MATANDA-MOYO
J:
The
plaintiff instituted eviction proceedings against the defendant
before this court. He claimed for the eviction of the defendant from
Stand No. 936 Glen Norah Township Harare and holding over damages of
$330.00 per month from the date of summons to date of vacation. The
plaintiff also sought an order for costs on a higher scale.
The
plaintiff claimed that he is the owner of Stand 936 Glen Norah
Township and that the defendant is unlawfully occupying the premises.
The
defendant opposed the claim on the basis that she is lawfully
occupying the property, it being owned by her late father, Bafion
January.
The
defendant claimed that the initial transfer of the property to
Chabuka was done fraudulently and hence any subsequent transfer
should be declared null and void.
She
denied that the plaintiff is entitled to any holding over damages.
She
prayed that the plaintiff's claim be dismissed with costs.
At
the pre-trial conference the issues referred for trial were as
follows;
(a)
Whether or not plaintiff is lawful owner of Stand No. 936 Glen Norah
Township, Harare.
(b)
Whether or not the plaintiff is entitled to holding over damages and
if so the quantum thereof.
The
plaintiff led evidence on his own behalf. His evidence was that he
bought the property from a Mr Felix Katsvamutima Shamuyarira in 2013
for $20,000.00. At the time of purchase the property was in the name
of Bafion January. At City of Harare there were documents indicating
the property had been sold by Bafion January to Felix Katsvamutima.
This
witness was advised that the property had to be transferred from
Bafion January to Felix Katsvamutima before any transfer to him could
be done. Mr Katsvamutima had property ceded to him and thereafter it
was ceded to the plaintiff. The rates and water bills were also
changed to reflect the plaintiff's name.
The
plaintiff insisted that as the owner of the property he was entitled
to vindicate his property from the defendant.
The
plaintiff said he wanted holding over damages in the sum of $330 per
month from date of summons. He testified that the amount was the
average rentals payable by tenants in that area.
Under
cross-examination the plaintiff said Katsvamutima bought the house
from Bafion January in 1991. On being asked why he failed to take
cession of the house for so long this witness said Katsvamutima
informed him that he (Katsvamutima) had lost the documents pertaining
to the property.
He
also mentioned that Bafion January's two children who witnessed the
sale did not appear on the house card kept at council but the
defendant's name appeared on the card.
When
questioned whether he was aware that he bought property acquired
fraudulently, this witness responded that if it were so the defendant
would have made a police report.
This
witness testified that the purchase price was only released to Mr
Katsvamutima after cession had passed.
Felix
Elijah Shamuyarira testified that he bought the property in question
from Bafiona January in 1991. He explained that he grew up using his
mother's surname Chabuka. He later changed his name to his paternal
one Shamuyarira.
He
produced documents to that effect.
When
he purchased the house, he explained that Ellen Manyanga (Bafion
January's ex-wife) and her brothers were in occupation of the
house. They indicated they wanted to buy back the house from him.
Ellen and Bafion January had divorced when the house was sold to
Felix Shamuyarira.
This
witness only changed ownership with the Council on 3 October 2013. He
explained that the delay in transferring property was due to lost
documents. He only recovered the documents in 2012. He admitted that
he sold the property to the plaintiff before changing ownership into
his name. He testified that the sale was above board. Official from
City council and he even visited the house and met with the
defendant, who did not raise any objections when told that the house
had been sold. The defendant even assisted this witness in evicting
her uncles from the property. It was only after such eviction that
the defendant moved into the property.
Under
cross-examination Felix Elijah Shamuyarira denied that he changed his
name in order to steal the house. He insisted he bought the house and
later sold it to the plaintiff who is the current owner of the house.
Susan
Matanhire testified that she was a neighbour to the late Bafion
January. Sometime around 2012 she was told that a letter had been
received from Shamuyarira, who wanted to know the persons residing at
the property. She sent word to the defendant who was then in the
rural areas. The two proceeded to Shamuyarira's offices.
Shamuyarira offered to assist the defendant to evict her uncles who
were residing at the property. Thereafter he indicated the keys were
to be brought to him. This witness testified that after the uncles
were evicted the defendant moved in.
Shamuyarira
was not happy with the move.
This
witness and defendant approached Shamuyarira and requested him to
assist in recovering documents from one Rashiwe. Shamuyarira
retrieved documents. This witness heard from the defendant that the
bills were coming in the name of Chabuka. After two months bills were
in the name of the plaintiff.
Under
cross-examination she admitted she would not know whether property
was sold or not as she was only a neighbour.
Winnie
Musendekwa testified that the defendant updated her on developments
relating to the property. She admitted that the defendant advised her
that (she), the defendant had been called by Shamuyarira to discuss
about the property. The defendant refused to go in the absence of her
older siblings. This witness testified that she advised the defendant
to check with City Council on whether the property was sold. The
defendant advised her that the file could not be located. This
witness said she knew Bafion January divorced his wife and there was
a court order which directed that the house was to be sold and money
generated from the sale was to be shared between the two. However she
testified that Bafion's wife was given money to pay off Bafion.
She
had no knowledge of how the house documents ended up with
Shamuyarira.
Under
cross-examination she admitted she was not aware of the house being
sold. She admitted the estate was not registered.
The
defendant testified that the property in question belongs to her late
parents. In 2012 she was shown document by Shamuyarira that property
was sold to Chabuka in 1991. She first met Shamuyarira at his offices
in response to a letter he had written enquiring on residents at the
property. Shamuyarira was worried about the ballooned City Council
bills. She said it was clear Shamuyarira was not Chabuka. They
discussed and Shamuyarira indicated that he would evict the persons
occupying the premises. He stressed though that the keys were to be
handed to him. Those persons were later evicted and the defendant
moved into the house.
In
January and February 2013 this witness noticed that council bills
were in the name of Chabuka. In March the bills were reflecting the
plaintiff's name.
Under
cross-examination she insisted that Bafion January could not sell the
house without his wife's consent, hence the sale was fraudulent.
She agreed that whilst the signature of Bafion appearing on the
agreement of sale was similar to that on the certificate of occupancy
she still believed the agreement was forged. She admitted her parents
were divorced then. She also admitted that the house was never part
of her father's estate. When her mother passed on the house was
also not registered as part of her mother's estate.
Analysis
of Evidence
From
the evidence led it is common cause that the late Bafion January and
his late wife had divorced – Harare Community Court case No.
1098/90 refers.
According
to that order the house was to be sold with Bafion's late wife
getting two thirds from the proceeds.
The
late Bafion January indeed sold the house to Mr Felix K Chabuka. The
late Bafion instructed his lawyers Gutu and Jakachira to defend any
proceedings in relationship to the sale. The late Bafion wrote a
letter to that effect to his then lawyers on 23 April 1991. The
lawyers had advised the late Ellen Manyanga through a letter dated 10
April 1991 to collect her share of the money amounting to $3,333-33.
On
23 April 1991 the late Bafion was responding to a letter from his
lawyers that his late wife had the intention to buy the late Bafion's
share of the property.
This
then bolsters the plaintiff's version that the said F. K Chabuka
delayed getting transfer in order to allow the late Bafion's wife
to buy back the property.
No
evidence was placed before me by the defendant to prove that the late
Ellen Manyanga bought back the property.
The
defendant suggested that Mr Shamuyarira was not the same F.K Chabuka
appearing on the agreement of sale. She made bold assertions that the
said F. K. Chabuka was deceased. To that end she suggested Mr
Shamuyarira was a fraudster intending on defrauding her of the
property.
Mr
Shamuyarira in rebuttal of such evidence produced his birth
certificate which showed that his birth certificate was initially
registered with the names Felix Katsvamutima Chabuka. The surname was
later altered to Shamuyarira from Chabuka; birth entry HRE6303/68
refers.
I
am of the view that Mr Shamuyarira did manage to show that Felix
Elijah Katsvamutima Chabuka and Felix Elijah Katsvamutima Shamuyarira
is one and the same person.
The
defendant's suggestion that Mr Shamuyarira was not the same Chabuka
who bought the property falls away.
Of
course the mere fact that the agreement was concluded in 1991 and
transfer only taken in 2013, some twenty two years later required
some explanation.
Mr
Shamuyarira explained that initially he could not take title to the
property as the late Bafion's wife had wanted to buy back the
property.
As
I observed above that has been corroborated by letters produced to
that effect from the late Bafion's lawyers. I have no reason to
disbelieve that.
Mr
Shamuyarira also explained that documents were lost as their offices
were burnt and they had to move offices. He stumbled upon the
documents later.
The
agreement of sale was produced before the court.
I
took note that the signature appearing on the agreement resemble that
of the late Bafion January. In any case no plausible evidence was
produced to show that the agreement was forged.
The
suggestion was simply an attempt by the defendant to hold on to a
property she knew was sold.
I
do not therefore agree with the defence by the defendant that the
property belongs to her late parents.
The
evidence before me shows that the defendant's late father sold the
house to F.K. Shamuyarira (then Chabuka). Evidence also show that the
said F.K. Shamuyarira paid for the property in full. The late Ellen
Manyanga's two thirds share of the proceeds was deposited into Gutu
and Jakachira lawyers' trust account.
That
sale was lawful.
The
plaintiff gave his evidence well. His evidence was simple and
straight forward.
He
testified that he bought the property from F. K Shamuyarira. F. K.
Shamuyarira agreed that he sold the property to the plaintiff. Both
parties agreed that the purchase price was paid in full. It is also
common cause that cession was done to the plaintiff. The plaintiff is
the owner of the property.
On
the other had the defendant's witnesses were not very useful. Their
evidence did not deal with the crux of the matter; that is, that the
late Bafion January did not sell the property.
The
defendant's first witness admitted she had no knowledge of whether
the property was sold or not. Equally, the defendant's second
witness's testimony was speculative. She only said if the house was
sold she would have known. She never said she had information that
the house was not sold.
It
also baffles one's mind why the defendant would not have reported
to the police if she had evidence of fraud.
The
defendant's evidence was also fraught with inconsistencies. For
example when she was called by Shamuyarira to his office where she
admitted Shamuyarira was concerned with the ballooned bills from City
Council, she failed to explain why Shamuyarira would want to assist
her and why he would be concerned with the high bill if he was not
the owner. She never alleged she knew Shamuyarira before. She also
failed to explain why she was supposed to surrender the keys to
Shamuyarira.
The
probable conclusion is that the plaintiff's version of events is
the correct one.
Shamuyarira
called her to explain that he had bought the property and needed
vacant possession of the same. The defendant's conduct from 2012 to
date is not consistent with that of a person who believed there was a
fraud.
From
the evidence I am of the view that the facts are that the property
was sold to F. K. Chabuka in 1991 and F. K. Chabuka now F. K.
Shamuyarira sold the property to the plaintiff.
The
Law
The
plaintiff seeks the eviction of the defendant in an action of actio
rei vindicatio. The rei vindicatio is a remedy available to the owner
of a property to reclaim it from whoever is found and from whosoever
is unlawfully holding it. As enunciated by Silberberg and Schoeman in
The Law of Property, 5th ed pp242-243;
“The
principle that owners cannot be deprived of their property against
their will means that an owner is entitled to recover property from
any person who retains possession of it without his or her consent.
This rule was considered in Chetty v Naindoo 1974 (3) SA 13 (A) at
20B where Jansen JA explained that one of the incidents of ownership
is the entitlement to 'exclusive possession of the res, with the
necessary corollary that the owner may claim his property wherever
found, from whosoever is holding it'.
According
to the court it is inherent in the nature of ownership that
possession of the thing should normally be with the owner, and it
follows that no other person may withhold it from the owner unless he
or she is vested with some right enforceable against the owner (for
example, a right of retention or a contractual right…”
It
is therefore trite that a plaintiff who institutes the rei vindicatio
action must allege and prove that;
1.
he/she is the owner of the thing;
2.
that the thing was in possession of the defendant at the time of
instituting the proceedings; and
3.
that the thing is still in existence and easily identifiable.
Once
the plaintiff proves the above the defendant, in order to succeed
must show that;
(a)
the plaintiff is not the owner of the thing;
(b)
the plaintiff is no longer in possession of the thing;
(c)
the thing is no longer in existence; or
(d)
he or she has same legally recognizable right which entitles him or
her to hold on to the property or thing.
See
Grey and Another v A Carridale Investments HC6961/15; Stanbic Finance
Zimbabwe v Chivhunga 1999 (1) ZLR 262 (H).
Applying
the above legal principles to the present matter, I am satisfied that
the plaintiff has proved that he is the owner of the property in
question.
The
cession documents are in the name of the plaintiff. The plaintiff has
shown that the property is in existence and that the defendant is in
possession of the property.
The
defendant has on the other hand failed to show that the plaintiff is
not the owner of the property. She also failed to show any legal
entitlement to continue holding onto the property.
The
defendant has failed to prove the alleged fraud in the purchase of
property.
In
any case even if the plaintiff had proved fraud against Mr
Shamuyarira, the plaintiff was going to succeed on the basis of being
an innocent purchaser. There has been no allegations of bad faith or
knowledge of prior irregularities in the sale of the property nor
fraud, by the plaintiff.
Our
law protects innocent third parties in commercial transactions. See
Manzombe v Masuku and Others HB134/15 and Mpofu v Mpofu HB129/15.
However,
no proof of holding over damages was produced and that part of the
claim fails.
In
the result, I order as follows;
1.
That the defendant and all those who are claiming occupation through
her vacate Stand Number 936 Glen Norah Township also known as House
Number 936 Glen Norah A, Harare forthwith.
2.
In the event that the defendant fails to vacate the premises, the
Sheriff or his deputy be and is hereby authorised to remove the
defendants therefrom.
3.
That the defendant pays costs of suit.
Mbizo,
Muchadehama & Makoni, plaintiff's legal practitioners
