Christopher Dube v Rutabanga Marketing and Stewart Phillip Cranswick

### Preamble
1
HB 293/20
HC 30/19
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CHRISTOPHER DUBE

Versus

RUTABANGA MARKETING

And

STEWART PHILLIP CRANSWICK

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 27 OCTOBER & 10 DECEMBER 2020

Civil Trial

K. Ngwenya for the plaintiff

Ms A. S. Ndlovu for the defendant

KABASA J:	The plaintiff was the owner of stand 8140 Victoria Falls Township and title to the property was held under title deed number 1816/2014.  As Town Clerk for Victoria Falls Municipality he was offered stand 1537 Victoria Falls Township Lands as part of his conditions of service. He therefore ‘owned’ two properties in Victoria Falls.

On 1st September 2016 the plaintiff entered into an agreement of sale with the defendant in respect of stand 8140 and a deed of cessation and assignment in respect of stand 1537.  At the time that these agreements were entered into the defendant had not yet been incorporated and one Stewart Phillip Cranswick represented the defendant.

A third agreement was entered into by the same parties on the same date, 1st September 2016, wherein it was agreed that the defendant would construct seven town houses for the plaintiff on stand 8140 and 2 town houses on stand 1537.  Such town houses were to be constructed by the 1st of September 2018 failing which the defendant would pay the plaintiff a sum of US$600 000 by no later than 7th September 2018.

The plaintiff’s dream of owning townhouses did not materialise.  The 9 town houses which were to be constructed by the 1st September 2018 were not so constructed.  The US$600 000 which was to be paid by no later than 7th September 2018 was also not paid.

Unhappy with the turn of events the plaintiff issued summons against Steward Phillip Cranswick and the defendant which had now been formed and duly incorporated in terms of the Companies Act, Chapter 24:03. However the claim against Stewart Phillip Cranswick was later withdrawn.

The plaintiff’s claim as against the defendant is for:-

“1.	A declaratory order that the agreements of sale entered into between plaintiff and defendant for stand 8140 Victoria Falls Township of Victoria Falls Township Lands and stand 1537 Victoria Falls Township of Victoria Falls Township Lands are cancelled.

2.	An order for the return of the title Deed number 1816/2014 in respect of stand 8140 Victoria Falls Township of Victoria Falls Township Lands.

3.	An order that the US$150 000 payment made by the 1st defendant on behalf of the 2nd defendant offsets the general damages suffered by the plaintiff so as to cover the loss plaintiff incurred as a result of the breach of contract.

4.	Costs of suit at an attorney-client scale.”

In answer to this claim the defendant acknowledged the three agreements entered into by the parties but averred that the plaintiff was paid US$150 000 towards the properties.  The agreement relating to the construction of town houses was a separate agreement not tied to the agreement of sale and cession.  The failure to build the town houses was to attract the payment of US$600 000 to the plaintiff, less deductions which were incorporated into the agreement.  The balance thereto was tendered in accordance with the law.

The defendant denied breaching the agreement and contended that the plaintiff did not claim the US$600 000.  By tendering that amount the defendant wholly performed in terms of the parties’ agreement.  The plaintiff was indebted to the defendant at the time of the signing of the sale agreements and such debt was offset as against the purchase price.

The defendant counter-claimed, seeking that the plaintiff be compelled to accept the ZW$600 000 in full and final settlement of its obligations to him.  The parties subsequently attended a pre-trial conference and having failed to find each other, the following issues were referred for trial:-

Whether or not the defendant breached the agreement of sale and or cession and assignment agreement and or the agreement of construction of the town houses.

If so, whether or not plaintiff is entitled to a claim for cancellation of the agreements and the remedy thereof.

Whether the defendant is entitled to such specific performance and the plaintiff obligated to accept the sum of ZW$600 000 as per the express terms of the agreement for construction of town houses.

Whether or not both properties have been transferred to the defendant.

At the commencement of the trial the plaintiff abandoned the claim for the US$150 000 paid to him to be set off as general damages he suffered as a result of the breach of contract.  The plaintiff was the only witness to testify.  The gist of his evidence was that the 2 stands that were the subject of the agreements of sale were his.  He owns stand 8140 and has title to it.  Stand 1537 was an offer to him from his former employer as a condition of service. The deed of transfer for stand 8140 was admitted into evidence as exhibit 1. The deed of cession for stand 1537 wherein he ceded that property to the defendant, the agreement of sale for stand 8140 and the agreement for the construction of town houses on the two stands were admitted into evidence as exhibit 6, 5 and 4 respectively.

It was the plaintiff’s evidence that at the time the agreements were signed the defendant was yet to be formed, the company was subsequently incorporated and Mr. Cranswick and Mr. Conolly are the directors.  The certificate of incorporation and the CR 14 were admitted into evidence as exhibit 2 and 3.  The plaintiff came to know about Mr. Cranswick through a colleague and was aware of a Madokero project that Mr Cranswick was involved in in Harare. He was interested in having such a project replicated on his Victoria Falls stands.  Mr. Cranswick offered to do the same project which entailed the construction of town houses at the 2 stands, 8140 and 1537.  30 townhouses were to be constructed on stand 8140 and he was to get 10 and 6 were to be constructed at stand 1537 with him getting 2.  His contribution was to be the land.  The title deed for stand 8140 was however encumbered as he owed money to a bank which was holding the Title Deed.  Mr Cranswick gave him a total of US$150 000 to pay his debts and have the Title Deeds released. Instead of 10 he would then get 7 town houses on stand 8140.  The detail was however not documented and he believed the parties’ relationship would ensure the honouring of this undocumented detail regarding the reduction from 10 to 7 town houses.  The value of stand 8140 was US$775 000 and whilst the agreement of sale gave US$233 000 as the purchase price there was no such purchase.  The cession and the agreement of sale were to facilitate the construction of the town houses. It was to serve as some form of security to the defendant. The 3 agreements were inter-linked; none could take place independent of the other.  The defendant did not construct the town houses and equally failed to pay the US$600 000 by the 7th September 2018.  Had the US$600 000 been paid as agreed he would have been sufficiently compensated.  The offer to pay it as ZW$600 000 long after the 7th September 2018 was therefore an insult as such an amount could not even pay for one town house.

The plaintiff therefore considered the contract as having “gone bad” and so entitled to resile from the agreement.  He therefore insisted on his claim for the cancellation of the agreement and the return of the Title Deed which the defendant is in possession of.

As stated earlier, the plaintiff was the only witness, the plaintiff’s case was therefore closed after his testimony.

Counsel for the defendant then made an application for absolution from the instance.  It is contended that the plaintiff failed to prove a prima facie case against the defendant and gave no evidence which legally supports the relief he seeks.

What is the test to be applied when considering an application for absolution from the instance?  In Ruto Flour Mills (Pty) Ltd v Adelson 1958 (4) TPD 307 BOSHOFF J put it as follows:

“At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the court is, “Is there evidence upon which a reasonable man might find for the plaintiff?”

The court in Beta Holdings v Rio Zim (Pvt) Ltd HH-397-17 put it differently but with the same meaning when it said:-

“The order should be granted when the plaintiff’s claim is hopeless at the close of the plaintiff’s case.”

The question to ask therefore is, “In casu is the plaintiff’s case hopeless
?”

Before I answer this pertinent question it is important to look at how the plaintiff articulated the basis of his claim against the defendant.

It is not in dispute there are three agreements between the parties, all concluded on 1st September 2016.  There is also no dispute the genesis of such agreements lay in the desire by the plaintiff to utilise the land he had, comprising of stand 8140 and stand 1537. The reference to stand 8140 as 1840 in some sections of the documents is obviously an error and so wherever 1840 appears it should be read as 8140.  The company which was yet to be formed and which was subsequently incorporated and is the defendant herein was the one which was to construct town houses on the aforementioned stands.

Exhibit 4 which is the agreement for the construction of town houses captured this succinctly:-

“Recital -	This agreement contains the basic terms and obligations of the constructor to build town houses on stands 8140 and 1537 Victoria Falls, and matters incidental thereto.”

The conditions attached thereto were that:-

“(a)	Dube cedes and assigns his rights in and to stand 1537 to the specified Assignee in terms of the agreement of Cession and Assignment signed on 1st September 2016; and

(b)	fulfils the conditions and obligations imposed on him in terms of the agreement of sale of stand 8140 signed on 1st September 2016.

In regard to, and on stand 8140,

Subject to clause 2 below, by 1st September 2018 the constructor shall build 7 (seven) town houses for Dube.

In the event that the constructor for any reason whatsoever, should fail to build the townhouses on stand 8140 shall, by no later than 7th September 2018, pay Dube the sum of US$600 000 less deductions as referred to in clause 2.2 of the agreement of sale of stand 8140.”

One reads into this an inescapable intention of inter-connecting these three agreements and not three clearly distinct and separate agreements, each not speaking to the other.

It is therefore the plaintiff’s assertion that the value of his land is US$755 000.  He was given US$150 000 in order to release the Title Deeds from the encumbrance arising out of what was owed to CBZ.  In the event that the town houses were not built he was to get US$600 000, adding this to the US$150 000 would give US$750 000, the value of the land.  Had the townhouses been built the plaintiff would have been given the value for the land he had provided.  The number of townhouses he was to get was a small fraction of the total townhouses that the defendant was to build on this land.

If therefore exhibit 5 is to be taken as a contract through which the plaintiff divested himself of his ownership of the land and reposed such ownership in the defendant for the sum of US$233 000, why would the defendant go on to construct town houses for the plaintiff at the pain of giving him US$600 00 should it fail to build the said town houses?

The plaintiff’s explanation is that his contribution was the land and he was to get its value from the town houses that were to be built for him or the payment of US$600 000  in the event that such town houses were not built.

There is no dispute the town houses were not built by 1st September 2018 as per the contract.  The US$600 000 was also not paid by 7th September 2018 as per the contract.  The plaintiff’s claim is therefore that because of this breach, he is resiling from the agreements.  He would want to be placed in the position he was before the unfulfilled agreements, by having the agreements cancelled and getting back his Title Deed for stand 8140.

Does the foregoing reveal a hopeless case warranting the granting of absolution from the instance?  I think not.

In Gabbie and Another v Castanheira and Another SC-58-20 MAKONI JA had this to say:-

“The courts must be slow to grant absolution from the instance and the point was made in Katerere v Standard Chartered Bank Zimbabwe Ltd HB-5-08 which was quoted in Bakari v Total Zimbabwe (Pvt) Ltd SC-21-19, it was stated that:

“The court should be extremely chary of granting absolution at the close of the plaintiff’s case.  The court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true.  The court should not at this stage evaluate and reject the plaintiff’s evidence.  The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established.  Absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his clam.”

What is clear therefore is that absolution from the instance ought not to be granted unless it is very clear that the plaintiff’s case is a lost cause.

In MC Plumbing (Pvt) Ltd v Hauling Construction (Pvt) Ltd HH88-15 CHIGUMBA J made reference to a decision of the Supreme Court in Lourenco v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 157 where the court considered a number of cases, including Supreme Service Station (1969) (Pvt) Ltd v Goodridge (Pvt) Ltd 1971 (1) RLR 1.  The learned judge summarised the observations made by the Supreme Court as follows:

“It was held in that case that when an application for absolution from the instance is made at the end of the plaintiff’s case, the test is: what might a reasonable court do, i.e. is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?”

It is important to note the use of the words:

“… a court might make a reasonable mistake and give judgment for the plaintiff.”

This accords with the sentiments expressed in Standard Chartered Finance Zimbabwe v Georgias and Another 1992 (2) ZLR 547 (HC) where the court stated that when in doubt the court should lean in favour of continuation of trial.

Counsel for the defendant’s submission that the defendant tendered the ZW$600 000 and so complied with the terms of the contract making the plaintiff’s claim unsustainable should be looked at in light of when such tender was made.  Whilst the plaintiff appeared to initially dispute that such tender was made, he subsequently acknowledged that it was made but this was well after 7th September 2019 and after he had issued summons seeking the cancellation of the agreements. It is to be noted that payment of the US$600 000 was supposed to have been made by 7th September 2018.

The test at this juncture is not whether the plaintiff has proved his case against the defendant but whether he has sufficiently laid out a case worthy of a rebuttal by the defendant.

There appeared to be a suggestion during cross- examination that the plaintiff had not produced proof that he was employed by Victoria Falls Municipality and that he had been offered stand 1537 as an employment benefit.  However the deed of cession and assignment in respect of stand 1537 which was produced in evidence was made and entered into by and between the plaintiff, in his personal capacity, on the one hand  and the defendant on the other. On the face of it that would tend to suggest that the plaintiff held rights, title and interest in that stand and could cede such right, title and interest to the defendant.

All the plaintiff need establish is a prima facie case and that he did with regards to his employment and the rights and interest he had in stand 1537.  Whether the plaintiff will successfully prove his claim against the defendant is a matter for resolution at the conclusion of the trial.

I am therefore not persuaded to hold that the plaintiff’s case is so hopeless to an extent that the defendant ought to be spared the trouble and expense of continuing to present his defence to the claim.

I am equally not persuaded to hold that this is a proper case to award costs at this juncture, let alone costs at a punitive scale.

In the result, I make the following order:-

The application for absolution from the instance is refused.

Costs shall be in the cause.

Messrs Dube, Nkala & Company c/o T. J. Mabhikwa & Partners, plaintiff’s legal practitioners

Webb, Low & Barry Inc. Ben Baron & Partners, defendant’s legal practitioners