Special
Case in terms of Rule 52 of the High Court Rules 2021
DUBE-BANDA
J:
Introduction
On
the 16 February 2017, plaintiff sued out a summons against 1st
defendant seeking an order couched in the following terms:
An
order confirming the cancellation of an agreement of sale entered
into by and between plaintiff and defendant in respect of a property
known as a certain piece of land being stand number 6505 Bulawayo
Township of stand 6541A Bulawayo Township, situate in the District
of Bulawayo and which cancellation was occasioned by defendant's
breach of the terms and conditions of the said sale agreement.
An
order evicting the defendant and all those claiming through him from
the aforesaid premises on the basis that the defendant and his
claimants no longer have a lawful right to remain in occupation of
the premises following the cancellation of the sale agreement.
An
order that the defendant pays occupational damages to the plaintiff
in the sum of US$800-00 per month or US$26-67 per day, from the 4th
September 2015, this being the date of the sale agreement was
cancelled, to the date of eviction.
Cost
of suit at an attorney and client scale.
The
defendant referred to in the order sought by the plaintiff is the
1st
defendant in this matter. 2nd
and 3rd
defendants were joined to this matter by an order of this Court in
Case No. HC3144/18 granted on the 8th
January 2019.
At
a case management meeting held on the 19 February 2020 before a
judge of this court, the parties agreed to file a written statement
of agreed facts and to refer the matter to the Court for
determination by way of a special case in terms of Order 29 of the
High Court Rules, 1971. A statement of agreed facts was drawn,
signed and filed on the 1st
October 2020. The matter then proceeded as a special case in terms
of the rules of court.
On
the 11th
February 2022, plaintiff filed a notice to amend the summons,
declaration and pleading filed of record in terms of rule 41(1) of
the High Court Rules, 2021. The notice sought to delete the names of
Thabani Siziba N.O. to be substituted with the name of Batandi
Michael Mpofu N.O. There was no written objection to the proposed
amendment within the ten days of the delivery of the notice, the
amendment sought was therefore effected.
The
Facts
For
the purposes of clarity and completeness, I reproduce in ex
extensio
the statement of agreed facts signed and filed by the parties in
this matter. These are the agreed facts:
That
the plaintiff and 1st
defendant sometime in November 2014 entered into a written agreement
of sale over stand 6505 Bulawayo Township of Stand 6541A Bulawayo
Township, situate in the District of Bulawayo (hereinafter, 'the
in initial agreement'). A copy of the initial agreement is annexed
hereto and marked, “A”.
That
the 1st
defendant took occupation of the property immediately upon the
signing of the initial agreement pursuant to the terms thereof.
That
in terms of the initial agreement, the 1st
defendant agreed and undertook to pay the full prescribed purchase
price in respect of the property being the sum of USD105,000.00 as
follows:
A
deposit in the sum of USD25,000.00 upon the signing of the
agreement.
The
balance of USD80,000.00 to be paid by way of three (3) equal
instalments commencing on the 28th
February 2015, and subsequently on or before the 28 April 2015, and
finally on or before the 31 July 2015.
That
the purchase price prescribed in respect of the property in terms of
the initial agreement was as per the then prevailing fair market
value.
That
the first defendant initially paid a deposit of USD37,000.00 by the
12 March 2015. A copy of the defendant's proof of payment of the
deposit is annexed hereto and marked “B”.
That
the 1st
defendant breached the agreement of sale by failing to pay the
balance of the purchase price of USD68,000.00 in the manner
prescribed in the initial agreement.
That
the notice of termination of the initial agreement of sale over the
property was, according to the Sheriff's Return of Service, served
upon the 1st
defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on the
12th
August 2015, by handing a copy thereof to the 1st
defendant's worker. A copy of the notice of the termination and
the Sheriff's Return of Service hereto marked 'C' and 'D'
respectively.
That
in terms of the notice of termination, the initial agreement of sale
was cancelled on the 4th
September 2015.
That
an action was instituted by the plaintiff on the 16th
February 2017, under cover of case No. HC446/17 seeking:
an
order confirming the cancellation of the initial agreement;
an
order evicting the 1st
defendant and all those claiming occupation from the property in
question (sic);
an
order that 1st
defendant pay occupational damages to the plaintiff in the sum of
USD800.00 per month or USD26.67 per day from the 4th
September 2015, being the date on the cancellation of the initial
agreement to the date of eviction.
The
default judgment was granted on the 19th
May 2017, confirming the cancellation of the initial agreement and
granting the rest of the relief as prayed for in the summons in the
matter under cover of Case No. 446/17. A copy of the default
judgment is annexed hereto marked 'E'.
That
in terms of the writ of execution and ejectment issued out on the
8th
February 2018, pursuant to the default judgment in the matter under
cover of Case No. HC446/17, the 1st
defendant was evicted from the property in question. A copy of the
writ of execution and ejectment is attached hereto and marked “F”.
That
the default judgment in the matter under cover of Case No. HC 446/17
was rescinded and set-aside on the 22nd
November 2018, in terms of the Order issued in the matter under
cover of case No. HC1576/18, a copy of which is annexed hereto
marked “G”.
That
the 1st
defendant entered an appearance to defend the action under cover of
Case No. HC446/17 on the 26 November 2018, and filed a special plea
on the 18 February 2019, but has not pleaded over to the merits of
the matter.
That
during the period when the order in Case No. HC446/17 was extant,
and on the 14th
March 2018, the plaintiff entered into a written agreement of sale
over the property with the 2nd
defendant (hereinafter “the second agreement”). A copy of the
second agreement is annexed hereto and marked “H”.
That
in terms of the second agreement, the 2nd
defendant agreed and undertook to pay the full prescribed purchase
price in respect of the property being the sum of USD130,000.00 as
follows:
A
deposit in the sum of USD70,000.00 upon the signing of the
agreement.
The
balance of USD60,000.00 to be paid between the 31st
April 2018, and 31st
July 2018.
That
the purchase price prescribed in respect of the property in terms of
the second agreement was per the then prevailing fair market value.
That
in accordance with the terms of the second agreement and by the 18th
July 2018, the 2nd
defendant had paid the sum of USD130,000.00 to the plaintiff, being
the full prescribed price in respect of the property in question.
The prescribed purchase price was paid into the bank account of
Waterbuck Trust (Pvt) Ltd as evidenced by the attached proof of
payment marked “I”.
That
the 3rd
defendant was made aware of the second agreement of the sale in
terms of a report by the plaintiff and duly recorded such sale in
its minutes in respect of a creditors meeting held on the 21st
June 2018. The minutes of such meeting are duly contained in the 3rd
defendant's final liquidation file under CRB 2/10 and attached
hereto marked “J”.
That
on the 21st
March 2018, the only secured creditor of Tabs Avon Lighting (Pvt)
Ltd (the company under liquidation) being, NMB Bank Limited,
approved of the second agreement of sale and the 3rd
defendant was duly made aware of such approval. The letter by the
said sole secured creditor of the company under liquidation is
contained in the 3rd
defendant's final liquidation file under CRB2/10 and is attached
marked “K”.
That
in the aftermath of the granting of the order in the matter under
cover of Case No. HC1576/18, and after the conclusion of the second
agreement of sale and the payment of the full purchase price in
respect of the property by the 2nd
defendant, the 1st
defendant took steps aimed at remedying his breach of the initial
agreement of sale by depositing into plaintiff's legal
practitioners trust account the balance of the purchase price being
USD68,000.00 in terms of the correspondence attached hereto marked
“L”.
The
steps taken by the 1st
defendant aimed at remedying his breach of the initial agreement
were not accepted by the plaintiff in terms of correspondence
attached marked “M”.
The
plaintiff's legal practitioners tendered back to the 1st
defendant the amount paid into its trust account in the sum of
USD68,000.00. This amount is currently held in trust by the
plaintiff's legal practitioners as per the correspondence attached
hereto marked “M”.
xxiii That
by way of an Order granted in the matter under cover of Case No. HC
3144/18, the 2nd
defendant was joined to the main proceedings, duly entered an
appearance to defend the action and filed his plea thereto.
xiv That
as at the date of this statement, and following the 1st
defendant's eviction therefrom in terms of the writ of execution
and ejectment issued against him in the matter under cover of Case
No. HC1576/18, neither of the parties are in physical or lawful
occupation of the property nor has any party taken transfer thereof.
The
Issues
The
issues for determination by the Court are as follows:
Whether
the initial agreement of sale over Stand 6505 Bulawayo Township of
Stand 6541A Bulawayo Township, situate in the District of Bulawayo
between the plaintiff and 1st
defendant was lawfully terminated.
Whether
there existed any legal impediment to the conclusion of the second
agreement of sale entered into between the plaintiff and the second
defendant at the material time.
To
whom should the property being Stand 6505 Bulawayo Township of Stand
6541A Bulawayo Township, situate in the District of Bulawayo be
transferred?
Factual
Disputes
6.There
is a preliminary issue to be put out of the way before dealing with
the substantive issues arising in this matter. In his submissions,
Mr Ndubiwa
counsel for the 1st
defendant submitted that there were disputes of fact in this matter
such that it could not be resolved by way of a special case. Counsel
contended that the dispute of facts were these: first, was that the
Sheriff's return of service did not relate to the service of the
notice of cancellation of the agreement of sale between the
plaintiff and the 1st
defendant. It was contended further that the letter of cancellation
was written on the 4th
August 2015, however the return of service related to a notice of
set-down served on the 6th
March 2017. Counsel submitted further that 1st
defendant does not dispute that the notice of cancellation of the
agreement was served on his gardner on the 12 August 2015. What was
disputed was that the return of service did not relate to the
service of the notice of cancellation.
7. The
second turned on the identity of the property sold to the 2nd
defendant. This contention was anchored on the fact that the
agreement of sale between plaintiff and 2nd
defendant speaks to Stand number 6512 Bulawayo Township of Stand
6541A Bulawayo Township situate in the District of Bulawayo, when
the dispute in this matter turns on Stand number 6505. Counsel
submitted that because of these disputes the matter was to be
referred to trial.
8. Per
contra Mr Siziba
counsel
for the plaintiff submitted that the alleged factual disputes were
not germane to the resolution of the issues before court. Counsel
contended further that the 1st
defendant was bound by the statement of agreed facts, and could not
purport to renege from such agreed facts. Mr Tshuma
counsel
for the 2nd
defendant argued that it was not in dispute that the notice of
cancellation was served, what was in dispute was that the Sheriff's
return of service did not relate to the service of the notice of
cancellation. Counsel argued further that there was a mix-up of
Stand numbers in the agreement of sale between plaintiff and 2nd
defendant, but nothing material turned on that because the parties
were agreed on which stand was in issue. Counsel argued that there
was no basis to refer this matter to trial.
9. In
dealing with agreed facts, the court in Kunoka
v The Church of the Province of Central Africa
SC25/2017 said:
“Once
the facts are agreed, the court should proceed to determine the
particular question of law that arises and not delve into the
correctness or otherwise of the facts. It is bound to take those
facts as correctly representing the agreed position and to thereafter
determine any issues of law that may arise therefrom. It is not open
to the parties to the stated case to seek to re-open the agreed
factual position or to contradict such position. Nor can either party
seek to ignore existing legal principle or findings of fact made in
connection with the same matter by another court. Of course either
party has a remedy at common law, to withdraw any concession made in
a stated case owing to justus
error,
fraud, mistake, or any other valid ground.
It
has become necessary to restate what a stated case is owing to the
fact that in some instances, the appellant in this case has made
submissions contrary to the stated case brought before the court.
The appellant has also ignored in part the decision of this court on
which the stated case is predicated. It
bears stating that if this happens, a party will be kept strictly to
the terms of the agreed facts, as it is on the basis of those facts
that the court would have been invited to make a determination on
some specific question of law.”
(My emphasis).
10. In
the statement of agreed facts in respect of service of the notice of
cancellation it was recorded that:
“That
the notice of termination of the initial agreement of sale over the
property was, according to the Sheriff's Return of Service, served
upon the 1st
defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on the 12th
August 2015, by handing a copy thereof to the 1st
defendant's worker.”
11. 1st
defendant agreed that the notice of termination of the initial
agreement of sale was served upon the 1st
defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on the
12th
August 2015, on the 1st
defendant's worker. 1st
defendant is bound by the statement of facts. In his submissions Mr
Ndubiwa contended that the 1st
defendant does not dispute that the notice of cancellation of the
agreement was served on his gardner on the 12 August 2015. What was
disputed was that the return of service did not relate to the
service of the notice of cancellation.
12. In
the statement of agreed facts in respect of the identity of the
property in issue it was recorded that:
“That
during the period when the order in Case No. HC446/17 was extant, and
on the 14th
March 2018, the plaintiff entered into a written agreement of sale
over the property with the 2nd
defendant.”
13. The
property referred to is Stand number 6505 Bulawayo Township of Stand
6541A Bulawayo Township, situate in the District of Bulawayo. There
is no factual dispute about the identity of the property in issue.
In the statement of agreed facts the parties are agreed as to the
identity of the property in issue in this matter.
14. Mr
Ndubiwa
submitted further that when the statement of agreed facts was
signed, 1st
defendant had not had sight of the Sheriff's Return of Service and
the agreement of sale between the plaintiff and the 2nd
defendant. This is unattainable. I say so because the statement of
agreed facts was signed by the parties legal practitioners. It is
unthinkable that a legal practitioner could append his signature on
a document to be used in court proceedings without having had sight
of all supporting documents. In Grain
Marketing Board v Arenel (Private) Limited and Ors
SC 30/21, the court said:
“The
appellant is bound by the agreement it entered into with the first
respondent in terms of the caveat
subscriptor
rule.
Simply put, parties must exercise extreme caution in entering into
and signing contracts. Consequently, a party to a contract who
appends his or her signature to a document does so at his or her own
peril.”
15. 1st
defendant cannot be heard at this stage to start attacking the
statement of agreed facts on the basis that when it was signed it
had not seen the supporting documentation. Worse still when the
statement was signed by a legal practitioner. In any event no
application was made to withdraw from the statement of agreed facts.
Further in respect of the attack on the return of service 1st
defendant accepts that the notice of termination was served on his
worker. The issue for determination is not whether service was done,
but whether it was valid service in terms of the law.
16. I
hold 1st
defendant
strictly to the agreed facts. 1st
defendant signed a statement of agreed facts. And further the
disputes of fact alleged by Mr Ndubiwa
are not germane to the resolution of the issues in dispute in this
matter. 1st
defendant does not dispute that the notice of cancellation was
served, he disputes that it was served in accordance with the
provisions of the law. Further the statement of agreed facts shows
that the parties were clear as to the identity of the Stand in
issue. In the circumstances there is no basis to refer this matter
to trial.
17. I
now turn to the issues for determination as identified in the
statement of agreed facts.
Whether
the initial agreement between the plaintiff and 1st
defendant was lawfully terminated
18. In
terms of the agreement of sale between the plaintiff and 1st
defendant, the latter had to pay a deposit of USD25,000.00 upon
signing of the agreement, and the balance of USD80,000.00 had to be
paid in three equal instalments. It was an instalment sale of land
in terms of section 2 of the Contractual Penalties Act [Chapter
8:04], which says an
“instalment sale of land” means a contract for the sale of land
whereby payment is required to be made in three or more instalments;
or by way of a deposit and two or more instalments; and ownership of
the land is not transferred until payment is completed.
19. The
agreed facts are that 1st
defendant
paid a deposit of USD37,000.00 by the 12th
March 2015, and breached the agreement of sale by failing to pay the
balance of the purchase price of USD68,000.00 in the manner
prescribed in the agreement. The notice of termination of the
agreement of sale over the property was served upon the 1st
defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo, on the
12th
August 2015, by handing a copy thereof to his worker.
20. Cut
to the bone 1st
defendant argues that the notice was not delivered in compliance
with section 8(3) of the Contractual Penalties Act [Chapter 8:04] in
that it was not delivered to the 1st
defendant personally or by registered post to his chosen address.
Plaintiff submitted that the 1st
defendant was notified of the breach in a manner that complies with
the provisions of section 8 of the Contractual Penalties Act, and
that the agreement was lawfully cancelled. 2nd
defendant contended that the agreement between plaintiff and 1st
defendant was lawfully terminated.
21. The
question that arises is whether the service of the notice to the 1st
defendant upon handing it to his worker was valid service in terms
section 8 of the Contractual Penalties Act [Chapter 8:04]. Mr
Ndubiwa
submitted that 1st
defendant does not dispute that a notice was served on his worker on
the 12 August 2015, the contention is that it was not proper
service.
22. Section
8 of the Contractual Penalties Act [Chapter 8:04] provides thus:
“Restriction
of sellers rights
(1)
No seller under an instalment sale of land may, on account of any
breach of contract by the purchaser —
(a)
enforce a penalty stipulation or a provision for the accelerated
payment of the purchase price; or
(b)
terminate the contract; or
(c)
institute any proceedings for damages;
unless
he has given notice in terms of subsection (2) and the period of the
notice has expired without the breach being remedied, rectified or
discontinued, as the case may be.
(2)
Notice for the purposes of subsection (1) shall —
(a)
be given in writing to the purchaser; and
(b)
advise the purchaser of the breach concerned; and
(c)
call upon the purchaser to remedy, rectify or desist from continuing,
as the case may be, the breach concerned within a reasonable period
specified in the notice, which period shall not be less than —
(i)
the period fixed for the purpose in the instalment sale of the land
concerned; or
(ii)
thirty days; whichever is the longer period.
(3)
Without derogation from section 40 of the Interpretation Act [Chapter
1:01],
a notice shall be regarded as having being duly given to the
purchaser for the purposes of subsection (1) —
(a)
if it has been delivered to the purchaser personally or to an agent
chosen by the purchaser for the purpose of receiving such notices; or
(b)
if
it has been posted by registered post to the address chosen by the
purchaser for the delivery of correspondence or legal documents
relating to the instalment sale of land concerned or, in the absence
thereof, to the purchaser's usual or last known place of residence
or business.”
(My emphasis).
23.Section
40(2) of the Interpretation Act [Chapter 1:01] provides thus:
“(2)
Where an enactment authorizes or requires a document to be served on
any person without directing it to be served in a particular manner,
the service of that document may be effected —
(a)
by personal service; or
(b)
by post in accordance with subsection (1); or
(c)
by
leaving it for him with some person apparently over the age of
sixteen years at his usual or last-known place of abode or business;
or
(d)
in the case of a corporate body, or an association of persons whether
incorporated or not, by delivering it to a director, the secretary or
clerk of the body or association at the registered or principal
office of the body or association, or serving it by post on such
director, secretary or clerk at such office; or
(e)……………….”
24. In
Washaya
and Another v Makebreak Trading (Private) Limited and 2 Others
SC 163/2021, the court held thus:
“The
contention advanced on behalf of the appellants overlooked the
principle contained in section 2(1)(a) of the Interpretation Act, to
the effect that the application of the provisions of the
Interpretation Act to the construction of any enactment must be
consistent with the intention, purpose or context of the enactment.
The
purpose of section 8(3)(b) of the Contractual Penalties Act is to
make provision for effective service of a written notice of breach of
the instalment sale of land by the seller to the purchaser where it
has been posted by registered post to the address chosen by the
purchaser for the delivery of correspondence or legal documents
relating to the instalment sale of land.”
25. In
determining whether service of the notice was valid service, the
court is required to tease out the intention,
purpose or context of section 8(3)(b) of the Contractual Penalties
Act. Its purpose is to make provision for effective service of a
written notice of breach of the agreement of sale. In
the agreement of sale 1st
defendant provided his address as number 43 Aberdeen Road, Fortunes
Gate, Bulawayo. That is the address where the notice of termination
of the agreement was served. The agreement does not specify the
manner of service of a written notice in the case of breach. The 1st
defendant accepts that the notice was indeed delivered, but contends
that it was not delivered in terms of the provisions of the law. The
position taken by the 1st
defendant is tantamount to saying “yes” the notice was delivered
and I saw it, but it did not come to me via
the correct route. Such a position is unattainable. What the law
requires is the effective service of the notice, and leaving it with
his worker amounts to effective service.
26. The
written notice, drawing the attention of the 1st
defendant as the purchaser to breach of the agreement and calling
upon him to rectify the breach within thirty days of service of the
notice on him failing which cancellation of the agreement would
follow, was served on him in terms of section 8 of the Contractual
Penalties Act as read with section 40(2)(c) of the Interpretation
Act, in that it was served by
leaving it with his worker at his usual or last-known place of abode
which he provided in the agreement.
27. The
notice of cancellation clearly specified that 1st
defendant had breached the agreement of sale by failing to pay the
instalments. He was given thirty days notice calculated from the 1st
August 2015 to remedy the breach by settling the amount due. The
notice specified that failure to settle the amount within thirty
days shall lead to an automatic cancellation of the agreement of
sale. 1st
defendant did not comply with the notice of cancellation, and he
unilaterally deposits to the plaintiff's legal practitioners trust
account the balance of the purchase price almost three years after
the deadline of the 1st
September 2015. On the 19 May 2017, this court confirmed the
cancellation of the agreement of sale between plaintiff and 1st
defendant, and while the order was extant, the property was sold to
the 2nd
defendant. That on the 22nd
November 2018 the order confirming cancellation of the agreement was
rescinded is of no moment. Therefore the issue whether the agreement
between the plaintiff and 1st
defendant was lawfully terminated is answered in favour of the
plaintiff and 2nd
defendant.
Whether
there existed any legal impediment to the conclusion of the second
agreement of sale entered into between the plaintiff and the second
defendant at the material time
28. The
agreed facts are that a default judgment was granted on the 19th
May 2017, confirming the cancellation of the agreement between
plaintiff and the 1st
defendant. A writ of execution was issued and 1st
defendant was evicted from the property. That on the 14 March 2018,
during the period when the order in Case No. HC446/17 was extant the
plaintiff entered into a written agreement of sale over the property
with the 2nd
defendant. The order in HC446/17 was rescinded and set-aside on the
22nd
November 2018.
29. Plaintiff
contends that the 2nd
agreement was concluded after the cancellation of the 1st
agreement and also at the time the default judgment confirming the
cancellation was still extant. It was submitted further that the
fact that the default judgment confirming the cancellation was later
rescinded is of no moment.
30. 1st
defendant in his heads of argument contended that the preamble in
the agreement between plaintiff and 2nd
defendant describes the property as Stand 6512 Bulawayo Township. It
is submitted further that the parties had in mind Stand 6512 instead
of 6505, and therefore there is no privity of contract between
plaintiff and 2nd
defendant concerning the property.
31. 2nd
defendant contends that 1st
defendant breached the terms of the agreement by failing to pay the
balance of the purchase price by the 31st
July 2015 which was the last date of payment provided in the
agreement. Subsequently 1st
defendant was notified of the breach and was asked to remedy it
within thirty days in accordance with section 8(1)(c)(ii) of the
Contractual Penalties Act. It was submitted that the notice was
served on the 1st
defendant, and he failed to remedy the breach within thirty days
thereof. The agreement was cancelled as per the notice. Thereafter
plaintiff sued out a summons and obtained a default judgment, and
1st
defendant was evicted from the property. It is contended that during
the period when the order confirming the cancellation was extant,
plaintiff sold the property to the 2nd
defendant. It was submitted that there was no
legal
impediment to the conclusion of the second agreement of sale entered
into between the plaintiff and the 2nd
defendant at the material time.
32. I
have found supra
that the property referred to in the agreed facts is Stand number
6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in
the District of Bulawayo. There is no factual dispute about the
identity of the property in issue subject to the agreement between
plaintiff and 2nd
defendant.
33. In
any event the validity of the agreement of sale between plaintiff
and 2nd
defendant is not an issue the 1st
defendant should concern himself about. His matter does not turn on
whether the second agreement was valid or not. His matter turns on
whether he breached his agreement of sale with the plaintiff, and
whether his agreement was lawfully cancelled. I have found supra
that the agreement of sale between plaintiff and 1st
defendant was lawfully cancelled.
34. Furthermore
on the date the property was sold to the 2nd
defendant the first agreement had been vacated in terms of the law.
The notice was issued and served in terms of the provisions of the
law, a default judgment had been granted confirming the cancellation
of the agreement between plaintiff and 1st
defendant. The plaintiff submitted that the fact that the default
judgment was subsequently rescinded is of no moment. I agree. I say
so because at the time the second agreement was concluded the
default judgment confirming the cancellation was extant. The issue
whether at the time the second agreement was concluded there was no
impediment to the sale of the property is answered in favour of the
plaintiff and 2nd
defendant.
To
whom should the property being Stand 6505 Bulawayo Township of Stand
6541A Bulawayo Township, situate in the District of Bulawayo be
transferred?
35. Plaintiff
submitted that since the 1st
agreement of sale was lawfully terminated, and that the only valid
agreement is between the plaintiff and 2nd
defendant, then it follows that the property should be transferred
to the 2nd
defendant. It was argued further that ordering a transfer of the
property to the 1st
defendant would be tantamount to creating a contract between
plaintiff and 1st
defendant, as none exists. It was contended further that to order
transfer to the 1st
defendant would be tantamount to ordering specific performance,
which remedy is not available to the 1st
defendant because he did not fulfil his contractual obligations.
36. Mr
Ndubiwa
submitted
that this court must order that the property be transferred to the
1st
defendant. Counsel further contended without conceding that this was
a case of a double sale, and that no special circumstances have been
shown justifying a departure from the general rule that says the
first in time is the stronger.
37. It
was submitted further that the court must order specific performance
in favour of the 1st
defendant because he has paid the purchase price by depositing the
balance into the account of plaintiff's legal practitioners. It
was argued further that the refusal to accept the payment on account
of the earlier unlawful termination of the property was of no
consequence.
38. I
take the view that this was not a double sale. The agreement between
plaintiff and 2nd
defendant was entered into after the agreement with 1st
defendant was lawfully cancelled.
39. The
agreed
facts are that 1st
defendant initially paid a deposit of USD37,000.00 by the 12 March
2015, and that he breached the agreement of sale by failing to pay
the balance of the purchase price of USD68,000.00 in the manner
prescribed in the agreement. By his own admission the 1st
defendant breached the agreement. I take the view that 1st
defendant is not entitled to an order of specific performance
because he breached the agreement. The remedy of specific
performance is not available to a party who has breached the
agreement. See: Savanhu
v Marere NO & Ors
2009
[1] ZLR 320.
His
attempts aimed at remedying his breach of the agreement were not
accepted by the plaintiff. A party cannot after a breach make a
unilateral payment hoping to remedy the breach.
40. Specific
performance is a discretionary remedy vested in the courts. In the
exercise of such discretion, the general rule is that, prima
facie,
every
party to a binding agreement who is ready to carry out his own
obligation under it has a right to demand the other party, so far as
it is possible, to perform its undertaking in terms of the contract.
Courts will exercise a discretion in determining whether or not
decrees of specific performance will be made. See Hativagone
& Another v CAG Farms (Pvt) Ltd & Others
SC42-2015
at 16.
41. 2nd
defendant is entitled to specific performance for the following
reasons, that in terms of the agreed facts the 2nd
defendant agreed and undertook to pay the full prescribed purchase
price in respect of the property being the sum of USD130,000.00 as
follows, a deposit in the sum of USD70,000.00 upon the signing of
the agreement and a balance of USD60,000.00 to be paid between the
31st
April 2018 and 31st
July 2018. It is stated that the 2nd
defendant had paid the sum of USD130,000.00 to the plaintiff, being
the full prescribed price in respect of the property in question.
2nd
defendant met its side of the bargain.
42. The
issue as to whom should the property being Stand 6505 Bulawayo
Township of Stand 6541A Bulawayo Township, situate in the District
of Bulawayo be transferred to is answered in favour of the 2nd
defendant.
43. In
the summons plaintiff sought an order that 1st
defendant pays occupational damages to the plaintiff in the sum of
US$800-00 per month or USS26-00 per day calculated from the 4th
September 2015 to the date of eviction. In
Silonda
v Nkomo
HB60-19,
BERE J (as he then was) expressed the view that where parties
entered into a sale agreement, the court could not read into it
anything other than what such agreement states. It could therefore
not be taken as a lease agreement to entitle a litigant to claim
holding over damages. Whilst this judgment was appealed, the Supreme
Court in Silonda
v Nkomo
SC6/2022
did not interfere with the learned judge's exposition of the law
as this was not one of the grounds of appeal ventilated before the
Supreme Court. This exposition of the law applies with full force in
this case. The plaintiff and 1st
defendant did not enter into a lease agreement. 1st
defendant resided at the property not as tenant but a purchaser
(notwithstanding that the agreement was subsequently cancelled). For
this reason the claim for holding over damages is not sustainable
and must fail.
44. In
the summons plaintiff sought an order for the eviction of the 1st
defendant and all those claiming through him from the property. The
issue of eviction is now moot. I say so because in the statement of
agreed facts it is stated that in terms of the writ of execution and
ejectment issued out on the 8th
February 2018, the 1st
defendant was evicted from the property in question and that as at
the date of this statement neither of the parties is in physical or
lawful occupation of the property. Therefore the issue of eviction
no longer presents a live dispute amongst the parties. This
court cannot order an eviction of a party who is no longer in
occupation of the property where they are sought to be evicted. It
is for this reason that the claim for eviction must fail.
45. The
general rule is that the costs follow the result. There is no reason
why this court should depart from such rule in this case. The 1st
defendant is to pay the plaintiff and 2nd
defendant's costs on the scale as between party and party. There
is no justification for costs on an attorney and client scale.
In
the result, I order as follows:
The
cancellation of the agreement of sale entered into between plaintiff
and 1st
defendant in respect of a property known Stand number 6505 Bulawayo
Township of Stand 6541A Bulawayo Township, situate in the District
of Bulawayo measuring 3109 square metres, D.T. 2749/84 is confirmed.
That
plaintiff shall transfer the property being Stand number 6505
Bulawayo Township of Stand 6541A Bulawayo Township, situate in the
District of Bulawayo measuring 3109 square metres D.T. 2749/84 to
2nd
defendant within thirty (30) days of this order.
1st
defendant pays the costs of suit for plaintiff and 2nd
defendant on a party and party scale.
Ndove
& Associates,
plaintiff's legal practitioners
Mashayamombe
& Co.
1st
defendant's legal practitioners
Webb,
Low & Barry,
2nd
defendant's legal practitioners
