Tatenda Kudyarawanza v Alex Mandizvidza

### Preamble
1
HH 270-2012
HC 456/02
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TATENDA KUDYARAWANZA

versus

ALEX MANDIZVIDZA

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 9 and 11 February 2005,

11 and 19 July 2005 and 25 June 2012

Civil Trial

T Nyawo, for the plaintiff

C Chinyama, for the defendant

BERE J:  For quite some time now the ownership of stand number 1150 Budiriro I Township, Harare (“the property”), has been immersed in controversy. The plaintiff alleged that he bought the property through Staset Property Maintenance and Service (“the estate agents”), who were the agents of the defendant. On the other hand the defendant denied the alleged sale, let alone knowing the estate agents in question.

The result of this disagreement between the plaintiff and the defendant culminated in the plaintiff issuing out process from this court seeking against the defendant inter alia forced transfer of the property into the plaintiff’s name, eviction of the defendant from the controversial property as well as holding over damages on the property. In the alternative, the plaintiff sought some other ancillary relief.

The defendant resisted the relief sought by the plaintiff on the basis that he never signed the agreement to dispose of his property and or that he never engaged the alleged estate agents to sell his house. The defendant went on further to allege that one Nelson Kaseke who purported to act as the contact person and acting for the estate agents for the defendant acted fraudulently in disposing of his property to the plaintiff.

Consequently the defendant argued that the plaintiff’s claim be dismissed with costs on Attorney-client scale.

When this matter came up for a pre-trial conference on 21 October 2004, both parties assisted by a judge of this court agreed that the matter be referred to trial on only one issue, viz:

“Whether Nelson Kaseke or Staset Property Maintenance and Service were the agents of the defendant.”

It is clear to me that at the pre-trial conference the parties were agreed that once the court made a specific finding on agency, the defendant’s liability would automatically follow.

It is on this basis that I will now attempt to analyse the evidence that was canvassed in this trial.

The Evidence

The evidence in support of the plaintiff’s case centred on three witnesses, viz, the plaintiff himself, his wife Emilia Muzarabani and his sister Shingirai Kudyarawanza. The defendant’s case was supported by himself, his wife Margaret Mandizvidza and Toindepi Mahaso.

The plaintiff’s evidence was that he got to know about the sale of the property through an advertisement placed in the Herald by the estate agents. On further enquiries the officials from the estate agents referred him to the house in issue where he was able to connect with the owner of the house the defendant who indeed confirmed the sale advertisement and that the estate agents were mandated to sale the property on his behalf.

It was the plaintiff’s uncontroverted testimony that before he committed himself into purchasing the property and out of abundance of caution he invited the defendant to the City Council to verify the defendant’s ownership of the house.

Having successfully done the verification exercise with the defendant, it was agreed that both parties convene at the estate agents’ premises for purposes of signing the sale agreement as all the other issues had been agreed upon by the contracting parties. The plaintiff’s accepted evidence was to the effect that a day before the parties signed the sale agreement the plaintiff had been made to pay to the estate agents Z$5 000-00 which would go towards the cost of preparing the agreement of sale itself. Exhibit 10 on p 28 of the plaintiff’s bundle of document was produced to confirm this payment. The authenticity or otherwise of this document was not challenged. It would have been surprising if anyone had attempted to do so.

It was the plaintiff’s further testimony that on 6 September 2001, the plaintiff himself, his wife, Mr Nelson Kaseke and Mr Nyandoro (both estate agents officials), the seller Mr Mandizvidza, and a Mr Mahaso met at the estate agents’ offices for purposes of witnessing and signing the sale agreement which was produced as exh 4.

The plaintiff further testified that both himself and the defendant initialled the agreement after which he signed as the purchaser with one of the estate agents officials signing for and on behalf of the defendant and in the defendant’s presence. The witness said it was at the estate agents’ offices that he handed over the cheque for Z$750 000-00 to the defendant who in turn handed it over to Nelson Kaseke for deposit into the estate agents’ trust account pending transfer of the property by a Mr Mahaso who was projected as the lawyer who would deal with the transfer of the property. The plaintiff further stated that Mr Mahaso assured him that he would attend to the transfer of the property within two weeks of the signing of the agreement.

The plaintiff stated that up to this stage things appeared to be moving in the right direction as all the parties appeared to be committed to the whole transaction.

The plaintiff testified that the subsequent developments which followed the signing of the agreement completely surprised him. He was surprised to discover that the same property that he had purchased was again being advertised by another estate agent styled Risehill Investments (Private) Limited.

The witness went on to state that further investigations revealed that the property had many caveats placed against it.

The witness testified that in one of his visits to the defendant’s estate agents in a desperate bid to asset his rights he found members from the Criminal Investigations Department locking the estate agents’ offices and taking the officials to their offices for questioning as they were alleged to have defrauded other potential buyers over the same property.

The plaintiff’s further testimony was to the effect that at the police station, Mr Kaseke on the defendant specific instructions undertook to refund the plaintiff of the purchase price on 3 October 2001 failing which the plaintiff would proceed to enforce his rights on the sale agreement. The commitment or undertaking to refund the plaintiff resulted in the compilation of exh 1 which document was witnessed by the defendant. Nelson Kaseke did not live up to his undertaking. No refund was made.

Under cross-examination the defendant maintained that as far as he was concerned the undertaking by the defendant did not in any way exonerate the defendant as he was the one who had sold the property to him.

It was further the plaintiff’s testimony that on 7 April 2004 he, together with his sister went to the defendant’s house and spoke to the defendant about the need to resolve their differences over the disputed sale amicably. The result of that meeting was the signing of exh 3 by the plaintiff and the defendant and witnessed by the plaintiff’s sister. Exhibit 3 was a written undertaking by the defendant that he would voluntarily vacate the disputed property on 30 April 2004 to pave way for its occupation by the plaintiff as the purchaser. Again, nothing came out of this undertaking.

Both the plaintiff and his sister Shingirayi Kudyarawanza expressed total surprise and disbelief when it was suggested to them by the defendant’s counsel that the defendant was alleging that exh 3 was signed under duress brought about by ZANU PF youth.

It is quite significant to note that the defendant did not call anyone from Budiriro to confirm that the plaintiff had subjected him to force in order to bring about exh 3. It is equally significant that the defendant did not report this alleged harassment to the police or put this alleged harassment in his plea. It only came out for the first time when his legal practitioner was cross-examining the plaintiff.

It will also be noted that under cross-examination the plaintiff had difficulties in stating with certainty who exactly signed the sale agreement amongst the defendant, Nelson Kaseke and Nyandoro.

Despite the plaintiff’s challenges in this regard, I am more than satisfied that the plaintiff’s story was quite convincing. This is more so if one considers that almost everything he stated was supported by documentary evidence. Throughout his testimony, the plaintiff was adamant and emphatic that the estate agents were acting on the specific instructions of the defendant.

The evidence of the plaintiff’s wife Emilia Muzarabani was in all material respects largely corroborative of the story told by the plaintiff.

The only difficulty she faced was with the mixing up of dates when particular events occurred but despite this one could easily follow her story without any difficulties. The witness confirmed the confirmation by both the defendant and his wife that the house was being sold. She also explained that at the estate agents’ offices one Nelson Kaseke signed the agreement of sale on behalf of the defendant who had initialled the agreement. She confirmed seeing the plaintiff hand over a cheque which was part of the purchase price to the defendant who in turn handed the cheque to Nelson Kaseke.

The witness further confirmed the role played by one Mahoso who turned out to be a bogus legal practitioner who in the court’s view was introduced at the scene to try and camouflage the fraudulent conduct of the defendant in the whole transaction.

When her evidence was stretched under cross-examination she introduced a new dimension to the whole case. She mentioned that the defendant through her legal practitioners had made a specific undertaking to refund the plaintiff an amount of money that was almost double the purchase price. She justifiably queried why the defendant’s lawyers would have gone to that extend if indeed the defendant knew nothing about the sale of the house as he alleged. The witness put the icing on the cake in the following manner in response to the defendant’s cross-examination:

“Q	The defendant will deny ever meeting you or your husband on 6 September 2001.

A	He might deny this fact but there is a letter written from Chinyama and Partners which says Mr Mandizvidza is prepared to refund us the money we had paid as the purchase price of the house together with interest up to the time Mr Chinyama wrote that letter. Why would he have offered us a refund when he claimed he did not know us. He would be giving us a refund as whom. If he did not receive the money and did not know us why offer to give us a refund. Who told him the amount that was paid if he did not know us? Is it possible for someone to just pay for an offence he has no knowledge of? The letter is there if you want us to produce it.”

True to the witness’s emphatic position on 22 January 2004 the defendant’s legal practitioners Messrs Chinyama and Partners had written to the plaintiff’s legal practitioners Messrs Mandizha and Associates as follows:

“Dear Sir

Re: ALEX MANDIZVIDZA v T KUDYARAWANZA CASE NUMBER 456/02

We write to confirm whether you have managed to get in touch with your client in connection with the above matter.

Please let us know whether your client agreed with our suggestion to refund him. Kindly advise us as we are prepared to pay by cheque in the sum of $1 400 000-00.”

This letter was tendered as exh ‘B’ by consent on 28 June 2005.

The evidence of this witness could certainly not have been further from the truth. It is worth noting that when the defendant offered the above referred amount as a refund the plaintiff had paid a sum of only Z$755 000-00 to the defendant through his estate agents. The defendant was now offering to pay double the amount by way of a refund. How strange?

The third witness Shingirai Kudyarawanza’s evidence was largely to deal with the circumstances under which exh 3 (the agreement of vacation) was signed. For the benefit of the doubting Thomases exh 3 was worded as follows:

“Agreement of Vacation

Day 7 April 2004

I, S. Kudyarawaza and Mr Mandizvidza we have entered into agreement that Mr Mandizvidza will vacate 1150 Budiriro 1 on 30 April 2004 because he is no longer the owner of the house. Title Deeds entered into Kudyarawanza’s name. He promised not to make any damage to the house 1150.”

The documents was signed by both the plaintiff and the defendant and witnessed by the witness and concluded by an insertion that it had been signed freely and voluntarily by the defendant.

It was in my view a miserably hopeless exercise by the defendant to challenge the evidence of this witness for the evidence was well given and was no doubt truthful.

The closure of the plaintiff’s case was naturally followed by the defendant’s case with the defendant taking the witness’s stand first.

The thrust of the defendant’s evidence was to deny virtually everything suggested by the plaintiff and his witnesses. He denied any knowledge of the agreement of sale, let alone even the estate agents. The witness’s testimony was one of bare denial. He stated that he signed the “agreement of vacation” under duress during broad day light.

Despite his indication that the alleged duress was witnessed by other people, he brought no witness to support his story.

The witness could hardly explain why his legal practitioners had on his instructions offered to pay almost double the purchase price as refund if the Kudyarawanzas were total strangers to him. One could not help but conclude that the defendant’s testimony was a pack of lies, poorly and miserably, told. I am certain that on reflection the defendant would accept that his was a poor strategy.

In an effort to mislead the court, the defendant sought to derive some refuge through the evidence of his wife Margaret Mandizvidza who made a desperate attempt to sing from the same hymn book with her husband. The whole episode went completely wrong. She was a poor witness and one could see through her testimony that she was trying to mend holes which could not be mended. The conspiracy between her and her husband to deflate the truth was evident throughout her testimony.

Toindepi Mahaso was certainly dragged into the proceedings in a well calculated move to cloud issues. Both the plaintiff and his wife testified to seeing him at the time the agreement of sale was signed at the estate agents’ premises. The witness could not explain why, of all legal practitioners, the plaintiff and his wife could zero their allegations on him.

If the truth be told, the whole evidence tended to clearly show that Mahaso was dragged into this transaction to give the well calculated fraud some semblance of decency in order to dupe potential purchasers. No wonder why this property turned out to have so many caveats registered against it.

A simple analysis of the evidence led and accepted in these proceedings show several pointers which confirm that Staset Properties and Nelson Kaseke were the defendant’s agents, and consequently confirming the defendant’s unquestionable liability.

It is evident that throughout the whole episode the defendant remained quite visible.

The defendant directly communicated with the plaintiff, firstly at his house, followed by the verification exercise at the council offices and ending up at the agents’ premises to sign the agreement of sale.

The defendant puts himself too close to the estate agents to the extent that no any other reasonable conclusions can be made other than that he was working in cahoots with the estate agents to commit fraud.

The defendant is found at the police station and witnessing the refund of the purchase price by Kaseke. The plaintiff stated to the satisfaction of the court that Kaseke was merely following the defendant’s instructions.

When the agreement of sale was being signed, the defendant again features on the side of Kaseke. When money is paid, the defendant again receives the payment and hands it over to Kaseke.

Again, when the “vacation agreement” was signed, the defendant is again seen signing that agreement.

Even more damaging to the defendant’s ill-advised denial is his undertaking to refund the plaintiff a staggering amount of Z$1 400 000-00 through his legal practitioner’s letter of 22 January 2004.

The thrust in the defendant’s counsel’s closing submissions was completely off tangent with the sole issue which was placed before the court for determination at the pre-trial conference of 21 October 2004. Counsel dwelt, and I am certain unnecessarily so, on issues that did not call for determination. Once parties have agreed on issues for trial, parties must endeavour to be guided by such issues unless it becomes absolutely necessary to depart from such issues.

Reference to the case of Hooper and other similarly decided cases was clearly out of context as that was an attempt to deal with issues which were irrelevant to the proceedings.

Even assuming counsel was correct in raising and relying on such authorities one would simply come to the inevitable conclusion that those authorities were referred to out of context because in the instant case the original sale agreement was never cancelled by the plaintiff. What the plaintiff sought to do was to recover his money as promised failing which he would proceed to enforce the contract itself. This is what one would refer to as a conditional agreement. See Christie at pp 128-9.

But the most important consideration is that counsel sought in his address to deal with issues which were not really referred for determination when the matter was referred to trial.

A holistic assessment of the evidence leads me to conclude that the plaintiff has established his claim on a balance of probabilities and that judgment must be granted in his favour.

Having said this, I have considered the issue of holding over damages in the light of the developments in one currency before dollarization. That remedy would not be of any benefit to the plaintiff.

I am satisfied that it is fair and just, to grant the plaintiff specific performance.

Consequently I order as follows:

That the defendant be and is hereby ordered to take all the necessary steps to effect transfer of stand 1150 Budiriro 1, Harare into the plaintiff’s name within thirty days from the date of this order.

That in the event of the defendant failing to act as ordered in para 1 (supra), the Deputy Sheriff, Harare be and is hereby directed to sign all the relevant documents on behalf of the defendant in order to effect transfer of the property into the plaintiff’s name.

That the defendant be and is hereby ordered to vacate stand number 1150 Budiriro 1, Harare within seven days from the date of this order.

That in the event that the property is no longer available for whatever reason the defendant be and is hereby ordered to refund the plaintiff an amount equivalent to the current market value of a house similar to stand number 1150 Budiriro 1, Harare within thirty days from the date of this order.

That the defendant pays costs of suit.

Mandizha & Company, plaintiff’s legal practitioners

Chinyama & Partners, defendant’s legal practitioners