Konono Konono v Brian Mapurisa

### Preamble
1
HH 433-21
HC 10722/18
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KONONO KONONO

versus

BRIAN MAPURISA

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 28 June, 2 July & 26 August 2021

Civil Trial

T.S Mjungwa , for the plaintiff

Nhati, for the defendant

MUZOFA J: The plaintiff sued out summons for the payment of US$27 000 being a refund for the purchase of a stand known as 437 Malvern Township Waterfalls, Harare ‘the property’. The plaintiff also claims interest on the said amount calculated from 18 December 2012 to the date of full payment and costs of suit. The defendant contests the claim.

According to the plaintiff, he purchased the property from the defendant in December 2012. The parties entered into an agreement of sale in terms of which the purchase price was US$ 27 000-00. The first payment of $19 000-00 was paid upon signing of the agreement. The balance of $8000 was payable in two instalments. He paid the full purchase price. However, in complete disregard to his contractual obligations the defendant did not pass transfer but sold the property to Cosmas Chitiyo ‘hereinafter referred to as Cosmas’ who eventually took transfer. He then sued the defendant and Cosmas under HC 11988/15 to be declared the sole owner of the property and cancellation of the sale agreement between the defendant and Cosmas. The application was dismissed. It is there upon that he issued summons to recover the money he paid to the defendant as the purchase price.

The defendant entered a special plea of prescription and res judicata and also pleaded over to the merits. He denied ever entering into an agreement of sale with the plaintiff. He denied receiving any money from the plaintiff.

At the pre-trial conference, the matter was referred to trial on the following issues:

Whether or not the plaintiff’s claim has prescribed.

Whether or not the defendant received payment from the plaintiff for stand number 473 Malvern Township which is a subdivision of stand 119 Malvern Township of Waterfalls Villa.

If so, the amount paid by the plaintiff and the currency thereof

Whether or not consequent to the High Court judgment, defendant is obliged at law to refund the money received by him from the plaintiff.

Determination of costs.

An admission was made and recorded that the parties signed an agreement of sale dated 18 December 2012.

The defendant must have abandoned the special plea of res judicata since it was not referred for determination during the trial.

Plaintiff’s case

The plaintiff gave evidence in support of his case. His evidence was that they are neighbours with the defendant. They entered into an agreement of sale of the property. The terms of which I have already set out. He paid the full purchase price. While he gathered money for the transfer costs, he learnt that the defendant had sold the property to one Cosmas .He sued the defendant and Cosmas. The application was dismissed. He then issued summons in this case for the recovery of the money paid. The plaintiff indicated that when he paid the money to the defendant, he entered the transactions in a book but he did not produce the book. The plaintiff also relied on the founding affidavit and the opposing affidavit as proof that in the proceedings under HC11988/15 the defendant did not deny that he received the purchase price. Under cross examination, after being pressed that he never paid any monies that is why transfer was not effected. The plaintiff indicated that the delay was also attributed to his illness as he travelled to India for medical attention. He dismissed the defendant’s special plea and plea. He denied ever dealing with a lady that the defendant alleged owed him some money. The plaintiff did not vary his evidence .Under cross examination he stuck to his assertion and was candid that he did not bring the proof of where parties signed.

Defendant’s case

The defendant also gave evidence in support of his plea. He confirmed that the parties are neighbours. His version was that the plaintiff and a certain lady had a dispute. The lady owed the plaintiff $19 000-00.The lady approached the defendant for help. He negotiated with the plaintiff and offered him the property to offset the debt. The plaintiff was required to pay a certain amount as the balance. I comment that the defendant did not state how the outstanding balance arose and how much it was. There after the parties entered into an agreement of sale. Transfer was not effected as the plaintiff did not pay the outstanding balance. Subsequently the plaintiff fell into hard times. He tried to sell the property but he could not transfer title as the property was still registered in the defendant’s name. The plaintiff requested the defendant to sell the property on his behalf. The plaintiff actually paid for the advertisement of the property in a local newspaper. The defendant was simply an agent. A buyer was secured who is Cosmas. An agreement of sale was signed with the consent and knowledge of the plaintiff. Cosmas paid US$10 000 which was meant for the plaintiff. After receiving the purchase price the defendant offered it to the plaintiff. The plaintiff would have none of it, he changed goal posts and said he did not need the money he wanted his property or the $19 000-00. This is when the dispute arose. He denied receiving any money from the plaintiff. Under cross examination he conceded that he can pay the plaintiff the RTGS $19 000 -00 since he had undertaken to take over .So the issue for determination by the court on the merits is whether the defendant is liable to pay the $8000 -00.

The defendant did not strike the court as a credible witness. It was clear that he did not intend to give too much information to the court. He withheld certain pertinent facts. For instance the court was not told why the defendant would have taken over this unnamed lady’s debt. The nameless lady if she existed there was no explanation why she did not give evidence. It is unbelievable that there are still good Samaritans who would just take over a debt for nothing in return. The court was not told what was in it for the defendant. The court wondered if this was a genuine act of kindness which is doubtful. It was not explained to the court why the parties did not record the exact terms of the agreement as stated by the defendant. One wonders why the parties had to conceal those pertinent facts. The defendant received the purchase price for the property he did not explain what he did with it especially if indeed he had acted under the plaintiff’s instruction.

What probably destroyed the defendant’s credibility is the lack of consistency in his story. In his plea he completely denied entering into the agreement of sale. He denied receiving any monies. Surprisingly in the joint pre - trial conference minute an admission is made that the agreement of sale was entered into. The admission invariably means the defendant also admitted to the terms of the agreement. Clause 4 of the agreement of sale indicates that the plaintiff had paid US$19000 and was required to pay the balance of in two equal installments on the 6th and 11th of August 2012. Once there was an admission that the parties entered into the agreement it follows that the terms thereof are admitted. I make a finding that the plaintiff paid the US $19000. It therefore destroys the defendant’s credibility when in his evidence in chief he said he did not receive any money from the plaintiff ..No wonder he admitted to pay the plaintiff $19 000-00.

At the close of the defendant’s case the court directed parties to file written closing submissions. The plaintiff’s legal practitioners duly complied with the timelines. The defendant’s legal practitioners did not file the closing submissions. The court could not wait forever. The judgment was therefore written without the benefit of the defendant’s closing submissions.

I address the issues referred for determination.

Prescription

The plaintiff’s claim falls within an ordinary debt and would therefore prescribe at the lapse of three years after the debt became due.Where prescription is pleaded it is necessary to establish when the cause of action arose. Where the facts are in dispute the onus is on the defendant to show that the claim is prescribed by adducing evidence to that effect. Where the plaintiff alleges that prescription was interrupted or waived, the onus is on the plaintiff to show that it was interrupted.

In this case, in his plea the defendant alleged that the cause of action arose in 2012.Even if the plaintiff did not dispute the alleged date. The court cannot blindly accept an averment that is incorrect at law. There is no way the cause of action could arise in 2012. The cause action could not arise at the time of signing the sale agreement. At that time the defendant had not breached his contractual obligations. The plaintiff had no enforceable rights to claim. The cause of action arose at the time the plaintiff became aware of the sale to Cosmas. In this case, the court expected to hear from the defendant when the plaintiff became aware of the sale of the property to Cosmas. A cause of action arises when the applicant becomes aware of all the material facts which give rise to an enforceable claim. The defendant failed to establish when the cause of action arose. For that reason the special plea of prescription is dismissed.

Whether the defendant received the $8000-00 payment from the plaintiff

In resolving this issue, I will also make a determination on the 2nd, 3rd and 4th issues as they are related. I address the currency issue first. The defendant offered to pay the RTGS $19000.It cannot be hotly contested that in 2012 the legal tender in the country was the United States Dollar. It follows then that the plaintiff must have deposited the money in that currency. It is now trite that all assets and liabilities expressed in United States Dollars which existed before the effective date of 22 February 2019 are deemed to be values in RTGS dollars at a rate one to one to the United States Dollars.The debt is an asset to the plaintiff and a liability to the defendant. It was expressed in United States Dollars before the effective date therefore it is payable in RTGS dollars at the rate of one to one.

I did not fully appreciate why the 4th issue was referred to trial since the case under HC11988/15 did not determine the defendant’s liability. The court in that case simply made a statement in passing that the plaintiff can only claim what he paid to the defendant. It was not a finding neither was it part of the order. Clearly the parties misconstrued the real issues in this case. The defendant’s liability cannot arise from the said judgment. The comment was subject to a proper claim being made and proved before a court of law. In any event neither of the parties addressed the issue and I consider it abandoned.

I revert to the issue whether the defendant received the $8000 as alleged. I am persuaded that the plaintiff proved his case on a balance of probabilities. The transaction between the parties took place although the defendant denied it. Under HC 11988/15 the defendant did not deny that the plaintiff the applicant in that case stated that he paid $27 000.In his opposing affidavit the defendant (the respondent therein) in response stated;

‘Noted. Save to state that the applicant cannot blow hot and cold by first agreeing to have the stand sold to the 2nd respondent (Cosmas) when he was pressed for cash and later on seeking an order to have the sale declared invalid.’

Even if the application was for a declarator, the defendant did not dispute that he received the money .His main point was that the plaintiff instructed him to sell the property. This was an opportune time for the defendant to set out that the plaintiff had not even paid for the property he sought to be declared as the sole owner. It can only be taken that the defendant accepted that he received the purchase price for the property in full. I agree with the plaintiff’s legal practitioners that what is not denied is taken to be admitted. The court is at large to accept the admission under HC11988/15 on the issue of the purchase price. The defendant cannot state a contrary position. In such circumstances the court is entitled to apply the principle of issue estoppel which provides that, where a party states certain facts before another court he or she is estopped from stating a contrary position on the same facts.The plaintiff’s evidence was clear as regards how the payments were made. I note that under cross examination he indicated that he recorded in a book all the payments but the book was not produced. I do not take that as fatal to the plaintiff’s case. His testimony under oath that he made the payment was credible.

From the forgoing the following order is made.

The plea of prescription be and is hereby dismissed.

Judgment is entered for the plaintiff as follows

The defendant to pay the plaintiff the sum of RTGS $27 000 with interest from 18 December 2012 to the date of full payment

Defendant to pay costs of suit.

Tavenhave & Machingauta, Plaintiff’s legal practitioners.

Mapendere and Partners, Defendant’s legal practitioners.