Archibald Ndidzano v Pauline Gondora & 8 Others
Judgment text
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HH 65-2011
HC 10752/03
Ref. HC 743/03 & HC 8050/03
ARCHIBOLD NDIDZANO
versus
PAULINE GONDORA & 8 OTHERS
HIGH COURT OF ZIMBABWE
PATEL J
Civil Trial
HARARE, 5 to 12 October 2010 and 11 January 2011
Z.M. Kamusasa, for the plaintiff
M.C. Mukome, for the 1st defendant
PATEL J: This matter has had an unusually long and tortuous
history dating back to January 2003. It has eventually come to trial on the
following agreed issues: (i) whether the plaintiff bought Stand No. 6357,
Glen View, Harare, from the 2nd, 3rd and 4th defendants’ late father; (ii)
whether the 1st defendant was a bona fide purchaser of the property; (iii)
whether the 2nd, 3rd and 4th defendants were entitled to cede the property
to the 1st defendant; and (iv) whether or not the cession should be
reversed and title be passed to the plaintiff. Related to these issues is the
determination of the issues arising from two other cases consolidated
with the present case, to wit: (i) whether the plaintiff is entitled to the
order he seeks in Case No. HC 743/03; and (ii) whether the order dated
the 5th of November 2003 in Case No. HC 8050/03 should be rescinded.
Statement of Agreed Facts
Before the commencement of trial, counsel filed a Statement of
Agreed Facts setting out the following background.
At some stage in the 1980s the plaintiff and his brother (Abisha
Ndidzano) constructed a house on Stand No. 6357. At that time, the stand
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was registered in the name of one Caleb Mutyenyoka. The latter (the
deceased) died on the 31 st of January 2001 in Harare, when the stand was
still registered in his name.
In December 2002, the Master of the High Court appointed the 2 nd
defendant as the executor dative of the deceased estate. At the same
time, the 2nd defendant was authorised to effect cession of the stand in
question into the names of the 2nd, 3rd and 4th defendants. The 2nd
defendant then attempted to evict the plaintiff and his family without
success.
Meanwhile, in January 2003, the plaintiff instituted a claim
demanding cession under Case No. HC 743/03. In March 2003, the 2 nd, 3rd
and 4th defendants sold the property to the 9 th defendant (Chitanha), who
processed cession into his name but had to reverse it after encountering
difficulties with the plaintiff. The Master subsequently issued a report in
support of his decision, in reaction to which the plaintiff’s lawyers filed a
complaint in June 2003.
Thereafter, in August 2003, the 2 nd, 3rd and 4th defendants sold the
property to the 1st defendant. The latter then sued for cession into her
name and ejectment of “the tenants” at the property in October 2003,
under Case No. HC 8050/03, and obtained judgment by default in
November 2003. The plaintiff then instituted an urgent application in
Case No. HC 10752/03 for stay of execution and rescission of the default
judgment as well as cession of the property into his name.
The urgent application was opposed by the 1 st defendant and the
matter was subsequently referred to trial. All three cases were then
consolidated in November 2007, as was later confirmed in July 2010
under Case No. HC 153/10.
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Evidence for the Plaintiff
Archibald Ndidzano is the plaintiff. His evidence was that he and
his brother bought the stand in dispute in 1983 from one Chiradza, who
had purchased it from the deceased shortly before. They constructed the
house on the stand from 1983 to 1986 in accordance with building plans
approved by the City of Harare in November 1983 [Exhibit 3]. After the
stand had been developed, the parties signed the agreement of sale in
November 1986 [Exhibit 1]. The full purchase price of ZW$1,500 was paid
within a few months thereafter. They also paid the monthly occupation
charges to the City of Harare from July 1985 onwards [Exhibit 2]. Many
years later, Chiradza located the deceased and they arranged to meet
him. The latter did not dispute the sale and it was agreed that he would
be paid $50,000 in order to facilitate cession of the property into the
plaintiff’s name. He made the first payment of $12,000 in August 2000 to
the deceased himself and, following his death, two further payments of
$16,000 and $22,000 were made to his widow in March and June 2001
[Exhibit 4]. She later refused to effect cession as had been agreed
between the parties. When the 1 st defendant came to view the house, she
was told that the house belonged to the plaintiff. He seeks rescission of
the order granted by default in Case No. HC 8050/03 as he was not
served with any papers in that case. The Deputy Sheriff’s return of service
effected in September 2003 is not reliable as the 2 nd defendant was not
residing at the house and had no authority to accept service of process
on behalf of the occupants of the house. Under cross-examination, the
plaintiff explained that he signed the agreement of sale [Exhibit 1] as a
witness. It declared Abisha Ndidzano to be the purchaser as he was the
elder brother. The latter was not joined as co-plaintiff in this matter
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because he was at his rural home when it was instituted. His brother had
verbally authorised him to file this suit. The plaintiff has his own house in
Budiriro and, once he is granted cession of title in casu, he will cede the
property to his brother.
Abisha Ndidzano is the plaintiff’s elder brother and presently
resides at the house in dispute. He confirmed that he had given the
plaintiff his verbal authority to sue on his behalf. At the time that the
action in Case No. HC 743/03 and the urgent application in Case No. HC
10752/03 were instituted, he was living at his rural home, about 250 km
away from Harare. In his testimony, he clarified and generally
corroborated the plaintiff’s evidence as to the terms and circumstances of
the agreement of sale [Exhibit 1] as well as the three payments made to
the deceased and his widow [Exhibit 4]. In 2002, he learnt about the
registration of the deceased estate in casu. He and the plaintiff were
invited to a meeting with the Master and were asked to provide proof of
their claim. At that meeting, in the presence of the 2 nd, 3rd and 4th
defendants, the deceased’s widow confirmed that the property had been
sold to the Ndidzanos. The plaintiff’s lawyers then wrote to the Master in
December 2002 [Exhibit 5] explaining the details of the sale, together
with copies of Exhibits 1 and 4. Despite all of this, the Master issued
letters of administration authorising cession into the names of the 2 nd, 3rd
and 4th defendants [Exhibit 6]. Following the issuance of Summons by the
plaintiff in January 2003, in Case No. HC 743/03, the Master made his
report in May 2003 confirming that authorisation [Exhibit 7]. The
plaintiff’s lawyers again wrote to the Master in June 2003, objecting to his
report [Exhibit 8]. Subsequently, when the 1 st and 2nd defendants came to
view the house, they were told that the house was under dispute and not
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for sale. Shortly thereafter, at the end of August 2003, the 2 nd, 3rd and 4th
defendants entered into an agreement of sale with the 1 st defendant
[Exhibit 9]. The witness was not aware of the 1 st defendant’s application in
Case No. HC 8050/03. The return of service in that case was effected at
the Deputy Sheriff’s office. It is inaccurate because the 2 nd defendant did
not stay at the house and he was not authorised to accept service on
behalf of its occupants. As appears from Exhibit 9, the 2 nd defendant’s
place of residence at the relevant time was an address in Cranborne or
Seke.
Jane Ndidzano is the plaintiff’s sister-in-law and is married to
Abisha Ndidzano. She testified that the 1 st defendant first came to view
the house in 2003 and was allowed to enter by her daughter. Shortly
thereafter, when the witness was at the house for a short visit from her
rural home, the 1st defendant came again, accompanied by the 2 nd and 4th
defendants. The witness denied them entry into the house and told the
1st defendant that it was subject to dispute and that she should not
pursue her intended purchase.
Evidence for the 1st Defendant
Pauline Gondora, the 1st defendant, testified as follows. She went
with the 2nd, 3rd and 4th defendants to view the house in early August
2003. They met a young woman who allowed them to inspect the
property. She then went to the offices of the City of Harare and noted
that the house was registered in the names of the 2 nd, 3rd and 4th
defendants. This was confirmed by the letters of administration furnished
by the 2nd defendant. She then entered into the agreement of sale at the
end of August 2003 [Exhibit 9]. As regards what transpired thereafter, the
1st defendant’s evidence in-chief was generally vague and contradictory.
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She stated that the 2nd, 3rd and 4th defendants voluntarily effected cession
of the property into her name, but could not satisfactorily explain why
she instituted the application in Case No. HC 8050/03 to compel such
cession. She also changed her evidence as to when cession was effected
and was unable to explain why this was done contrary to the terms of the
provisional order granted in Case No. HC 10752/03.
Under cross-examination, the 1st defendant admitted that the City
of Harare had not consented to cession into her name specifically
because of that provisional order. Moreover, she could not explain why
the City officials had not mentioned the dispute relating to the property,
even though they were fully aware of it through service of summons in
Case No. HC 743/03 in February 2003 and a subsequent cautionary letter
from the plaintiff’s lawyers in April 2003 [Exhibit 10]. She also denied
having been served with the urgent application in Case No. HC 10752/03,
despite service having been effected in December 2003 at the address for
service furnished by herself in her founding affidavit in Case No. HC
8050/03. Again, in the same affidavit, filed in September 2003, she cited
the property in dispute as the 2 nd, 3rd and 4th defendants’ address for
service, even though she was fully aware from the agreement of sale,
concluded two weeks earlier in August 2003, that they resided in
Cranborne and Seke. Coupled with the fact that service of her application
was effected on the 2nd defendant at the Deputy Sheriff’s office, it became
quite evident that this was deliberately calculated to avoid service on the
plaintiff himself. Lastly, she was unable to explain the provisions of a
settlement agreement concluded by her with Hungwe & Partners and the
9th defendant in November 2003 [Exhibit 13]. This clearly showed that she
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was aware of the earlier sale to the 9 th defendant as well as the plaintiff’s
claim to the property.
Hopemore Arufandika is the 2nd defendant and the executor of the
deceased estate in casu. His evidence was that he did not defend Case
Nos. HC 743/03 and HC 10752/03 because he was not served with the
papers in both cases. He denied any knowledge of Chiradza and of any
sale of the property in question to Chiradza or the plaintiff. He also stated
that he had lived at the house as a young child. According to him, the
plaintiff was staying at the house as a rent paying tenant. As executor of
his father’s estate, he decided to sell the house to the 1 st plaintiff after
checking all the relevant papers with the City of Harare and the Master’s
office. He went to view the house with the 1st defendant and met a young
woman but never met with Jane Ndidzano. In Case No. HC 8050/03, he
accepted service on behalf of all the respondents, including the tenants
at the house, as their representative. He notified the plaintiff but did not
take the papers to him.
Under cross-examination, he conceded that he had tried to sell the
house to two other buyers, in addition to the 1 st defendant. He also
admitted that he did not refuse to give cession to the 1 st defendant but
was told by her to go to the Deputy Sheriff’s office to accept service of the
papers in Case No. HC 8050/03. As regards notice of the plaintiff’s
position, he could not remember receiving a letter from the plaintiff’s
lawyers in November 2002 which expressly spelt out the plaintiff’s claim
to ownership of the property [Exhibit 11]. More significantly, he was
unable to deny the contents of several documents which clearly
demonstrated, quite contrary to his evidence-in-chief, that he was duly
notified of the action and urgent application instituted by the plaintiff.
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These include the following: the plaintiff’s special plea qua defendant in
Case No. MC 13440/03, filed in May 2003 [Exhibit 12], which cites the
pending action in Case No. HC 743/03; the Deputy Sheriff’s return of
service in that case in February 2003, following which Hungwe & Partners
filed their notice of assumption of agency on his behalf in March 2003
and were then served with notice to plead in April 2003; the certificate of
service of the application in Case No. HC 10752/03, effected in December
2003 on his wife at his address in Seke; the certificate of service of the
notice of set-down in that case, effected in December 2003 at the same
address.
When questioned by the Court regarding his claim of having lived
at the house as a child, the 2 nd defendant stated that he had stayed there
with his parents as a child below the age of 3 years, having been born in
August 1980. The house would therefore have been built in or before
1983. His assertions in this respect are patently false in view of the fact
that the building plans for the house [Exhibit 3] were only approved by
the City of Harare in November 1983.
Findings
Having regard to all of the evidence before the Court, on a balance
of probabilities, I make the following findings of fact.
The plaintiff, together with his brother, jointly purchased the
undeveloped stand No. 6357 from one Hosiah Chiradza in 1983, as
recorded in an agreement of sale signed by the parties in November
1986. Chiradza himself had previously purchased the stand from Caleb
Beta/Mutyenyoka (the deceased). The plaintiff and his brother then
developed the stand and constructed the house thereon from 1983 to
1986. They also paid to the City of Harare all of the charges of occupation
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relating to the property. In effect, they have exercised all of the rights of
use and occupation ordinarily associated with ownership continuously
since 1983.
Throughout the relevant period, the deceased remained the
registered owner of the property. He was eventually located in August
2000 and he agreed to effect transfer to the plaintiff and his brother for a
fee of ZW$50,000. This sum was paid to him and, after his death, to his
widow in three separate instalments.
The Master’s Office misdirected itself in authorising cession of the
property into the names of the 2nd, 3rd and 4th defendants. The property
had been sold to the plaintiff and his brother prior to the death of the
deceased and, therefore, did not form part of the deceased estate for the
purpose of distribution.
The 1st defendant was fully aware of the pending dispute and
litigation pertaining to the property at the relevant time. Despite this
knowledge, she wilfully chose to disregard the dispute and decided to
purchase the property nonetheless. Furthermore, she deliberately
falsified the 2nd, 3rd and 4th defendants’ address for service in her
founding affidavit in Case No. HC 8050/03. She then connived with the 2 nd
defendant to avoid service of the founding papers in that case on the
plaintiff. In short, she was not a bona fide or innocent purchaser.
The plaintiff was not served with the relevant papers in Case No.
HC 8050/03 and was unaware of the proceedings in that case. Therefore,
he was unable to defend the case and was not in wilful default.
As regards plaintiff’s locus standi in this matter, it would obviously
have been preferable for the plaintiff’s brother to have been joined as co-
plaintiff or for the plaintiff to have obtained his written authority to sue.
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Nevertheless, I am fully persuaded by the explanations proffered by the
plaintiff and his brother as to their mutual intention to purchase the
property jointly and the verbal authority given to the plaintiff to sue on
his brother’s behalf, as well as the non-availability of the latter at the time
that the plaintiff instituted the initial action and subsequent urgent
application. Accordingly, I am satisfied that the plaintiff has the requisite
locus standi for present purposes in relation to all three cases.
Double Sales
The approach to be adopted in the case of a double sale of
immovable property was lucidly restated in Chimphonda v Rodriques &
Others 1997 (2) ZLR 63 (H) at 65-66. In the absence of special
circumstances affecting the balance of equities, where the second
purchaser has notice or knowledge of the prior sale of the property at the
time of the second sale or when he takes transfer, the first purchaser is
entitled to recover the property from the second purchaser, in which
event the second purchaser’s only remedy is an action for damages
against the seller. See also Crundall Brothers (Pvt) Ltd v Lazarus N.O. &
Another 1991 (3) SA 812 (ZH); Guga v Moyo & Others 2000 (2) ZLR 458 (S).
In effect, the second purchaser is bound by the rights of the first
purchaser in the property, and it is a species of fraud on his part if he
attempts to defeat those rights. See De Jager v Sisona 1930 AD 71 at 74. In
this regard, it is not necessary to prove any intention to frustrate the
rights of the first purchaser. The mere fact that the second purchaser is
aware of the existing rights and nevertheless continues to enforce his
own rights, and thereby defeats or infringes the earlier rights, constitutes
a species of fraud upon the first purchaser. See Kazazis v Georghiades &
Another 1979 (3) SA 886 (T).
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Disposition
As I have already found in casu, the plaintiff and his brother
purchased the property in 1983. Many years later, in 2000, the seller
agreed to effect cession but, after his death in 2001, his widow and
beneficiaries reneged on that agreement. Thereafter, the 2 nd defendant
sold the property on several occasions and eventually concluded an
agreement of sale with the 1 st defendant in 2003. At the time of that sale
and later, when she attempted to take cession, the 1 st defendant was fully
aware of the earlier sale to the plaintiff and his claim to the property. It
follows that she acted mala fide at all relevant times.
As for the equities, the plaintiff and his brother constructed the
house and have lived there since 1986. They have thereafter paid all the
charges levied on the property by the City of Harare. Subsequently, after
his rights were disputed, the plaintiff took all necessary steps to notify all
of the defendants in casu and to protect his rights through litigation. On
the other hand, the 1st defendant has not as yet processed cession into
her name. More significantly, she acted with deliberate deceit to evade
service of court process on the plaintiff in Case No. HC 8050/03. In my
view, the balance of equities undoubtedly favours the plaintiff.
Having regard to all of the above, the plaintiff is entitled to the
relief that he seeks, including rescission of the order granted by default
in Case No. HC 8050/03. As regards cession, I think it just and equitable to
order cession into the joint names of the plaintiff and his brother, in
keeping with the fact of their joint purchase of the property.
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As for costs, the 1st defendant has not only acted mala fide in
relation to her purchase of the property and manipulation of court
process but has also falsified her evidence before this Court. Similarly,
the 2nd defendant, as executor of the deceased estate, has acted
fraudulently in his dealings with the property, and has contemptuously
compounded his fraud by weaving a veritable tapestry of falsehoods on
the witness stand. His siblings, the 3 rd and 4th defendants, are also
complicit in his conduct by virtue of their tacit acquiescence throughout
these proceedings. All of these defendants are eminently eligible for a
punitive award of costs against them.
In the result, judgment is entered in favour of the plaintiff as
follows:
1. The 2nd, 3rd and 4th defendants be and are hereby ordered to cede
Stand No. 6357 – 89 th Crescent, Glen View 3, Harare, to the plaintiff,
Archibold Ndidzano, and his brother, Abisha Ndidzano, failing
which the 7th defendant, the Deputy Sheriff, Harare, be and is
hereby authorised to sign all the requisite papers in order to effect
the cession of the said Stand into the joint names of the plaintiff
and his brother.
2. The 5th defendant, the City of Harare, be and is hereby directed to
register the cession of the aforesaid Stand into the joint names of
the plaintiff and his brother.
3. The judgment and order granted on the 5 th of November 2003 in
Case No. HC 8050/03 be and are hereby rescinded.
4. The 1st, 2nd, 3rd and 4th defendants, jointly and severally, the one
paying the others to be absolved, shall pay the costs of suit on a
legal practitioner and client scale.
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Kamusasa & Musendo, plaintiff’s legal practitioners
Muvingi, Mugadza & Mukome, 1st defendant’s legal practitioners