Tonderai Tarima v Zimcor Trustee (Pvt) Ltd and Registrar of Deeds

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TONDERAI TARIMA
versus
ZIMCOR TRUSTEE (PVT) LTD
and
REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE
PATEL J

Civil Trial

HARARE, 31 May 2011 and 8 September 2011

L. Chimuriwo, for the plaintiff
T. Machiridza, for the 1st defendant


      PATEL J:     The plaintiff in this matter seeks the cancellation of
an agreement of sale in respect of a stand in Vainona, Harare, and an
order for the transfer of that stand from the 1 st defendant to the
plaintiff. The sole issue for determination herein is whether or not the
full purchase price was actually paid into the plaintiff’s account.


The Evidence
      Tonderai Tarima, the plaintiff, testified that he sold the stand in
question to the 1st defendant, for the price of ZW$4 quadrillion, in
terms of an agreement of sale dated 26 January 2009 [Exhibit B]. He
handed the title deeds to Frank Buyanga, who represented the 1 st
defendant as its director, and gave him the house keys on the date of
signature. However, the purchase price was never paid into his
account as agreed. He did receive the sum of US$15,000 from
Buyanga in July 2009, but this was his share of a 2007 BMW motor
vehicle which he jointly imported with Buyanga in July 2008.
Buyanga was his close friend for many years. They knew each other
since high school and as students living together in London. He gave
up his studies in London and went into business with Buyanga,
buying and selling second-hand cars. He trusted Buyanga to honour
his obligations. He never paid for the stand despite several verbal
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demands and left the country in 2009. The stand was transferred to
the 1st defendant in January 2009 and its present market value is
US$200,000. Under cross-examination, he accepted that in terms of
clause 1 of the agreement of sale the purchase price is acknowledged
as having been fully paid at the date of signature, while clause 10
constitutes the entire agreement alterable only in writing. He also
confirmed his own signature on an undated acknowledgement of
receipt for ZW$4 quadrillion [Exhibit A] as the full purchase price for
the stand. He signed this in Harare on the same date that he signed
the agreement of sale, i.e. 26 January 2009. He signed both
documents in good faith, even though he understood the significance
of signing documents of this nature. He denied having seen any RTGS
form for the purchase price (contrary to the contents of paragraph 1 of
his Replication). He only issued Summons in July 2010 because
Buyanga was out of the country.
      Lloyd Hama has been engaged by the 1 st defendant as its driver
for the past five years. At the relevant time, the 1 st defendant had
three employees and comprised two offices. He confirmed having
signed the sale agreement in casu as a witness, simultaneously with
the plaintiff, Buyanga and three other witnesses. The fourth witness
signed the agreement at the lawyer’s offices. The RTGS payment for
the purchase price of ZW$4 quadrillion, from the 1 st defendant’s
Stanbic account to the plaintiff’s CBZ account, was effected on the
same day as the agreement was signed. He personally saw a copy of
the RTGS form when the agreement was signed on 26 January 2009.
The plaintiff himself must have seen that copy and was satisfied that
the transfer of funds had been effected. The plaintiff also signed the
acknowledgement of receipt when he signed the agreement. He then
surrendered the title deeds to the stand on the same date and vacated
it in May 2009. The witness did not see the plaintiff thereafter. Under
cross-examination, he explained that the RTGS payment was handled
by the 1st defendant’s accountant, one Ndlovu, who left the firm at the
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beginning of May 2011 for further studies. He was told by Ndlovu on
27 January 2009 that payment into the plaintiff’s bank account was
confirmed. He saw the 1st defendant’s bank statement on Ndlovu’s
desk but did not examine its details. When the plaintiff issued
Summons in July 2010, the RTGS confirmation form was available.
However, when the 1st defendant moved offices two months ago, many
files and papers were mixed up and some were lost. He then
approached Stanbic Bank and was told that the files in question had
been moved to its archives. He was also told that the 1 st defendant’s
statement of account for the relevant period could not be availed
because the bank’s ZW$ computer accounting system had been
removed.
      Frank   Buyanga,    who   represented     the   1st   defendant   in
concluding the sale agreement, did not attend to testify at the trial.
According to Hama, he was away in the United Kingdom, engaged in
some unspecified business.


Disposition
      Neither the plaintiff nor the 1 st defendant’s witness was
particularly impressive in demeanour or delivery of evidence. There
were several gaps and inconsistencies in their respective testimonies.
Be that as it may, theirs is the only oral evidence that the Court has
before it.
      The crux of the plaintiff’s case is that he was never paid for the
property in question. He trusted Buyanga, his close friend, to honour
the 1st defendant’s obligation to pay the purchase price of ZW$4
quadrillion. The 1st defendant, on the other hand, contends that
purchase price was paid in full, but is unable to avail documentary
proof of that payment for various practical reasons. Hama’s evidence
in that regard was not materially challenged.
      It goes without saying that the burden of proving his case falls
squarely upon the plaintiff. His assertion of non-payment is flatly
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contradicted by the 1st defendant. More significantly, the documentary
evidence before the Court constitutes an insuperable obstacle to the
plaintiff’s case. Firstly, there is the agreement of sale, clause 1 of
which stipulates that:
            “The purchase price is acknowledged as having been fully
      paid at the date of signature. The signature of the Seller shall,
      therefore, be confirmation of payment in full of the purchase
      price and to that end the seller is estopped from denying full
      payment.”

      This confirmation of full payment upon signature is buttressed
by the acknowledgement of receipt in which the plaintiff states:
           “I, TONDERAI TARIMA of 35 Vainona Township of
      Vainona do hereby acknowledge that I have received $4 000 000
      000 000 000 .00 (Four Quadrillion Dollars) being the full
      purchase price of Stand 35 Vainona Township of Vainona”.

      The plaintiff accepts that he voluntarily signed both of the above
documents at the same time. He further admits that he understood
the legal significance of appending his signature thereto. He also
concedes that he willingly surrendered the title deeds and keys to the
property to Buyanga and gave vacant possession thereof to the 1 st
defendant. In my view, this is a classic case for applying the maxim
pactum est servandum, whereby a party to a contract is bound by the
express terms of the contract to which he has subscribed without
duress or misrepresentation. The plaintiff in casu is, as he has
explicitly acknowledged and declared, estopped from denying full
payment of the purchase price.
      Having regard to all of the foregoing, it is clear that the plaintiff
has failed to discharge the onus of establishing his case on a balance
of probabilities. His claim is accordingly dismissed with costs.




Gonese, Jessie Majome & Co, plaintiff’s legal practitioners
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Manase & Manase, 1st defendant’s legal practitioner