KAMOCHA J: On 24 February 2006
this court granted a provisional order which applicant now seeks to have
confirmed. The terms of the final order
are these:-
“That the
provisional order granted by this honourable court be confirmed in the following
manner:-
1.
That the 1st and 2nd
respondents be and are hereby permanently interdicted from evicting the
applicant and his family from stand number 2105 Nkulumane Township, Bulawayo.
2.
That the 1st and 2nd
respondents be and are hereby ordered to permanently keep peace towards
applicant and his family and they be barred from entering stand number 2105
Nkulumane Township, Bulawayo.
3.
The 1st and 2nd
respondents be and are hereby ordered to sign all transfer documents of stand
2105 Nkulumane Township, Bulawayo
with the
applicant's name at the 3rd respondent's office within 5 days of
granting of this order failing which the Deputy Sheriff, Bulawayo shall sign
all transfer or relevant and necessary papers in their place.
4.
That 1st and 2nd
respondents pay costs of this application on attorney-client scale.”
This
is a double sale of house number 2105 Nkulumane Township, Bulawayo. The applicant claims to have bought the house
from one Jotham Magudu who latter passed away and 2nd respondent was
appointed executor dative of the estate of Jotham Magudu. The house was bought through an estate agent
known as Likwa Ndlovu. He bought the
property for $6 000 000,00 which he allegedly paid to the estate agent in
October 2003. However, Likwa Ndlovu,
does not seem to have paid the full purchase price to the 2nd
respondent. The applicant and the 2nd
respondent discussed The issue of the purchase price over the phone and was
made aware that the full purchase price had been paid to Likwa Ndlovu. The 2nd respondent does not deny
the fact that they discussed the matter with the applicant.
The applicant took vacant possession
of the property on 30 September 2004 through a Magistrates' Court order
arranged by 2nd respondent and Likwa Ndlovu estate agent through
Messrs Ben Baron and Partners. The
applicant has been in occupation of the property ever since until the 1st
respondent approached him on 21 February 2006 with a writ of ejectment issued
on 13 February 2006 by the Small Claims Court.
The 2nd respondent had sold the property to the 1st
respondent when he knew that it had been bought by the applicant who had paid
the full purchase price way back.
The 2nd respondent seems
to have changed his mind and was then denying that the property was ever sold
to the applicant. He challenged the
applicant to produce the agreement of sale and proof of payment for the
property. He denied that Likwa Ndlovu
estate agents was his agent.
That is simply not true. There is uncontroverted evidence that the
applicant and himself discussed the issue of payment for the house over the
phone. The affidavit by Nathan
Mashayamombe the legal practitioner who used to represent Likwa Ndlovu estate
agents confirmed that the 2nd respondent engaged the estate agent to
sell the property to applicant. He confirmed to the legal practitioner that he
had not yet recovered the full purchase price from Likwa Ndlovu. That 2nd respondent engaged Likwa
Ndlovu estate agent is also confirmed in the first and final liquidation and
distribution account in the estate of the late Jotham Magudu. The court holds that the house was indeed
sold to the applicant who paid for it in full.
The 1st respondent said
she was an innocent purchaser of the said property. Nothing could be further from the truth. She was quite aware that the property had
already been bought by someone. After
she had seen an advert in the press she went to the estate agent called Milano
agencies who gave her the address.
She proceeded to the house with her
relatives and found that the house had occupants one of whom identified himself
only as Mr Sibanda. This man told her
that the house had been bought from the 2nd respondent. The first
respondent did not believe what Mr Sibanda said. She demanded that he produced proof that the
house had been bought. Sibanda refused
to do so. Sibanda was one of the
applicant's relatives who stayed at that property. The 1st respondent went to the
Deeds Registry to find out if the property was registered in Sibanda's name.
It is difficult to imagine how she
was going to find out which Sibanda owned the house since the person she found
at the house merely identified himself as Sibanda. If she had genuinely wanted to find out
whether or not the owner had indeed sold the house she should have gone to the
2nd respondent and asked him to accompany her to the house and
confront the person who was alleging that the owner had sold the house. She did not do that because she probably was
reluctant to know the truth. She was not
an innocent buyer. She only has got
herself to blame. She acquired title to
the property when she knew that the property had been purchased by somebody
else before her. She now must look to
the 2nd respondent for the money she had paid for the property.
In the circumstance I would confirm
the provisional order with costs on the ordinary scale as I see no reason to
make an award of costs on the punitive scale.
Cheda & Partners, applicant's legal practitioners
Messrs Shenje & Company, 1st respondent's legal practitioners
Marondedze & Partners, 2nd respondent's legal
practitioners
