On 17 April 2007 the plaintiff issued summons against the defendants claiming the following:

“(a) An order that the plaintiff be declared the owner of Stand Number 14826 Unit 'O', Seke, Chitungwiza;

(b) An order that the third defendant be ordered to cede rights, title and interests in House Number 14826 Unit 'O', Seke, Chitungwiza to the plaintiff; and

(c) Costs of suit.”

In these proceedings the first defendant, who is late, is represented by Herbert Muwirimi, the executor of her estate.

The brief facts leading to the above claim are these:

On 18 July 2005 the plaintiff and the first defendant entered into an Agreement of Sale whereby the plaintiff purchased from the first defendant Stand Number 14826 Unit 'O' Seke, Chitungwiza (“the property”) for $80,000,000= (Eighty million dollars). The amount was paid in instalments, and, as at 27 November 2005, the full amount had been paid. Transfer of property, however, remained outstanding.

Notwithstanding the above Agreement of Sale between the plaintiff and the first defendant, on 16 March 2006 the first defendant, through another Agreement of Sale, sold the same property to the second defendant for $500,000,000= (five hundred million).

The property was then immediately transferred to the second defendant without the plaintiff's knowledge.

The above facts are common cause.

The plaintiff gave evidence in support of his claim. He confirmed the Agreement of Sale between him and the first defendant and stated that following full payment of the purchase price he took vacant possession of the property on 1 February 2006. He remains in possession.

The plaintiff said apart from requesting the first defendant, on three occasions, to attend to the transfer of the property, he had actually visited her at her rural home where upon she had promised to come to Chitungwiza to attend to the transfer. It was the plaintiff's evidence that when the first defendant finally came to Chitungwiza, during the first week of March 2006, she indicated that she was no longer willing to proceed with the sale of the property. This was so because her family members had objected to the sale of the property for the reason that it was a 'family house'.

The plaintiff's reaction was that he could only move out of the property if the first defendant bought him a similar property. He said he never agreed to the cancellation of the agreement. He also said there was never any suggestion of a top up. The first defendant, he testified, never advised him of the second sale of the property to the second defendant. He only discovered that the property had been transferred into the name of the second defendant through water bills which bore her name.

The plaintiff said the first defendant, in the company of the second defendant and her husband, visited him at the property during the second week of March 2006. It was then that the second defendant had disclosed that she had bought the property and therefore wanted him to move out. He refused to move out.

The plaintiff denied that he ever agreed to pay rent to the second defendant. He had paid the full purchase price and the property was now his. All what remained was transfer of the property to him. He denied ever receiving any reimbursement.

After his testimony, the plaintiff closed his case.

Herbert Muwirimi, the executor of the first defendant's estate, gave evidence, which, in the main, was based on hearsay. He said that the late first defendant was his aunt and was the owner of the property in dispute. He, however, only became aware of the contract between the plaintiff and the first defendant when he came to court. He was not aware of the second sale to the second defendant. All what her aunt had told him was that the plaintiff had not paid the 'top up'. He trusted that his brother, Onismus Muwirimi (Onismus), had accounted for all the money that had been paid by the plaintiff through him. The money was for the first defendant (i.e payments towards the agreed purchase price of $80 million).

Onismus Muwirimi, who was called as the last witness for the first defendant, testified that he was involved in the negotiations that led to the purchase of the property by the plaintiff. He said the first defendant was his aunt. He confirmed that an Agreement of Sale was signed between the plaintiff and the first defendant. The full purchase price of $80 million, including a top up of $2.5 million, was paid by the plaintiff. He said the 'top up' had arisen as a result of complaints from the first defendant's brothers who felt the price of $80 million was low.

Onismus Muwirimi, who was a close friend of the plaintiff, testified that her aunt's first legal practitioners, Messrs C Mutsahuni, Chikore & Partners had paid a refund of $82.5 million to the plaintiff. A receipt (exhibit 5) was produced. He, however, said the plaintiff had refused to accept the refund. The witness said he had told the plaintiff that because of his failure to pay the top up price, of $50 million, his aunt, the first defendant, was considering selling the property to someone else. Furthermore, his aunt's brothers were accusing him of conniving with him (the plaintiff) in order for the plaintiff to purchase the property at a cheaper price. He said when the property was finally sold to the second defendant, he did not disclose the first sale to her (the second defendant).

The second defendant gave evidence in support of the second sale of the property to her and was supported by two other witnesses. She confirmed that through a Mr Chihota, she had, in terms of an agreement of sale dated 16 March 2006, purchased the property from the plaintiff for $500 million. She said upon checking on ownership details with the Council, she had, within five days, proceeded to have the property transferred into her name before paying the purchase price. She also said she had not viewed the property since she had a general knowledge of the types of houses in the area. She had to move fast because she had been advised that there was also a soldier who was keen to pay more money for the property. She said she only discovered that the property had also been sold to the plaintiff after she had already transferred ownership to herself. The first defendant had only told her that a relative of hers was staying at the property.

The second defendant said one of her main aims in buying the property was to build a bigger house. She said that upon proving her ownership of the property to the plaintiff, he had initially agreed to pay $10 million per month as rental pending his final departure from the property. She said the plaintiff had, however, reneged on the rental arrangement.

Mr Livingstone Chituriro Chihota testified that he had indeed facilitated the purchase of the property by the second defendant. He said all negotiations leading to the purchase of the property by the second defendant had been conducted at his house, which was about 300 metres away from the property in issue. He said it was, however, not his duty to show the second defendant the property that the first defendant was selling. He said that his only duty was to find a buyer for the first defendant. Once he had found a buyer he sent Onismus Muwirimi for the first defendant, with the second defendant paying for Onismus's transport to the rural area to fetch the first defendant.

Clement Nhau was called as the last witness for the second defendant. He said the second defendant was his wife and that he had been present at Livingstone Chituriro Chihota's house when the purchase of the property was discussed and concluded. Like the second defendant, he also confirmed that they had not seen or viewed the property. He and the second defendant had been told that there was a soldier who was also interested in buying the property. He said, as a result, moving with speed became necessary in order not to lose the property. In the main, his evidence corroborated that of the second defendant.

In order to put all the evidence and submissions from the parties' legal practitioners in proper prospective, I think, in the face of the evidence now before me, it is necessary to restate the issues identified for trial at the pre-trial conference. The agreed issues were:

“1. Whether or not plaintiff was in breach of the contract between him and first defendant.

2. Whether or not the Agreement of Sale between the plaintiff and the first defendant was ever cancelled.

3. Whether or not second defendant is an innocent third party.”

Upon restating and evaluating the evidence of the plaintiff, counsel for the plaintiff submitted that the double sale situation had arisen as a result of greed on the part of the first defendant. He submitted that the plaintiff had paid the full purchase price in terms of the agreement. There was no dispute that the sum of $80 million had been paid.

Relying on Chimponda v Rodgriques and Others 1997 (2) ZLR 63, counsel for the plaintiff correctly submitted that it is the primary right of a wronged first buyer to have the remedy of specific performance unless there is some equitable reason disqualifying him/her from obtaining such a relief. He said, in casu, there were no special reasons/circumstances militating against the plaintiff's right to specific performance.

Counsel for the plaintiff submitted that the second defendant had conducted herself in a suspicious and questionable manner and hence leaving room for one to conclude that she was aware of the first sale i.e the sale of the property to the plaintiff. That being the case, counsel for the plaintiff argued, the second defendant's remedy was in an action for damages against the estate of the first defendant i.e the seller of the property. All in all, counsel for the plaintiff's position was that the plaintiff's rights under the contract entered into between him and the first defendant should be enforced by this court.

Counsel for the first defendant also cited the case of Chimponda v Rodgriques and Others 1997 (2) ZLR 63 and submitted that in a double sale situation the basic rule is that, in the absence of special circumstances, the first purchaser should succeed. Also relying on Guga v Moyo and Others ZLR 2000 (2) 458 (S), she went on to state that the special circumstances to be looked at are:-

“(i) Who has paid more money than the other.

(ii) Who has taken possession of the property and expended considerable sums on the house.

(iii) Whether first purchaser took any action to protect his interest when he became aware that the seller was behaving dishonestly.”

Counsel for the first defendant submitted that in casu the second defendant had paid more money than the plaintiff i.e. $500 million as compared to $82,5 million paid by the plaintiff. She said the plaintiff had, in any case, failed to protect his interest after being told, in February 2006, by his wife, that the second defendant was inquiring about whether or not the house was still on sale. She went on to say the plaintiff had also not reacted swiftly when told by officers at Chitungwiza Municipality that the file had been taken to the Head Office. She argued that such information should have indicated to the plaintiff that something was happening to the house. The plaintiff, she argued, did not, however, take prompt action to protect his interest. She concluded her submissions by urging the court to regard the second defendant as an innocent purchaser in whose favour the special circumstances should lie so as for her to be awarded the property.

Counsel for the second defendant submitted that the important factor to consider in a double sale was whether or not the second purchaser was aware of the first purchase of the same house. He submitted that at the time of the agreement to purchase the property and also at cession of rights, title and interest in the property, the second defendant was not aware or had no knowledge of the first sale. He said that the fact that the second defendant went on to purchase the property without seeing or viewing it could not be construed as conduct confirming that she had known of the first sale. In any case, he argued, the second defendant had given adequate explanation for her conduct. He said whereas the second defendant had protected her interests by quickly seeking transfer of property, the plaintiff had done nothing to protect his interests despite the fact that he had become aware of the first defendant's reluctance to proceed with the sale (i.e. through asking for a 'top-up'). Furthermore, counsel for the second defendant argued, the second defendant had paid more money than the plaintiff. He therefore submitted that the second defendant's case should succeed. The plaintiff, he suggested, could seek damages from the estate of the first defendant.

The facts in casu, in my view, clearly establish the existence of a double sale.

The first sale was completed on 27 November 2005 when the last instalment towards the purchase price of $80 million was paid by the plaintiff to the first defendant. The payment was in terms of the Agreement of Sale dated 18 July 2005. The issue of a top up only came some three months after the plaintiff had fulfilled his obligation under the contract. What remained to be done under that agreement was cession of rights, title and interest in the property to the plaintiff. The purported reversal of the Agreement of Sale, in March 2006, does not, in my view, invalidate the first sale.

The second sale was concluded on or before 16 March 2006 when the second defendant paid $500 million to the first defendant in terms of the agreement signed between the first defendant and the second defendant on that date.

In concluding that the evidence confirms the existence of a double sale, I am in the same vein stating that the plaintiff complied with his obligations under the Agreement of Sale dated 18 July 2005. The plaintiff did not breach that agreement. There was therefore nothing on which the first defendant could anchor cancellation on and worse still without notice.

In her plea filed of record on 6 July 2007, and prepared during her life time, the first defendant said she had cancelled the agreement between herself and the plaintiff because:-

“(i) He had failed to pay the full purchase price.

(ii) He chased away first defendant's lodger without her permission and he imposed himself on the property in question.

(iii) He started cutting trees at the house without permission.”

The above 'breaches' were never placed before the plaintiff.

The issue of a top-up amount is not mentioned anywhere in the pleadings. It was only raised during the hearing in court.

The plaintiff, who, I must say, I found to be a credible witness, denied that he had paid an additional sum of $2,5 million as a top up. He said the reason for the purported reversal of the agreement, as given him by the first defendant, was that the property “was a family house”. The family had therefore decided not to have it sold.

This does not tally with reasons given in the pleadings. The plaintiff had refused to accept a refund arguing that if anything, it was the first defendant's duty to get him a similar property.

Exhibit 5, showing the purported reimbursement of $82.5 million on 7 April 2006, through Messrs C Mutsahuni Chikore & Partners, throws mud in the first defendant's story.

The said legal practitioners are not mentioned anywhere in the pleadings, and, if indeed they had handled the matter one would have expected them to proceed against the non-rent paying plaintiff who had allegedly imposed himself on the property on 1 February 2006. That piece of evidence is suspect. I have, however, already indicated that as at 27 November 2005 the plaintiff had complied with the Agreement of Sale. He had, in terms of the agreement of sale, paid the only agreed and known purchase price of $80 million. Accordingly, in the absence of a breach, any purported cancellation of the agreement was of no effect. This finding disposes of the first two tissues; namely;

(i) Whether or not the plaintiff breached the agreement; and

(ii) Whether or not as a result of a breach the first defendant cancelled the agreement.

The last issue to be determined is whether or not the second defendant is an innocent purchaser.

I am unable to accept counsel for the second defendant's submission that the second defendant's conduct should not be construed as to mean that she had knowledge of the first sale. Admittedly, there is no direct evidence of knowledge. However, the following factors lead me into believing that the second defendant had knowledge of the first sale and that all she needed to do before parting with $500 million, was to establish that transfer of the property to the plaintiff had not yet taken place. That, as per her own evidence, she proceeded to do with speed.

The factors that confirm my belief that the second defendant knew of the first sale are these:-

1. The negotiations of the second sale were hurried and confined to Livingstone Chituriro Chihota's house despite the fact that the first defendant knew the plaintiff very well. The plaintiff had even helped her (first defendant) in registering the estate of her late husband, Mr White. That fact was not disputed. I find no good reason as to why the hurried negotiations were not held at her house which was only 300 metres away from Mr Chihota's house. The first defendant had no long association with Mr Chihota;

2. The second defendant did not bother to view the property which was only 300 metres from where the negotiations were taking place. The mere fact of buying the property, at a high price of $500 million, without inspecting/viewing it is strange. The only reasonable conclusion I can make is that the first and second defendants colluded to deprive the plaintiff of the property. This plan was enhanced by the fact that transfer of property had not yet been effected. The second defendant was even prepared to go out of her way to pay Onismus Muwirimi's transport costs in order for him (Onismus) to fetch the first defendant from her rural home;

3. The speed at which the transaction was concluded is quite unusual. Once the second defendant had established that transfer had not yet occurred she made sure that everything got sealed within five days. This was so in order to ensure that the plaintiff would remain in the dark until the transaction, particularly transfer of property, was through; and

4. The plaintiff only issued summons in this case on 17 April 2007. That is one year after the sale of the property to the second defendant on 16 March 2006. I believe that, were it not of the second defendant's knowledge of the dirty deal she had entered into with the first defendant, she would have, with the same speed she had employed in the transaction, caused the eviction of the plaintiff, who, worse still, according to her evidence, had refused to pay rent.

On the basis of the above factors, my conclusion is that there was connivance between the first defendant and the second defendant.

They were assisted in the execution of their plan by Onismus Muwirimi and Livingstone Chituriro Chihota. All ensured that the plaintiff would only be told after transfer of the property to the second defendant had been effected. That, as shown by evidence, is exactly what happened. That is the only reasonable way to explain the reason for confining the negotiations to Livingstone Chituriro Chihota's house and the failure to view the property which was only 300 metres away. The four knew they were doing something wrong, something whose results the plaintiff would only know when it was too late.

Accordingly, my finding, on a balance of probabilities, is that the second defendant was fully aware of the first sale.

In view of the foregoing, and given the authorities cited by counsel for the plaintiff, I fully agree that in the absence of special circumstances militating against the plaintiff, there is every reason for me to rule in his favour. The plaintiff is therefore entitled to his primary right of specific performance.

The fact that he paid less than the second defendant cannot be used against him in a situation where it has been established that through her conduct, the second defendant displayed her knowledge of the first sale. The court cannot ignore the manner in which both defendants conducted themselves.

I am also not persuaded by the argument that the plaintiff did nothing to protect his rights.

Having fulfilled his obligation under the agreement, the plaintiff quickly took possession - and is still in possession. Evidence shows that even before and after 16 March 2006, the plaintiff was pestering the first defendant with his demand for the transfer of the property to his name. The subsequent intentions of the first defendant only became clear after the second sale had been fully executed. Clearly, the plaintiff was duped and the second defendant was a big player in the clandestine transaction.

All in all, the equities in casu favour the plaintiff. The second defendant, if she so wishes, can proceed to claim damages from the estate of the first defendant. See both Chimponda v Rodgriques and Others 1997 (2) ZLR 63 and Guga v Moyo and Others ZLR 2000 (2) 458 (S).

The plaintiff's claim succeeds and it is therefore ordered as follows:-

1. That the plaintiff be and is hereby declared the lawful owner of Stand Number 14826 Unit 'O' Seke, Chitungwiza.

2. That the third defendant be and is hereby ordered to cancel the cession of rights title and interest in Stand Number 14826 Unit 'O' Seke, Chitungwiza, made in favour of the second defendant.

3. That the third defendant be and is hereby ordered to cede rights, title and interest in Stand Number 14826 Unit 'O' Seke, Chitungwiza to the plaintiff; and

4. That the first and second defendants shall pay costs of suit jointly and severally.

It was further contended, on behalf of Gomo, that what was before the court was a situation which was akin to a double sale and that therefore the principles applicable to a double sale should be applied in determining this dispute.

I do not see how the situation I am dealing with can be akin to a double sale. The local authority sought to sell what was no longer its property. It is correct, as submitted by counsel for the first respondent that a person can sell property that belongs to someone else. The only problem is that the effect of registration of rights in land is that the registered owner has the right to defend his right in the property against the world at large. Gomo cannot get title because the vendor in his case had no title to pass to Gomo.

In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of House Number 360 Makusha Township, Shurugwi.

The plaintiff was the purchaser and D. Katerere was the seller.

In pursuance of that agreement, D. Katerere and himself attended at the offices of the second defendant and caused all rights, title and interest D. Katerere had in the property in dispute to be formally transferred and registered in the plaintiff's name. Thereafter, the plaintiff took occupation of the house as the new holder of such rights and interests in the house.

In 1986 he vacated the house to take occupation of a plot he had just bought in the same town. He left some people in occupation of the house. The proprietor of Popular Bakery, Mr Gokwe, who was his brother in-law, requested him to let some of his employees occupy the house. He acquiesced to this request.

Amongst the Popular Bakery employees who took occupation was Raphias Jokonoko, the first defendant's elder brother. They took occupation in 1986 when the plaintiff left. When, later on, the first defendant was employed by Popular Bakery, he also took occupation in the house together with his elder brother.

It was only in about January to June 2000 that the plaintiff said he discovered that the second defendant had formally transferred and registered his rights and interest in the property in the name of the first defendant.

Upon this discovery, he demanded that such transfer be reversed and that the house be transferred back into his names as the lawful holder of rights, title and interest in the house.

Both the first and second defendants did not accede to this demand hence this suit filed on 15 May 2002.

In this suit, the plaintiff's claim is for an order:

(a) Declaring him to be the lawful holder of all the rights, title, and interest in House Number 360 Makusha Township;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interests in House Number 360 Makusha Township, Shurugwi in the name of the plaintiff; and

(c) Costs of suit jointly and severally against the first and second defendant with one paying the other to be absolved.

The first and second defendants filed a joint plea in which they disputed the plaintiff's claim and entitlement to have the house transferred and registered in his name.

In their plea, the defendants denied that:

1. Dickson Katerere's rights, title, and interest in the property were ceded or transferred to and registered in the plaintiff's name.

2. The property in dispute was ceded by the second defendant to the first defendant.

3. The house in question is or ever was on home ownership scheme contending that Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

4. That the plaintiff acquired any title to the house in question.

The issues for determination were identified as:

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute;

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred or ceded to and registered in the plaintiff's name; and

3. Whether or not the plaintiff is entitled, at law, to the relief that he seeks.

The plaintiff gave evidence and called two witnesses, namely, Gertrude Nhendereko and Thomas Mandiamba. He also tendered into evidence a bundle of documents he relied on in his evidence.

The first defendant, thereafter, gave evidence. He also tendered a bundle of documents in support of his case.

From the evidence adduced in court, it was apparent that the house in question was, at one time, registered in the name of Dickson Katerere. It was also apparent that the nature of the lease that the plaintiff alleged D. Katerere had was not an outright purchase.

The plaintiff's evidence was to the effect that D. Katerere had a lease to buy agreement and it is this agreement that he took over.

On taking over, he filled in cession forms and lease to buy agreement forms at the second defendant's office. This was in 1981. The lease to buy forms he filled in were similar to the lease to buy agreement that the first defendant had as part of his bundle of documents titled “purchase/sale agreement conversion of rental accommodation into homeownership.” This form has three parties to it, being Shurugwi Town Council, as owner of the house, the Government, as the owner of the land onto which the house is built, and the purchaser.

In Hundah v Murauro 1993 (2) ZLR 403 (S)…, the court alluded to the fact that:

“Land in the high density suburbs belonged to the local authorities, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the 4th category of lodgers or dependants). They are:

1. Simple tenants under a lease agreement with the local authority or central government;

2. Tenants to buy under an agreement which permitted them to take title once the property was surveyed and the full price paid; and

3. Owners who graduated from category two in the fullness of time.”

In casu the plaintiff claimed that the house in question was under Category Two whilst the first defendant contended that it was under Category One.

It is pertinent to point out, at this stage, that, at the time the two defendants filed their joint plea up to the close of pleadings, they were represented by the same law firm.

On 6 October 2008, that law firm renounced agency in respect of both defendants. On 20 April 2009, a new law firm assumed agency on behalf of the first defendant.

This was after the defendants had both been served with the notice of set down for a pre-trial conference, and, in fact, this pretrial conference had been held on 31 March 2009. Only the first defendant was present at the pre-trial conference. The second defendant defaulted, or, at least, was not present. Equally, at trial, the second defendant was not represented.

Counsel for the plaintiff indicated, that, the second defendant indeed defaulted at the pre-trial conference and has not appeared to contest the plaintiff's claim since then.

The record before me is however silent on what happened when the second defendant defaulted at the pre-trial conference despite having been served with the notice of set down.

I now turn to the issues at hand.

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute

The plaintiff's evidence on the issue was to the effect, that, on 20 August 1981 he entered into an agreement of sale with Dickson Katerere in respect of House Number 360 Makusha Township, Shurugwi. The house was in D. Katerere's name and it was in a homeownership scheme. In that regard he referred to p2 of the bundle of documents, as the agreement of sale. The document is an uncertified photocopy. It reflects the parties to the agreement as CG Musoni and Dickson Katerere. It is dated 29 August 1981.

The main body of the document states that:

“C Musoni Matambo has paid Mr D. Katerere the sum of four hundred and forty eight dollars for house number 360 in Makusha, up easy Stereo Radiogram, two speakers $360. Total paid for the lot $808.”

The plaintiff confirmed that it was only him who appended his signature to the document.

As proof that the house in question was on the second defendant's homeownership scheme, the plaintiff referred to p1 of his bundle of document exh 5. This is a document containing a list of houses he contended were on the second defendant's home-ownership scheme. The house in question is number 6 on that list.

Apart from the house number, other details pertaining to this house included;

(i) Type - Up easy;

(ii) Purchaser - Dickson Katerere;

(iii) Date - 1 April 1980;

(iv) Purchase price - $980=25;

(v) Period of purchase - 5 years;

(vi) Monthly rent - $18=68;

(vii) Land value - $125=00; and

(viii) Monthly rent, service electricity - $33=06.

The heading/title of the list is hardly legible.

It was the plaintiff's evidence, that, after paying D. Katerere a total of $448 the two of them approached the second defendant with the intention of effecting cession. They indicated to the second defendant's officials that he had bought D. Katerere's rights and interests in the house so can the house now be registered in the plaintiff's name.

The second defendant's officials did not deny that the house was in D. Katerere's name. Their only query was that they should have approached the second defendant before entering into the purchase agreement so that D. Katerere's lease is cancelled first and the plaintiff would then enter into a fresh lease to buy agreement with the second defendant. The plaintiff said the second defendant's official he dealt with was one named Mr Nhubu. At no time was it ever said that D. Katerere was a mere tenant with no rights or interest to sell in the house.

Gertrude Nhendereko gave evidence next on this issue.

She indicated, that, as a resident of Shurugwi, she knew that the house in dispute was amongst houses that were for home ownership. She confirmed that exhibit 1(a) is indeed from the second defendant and it does confirm that the house in question was on the home-ownership scheme. She knew this as a resident of Shurugwi, and, later, as a councillor.

It was her evidence that she had known the plaintiff for a long time as a fellow resident of Shurugwi. At one time they lived in the same neighbourhood before the plaintiff moved into the house in question in 1981.

Apart from the above, most of this witness's evidence was based on reports she received from the plaintiff which is of no probative value.

The first time she came to know that there was now a problem with the house in question was in 2000 when the plaintiff came to the second defendant complaining about the manner in which the house in question had been registered in the first defendant's name when he had infact bought it from D. Katerere and had had it ceded to him at the second defendant's offices in 1981.

Gertrude Nhendereko said she got to know this as she was now a councillor with the second defendant and she was in the committee that was tasked with looking into such complaints and cases of double allocations.

As far as the nature of lease D. Katerere had, Gertrude Nhendereko could not be of much use as she had not seen the lease agreement between D. Katerere and the second defendant. The most she could do was to confirm, that, to her knowledge, the houses in question were for homeownership from inception. She also confirmed that most of the documents tendered by the first defendant were in the file pertaining to the house in question when this dispute came to light.

Further support of the nature of lease D. Katerere had, is gannered from the first defendant's documents.

For instance, on p15 of the first defendant's bundle of documents is a letter dated 7 June 1982. The letter is addressed to Dickson Katerere and was authored by JMN Nhubu. This JMN Nhubu was the second respondent's Township Superintendent. The letter reads in part:

“RE: HOUSE NUMBER 360 MAKUSHA BREACH OF CONTRACT

It came to the notice of council, late 1981, that you are no longer staying at the above house and that you have allocated the house to someone without council authority. Any efforts to get in touch with you have failed as we gather you had gone to Malawi.

I now say that you have breached the contract you entered into on 8 April 1980 to purchase the above house for homeownership purposes for over a period of five years. In pursuing my explanations, therefore, I quote para nine of the home ownership forms:

'Until title to the property has been granted to the lessee by government, the lesser shall not, without written consent of the council, let property or any portion thereof to any person nor without such consent shall any person other than the lease or his dependants occupy the same or any portion thereof.'”

Mr Nhubu made it clear the contract D. Katerera had entered with the second defendant, on 8 April 1980, was for the purchase of the property in question over a period of five years. The scheme was for home ownership and not mere tenancy.

Further correspondence between the second defendant and the Ministry of Local Government over this house and others further confirm that this was a lease to buy agreement on what is termed home-ownership scheme.

I am satisfied, beyond reasonable doubt, that, Dickson Katerere occupied this house on a lease to buy agreement. Such agreements, by their very nature, do not confer title or ownership to the lessee till the lessee has complied with all the terms of the contract or in the fullness of time.

In casu, there is no denying that D. Katerere had not met all the requirements.

The rentals towards the purchase price had not been paid in full.

The plaintiff confirmed, that, as at the time he bought the property, D. Katerere had not paid in full. The plaintiff was to take over payment of the rentals.

Title had therefore not passed to D. Katerere.

By virtue of entering into the lease to buy agreement D. Katerere had acquired certain personal rights and interests in the property but not title or ownership.

The concept of ownership entails that one has full title to the property. This was not so with D. Katerere.

It may also be noted, that, the evidence adduced, and the documents tendered into evidence, show that D. Katerere was not a mere tenant. As already alluded to, he had entered into a lease to buy agreement with the second defendant. That agreement gave him certain rights and interests that he purported to sell to the plaintiff.

He had no title to pass to the plaintiff.

One would say the sale was conditional on the second defendant granting its consent and accepting the plaintiff to step into the shoes of D. Katerere.

This brings me to the second issue, namely:

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred to and registered in the plaintiff's name

The plaintiff's evidence was to the effect, that, pursuant to the agreement of sale, D. Katerere and himself attended at the second defendant's offices with the intention of having D. Katerere's rights and interests ceded to him.

On their first visit, they met resistance from Mr Nhubu who indicated that they should have come to the second defendant before entering into the agreement. The second defendant would then have cancelled D. Katerere's lease before entering into a new lease with the plaintiff.

They left without filling in the necessary forms for cession.

He sought ministerial guidance as he believed Mr Nhubu's point of view was incorrect. Later, D. Katerere and himself were called back to the second defendant's offices. On this occasion, he was made to fill in and sign cession forms together with lease to buy agreement forms. He was given a copy of the cession forms. On the lease, he was told, that, those forms would be sent to the Ministry of Local Government for execution by ministry officials on behalf of the Government.

He was further advised that the process would take three to four years for the forms to be executed and returned.

He thus waited to no avail.

He nevertheless took occupation and continued paying the lease to buy rentals as per the agreement.

When asked to produce a copy of the cession forms, the plaintiff said he could not produce this copy as it was being kept by his late wife. Efforts to locate the forms since his wife's death have yielded nothing.

As regards payments towards the lease to buy agreement, the plaintiff produced some receipts showing some payments he made to the second defendant in respect of this house. He could not produce a lot of such receipts due to lapse of time and the fact “that the receipts were being kept by his late wife.” As with the cession form, he could not locate more of the receipts. Those that he produced do show that he indeed made some payment.

It was his further evidence that he continued making the payments till the five years period was up. He also remained in occupation of the house till 1986 when he moved to a plot he had bought within the same town. At the time he moved out he had made the full payment for the house.

Though the plaintiff could not produce most of the receipts and the cession forms due to the reasons he advanced, his evidence that he signed the cession form and the second defendant thus consented to him taking over from D. Katerere was largely unchallenged.

The second defendant, as the other party to the cession and lease to buy agreement, could easily have rebutted that evidence had it not been true. Equally, if the plaintiff had not paid the sums of money he claimed, the second defendant was better placed to rebut that.

The second defendant's default meant that the plaintiff's evidence in that regard went unchallenged.

The first defendant could not sustainably challenge the plaintiff's evidence or assertion as he was not privy to the agreement and was not even in the picture during the period in question.

The first defendant's contention, that the plaintiff's failure to assert his rights over the property for a long time while the first defendant occupied it casts doubts to the credibility of the plaintiff's version, is without merit.

If the first defendant seriously believed the plaintiff's version was not the truth, he could easily have called witnesses from the second defendant who were alleged to have dealt with the plaintiff during the period in question. These would have been better placed to rebut the plaintiff's evidence.

The first defendant also attempted to rebut the plaintiff's evidence by referring to events that occurred after the date of the agreement of sale and cession. In this regard, he referred to the second defendant's purported cancellation of D. Katerera's lease in 1982.

As already alluded to, that letter, of 7 June 1982, contradicts the defendants plea in which they contended that D. Katerere was a mere tenant and the house in question was never on a home ownership scheme. That letter confirms to the contrary.

In any case, by 7 June 1982, the plaintiff said he had already signed cession forms and the agreement of lease to buy at the second defendant's offices.

So, for all intents and purposes, at the time that letter was written, the house had been ceded to the plaintiff and no longer in D. Katerere's name. The second defendant did not avail itself to rebut the plaintiff's evidence in that regard.

I am of the view that the probabilities are that D. Katerera's rights and interest were transferred to and registered in the plaintiff's name.

The third issue is:

3. Whether or not the plaintiff is entitled to the relief that he seeks?

The plaintiff's claim was for an order:

(a) Declaring him to be the lawful holder of all rights, title, and interest in House Number 360 Makusha Township, Shurugwi;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interest in House Number 360 Makusha Township, Shurugwi; and

(c) Costs of suit.

The plaintiff's evidence was to the effect, that, he discovered that the property had been unlawfully registered in the first defendant's name in the year 2000 when he went to the second defendant's offices to inquire about the price for the land as he had long paid up for the house.

From his own words, therefore, he had not paid for the land, or, at least, he was not certain that he had paid for the land hence the inquiry.

The standard lease to buy agreement, which he said is similar to the one he signed, states the parties to the agreements as three: Shurugwi Town Council, as the first part and owner of the dwelling; the Government of Zimbabwe, as the second part and owner of the land on which the dwelling is built. The dwelling and the State land together are referred to as the “property”: the third part is the purchaser.

The first defendant contended that the non-joinder of the State, through the Minister responsible for Local Government and National Housing, in this suit is fatal to the plaintiff's relief.

The plaintiff only cited two parties with a contractual interest in the property but left out the owner of the property who has real rights. The relief seeking a transfer of the rights, title and interests to the property is not competent if it does not compel the owner of the property. In support of this posture, the first defendant's counsel cited the case of Rose v Arnold & Ors 1995 (2) ZLR 17 (H).

The plaintiff, on the other hand, argued, that, failure to cite the Minister responsible for Local Government and National Housing was not fatal to the plaintiff's claim.

The plaintiff's counsel argued that the second defendant is a form of decentralized government which was established under the Rural Districts Councils Act [Chapter 29:13] with powers to sue and be sued in its own name: see section 12 of the Rural Districts Councils Act.

Section 71(2) of the Rural Districts Councils Act provides for the derogation of administrative functions.

In this regard, counsel cited the case of Reddy v Town Council for the Borough of Kloof 1964 (3) SA 280 wherein the court held, that, once authority has been delegated, it is a misjoinder to cite the superior controlling body as the delegated officer is responsible for the exercise of the delegated authority on its own.

The plaintiff's counsel argued that, in casu, the second defendant was endowed with delegated authority by the Minister of Local Government and National Housing to handle the allocations, leases, sales and transfers of the houses and stands within its area.

Further, the second defendant is the authority that is actually responsible for the transfer and registration of rights, title, and interest in the houses within its area.

The relief being sought is therefore capable of being granted and effectively enforced as against the second defendant alone.

Whilst the plaintiff's argument was forceful, counsel could not cite any authority or piece of legislation where the Minister granted the second defendant authority to pass title on the land.

A reading of the Standard lease to buy agreement that was tendered by the first defendant shows that the second defendant owned the dwelling whereas Government owned the land on which the dwelling was built.

In its administration of its area, the second defendant took upon itself certain responsibilities when entering into the lease to buy agreement. The second defendant can be ordered to fulfil those responsibilities.

Whilst the lease agreement cites three (3) parties, the second defendant and Government are, in fact, joint sellers in as far as the second defendant owns the house whilst Government owns the land.

The second defendant was given overall responsibility in the leasing out and selling of the house and the land on which the house is built. The house is leased/sold on the second defendant's own behalf whilst the land is sold on Government's behalf. It is the second defendant that must account to Government for the State land. The Government's side seems to be a mere formality of granting title when Council has fulfilled its part and made such a request in favour of its lessee or purchaser.

This is apparent from the fact that the consent required for one to obtain.cession or to deal with the property in any other way is that of the second defendant. No where does the standard agreement refer to the need for consent by Government.

For instance, clauses 11 and 20 make it clear that the consent is that of the second defendant.

Clause 11 states that:-

“Until title to the property has been granted to the purchaser by the government the purchaser shall not, without the prior written consent of the council, let the property or any portion thereof to any person nor without such consent shall any person other than the purchaser or his dependants occupy the same or any portion thereof.”

Clause 20 states that:-

“The purchaser shall not part with the possession of the property or any part thereof nor cede nor assign nor hypothecate this Agreement or any rights hereunder to any person without the previous consent in writing of the council.”

In terms of the agreement, the term property is used to mean the dwelling owned by Council and stand (land) owned by Government.

It is apparent, therefore, that, in granting consent over the property, Council will be granting consent over State land as well. That is as Council was empowered by Government.

The Government's role, as reflected in clause 18, is that it 'agreed to grant title in accordance with the provisions of clauses 16 and 17.'

These two clauses deal with the purchaser paying agreed sums to Council or satisfying Council that payment has been guaranteed.

Clause 16 states that:-

“The purchaser may, on payment of any principal outstanding and any other charges payable in terms of this agreement to the Council, including the charges referred to in clause 18 hereof, which charges may be paid in instalments in such amounts as maybe agreed to be Council, and, on payment by the Council to the government of the sum of…, due to it for the land and the sums due in terms of clause 18 hereof receive title to the land.”

Clause 17 states that:-

“Notwithstanding the provisions of Clause 16 hereof title to the property may be granted to the purchaser in terms of this clause provided the purchaser satisfies Council that:-

(i) He has been granted a loan to be secured by mortgage bond over the property; and

(ii) The principal and interest outstanding, and any other charges payable in terms of this agreement, have been paid or guaranteed to the satisfaction of the Council against issue of the title.”

Clearly, though two parties are cited as sellers, it is Council that is saddled or clothed with all the administrative functions. Council virtually exercises all the functions of the seller after which Government grants title as a formality. It is Council that passes the purchaser as deserving of title and Government merely caps the purchaser.

The first defendant also contended, that, the plaintiff did not obtain prior written consent of the second defendant before entering into a sale agreement with D. Katerere and so such agreement is void ab initio.

The issue of absence of written consent at the time parties enter agreement of sale has been a subject of a number of court decisions. The point is now settled.

In Mukarati v Mkumbu 1996 (1) ZLR 212 (S), when faced with such a scenario, the court held that:-

“…, the agreement between the parties was not exactly void. The seller could validly contract to sell but could not pass title without the Council's approval. This made the contract a conditional one with an implied term that the sale was subject to the consent of the Council.

This cast an enforceable duty on the seller to seek the Council's approval. If the approval were given, transfer could take place. If it were refused, the contract would be unenforceable until such time as the seller was in a position to pass title. The buyer would then have to elect either to seek restitution or to wait until the property was no longer encumbered and transfer could be effected without the Council's consent.”

In David Tobaiwa v Clemence Kaseke and 2 Ors HH74-06 MAKARAU JP…, after quoting EBRAHIM JA in Mukarati v Mkumbu 1996 (1) ZLR 212 (S)…, went on to say that:

“I would venture to suggest, at this stage, and following the remarks of EBRAHIM JA, that, it appears to me legally possible for a person in the position of the first respondent to enter into a contract of sale not only of the property itself as suggested by EBRAHIM JA, but, of the rights, title and interest that he has under the suspensive agreement of sale and which rights will, in due course, mature into real rights in respect of the property. Thus, it is my view that those personal rights that are conferred by the suspensive agreement of sale are capable of being sold and bought without the prior consent of the local authority concerned.“

In casu, D. Katerere could validly sell his rights and interests in the property to the plaintiff conditional on obtaining Council's consent.

The plaintiff's evidence was to the effect, that, such consent was later obtained as Council approved of the cession of the property and had it registered in his name and he was made to sign the lease to buy agreement forms that he was made to believe would be sent to the Ministry of Local Government.

This occurrence was not challenged by the second defendant.

If that took place, albeit after initial resistance by Mr Nhubu, it means the property was ceded to the plaintiff and the plaintiff acquired all the rights and interests that D. Katerere had in the property in 1981.

The first defendant's challenge of this evidence was without foundation.

The plaintiff's claim, and basis thereof, were brought to the attention of the second defendant as the other party to the cession documents. Despite filing a joint plea with the first defendant, the second defendant defaulted and has not sought to further challenge the plaintiff's claim.

The plaintiff's evidence was thus unchallenged.

The first defendant sought to rely very much on the absence of documents in the file pertaining to this house on the agreement between D. Katerere and Council and also the absence of documents showing that the second defendant approved cession to the plaintiff.

Unfortunately for the first defendant, the keeper of those documents who would have testified to the existence or non-existence of such documents at any time in the past, decided not to come to testify against the plaintiff.

The plaintiff clearly indicated that he completed and signed all the necessary documents at the second defendant's offices.

Gertrude Nhendereko also alluded to the absence of such documents in the file but proceeded to say that there were a lot of double allocations of houses, and, in some instances, documents were missing from the files. She attributed the double allocation and the missing documents to corruption within the second defendant.

It may also be noted, that, from the first defendant's own evidence, there was something amiss on this house. It was the first defendant's evidence that his elder brother and himself moved into this house in about March 1987. They found the house vacant. It is also evident, from a letter dated 7 June 1982…, that, as of June 1982, Mr D. Katerere was no longer in that house. D. Katerere, had, instead, put someone else whom Council wanted moved out.

There is an unexplained vacuum in the occupation and registration of this house in the period from when D. Katerere moved out to 1987 when the first defendant said he took occupation with his brother.

The vacuum is in the file pertaining to this house and kept by Council. No explanation was offered by the first and the second defendants for the vacuum.

The plaintiff, on the other hand, testified that there was never a vacuum as he took occupation from D. Katerere in 1981 soon after obtaining cession. He remained in occupation of the house till 1986. In 1986 he moved to a plot he had bought in the same town. On moving out, he left some people who included the first defendant's elder brother Raphius Jokonoko. Raphius Jokonoko was, at the time, employed by Popular Bakery.

The proprietor of Popular Bakery, Mr Gogwe, who was the plaintiff's brother in law, had requested the plaintiff to allow his employees to occupy the house.

Being related to Mr Gogwe, and since he had paid in full, the plaintiff said he did not demand rent from Mr Gogwe or his employees but that they pay service charges.

It was whilst Raphius Jokonoko, and another employee of Popular Bakery, were in occupation of the house that the first defendant joined them when he started working for Popular Bakery.

As far as the plaintiff was concerned, the house was occupied by employees of Popular Bakery at the request of Mr Gogwe.

Mr Thomas Mandiamba gave evidence on this aspect.

He was, at the time, employed by Popular Bakery. He confirmed the plaintiff's version on how Raphius Jokonoko and other employees of Popular Bakery came to occupy the house in question. Mr Mandiamba indicated that he was the one sent by Mr Gogwe to the plaintiff with a request for accommodation for Popular Bakery employees.

As a result of the discussion between Mr Gogwe and the plaintiff, two bakery employees, who included Raphius Jokonoko, were given occupation of the house with Popular Bakery paying service charges.

That version was, as with the plaintiff's evidence, virtually unchallenged.

If, therefore, the plaintiff acquired rights and interests in the property from D. Katerere and thereafter had the house ceded to him, it is clear the plaintiff has a claim against the second defendant.

Council, as owner of the dwelling, can be ordered and directed to register the dwelling in the name of the plaintiff as the lawful holder of rights and interests in the dwelling.

Council, as administrator of State land, can be ordered and directed to do/take such steps as are provided for in the lease to buy agreement to ensure that Government is appraised of the plaintiff's status as the holder of rights and interests in the dwelling built on Stand 360 Makusha Township and thus entitled to be granted title per Government's undertaking in terms of clause 18 of the lease to buy agreement. It will then be up to Government to grant title.

In a bid to stave off the plaintiff's claim, the first defendant contended that he has better title to the property and so the plaintiff should not succeed.

In that regard, he referred to a lease to buy agreement that he entered into on 17 December 2002. He also referred to several payments he made in furtherance of that agreement.

That agreement is titled “PURCHASE/SALE AGREEMENT CONVERSION OF RENTED ACCOMMODATION INTO HOME OWNERSHIP: MEMORANDUM OF AGREEMENT.”

It is common cause, that, as at the time the plaintiff's summons were issued, the first defendant claimed he occupied the house as a mere tenant.

In paragraphs 1-3 and 1-4 of their plea, the defendants denied that the house was ever on home-ownership scheme and challenged the plaintiff's to prove that:

“1.3 That the house in question is or ever was on home ownership scheme. Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

1.4 That the plaintiff acquired any title to the house in question from Dickson Katerere who was a mere tenant.”

After having pleaded in that manner, the first defendant said he was offered the property for home ownership in November 2002 and the lease to buy agreement was entered into on 17 December 2002.

The first defendant's attempt to raise a new defence of better title acquired after summons has its own hurdles to overcome.

Order 20 Rule 135(3) of the High Court rules states that:

“Where any ground of defence arises after the defendant has delivered a plea, the defendant may, within twelve days after such ground of defence has arisen, or at any subsequent time, by leave of the court, file a further plea setting forth the same.”

When the further ground of defence arose, the first defendant should have amended his plea to encompass the new ground.

In Chiviya v Chiviya 1995 (1) ZLR 201 (H)…, ROBINSON J had this to say about such failure to amend:-

“Accordingly, before setting down his application for a decree of divorce, the applicant should have attended to amend his declaration in this respect since it is not competent to lead evidence on a material matter which has not been pleaded.”…,.

The plaintiff's counsel properly submitted, that, with the closure of pleadings and joinder of issues, on 17 June 2002, the matter became litis contestatio.

Litis contestatio occurs when pleadings in a matter are closed: see Government of South Africa v Ngubane 1972 (2) SA 601 (A)…, and