Tichaona Chinovhiringa v Ottilia Chingwaru and Bernard Chingwaru and Tongesai Chingwaru

### Preamble
1
HH 35-2013
HC 3684/09
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TICHAONA CHINOVHIRINGA

versus

OTTILIA CHINGWARU

and

BERNARD CHINGWARU

and

TONGESAI CHINGWARU

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 15, 22, 23 and 25 January 2013

and 6 February 2013

Civil Action

J Dondo, for the plaintiff

M Hungwe, for the defendants

KUDYA J:  On 17 August 2009 the plaintiff issued summons out of this court for the eviction of the defendants and all persons claiming title through them from Stand 332A Muguta Extension Epworth, holding over damages at the rate of US$1-33 per day calculated from 1 February 2009, interest thereon at the prescribed rate and costs of suit. The defendants contested the action and raised both the special pleas of res judicata and lis alibi pendens before pleading over to the merits.

At the commencement of trial, as a result of the absence of the record of proceedings from the magistrates’ court, determination of the special pleas were deferred to the adduction of evidence. In the result the plaintiff testified and called the further evidence of two witnesses. In addition he produced seven documentary exhibits.  The first defendant testified on her own behalf and on behalf of her co-defendants. One other witness testified for the defendants. In addition two documentary exhibits were produced to support the defendants’ version. These were exh 8, the original handwritten agreement executed between the late Dias Kusvobwe and Aaron Chingwaru and exh 9, the 45 paged bundle of documents that mainly covers the pleadings in the Magistrates case number 11 955/04.

It was common cause that one Dias Kusvobwe also known as Dias Mugombe held cession from the Epworth Local Board in stand 332 Muguta Epworth. The stand was subdivided into two by the Epworth Local Board into the remaining extent of 332 and a new stand 332A. The evidence of the local authority on the exact date of the subdivision was not called by either party. On 22 July 1998 Dias sold his rights in the subdivision to Aaron Sukutai Chingwaru for ZW$10 000-00, which was paid in cash on that day. The transaction was witnessed by J Manyika, T Chingwaru, T Rambu, T Konde, A Kusvobwe and Jamia Anafi. The seller and the purchaser reduced the transaction to writing: exh 8, and appended their names, signatures and national identification card numbers as did the six witnesses who in addition designated their relationship to the transacting parties. The purchaser constructed a four roomed house, dug a borehole and planted an orchard on the portion he purchased. The subdivision was never ceded to the purchaser who died in 2005.

On 4 August 2002, the seller executed another agreement of sale with Jealous Chinovhiringa, the plaintiff’s father. He sold his rights in the subdivision for ZW$90 000-00. An initial deposit of ZW$30 000-00 was paid. The agreement, which was produced as exh 1 was reduced to writing and witnessed by Stephen Nyakurera. On 29 October 2002 the Epworth Local Board registered the cession of a portion of stand 332 being the subdivision in issue, exh 2, into the plaintiff’s name in line with the wishes of the purchaser who bought the rights for his son the plaintiff.

Exhibit 9 is a 45 paged bundle of documents produced by the first defendant. The first nine unnumbered pages consist of correspondence between the parties erstwhile legal practitioners concerning proceedings in 11 955/04 and the remaining paginated 36 pages are copies of the pleadings filed by the parties in 11 955/04, and HC 1094/06 that were kept by Aaron Chingwaru and the defendants respectively. On 21 June 2004 the plaintiff issued summons for the eviction of Aaron Chingwaru and all those claiming occupation through him at the Harare Magistrates’ Court in case  MC 11 955/04. The summons was served on 20 July 2004 by the messenger of court on Aaron Chingwaru’s daughter, the first defendant, at the property he built on the subdivision-page 1 of exh 9. However, his appearance to defend is date stamped 6 July 2004. On 13 July 2004, the plaintiff filed a notice to plead that again was served on the first defendant in the present matter on 20 July 2004. On 27 July 2004 the plaintiff applied for default judgment which was duly granted on 4 August 2004. A warrant of ejectment was issued on 30 August 2004. The plaintiff admitted signing the notice to plead and warrant of ejectment. Aaron was evicted on 30 September 2004. On 2 September 2004 Aaron filed an ex parte application for rescission of the default judgment. He took his plea to the clerk of court on 22 July 2004 but the record of proceedings could not be located. The clerk date stamped his copy of the notice to plead on that date and on 30 July 2004 the latter date being the one he asked him to return while he searched for the record. He disputed being in wilful default. He raised a bona fide defence that he was the first purchaser of rights in the subdivision and averred that he had filed this agreement at the Epworth Local Board. He was granted a rule nisi on 2 September 2004 staying execution of default judgment and eviction on him and all those claiming rights of occupation through him. The plaintiff was called upon to show cause on the return day of 14 December 2004 why the default judgment should not be rescinded. On 30 September the plaintiff anticipated the rule nisi to 19 October. He signed the notice of opposition and opposing affidavit. The rule nisi was confirmed. On 13 December the plaintiff issued another notice to plead. Aaron filed his plea on 14 December 2004 which prompted the plaintiff to file his replication and pre-trial conference issues and notice of set down for the pre-trial conference on 10 January 2005. The plaintiff also confirmed the signatures on these pleadings as his albeit under cross examination.

The purported pre-trial conference was held by a magistrate on 11 April 2005. The matter was set down for trial for 26 July 2005 as shown in the return of service of the messenger of court on p 32 of exh 9 that was served at the plaintiff’s address of service on 16 May 2005. The last page on exh 9 is a photocopy that purports to be a civil record and judgment of the matter by the magistrate, Mrs Chimanda. She purportedly dismissed the plaintiff’s claim with costs on 24 August 2005. It does not have a date stamp. A date stamp on the clerk of court’s name is indecipherable but a hand written date is given as 11 January 2006. Overleaf is another date stamp of 5 November 2008 that is followed by the appellation that the record could not be located and was suspected to have been taken for storage at the National Archives. On 9 July 2010 the Provincial Magistrate Civil and Customary Law confirmed that case 11 955/04 was registered with the civil court but could not authenticate the order as the record was missing. In his submissions before this court Mr Hungwe, for the defendants, conceded that he did not cross examine the plaintiff on the trial he alleged took place and which he contended he represented the defendants’ late father Aaron that resulted in the dismissal of the plaintiff’s claim.

On 24 February 2006 the plaintiff filed an application HC 1094/2006 in this court seeking the eviction of the first defendant only. It was personally served by the Deputy Sheriff on her on 13 April 2006. The eviction order was granted in motion court on 14 June 2006 as shown in exh 3. A writ of ejectment exh 4 was issued on 31 July 2006 and the return of service exh 5 shows that she was duly evicted on 15 September 2006. In the meantime, the defendant had filed a notice of opposition on 20 June 2006, after the default judgment had been granted. In her opposing affidavit she raised the preliminary point of res judicata by averring that the plaintiff’s case against her father in 11 955/04 had been dismissed on the merits after a full trial. On the merits she averred that rights in the subdivision were sold to her father before they were sold four years later to the plaintiff and claimed her occupation through her father. The first defendant’s heads highlighted that 11 955/04 was dismissed on the basis that the plaintiff used a forged signature in the agreement of sale he produced during that trial, a point that she did not raise in the present matter. However, in motion court held on 11 March 2009 in HC 5430/06 the default judgment of 14 June 2006 was set aside. HC 1094/06 was withdrawn with a tender of costs by the plaintiff on 14 August 2009.

On 11 June 2009 the plaintiff filed a contempt of court application against all the present defendants in HC 2542/06 produced as exh 6. They had been duly evicted on 15 September 2008 but had reoccupied the property before they were once again ejected on 26 January 2009 but they reoccupied the property on 27 January 2009. The record of proceedings shows that the contempt application was opposed on 10 July 2009 on the basis that the judgment on which it stood had been set aside on 11 March 2009. Again on 14 August 2009 the plaintiff withdrew the contempt proceedings and tendered the defendants’ wasted costs.

At the pre-trial conference held on 7 February 2012 three issues were referred to trial. They were:

Is the plaintiff’s claim res judicata or lis alibi pendens;

Is plaintiff entitled to an order for the ejectment of the defendant from stand 332A Muguta Extension Epworth; and

The quantum of damages if any.

I proceed to determine the issues in turn.

Is the plaintiff’s claim res judicata or lis alibi pendens

The withdrawal of HC 1094/06 removed the application for eviction from the opposed roll of the High Court and paved way for the issuing of the summons in the present matter on 17 August 2009. When summons was issued in this court, there were no concurrent cases involving the same cause of action, parties or their privies and subject matter in this court. The preliminary points of res judicata and lis alibi pendens based on High Court proceedings have no basis. What remains to be determined is whether these two preliminary points apply to the action brought in the magistrate’s court in case number 11 955/04.

The onus was on the defendants to prove on a balance of probabilities that the matter was either concluded or was still pending in the magistrate’s court. The defendant proved on a balance of probabilities that the plaintiff issued summons in 11 955/04. The plaintiff admitted as much. The defendants also proved that a default judgment granted against him in that case was rescinded. The effect of the rescission was to restore their father and all who claimed occupation through him onto the property in dispute. The defendants were not personally privy to the outcome of the proceedings in the magistrate’s court as the defendant was their late father who passed on in 2005. The first defendant attempted to demonstrate that a pre-trial conference was held at which the plaintiff was represented by  Mr Mtisi as recorded in the pre-trial conference minutes of 11 April 2005 on p 30 of exh 9. The plaintiff disputed the authenticity of the minutes in question. He denied that a pre-trial conference was held in the matter. It was common cause that Mr Mtisi of Musendekwa-Mtisi legal practitioners disputed ever representing the plaintiff in the magistrates court. That the plaintiff was a self-actor in the magistrate’s court is apparent from all the pleadings he filed and received which all bore his chosen address of service 5 Sussex Court, 116 Kwame Nkrumah Avenue, Harare. That address of service also appears in the pre-trial minutes in which he was purportedly represented. In any event, the pre-trial minutes were not authenticated by the clerk of court.

The first defendant sought to rely on p 36 of exh 9 that purports to be the civil record and judgment in case number 11 955/04 that indicated that the plaintiff’s claim had been dismissed by Mrs Chimanda on 24 August 2008. The plaintiff denied ever attending trial before Mrs Chimanda. Mr Hungwe, for the defendants failed to cross examine him on the trial proceedings in question that in his opening remarks he purported to have represented the defendants’ late father. Apparently the record in 11 955/04 could not be located at the magistrate’s court. The magistrates who purportedly conducted the pre-trial conference and trial were not called to testify. In the absence of the court record or evidence from the magistrates who dealt with the matter, there was no way that the defendants could establish that 11 955/04 was finalised. In my view there was merit in the evidence of the plaintiff that when the defendants father died, he decided to abandon the proceedings in 11 955/06 and institute fresh proceedings against those who remained in occupation of the subdivision, hence the initial court application HC 1094/06 and the present action.

In regards to 11 955/04, the defendants failed to establish that the matter was concluded in the magistrate’s court. The special plea of res judicata raised as a preliminary point fails.

In the alternative, the defendants contended that if the matter was not concluded, then this court must find that it is still pending. The defendants established on a balance of probabilities that 11 955/04 is still before the magistrate’s court. They also established that the record of proceedings was lost. The plaintiff averred that he abandoned the proceedings in preference to the High Court proceedings that have culminated in the present action.

Mr Hungwe and Mr Dondo were agreed that a plea of lis alibi pendens was not a complete bar to the bringing of proceedings in the High Court which had discretion on whether to stay the proceedings or to deal with them. In Supline Investments (Pvt) Ltd v Forestry Commission of Zimbabwe 2007 (2) ZLR 280 (H) at 284H MAKARAU JP, as she then was, stated:

“It is trite that a plea of lis alibi pendens is not a complete bar to the bringing of proceedings in this court. It is merely a plea to the court for the court to stay the proceedings before it to allow the other proceedings to be completed.”

The magistrate’s court proceedings have been in abeyance for nine years. The court record could not be located on 5 November 2008 as stated at the back of p 36. The Provincial Magistrate Civil and Customary Law stated in her letter of 9 July 2010 (preceding p 1 of exh 9) that the record could not be found. The plaintiff abandoned the proceedings in that court. The proceedings in the magistrate’s court are dead. They cannot be resuscitated. The defendant in that court passed on in 2005. Staying the proceedings would not serve the interests of justice in circumstances were the defendant died, the plaintiff abandoned the proceedings and the record cannot be found. In any event, this court has already heard evidence on the merits of the matter. The interests of justice are best served by determining the real issue between the parties at hand. I decline to stay the proceedings.

Accordingly, the special plea of lis alibi pendens raised by the defendants fails.

Is plaintiff entitled to an order for the ejectment of the defendant from stand 332A Muguta Extension Epworth

The plaintiff based his claim for eviction on the transfer of title, rights and interest in the subdivision by the Epworth Local Board from Dias Kusvobwe to him on 29 October 2002 recorded in exh 2. He produced the Epworth Local Board rates statement, exh 7, dated 31 October 2012, to demonstrate that he has been paying the rates of the subdivision in issue. The subdivision was purchased for him by his parents on 4 August 2002.

He paid the full purchase price of ZW$90 000-00 in instalments before the rights were transferred to him by the seller with the consent of the local authority. Thereafter he sought to establish the boundaries of the subdivision with the local authority. At the site he discovered that the defendants’ father Aaron Sukutai Chingwaru had built a four roomed house on his stand. He sought his eviction. He was not forthright about his claim in the magistrate’s court. In his evidence in chief he denied instituting the claim in the magistrate’s court. Under cross examination, he admitted doing so and identified the papers he filed in that case that formed part of exh 9. He was, however, adamant that neither a pre-trial conference nor a trial was ever held in that matter. He simply abandoned the magistrate’s court case and instituted the present matter against the children of Aaron Chingwaru who remained ensconced on the property.

His mother Julia Chinovhiringa and the son of the late seller James Kusvobwe confirmed his version that the rights in the stand were sold to him by Dias Kusvobwe. His mother confirmed paying the purchase price on the plaintiff’s behalf. She went to view the subdivision with her husband Jealous Chinovhiringa. Dias Kusvobwe sold to them the undeveloped portion of the subdivision. She was in agreement with the evidence of James Kusvobwe the son of the seller that at the time of the sale, Aaron Chingwaru was residing in a four roomed house on the subdivision. She only came to learn that Aaron Chingwaru’s house was built on his son’s subdivision when the local authority later showed the plaintiff the pegs marking the boundaries of his subdivision stand.

James Kusvobwe stated that his father died in 2009. In 1998 Aaron Chingwaru expressed interest in purchasing a stand from his father. His father advised him that stand 332 had not yet been subdivided but allowed him to take occupation on a portion of the stand which he would pay for once the subdivision was done. Chingwaru paid ZW$10 000-00 as a deposit for the full purchase that would be agreed once the subdivision was carried out. He built a four roomed structure on the property. The subdivision was carried out in 2000. Chingwaru refused to pay the balance of the purchase price that had been set at ZW$100 000-00 after the subdivision. The dispute between his father and Chingwaru culminated in Chingwaru seeking a peace order against his father in 2004. It was in those proceedings that James saw exh 8 for the first time.

The agreement executed between Kusvobwe and Chingwaru, exh 8, contradicted James’ evidence. It showed that his father sold his rights in the subdivision for ZW$10 000-00 that was paid in full to him. The fact that Chingwaru successfully obtained a peace order against Kusvobwe in 2004 is a strong pointer that the full purchase price for the rights in the stand were set at ZW$10 000-00 and not ZW$100 000-00. When he was cross examined, James’ version that the original stand 332 was divided in 2000 was, however, not placed in issue.

The first defendant stated that her father purchased rights in the subdivision four years before the plaintiff on 22 July 1998. She has resided at that subdivision with the other defendants ever since. Her evidence of the length of her residence was confirmed by the initial summons issued in the magistrate’s court and the notice to plead which were served on her on 20 July 2004. She contested the action on the basis that she derives her right of occupation from her father who held prior rights in the property before the plaintiff took transfer.

She stated that her father was forestalled into taking cession by the seller who sought to clear arrears with the local board. She at one time attended at the local board with her mother and father; Mr and Mrs Kusvobwe and Julia Chinovhiringa to resolve the dispute. The outcome was the eviction suit by the plaintiff against her father. She confirmed demolition of this father’s structures by the messenger of court before her father was restored onto the property by subsequent court decisions.

Under cross examination she stated that the stand was subdivided soon after the purchase of rights by her father. She confirmed that the plaintiff is the one paying rates for the subdivision.

Her mother Tamari Chingwaru disputed that a meeting was held at the local board by the parties referred to by her daughter. An attempt to resolve the dispute was only made in December 2012. She confirmed that her late husband paid the full purchase price on 22 July 1998. She was present with two sons-in-law and her husband and a grandchild as were the seller his elder son who is deceased and a daughter. She said the seller refused to cede the subdivision to her husband. Her husband became aware of the second sale after the event when he went to the local board to ask about payment of rates. She stated that her husband did not assert his rights of cession. Under cross examination she confirmed that the agreement of sale with her husband was entered into before the subdivision of stand 332 Muguta Extension Epworth.

The defendants claim is based on an agreement of sale entered into between their father and the seller. At the time no subdivision was in existence. Such an agreement is illegal. See X-Trend-A – Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 349(S) at 355 A-B. Thus whether one accepts James Kusvobwe’s testimony that the subdivision was carried out in 2000 or the first defendant and her mother’s evidence that it was done after 22 July 1998, the only valid agreement was the later one entered into on 4 August 2002 by the plaintiff and the late Dias Kusvobwe. Thus as the first contract of sale was illegal, the considerations in double sales set out in Mwayipaida Family Trust v Madoroba & Ors 2004 (1) ZLR 439 (S) at 444D do not apply in the present matter. In any event, Epworth Local Board was not to blame for the failure by the defendants’ father to take cession. The plaintiff was not aware of the purported prior rights of the defendants’ father at the time he took cession.

The plaintiff has established that he lawfully holds cession over the whole area covered by stand 332A. A portion of that stand is occupied against his authority by the defendants. He is accordingly entitled to evict the defendants.

The quantum of damages if any

The plaintiff abandoned his claim for holding over damages and prayed for the eviction of the defendants with costs.

Disposition

Accordingly, it is ordered that:

The defendants together with all persons claiming occupation through them be and are hereby evicted from stand 332A Muguta Extension Epworth.

The defendants shall jointly and severally the one paying the others to be absolved pay the plaintiff’s costs of suit.

Chinamasa, Mudimu & Dondo, plaintiff’s legal practitioners

Hungwe & Partners, defendants’ legal practitioners