MATANDA-MOYO
J:
Plaintiff
sued defendant by way of summons for the following relief;
(a)
An order evicting defendant and all those claiming occupation through
him from plaintiff's premises known as Number 20 Saint Stephens
Road, Meyrick Park, Harare;
(b)
Holding over damages in the sum of $500.00 per month with effect from
1 November 2011 to date of vacation on eviction; and
(c)
Costs of suit on a legal practitioner-client scale.
Plaintiff
alleged that he is the owner of Number 20 Saint Stephens Road,
Meyrick Park, Harare which is described as Stand 3206 Marbelreign
Township 17 of Greeba of Mabelreign measuring 1065 square metres,
held under deed of transfer 4941/2011 dated 18 October 2011.
Defendant is in occupation of that property. As a result of such
occupation by defendant, plaintiff alleged he is suffering $500.00
per month, holding over damages from 1 November 2011. The $500
represents the amount, the plaintiff would realise from renting out
the above property.
Defendant
disputed plaintiff's ownership of the property. Defendant instead
claimed ownership of the property.
It
is defendant's case that if plaintiff indeed holds title to the
property then such title would have been fraudulently acquired.
Defendant denied having transferred his property to plaintiff nor to
any other person. Instead defendant pleaded that he borrowed $19,000
from a certain Frank Buyanga. He was made to sign a purported
agreement of sale in respect of the property hence after defendant
failed to settle the debt, Frank Buyanga sold property to Gildastone
Holdings (Pvt) Ltd who have a pending eviction matter before the
Magistrates Court against defendant. It is defendant's case that if
indeed plaintiff purchased the property, then he was and is not a
bona
fide
purchaser.
Defendant
denied being liable for holding over damages, insisting he was the
owner of the property, and also denied that plaintiff was entitled to
costs on a legal practitioner-client scale. He also prayed for
dismissal of plaintiff's claim with costs on a higher scale.
Without
replicating, the matter was set down for Pre-Trial Conference. The
issues for trial were as follows;
1.
Whether or not defendant has a defence to plaintiff's claim;
2.
Whether or not plaintiff is entitled to recover holding over damages
in the sum of $500.00 from 1 November 2011 to date of eviction; and
3.
Whether or not plaintiff is entitled to costs on a higher scale of
legal practitioner and client.
Mr
Mosley Mashingaidze testified that he is a Logistics Manager for a
transport company based in DRC. He testified that he is the
registered owner of Stand 3206, Mabelreign Township. He produced the
title deed which is in his name – namely Deed of Transfer number
004941/2011. The transfer was done on the authority of High Court
Order 3931/11dated 19 July 2011. He said he bought the property for
$55,000.00. Receipts to that effect were produced.
The
plaintiff testified that he entered into an agreement of sale with
Goldastone Holdings (Pvt) Ltd. The sale was concluded through Floburg
Real Estate agents. This was after the sale of the property was
advertised through the newspapers. He then sent his sister to view
the house. Thereafter he also came over to view the property. The
property was occupied then and so he was able to view the house. No
one told him that there was a dispute in relation to the property.
The defendant was in occupation of the house at the time of viewing.
Around
April 2010 – two or three months after purchasing the property this
witness learnt that the defendant was claiming ownership to the
property. To his surprise the defendant sat back and did nothing to
assert his purported rights.
On
holding over damages this witness testified that he had not been able
to occupy his property as the owner. The defendant without just cause
continued in occupation. The defendant has not been paying rentals.
The
house in question comprises of 3 bedrooms, 2 toilets, dining room,
lounge and a verandah. The market rentals for such property is $500
per month. This witness also added that no mention of Frank Buyanga
was ever made in these transactions.
Under
cross examination this witness said whilst it is true that at some
point the defendant paid rentals through Nyamushaya, Kasuso and
Rubaya Legal Practitioners, he had not presented such proof in the
form of receipts. He insisted defendant paid such rental for two
months.
On
being questioned on the existence of a court order cancelling sale
from defendant to Lalapanzi, this witness said since he was not party
to the proceedings he was unaware of the court order cancelling the
sale from defendant to Lalapanzi. He insisted he was not aware of the
participation of Frank Buyanga in these matters.
On
re-examination this witness denied knowledge of Frank Buyanga nor one
Akim Ndlovu.
The
defendant opened his case by calling Mr Cheza – the client services
manager for the Zimbabwe Revenue Authority.
He
testified that during the course of his duties he received a request
from defendant's lawyers to confirm whether the transfer to
plaintiff of the property in question passed through his office. He
confirmed transfer to Lalapanzi did not exist in their records. There
was no record of defendant having paid capital gains tax. In fact he
said he failed to get any records pertaining to the transfer.
Under
cross-examination he confirmed he has been working for ZIMRA since
2001 and in the present capacity since 2014. He clarified that his
evidence was to the effect that no records were found. He could not
say for sure that the parties did not deal with ZIMRA. He admitted it
could be a question of misfiling. He confirmed transfer could not be
effected without proof of payment of capital gains tax.
Under
re-examination he maintained his position that it was possible that
documents were lost at ZIMRA.
The
defendant testified that no evidence was led by the plaintiff to show
capital gains tax was paid by the defendant to ZIMRA.
He
said earlier on he got judgment from this court for transfer to be
reversed. However such judgment has since been reversed for failure
to cite the plaintiff.
He
said he never received purchase price from plaintiff nor from
Gilderstone nor Lalapanzi. Gilderstone at some point tried to seek
his eviction and payment of rentals but abandoned the claim.
Under
cross examination he stated that he was a Director of a company which
provides financial advisory services. In that capacity he is aware of
what constitutes security for a loan. He admitted that he did not
produce any loan agreement. He said he once worked for Banc ABC and
would securitize loans by pledging title deeds. He failed to answer
whether the Bank made people sign agreements of sale for the
properties and powers of attorney to make transfer. On being probed
further he replied in the negative. He admitted he signed an
agreement of sale and not a loan agreement.
He
confirmed that in the agreement of sale between plaintiff and
Gilderstone, Frank Buyanga's name did not appear anywhere. Instead
Alexander Chitamba represented the company. He admitted that there
was no proof that the transfer was done by Buyanga. He admitted he
had no proof that Buyanga had links with Lalapanzi or Gilderstone.
The property was never registered in Frank Buyanga's name. He
conceded that plaintiff could well be an innocent purchaser. He was
taken to task on whether he had told plaintiff during inspection that
there was a dispute, and his answer was, he did not.
Under
re-examination he said plaintiff never replicated to his plea
suggesting he agreed with same. He said plaintiff was aware of matter
before the court where defendant was challenging transfer to
Lalapanzi.
Analysis
of Evidence
From
the evidence submitted, the plaintiff gave simple and straightforward
evidence. He is the owner of the property in question. All parties
agreed that such property is registered in his name. He bought the
property from Gilderstone (Pvt) Ltd having viewed the property. His
evidence was that no one told him of the disputed sale.
I
believed him.
The
conduct of the defendant of sitting back and not doing anything until
later on after receiving these summons tends to corroborate the
plaintiff's story.
The
plaintiff paid $55,000 for the property and defendant is still
occupying the house. He has not benefited from the house from date of
transfer. He has lost out in terms of revenue. The current rentals
claimed are not disputed. The plaintiff gave his evidence well and
such evidence was not controverted during cross-examination.
The
defendant called Mr Cheza from ZIMRA. His evidence did not take the
matter any further. He could not say for sure capital gains tax over
the property was not paid for. There was no evidence from him that
ZIMRA was indeed following up on unpaid capital gains tax. Although
he said no records pertaining to the sale of he property in question
were found, he did not rule out misfiling. In any case this witness
was not employed within that department responsible for capital gains
tax at the time of the transfer. Someone else could have handled the
assessment of capital gains. However this witness admitted that
without a capital gains tax certificate, transfer would not have gone
through.
The
defendant's testimony was too complicated.
The
defendant tried to throw in anything and everything that could make
his story believable. The defendant testified that he was a finance
person, well versed in loan documents. The defendant was very clear
that what he signed was an agreement of sale. He however testified
that it was executed in place of a loan agreement. His testimony was
that he borrowed $19,000 from Frank Buyanga who made him sign an
agreement of sale. He said he signed the agreement after being
satisfied with the explanation he got from Frank Buyanga that such
agreement of sale represented a loan agreement. Having worked with a
Bank where he came into contact with documents required for
securitization of a loan, the defendant knew that he had signed an
agreement to sell his property.
So
it is my finding that indeed the defendant sold his property to
Lalapanzi.
The
purported agreement between Lalapanzi and the defendant according to
defendant's version was that if he failed to service the loan
agreement his house would be sold. Evidence before me show that the
defendant failed to service the loan agreement and the agreement of
sale came to fruition. Either versions I am of the view that the
defendant appreciated and by conduct agreed to the sale of the house.
The
defendant admitted that the plaintiff's sister and the plaintiff at
some point viewed the house. However he said they were advised of the
dispute. The defendant did not call anyone to testify on that. At one
point he said they were told by his wife. The defendant's wife
never testified.
However
the defendant admitted that he only filed an application challenging
transfer to Lalapanzi after he received these summons.
Such
conduct to me confirmed the plaintiff's position that the defendant
never disputed the sale at the time the plaintiff bought the
property.
The
plaintiff even testified that the defendant paid rentals for two
months to the plaintiff's lawyers. Although no receipts were
provided such testimony had a ring of truth. It was only after the
defendant heard that others were challenging the sales of their
property that he had a change of heart and tried to cling onto the
property.
It
is also important to note that the defendant's claim to have loaned
money from Hamilton Finance and yet the agreement of sale produced
was between the defendant and Lalapanzi. Before me is no evidence on
the relationship between Hamilton Finance and Lalapanzi. Besides bold
assertion that Frank Buyanga was behind these sales, but no evidence
to prove that was placed before me.
Defendant
raised a point in
limine,
that this matter be deferred until another matter dealing with
ownership of the property in question has been determined.
The
court has been requested to stay the matter pending decision of
matter HC2213/14.
It
is defendant's submission that it is in the interest of justice
that this matter be deferred since it is only dealing with eviction.
The matter dealing with ownership should be determined first so as to
prevent conflicting judgments coming from the same court.
The
present matter was filed before the matter referred to above was
filed. A look at reference numbers indicate that the matter in
casu
was filed in 2011. It has been pending since then. The matter I have
been referred to was filed in 2014 well after this matter was already
pending. When the present matter was filed in 2011 there was no
similar matter pending before the parties.
In
Nestle
(South Africa) (Pvt) Ltd
v Mars
Inc
2001 (4) SA 542 SCA NUGENT AJA said;
“The
defence of lis alibi pendens shares features in of res judicata
because they have a common underlying principle, which is that there
should be finality in litigation. Once a suit has been commenced
before a tribunal that is competent to adjudicate upon it, the suit
must generally be brought to its conclusion before the tribunal and
should not be replicated (lis pendens) by the same token the suit
will not be permitted to revive once it has been brought to it proper
conclusion (res
judicata).
The same suit between the same parties, should be brought for once
and final.”
See
also Socratous
v Grindstone
Investments
2011 (6) SA 325 (SCA).
This
defence applies to a pending earlier matter involving same parties,
same subject matter and same cause of action. The action which was
first commenced should be decided first.
This
matter was filed first and was the one pending. The 2014 matter is a
latter one which was filed over three years after the present matter.
It
is the court's function to ensure that it adjudicates over defences
genuinely raised. This defence is an afterthought. The defendant only
decided to file the other matter in 2014 and turns around to argue
that the 2011 matter must give preference to the 2014 matter.
According to defendant the 2014 matter is the one which seeks to
determine ownership of the property in question.
I
do not agree.
The
present claim is based on the principle of rei
vindicatio.
The plaintiff herein must still prove that he is the owner of the
property in question. The defendant also has a right to disprove such
ownership. Therefore it is my view that although the claim is for
eviction, it still requires the court to determine ownership of the
property.
I
am of the view that the point in
limine
should fail at this stage.
This
is a claim based on rei
vindicatio.
The law of rei
vindicatio provides
a remedy to owners of property to vindicate such property from
whosoever would be in possession of such property without their
consent.
I
was referred to the case of Stanbic
Finance Zimbabwe
Ltd v Chivhungwa
1999
(1) ZLR 262 (H) where the court had this to say on the principle:
“The
principle on which the action rei vindication is based is that the
owner cannot be deprived of his property against his will and that he
is entitled to recover it from any person who retains possession of
it without his consent. The plaintiff in such a case must allege and
prove that he is the owner of a clearly identifiable movable or
immovable asset and that the defendant was in possession of it at the
commencement of the action. Once ownership has been proved its
continuation is presumed. The onus is on the defendant to prove a
right of retention. Chetty
v
Naidoo
1974
(3) SA 13 (A)….”
See
also Indium
Investments (Pvt) Ltd v
Kingshaven
(Pvt) Ltd and Ors SC40/15;
and Johannesburg
Municipal Council
v Rand
Township Registrar and Ors 1910
TS 1314 @ 1319; Gondine
Chirome (Pvt) Ltd v
MCC
Contracts (Pvt) Ltd (1992)
ZASCA 186.
Herein
the plaintiff provided a title deed that he is the holder of title to
the property in dispute. It is common cause that the defendant is in
occupation of the property.
Once
the plaintiff so discharged the onus on him, the onus shifted to the
defendant to prove any one of the acceptable defences to a claim of
rei
vindicatio
which are;
(1)
that plaintiff is not the owner of such property. The defendant must
show documentary proof to such averment;
(2)
that the property in question is no longer identifiable or does not
exist;
(3)
that the defendant's possession or physical control of the property
is not unlawful; or
(4)
that the defendant is no longer in physical control of the property.
In
order for the defendant to succeed he must show that he is vested
with same right enforceable against the owner.
The
defendant herein argued that he never sold his property to anyone and
is still the lawful owner of the immovable property. He submitted
that any transfer of his property from himself was never sanctioned
by himself.
Contrary
to that argument evidence before me showed that the defendant sold
his property to Lalapanzi Investments (Pvt) Ltd and he signed a Power
of Attorney to pass transfer. The defendant acknowledged the
signatures on those documents as his signatures. Once the defendant
accepted signing those documents he required further evidence to show
that he later withdrew from those agreements. No such evidence was
produced.
The
defendant submitted that this court should take judicial notice of
the illegal dealings of Frank Buyanga. The defendant has not provided
any evidence to show that he entered into my agreement with such
Frank Buyanga. Had such an agreement been presented to court then
such argument would have held water. As reiterated above the onus was
on defendant to prove by way of documents that he never sold his
property or that Frank Buyanga was involved. No such documents were
placed before myself.
Equally
the issues of evasion of tax have not been proved. The defendant
argued at length on the illegality of transfer where he observed that
capital gains tax was not paid. Again no proof was tendered before
the court of such tax evasions. I have no cause at this moment to
find that the transfer did not follow the law.
The
defendant has thus failed to raise any recognisable defence to a rei
vindicatio
action.
On
the issue of holding over damages the defendant put no defence to
that claim – rightfully so. The plaintiff is entitled to holding
over damages.
I
do not believe this is a matter calling for punitive costs.
In
the result the plaintiff's claim succeeds and order as follows:
1.
That defendant and all those claiming occupation through him from
plaintiff's premises known as Number 20 Saint Stephens Road,
Meyrick Park, Harare be and are hereby ordered to vacate the above
premises forthwith.
2.
That defendant be and is hereby ordered to pay $500-00 per month
being holding over damages from 1 November 2011 to date of vacation
or eviction.
3.
That defendant pays costs of suit.
Mushoriwa
Pasi Corporate Attorneys,
plaintiff's legal practitioners
Messrs
Sinyoro & Partners,
defendant's legal practitioners
