Golden Gadaga (In his capacity as the Executor Dative in the Estate of the Late Kainos Gadaga) v Sylvester Muzanenhamo

### Preamble
1
HH 294-11
HC 2057/06
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GOLDEN GADAGA

(In his capacity as the Executor Dative in the Estate

of the Late Kainos Gadaga)

versus

SYLVESTER MUZANENHAMO

IN THE HIGH COURT OF

GUVAVA J

HARARE, 22 September 2008, 14 May, 23 July and 3 October 2009

and 3 November 2011

Advocate J B Wood, for the plaintiff

Mr Mushonga, for the defendant

GUVAVA J:  The plaintiff in this case issued summons out of this court seeking the eviction of the defendant, $276 000 000-00 being a claim for unjust enrichment and holding over damages  in the sum of $10 000 000-00 per month calculated from  1 April 2006 till date of eviction. The basis of the plaintiff’s claim as set out in his declaration is as follows: He is the executor dative to the estate of the Late Kainos Gadaga (deceased). During his lifetime the deceased purchased an immovable property being stand number 3750 Kuwadzana 3 Harare. This was an undeveloped stand. He then granted one Jane Muzanenhamo (“Jane”) a life usufruct over the stand.  Jane died on 6 May 2003. The plaintiff states that the defendant unlawfully moved onto the property and has been residing thereon rent free since then.

The defendant has denied in his plea that he is living on the property unlawfully. He states that Jane was his aunt and he was appointed executor dative of her estate. He filed a counter claim where he seeks compensation in the sum of $10 billion or the current market value of the house. The basis of his claim is that when Jane moved onto the property it was a vacant stand. She then constructed a seven roomed house for which she was never paid any compensation. He therefore prays that in the event that the plaintiff in the main case cannot pay the $10 billion the property should be sold and the defendant paid the said sum from the net proceeds.

At a pre-trial conference which was heard before a judge in chambers the following admissions were made:

“1.	That the Late Kainos Gadaga was the registered owner of stand 3750 Kuwadzana 3 Harare.

2.	That Golden Gadaga is the executor of the estate of the Late Kainos Gadaga and is entitled to claim the property for the estate and to seek the eviction of the defendant

3.	The defendant is the executor Dative of the Estate of the late Jane Muzanenhamo."

At the same pre-trial conference four issues were referred to trial. These were as follows:

Was the last Jane Muzanenhamo granted a life usufruct over stand 3750 Kuwadzana, which terminated on her death or was the property donated to the deceased.

Has the defendant any legal right to occupy stand 3750 and if not should he be ordered to vacate the premises?

Is the plaintiff entitled to claim compensation on the grounds of unjust enrichment for the period when the defendant remained in occupation of the premises without paying rent and if so what amount can the plaintiff claim from the defendant?

Did the Late Jane Muzanenhamo effect improvements to the property and if so what was the nature and value of the improvements and is the plaintiff liable to reimburse the defendant for the cost or value of the improvements?

At the commencement of the trial it was agreed that the duty to begin lay upon the defendant. It was accepted by the defendant at the commencement of the proceedings that the property was owned by the late Kainos Gadaga. The defendant amended his pleadings by the deletion of para 2 (a) of his plea.  It was thus my understanding that the defendant accepted from the pleadings that Jane Muzanenhamo was granted a life usufruct over the property and that it was not donated to her. In view of the concession which was made by the defendant’s counsel the first issue was no longer an issue at trial and only three issues remained for determination.

The defendant testified as follows:  He resides at his rural home in Mazowe. His aunt was Jane and she passed away on 6 May 2003 following which he was appointed executor to her estate. He stated that Jane came into possession of the stand in August 1984. The stand had been allocated to Kainos Gadaga by the City Council. He however did not have any money to develop the stand. He then approached Jane and asked her to develop the stand and he would donate it to her. The witness produced a document which was purportedly written by Jane where she states that Kainos Gadaga had given her the stand. The document was unsigned but had a thumb print which he identified as belonging to Jane. He sated that at the time she took up occupation of the property it had no development on it at all except for a water tap installed by the Council. The witness produced a bundle of receipts for construction materials which he stated were given to his sister by Jane. He also produced a plan for the house which was eventually built. He first saw the property in 1992 after the house had already been built. Kainos Gadaga died in 1993. In September 2005 he filed an application with the High Court seeking an order that the property be transferred into his name. This application was made in response to the plaintiff and his young brother having moved their property into the house in question. He denied that the plaintiff had the right to evict him from the property in question as it belonged to Jane his aunt. He stated that the plaintiff had no claim in the estate of the Jane and he was her sole beneficiary as she had died without having married or had any children. He also denied that he owed the plaintiff any money for rent as the property belonged to his aunt.

The witness stated that he is entitled to an amount of $17, 5 billion the value of the property. The claim was based on an evaluation report prepared by an evaluator.

In cross examination the defendant conceded that he did not stay with Jane at the Kuwadzana house but only visited in 1992. He had lived with her in Highfield prior to her relocation to Kuwadzana. He told the court that he assumed that Jane had paid for the building material because they had found the receipts in her house after she passed away. He however could not tell where she had obtained the money to buy the material. He confirmed that he was leasing out the property and six tenants were paying him SAR600 every month. He denied that he was obliged to pay for the use of the house as the house had been built by his aunt.

The defendant gave his evidence with a passion. It was very clear to him that as Jane's heir he had the right to stay on the property. It was however apparent that his story was not coherent and had major contradictions which were not explained. Firstly, in spite of the concession by his counsel at the beginning of the trial he changed from the position in the pleadings where he had accepted that Jane did not own the property and reverted to the original position that she owned the stand. He believed that Jane had developed the property and as far as he was concerned as Jane's heir he was entitled to it. It was however apparent from his evidence that he had no real knowledge of what had taken place between Kainos and Jane nor did he have a clear appreciation of their relationship as he stated that they were not related. It was also apparent that he only went to the property in 1992 long after the property was developed. He failed to explain why he lied in an affidavit in case number HC 4410/05 when he stated that he grew up on the property. It was apparent that he was trying to build a case where he had no knowledge or evidence of what had actually transpired.

The next witness was Mrs Lien Muswehaurari. She testified that she was Jane's neighbor at Kuwadzana and still resides at stand 3753. At the time the stand was allocated to her and her husband it was a vacant stand. The only development was a water tap installed by the City Council. She stated that although the stands were allocated as undeveloped stands they were referred to as core houses as the council would give the beneficiary a loan to build the core house. This loan would be used for purchasing building materials and would be paid back to Council. The stand owner would then effect any further developments according to their means. She said that the house that Jane eventually built was a seven roomed house with a veranda.

In cross-examination she explained that Council did not give the stand owners any cash but would allow them to take building materials from their storeroom equivalent to the amount they had agreed upon. In my view this witness did not take the defendant's case any further as she could not tell the court who was actually paying for the improvements on the stand between Jane and Kainos. She however confirmed the fact that Jane had been on the stand from the very beginning before any construction took place.

Serenia Muronzi Kodzwa was the next witness for the defendant. She stated that she was Jane's sister. She stated that Jane came to their rural home in Chiweshe and advised her that she had been given a stand to build a house by their brother called Kainos. She stated that they then went together to visit Kainos who confirmed that he had given Jane the stand. She stated that at that meeting she asked him if the stand was being given so that it becomes hers and he had confirmed the position. She said that this discussion took place in the presence of Kainos and his wife. She testified that Kainos had explained to her that he was giving Jane the stand because he had no money to develop it. Some time later she returned to  and Jane took her to see the stand in Kuwadzana. It was an undeveloped stand. She said Jane was a cross boarder trader and very enterprising. She stated that as far as she was aware there was no dispute concerning the property until Jane died. She stated that she is Jane's heir and the rentals from the property accrue to her. She denied that Kainos had in any way assisted Jane in the construction of the house. She however accepted that the loans which were obtained from City Council were in Kainos's name but she believed that it was Jane who repaid the loan. She denied that Jane was given a usufruct over the property which would end on her death.  She denied that they had requested the plaintiff's family permission to retain tenants on the property until they had raised enough money to erect a tombstone for Jane.

In cross examination she stated that she was not aware that the defendant was only claiming compensation for the property and not the house itself. She denied that she had told the court in her evidence in chief that she was receiving rentals from the house. When pressed she stated that she had not understood some of the questions. She denied in her evidence in chief that Jane had a boyfriend but conceded in cross examination that she had one by the name Kadzunga. When it was put to her that Kainos was looking for someone to develop the stand she said she could not remember the terms of the arrangement due to lapse of time.

I was not impressed by this witness. She was evasive and changed her story. She conceded that her memory was poor and she could not remember dates. In her summary of evidence she stated that she was present when the agreement between Jane and Kainos was made but in her evidence she stated that she had been told by Jane. In her evidence in chief she stated that she was Jane's heir and that Jane did not have a husband or boyfriend. After an overnight adjournment she then changed her story. In cross examination she conceded that she had been told what to say by the defendant.

The last witness for the defense was Mr Richard Matengamberi who is a registered estate agent. He told the court that he has an Honors degree in Rural and Urban Planning and is a registered valuer with the Estates Council of Zimbabwe. He has been registered for eight years. He explained that after obtaining his degree he then wrote some examinations which are conducted by the Estates Council of Zimbabwe. He has a company which trades under the name of RM Africa Property Consultancy. He conducted an evaluation of stand 3750 Kuwadzana 3 and prepared a report of his findings. He stated that as at October 30, 2009 the property was valued at $17 500 billion on the open market. In cross examination he explained that he had compared the property in question with similar properties whose sales had been conducted in Budiriro and Kuwadzana. He stated that he did not know that the house started off as a core house as it does not show by mere examination. Although he had stated that it was close to being one of the best houses in the area he however conceded that it was in need of some repair. He indicated that he would price the land at $5 billion. Nothing much turns on his evidence as the parties filed a document together with their closing submissions wherein they agreed on the value of the property. It was agreed that the value of the property was US$24 000-00 of which US$3 000-00 is the value of the land, US$21 000-00 represents the value of the improvements and US$13 000-00 represents the value of the core house. With this evidence the defendant closed his case.

The plaintiff told the court that his father was the late Kainos Gadaga and he died in 1993. He was subsequently appointed executor of his father's estate. His father's estate has now been wound up and the property was transferred into his name and that of his two siblings. His father obtained a stand from the City of Harare. The agreement was for 30 years. During his father’s lifetime he was employed by the Forestry Commission based in Harare. He was staying at a company house at the Highlands Head office. He stated that as far as he was aware it was his father who developed the stand in Kuwadzana. His father and Jane were very close and he allowed his sister to live on his property since she was not married and had no where to live. He stated that his father had built the core house on the stand. He indicated that he was not certain about the extent of Jane's contribution but he was aware that she had helped in the extension to the house. When his father died Jane asked for permission from his mother to continue living at the house. He stated that as far as he was aware Jane never tried to transfer the property into her name neither did she seek compensation for the improvements done.

Following Jane's death in 2003, the plaintiff visited the first defendant to pay his condolences. At this meeting he advised the first defendant that since Jane had died he wanted to take up occupation of the house. The first defendant then suggested that since Jane had no children it might be a good idea to retain lodgers on the property until sufficient funds are raised to buy her a tombstone. He had agreed to the idea but to his knowledge the tombstone was never bought. In 2005 his young brother got married and they decided that he should go and reside at the property since it belonged to their father. It was only then that the defendant told him that he was not prepared to vacate the property as he had documents to show that the house belonged to Jane. Shortly thereafter he then instituted these proceedings. The plaintiff told the court that he was willing to pay any claim by the defendant though he could not sell the house as it was a family house and also belonged to his siblings.

In cross examination he stated that he had never lived in the property in dispute but had visited Jane often.  He only registered his father's estate in 2005 after the first defendant had initiated proceedings in case number HC65/06. He was adamant that his father had built the core house through loans from the City Council. He said that the receipts produced by the defense, which were in his father’s name, was proof of this fact. He contradicted himself with respect to what extensions had been made by Jane and what had been done by his father. In cross examination he said his father had done everything and Jane had only helped whilst in his evidence in chief he had stated that his father built the core house while Jane did the extensions. When asked by the court to explain the discrepancy in his evidence and in his summary of evidence on the same point he could not explain. He however stated that English was a second language and it was easy to be misunderstood.

I found that he was a credible witness. He was forthright in his answers and agreed that he would pay any compensation to the defendant should the court find that he was liable to do so. The contradiction with regard to the improvements done on the property were possible in view of the fact that he was never involved in the construction and could only rely on what he had been told by his father.

The next witness was Gideon Mafodya. He testified that he was a friend to the late Kainos Gadaga and worked for the same company. He stated that they both applied to council and obtained stands in the same year. They were both given loans by council to develop the stands. He however never visited Kainos's stand. He only heard that he had built a seven roomed house. In cross examination he denied that the company had assisted them in getting the stands other than writing letters confirming that they were indeed so employed. He then stated that he did not know how the late Gadaga had got the stand or how much he received as a loan to build the core house as the loan was determined by your salary. He denied that the money loaned by the council had to be used to purchase materials from their warehouse. He denied any knowledge of Jane or any arrangements made between Jane and the deceased. He confirmed that he earned more than Kainos as Kainos had been employed as a security guard. He denied that he would have been entitled to a company house. He however stated that Kainos Gadaga was friends with the general hands who were living at the  offices and could have arranged to stay with them.

His evidence was both credible and reliable and I could find no fault in it. However it did not assist the plaintiff's case as he appeared to know nothing about the relationship between Jane and Kainos.

The next witness was Campton Murasi. The late Kainos Gadaga was his cousin. He knew Jane as a sister. He testified that he was present when Jane visited Kainos Gadaga at his workplace and asked for a place to live. He told the court that Kainos had given Jane permission to go and live in Kuwadzana but he did not know whether or not the stand was developed. He also could not say what the terms of her stay were. He denied ever attending a meeting with Jane, Collin Harichi and Sharon Muzanenhamo in Highfield.

This witness could have done much to clarify what the terms of the agreement between Jane and Kainos but the witness was not forthcoming. I did not find this evidence useful as the witness did not know the terms of the agreement between Jane and Kainos.

The last witness for the plaintiff was Tafadzwa Gadaga a brother to the plaintiff. Kainos Gadaga was his father. He told the court that he knew the property in Kuwadzana belonged to his father as Jane had told him when he paid her a visit. After his father died Jane approached their mother and asked for permission to keep on living on the property to which she agreed. After Jane died he tried to move into the house in Kuwadzana but he was not allowed into the house. He stated that his father's estate has since been finalized and the property is now registered in his name and that of his brother and sister. In cross examination he denied that his father was employed by the Forestry Commission as a security guard and said as far as he was aware he was a general hand.

At the conclusion of the trial the defendant's counsel applied to reopen their case in order to lead evidence of the value of the property in United States dollars as at the time the trial finalized that was the currency in use in Zimbabwe. When the parties filed their written submissions they also filed a document which was titled Agreed Matters where they agreed that the value of the property was the sum of US$24 000-00.  It therefore seems to me that it is unnecessary for this court to make a determination on whether or not the defendant's case should be reopened as the parties have agreed on the issue.

The plaintiff also applied to amend the pleadings by joining the second and third plaintiffs' to the proceedings as it was apparent from the evidence that they were now co-owners of the property. Both the plaintiff and the defendant also applied to amend their pleadings by altering their claims from Zimbabwe dollars to United States dollars since it was apparent at the conclusion of the trial that the Zimbabwe Dollar was no longer in use. It is trite that amendments to pleadings can be made at any stage of the proceedings as long as they are not prejudicial to the other side. It is my view that any order that this court makes will affect the second and third plaintiffs as co-owners of the property. I have also no doubt that, should the parties prove their entitlement to the damages claimed, the award should be in United States Dollars. I therefore grant the applications for amendment.

I will now deal with the issues raised.

WHETHER THE DEFENDANT HAS ANY LEGAL RIGHT TO OCCUPY STAND 3750 KUWADZANA

There is no doubt from the evidence that was led that the late Jane entered into an agreement with her brother the late Kainos Gadaga in relation to stand 3750 Kuwadzana 3 Township, . She occupied the property before it was developed and oversaw its development to the seven roomed structure that it is today. The defendant has argued that he is entitled to occupy the property in question as his aunt the late Jane Muzanenhamo was not compensated for the improvements she effected on the property. The defendant thus submits that he has a lien over the property until he has been paid due compensation.

A right of retention, commonly known as a lien is a right which arises by operation of law and operates from the principle that no one should be unjustly enriched at the expense of another. The principles relating to a lien are discussed in a number of cases of this court. In the case of Mkombachoto v Commercial Bank of Zimbabwe & Anor 2002 (1) ZLR 21 at p 25 NDOU J quoted from Introduction to South African Law and Legal Theory 2nd ed by Hosten, Edwards and Bosman at pp 656-657 as follows:

"The object of a lien is two-fold: (a) to provide security to the creditor and (b) to ensure that the creditor is not deprived of the payment on his expenses by long and unnecessary litigation. On the other hand, the law is not intended to enable the creditor unreasonably to keep the owner of property from enjoyment of that property…."

It is apparent from the above that a lien accrues to the developer. It enables a person who has effected improvements on a property to remain in occupation of the property until he has been compensated. It is common cause that the defendant did not develop the property in question. In my view he cannot claim a lien over a property he did not develop.

The evidence that was led during the trial did not disclose that Jane was staying on the property because of a lien. In fact until her death she did not sue for any compensation. In any event if it was argued that she had a lien over the property a lien terminates when a person loses possession and possession terminates on the death of the person. (See Silberberg and Schoeman, Law of Property, 2nd ed at 483 and Mkombachoto v Commercial Bank of Zimbabwe Ltd & Anor supra at 25). It seems to me therefore that there can be no basis upon which the defendant is entitled to be in occupation of the property.

2.	WHETHER PLAINTIFF CAN CLAIM COMPENSATION FOR PERIOD DEFENDANT REMAINED IN OCCUPATION OF THE PROPERTY

The plaintiff has claimed compensation for unjust enrichment as a result of the defendant's unlawful retention of the property and holding over damages. He claimed an amount of $276 000 000-00 for unjust enrichment with effect from 1 April 2006 until date of eviction. The plaintiff filed an application to amend the declaration by claiming US$75-00 per month from 1 February 2009 to date of eviction. The plaintiff also prayed that in the event that the court found that the plaintiff could claim damages in US dollars for the period prior to 1 February 2009 the sum of US$5 475-00 for the period 1 June 2003 to 30 June 2009 and US $75-00 per month from 1 July 2009 to date of payment.

The plaintiff submitted that he had proved his claim as the defendant submitted in evidence that he was receiving SAR600-00 per month from tenants who were residing on the property. A document which was filed by the parties with the closing submissions indicated that the agreed rent for the property was in the sum of US$150-00. The plaintiff further submits that the sum of SAR600-00 is the equivalent of US$75-00 which he claims. The amount claimed by the plaintiff has thus in my view been proved as the rent for the property is agreed to by both parties.

Having come to the finding that the defendant had no lawful right to be in occupation of the property it seems to me that he would have no defence to plaintiff's claim for damages. The only question is whether the plaintiff may claim damages in United States dollars for the period May 2003 to 1 February 2009.  In my view such a claim is improper as it contravenes the Exchange Control Act [Cap 22:05]. The use of multi-currency was only introduced as from 1 February 2009. Prior to that date legal tender in Zimbabwe was the Zimbabwe Dollar and therefore the plaintiff would only be entitled to claim damages in local currency during that period. The plaintiff is therefore entitled to damages from 1 February 2009 until the defendant vacates the property.

The plaintiff had in his claim sought payment at the rate of US$75-00 from 1 February 2009 until the money is paid in full.  It seems to me that such a claim would not be competent as the plaintiff has sought the ejectment of the defendant. His damages would therefore only accrue until the date that the defendant vacates the property. I will thus award damages only until the date that the  defendant vacates the property.

3. 	WHETHER JANE EFFECTED IMPROVEMENTS TO THE PROPERTY AND WHETHER PLAINTIFF IS LIABLE TO REIMBURSE THE DEFENDANT FOR THE VALUE OF SUCH IMPROVEMENTS

Whilst it is conceded by the plaintiffs that Jane took part in effecting improvements on the property they deny that she constructed the property on her own. From the evidence that was led it is extremely difficult to ascertain the exact extent of her financial contribution as she and Kainos Gadaga are both late. The invoices that were submitted to the court as evidence were in the name of the late Kainos Gadaga and some other persons. It seems to me however that it is not necessary for this court to determine this fact in order to resolve this case. This court in the case of Sylvester Muzanenhamo v Estate late Kainos Gadaga & Anor  HC 65/06 found that the late Jane Muzanenhamo had a life usufruct over the property in question. I could find no fault in this finding as it was well supported by the evidence that was led in this court. In my view, Jane occupied the property with the knowledge and consent of the owner and thus could only have been a leasee or a usufructuary. She did not have a lease as she was staying on the property without paying rent.  The only witness who could have shed light on the agreement between Jane and Kainos was Serina Kodzwa. But as I have already found she was not a good witness and her evidence was discredited. The document produced by the defendant in which he claims that Jane wrote a statement to the effect that she had been given ownership of the property is of no evidential value. Firstly there is no evidence where the defendant got the document. He was not present when the document was made. The document merely has a thumb print on it and no evidence was led to show that it was Jane's print. The document was not authenticated and as such it could have been made by anyone. Jane had no children, was unmarried and had nowhere to stay. It was on this basis that the late Kainos Gadaga allowed her to stay on his property.

The defendant in his closing submissions states that the late Jane Muzanenhamo was a bona fide possessor of the property and cites case authority for the right to claim compensation by such holder of right. It seems to me that the authorities cited by counsel are correct and state the position of a bona fide possessor. The defendant however in my view failed to establish as a matter of fact that the late Jane Muzanenhamo was indeed a bona fide possessor. The authors Silberberg and Schoeman, op.cit at 157 explain that a bona fide possessor is someone who occupies land in the belief that he is the owner of the land. In my view such evidence was not established by the defendant. It was conceded that the property was registered in the name of the late Kainos Gadaga. There is no evidence that Jane ever sought cession of the property into her name even though she lived there for over twenty years and was well aware that the property was registered in Kainos's name.

It is trite that a claim for compensation for unjust enrichment does not lie where the person who has made improvements is a usufructuary. (see Silberberg and Schoeman op cit. supra at p 151) In the case of Brunson's Estate v Brunson's Estate & Anor 1920 CPD 159 it was held that a usufractuary cannot claim compensation for improvements because he knows that he is not the owner of the land and must have therefore intended the consequences of his voluntary act. In Urtel v Jacobs 1920 CPD 484 the court stated as follows at p 492:

"Again a usufructuary gets no compensation because he has the right to occupy only for the period of the usufruct. If he erects buildings during the time, he knows his term will come to an end and he has no right to claim for compensation".

It seems to me from these authorities that Jane would not have had a claim for compensation against the late Kainos Gadaga. If she had no right to claim for compensation the defendant cannot inherit what his aunt did not have.

The plaintiff in my view has been successful in this claim and costs should follow the cause.

I thus make the following order:

The defendant and all those occupying through him Stand 3750 Kuwadzana 3,  be and are hereby evicted from the premises.

The defendant shall pay the sum of $75-00 per month from 1 February 2009 to date of eviction.

Interest at the prescribed rate on that sum from date of judgment to date of payment in full.

The defendants counter-claim is hereby dismissed with cost.

The defendant shall pay the plaintiff’s costs of suit.

Byron & Venturus & Partners, plaintiff's legal practitioners

Mushonga & Associates, defendant's legal practitioners