Seki Phiri v Gwazeni Alexander and Rukweza Wyne and Municipality of Chinhoyi

### Preamble
1
HH 652-22
HC 5513/20
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SEKI PHIRI

versus

GWAZENI ALEXANDER

and

RUKWEZA WYNE

and

MUNICIPALITY OF CHINHOYI

HIGH COURT OF ZIMBABWE

MHURI J

HARARE, 15 July and 27 September 2022

Opposed Application

Mr F Murisi, for the applicant

Mr H Mukonoweshuro, for the 1st and 2nd respondent

No appearance for 3rd respondent

MHURI J: 	This is an application for a declaratur and interdict in which the applicant seeks the following, that:

the agreement of sale between 1st and 2nd respondent in respect of Stand No. 6688 Rusununguko, Chinhoyi entered into on the 30th June 2020 be declared null and void.

the oral agreement of sale in respect of Stand No. 6688, Rusununguko, Chinhoyi between the applicant and 1st respondent be declared valid and binding.

first respondent be ordered to sign all the necessary papers and documents for the purposes of effecting cession of Stand No. 6688, Rusununguko, Chinhoyi from 1st respondent’s name into applicant’s name within seven (7) days of being served with a copy of the order.

should 1st respondent fail to sign all the said papers and documents in terms of clause 3 above, the messenger of court for Chinhoyi area be ordered to act in place and stand in for 1st respondent and sign all the necessary papers for cession to be effected in respect of Stand No. 6688 Rusununguko, Chinhoyi from 1st respondent’s name to applicant’s name with applicant meeting the Messenger’s costs.

third respondent effect the said cession upon applicant meeting all cession costs and effecting all payments of outstanding rates, land purchase costs and any other costs or charges as may be applicable.

second respondent be interdicted from further destruction of any structures and or making any developments at the said stand.

first and 2nd respondents to meet costs of suit.

The Background

The dispute that gave rise to this application centres on the stand number 6688 Rusununguko, Chinhoyi (“the property”) which first respondent owned.

Applicant’s position is that sometime in 2004 he and the first respondent entered into an oral agreement of sale whereupon he paid first respondent the purchase price of $250 000.00 (Zimbabwe dollars) through his wife.  The agreement was subject to third respondent’s consent to pass cession into applicant’s name.  He drew up plans for the property which the third respondent approved and he started developing the property.  He built up to core level and also constructed a cottage in which he put one Mageza to look after the property.

He has been in occupation of this property since 2004 until in June 2020 when the first respondent sold the property to the second respondent and he was, as a result ejected from the property.  The structures he had constructed at the property were demolished and in turn he caused the arrest of the first respondent.

The first respondent’s position is that he never entered into an agreement of sale of the property with the applicant neither did he receive any money from the applicant.  In 2004, following his father’s death he moved from Chinhoyi to Hurungwe and the applicant being his neighbour made an arrangement with him to grow crops on the property and temporarily stay there while he was away.  In 2013 he returned from Hurungwe and found that the applicant had constructed some structures on the property without his knowledge or consent.  One Mageza instead of the applicant was staying at the property and he had him evicted.  In June 2020 he ceded his rights to the property to the second respondent and the third respondent approved the cession.  He was arrested at the applicant’s instance on fraud charges over this same property.

The second respondent confirmed entering into an agreement of sale of the stand with the first respondent on the 30th of June 2020.  Upon purchase of the said stand, he and the first respondent attended at the third respondent’s offices where the first respondent effected cession of his rights and obligations to the property to him.  The cession was approved by the third respondent.  His position is that at the time of the sale he was not aware of any previous sale, therefore he is an innocent purchaser.

The third respondent did not file any papers in this matter and neither did it attend these proceedings.

The applicant’s averments in his founding affidavit are that he has clear personal rights in the property by virtue of him entering into an oral agreement with the first respondent in 2004, and upon him taking occupation of the property from then until 2020.  He can enforce these rights upon meeting set conditions required by third respondent and upon consent by the third respondent and that this is the time. By selling the property to the second respondent, the first respondent created a double sale situation.  He was the first buyer, he developed the land, has been in occupation and therefore the agreement of sale between the two respondents must be declared null and void and his and the first respondent be declared valid and binding.  He has suffered harm as a result of the destruction of his structures at the property.

On the basis that the oral agreement of sale between the applicant and the first respondent and the payment of the purchase price are disputed,  it was the first respondent’s submission that there are material disputes of fact which are not capable of being resolved in motion proceedings.

It is an accepted legal position that matters must not be brought to court under motion proceedings if there are material disputes of facts.

In the case of Supa Plant Investments (Private) Limited v Chidavaenzi 2009(2) ZLR 132(H) at 136F Makarau J (as she then was) stated what a material dispute of fact is.  She said:

“A material dispute of fact arises when material facts alleged by applicant are disputed and traversed by respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

See also Rio Zim (Private) Limited v Falcon Resources (Private) Limited & Rusununguko Nkulukeko (Private) Limited SC 28/2022.

In determining whether there is a material dispute of fact as submitted by the first respondent, I am guided by the approach as laid down in the case Muzonda & Ors v Usayiwevhu & Ors HH 107-12 cited by first respondent in which it was stated:

“… in every case, the court must examine the alleged dispute of fact and see whether there is a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence because if this were not done, the respondent may be able to raise fictitious issues of fact and thus delay the matter and prejudice the applicant.”

I now proceed to consider whether there are material disputes of fact which cannot be resolved on the evidence pleaded without having to call oral evidence.  As stated earlier, first respondent’s stance is that he never entered into an agreement of sale with applicant whereas applicant’s stance is that first respondent and himself entered into an oral agreement of sale of the property and that he paid a sum of $250 000.00.

These are two divergent positions which create a material dispute of fact.  On the pleadings filed of record can this dispute not be resolved.

An oral agreement is as binding as a written agreement.  In casu, it is not in dispute that in 2004, first respondent relocated from Chinhoyi to Hurungwe after his father’s death so that he could be close to his communal home left by his father.  He allowed applicant to occupy the property.

In paragraph 15 of his opposing affidavit, he states:

“I admit that the applicant was in lawful occupation of the property since 2004 because I had allowed him to occupy the same.”

Applicant proceeded to effect some developments on the property though according to first respondent he was to grow crops and temporarily stay there.  First respondent came back to Chinhoyi in 2013 and it is not disputed that from 2013 to 2020, (7 years) first respondent did not approach applicant to enquire why he had effected some developments on the property and why it was John Mageza who was in occupation and not him.  In May, first respondent caused the eviction of John Mageza without notifying applicant and on 30 June 2020 he entered into an agreement of sale with second respondent and on 25 August 2020 third respondent passed cession.

Filed of record are affidavits by two people Emerjildah Snake (applicant’s wife) and Temba Magirini (brother) who witnessed the sale agreement between applicant and first respondent and also the payment of $250 000.00 as purchase price.  Another witness whose statement is part of first respondent’s opposing papers, James Taurai stated:

“Sometime in 2004 Gwazeni Alexander and Phiri Seki went into a house purchase agreement.  I do not recall what actually took place in respect of payment transaction between the two.”

After considering the totality of the above events, I find that the dispute of facts as raised by the first respondent are resolvable without need to call oral evidence.  On a balance of probabilities, I find that on the evidence, there was an agreement of sale between applicant and first respondent.  This agreement was binding and was still binding when first and second respondent entered into an agreement of sale.  By so doing, first respondent created a double sale situation.

Applicant was in occupation of the property with first respondent’s blessing.  He purchased the property (whether the price was $250 000.00 or $500 000.00 or was fully paid or not is not material).  Applicant had housing plans made and approved by third respondent.  Applicant made some developments on the property which structures were demolished by second respondent.  It was not disputed that at the time when applicant was building, third respondent’s condition was that cession could only be made when the development was at window level, hence the reason why applicant had not obtained cession by 2020.  Applicant was the first purchaser and that purchase must prevail.

I am satisfied that applicant established all the requirements of a declaratur i.e. an existing future and contingent right in the property.  He has personal right which upon cession will translate into a real right.  He has suffered harm when his structures were demolished.

In that regard therefore I will grant the declaratur and interdict as applied for by applicant.

The following order is consequently made:

That the agreement of sale between the 1st and 2nd respondents in respect of Stand number 6688, Rusununguko, Chinhoyi entered into on 30th June 2020 be and is hereby declared null and void.

That the oral agreement of sale in respect of Stand number 6688, Rusununguko, Chinhoyi between applicant and first respondent be and is hereby declared valid and binding between the parties.

1st respondent signs all necessary papers and documents for purposes of effecting cession of Stand number 6688, Rusununguko, Chinhoyi from 1st respondent’s name into applicant’s name within seven (7) days of service upon first respondent of this order, with applicant meeting all cession costs.

Should 1st respondent fail to sign all papers and documents in terms of paragraph 3 above, the Messenger of Court for Chinhoyi area to act in place and stand in for 1st respondent and sign all the necessary papers for cession to be effected in respect of stand number 6688 Rusununguko, Chinhoyi from first respondent’s name into applicant’s name, with applicant meeting the Messenger ‘s costs.

3rd respondent to effect cession upon applicant meeting all cession costs, effecting all payments of outstanding rates and land purchase costs and any other costs or charges as may be applicable.

2nd respondent is interdicted from any further destruction of any structures and/or making any developments on the said property.

1st and 2nd respondents to bear costs of suit jointly and severally the one paying the other to be absolved.

Murisi and Associates, applicant’s legal practitioners

H Mukonoweshuro & Partners, 1st and 2nd respondent’s legal practitioners