This is an appeal against the whole judgment of the High Court which was handed down on 10 April 2019. The gripe of the appellant is that the court a quo dismissed its claim and granted an order in favour of the respondent's counter-claim.
BACKGROUND FACTS
The facts of the matter which have a bearing on the dispute may be summarised in the following manner:
The appellant is a private limited company duly registered in accordance with the laws of Zimbabwe. The respondent is a private individual and resides at 12 Le Roux Drive, Hillside, Harare.
On 19 July 2017, the appellant issued summons against the respondent and sought an order in the following terms:
“(a) Ejectment forthwith of the defendant and all those claiming occupation through him from the property at Number 12 Le Roux Drive, Hillside, Harare.
(b) Payment of damages in the sum of US$58,000 to plaintiff;
(c) Payment of holding over damages in the amount of US$700 per month calculated from the 01st June 2017 to date of eviction;
(d) Costs of suit on the higher scale of legal practitioner and client.”
The basis of the claim followed a purported breach of contract by the respondent.
In its declaration to the summons, the appellant averred, that, sometime in September 2009, the parties entered into a verbal agreement for the sale and purchase of a portion of immovable property known as Number 12 Le Roux Drive, Harare ('the property'). The sale was facilitated by an estate agents company known as Property Plus Realtors (Private) Limited which was acting on behalf of the appellant.
The agreement of sale stipulated, that, the respondent would pay the purchase price of US$75,000 by paying a deposit of US$15,000 upon agreement. The balance of US$60,000 was to be paid at the rate of US$5,000 per month for 12 consecutive months with interest on the purchase price being calculated at the rate of 1 per cent per month. The full purchase price was to be paid on or before 30 August 2010.
The parties further agreed, that, the respondent would take immediate occupation of the property upon payment of the deposit.
The appellant alleged, that, the respondent failed to pay the full instalments by the due date, and, as such, breached the verbal agreement of sale. It was the appellant's evidence, that, the respondent failed to pay the sum of US$39,100 which comprised the principal debt and interest.
The appellant further stated, that, the respondent acknowledged, in writing, on 30 March 2017, that he had not paid the full purchase price.
On 17 May 2017, the appellant served the respondent with a notice to rectify its breach within 30 days. Despite the notice, the respondent failed or neglected to comply. As a result of the respondent's breach, the appellant cancelled the agreement of sale on 23 June 2017 and demanded vacant possession of the property.
Following the issuance of summons, the respondent entered an appearance to defend.
In his plea, he averred, that, the agreed purchase price for the property was US$68,000 and that he was to pay a deposit of US$15,000, and, thereafter, instalments of US$5,000 until the balance was paid in full.
The respondent further averred, that, he paid the deposit and a further US$37,000 and that the remaining balance, as at 1 May 2010, was US$16,000.
The respondent averred, that, he failed to continue with the payments as the appellant refused to come up with a written Agreement of Sale which would enable him to obtain a mortgage loan to pay for the outstanding balance for the property.
The respondent further averred, that, both parties, as a compromise to their verbal agreement, agreed, that, upon payment of US$300 by the respondent, the appellant would draft the Agreement of Sale.
The respondent paid the US$300 but no agreement was drafted.
The respondent further stated, that, the appellant, without his knowledge and consent, sought to subdivide the property.
In reaction to the subdivision, the respondent, through his legal practitioners, wrote a letter, on 30 March 2017, to the appellant, informing it to refrain from the illegal sub-division and for it to provide a written agreement of sale.
The respondent stated, that, the appellant did not comply with his notice.
The appellant decided to give him notice to rectify a non-existent breach of the verbal agreement. It was the respondent's averment that the notice by the appellant was a legal nullity and of no force and effect.
The respondent thus denied the appellant's entire claim, and, consequently, filed a counter-claim against the appellant seeking the following order:
“(a) An interdict restraining the Plaintiff from subdividing the property known as Stand 10830 Salisbury Township of Salisbury Township Lands Held Under Deed of Transfer Number 11900/2005.
(b) An order that the Plaintiff take all necessary steps to prepare an agreement of sale within 10 days of the granting of judgment reflecting the terms of the verbal agreement as set out in paragraphs 16 and 17 of this Declaration including the amount paid as of date and the balance outstanding in the sum of US$16,000.
(c) Costs of suit on a Legal Practitioner and client scale.”
In its plea to the counterclaim, the appellant maintained, that, the agreement between the parties was for the sale and purchase of a portion of the property.
The appellant further denied the payments and outstanding balance which the respondent purportedly made to it.
The appellant also denied that it had an obligation to draw up an Agreement of Sale.
It was the appellant's argument, that, the agreement of sale did not have a term which provided that the balance of the purchase price would be paid through a Bank loan.
Following a pre-trial conference before a Judge, in chambers, the parties entered into a joint pretrial conference minute which read as follows:
“ISSUES
1. What were the initial and later compromise terms of the agreement?
2. Whether or not the defendant breached any of the terms of the agreement.
3. Whether or not the plaintiff should not be interdicted from subdividing the property?
ONUS
4. On both parties in respect of issue number 1.
5. On the plaintiff in respect of issue 2.
6. On defendant in respect of issue 3.
ADMISSIONS
7. Plaintiff admits to receiving US$300 for the purposes of drafting an agreement of sale.
8. Defendant is presently in possession of the property.”
EVIDENCE BEFORE THE COURT A QUO
At the trial, the appellant led evidence through a single witness, one Brian Machengo (Machengo), a Sales Manager at Property Plus Realtors (Private) Limited.
Brian Machengo testified, that, the advertisement of the property was published through The Herald newspaper. It did not indicate that only a portion of the property was being sold. It simply made reference to 'one acre of panoramic views'.
He further stated, that, he was given a mandate by the appellant to sell the property for US$90,000 but published the advertisement with an offer price of $70,000.
His mandate was to sell land with a residential property measuring plus or minus 1,500 square meters. It was part of the whole property that comprised 12 Le Roux Drive.
The respondent was one of the persons who responded to the advertisement and made an offer to purchase the property for US$68,000. This offer was rejected by the appellant.
He could, however, not explain how the purchase price changed from US$90,000 to US$70,000, and, subsequently, to US$75,0000. It was his evidence, that, as the agreement was verbal there was no paper trail explaining what had taken place.
Brian Machengo further accepted, that, at the time when the sale was concluded, there was no subdivision permit as the permit was only granted on 10 February 2015.
He further accepted, that, the respondent paid about US$52,000 towards the purchase of the property and that he paid US$300 for the drafting of an Agreement of Sale.
He confirmed that the respondent filled in an offer to purchase form.
He also highlighted, that, the form did not make any reference to the respondent accessing mortgage finance to pay off the purchase price.
He denied that he was obliged to give the respondent a written agreement.
He further stated, that, the appellant was within his rights to sub-divide the property as he had only sold a portion of it to the respondent.
The respondent testified on his own behalf and led evidence from two other witnesses.
The respondent testified, that, he saw an advert for the property which had a purchase price of US$70,000. He made an offer for US$68,000 on an Offer Form provided to him by Brian Machengo.
He indicated that it was never mentioned to him that only a portion of the property was being sold and that from the description of the property on the advertisement he believed he was purchasing the whole property.
He denied that the purchase price of the property was agreed as US$75,000 as alleged by the appellant.
The respondent admitted that he had not paid the full purchase price for the property.
He attributed his failure to meet the terms of the agreement to the fact that his company was facing economic hardships and that he failed to acquire a Bank loan as the appellant had refused to give him a written Agreement of Sale.
He explained, that, since he failed to get a written agreement he was unable to obtain a loan to offset the outstanding balance.
The respondent testified, that, in 2010, he met Mr Van Hoogstraten, whom he believed to be the seller, for the first time, who informed him that he never signs written contracts in his business dealings.
He then formed the opinion that he was dealing with “crookey, dodgy, people” and decided not to pay the balance of the purchase price.
He testified, that, he later received a report that there were people subdividing the property.
He wrote to the appellant protesting the subdivision as he believed he had purchased the whole property. When he did not get a response, he made a report to the police. Following the report to the police, he then received a letter informing him that he was in breach of the agreement.
The respondent denied that he owed the sum of US$58,000 as damages for rentals calculated at the rate of US$700 per month.
In 2014, he again met Mr Van Hoogstraten, and, this time, he agreed to have a written Agreement of Sale, provided the money for drafting such agreement was paid. It was on this basis that he paid the $300 for drafting the Agreement of Sale.
However, in spite of paying the $300, no agreement was drafted by the appellant.
The evidence of Patrick Mapfumo, the respondent's second witness, was admitted with the consent of both parties.
Patrick Mapfumo's evidence, as stated in the respondent's summary of evidence, confirmed, that, in 2014, the witness and his wife had gone with the respondent to see one Mr. Nicholas Van Hoogstraten along Mazowe Road. Their party also included Brian Machengo. It was Patrick Mapfumo's evidence, that, at the meeting, the parties agreed that an Agreement of Sale be drawn up upon payment of US$300 (being made) by the respondent for drafting the agreement.
The respondent's third witness was Patrick Nyamugama, a registered estate agent, who appeared to give expert evidence in support of the respondent's case.
Patrick Nyamugama testified, that, around the year 2009 the property in dispute would have been valued at about US$70,000 – US$80,000. He also stated, that, if the property was to be subdivided, the value of the property would be about US$50,000.
At the conclusion of the trial, the court a quo found, that, the respondent purchased the entire property and not a subdivision as alleged by the appellant.
The court disbelieved the evidence of Brian Machengo and found him to be an evasive witness. The court also found that Brian Machengo made a number of concessions in favor of the respondent.
The court a quo thus found that the appellant had failed to prove its claim.
It noted, that, there were gaps in the evidence given by Brian Machengo and that the appellant ought to have called its directors.
The court further noted, that, as the subdivision of the property had already been granted it could not make any order interdicting the operation of the subdivision permit.
However, the court found, that, the subdivision permit number SD/CR/15/14, dated February 2015, was null and void as it had been granted six years after the whole property had been sold to the respondent.
In the result, the court made the following order:
“1. The plaintiff's claim is dismissed.
2. The defendant's counter-claim is granted.
3. The plaintiff shall take all the necessary steps to prepare an Agreement of Sale within ten (10) days of the handing down of this judgment reflecting the terms of the verbal agreement entered into on 30 August 2009 including the following:
3.1 That plaintiff sold to the defendant certain piece of land situate in the district of Salisbury called Stand 10830 Salisbury Township of Salisbury Township Lands measuring 3,033 square metres held under Deed of Transfer number 11900/2005 in favour of Divvyland Investments (Private) Limited.
3.2 That the agreed purchase price for the immovable property was the sum of US$68,000 (sixty eight thousand United States dollars).
3.3 That the defendant paid a deposit in the sum of US$15,000 (fifteen thousand United States dollars) on 04 September 2009.
3.4 That the defendant has paid a total of US$56,900 (fifty six thousand nine hundred United States dollars) to date towards liquidating the purchase price inclusive of interest.
3.5 That the defendant shall pay the outstanding balance of $14,384-01 (fourteen thousand three hundred and eighty four United States dollars and one cent) through a Bank loan.
4. The plaintiff shall pay the defendant's costs of suit, in respect of both the main claim and the counter-claim, on the legal practitioner and client scale.”
Aggrieved by the judgment of the court a quo, the appellant noted the present appeal on the following grounds:
1. The court a quo erred and misdirected itself in granting relief not sought by the parties, and, in consequence, by creating a non-existing contract for the parties.
2. The court a quo erred and misdirected itself in setting aside a valid subdivision permit when no such relief had been sought before it.
3. The court a quo erred and misdirected itself in failing to find, that, once the respondent was in willful default/breach for a period in excess of five years, and contrary to the agreement, the appellant was entitled to cancellation of the agreement and to the consequential relief of eviction and holding over damages.
4. Furthermore, the court a quo erred in its failure to find, that, the absence of a written agreement is no bar to payment of the purchase price and that the respondent was not absolved from performing his side of the agreement as he could still tender into court or have made payment as he had previously done.
5. The court a quo further erred and misdirected itself in failing to find, that, an advertisement is an invitation to treat and does not create a binding contract. Furthermore, it misdirected itself in failing to find, per the evidence led, that, the respondent's offer had not been accepted by the appellant.
6. The court a quo further erred in imposing a contractual obligation of loan/mortgage financing which did not form part of the agreement between the parties and which did not exist at the time of contracting as per the evidence led.
7. The court a quo further erred and misdirected itself in failing to find, that, the admissions made by the respondent entitled the appellant to succeed on its case and have the counterclaim dismissed. These were:
(a) The property is registered in the name of the appellant who still possesses all rights of ownership in terms of the title deed.
(b) The respondent had not paid the full purchase price, whether for the half portion or for the full portion. It doesn't matter which portion he has not paid and persists in breach beyond the contracted time period (sic).
(c) The appellant, like any other party, had a right to cancel the agreement and claim eviction and holding over damages consequent to cancellation.
8. The court a quo further erred and misdirected itself in disregarding the uncontroverted evidence that the land in issue was a half-acre portion as opposed to a full acre, regard being had to the mandate to sell letter and to the advertisement placed by the appellant.
9. The court a quo further erred and misdirected itself in failing to find, that, the agreement to sell a portion of land, absent a subdivision permit, was, in any event, unlawful and could consequently not be enforced.
The appellant's grounds of appeal, in my view, raise the following issues for determination:
1. Whether or not the court a quo granted relief not sought by either of the parties.
2. Whether or not the court a quo erred in dismissing the appellant's claim.
3. Whether or not the court a quo erred in granting the respondent's counterclaim.
I will proceed to deal with these issues seriatim.
APPELLANTS SUBMISSIONS BEFORE THIS COURT
Counsel for the appellant argued, that, the court a quo fell into error when it granted relief which was not sought by either of the parties.
It was counsel's submission, that, the court a quo's finding, that the subdivision permit was null and void, was made in error as the issue of its legal effect was never an issue for determination before the court.
Counsel argued, that, the court found that it could not interdict the operation of the sub-division permit as the permit had already been granted and yet the court a quo went on to grant the respondent's counterclaim - including the part which sought to interdict the appellant from subdividing the property.
It was also counsel's submission, that, paragraph 3 of the order granted by the court a quo was made in error as the court enforced a non-existent agreement made on 30 August 2009 when the verbal agreement was in September 2009.
The appellant submitted, that, the court a quo erred in granting a computation of figures which were to be included in the Agreement of Sale. In support of the point, counsel argued, that, the court misdirected itself when it ordered that the respondent was to pay US$14,384=01 through a Bank loan when the respondent, by his own admission during trial, maintained that he owed US$16,000.
In relation to the issue of whether or not the respondent proved his counterclaim, counsel for the appellant argued, that, the respondent, by his own admission, stated, that, in a period of over nine years he failed to pay the full purchase price of the property. He thus had no valid claim to the property which remained under the ownership and title of the appellant.
It was the appellant's further argument, that, the respondent's claim, that he was to obtain a Bank loan to pay off the outstanding amount, was never agreed to as between the parties and therefore the court a quo should not have granted an order allowing the respondent to pay the outstanding balance through a Bank loan.
Counsel concluded by submitting, that, it was a basic principle of law, that, where a person occupies another person's property he or she must pay rent.
Counsel thus argued, that, the respondent, having been in occupation of the property for over nine years without being able to satisfy the purchase price, was liable to pay the appellant damages of US$58,000 and holding over damages of US$700 per month calculated from 1 June 2017 to the date of eviction.
RESPONDENT'S SUBMISSIONS BEFORE THIS COURT
Per contra, counsel for the respondent submitted, that, the court a quo did not misdirect itself in its findings as it dealt with all the issues which were raised in the pre-trial conference minutes.
Counsel submitted, that, the court had to resolve whether there was a breach by the respondent.
Counsel further submitted, that, the events that led to the appellant issuing summons only arose after the respondent wrote to it informing it to stop the subdivision of the property as this was a breach of the agreement of sale.
It was counsel's argument, that, the court correctly believed the respondent's version of how the purchase price was paid. He also submitted, that, the respondent made efforts to pay off the outstanding balance by paying the US$300 for a written contract which would help him secure a loan.
The appellant's witness, Brian Machengo, made concessions during the trial which destroyed the appellant's claim. Counsel thus argued, that, the appellant's case was full of improbabilities and inconsistencies.
He therefore submitted, that, the judgment of the court a quo was unassailable and prayed for the dismissal of the appeal.
APPLICATION OF THE LAW
Whether or not the court a quo granted relief not sought by either of the parties
Before the court a quo, the appellant sought an order for the eviction of the respondent and all those claiming occupation through him, damages in the sum of US$58,000, holding over damages at the rate of US$700 per month calculated from 1 June 2017 to the date of eviction, and costs of suit on a higher scale.
The respondent, in his counter claim, sought an interdict restraining the appellant from subdividing the property and an order that the appellant take all necessary steps to prepare a written Agreement of Sale which would reflect the terms of the verbal contract and the outstanding balance of US$16,000.
The appellant's claim was dismissed by the court a quo and the respondent's counterclaim granted.
The question of whether or not the court granted competent relief sought by either of the parties shall thus be determined with regard to the order granted in favour of the respondent only.
The court a quo found, that, it could not grant an interdict against the subdivision permit as the permit had already been issued. The court also found, that, the subdivision permit was null and void.
The court, upon making this finding, thereafter proceeded to grant the respondent's counterclaim in its entirety.
In my view, this was the first error made by the court a quo.
As if this was not enough, the court went ahead and ordered that the appellant to facilitate the writing of an agreement of sale between the parties.
The court a quo laid out the terms to be included in the Agreement of Sale.
A close reading of the judgment of the court shows a marked discrepancy between what was prayed for by the respondent and what was eventually granted.
(i) Firstly, it should be noted, that, it is an accepted principle of our law that it is not open to a court to rewrite terms of a contract for the parties. A court cannot infer or imply terms of a contract between parties but must simply interpret the terms of the contract in the event that a dispute arises.
In Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, it was reiterated by the Court that:
“In principle, it is not open to the courts to re-write a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted…,.”
Further, in Wells v Southern African Alumenite Co. 1927 AD 69…, INNES J expressed that:
“If there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts.”
Paragraph 3 of the order of the court a quo clearly shows, that, the court fell into error in failing to appreciate the sacrosanct nature of the contract which existed between the parties.
Even if it was clear that the agreement between the parties was marred by different versions of events, the court could not dictate the terms of the agreement as the court was not party to the agreement nor was it present when the verbal agreement was concluded.
To further compound the error on the order, the court wrongly computed the dates when the agreement was made. Both parties agreed that the agreement was made in September 2009 and not 30 August 2009 as stated by the court.
The court went on to compute figures for the parties, which figures were disputed by the appellant and which were equally not clearly proved by the respondent.
The court a quo ordered that the agreement be written to reflect that the respondent paid a deposit of US$15,000 on 4 September 2009; that he paid a total of US$56,900 to date towards the purchase price plus interest; and that the outstanding balance to be paid by the respondent was US$14,384=01 to be paid through a Bank loan.
The court, however, failed to take cognizance of the fact, that, in making his counterclaim, the respondent stated the terms of the contract between the parties.
Under paragraph 17 of his claim, he averred, that, he paid a deposit of US$15,000; paid instalments of US$37,000 for a period between 30 September 2009 to 1 May 2010; and that a balance of US$16,000 remained.
The court a quo could not draft a new contract for the parties and dictate new terms.
The terms in the order were not the terms admitted and set out by the respondent in making the counter claim.
The court did not give justification for arriving at the amount it stated as US$56,900 (being the purchase price and interest) as the respondent himself never made reference to the amount of interest he paid in making the purchase price.
The court further arrived at the outstanding amount of US$14,384=01 without showing how such amount was calculated and yet the respondent had made an admission that the outstanding balance was US$16,000.
It can thus be deduced that the court misdirected itself by purporting to lay out terms of an agreement it was not a party to.
(ii) Secondly, the court a quo granted the respondent's counterclaim despite finding that it could not grant the interdict sought because the subdivision permit had already been granted. The court also went on to find, that, the subdivision permit was null and void.
A reading of the record shows that neither of the parties sought a declaration on the legality of the subdivision permit. Further, the record shows that the respondent did not motivate his claim by satisfying the requirements for an interdict - but the court still made a finding on the interdict sought.
A court must determine a matter based on the papers and evidence placed before it by the parties. It cannot go on a frolic of its own. This principle was stated in Nzara and Ors v Kashumba N.O. and Ors SC18-18…, wherein the Court held that:
“The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence, and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.
This position has become settled in our law.
Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of Court require that such an order be specified in the prayer and the draft order.
These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own. The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties issues.”
Also, in Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)…, GWAUNZA JA…, noted the following:
“The appellant argues, in light of all this, that the action of the court a quo, in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.
I am, for the reasons outlined below, persuaded by this argument….,.
The misdirection, on the part of the court a quo, is left in no doubt. It is, in my view, so serious as to leave this Court with no option but to interfere with the determination of the lower court.”
The court a quo thus erred and misdirected itself by mero motu granting relief which had not been sought by the respondent in his counter-claim. Such misdirection warrants interference by this Court as the court clearly went on a frolic of its own.
