Junior Jongwe v Tonderai Muyambi & 2 Ors

### Preamble
Jongwe v Muyambi & Ors
HMA 37-19
1
Civ A 9/19
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JUNIOR JONGWE

versus

TONDERAI MUYAMBI

and

TAFADZWA MUYAMBI

and

CITY OF KWEKWE

HIGH COURT OF ZIMBABWE

MAFUSIRE J & WAMAMBO J

MASVINGO, 26 June 2019

Date of written judgment 2 August 2019

Civil appeal

P. Chitsa, for the appellant

D. Abraham, for the first & second respondents

No appearance for the third respondent

MAFUSIRE J

[1]	This was a civil appeal. It was from a decision of the magistrate’s court at Kwekwe, Midlands Province. We dismissed it for lack of merit soon after argument and gave reasons ex tempore. This now is our detailed judgment.

[2]	The dispute in the court a quo, and of course on appeal, centred on a property known as Stand 601/4 Mbizo Township (“the property”). It is one of those municipal-owned properties that are sold to beneficiaries in terms of the local authorities’ standard term lease-to-buy agreements.

[3]	At all relevant times the appellant was the holder of rights and interest in the property. Loosely, such people as she are regarded as owners. But of course, legally they are not. The local authority is. Beneficiaries retain the right to buy. That right is tradable. Beneficiaries are free to sell and transfer such rights and interest if they meet the terms and conditions of their lease-to-buy agreements. But quite often, litigants and their lawyers get mixed up over the correct relationships or the correct terminology. Several times this court and the Supreme Court have had to caution lawyers over such misconceptions. One such caution was by McNally JA in Gomba v Makwarimba 1992 (2) ZLR 26 (SC) where, at pp 27 -28 the learned judge of appeal said:

“As so often happens, the parties have used the word ‘sale’ to describe what was in reality a cession of rights, since the house actually belongs to the Chitungwiza Town Council. …. It is unfortunate that legal practitioners persist in ignoring the distinctions between sale and cession of rights in these cases, both because there are many such cases and because there are many such distinctions. … … … …. … … … … … … … … … … … … … … … … … …

In this case the respondent was not the owner of the disputed immovable property but merely a ‘lessee-to-buy’.

See also Hundah v Murauro 1993 (2) ZLR 401 (SC); Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC); Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S) and Mberi v Mbewe & Anor HH 420-15.

[4]	There were traces of that confusion in the present case. Fortunately, it was not that which decided the case. The details were these. In the court a quo the appellant sued out a summons against the first and second respondents. She was the plaintiff. The first and second respondents were the first and second defendants respectively. The third respondent was the third defendant. It is less cumbersome to refer to the parties by their names. So henceforth the plaintiff shall be Junior; the first respondent Tonderai; the second respondent Tafadzwa, and the third respondent the City of Kwekwe or, where the context demands it, the city council or the municipality.

[5]	In the summons, Junior averred there was a fraudulent and fictitious agreement of sale purportedly between herself and Tonderai whereby she had purportedly sold and transferred her rights and interest in the property to Tonderai. She averred the fraudulent agreement had fraudulently and unprocedurally been smuggled into the official records of the City of Kwekwe. She professed utter ignorance of that agreement. She completely disowned her purported signature on it. She flatly denied she had been to the offices of the local lawyers who allegedly had prepared it for the parties.

[6]	Junior’s summons alleged she had discovered that someone had been digging a foundation on the property. So as relief, she prayed for a number of remedies as follows:

an order cancelling and or setting aside the allegedly fraudulent agreement;

an interdict barring the City of Kwekwe from effecting any cession of rights to Tonderai except with her direct involvement;

an order directing the City of Kwekwe to let her exercise her cession of rights in the property in accordance with the agreement between them; and

attorney and client costs as against Tonderai and Tafadzwa, jointly and severally.

[7]	I have tried to lay out Junior’s claim in the summons more lucidly. It was badly drafted and clumsy.  In Chauke & Another v Mangena HMA 09-19 in which I was faced with an appalling set of pleadings, I remarked that legal practitioners should have the skill and competence to blend unprocessed instructions and data from their clients into intelligible pleadings that a court may relate to. In Trust Merchant Bank Ltd v Lewis Murodzo Enterprises (Pvt) Ltd & Anor 1998 (2) ZLR 387 (H), GILLESPIE J, complaining about another type of incompetence, was less gracious. At p 390C – D he said:

“It is no compliance with this rule to attach to the summons or declaration lengthy and bulky statements of account containing masses of ‘raw’ information that still require critical appraisal, collation and analysis. It is in effect an affront to the court to present information in this way. It is the duty of the legal practitioner to reduce this unprocessed information to a simple schedule or calculation. If it is too much work for him, then he ought not to accept instructions.”

[8]	But perhaps in the magistrates’ court, and in practice, there is less precision and circumspection in the drafting of pleadings. Yet pleadings are so important. Among other things, they define and mark the boundaries of the legal dispute. If it were a boxing match, as litigation is in a way akin to boxing, pleadings would mark the boxing ring (a misnomer because the ring is in fact, a square!) It is from pleadings that the issues for trial are identified. It is from pleadings that the party on whom the onus to prove any issue is recognised. It is from pleadings that the parties are able to decide what evidence to lead, which witnesses to call, what exhibits to produce, and so on. In this case, as will emerge later, there was just utter confusion particularly on the issue of onus of proof, which witnesses to call and on whom the burden to call them lay.

[9]	Four days after the summons, Junior filed an urgent ex parte application. Not unexpectedly, and quite consistent with the abuse to which the ex parte procedure was being subjected to in the magistrates’ courts before their civil rules of procedure were amended in January 2019, Junior, in the absence of the other parties, obtained a rule nisi for an interdict. It ordered the City of Kwekwe to bar Tonderai from undertaking any construction activity or other development on the property, or from bringing any building material on site, and to put on hold any building plans in respect thereto, pending the conclusion of her action.

[10]	Only Tonderai and Tafadzwa contested Junior’s claim. There was no indication what became of the summons against the City of Kwekwe or what its attitude to the whole claim was.

[11]	The joint plea by Tonderai and Tafadzwa, which was also inelegantly drafted, essentially relied on the impeached agreement. They alleged that Junior and Tonderai had entered into an agreement of sale prepared by a Mr Innocent Hore, a local lawyer, and that in terms of it Tonderai had purchased the property for US$5 500, and that therefore Tonderai was the rightful and lawful owner of the property.

[12]	The plea did not answer the allegations in the summons seriatim. So sometimes some responses in the plea could not readily be related to any particular averment in the particulars of claim. But in summary, the plea disputed Junior’s entitlement to an interdict on the same basis that Tonderai, not herself, was now the lawful owner of the property following that agreement of sale.

[13]	The parties filed their separate pre-trial conference issues. For Junior, the issues were whether or not she and Tonderai had entered into the impeached agreement, and whether or not Tonderai had paid the plaintiff the sum of US$5 500 for the property. She said the onus of proof on both issues lay on the defendants.

[14]	For the defence, the issues were more expansive. They were:

whether Junior and the defendant (who was not specified) had entered into that agreement;

whether Junior and the defendant (who was not specified) had approached the City of Kwekwe together to register the agreement;

how Tonderai had got to be with the original documents to the property;

whether the signature on the agreement was not Junior’s;

whether an interdict could be granted;

who the liability for the costs of suit was on, and the scale thereof.

[15]	The defence said the onus of proof on the first two issues and on the fourth one (in respect of the signature to the agreement) lay on them and that on the rest it lay on the plaintiff.

[16]	From the record, there is no information on whether a joint pre-trial conference minute was ever formally prepared and adopted. Mr Chitsa, for the appellant, claimed the parties adopted the defendants’ issues and that the trial was conducted on that basis. Mr Abraham, for the respondents, was silent on this. But from the judgment of the trial court, the matter went to trial on all the respective issues as set out by the parties, albeit with the defence issues being listed first and the plaintiff’s last.

[17]	At trial Junior opened and shut her case with evidence from herself and her live-in nephew, one Phineas Chihota (“Phineas”). Edited, Junior’s evidence relevant to the issues was as follows:

She was over 67 years old and a businesswoman. She operated a shop. She owned no less than 5 properties in Kwekwe, including the one in issue. She and the defendants’ deceased father, the late Mr Muyambi, had been acquaintances over a long time.

Even though she faced some financial difficulties for some time she had never sold the property to the late Muyambi despite his persistent exhortation for her to do so.

About three years after late Muyambi’s death, Tafadzwa chanced upon her. She noticed a striking resemblance with the late Muyambi. She struck a conversation with him. He confirmed he was his son. Later his young family and his mother came to her shop urging her to go to the city council’s housing offices in connection with the property. She enquired which property as she had refused to sell to his father.

Eventually she had gone with the defendants to the city council’s offices. Her intention had been to “gauge” their intention. The defendants had spoken to some lady official. She herself had not been part of the conversation. She overhead the lady official saying “… you say you want agreements but we do not give agreements where we have not seen the building …”

From there she and the defendants had gone to the property. Her intention had just been to see its condition. Eventually they had dropped her off at her shop. After some time Tafadzwa told her he had tried without success to put up a plan at the municipality because there had been no agreement of sale. The defendants wanted an agreement of sale with her. But she told them to stop frequenting her property because she had not sold it to either their father or themselves.

For some years she had gone to stay with a son of hers in Swaziland. He told her he wanted to develop the property for himself. Back home in Zimbabwe she had tried to procure a building plan from the municipality. But she had been advised the property was already under development. She had then discovered the counterfeit agreement. It had been surreptitiously filed in the council’s records. She denied she had signed such an agreement. She had then taken action to have the agreement set aside and the defendants interdicted from building. She had also reported them to the police.

[18]	Phineas said he had lived with Junior from an early age. She was practically his mother. He said due to her advanced age, she confided in him in all her dealings. He largely repeated what Junior had said.

[19]	At the close of the plaintiff’s case, the defence applied for absolution from the instance. Plainly, this was misguided. The trial court correctly dismissed the application. The defendants took the stand.

[20]	The defence case opened and shut with their evidence and that of one Jesline Mudzimba (“Jesline”), a secretary at Hore and Partners. Tonderai and Tafadzwa gave similar evidence. Relevant aspects of it were as follows:

Their late father had told them that he had brought the property from the plaintiff. There was a developmental plan that he had prepared in Junior’s name but this had subsequently lapsed. Some few years after their father’s death, they had met with Junior. She had instantly recognised them owing to their striking resemblance to their late father. She had explained the sale of the property to their father. She had offered to help them take cession or transfer as soon as possible whilst she was still alive because problems could arise after her demise, especially seeing that she was now advanced in age.

To get round the problem of the absence of a formal written agreement, Junior had suggested that one be made between herself and the defendants’ family to facilitate the change of ownership. On their side they had initially proposed as a family that the ownership of the property be registered in the name of their mother. However, it had later been agreed that the property be in the name of Tonderai, the last born.

Junior had been very cooperative. They were surprised by her subsequent change of attitude. They themselves, their mother and a sister had freely interacted with Junior. Together with her they had gone to Hore and Partners for the agreement of sale. They had paid $300 for the lawyer’s services. A few days later, they had gone together with Junior to council’s offices to have the agreement “registered”. From there they had proceeded to the property. Eventually they had dropped off Junior at her shop.

The city council had advised them that no change of ownership, or cession, could be effected unless the property had been developed to window level. They were now developing it.

[21]	Jesline’s evidence was that it was she that had initially attended to Junior and the defendants when they had called at their offices for the agreement of sale. She had taken down their particulars before eventually handing them over to Mr Hore. She had later on been called in to sign the agreement as one of the witnesses. At trial she confirmed the signature on the document was hers.

[22]	The trial magistrate dismissed Junior’s claim. She entered judgment for the defendants. The essence of the judgment was that the impeached agreement had not been the full story. She accepted that Junior had sold the property to the defendants’ late father and that this had just been background information to the written agreement between Junior and Tonderai. It was clear the trial magistrate disbelieved Junior’s evidence and accepted that of the defence. Furthermore, she accepted Jesline’s evidence in toto and concluded that Junior had indeed signed the impeached agreement.

[23]	Junior appealed to this court on two grounds. She alleged the court a quo had erred and misdirected itself on both fact and law in that:

having regard to (a) the pleadings filed of record, (b) the issues agreed for trial, and (c) the evidence led at trial; and that

it had given validity to an illegal and invalid agreement of sale.

[24]	Before us, Mr Abraham objected to both grounds of appeal. He argued they were meaningless. As such, he said, there was no appeal properly before us. Mr Chitsa readily conceded that ground 1 was incompetent. He abandoned it.

[25]	By and by Mr Abraham also conceded that ground 2 of appeal was not incompetent. He then abandoned his initial objection in respect thereto. So in the end the appeal proceeded on ground 2 alone. This was the one relating to the validity or otherwise of the impeached agreement of sale.

[26]	As said already, the issues for any trial arise from the pleadings. In this matter, part of the confusion that dogged the parties at trial, and to an extent, Junior’s counsel on appeal, stemmed from the graceless pleadings; the inability to identify the real issues for trial and the failure to recognise and separate the overall onus and the evidentiary burden of proof.

[27]	Before us Mr Chitsa argued vigorously that the impeached agreement of sale was illegal and therefore invalid. His reasons were multiple. The dominant one was that the agreement contained patent falsehoods about itself. He said as a matter of fact Tonderai had never entered into an agreement of sale with Junior in respect of the property. As a matter of fact he had never paid Junior $US$5 500, or any amount for that matter, as purchase price. He said the defendants on whom the onus to prove the legality of that agreement and Junior’s alleged signature thereon lay had failed to call Mr Hore, the lawyer who had allegedly prepared it, or any city council official in whose council records the agreement had fraudulently and surreptitiously been lodged or smuggled.

[28]	Mr Chitsa further argued that at trial the defendants had departed from their original plea and had gone to rely on a completely new defence that relied on a completely different agreement allegedly between Junior and the defendants’ late father. He said the defendants’ reliance on this other agreement was itself problematic because it was wrongful. It contravened the law, particularly s 14, s 19 and s 42 of the Administration of Estates Act (Cap 6:01). His said this new defence had been introduced well after the closure of the plaintiff’s case and that she had not been afforded the opportunity to deal with it.

[28]	In response, Mr Abraham insisted that the issue of an agreement between Junior and the respondents’ late father had been introduced into the pleadings by no less than Junior herself. He said the respondents had not denied the allegation, meaning that they had accepted it. So all that they ever did was simply to expand on it.

[29]	The issue of the alleged agreement between Junior and late Muyambo was treated this way in the pleadings. The plaintiff’s particulars of claim read:

“A few years after the death of 1st and 2nd defendant’s father, the 2nd defendant and his mother approached Plaintiff falsily (sic) claiming that the late Muyambi who was father to 1st and 2nd defendant bought the above-stand, from the Plaintiff, a position which Plaintiff vehemently disputed as it is not true and challenged them to produce a single document in support of either the relevant agreement of cession/sale or payments for the said stand, by the late Muyambi, but they could not avail the said documents.”

[30]	In the plea, nothing could be matched to the above statement. Whilst Mr Abraham’s assertion that the issue had been introduced in the pleadings by the plaintiff herself and that the plea had not denied it might be correct, the rest of his argument that at trial all the defendants would ever need to do was to expand on it was, with all due respect, preposterous.

[31]	But the bigger picture seemed hidden to the parties, particularly Junior. Remarkably, a good number of legal practitioners invariably miss the real issues in some legal contests and strenuously harp on inconsequent and peripheral subjects. In two previous cases, Chauke & Anor above and Mbozvi v Sidhuna HMA 21-19 I was to borrow, as I hereby do again, the wisdom of the Shona saying: “kupedzera miseve pamakunguwo idzo hanga dziripo!” literally, wasting all the arrows on worthless crows when more treasured guinea fowls abound: in other words, majoring on minors.

[32]	Junior’s appeal had no merit. Counsel’s arguments before us were misconceived. It was completely lost to him that the overall onus to prove the alleged fraud in relation to the agreement of sale between Junior and Tonderai and the alleged surreptitious filing of it with the City of Kwekwe lay on Junior. The bedrock of fraud is misrepresentation. Junior’s evidence did not disclose who made misrepresentations and to whom. “Smuggle” and “surreptitiously” mean or connote “secretively”. These were her expressions. In the context of her suit the words were cognates. So who had “surreptitiously” filed this agreement with the City of Kwekwe, or “smuggled” it into their records? The nearest Junior’s evidence got to on this point was merely to cast suspicion on Tafadzwa. It was said he worked for the City of Kwekwe. But she proved nothing.

[33]	Mr Chitsa further attacked the defence for having failed to call Mr Hore to prove that Junior was part and parcel of the agreement of sale. He also accused the defence of having failed to call anyone from the City of Kwekwe to explain how the agreement had ended up being in their records. But why the defence? Why not Junior herself? Who had a case to prove?

[34]	We were satisfied the court a quo kept its eyes squarely on the ball. It competently separated the trees from the woods; the wheat from chaff, and glib talk from depth or substance. It upheld substance over form. The pleadings were manifestly inelegant. Cross-examination was incompetent. It lacked direction. It proved nothing. Witnesses largely went unscathed. Both sides fumbled, but more the plaintiff. However, the evidence was quite decisive. When the pleadings, the evidence and everything else about the case are looked at holistically, the court a quo was right to dismiss the plaintiff’s claim and enter judgment for the defendants. That was our decision. Here is why we made it.

[35]	Junior’s evidence was implausible. It had several gaps. It was largely incoherent. Among other things, it was not the wisest thing for her to feign ignorance of the agreement of sale and her signature on it. The folly was not lost to the trial court.

[36]	In contrast, the defence evidence was coherent and most persuasive. Tonderai and Tafadzwa neatly corroborated each other on matters of substance. They said it was Junior herself who had initiated the idea of regularising the sale of the property to their family to avoid any problems as might be caused by her demise. To get round the absence of a formal agreement with the defendants’ dead father, she suggested one could simply be executed with the living. Mr Chitsa’s argument on this seemed to suggest that the written agreement was in fraudem legis, particularly the Administration of Estates Act. It was not explained how exactly this could be so. This was just a decoy and a desperate long shot.

[37]	It was argued the written agreement was fraudulent and therefore invalid because it told a falsehood about itself in that not only had Tonderai not bought the property from Junior but also that he had never paid her the alleged $5 500 purchase price. But even if this argument were correct, which it was not, that would not make the agreement fraudulent. Who misrepresented what? To whom? There was no victim here. On the contrary, it was a conscious agreement by the parties themselves, at the instance of Junior herself. It was a simulation of the agreement that Junior had concluded with the defendants’ father much earlier. The simulation was necessary to facilitate the cession of title at the City of Kwekwe. It may have stemmed from poor legal advice by Mr Hore to do it that way instead of merely acknowledging the prior agreement. But that did not make the agreement illegal, let alone fraudulent.

[38]	Incidentally, the agreement never said Tonderai had paid Junior $5 500. It simply said Junior, as the seller, acknowledged to have been paid this amount prior to the agreement. On a balance of probabilities, there had been such an agreement between Junior and the defendants’ late father. Among other things, there was produced during trial a building plan that the defence said had been prepared by their late father during his life time following his agreement with Junior but which had subsequently lapsed. It pre-dated the written agreement. Although this document had not been discovered, both sides made reference to it. Mr Chitsa cross-examined on it.

[39]	Jesline’s evidence was the coup de grace on Junior’s implausible denial of the agreement. Mr Chitsa’s argument was that Jesline was not herself a lawyer; that she had not been the one who had actually crafted it and that there was no plausible reason why her memory should have remained clear on the execution of this single transaction given that in her line of work she would have facilitated several other agreements of a similar nature. The defence’s alleged failure to call Mr Hore himself was said to be fatal to their case.

[40]	This argument was completely misconceived. Jesline testified, among other things, that she recognised Junior. She had brought her particulars when she had come with the defendants to her offices. She remembered the transaction. She identified her signature on the document which she had signed as one of the witnesses. That was plausible. She did not need to be a lawyer. She was independent. Whatever evidentiary onus had lain on the defendants to prove the execution of the agreement was discharged. It might have been curious that neither side called Mr Hore himself. But that did not in any way weaken the defence case.

[41]	It was common cause Junior had freely and voluntarily accompanied the defendants to the city council’s offices and to the property. Certain things she said in her evidence or, did not say, actually corroborated the evidence of the defence. For example:

At the crucial time she said she was having financial difficulties. The property was in danger of being re-possessed by the city council owing to a lack of development. It was at that time that the late Muyambo was coaxing her to sell the property to him. It makes sense that she would have agreed. The standard lease-to-buy agreement requires construction of a building up to a certain value within a specified period. But that is not all.

Her evidence that when she had gone to the city council with the defendants to “gauge” their intention where a lady official there is said to have told the defendants, “… you say you want agreements but we do not give agreements where we have not seen the building …” dovetailed very well with the defence evidence that they had been told by the city council that no cession of rights would be possible before construction of a building on the property up to a certain level.

On the same aspect above, it is curious that having heard the council official saying those words she would have remained mum and not seek further particulars given that the defendants had driven her to the council offices for the purpose of “registering” an agreement. Not only that, but from the council’s offices, they had all driven to the property together, whereafter the defendants had dropped her off at her shop. That was not behaviour consistent with people in conflict.

What is plausible is that it was after Junior had disclosed to her son in Swaziland about the sale of the property and he had expressed an interest to develop it himself that she tried to resile from the agreement. That would explain her change of attitude that baffled the defendants.

[42]	Phineas’ evidence was of no probative value. Among other things, he was merely narrating what Junior had told him.

[43]	We were satisfied there had been no misdirection by the court a quo. Consequently we dismissed the appeal with costs.

2 August 2019

Wamambo J agrees	____________________________

Chitsa & Masvaya Law Chambers, appellant’s legal practitioners

Tanaka Law Chambers, first and second respondents’ legal practitioners