Lloyd Musango v Vitalis Nechavava and Stella Nechavava

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                                                                           HH 168-2011
                                                                            HC 6132/09
LLOYD MUSANGO
versus
VITALIS NECHAVAVA
and
STELLA NECHAVAVA

HIGH COURT OF ZIMBABWE
PATEL J

Civil Trial

HARARE, 2 June 2011 and 8 September 2011

S. Mugadza, for the plaintiff
1st defendant (in person)
2nd defendant (barred)


       PATEL J:        The plaintiff herein claims the eviction of the defendants from
the stand in dispute, together with holding over damages, and costs of suit on a higher
scale. The primary issue for determination is whether or not the transfer of the
property to the plaintiff was properly effected. The plaintiff’s entitlement to an
eviction order and holding over damages hinges upon the answer to that question.

The Evidence
       Lloyd Musango, the plaintiff, has been employed by Chitungwiza
Municipality as a municipal police officer since 1 October 2005. He testified as
follows. He entered into an agreement of sale for the disputed stand with the 1 st
defendant on 15 March 2006. At that time, the property was registered in the 1 st
defendant’s name. He paid the full purchase price of ZW$600,218,000 in instalments,
the last instalment having been paid in October 2006. He did not ask for any receipts
because he did not anticipate any problems. He recorded the payments on the
agreement of sale as and when they were made. The agreement of sale and related
documents form part of the papers in HC 1561/07. He later filed another application
for cession in HC 4434/07 and obtained default judgment in that matter on 20 August
2008 [Exhibit 1]. Cession was effected through the Deputy Sheriff in October 2008
[Exhibit 2] and he obtained a certificate of occupation in the same month [Exhibit 3].
Subsequently, the 2nd defendant applied for rescission of the default judgment through
HC 186/09. This chamber application was dismissed on 20 January 2009 [Exhibit 4].
The 1st defendant also applied separately for rescission of the same default judgment
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through HC 2620/09. This application, in which both parties were legally represented,
was dismissed on 10 June 2010 [Exhibit 5]. The default judgment in HC 4434/07 has
never been rescinded and is still in force. After selling the stand to the plaintiff, the 1 st
defendant sold the stand to other parties. Consequently, he was convicted on two
counts of fraud and sentenced on 16 October 2009 to an effective prison term of 21
months [Exhibit 6]. The defendants have refused to give vacant possession of the
stand despite numerous demands. The plaintiff is presently renting a house in Zengeza
and paying rent of US$30 per month per room. He accordingly claims holding over
damages of US$90 per month (for three rooms) as from the date of cession, i.e. 1
November 2008, to the date of eviction.
        Vitalis Nechavava is the 1st defendant. His evidence was that the stand was
registered in the names of both defendants. He never sold the stand to the plaintiff.
The plaintiff had paid the 1st defendant’s nephew for some gold which the latter failed
to deliver. The plaintiff’s father-in-law is employed in the Housing Department of
Chitungwiza Munucipality. The two of them plotted to transfer the stand into the
plaintiff’s name to recover the money paid for the gold. Under cross-examination, the
1st defendant denied that he had received any money from the plaintiff. This was
despite admissions to the contrary in his opposing affidavit in HC 1561/07, which
affidavit he denied having signed. He further denied having seen or signed any of the
documents relating to the agreement of sale which were annexed to the plaintiff’s
applications in HC 1561/07 and HC 4434/07. Finally, he claimed that he never
applied for rescission of the default judgment in HC 4434/07 through HC 2620/09.
The 2nd defendant had filed that application in his name and he was not aware of the
decision dismissing the application on 10 June 2010.
        Babson Nechavava is the 1st defendant’s 19 year old son. He was not aware of
any transfer of the house, but he did see some water bills in the plaintiff’s name.
According to him, the plaintiff never came to the house to make any payments.
However, he accepted that he used to attend school in 2006 and was therefore not at
home throughout the day.
        The plaintiff gave his testimony clearly and concisely and did not falter in his
stance under cross-examination. He was a very consistent and credible witness. In
stark contrast, the 1st defendant was a thoroughly discreditable witness. He failed to
focus on the issue at hand, i.e. the propriety of the cession of the stand into the
plaintiff’s name, and failed to convince the Court on virtually every aspect of his
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testimony. Moreover, his bald denials of ever having seen or signed any of the
relevant papers before the Court, including his opposing affidavit in HC 1561/07 and
his own application in HC 2620/09, are simply impossible to accept. In short, his
evidence was nothing more than a tissue of loosely fabricated falsehoods. Finally, the
testimony of the 1st defendant’s son did not serve to add anything to the evidence
already before the Court.

Disposition
       Although this is not an issue for determination in this matter, the papers
adduced in previous proceedings, i.e. HC 1561/07 and HC 4434/07, coupled with the
plaintiff’s evidence in casu, support the plaintiff’s version as to the agreement of sale.
This is a matter that has already been determined in previous litigation, albeit by
default. In any event, I am satisfied that the plaintiff purchased the stand from the 1 st
defendant and that he paid for the property in full.
       Turning to the transfer of the stand, the 1 st defendant proffered nothing to
substantiate his allegations of collusion and impropriety on the part of the plaintiff. It
is common cause that the plaintiff obtained a default judgment in HC 4434/07,
pursuant to which the Deputy Sheriff duly signed the requisite cession papers.
Thereafter, the plaintiff was issued a certificate of occupation by Chitungwiza
Municipality. There is nothing before the Court to suggest anything untoward or
improper in this process. Accordingly, I am amply satisfied that the cession of the
stand into the plaintiff’s name was properly effected.
       As things stand at present, the plaintiff duly obtained cession of the stand in
terms of the order of this Court in HC 4434/07. He thereby became the registered
owner of the stand. The order was obtained by default but has not been rescinded,
despite two separate unsuccessful applications for rescission instituted by the
defendants. The order still stands and inasmuch as cession was properly effected into
the plaintiff’s name, he is clearly entitled to occupy the stand. Equally clearly, he is
also entitled to an order evicting the defendants from the property.
       For the same reasons, there is no basis for denying the plaintiff’s claim for
holding over damages. The defendants have been unlawfully occupying the stand that
the plaintiff is legally entitled to occupy himself. They must therefore recompense
him for that right of occupation at a reasonable rate. The 1 st defendant did not
challenge or dispute the reasonableness of the monthly amount of US$90 claimed by
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the plaintiff. Accordingly, he is entitled to holding over damages in the sum of US$90
per month from the day after the date of cession, i.e. 1 November 2008, to the date of
eviction.
       Finally, there is the question of costs. In his closing submissions, the 1 st
defendant persists with the absurd contention that he was unaware of any previous
court proceedings and that he did not institute the application in HC 2620/09. The
records in HC 1561/07 and HC 2620/09 clearly show that he was legally represented
in both matters. It is impossible to imagine how that could have happened without his
own active involvement. His bare denials in this regard are tantamount to gross abuse
of court process, verging on contempt of court and warranting a punitive award of
costs. Again, the failure of both defendants to give vacant possession to the plaintiff,
notwithstanding his clear entitlement thereto since 2008, is a further reason for
showing the Court’s displeasure with respect to costs.

   In the result, judgment is granted in favour of the plaintiff as against the
defendants, in terms of the Summons as amended. It is ordered that:
   1. The defendants and all those claiming the right of occupation through them be
       and are hereby ordered to vacate Stand No. 2 Pasipanodya Street, Zengeza 5,
       Chitungwiza, within 10 days of the service of this order upon them, failing
       which the Deputy Sheriff is hereby authorised to forthwith evict them from the
       said Stand.
   2. The defendants shall jointly and severally, the one paying the other to be
       absolved, pay to the plaintiff:
            (i)      holding over damages in the sum of US$90 per month with effect
                     from the 1st of November 2008 to the date of their vacation of the
                     aforesaid Stand or their eviction therefrom, as the case may be; and
            (ii)     costs of suit on a legal practitioner and client scale;
       failing which the Deputy Sheriff is hereby authorised to attach and sell the
       defendants’ property in execution to satisfy the plaintiff’s claim.




Madanhi Mugadza & Co Attorneys, plaintiff’s legal practitioners