The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.
In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of House Number 360 Makusha Township, Shurugwi.
The plaintiff was the purchaser and D. Katerere was the seller.
In pursuance of that agreement, D. Katerere and himself attended at the offices of the second defendant and caused all rights, title and interest D. Katerere had in the property in dispute to be formally transferred and registered in the plaintiff's name. Thereafter, the plaintiff took occupation of the house as the new holder of such rights and interests in the house.
In 1986 he vacated the house to take occupation of a plot he had just bought in the same town. He left some people in occupation of the house. The proprietor of Popular Bakery, Mr Gokwe, who was his brother in-law, requested him to let some of his employees occupy the house. He acquiesced to this request.
Amongst the Popular Bakery employees who took occupation was Raphias Jokonoko, the first defendant's elder brother. They took occupation in 1986 when the plaintiff left. When, later on, the first defendant was employed by Popular Bakery, he also took occupation in the house together with his elder brother.
It was only in about January to June 2000 that the plaintiff said he discovered that the second defendant had formally transferred and registered his rights and interest in the property in the name of the first defendant.
Upon this discovery, he demanded that such transfer be reversed and that the house be transferred back into his names as the lawful holder of rights, title and interest in the house.
Both the first and second defendants did not accede to this demand hence this suit filed on 15 May 2002.
In this suit, the plaintiff's claim is for an order:
(a) Declaring him to be the lawful holder of all the rights, title, and interest in House Number 360 Makusha Township;
(b) Directing the second defendant to formally transfer and register all the rights, title, and interests in House Number 360 Makusha Township, Shurugwi in the name of the plaintiff; and
(c) Costs of suit jointly and severally against the first and second defendant with one paying the other to be absolved.
The first and second defendants filed a joint plea in which they disputed the plaintiff's claim and entitlement to have the house transferred and registered in his name.
In their plea, the defendants denied that:
1. Dickson Katerere's rights, title, and interest in the property were ceded or transferred to and registered in the plaintiff's name.
2. The property in dispute was ceded by the second defendant to the first defendant.
3. The house in question is or ever was on home ownership scheme contending that Dickson Katerere was a mere tenant of the second defendant just like the first defendant.
4. That the plaintiff acquired any title to the house in question.
The issues for determination were identified as:
1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute;
2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred or ceded to and registered in the plaintiff's name; and
3. Whether or not the plaintiff is entitled, at law, to the relief that he seeks.
The plaintiff gave evidence and called two witnesses, namely, Gertrude Nhendereko and Thomas Mandiamba. He also tendered into evidence a bundle of documents he relied on in his evidence.
The first defendant, thereafter, gave evidence. He also tendered a bundle of documents in support of his case.
From the evidence adduced in court, it was apparent that the house in question was, at one time, registered in the name of Dickson Katerere. It was also apparent that the nature of the lease that the plaintiff alleged D. Katerere had was not an outright purchase.
The plaintiff's evidence was to the effect that D. Katerere had a lease to buy agreement and it is this agreement that he took over.
On taking over, he filled in cession forms and lease to buy agreement forms at the second defendant's office. This was in 1981. The lease to buy forms he filled in were similar to the lease to buy agreement that the first defendant had as part of his bundle of documents titled “purchase/sale agreement conversion of rental accommodation into homeownership.” This form has three parties to it, being Shurugwi Town Council, as owner of the house, the Government, as the owner of the land onto which the house is built, and the purchaser.
In Hundah v Murauro 1993 (2) ZLR 403 (S)…, the court alluded to the fact that:
“Land in the high density suburbs belonged to the local authorities, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the 4th category of lodgers or dependants). They are:
1. Simple tenants under a lease agreement with the local authority or central government;
2. Tenants to buy under an agreement which permitted them to take title once the property was surveyed and the full price paid; and
3. Owners who graduated from category two in the fullness of time.”
In casu the plaintiff claimed that the house in question was under Category Two whilst the first defendant contended that it was under Category One.
It is pertinent to point out, at this stage, that, at the time the two defendants filed their joint plea up to the close of pleadings, they were represented by the same law firm.
On 6 October 2008, that law firm renounced agency in respect of both defendants. On 20 April 2009, a new law firm assumed agency on behalf of the first defendant.
This was after the defendants had both been served with the notice of set down for a pre-trial conference, and, in fact, this pretrial conference had been held on 31 March 2009. Only the first defendant was present at the pre-trial conference. The second defendant defaulted, or, at least, was not present. Equally, at trial, the second defendant was not represented.
Counsel for the plaintiff indicated, that, the second defendant indeed defaulted at the pre-trial conference and has not appeared to contest the plaintiff's claim since then.
The record before me is however silent on what happened when the second defendant defaulted at the pre-trial conference despite having been served with the notice of set down.
I now turn to the issues at hand....,.
The plaintiff's evidence on the issue was to the effect, that, on 20 August 1981 he entered into an agreement of sale with Dickson Katerere in respect of House Number 360 Makusha Township, Shurugwi. The house was in D. Katerere's name and it was in a homeownership scheme. In that regard he referred to p2 of the bundle of documents, as the agreement of sale. The document is an uncertified photocopy. It reflects the parties to the agreement as CG Musoni and Dickson Katerere. It is dated 29 August 1981.
The main body of the document states that:
“C Musoni Matambo has paid Mr D. Katerere the sum of four hundred and forty eight dollars for house number 360 in Makusha, up easy Stereo Radiogram, two speakers $360. Total paid for the lot $808.”
The plaintiff confirmed that it was only him who appended his signature to the document.
As proof that the house in question was on the second defendant's homeownership scheme, the plaintiff referred to p1 of his bundle of document exh 5. This is a document containing a list of houses he contended were on the second defendant's home-ownership scheme. The house in question is number 6 on that list.
Apart from the house number, other details pertaining to this house included;
(i) Type - Up easy;
(ii) Purchaser - Dickson Katerere;
(iii) Date - 1 April 1980;
(iv) Purchase price - $980=25;
(v) Period of purchase - 5 years;
(vi) Monthly rent - $18=68;
(vii) Land value - $125=00; and
(viii) Monthly rent, service electricity - $33=06.
The heading/title of the list is hardly legible.
It was the plaintiff's evidence, that, after paying D. Katerere a total of $448 the two of them approached the second defendant with the intention of effecting cession. They indicated to the second defendant's officials that he had bought D. Katerere's rights and interests in the house so can the house now be registered in the plaintiff's name.
The second defendant's officials did not deny that the house was in D. Katerere's name. Their only query was that they should have approached the second defendant before entering into the purchase agreement so that D. Katerere's lease is cancelled first and the plaintiff would then enter into a fresh lease to buy agreement with the second defendant. The plaintiff said the second defendant's official he dealt with was one named Mr Nhubu. At no time was it ever said that D. Katerere was a mere tenant with no rights or interest to sell in the house.
Gertrude Nhendereko gave evidence next on this issue.
She indicated, that, as a resident of Shurugwi, she knew that the house in dispute was amongst houses that were for home ownership. She confirmed that exhibit 1(a) is indeed from the second defendant and it does confirm that the house in question was on the home-ownership scheme. She knew this as a resident of Shurugwi, and, later, as a councillor.
It was her evidence that she had known the plaintiff for a long time as a fellow resident of Shurugwi. At one time they lived in the same neighbourhood before the plaintiff moved into the house in question in 1981.
Apart from the above, most of this witness's evidence was based on reports she received from the plaintiff which is of no probative value.
