Opposed
Application
MUTEMA
J:
Applicant
herein seeks an order that second respondent re-open the estate of
the late Felix Mudimu so that she may lodge her claim for the
transfer of a property known as house number 5747 Nketa 9, Bulawayo.
The
application is opposed by first respondent who is the widow of the
late Felix Mudimu.
From
the outset second respondent was legally represented by Messrs Ahmed
and Ziyambi Legal Practitioners who went on to renounce agency soon
after applicant had filed her answering affidavit.
The
following salient facts have been established on the papers:
The
applicant and the late Felix Mudimu concluded a written agreement of
sale of stand number 5747 Nketa 9, Bulawayo for an agreed purchase
price of Z$14,000,00.
As
lay persons are wont to do, the parties drafted a simple handwritten
agreement of sale on 2 December, 1993 (Annexure 'P').
However,
when the parties attended at the offices of Beverley Building Society
who held a mortgage bond over the house, they were advised to seek
services of a legal practitioner and have a proper sale agreement
drafted.
This
they did at Webb, Low & Barry Legal Practitioners on 9 March,
1994.
The
late Mudimu acknowledged receipt of a deposit of Z$6,000,00 by 9
March, 1994 as reflected on annexure “Q”.
Applicant
lodged the agreement with Beverley Building Society and took over the
monthly repayment for the mortgage bond number 8490/91 in the sum of
Z$8,000,00 which was due and owing then. By 19 December, 2002
applicant had completed payment of the mortgage bond.
Meanwhile,
unbeknown to applicant, Felix Mudimu had passed away on 25 May 1997
in Chivhu rural.
When
applicant traced the late Mudimu to his rural home in Chivhu with a
view to have the house transferred into her name, she discovered that
Mudimu had died.
Applicant
tracked down Wonder Mudimu, Felix's brother in Harare and requested
him to register Felix's estate but Wonder indicated that he could
not since first respondent was alive. She then waited for first
respondent to register the estate.
Since
the date of signing the sale agreement applicant has enjoyed
undisturbed possession of stand number 5747 Nketa 9, Bulawayo. She
has never paid rent or any other consideration to first respondent
during her tenure at the property neither has first respondent made
any claim to the property until she registered the estate of the late
Felix Mudimu in August, 2013.
Applicant
has extended and developed the structure from a single room to a
seven roomed house during her tenure and has paid all water, rates
and electricity charges thereon for the entire period of her
occupation.
First
respondent only registered the estate after Wonder had informed her
that applicant wanted assistance in transferring the property from
the estate into her name.
First
respondent registered the estate without informing the applicant and
she went on to advertise for claims against and for the estate in
2013, which advertisements applicant never saw.
Despite
the fact that first respondent was well aware of the sale of the
property to applicant she willfully chose not to alert applicant
about the registration of the estate.
However,
inspite of the foregoing first respondent opposed the application.
Three
main planks were raised as the basis of the opposition, viz,
in limine:
(i)
that there is no founding affidavit by the applicant because the
signature thereon is not hers hence no court application before the
court; and
(ii)
that if the property was purchased on 9 March, 1994 then applicant's
claim is prescribed; and
(iii)
lastly on the merits, that the agreement of sale is not valid
therefore not enforceable at law.
I
will deal with the three points raised in opposition hereunder.
1.
WHETHER THE COURT APPLICATION IS FATALLY DEFECTIVE FOR ALLEGED LACK
OF PROPER SIGNATURE ON APPLICANT'S FOUNDING AFFIDAVIT
On
the disputed affidavit the applicant signed M. Hwara and the
agreement of sale signed on 9 March, 1994 she signed Masiwa Hwara.
At
the time of raising this point of opposition in
limine
these were the only two documents first respondent had seen to enable
her to compare applicant's signatures.
There
is no law which stipulates that a person's signature must be
consistent or be the same on each and every document that he/she
appends a signature to.
Prior
to raising this point first respondent had never seen applicant sign
on any document. No expert evidence by a questioned document examiner
was furnished to buttress the contention that the signature is not
that of applicant.
The
allegation is just first respondent's ipsissima
verba.
The
affidavit was deposed to before a legal practitioner who is a
commissioner of oaths.
The
claim therefore is without merit and is hereby dismissed as mere
attempt at sophistry.
2.
WHETHER APPLICANT'S CLAIM FOR TRANSFER OF THE PROPERTY IS
PRESCRIBED
The
first respondent premised this point on the Prescription Act. She
simply averred that because applicant purchased the house on 9 March,
1994 then in terms of that Act, her claim is prescribed.
She
did not state what chapter is the Prescription Act, what the period
of the alleged prescription is or what section of that Act is the
applicable one as if her allegation is trite.
This
is bad pleading.
If
first respondent was alluding to the three year period of
prescription of debts in section 15(d) of the Prescription Act,
[Chapter 8:11] then she must have missed her law by a mile.
That
provision does not apply to the instant case.
The
applicable provision here is section 17(1)(e) of the Prescription
Act. It provides as follows:
“17.
When completion of prescription delayed
1.
If –
…
(e)
the creditor or the debtor is deceased and an executor of the estate
in question has not yet been appointed;
and
the period of prescription would, but for the subsection, be
completed before or on, or within one year after, the date on which
the relevant impediment referred to in paragraph (a), (b), (c), (d)
or (e) has ceased to exist, the period of prescription shall not be
completed before the expiration of the period of one year which
follows that date.”
Clause
8 of the agreement of sale states that transfer of the property would
only be effected once applicant had completed paying off the mortgage
bond to Beverley Building Society.
Applicant
fulfilled this suspensive condition on 19 December, 2002.
Meanwhile
Felix Mudimu had died on 25 May, 1997 in Chivhu. Applicant could not
claim transfer from a deceased person and also before fulfilling the
suspensive condition. Only the executor of the estate, once the
suspensive condition had been fulfilled, could legally pass transfer
of the house.
The
estate was only registered and the executrix appointed on 9 August,
2013.
On
the authority of section 17(1)(e) above, by the time applicant put in
motion the legal process of claiming transfer, viz 3 March, 2014, the
one year prescriptive delay had not yet run its full course from 9
August, 2013.
In
the result, it is a legal fallacy to allege that applicant's claim
has prescribed.
3.
WHETHER THE AGREEMENT OF SALE IS INVALID AND NOT ENFORCEABLE AT LAW
The
main legal thrust by the first respondent regarding this contention
is that the agreement of sale is not valid on account of clauses 2
and 3 thereof being contradictory.
The
alleged contradiction is difficult to comprehend. Clause 2 states
that:
“2.
The purchase price of the property shall be the sum of $14,000,00 to
be paid as follows:
(i)
$6,000,00 cash, which amount the seller acknowledges to have already
been paid to him;
(ii)
The purchaser will pay the balance of the purchase price by paying
for and on behalf of the seller the sum of $8,000,00 which he owes to
Beverley Building Society together with all the interest accruing to
the loan granted to the seller.
3.
Occupation of the property shall be given to the purchaser after
payment of the sum of $6,000,00.”
Apart
from first respondent's mere say so there is no discernible
contradiction exitant between these two clauses. Maybe it would have
been apparent had first respondent elaborated on the averment and
brought out the alleged contradiction.
Factually,
the first respondent, like a runaway horse, in an endeavour to prove
that the agreement of sale is invalid and unenforceable at law, told
a story that flies in the face of common sense and logic.
She
alleged that applicant was a mere tenant who took over payment of the
Beverley mortgage bond in lieu of paying rentals.
First
respondent averred that she also paid some of the mortgage bond
repayments as reflected on annexure “A1”.
However,
the said annexure “A1” was never attached to her papers.
If
her story were true common sense and logic would dictate that after
paying off the mortgage bond in December, 2002 first respondent would
have arranged that applicant pay rentals for the property directly to
her.
Nothing
of the sort ever happened.
Also,
would applicant have been magnanimous if not stupid qua tenant, as to
improve a house that was not hers from one room to seven rooms?
The
alleged tenancy arrangement cannot stand in the way of the written
sale agreement which by any standards meets all the requirements of a
valid contract.
I
find that first respondent's attempt to show that the agreement of
sale is invalid and unenforceable amounts to digging in the ashes.
In
the result, on the totality of the findings made above, the
application succeeds and I grant an order in the following terms:
1.
The second respondent be and is hereby ordered to reopen the estate
of the late Felix Mudimu for the purposes of determining the claim of
the applicant regarding the property known as stand number 5747 Nketa
9, Bulawayo.
2.
The first respondent shall pay the costs of this application.
Messrs
Webb, Low & Barry,
applicant's legal practitioners
