George Chitate v Francis Zvakada and Registrar of Deeds

### Preamble
1
HH 87-21
HC 4601/16
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GEORGE CHITATE

versus

FRANCIS ZVAKADA

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

TAGU J

HARARE 10 November 2020 & 3 February 2021

Opposed application

T.G. Chigudugudze with B. C Madanhe, for the applicant

1st respondent, in person

TAGU J: This is an application to compel the 1st respondent to pass transfer of an immovable property commonly known as Lot 1 of stand 147, Prospect, Harare.

The facts are that on or about the 26th of March 1991 and at Harare, the applicant entered into a written agreement of sale of an immovable property with the 1st respondent and the material terms of the agreement inter alia were that the applicant would pay the purchase price in the sum of ZW$160 000.00 payable by a deposit of ZW$60 000.00 upon signature with the remaining balance payable by way of monthly instalments in the sum of ZW$5 000.00. The applicant was to be granted vacant possession of the property upon payment of the initial deposit and all risk and profit would then pass to applicant. The 1st respondent was to effect transfer of the property into the applicant’s name upon payment of the full purchase price through his conveyancers Messrs Scanlen and Holderness. The 1st respondent was bound to comply with all requests made by the conveyancers for the production of any documents or information necessary for the purposes of transfer urgently.

Pursuant to the signing of the agreement the applicant duly paid the full purchase price and took occupation of the property which he has enjoyed since 1991 to date. However, prior to payment of the full purchase price the 1st respondent became evasive and sought to eject the applicant from the premises under case no HC 8360/92 which application was strongly opposed and subsequently settled.

Subsequently, there were exchanges of correspondences between the applicant’s erstwhile attorneys and the 1st respondent’s attorneys. One such letter dated the 12th September 1994 written by the first respondent’s attorneys to the applicant’s legal practitioners reads as follows-

“RE: F ZVAKADA vs C CHITATE

We acknowledge receipt of your letters of the 18th August 1994 and 7th September 1994.

We further acknowledge receipt of your cheque in the sum of $15 000.00 in full and final settlement of the balance of the purchase price of the farm.

We have written to client to advise him to commence arrangements to effect transfer to your client and we have been advised that he is currently on a training course with the army and therefore we will revert back to you once he has attended upon us.

Yours faithfully

GRANGER & HARVEY”

However, after receipt of the full purchase price the 1st respondent disappeared from his chosen domicilium citandi. Several other correspondences ensued between the 1st respondent’s attorneys and applicant’s attorneys trying to locate the 1st respondent to no avail. Even the Deputy Sheriff’s return of service under case no. HC 6962/98 after applicant sought transfer of the property shows that 1st respondent was not locatable. The 1st respondent only surfaced in 2016 seeking to evict the applicant from the house which he had duly paid for in full. It is the applicant’s contention that after having been paid the purchase price the 1st respondent must effect transfer of Lot 1 of stand 147 Prospect held under deed of transfer no. 9559/89 into applicant’s favour and the said title deed is in the possession of the 1st respondent.

In his notice of opposition, the 1st respondent averred among other things that he had successive deaths in his family preventing him from transferring title to applicant. Further, he said the applicant was erratic in paying for the stand such that he ended up cancelling the agreement of sale. For that reason, he is refusing to effect transfer into the applicant’s names on the basis that the agreement of sale was cancelled after the applicant failed to pay in time.

Having considered the applicant and 1st respondent’s heads of arguments and the papers filed of record it is clear that the applicant and the 1st respondent signed an agreement of sale in respect of the property in question. The applicant duly paid in full the purchase price to the 1st respondent. The applicant took possession of the property and has been in occupation to date. The 1st respondent disappeared before transferring the property to the applicant.

The 1st respondent raised two contradictory defences, the first one being that he had successive deaths in his family. The second being that the applicant was erratic in paying the balance and he cancelled the agreement of sale. I find these defences unsatisfactory in light of the letter written by 1st respondent’s lawyers dated 12 September 1994. If indeed the applicant was in breach of the agreement, then one wonders why his lawyers wrote the letter dated 12 September 1994. If indeed the agreement had been cancelled, then the million-dollar question is why did the 1st respondent accept the last payment and did not return the cheque?

The applicant has managed to prove his case and the following order is granted.

IT IS ORDERED THAT

1st respondent be and is hereby ordered to sign all necessary documents for the purpose of transferring ownership of Lot 1 of stand no. 147 Prospect, Harare held under deed of transfer no. 9559/89 into the Applicant’s name within 7 days of the granting of this order.

In the event that 1st respondent fails to comply with paragraph 1 above, the Sheriff of the High Court be and is hereby authorized to sign all necessary transfer documents on behalf of the 1st Respondent.

1st respondent shall pay the costs of this application.

Mangeyi law chambers, applicant’s legal practitioners

Ngarava Moyo and Chikoni, 1st respondent’s legal practitioners