Milton Chiguri and Primrose Chiguri v Tendai Mtengezanwa

### Preamble
1
HH 178-13
HC 11115/11
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MILTON CHIGURI

and

PRIMROSE CHIGURI

versus

TENDAI MTENGEZANWA

HIGH COURT OF ZIMBABWE

CHIGUMBA J

HARARE, 22 March 2013, 15 May 2013 & 5 June 2013

E.T.Moyo, for the applicant

S.Tsaurayi, for the respondent

Opposed Application

CHIGUMBA J: This is an application for confirmation of a provisional order issued by this court on 10 November 2011. The interim relief that was granted on that date was that:

The respondent shall forthwith cease any improvements on the property known as stand number 927 Forbes Road, Uplands Waterfalls Harare, and shall remove from the property, all his movable goods and effects.

Costs shall follow the cause.

The relief that the applicants now seek is confirmation of the terms of the final order which reads as follows:

It is declared that the applicants are the rightful holders of rights title and interest in the property known as number 927 Forbes Road, Uplands Waterfalls, Harare.

The respondent shall pay costs of suit on a Legal-Practitioner client scale.

Applicants are husband and wife who are involved in a dispute pertaining to ownership of stand 927 Forbes Road, Uplands Waterfalls Harare, with the respondent. The background giving rise to this matter is that on 27 June 2002 applicants purchased a vacant stand from developers known as Max Management Private Limited.

Applicants were initially allocated stand number 929 but were subsequently allocated stand number 927 after it became apparent that there had been a double allocation of stands.

On 20 March 2011, Max Management Private Limited entered into an agreement of assignment, cession of rights and delegation of obligations, with Milton Gardens Association, in terms of which the rights, title and interest in certain stands within the Newark Hilton Development otherwise known as subdivision A of Waterfalls, were transferred to it.  Milton Gardens Association confirmed, in a letter dated 20 October 2011 that stand 927 was at that date occupied by someone else, laying claim to it, and denied any knowledge of the occupant’s identity, and advised the applicants that this occupant had no legitimate title to stand 927, that he should vacate the stand, and seek recourse from whomever purported to sell stand 927 to him.

It is not in dispute that applicants have discharged their payment obligations in regards to stand 927, and effected improvements to the property. It is common cause that applicants have been paying water and rates charges to the city council in respect of stand 927. Applicants now seek an order declaring them to be the rightful owners of stand 927 Forbes Road, Uplands, Waterfalls, Harare.

Christopher Crispin Shokoni, deposed to the opposing affidavit on behalf of the respondent, on the basis of a special power of attorney giving him powers of substitution to appear in the name, place and stead of Tendai Mtengezanwa to represent him in respect of stand 927 Forbes Road. Respondent avers that the applicants’ claim is unfounded at law because applicant’s agreement of sale was for stand 929, not 927. Respondent’s claim to ownership of stand 927 is based on an agreement of sale with Tendai Isaac Mareya dated 17 January 2002. Respondent disputes that Milton Gardens Association had a right to allocate stand 927 to the applicants.

The issues that fall for determination by this court are:

Whether Milton Gardens Association was a legitimate holder of rights, title and interest in stand 927 Forbes Road, at the time that it purported to pass same to the applicants, and whether such rights, title and interest in that stand were legitimately passed on to the applicants.

Whether the respondent properly acquired rights, title and interest in stand 927 Forbes Road, Uplands, Waterfalls on 18 January 2002, from Tendai Isaac Mareya.

Section 14 of the High Court Act [Cap 7:6].  The Act states that the High Court;

“…may at its discretion, at the instance of any interested party inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

The applicants are asking the court to exercise its power in terms of the Act to grant the relief sought.

Applicants raised a point in limine in which they challenged the appropriateness of the deponent to the opposing affidavit deposing to matters that, in their view are not in the deponent’s personal knowledge. The court was referred to Chiadzwa v Paulkner 1991 (2) ZLR 33 (S) where it was held that a deponent to an affidavit must counter any doubt that the facts averred are not hearsay. He must set out facts which will justify the court in coming to a conclusion that the averments are within his knowledge, some facts which show an opportunity on his part to have acquired such personal knowledge. The Supreme Court at p 37 said that:

“A useful test is to ask whether the deponent would be a competent viva voce witness to the facts were he to be called”.

It is clear that the deponent was not present at the time the agreement of sale between Tendai Isaac Mareya and the respondent was entered into.  He has no knowledge of the title that Mareya purported to pass onto the respondent.  If the deponent was called to testify in my view he would not be a competent viva voce witness to the facts.  The point in limine is accordingly upheld on that basis.  There is no respondent before the court.

However, in case my view on the locus standi of the deponent to the founding affidavit is erroneous, I will proceed to deal with the merits of the matter.

Respondent’s agreement of sale with Tendai Isaac Mareya was entered into on 18 January 2002. It may well be a legitimate agreement of sale, binding between the seller and the purchaser. Respondent did not adduce evidence to show who Tendai Isaac Mareya is, and the date on which he purported to have acquired right, title and interest in stand 927, and of who conferred such right title and interest on him. The court is not satisfied that Tendai Isaac Mareya was vested with any right title and interest in stand 927. The court is not satisfied as to whether any legitimate transfer of rights title and interest took place between Tendai Isaac Mareya and the respondent.

It is my view that applicants have successfully shown that they acquired rights, title and interest in stand 927 Forbes Road, Uplands Waterfalls Harare. They bought a stand from Max Management Private Limited on 26 June 2002, stand 929. They were subsequently allocated stand 927 on 20 October 2011, by Milton Gardens Association which had acquired by way of cession, all rights in the development known as Newark Hilton of subdivision ‘A’ of Waterfalls from Max Management on 15 April 2011.

I find that there was no lawful impediment to the allocation of stand 927 to the applicants on 20 October 2011 by Milton Gardens Association. The application is accordingly allowed, and the provisional order is hereby confirmed.

Order

It is declared that the applicants are the rightful holders of rights, title and interest in the property known as stand 927 Forbes Road, Uplands, Waterfalls, and Harare.

The respondent shall pay costs of suit.

Messrs Scanlen & Holderness, applicants’ legal practitioners

Messrs Chinganga & Company, respondent’s Legal Practitioners.