaser of the property in
question. Her
name
and particulars appear on the agreement merely on account of her
having been
a
spouse. She did not sign the agreement as a co-purchaser but as a
witness.
[23] In
these circumstances, the late Matumba could have, with the consent of
the seller,
namely
the Minister of Local Government and National Housing, or thereafter
the
second
respondent, validly sold the property to a third party without the
need for
the
consent of the first respondent. This position is now well
established in our
law.
23.1 In
Muzanenhamo
and Anor v Katanga and Others
1991 (1) ZLR 182, 186
E
(SC) McNALLY JA stated as follows:
“So
as a matter of broad principle, I am of the opinion that the rights
of the
husband
and wife must be regarded as purely personal inter
se and
that
these
rights do not affect the rights of third parties…”
23.2 In
Maponga
v Maponga and Others 2004
(1) ZLR 63, 68 D – E MAKARAU J (as she then was) also remarked: -
“It
would appear to me in summary that the status of a wife does not
grant
her
much in terms of rights to the immovable property that belongs to her
husband.
She only has limited rights to the matrimonial home that she and
her
husband set up. Those rights are personal against the husband and can
be
defeated by the husband providing her with alternative suitable
accommodation
or the means to acquire one. The husband can literally sell
the
roof from above her head if he does so to a third party who has no
notice
of
the wife's claims...”
23.3 Attention
is also drawn to the remarks of BHUNU J in Joseph
Mhuruyengwe
v Margaret Vhiriri
HH 10/2005.
[24]
As already indicated, the main bone of contention between the
parties was whether the property in question was the subject of an
agreement of sale between the late Matumba and the late Shuro. The
court a
quo
found the appellant and her witnesses not worthy of being believed.
It found the evidence of Jakata, the so-called property consultant,
to have been utterly discredited. It concluded that the probabilities
did not support a finding that there had been a valid written
agreement and that the written agreement produced during the trial
must have been fraudulently prepared.
[25] It
is an established tenet of our law that an appellate court should be
slow in interfering with the factual findings made by a lower court
and that this should happen only where it is clear that the decision
of the lower court is irrational, in the sense that no sensible
court, seized with the same facts, could have reached such a
conclusion. More particularly on the issue of credibility, a trial
court enjoys an advantage that an appellate court would never have.
In short, an appellate court can only interfere with the findings of
a lower tribunal where it is convinced that the findings by the lower
court are not supported by the evidence or are otherwise irrational –
see Hama
v National Railways of Zimbabwe
1996 (1) ZLR 664 (S).
[26] In
this case, the authenticity of the written agreement allegedly
entered into by the parties' late husbands was in issue. No
handwriting expert was called. The onus
was on the appellant, as defendant, to prove that the agreement was
genuine. She did not discharge that onus. The court a
quo had
no choice but to make its own observations based on some of the
characteristics in the letters. Based on its observations, it found
that the authenticity of the agreement was in doubt.
[27] The
court a
quo
did not end there. It also looked at the probabilities and found that
they did not favour the appellant. The appellant did not have a
single document to show how the purchase price had been paid.
Initially she claimed that the deposit had been paid by bank cheque.
The copy of that bank cheque was not produced. She then changed her
story and stated it was in fact a bank transfer. She was not able to
produce proof of that either. The court also noted a number of
unsatisfactory features in her evidence. Having allegedly purchased
the house in December 2001, no effort was made either by her or her
late husband to enforce the agreement. It is common cause that her
husband only died on 21 May 2009 – eight years later. She and her
husband had admitted seeing water bills for the property in the name
of the first respondent. Faced with such a situation, they did
nothing. In December 2006, a letter written by Mpame &
Associates, demanding the eviction of the appellant and her late
husband was served on them. The appellant and her late husband
approached the Masvingo Legal Projects Centre who wrote to the Master
indicating that the appellant intended to lodge a claim against the
deceased estate of the late Matumba. They did nothing further.
Moreover, the written agreement curiously reflected the late Shuro's
address as that of the property in question.
[28] The
court found the evidence of Jakata to be highly improbable. Jakata
had no written mandate from anyone to sell the house. How he handled
the money that he says was given to him by the appellant and her late
husband raised more questions than answers. Jakata did not provide a
receipt for the money he says he received from the appellant nor was
he provided with one when he eventually passed on the money to Messrs
Mugabe and Partners, the purchaser's legal practitioners. He could
not remember who paid him for the role he played in facilitating the
sale or how much he was paid. The court a
quo
found him to be evasive and described him as a “hired” witness.
[29]
The above observations by the court a
quo
were supported by the evidence. Consequently there is no basis upon
which this court can possibly interfere with those findings. The
probabilities also do not favour the appellant's version of the
events.
WHETHER
THE FIRST RESPONDENT HAD LOCUS STANDI TO SUE FOR
EVICTION
[30] Whether
the first respondent had the locus
standi
to sue for the eviction of the appellant remains a live issue between
the parties. It is common cause that the late Matumba had entered
into an agreement of sale with the Minister in respect of the
property in question. The purchase price was the sum of $98401,
payable by a deposit of $17700 and the balance of $80341 by monthly
instalments of $1043, payable on the first day of each month. In
terms of the agreement, Matumba was to get title upon payment of the
principal amount and any other charges payable in terms of the
agreement. It is also common cause that Matumba and the first
respondent took occupation on 1st
June 1993. After the death of Matumba, his rights and interest in
the property were then ceded to the first respondent by the City
Council, the second respondent.
[31] In
my view, the late Matumba and, subsequently, the first respondent,
had the standing to evict the appellant and all those claiming
through her. Whilst it is clear that they did not have title to the
property, they were the registered purchasers of the property. They
surely had the right to seek the eviction of the appellant.
[32] In
Pedzisa
v Chikonyora
1992 (2) ZLR 445 (S), the respondent had entered into an agreement to
purchase a property on a lease to buy basis from the owner/lessor of
the property. In terms of the agreement, title to the property would
only pass on fulfilment of certain conditions, one of which was that
the lesee-to buy was not to sub-let or assign the property without
the written consent of the owner-lessor. The purchaser, who was
living elsewhere, did not move into the house but instead sublet the
property to the appellant and further assigned the property to him by
selling his right of occupation and eventual right to take title. The
consent of the owner was not sought before the respondent entered
into a sublease with the appellant. At a later stage, the respondent
sought the eviction of the respondent from the premises. The main
issue on appeal was whether the respondent, as lessee-to-buy, had
locus
standi
to sue for the eviction of the appellant without having obtained a
cession of action from the owner-lessor.
[33] This
Court held that although the terms of a lease-to-buy agreement were
such that the respondent initially acquired only a personal right
exercisable against the owner-lessor and not against third parties
without recourse to the owner-lessor, such a personal right entitled
him to delivery of vacant possession of the property. But once he had
been given vacant possession of the property and had assumed physical
control over it, he then acquired a real right, entitling him to
evict anyone who wrongfully occupied the property such as a
trespasser. Although the respondent had not actually moved into the
house, he had acquired control over the unoccupied property, and thus
acquired a real right over the property. Accordingly the respondent
had locus
standi
to sue for the eviction of the appellant, even though he had not
obtained a cession of action from the registered owner. The court
further held that the fact that the respondent had entered into a
sublease in breach of a clause in the lease-to-buy agreement
requiring the prior consent of the owner before any sublease or
assignment was effected did not preclude the respondent from suing
for the eviction of the respondent.
[34] The
facts in the above case are not materially different from those in
the present case. The agreement that Matumba entered into was akin
to a lease to buy agreement. Title was only to pass to Matumba after
certain conditions were met, including the condition that there was
to be no sub-lease and that title would only pass upon full payment
of the purchase price and other charges in terms of the agreement. I
am satisfied, on the basis of the above authority, that the late
Matumba and thereafter the first respondent, to whom the property was
subsequently ceded, had the requisite standing to sue for the
eviction of the first respondent.
IN
ANY EVENT, AGREEMENT BETWEEN MATUMBA AND SHURO, IF PROVED, WOULD HAVE
BEEN INVALID
[35] Having
concluded that the finding of the court a
quo
that there was no sale agreement between the late Matumba and the
late Shuro was a correct one, this should really be the end of the
matter. However, for the sake of completeness, I also consider
whether the alleged agreement would, in any event, have been valid.
I have no doubt in my mind that the agreement would have been null
and void.
[36] In
Chenga
v Chikadaya and Others
SC 7/13, this Court was called upon to deal with the validity of an
agreement similar to the one that formed the subject of the dispute
in this matter. At page 8-9 of the judgment, this Court stated:
“The
agreement of sale between the appellant and the second respondent was
null
and void
for lack of authority. The second respondent was not authorised by
the owner of the property to dispose of it on his behalf. He
purported to dispose of rights in the property which rights he did
not have.”
[37] Clearly,
therefore, in the absence of the consent of the second respondent,
the late Shuro could not have been entitled to demand cession of the
property into his name. The same consideration applies to the
appellant, his surviving spouse.
FURTHER,
AND IN ANY EVENT, THE APPELLANT HAD NO LOCUS STANDI
TO
DEMAND THE CESSION OF THE PROPERTY INTO HER NAME
[38] I
am aware that, in terms of section 3A of the Deceased Estates
Succession Act [Chapter 6:02], a surviving spouse is entitled to
receive, from the free residue of the estate, the house in which the
spouses lived immediately before the death and such house formed part
of the deceased's person's estate. In this case however, the
estate of the late Shuro was never registered. There appears to have
been an attempt to register it but the process of registration and
appointment of an executor was not completed. In these circumstances,
therefore, the appellant cannot seek, as she does in her prayer, an
order compelling the first respondent and the Masvingo City Council
to cede the property into her name.
ARREAR
RENTALS AND HOLDING OVER DAMAGES
[39] In
her declaration, the first respondent prayed for judgment in the sum
of $14,000 representing arrear rentals and $6,67 in holding over
damages until the date of the eviction of the appellant. The two
claims were predicated on a monthly rent for the property in the sum
of $200,00. It is clear that the sum of $200 is what the first
respondent considered appropriate rental after the adoption of the
multiple currency in 2009. At a pre-trial conference, the parties
agreed that one of the issues to be determined at the trial was the
quantum
of the arrear rentals and holding over damages. During the trial, no
evidence on what would have constituted fair rental was given by
either party. All that the first respondent said was that she had
taken into account inflation. At the end of the trial therefore the
evidence did not establish that fair rental for the property would
have been $200 per month. How the rentals paid in Zimbabwe dollars
were converted to US$200 per month after 2009 remains unknown.
[40] I
agree with the appellant that arrear rentals and holding over damages
were not proved. Whilst the first respondent may have been entitled
to some rental, such figure was not proved. The appellant is
therefore entitled to absolution from the instance in respect of
these two claims.
COSTS
[41] I
am of the view that since the first respondent has largely been
successful, a costs order in her favour should ensue.
DISPOSITION
[42] In
the result, the following order is made:
[1] The
appeal succeeds to the extent that paragraphs 2,3 and 4 of the order
of
the
court a
quo
are set aside and in their place the following substituted:
“In
respect of the claim for arrear rentals and holding over damages,
absolution
from the instance is entered.”
[2] The
appellant is to pay the costs of the appeal.
HLATSHWAYO,
JA I
agree
BHUNU,
JA I
agree
J.
Mambara & Partners
– appellant's legal practitioners
Mupanga,
Bhatasara & Partners
– respondents' legal practitioners
