The
plaintiff sues for the eviction of the defendant from her plot while
the defendant counter-sues for the transfer of title, rights and
interest in a portion of the same plot.
The
plaintiff testified and called the evidence of two other witnesses
who were her daughter, Eneresi Simon, and an employee of the Epworth
Local Board, Cagewell ...
The
plaintiff sues for the eviction of the defendant from her plot while
the defendant counter-sues for the transfer of title, rights and
interest in a portion of the same plot.
The
plaintiff testified and called the evidence of two other witnesses
who were her daughter, Eneresi Simon, and an employee of the Epworth
Local Board, Cagewell Muzangaza. The defendant gave evidence and
called the testimony of two other witnesses who were Pastor Elizabeth
Nyakudanga and Tedius Kagande. A total of six (6) documentary
exhibits were produced by both parties.
THE
PLAINTIFF'S CASE
The
plaintiff is an 83 year old woman. She cannot read or write. She has
difficulty in walking. According to her summary of evidence, her
husband died on 18 February 1982. In their pleadings, both parties
accepted that she was appointed an executrix dative on 22 August 2007
and subsequently became the legal holder of the rights, title, and
interest in Stand 1125 Makomo Extension, Epworth in Harare.
After
the death of her husband she survived on handouts from well-wishers.
She became a member of the Ambassadors for Christ Ministries; a
church led by, amongst others, Tedius Kagande. Kagande doled out
handouts to her, and, purporting to act under the auspices of the
church, built for her a more habitable two roomed structure on the
Stand in question. He requested her to sign a certain document on
which he purportedly wrote out her grandchildren's names and the
materials required for the construction of the more habitable
structure. She did not know whether he built it from his or church
funds. Thereafter, he introduced her to the defendant, who was a
teacher by profession, and a member of the same church. The defendant
was supposed to look after her. She allowed the defendant to build
another two-roomed house for his use on the Stand after she was
assured that he would be there for a short while. The defendant has
been ensconced on her Stand for the past nine (9) years. He neither
pays rentals nor municipal charges.
She
was adamant that she did not sell the smaller portion for $16,000= or
the bigger one for $23,000=. She disputed executing exhibit 1A and 1B
averring that she was illiterate. She denied seeking the subdivision
of the Stand in 2000. She averred that it was in 2008 that she went
with the defendant to the Epworth Local Board to have the dispute
resolved; and not to seek the subdivision of the Stand.
She
was cross examined.
She
considered Tedius Kagande as a leader of the church in Epworth and
did not know Pastor Nyakudanga and Pastor Matyora. She disputed that
she advised Kagande, in 1999, that she was selling a portion of her
Stand. She denied receiving $16,000= in the presence of Tedius
Kagande,
the defendant's wife, and her daughter, Eneresi Simon. She disputed
that the amount in question was used by Tedius
Kagande
in the construction of her two rooms. She denied requesting Eneresi
Simon
to sign exhibit 1A on her behalf before a Commissioner of Oaths. She
also denied executing exhibit 1B. She disputed using her daughter to
sign legal documents on her behalf.
She
related how the defendant sought to evict her from her Stand at the
Magistrates' Courts. She did not appear to be aware of exhibit 2,
the warrant for the ejectment of the defendant which she obtained on
3 August 2001 in the Magistrates Court; exhibit 3, the affidavit
signed on 16 May 2001, in her name, in the hand similar to that of
her daughter in exhibit 1A and exhibit 4; her application for a peace
order dated 13 December 2001 in which she graphically set out how the
defendant was disturbing her peace. She denied attending a funeral in
Malawi using the proceeds of the sale of a portion of the Stand. She
was given money by her daughter who was her breadwinner. She denied
informing Pastor Nyakudanga and Charles Shamuyarira of the sale of a
portion of her Stand to the defendant.
Eneresi
Simon stated that her mother never sold a portion of the Stand to the
defendant. She identified exhibit 1A as the blank document on which
she wrote out the plaintiff's name and national identity number.
She stated that her mother did not sell a portion of the Stand for
$16,000= or $23,000=. She denied signing exhibit 1A before a
Commissioner
of Oaths.
She
stated that her mother's trip to Malawi was funded by her
daughter-in-law in Malawi. In 2008, she accompanied her mother and
the defendant to the Epworth Local Board offices where they saw Mr.
Muzangaza. The plaintiff was against the subdivision of her Stand.
She
was cross-examined.
She
admitted to signing a blank exhibit 1A but denied signing exhibit 1B.
She stated that the defendant sought to evict the plaintiff
notwithstanding that exhibits 2 and 3 indicated her mother as the
plaintiff. That the defendant sought to evict the plaintiff from the
Stand was confirmed by exhibit 6, the summons issued out of the
Magistrates' Court by him on 27 June 2002. She denied signing for
her mother in exhibit 3 and 4. She disputed that $16,000= was paid in
her presence. She averred that her mother, who is of Nyanja origin,
could not converse in Shona.
Cagewell
Muzangaza is a Building Inspector for the Epworth Local Board. In
that capacity he deals, inter
alia,
with sub-divisions of residential Stands in Epworth. He told the
court that the Stand is registered in the plaintiff's name. He
stated that temporary structures, which are not based on an approved
plan, are on the Stand. He explained that a subdivision of a Stand is
initiated by the registered holder who writes to the local authority
and fills in a special document to this effect identifying to whom
the sub-division is to be registered. The Housing department vets the
information and makes its recommendations and forwards these to his
department. The witness checks the Stand on his master plan prepared
by town planners and approved by the Department of Physical Planning
in the Ministry of Local Government to satisfy himself whether it is
feasible to subdivide the Stand. He forwards his recommendations to
the Urban Development Corporation (UDCORP). He stated that it is only
the local authority which approaches UDCORP and not the registered
holder, or, for that matter, anyone else.
He
stated that in the file of the Stand in his custody is a request
purportedly made by the plaintiff in 2000 for a subdivision in favour
of the defendant. The application was rejected for two reasons.
Firstly, she was not the registered holder; her husband was, and,
secondly, there was no subdivision permit for the Stand.
He
further revealed that on 20 December 2007 the Urban Development
Corporation (UDCORP) wrote an unsolicited letter, exhibit 5, to the
local authority. The local authority ignored it because it had not
originated from it. He categorically stated that a sale of a portion
of a Stand cannot be approved by the local authority prior to
sub-division.
He
was cross examined.
He
disputed the averment that he was interested in the portion that was
allegedly disposed to the defendant. He denied that the
Urban Development Corporation (UDCORP)
wrote its letter in response to that of the local Board. At one time
in 2008 the parties came to see him. The defendant wanted sub
division but the plaintiff was against it as the matter was pending
in Court and alleged that the defendant was forcing her to sub-divide
the Stand.
As
will more fully appear when I determine the issues referred to trial,
I believed the plaintiff and her witnesses. They gave consistent and
credible testimony.
THE
DEFENDANT'S CASE
The
defendant stated that he purchased a portion of the Stand from the
plaintiff through the medium of Tedius Kagande. He paid $16,000= to
the plaintiff in the presence of his wife, Tedius Kagande and Eneresi
Simon in September 1999. They drove into town to Mr. Gode, a
Commissioner of Oaths, before whom Eneresi Simon
signed for her illiterate mother on exhibit 1A. The plaintiff
persuaded him to buy the bigger portion of the Stand by an additional
payment of $7,000=.
She accepted periodic payments.
The
latter agreement was recorded as exhibit 1B and executed for the
plaintiff by her daughter, Eneresi Simon.
He
commenced construction and started to reside on the Stand on 1
February 2000. Even though the Stand was in her late husband's
name, the plaintiff submitted an application for sub-division to the
local Board. The application failed because the plaintiff had not
constructed the main house on the Stand. The plaintiff was not in a
position to do so; so he suggested that he build the main house and
have it registered in his name. She took the view that he wanted to
evict her and all hell broke loose.
The
plaintiff issued summons for his eviction and obtained a default
judgment on 19 May 2001, in case number 7926/2001, as shown in
exhibit 2. She deposed in an affidavit, exhibit 3, on 16 May 2001,
that the defendant was her grown up son who was giving her problems.
It was purportedly signed by her; her full names were handwritten
above her typed name.
He
confirmed the visit to Cagewell Muzangaza in 2008 where the plaintiff
refused to have the Stand sub-divided into his name. He produced
exhibit 5, a letter written to the local Board by the Urban
Development Corporation (UDCORP) on 20 December 2007 for Stand 1171.
The typewritten Stand number 1171 was cancelled by pen and the number
1125 inserted. The cancellation was not countersigned. It does not
refer to any previous correspondence from the local authority. Its
authenticity is questionable. In my view, it does not assist the
defendant in his case.
He
was cross-examined.
He
stated that he borrowed $16,000= from his employers. Tedius Kagande
told him of the purchase price and it was confirmed by the plaintiff.
Tedius Kagande's young brother authored exhibit 1A. He further
averred that the sum of $16,000= was paid in the presence of the
young brother after he had drafted exhibit 1A. On 28 October a new
agreement on the additional payment for the bigger portion was
executed. The typed agreement, exhibit 1B, was typed by Tedius
Kagande at his town offices. By then, the plaintiff had commenced
building her two roomed structure. He commenced building on the
portion sold to him after the execution of exhibit 1B. He paid the
installments of $7,000= in two batches of $3,000= and 4,000= in
February and April 2000, respectively, to the plaintiff in the
presence of Eneresi Simon.
He
disputed issuing summons to evict her contrary to exhibit 6, the
summons in his name dated 27 June 2002, for the eviction of the
plaintiff alleging he had purchased the Stand. He maintained buying
the bigger portion of the Stand and denied conniving with Tedius
Kagande to defraud the plaintiff of a portion of her Stand.
He
called the evidence of Elizabeth Nyakudanga, a pastor of the church
attended by the parties in 1999. The pith of her testimony was that
the plaintiff informed her that she had sold a portion of the Stand
so that she could use the proceeds to build a better house. Her
church was not involved in humanitarian work at the time of the sale.
Under
cross examination, she alleged that the defendant paid the full
amount of $23,000= in 1999. She revealed that the defendant refreshed
her memory of the events of 1999 in January 2009.
The
last witness to testify for the defendant was Tedius Kagande. He
stated that he was asked by the plaintiff to find a buyer and he
connected her to the defendant. He took him to the plaintiff and
handed $16,000= to Eneresi Simon who was with the plaintiff. On his
suggestion exhibit 1A was executed. It was drawn up by his young
brother and signed before a Commissioner
of Oaths.
He
built the cottage of cement blocks for her after listing the required
materials. The materials cost half the amount paid by the defendant.
He did not charge her for his labour.
He
did not supply her with free food handouts. She later approached him
for the sale of the bigger portion and he referred her to the
defendant. He was not involved in the latter agreement.
Under
cross examination, he revealed that the defendant raised the purchase
price without viewing the Stand. The price was fixed by the plaintiff
and her daughter. His brother was not at the plaintiffs where the
money was paid but was in town. The first agreement was signed at his
town offices and taken to a commissioner for affirmation only. He
denied cheating the plaintiff.
For
the reasons that will become apparent when I determine the issues
referred to trial, I found the defendant and his witnesses incredible
witnesses.
THE
ISSUES
At
the pre-trial conference that was held on 1 July 2009, the matter was
referred to trial on the issues set out in the defendant's minute
of 20 May 2009. The issues for determination are as follows:
1.
Whether the plaintiff sold to the defendant a subdivision of Stand
1125 Makomo, Epworth.
2.
Whether the plaintiff should cede or assign her rights, interests and
title to the subdivision to the defendant.
3.
Whether the plaintiff is entitled to evict the defendant from the
property.
RESOLUTION
OF THE ISSUES
1.
Whether the plaintiff sold to the defendant a subdivision of Stand
1125 Makomo, Epworth
The
onus to show that an agreement of sale was executed lies on he who
avers that such an agreement was concluded. In the present matter the
incidence of proof falls on the defendant.
He
relied on exhibit 1A and 1B.
Exhibit
1A is a pro
forma
of an affidavit that is sold at Kingstons Booksellers and Stationers.
It was common cause that the name of the deponent and her national
identity number and address were handwritten by Eneresi Simon.
Eneresi stated that she was the one who wrote out the plaintiff's
name, national identity card, address and signature in exhibit 1A.
The
plaintiff purportedly swore that she had sold a subdivision of Stand
1125 Makomo to the defendant who had paid the full amount of
$16,000=. She further indicated that she was granting him change of
ownership. The affidavit was purportedly executed on 23 September
1999 before R. Gode, a Commissioner
of Oaths.
The
defendant did not disclose where exhibit 1A was drawn. He stated that
it was signed before the Commissioner
of Oaths
by Eneresi Simon in the presence of the plaintiff because the
plaintiff could not read or write.
The
defendant's witness, Tedius Kagande, disclosed that the affidavit
was purchased at Kingstons when the parties were on their way to his
town offices. Kagande further indicated that the contents of the
affidavit were written by his young brother at his town offices and
signed by Eneresi Simon before the parties proceeded to a
commissioner
of oaths. The commissioner of oaths simply confirmed with the
plaintiff the contents of the affidavit.
The
version of the plaintiff and her daughter differed from that adduced
by the defendant. The plaintiff stated that Tedius Kagande brought
the affidavit, in the absence of her daughter, and requested her to
fill in her personal details and signature ostensibly as a record of
the building materials he would purchase for her. The daughter
confirmed that when she visited her mother, as she was wont to do at
the end of each month, she wrote out her mother's details and
signed the affidavit for her. Both mother and daughter were adamant
that Eneresi Simon
signed a blank document and denied the present contents in the
affidavit.
The
versions of the defendant and Tedius Kagande were contradictory on
whether Eneresi Simon signed the document before a commissioner of
oaths or prior to the visit.
A
commissioner of oaths worthy his salt would have requested the
plaintiff to append her mark and thumb print on the document. He
would have known that it was improper for Eneresi Simon to sign as
the plaintiff without indicating that she was signing as her duly
authorised agent.
The
defendant did not disclose why and how Tedius Kagande's young
brother became involved in the matter.
It
does not appear that the plaintiff was ever given a copy of the
affidavit in question.
Neither
Tedius Kagande's young brother nor the Commissioner
of Oaths
was called to confirm the versions of the defendant and Tedius
Kagande.
The
two defence witnesses also contradicted each other on when the money
was paid. Tedius Kagande averred that it was paid at the plaintiff's
home. The defendant prevaricated. In his evidence in chief he averred
that it was paid at the plaintiff's home while under cross
examination he alleged that it was paid after the affidavit had been
compiled.
While
the defendant stated that Tedius Kagande's young brother was
present at the plaintiff's home when the money was paid, Tedius
Kagande stated that his young brother was never at the plaintiff's
home. Notwithstanding that, Kagande was of the view that the purchase
price of $16,000 was too high in comparison with similar Stands in
Glen View at the time. The defendant borrowed the money and paid it
before he had visited the site. He did not negotiate for a lower
price.
The
contradictions in the defendant and Tedius Kagande's testimonies
and the other shortcomings that I have highlighted show that
exhibit1A is a questionable document. I am not satisfied that the
defendant has discharged the onus on him to show, on a balance of
probabilities, that it was executed by the plaintiff.
Exhibit
1B was purportedly executed on 28 October 1999.
The
plaintiff purportedly sold her rights in the portion of the Stand
where the main house was to be built for an additional payment of
$7,000=. The amounts were to be paid on 30 February and 30 April 2000
in the sum of $4,000= and $3,000= respectively.
Again,
the document indicates that the plaintiff signed the document. The
defendant averred that it was signed by Eneresi Simon for her mother.
The signature in exhibit 1B appears to be similar to the one in
exhibit 1A and exhibit 3. The latter was an affidavit filed by the
plaintiff for default judgment against the defendant but is different
from the one in exhibit 4, an ex
parte
application
for a peace order that she filed on 13 December 2001.
The
defendant alleged that exhibit 1B was typed by Tedius Kagande. In his
testimony, Tedius Kagande expressed ignorance about it. Unlike the
defendant, Kagande alleged that he facilitated the purchase of the
larger portion of Stand 1125. The defendant alleged that he paid the
$7,000= on the due dates. He did not produce any proof of payment.
The agreement records 30 February as a date for the payment of the
first installment. Such a date does not exist. The application failed
because the plaintiff was not then the registered holder of rights in
the property, as averred by Cagewell Muzangaza and not because of the
absence of a main house on the Stand, as alleged by the defendant.
The
contradictions outlined above call into question the authenticity of
exhibit 1B, especially in the face of the denials by the plaintiff
and her daughter that they were involved in its creation and
execution.
Counsel
for the defendant submitted that the agreements were authentic. He
predicated his submission on the basis that the plaintiff permitted
the defendant to build a cottage on the Stand and allowed him to
reside thereat without paying rentals.
The
plaintiff stated that she fell under the influence of Tedius Kagande,
whom she trusted as an elder in her church and as a philanthropist
who helped her with food handouts and built a two-roomed cottage for
her.
I
found that her age and low intellect adequately explained her
naivety, which Tedius Kagande and the defendant exploited to the
latter's advantage.
In
any event, notwithstanding his allegations that he had purchased a
portion of the Stand, the defendant never volunteered to pay for his
proportional measure of the supplementary charges due to the local
Board.
I
am unable to find the non-payment of rentals by the defendant
indicative of the authenticity of the agreements.
Counsel
for the defendant further submitted that the attempt by the
plaintiff, in 2000, to register a portion of the Stand in the
defendant's name was conclusive evidence that she had disposed her
rights to him.
It
was common cause that the plaintiff is illiterate.
Cagewell
Muzangaza highlighted the elaborate paper work that is required of
the registered holder in seeking a subdivision permit. The defendant
did not produce the application in question. He did not adduce
evidence on how the plaintiff applied for the subdivision in his
favour. As she is illiterate it could very well be that someone else
completed and signed the forms that are required. The plaintiff
denied ever having done so. The defendant did not produce any
credible evidence to show that she made the application in person.
Cagewell Muzangaza's statement as to what he found in his file is
insufficient to show that the plaintiff sold the Stand to the
defendant.
There
were unsatisfactory features in the plaintiff's version concerning
her professed inability to understand Shona; her apparent ignorance
that she once sued the defendant for eviction and the source of the
funds she used to go to Malawi. These were, however, irrelevant to
the resolution of the first issue.
Pastor
Elizabeth Nyakudanga did not assist the defendant discharge the onus
on him as it became clear when she was cross-examined that she was
relying on what the defendant said to her in January 2009 rather than
on her own recollection of events. She contradicted herself on the
terms of the agreement of sale. I found her evidence unreliable.
Accordingly,
I hold that the plaintiff did not sell her rights in a portion of
Stand 1125 Makomo Extension to the defendant.
In
any event, it was common cause that when the purported agreements of
sale were executed, the rights in Stand 1125 vested in the deceased
estate of the plaintiff's late husband. The only person who has
control of property in a deceased estate is the executor duly
appointed to that office by the Master of the High Court. The
plaintiff was appointed an executrix dative on 22 August 2007. At the
time she allegedly disposed of rights in the property she lacked the
legal capacity to do so. She could not lawfully dispose of rights
that she did not have. See Nyandoro
& Anor v Nyandoro & Ors
HH89-08…,.
I
hold that the plaintiff did not sell a portion of Stand 1125 Makomo,
Epworth to the defendant.
The
resolution of the first issue in the plaintiff's favour would
dispose of the matter both in the main and in reconvention. However,
in the event that I am wrong on the first issue, I proceed to deal
with the alternative submissions that were made by counsel.
2.
Whether the plaintiff should cede or assign her rights, interests and
title to the subdivision to the defendant
It
was common cause that the onus lay on the defendant to show that he
was entitled to take cession.
Counsel
for the defendant contended that such cession was predicated on the
validity of the agreement of sale. He submitted that the agreement of
sale was valid.
Counsel
for the plaintiff,
on the other hand, submitted that even if the agreements were entered
into, they were invalid ab
initio
for two reasons. The first reason being that no sale was concluded as
the merx was not ascertainable. She correctly set out the three
essential elements of a contract of sale. These are;
(i)
Agreement (consensus ad idem);
(ii)
A thing sold (merx); and
(iii)
A price (pretium).
On
the authority of Chanock
v Barnard
1921 OPD 207…, she submitted that no contract of sale was executed
in the absence of an agreement on the merx. She contented that the
defendant had failed to describe and identify the portion of the
Stand that was sold to him.
Counsel
for the defendant,
on the other hand, contended that the portion sold was capable of
ascertainment.
We
are dealing with land.
The
portion of land sold can only be identified by area often expressed
in square metres. The defendant was not able to use this medium to
identify the portion of land sold to him. The obvious impediment
being that Stand 1125 is an indivisible unit. It was not subdivided
at the time or at present. Thus, had I found that the parties
concluded exhibits 1A and 1B, I would have found those agreements
invalid for failure to meet an essential requirement of a contract of
sale. The defendant cannot rely on Exhibit 5, the letter from the
Urban Development Corporation (UDCORP)
whose authenticity is questionable. The letter actually confirms that
Stand 1171, or if it correctly refers to Stand 1125, has not been
subdivided.
The
second reason advanced by counsel for the plaintiff was that the
agreement of sale contravened section 39 of the Regional Town and
Country Planning Act [Chapter
29:12].
She submitted, on the authority of X-Trend-A-Home
(Pvt) Ltd v Hoselaw Investments (Pvt) Ltd
2000
(2) ZLR 348 (S)…, that an agreement for the change of ownership of
an unsubdivided portion of a Stand is prohibited by the section in
question.
The
contention by counsel for the defendant,
that the agreement was for cession and not ownership, may legally be
correct; but it runs contrary to the contents of exhibit1A wherein
the plaintiff is alleged to have declared that she was granting
change of ownership to the defendant in these words: “therefore, I
now grant the change of ownership without delay.”
Counsel
for the defendant,
with reference to Chanda
v Mutadzi & Anor
SC74-94 and Mukarati
v Mkumbu
SC36-96, submitted that the Regional Town and Country Planning Act is
excluded from the purview of cessions involving local Boards. That
submission runs contrary to X-Trend-A-Home
(Pvt) Ltd v Hoselaw Investments (Pvt) Ltd
2000
(2) ZLR 348 (S).
In
any event, the two cases he referred to involved the sale of rights
in single units. They did not involve sales of unsubdivided portions.
I
would uphold the submissions made by counsel for the plaintiff and
deny the defendant cession of an unsubdivided portion of Stand 1125
of Makomo Extension, Epworth. A
fortiori,
the defendant's counter claim fails.
3.
Whether the plaintiff is entitled to evict the defendant from the
property
The
corollary to my findings on the first two issues is that the
plaintiff holds cession in Stand 1125. The defendant has no legal
basis to be on that Stand. Accordingly, she is entitled to the order
of eviction that she seeks.
DISPOSITION
It
is ordered that:
1.
The defendant and all those claiming occupation through him be and is
hereby evicted from Stand No. 1125 Makomo Extension, Epworth, Harare.
2.
The defendant's counterclaim be and is hereby dismissed.
3.
The defendant shall pay the plaintiff's costs of suit for both the
claim in convention and counter claim.
