Noreen Chikaka N.O. (In Her Capacity As Executrix Dative In The Estate Of The Late Nesbert Chauraya) v (1) James Chauraya (2) The Master Of The High Court

### Preamble
Judgment No. SC168 /20
1
Civil Appeal No. SC 519/18
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DISTRIBUTABLE	(158)

NOREEN     CHIKAKA    N.O     (IN     HER     CAPACITY     AS EXECUTRIX     DATIVE     IN     THE     ESTATE     OF     THE LATE     NESBERT     CHAURAYA)

v

(1)     JAMES     CHAURAYA     (2)     THE     MASTER     OF THE     HIGH     COURT

SUPREME COURT OF ZIMABWE

HLATSHWAYO JA, BHUNU JA & MAKONI JA.

HARARE: 30 MAY, 2019 & NOVEMBER 27, 2020

T. Zhuwarara, appellant’s legal practitioners

Ms L. Chiperesa, first  respondent’s legal practitioners

BHUNU JA: The appellant is appealing against the whole judgment of the High Court (the court a quo) in which it upheld the first respondent’s suit against the appellant claiming a declarator and a half share of Usaramu Farm (the Farm), whereupon the court a quo issued the following order:

“Accordingly therefore it is hereby ordered as follows:

1.	It is hereby declared that Usaramu Farm was jointly acquired by the Plaintiff and the late Christen Chauraya.

2.	The plaintiff’s claim for a half share in the farm is hereby allowed to an extent whereby parties have to take appropriate legal steps to obtain a subdivision permit. Such process should be started within 30 days of this order.

3.	Should the appropriate authority grant the subdivision permit; the farm should be divided in terms of that permit.

4.	In the event that the subdivision permit is not granted, the first defendant shall, within 60 days of such decline, cause the farm to be evaluated by a valuer appointed by the Registrar of the High Court from his/her list of valuers. The defendant shall be awarded half the value of the farm as his share in satisfaction of his share of the claim.

5.	The plaintiff shall meet the costs attendant to the application of a subdivision permit and subdivision costs while the 1st defendant shall bear the costs of evaluation should that be necessary.

6.	The 1st defendant shall bear the costs of suit on the general scale.”

THE BACKGROUND FACTS

The facts giving rise to this appeal are somewhat common cause. The undisputed facts are that the first respondent and the late Christen Chauraya were brothers. Christen Chauraya was the father to the Late Nesbert Chauraya hereinafter referred to as the deceased. The first respondent was therefore a paternal uncle to the deceased and a brother in law to the appellant.

The deceased was survived by his wife, the appellant in this case and 3 children. During the deceased’s life time they all lived in harmony at the farm. The farm was registered in the deceased’s name. The circumstances surrounding the registration of the Farm in his name are hotly contested. It is however not in dispute that the deceased and the first respondent shared the Farm equally with each independently farming his own half portion of the Farm. The first respondent occupied the main house whereas the deceased occupied the cottage at the Farm.

The appellant sowed seeds of controversy when following the death of the deceased she, as executrix dative unilaterally registered the whole farm as forming part of the deceased’s estate. She allegedly did this without consulting the first respondent and other members of the Chauraya family.

The first respondent however laid claim to half of the farm. The basis of his claim was that he had jointly acquired the disputed Farm together with his late brother Christen sometime around 1990.  Following the joint acquisition of the farm, it was agreed that the farm be registered in the deceased’s name for easy access to agricultural loans because he had a diploma in agriculture. Thus a dispute then arose with the appellant concerning the true ownership of the Farm. The parties having failed to resolve their dispute the first respondent issued summons in the court a quo on 24 September 2014 claiming a declarator pertaining to ownership of half of the farm.

THE ISSUES FOR DETERMINATION BEFORE THE COURT A QUO

The pleadings raised the following 3 issues for determination:

1.	 Whether the first respondent’s claim had prescribed.

2. 	Whether the first respondent was entitled to a half share of the Farm.

3.	Whether the court a quo granted the first respondent relief that he had not sought.

WHETHER THE FIRST RESPONDENT’S CLAIM HAD PRESCRIBED.

It is trite and a matter of elementary law that in terms of s 15 (d) of the Prescription Act [Chapter 8:11] a litigant is barred from recovering a debt after the general prescription period of 3 years has run its course. Placing reliance on that section the appellant raised a plea in bar arguing that the first respondent’s claim had prescribed. It was her submission that the first respondent’s claim or cause of action for transfer of half of the farm had arisen on 24 September 1990 when the Farm was transferred to the deceased’s name as the sole owner. She contended that the first respondent only issued summons on 24 January 2015 about 25 years later when prescription had long set in.

On the other hand the first respondent denied that his claim or cause of action had prescribed.  He countered that his cause of action only arose when he became aware that the appellant had registered the whole farm under the deceased’s estate prejudicing his half share interest in the Farm. Prior to the registration of the whole farm under the deceased’s estate he had no cause of action or debt due from anyone because the farm was being occupied and run jointly in terms of the agreement at the time of purchase. As no one had threatened his rights and interest in the farm prior to the registration of the deceased estate, he had no reason to sue anyone. He could not seek any relief when no one had threatened his rights and interest in the disputed property.

The learned judge in the court a quo found in favour of the first respondent and ruled that the prescription period only began to run when the dispute arose after he became aware of the registration of the whole Farm under the deceased’s estate.

The question as to when prescription begins to run is a question of fact regulated by statute. The onus of proof was on the appellant as the defendant in the court a quo to establish that the first respondent’s claim had prescribed.

The question of prescription is a factual issue interwoven with the rest of the facts relating to the terms of the alleged joint purchase of the farm. It is therefore convenient to consider the learned judge’s assessment of all the facts before pronouncing a verdict on the issue of prescription.

WHETHER THE FIRST RESPONDENT WAS ENTITLED TO A HALF SHARE OF THE FARM.

The first respondent as the plaintiff in the court     a quo had the onus of proving on a balance of probabilities that he jointly owned the farm. His case is that some time in 1988 he entered into a joint venture with his late brother Christen Chauraya the deceased’s father. They jointly purchased the Farm with each party paying approximately half the purchase price. It was agreed that each party would be entitled to half of the farm. As Christen owned another farm he donated his share to his son the deceased. It was agreed that the Farm be registered in the deceased’s name to facilitate easy access to farming loans as he had a diploma in agriculture. It is common cause that both deceased and the first respondent settled on the farm. The farm was then demarcated into two halves. The first respondent occupied one half and the main house while the deceased occupied the other half and the cottage. He was in peaceful and undisturbed occupation of his half portion of the farm and the main house until the demise of the deceased and registration of the entire farm as part of the deceased’s estate. Initially they worked together on the farm until the balance of the purchase price was paid. Thereafter each party worked independently of the other on his half share of the farm.

The appellant’s story is that the farm was purchased in 1990 by the deceased’s father the late Christen Chauraya who then registered it in the deceased’s name under deed of transfer number 717/90. She called the deceased’s wife one Florence Dambudzo Chauraya as her sole witness. Her testimony was to the effect that she married the deceased in 1995. The deceased’s late father purchased the farm and registered it in the deceased’s name. The deceased paid the balance of the purchase price through his farming activities with the aid of agricultural loans advanced by the Agricultural Finance Corporation.

She averred that the first respondent never contributed anything towards the purchase of the Farm. It was her testimony that the first respondent was brought onto the farm by way of charity. He was poor and never engaged in any meaningful farming at the farm. He only used a small portion of the farm for gardening as he spent most of his time at his A2 Farm in Matepatepa.

I note in passing that the bulk of this witness’ evidence relating to how the farm was purchased is hearsay in that she only got married to the deceased in 1995 five years after the farm had been registered in the deceased’s name.

In analysing the evidence of the deceased’s wife who was the key witness for the appellant and beneficiary to the deceased’s estate, the learned judge found that she was a devious woman who had deliberately lied in a bid to mislead the court. In particular, the learned judge a quo found that the witness had lied about the first respondent’s current status and at the time the Farm was purchased.  She dishonestly painted a picture of someone who was and still is destitute, who survives on charity from relatives. At p 4 of his cyclostyled judgment this is what the learned judge had to say:

“Though in her plea the defendant had given the impression that at the time the farm was bought plaintiff was a man of straw, evidence showed that was not so. It was agreed that plaintiff was employed in a middle management job at Africa Distillers (Pvt) (Ltd) and that he owned a house in Unit K Chitungwiza.

It was also common cause that soon after the purchase of the farm, plaintiff resigned from his job in Harare and moved to the farm.

Since the Chauraya family (plaintiff’s and Nesbert’s) occupied the farm 	the plaintiff occupied the main house to this date whilst the late Nesbert occupied the cottage where his widow and children still live to this date.

The plaintiff is into horticulture and cattle farming. The plaintiff has a large herd of cattle at the farm. At some point the herd was 250.”

A perusal of the record of proceedings shows that the learned judge a quo’s assessment of the evidence is wholly consistent with the facts found proved. Considering that Florence’s evidence has been severely discredited as mostly hearsay and false in fact, that left the appellant with no leg to stand on as she did not have evidence of her own as to how the Farm was acquired. She also did not have supporting evidence from witnesses as to how the farm was acquired.

On the other hand, the first respondent told a simple and believable story amply corroborated by other witnesses. Charles Mukungurutse a distant relative and neighbouring farmer told the court a quo that the first respondent and the late Christen Chauraya jointly purchased the Farm in 1988. Thomas Nherere the then Regional Manager at Agricultural Finance Corporation testified that both the Late Christen Chauraya and the first respondent approached him for a loan with a view to jointly purchase a farm in 1983. He confirmed that the policy of the financial organisation at that time was not to grant loans to farmers without a farming background. This explains the joint decision to register the Farm in the name of the deceased who had a farming diploma.

John Kanodeweta the eldest nephew to both the first respondent and the late Christen Chauraya testified that as is customary both the first respondent and the late Christen called him as the eldest nephew and advised him that they had jointly acquired the Farm.

Zvenyika Nyamakura an uncle to both the first respondent and the late Christen had approached him as their uncle and advised him that they had jointly acquired the farm.

All the four supporting witnesses were found to be credible and reliable witnesses. Their evidence reads well and the learned judge a quo cannot be faulted for believing and relying on their evidence. It is highly unlikely that Thomas Nherera an independent professional man responsible for granting loans at the material time would deliberately mislead the court.

It is also highly unlikely that the deceased would have allowed the first respondent to occupy the double story main house at the farm for more than 20 years if he had no stake in the farm and was residing there at the deceased’s benevolence.

I now revert to the issue of prescription. Once it is established that the Farm was jointly purchased as alleged by the first respondent, it follows that the cause of action did not arise until his rights and interests in the farm were threatened. That threat was only posed by the advertisement alerting him to the fact that the appellant had registered the deceased’s estate as the sole owner of the Farm.

Once again the learned judge a quo was correct in finding that the first respondent’s claim had not prescribed as the debt or claim was not due at the time the Farm was purchased. Thus the first respondent’s claim only matured and became due when he learnt of the registration of the entire farm as belonging to the deceased’s estate.

WHETHER THE COURT A QUO GRANTED THE FIRST RESPONDENT RELIEF THAT HE HAD NOT SOUGHT.

The relief sought by the first respondent in his pleadings at p 4 of the record of proceedings reads as follows:

“9.	WHEREFORE plaintiff prays for:

(i).	For an order directing that Usaramu farm should not be treated as the sole  property of the estate of the late Nesbert Chauraya.

(ii).	 An order that directing Usaramu Farm be subdivided into two equal farms and that the estate late Nesbert Chauraya relinquishes the main house and the subdivided farm to the plaintiff consisting mainly of the land already being utilised by the plaintiff.

(iii)	An order directing the first defendant to sign all the necessary documents for the subdivision and transfer of the 	one of the two (sic) subdivided farms within fourteen days of the order hereof.

(iv).	An order authorising the plaintiff to commence the subdivision process of Usaramu Farm within fort eight hours of the grating of his order.

(v).	An order that the plaintiff shall meet all the subdivision costs.

(vi)	Costs of suit on a legal practitioner and client scale.”

A perusal of the order granted by the court a quo captured on the first page of this judgment shows that the order correctly captures the import of the first respondent’s prayer. The appellant merely protests without more, that the court a quo granted the first respondent more than what he had bargained for. Without pinpointing what she alleges the court a quo granted the first respondent without being asked, I find no merit in this ground of appeal.

As the dates of performance of the court a quo’s order have been overtaken by events, it is necessary to extend the dates of performance of the court a quo’s order to give effect to the order. Costs follow the result.

It is accordingly ordered that:

1. 	The timelines prescribed by the court a quo for the performance of its order in judgment number HH 326/18 be and is hereby extended to the date of this judgment.

2. 	The appeal is hereby dismissed.

3.   The appellant is hereby ordered to pay costs of suit.

HLATSHWAYO JA:			I agree

MAKONI JA:    			I agree

Danziger & Partners, the appellant’s legal practitioners.

Mkuhlani Chiperesa, the 1st respondent’s legal practitioners.