It
was the plaintiff's claim, as filed in her declaration, that on 5
September 1985 she bought Stand 6203 Mabvuku from Ali Chikoko for the
sum of $3,700=. It was her belief, at the time, that her minor
children could not own property. She then entered into an oral
agreement with her young sister's husband, ...
It
was the plaintiff's claim, as filed in her declaration, that on 5
September 1985 she bought Stand 6203 Mabvuku from Ali Chikoko for the
sum of $3,700=. It was her belief, at the time, that her minor
children could not own property. She then entered into an oral
agreement with her young sister's husband, Bute Chikondo, to have
the property registered in his name. Cession was effected into the
name of Bute Chikondo by Harare City Council. On 15 May 2005, Bute
Chikondo died and the property was registered as part of his estate.
His children claim the house as their father's as it is registered
in his name.
The
plaintiff led evidence in support of her claim.
She
testified that she resides at 36 Chaneka, New Mabvuku. She owns the
property in question. In 1985 she met Ali Chikoko, a neighbour, who
advised that he was selling his house. The plaintiff decided to
purchase the house for her minor children. She then approached her
young sister and her husband so that they could use their name to
purchase the house as she already owned another house in the same
municipality.
At
the time, it was difficult to purchase property on behalf of a minor
in the same municipal area that you stayed.
The
plaintiff stated that she paid the purchase price in the presence of
Elizabeth Masaiti, Langton Ngoromo and Levison Yoweni. Mr Chikoko had
initially charged $4,000= but reduced the amount to $3,700= after
some negotiations. She paid cash for the property. She stated that
her sister and brother in law asked for $5,000= as payment for the
use of their name in the purchase of the property. The money was to
be deposited every month into their son, Oswald's, Post Office
Saving Bank (POSB) account which was opened for that purpose.
Following payment of the purchase price, cession was effected into
the name of the late Bute Chikondo at the municipal offices.
She
produced the cession documents which were addressed to the late Bute
Chikondo at his workplace. She stated that after he received them he
gave the documents to her.
The
plaintiff stated that Mr Ali Chikondo vacated the premises in April
1986 and she, thereafter, took up occupation by renting out the
property.
When
the plaintiff purchased the property it was a four-roomed house. She
then approached Mr Mushawatu for assistance in extending the house.
He looked for someone who drafted a plan for the extension. The plan
was approved on 8 August 1988 and she proceeded to carry out the
extension. She purchased pit sand, river sand and quarter stones from
Mr Mushawatu which had been left over when he extended his own
property. The plaintiff explained where she obtained all the other
building materials. She explained that she could not produce the
receipts for the timber which she bought from Johnson and Fletcher
because they destroy their files after every five years. She
installed the plumbing and the electricity. It was her evidence that
her sister and her brother-in-law never lived in the house in
question. Whenever they came to Harare they lived with her. She had
looked after her sister when she was ill at her house. When she died,
the funeral wake was held at her house. The plaintiff's sister died
in 2003 and her husband followed in 2005.
She
testified that during the life of her sister and brother-in-law they
never had problems and these only arose in 2005 - after the death of
the late Bute Chikondo. His children then came and claimed that the
property was theirs as it was in the name of their father. She also
produced receipts for the rates that she paid from the time she
purchased the property but these were all in the name of the late
Bute Chikondo.
In
cross-examination, she remained adamant that the property belonged to
her.
She
denied that she was trying to steal her nephews and nieces
inheritance. Although she was subjected to a rigorous and lengthy
questioning by the defendants counsel she was not shaken in cross
examination. The plaintiff appeared to be an open and honest witness.
She was a simple woman who had done a lot to assist her sister and
her family before her death. It seems that whenever the defendants
ever came into Harare they would be welcomed at the plaintiff's
home. The defendants would go there to spend their school holidays
with her when they were of school-going age. Her story had a ring of
truth in it. I believed the plaintiff's evidence.
The
next witness for the plaintiff was Kingstone Munyona.
He
testified that he is an Assistant Builder by profession and knew the
plaintiff through the builder he was working with at the time. He
testified that during the period 1987 to 1988 they extended a house
for the plaintiff. During that period, only the plaintiff and Mr
Mashawatu would come and inspect progress on the house. The plaintiff
would also bring all the materials they required to build. He stated
that at times they had to stop work when she failed to buy the
building materials. Their salary was paid by the plaintiff. He
testified that he had never heard of the name Bute Chikondo.
In
cross-examination, he remained firm in the view that the property
they built belonged to the plaintiff. Whilst he had no knowledge of
the sale he confirmed the plaintiff's story that all the
interactions with the builders was done by her. He stated that he
would not have known if Bute Chikondo had come to the house in his
absence as he did not know him and never met him. He also did not
know where the plaintiff got the money to buy the building materials
and pay his salary.
This
witness was a good witness and told his story in a truthful and
simple way. He was forthright in response to questions and readily
conceded where he had no personal knowledge.
I
believed his evidence.
The
next witness was Regis Takawira Mushawatu. He told the court that he
resides at 34 Chineka Road, New Mabvuku and he knows the plaintiff as
a neighbour. He has known her since 1973. He stated that although he
trained as a teacher he is now a freelance estate agent. He said that
he came to know that the plaintiff had bought the property in
question when she approached him seeking assistance in extending the
property. He also sold her some building material which was left over
after he had finished extending his house. He introduced the
plaintiff to Mr Mudyiwa so that he could draw up a plan for her
house. He gave her some tools to use such as a wheelbarrow and
shovels. He would advise her and accompany her when she went to
inspect the progress made by the builders.
The
witness stated that he did not know the late Bute Chikondo but knew
his wife as the plaintiff's young sister. He also knew the second
defendant as she used to come and visit the plaintiff during school
holidays. He denied that the Chikondos were the owners of the
property. He was convinced that the property belonged to the
plaintiff because they had never played a role during the
construction of the extension or at any stage when they came to visit
the plaintiff. He was aware that the property was being rented out
from the time it was purchased. Whenever the defendants' mother
visited she would live with the plaintiff. As far as he was aware,
the late Bute Chikondo and his family lived in Mutorashanga.
In
cross examination, he conceded that he had not been present when the
property was purchased but he indicated that the plaintiff had told
him that she had registered the property in her sister's name as
she could not own more than one property in Mabvuku. He stated that,
as far as he was aware, the plaintiff was a cross-border trader and
had raised money from her trade. He was adamant that the late Bute
Chikondo had never bought the property because on all the occasions
they visited Harare they never went to see the house in question. He
also stated that he never saw him coming to collect the rent. When it
was put to him that the plaintiff would collect the rent and deposit
it into their account he stated that he had no knowledge about that.
This
witness gave his evidence well and in a coherent manner. He readily
conceded what he did not know and insisted on things that he had
knowledge of. He was truthful in that he had not been present when
the property was purchased but he had been assisting the plaintiff
thereafter until the extensions were completed. He is the one whom
the Assistant Builder knew because he went to inspect the building
with the plaintiff.
I
had no hesitation in accepting his evidence.
Mr
Langton Ngoroni was the next witness for the plaintiff. He stated
that he knew the plaintiff as a neighbour and her husband who was his
friend. The property in dispute belonged to his nephew, one Ali
Chikoko. He told the court that sometime in 1985 Mr Ali Chikoko
visited him at his house, Portland Cement, and advised him that he
wished to sell his house and relocate to Malawi. He also advised him
that he had found a buyer for his house and he wanted him to witness
the sale. They proceeded to Mr Chikoko's house where he saw the
plaintiff. She was in the company of some people whom he did not
know. After the purchase price had been agreed to, the plaintiff
handed over the money to him and he counted it before passing it on
to his nephew. Mr Chikoko stated that he wanted to go and effect
cession of the property at the Council offices. He then asked the
plaintiff what she would do as she already owned another property in
Mabvuku. The plaintiff then stated that she would register the
property in the name of her sister. An Agreement of Sale was drafted
during his presence. Two weeks later, the plaintiff attended at his
workplace. She wanted to purchase cement to make extensions on the
new house. She gave him her money for 20 bags and he purchased the
cement for her.
In
cross-examination, however, he failed to explain who had drafted the
Agreement of Sale nor could he say the contents of the agreement. He
initially stated that the Agreement was signed in his presence but
later contradicted himself and said the Agreement was signed after he
had left. He stated that he left soon after handing over the money to
his nephew. He was however adamant that the plaintiff had stated that
she was purchasing a second house and was not buying as an agent for
another. When questioned by the court, he stated that he was 73 years
old and his nephew was in Malawi. He said he had last come to
Zimbabwe in 1995. He stated that as far as he was aware he was still
alive. He had however suffered a leg injury and could no longer
travel.
The
witness gave his evidence well in most respects. Although his
evidence on the Agreement of Sale was hazy he had a remarkably clear
recollection on all the other issues especially if one takes into
account his age.
The
last witness for the plaintiff was Mr Levison Yohane. He testified
that he is 67 years old and has lived in Mabvuku all his life. He
purchased his house in Mabvuku on 12 December 1972. Mr Ali Chikoko
was his brother-in-law. His young brother was married to Mr Ali
Chikoko's sister. He met the plaintiff for the first time at Mr Ali
Chikoko's house when the sale was concluded. He had also been
invited by Mr Chikoko to witness the sale. Mr Ali Chikoko introduced
him to the plaintiff as the buyer of his property. She purchased the
property for $3,700=. The transaction took place on 5 September 1985
at about 4.30 in the afternoon. He stated that they had hoped to go
to the Council offices that day to effect cession but by the time
they completed the transaction the offices had closed. They arranged
to meet the following day. He stated that the plaintiff explained
that as she already owned another house she had made arrangements to
register the house in the name of another. The following morning he
then met, for the first time, the plaintiff's brother-in-law at the
Council offices. The plaintiff indicated that ownership was to be
made in the name of her brother-in-law, Bute Chikondo. He stated that
before they entered the Council offices the plaintiff explained that
although she had purchased the property it was to be ceded into the
name of her brother in law. He stated that this explanation was made
in the presence of Bute Chikondo and her sister and he did not
protest about the arrangement. The witness testified that he was
surprised that the defendants were now claiming the house as
belonging to their father. He stated that even when the defendants'
mother died, her wake was conducted at the plaintiff's house and
not at the disputed house. In his opinion, if the property had
belonged to the late Bute Chikondo then her funeral wake would have
been held there as per customary law.
The
witness gave his evidence well and did not waiver
in cross-examination. He was present when the sale took place and at
the cession. He was adamant that he only saw the late Bute Chikondo
and his wife the day after the sale at the Council offices. He was
also adamant that when the plaintiff explained that the property was
to be registered in Bute Chikondos name, for convenience only, they
did not object. He also pointed out that when Benhilda Bute Chikondo
died her funeral wake was held at the plaintiff's house. It was his
view that if the disputed property had belonged to them then her wake
would have been held at her house and not her sister's house. I had
no hesitation in accepting his evidence.
With
this evidence, the plaintiff closed her case.
The
defendants opened their case with the evidence of the second
defendant. She told the court that she resides at Number 4 Rezende
Street in Harare. She is the eldest daughter of the late Mr and Mrs
Bute Chikondo. She testified that she was told by her parents Stand
6203 Mabvuku belonged to them as it had been purchased by her father.
Her parents also owned another property in Mbare. They had never
lived in these properties as they resided in Mutorashanga where her
father worked as a cook. Prior to her parent's death, the plaintiff
would give her parents the rentals for the property. Whenever her
parents failed to collect the rent money themselves the plaintiff
would deposit the money into a bank account in the name of Oswald,
the first defendant. She stated that her father was working for
Dunstan Transport when he developed the property. She produced a
letter from a Mr Mudzingwa from Dunstan Transport stating that they
assisted the late Bute Chikondo with building materials.
Problems
started after the death of their father when the plaintiff demanded
their father's death certificate. The matter was then resolved at
the funeral and the plaintiff started giving them rent from this
property for two rooms. After six or seven months, the witness then
asked for money for four rooms as the money they were getting was not
enough to pay school fees for the first defendant. The plaintiff then
stopped giving them money altogether. The witness stated that she
never had problems with the plaintiff until their parents died. She
told the court that she had also been told by her mother's
relatives that the house belonged to them.
In
cross examination, she confirmed that her parents had never lived in
the property in question. They had lived in a company house in
Mtorashanga until he retired in 1993. Her father then relocated to
the rural area. He would however occasionally come to live in Harare
and would do part-time work as a driver at Bika Brothers. She
confirmed that her mother's funeral wake was held at the
plaintiff's residence and that when she took out a funeral policy
for her mother she used the plaintiff's residence address.
She
denied the statement, in her summary of evidence, that the plaintiff
had a dispute with her mother over rent to the property. She also
failed to explain how that information would have formed part of her
pleadings if she had not told her legal practitioner about it.
Although she was cross examined at length on the issue she could not
offer any explanation why her parents had never lived in the property
in question or allowed them to use the property after they had
finished school. She conceded that even when her father had come to
Harare, after his retirement, to do part time work for Bika Brothers,
he had not made use of that house. She also failed to explain why she
was not calling any of her mother's relatives to support their case
since she had indicated, in her evidence-in-chief, that they knew
that the house belonged to them.
I
therefore found that her story was not plausible as it had too many
unexplained gaps.
Oswald
testified that he is the executor of the estate of his father, the
late Bute Chikondo. He told the court that when he grew up he knew
that his parents owned a house in Mabvuku. Tenants were renting the
property and the plaintiff would pay the money into his bank account.
The plaintiff kept the bank book and he made only one withdrawal in
it after he had been convicted of assault charges and needed the
money to pay the fine. After his parents died, the plaintiff refused
to give him the bank book.
In
cross examination, he stated that he could not bring the documents
relating to the property because he had only gone to the Council
offices to have the property ceded into his name. He stated that he
was however aware that there was a court order that had reversed the
title back into the deceased's name. He stated that he had failed
to continue with his education because he had no money as his father
was old and his mother had died. When it was put to him that his
mother died in 2003, when he was 17 years old and had finished
school, he stated that he had repeated various Grades several times.
When asked, again, why he left school, he stated that he did not
know. In re-examination, he explained that he did not know anything
because when he repeated classes he had only gone as far as Grade
Four.
The
first defendant was not a satisfactory witness. He was not
forthcoming in his evidence-in-chief and in cross-examination; he
claimed not to know anything. His memory on things which should have
been within his knowledge was hazy and fragmented. For instance, he
could not even explain the three withdrawals that he made in his
account save for the one when he was arrested. For these reasons, I
could not accept his evidence.
The
Master filed a report in accordance with Rule 248 of the High Court
Rules, 1971 as amended.
He
stated, in his report, that the registration of the estates of the
late Bute Chikondo and Benhilda Chikondo was irregular as the estates
where put under one reference number. He also recommended that as
there is a dispute, an independent executor be appointed. It should
be noted that the recommendations of the Master could not be
implemented as the issue of the removal of the executor was not
before the court.
The
sole issue for determination is who should be declared the true owner
of the property.
It
is apparent that, in this case, the court is called upon to make a
determination on conflicting facts. The property in dispute is ceded
in the name of Bute Chikondo. The presumption of ownership thus rests
with the title holder. The presumption may, however, be rebutted upon
clear and satisfactory evidence. In order to rebut this presumption,
the plaintiff must show, on a balance of probabilities, that she is
the actual owner of the property - even if it was not in her name.
The
plaintiff's evidence was that she had purchased the property but
had registered it in the name of her brother-in-law as it was
unlawful to own two properties in the same municipality. The evidence
she placed before the court was exhaustive. She was able to call the
persons who were present when the sale took place and she paid the
purchase price. Whilst it is not clear whether or not a written
agreement was signed on the day, the evidence disclosed that she was
the person who was the purchaser of the property. From the evidence,
it was apparent that she is the one who approached the seller and
paid the purchase price - in the presence of a number of witnesses.
Upon the seller vacating the property, the plaintiff was the one who
was in charge of the property. She rented out the property and
started renovations. Witnesses testified on the role they played on
the purchase of the building materials and construction of the
extension. They all had direct communication with the plaintiff. One
of the witnesses, Regis Takawira Mushawatu, indicated that he knew
the plaintiff's sister as she used to come and visit the plaintiff
but he had never seen her going to inspect the house or collecting
rent. He was the one who assisted the plaintiff when the renovations
were being done. The Assistant Builder, who built the property,
stated that he had only worked with the plaintiff and no-one else.
On
the other hand, the late Bute Chikondo and his wife never visited the
property neither did they live in it. Whenever they had occasion to
visit Harare, from Mutorashanga where they lived, they would stay
with the plaintiff. Their children also did not live in the property
or even keep a room for their use. It was worthy to note that after
the late Bute Chikondo retired he went to live in his rural home and
even when he came to Harare, to carry out part time work for Bika
Brothers, he would reside elsewhere and not on his property. It was
not in dispute that the late Bute Chikondo's wife's funeral wake
was held at the plaintiff's home instead of at the property in
question contrary to custom. It was telling that even when the second
defendant took out a funeral policy for her mother she used the
plaintiff's address and not the one at the disputed property.
The
nail on the coffin for the defendants was the evidence of Levison
Yohane, a sprity 68 year old who has been resident in Mabvuku since
1972. It was apparent from his evidence that he first met the
plaintiff on the day of the sale as he was the seller's brother in
law. He confirmed that the person who paid the purchase price was the
plaintiff, and, on the following day, when the plaintiff explained,
in the presence of Bute Chikondo and his wife, about the arrangement
to merely put his name for Council records, there was no objections
from them. He is not related to the plaintiff, and, in my view, no
basis was laid to show why he would lie in her favour.
The
defendant's case, on the other hand, was incoherent and fraught
with improbabilities.
Whilst
the court did take into account that the second defendant was only
four years old when the property was purchased and the first
defendant had not yet been born it was difficult to accept even the
facts which they should have been aware of. The plaintiff explained
that it had been agreed with her sister and brother in law that she
would pay $5,000= for using his name in the cession documents. She
indeed opened a bank account in the name of the
first defendant and made deposits therein. An examination of the
deposits shows that they were not consistent and it was not a fixed
sum. For instance, the first deposit, of $30= was in July 1989 and
the next deposit was in May 1990, which was almost ten months later,
with a deposit of $20=. This could not have been money for rent which
is paid every month. It is also noteworthy that although the late
Bute Chikondo retired in 1993 there was no evidence that he ever came
to collect his own rent. The management of the property remained
firmly in the hands of the plaintiff - even where it was not
necessary.
Three
withdrawals were made in the Post Office Savings Book. The first
defendant stated that he knew of only one; when he needed money to
pay a fine. The defendants tried to argue that the first defendant
had failed to continue with his education because he could not access
the money in the savings account. It was however apparent, in
cross-examination, that three withdrawals were actually made in the
book and by the time their mother died, the first defendant was 17
years old and would have finished school. The defendants also failed
to explain the fact that when their
father left employment, in 1993, he could have managed the rentals of
the Mabvuku house if he was not happy with the manner in which the
plaintiff was collecting and remitting the money.
The
defendants could not explain how the cession papers, which had been
posted to the late Bute Chikondo, ended up with the plaintiff.
I
did not accept the explanation that the plaintiff had stolen the
documents from her mother's clothes when she died. It was apparent
to me that since the plaintiff had all the relevant documents for the
plan and receipts for the building material, the late Bute Chikondo
had given her the cession papers. One would have assumed that if she
was indeed a caretaker for the defendant's parents, as alleged by
the defendants, she would have handed over all the documents to them
for accounting purposes since she would have used their money for the
construction.
I
also did not accept the defendant's evidence that the building
material which had been obtained by their father from Dunstan
Transport had been used for the construction of the Mabvuku property.
Firstly,
exhibit 7, which was produced in court by the second defendant, did
not specify the material that was given to the late Bute Chikondo by
his employers. The letter merely stated that he “was assisted with
building materials in the 1980s.” Secondly, there was no evidence
of where it was delivered. A reading of the letter leaves one with
the impression that the author of the letter did not seem to know
much about the transaction and that he was merely stating what he had
been told by the defendants. It was worthy to note that the late Bute
Chikondo chose to go and reside at his rural home after his
retirement. It may very well have been that the material was given
for him to build at his rural home.
The
second defendant also stated that after her parents died, the
plaintiff would give them money for rent for two rooms and she would
retain money for four rooms. This was denied by the plaintiff. I
believed the plaintiff because when the second defendant sought to
remove the plaintiff's tenants and install her own the plaintiff
immediately went to court and obtained a spoliation order against
her. This would have been unnecessary if they had agreed to the
defendant receiving such rent.
The
defendants also stated their mother's relatives had told them that
the property in Mabvuku belonged to their parents. However, it is
worthy to note that none of the relatives were called to testify to
this effect.
What
was undisputed was that the second defendant had taken a funeral
policy for their mother and had used the plaintiff's address for
all communication and not the disputed property. The defendant's
mother's funeral wake was held at the plaintiff's house. One
would have assumed that if she owned a house a few metres
away
it would have been held at her own house. These facts, in my view,
lead one to the inescapable conclusion that the property does indeed
belong to the plaintiff….,.
Accordingly
I make the following order:
1.
The plaintiff is hereby declared the owner of Stand Number 6203,
Mabvuku.
2.
The first defendant is hereby ordered to cede Stand 6203 Mabvuku to
the plaintiff within seven days of the granting of this order failing
which the Deputy Sheriff is hereby authorised to sign all necessary
documents to effect cession into the plaintiff's name.
3.
The third defendant shall facilitate the cession of the said property
into the name of the plaintiff.
