Collins Farai Muchada v Stefan Pios Mumbiro and Allen Chonzi

### Preamble
1
HH 534-25
HCH 2549/25
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COLLINS FARAI MUCHADA

versus

STEFAN PIOS MUMBIRO

and

ALLEN CHONZI

HIGH COURT OF ZIMBABWE

ZHOU AND CHIKOWERO JJ

HARARE; 24 July 2025 and 8 September 2025

Civil Appeal

T Govere, for the appellant

T Mukau, for the 1st respondent

No appearance for the 2nd respondent

CHIKOWERO J:

[1]	This is an appeal from the judgment of the Magistrates Court sitting at Harare dismissing the appellant’s claim against the first respondent for payment of the sum of US$22750, among other things.

[2]	The primary issue before the court a quo was whether the appellant lent and advanced the sum of US$22750 to the first respondent.  Everything else was predicated on the resolution of that issue.

[3]	In seeking to persuade the court a quo to find for him, the appellant relied on his viva voce evidence, the testimony of a Questioned Document Examiner, a written Acknowledgement of Debt, a Power of Attorney to register a Mortgage Bond, the registered Mortgage Bond and the report of the Questioned Document Examiner.

[4]	On the other hand, the first respondent contended that he had borrowed US$3000 from the appellant (but had signed an Acknowledgement of Debt for US$10000) with the balance of US$7000 having been retained by the second respondent for his own use, that he had not appended his signature to any documents speaking to his indebtedness to the appellant being in the sum of US$22750, that he had not borrowed such an amount from the appellant and that the claim itself demonstrated that the appellant was a fraudster who was going all out to deprive the first respondent of the immovable property sought to be declared specially executable.

[5]	Having successfully resisted an application for summary judgment instituted by the appellant, the first respondent, despite opposition by the third respondent, obtained an order joining the latter to the suit a quo.

[6]	The third respondent filed a plea.  But he did not participate at the trial except as a witness of the second respondent.  He had to be subpoenaed to give such evidence.

[7]	The court a quo dismissed the appellant’s claim.  It was satisfied that the appellant did not lend and advance the sum of US$22750 to the first respondent.  It found that the appellant took advantage of the first respondent’s illiteracy to procure his signature on the Acknowledgement of Debt and the Power of Attorney to Pass a Mortgage Bond.  It took the view that since the appellant’s claim was founded on these two documents the claim could not be granted because it was founded on a fraud perpetrated by the appellant on the first respondent.  In other words, the Court a quo found that the appellant, through his legal practitioner, made the first respondent to sign a Power of Attorney to Pass a Mortgage Bond without explaining what that document was, as well as procuring the first respondent’s signature on an Acknowledgement of Debt for the sum of US$22750 while making the first respondent, who was illiterate, to believe that he was signing a document to acknowledge that he had received US$10000 from the appellant.

[8]	Aggrieved with the decision a quo, the appellant urges us to reverse the same and, in substitution, enter judgment in line with his claim before that court.

[9]	Although the appellant has raised six grounds of appeal, we think that this matter turns on whether the court a quo was correct in making the factual finding that the appellant did not lend and advance the sum of US$22750 to the first respondent.

[10]	We are aware that in ZINWA v Mwoyounotsva SC 465/13 Ziyambi JA said at p16:

“An appellate Court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses, or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it: or that the decision was clearly wrong.” See also Hama v National Railways of Zimbabwe 1996(1) ZLR 664(S) at 670.

[11]	We think that the threshold for interference has been met in this case.  The first respondent was not illiterate.  He was educated upto Grade 7.  He could read and write.  He successfully undertook pastoral studies.  He pastored under the United African Faith Church before going into retirement.  In his plea, he denied affixing his signature on the Acknowledgement of Debt and the Power of Attorney to Pass a Mortgage Bond.  These documents, among other things, spoke to his indebtedness to the appellant in the sum of US$22750.  The appellant led expert evidence to disprove the averments in the plea.  Put differently, the expert evidence proved that the first respondent had misled the court a quo in pleading that he had not signed the said Acknowledgement of Debt and the Power of Attorney to Pass Mortgage Bond.  The reason for the first respondent’s denial, in the plea, was a realisation that the two documents he had signed proved that he was indebted to the appellant in the sum claimed.  So, in order to avoid liability, the first respondent endeavoured to deny that it was him who had signed those documents.

[12]	In opposing the application for summary judgment, the first respondent said in para(s) 11 and 12 of his affidavit:

“11. Ad Paragraph 17

Denied.  I do have a bona fide defence to the action as already demonstrated above.  The applicant wants to con me of my house that I worked hard for and also taking advantage that I am advanced in age.

12. Ad Paragraph 18

Denied.  I was never advanced US$22500, the only amount I signed for was US$10000.  The applicant wants to con me of my house.” (emphasis ours)

At para 8 of the same affidavit the first respondent swore that the registration of the Mortgage Bond was for the US$10000that he and the third respondent had received and not the US$22500 alleged by the appellant.

[13]	The cross examination of the first respondent proved that he was not a credible witness.  For our purposes, the following exchanges bears this out:

“Q. How much was written on the papers?

Nothing was written if I had seen it I would not have signed.

Q. Do you have documents to show that you received US$10000?

A. No.”

These responses are clear.  The first respondent said he signed blank pieces of paper.  Being a literate person, he was never re-examined to explain why he would have acted so illogically.  Further, what he said here under cross examination completely demolished para 12 of his plea wherein he averred that the only amount that he signed for was US$10000 that he and the third respondent received from the appellant, through the latter’s legal practitioner.  It will be remembered that the first respondent did not produce any Acknowledgment of Debt, Power of Attorney to Pass Mortgage Bond, or any other document reflecting his indebtedness as either US$10000 or US$3000.  For completeness, we record that he did not even produce blank pieces of paper bearing only his signatures, quite apart from the fact that such evidence would have advanced his plea not at all.

[14]	What was before the court a quo was this. The appellant’s viva voce evidence was corroborated by the documents that he produced.  We are here referring to the Acknowledgement of Debt, the Power of Attorney to Pass Mortgage Bond, the Mortgage Bond and the Forensic Examiner’s Report.  The author of that report gave oral evidence.  The conclusion set out in that report, that it was the first respondent who signed the Acknowledgement of Debt and the Power of Attorney to Pass Mortgage Bond, discredited the first respondent as a witness.  The court a quo was clearly wrong in not finding that the first respondent was a witness unworthy of belief.  The first respondent blew hot and cold.  We record, for emphasis, that he averred in his plea that he signed documents reflecting that the third respondent and himself had borrowed US$10000 from the appellant.  He did not produce these documents.  When his evidence was tested under cross examination he abandoned his plea to the extent that he then came up with the version that he signed documents which did not reflect the amount lent and advanced to him.  Those documents, too, were not produced.  At the end of the day the only credible evidence on record was that adduced by the appellant himself.  Same was amply corroborated by the Questioned Document Examiner, the Acknowledgement of Debt, the Power of Attorney to Pass Mortgage Bond, the Mortgage Bond and the Forensic Examination Report.

[15]	It having been proved that the first respondent signed the Acknowledgment of Debt and the Power of Attorney to Pass Mortgage Bond, the Court a quo should have found that the first respondent was bound by his signature.  In Muchabaiwa v Grab Enterprises (Pvt) Ltd 1996(2) ZLR 691(S) Korsah JA, writing for the court, said at 696B:

“The general principle which applies to contracts, and commonly designated as caveat subscriptio, is that a party to the contract is bound by his signature, whether or not he has read or understood the contract, or the contract was signed with blank spaces later to be filled in.”  See also Nyika v Moyo HCB 145/10. R H CHRISTIE in The Law of Contract in South Africa, 7th Edition at p 2 says:

“When parties to a contract have decided that it should be in writing, they are creating themselves the advantages which a written contract offers; namely an opportunity to study the terms before committing themselves, simplification of proof of the terms and a drastic reduction of the scope for argument about the terms. These advantages would be lost if, in the event of a dispute, the parties were permitted to give evidence to vary or contradict the written contract.”

[16]	We think that the first respondent wants to eat his cake and to still have it.  The court a quo, in deciding as it did, permitted this undesirable state of affairs.  Judgment should have been rendered ensuring that the first respondent lived with the consequences of his failure to discharge the obligations freely and voluntarily assumed by him in appending his signature to the Acknowledgment of Debt and the Power of Attorney to Pass Mortgage Bond.  In heads of argument drawn up for the appellant, Mr Govere drew our attention to the case of Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993(1) ZLR(H) where Robinson J, in somewhat different circumstances, said at 37E-F:

“I would wind up by saying that if the right to specific performance is to be shown to have real meaning to businessmen, then the loud and clear message to go out from the court is: businessmen beware.  If you fail to honour your contracts then don’t start crying if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract.  In other words, businessmen who wrongfully break their contracts must not think that they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of the breach.  Businessmen at fault will therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them.”

[17]	The first respondent alleged but failed to prove that the appellant was a fraudster hell bent on laying his hands on the former’s immovable property.  We are satisfied that in seeking and obtaining the US$22750 loan from the appellant, the first respondent availed that immovable property as security in the event of failure to repay the debt.

[19]	In the result, IT IS ORDERED THAT:

1. The appeal be and is allowed with costs.

2. The judgment of the court a quo is set aside.  It is substituted with the following:

“1. Judgment be and is granted for the plaintiff against the first defendant in the following terms:

The first defendant shall pay the plaintiff the sum of US$22750 together with interest thereon at the prescribed rate from 24 February 2024 to the date of full payment.

Certain piece of land situate in the District of Salisbury called Stand 2308 Budiriro Township of Willowvale Estate measuring 300 square metres held under Deed of Transfer Registered Number 1575/89 dated 15 February 1989 is specially executable.

The first defendant shall pay collection commission on the sum of US$22750 calculated in accordance with s 70 of the Law Society of Zimbabwe By -Laws, 1982 (as amended).

The first defendant shall pay the plaintiff’s costs of suit on the legal practitioner and client scale.”

Chikowero J:…………………………..

Zhou J:………………………………..I agree

Govere Law Chambers, appellant’s legal practitioners

Ndlovu and Dube Legal Practice, first respondent’s legal practitioners

Nyama Law Chambers, second respondent’s legal practitioners