BHUNU
J: The thirteen applicants are members
of Printers Housing Cooperative Limited. It is common cause that sometime
around 2005 they concluded individual standard form contracts of sale with the
first respondent Douglas Nyaude a registered estate agent practicing under the style
of Graham and Douglas, Real Estate Agent. The contracts were in respect of the
sale of certain pieces of immovable properties mentioned in their respective
contracts.
In
terms of the standard form contract the purchase price was to be paid in
installments. The relevant clause provided as follows:
“MODE OF
PAYMENT:
i)
a deposit of ….. payable as follows
- $ ..... upon signing there of.
- $ ...... payable on ….
(ii)
The balance of … plus 30% interest per annum
payable in monthly installments of not less than $ ...... over a period of 24
months with the first installment payable on ….”
Occupation
was supposed to take place upon the completion of servicing of the properties.
The applicants proceeded to pay their respective deposits and installments in
terms of their agreements. Owing to rampant inflation the seller found it
impossible to service the land from the proceeds of the sale. As a result the
first respondent unilaterally increased the purchase price to cover the
increased costs of servicing the stands. That much is not in dispute.
The
bone of contention is whether or not the applicants subsequently ratified the
unilateral increase thereby compromising their position.
According
to the first respondent a meeting of stake holders was convened on 7 October
2006 to chart the way forward. At that
meeting he alleges that it was resolved that:
“Some time in
April D Nyaude increased the purchase price to $159,000,000-00 (REVALUED), per
square metre and then communicated to all stand owners. At the meeting he apologized
for communication breakdown and the apology was unanimously accepted by all
stakeholders who attended the meeting.
Due to the fact
that two hundred and seventy eight stakeholders were not paying the proposed
purchase price as at April 2006 the stakeholders present at the meeting
unanimously resolved that:-
1. The ratification of April increase
2. All stake holders should
pay all their arrears of the purchase price as at April on or before 31 October
2006.
3. If one fails to pay by
31 October 2006 the stand shall repossessed (sic) and sold to enable to the
completion of the project.
4. A meeting shall be held during the
first week of November to check on:-
1.1
Progress on site up to that date.
1.2
Payment position by those who had not paid the April
increase that had been ratified.
1.3
Way forward.
Signed…………………………….
G. Batani
PROJECT
MANAGER.”
The
applicants deny that they are bound by the above resolution and insist that the
price was unilaterally increased without their consent. The fundamental dispute
to be resolved is therefore whether or not the applicants are bound by that
resolution. Whether or not the applicants consented to the variation of the
price stipulated in their original contract of sale is a factual dispute
incapable of being resolved on the papers.
On
the papers it cannot be ascertained whether or not the applicants were present
at the stakeholders meeting which allegedly unanimously ratified the unilateral
increase of the original purchase price. From the tone of the alleged minutes
of that meeting we already know that not all stakeholders or stand owners
attended the meeting. If they were not present it cannot be ascertained on the
papers whether that meeting had the authority to legally bind the applicants in
their absence. I also note in passing that the minutes do not appear to have
been signed or authenticated by anyone purporting to represent the owners or
stakeholders let alone the applicants. The validity or otherwise of the minutes
is however a question of evidence.
The
resolution of the above factual disputes is in my view central to the
determination of the legality or otherwise of the cancellation of the
applicants' respective contracts of sale on allegations of breach of payment of
the purchase price.
In
the interest of justice it is necessary that the matter be referred to trial
for the resolution of the factual disputes in this case. It is accordingly
ordered:
1.
That this matter be and is hereby referred to trial.
2.
That the papers already filed shall stand as pleadings
with parties being granted leave to file any supplementary pleadings.
3.
That the parties shall observe all procedural
requirements before proceeding to trial.
Chikumbirike & Associates, applicants' legal practitioners.
Mbidzo Muchadehama &
Makoni, respondents' legal practitioners
