Mosley Mashingaidze v Precious Chipunza

### Preamble
1
HH 211-18
HC 11588/11
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MOSLEY MASHINGAIDZE

versus

PRECIOUS CHIPUNZA

HIGH COURT OF ZIMBABWE

MATANDA-MOYO J

HARARE, 9 October 2017 & 25 April 2018

Civil Continuous Roll

R.F. Mushoriwa, for the plaintiff

Advocate Hashiti, for the defendant

MATANDA-MOYO J: Plaintiff sued defendant by way of summons for the following relief;

An order evicting defendant and all those claiming occupation through him from plaintiff’s premises known as number 20 Saint Stephens Road, Meyrick Park, Harare.

Holding over damages in the sum of $500.00 per month with effect from 1 November 2011 to date of vacation on eviction and

Costs of suit on a legal practitioner-client scale.

Plaintiff alleged that he is the owner of number 20 Saint Stephens Road, Meyrick Park, Harare which is described as stand 3206 Marbelreign Township 17 of Greeba of Mabelreign measuring 1065 square metres, held under deed of transfer 4941/2011 dated 18 October 2011. Defendant is in occupation of that property. As a result of such occupation by defendant, plaintiff alleged he is suffering $500.00 per month, holding over damages from 1 November 2011. The $500 represents the amount, the plaintiff would realise from renting out the above property.

Defendant disputed plaintiff’s ownership of the property. Defendant instead claimed ownership of the property. It is defendant’s case that if plaintiff indeed holds title to the property then such title would have been fraudulently acquired. Defendant denied having transferred his property to plaintiff nor to any other person. Instead defendant pleaded that he borrowed $19 000 from a certain Frank Buyanga. He was made to sign a purported agreement of sale in respect of the property hence after defendant failed to settle the debt, Frank Buyanga sold property to Gildastone Holdings (Pvt) Ltd who have a pending eviction matter before the magistrates court against defendant. It is defendant’s case that if indeed plaintiff purchased the property, then he was and is not a bona fide purchaser.

Defendant denied being liable for holding over damages, insisting he was the owner of the property, and also denied that plaintiff was entitled to costs on a legal practitioner-client scale. He also prayed for dismissal of plaintiff’s claim with costs on a higher scale. Without replicating, the matter was set down for Pre-Trial Conference. The issues for trial were as follows;

Whether or not defendant has a defence to plaintiff’s claim.

Whether or not plaintiff is entitled to recover holding over damages in the sum of $500.00 from 1 November 2011 to date of eviction and;

Whether or not plaintiff is entitled to costs on a higher scale of legal practitioner and client.

Mr Mosley Mashingaidze testified that he is a Logistics Manager for a transport company based in DRC. He testified that he is the registered owner of stand 3206, Mabelreign Township. He produced the title deed which is in his name – namely Deed of Transfer number 004941/2011. The transfer was done on the authority of High Court Order 3931/11dated 19 July 2011. He said he bought the property for $55 000.00. Receipts to that effect were produced.

The plaintiff testified that he entered into an agreement of sale with Goldastone Holdings (Pvt) Ltd. The sale was concluded through Floburg Real Estate agents. This was after the sale of the property was advertised through the newspapers. He then sent his sister to view the house. Thereafter he also came over to view the property. The property was occupied then and so he was able to view the house. No one told him that there was a dispute in relation to the property. The defendant was in occupation of the house at the time of viewing.

Around April 2010 – two or three months after purchasing the property this witness leant that the defendant was claiming ownership to the property. To his surprise the defendant sat back and did nothing to assert his purported rights.

On holding over damages this witness testified that he had not been able to occupy his property as the owner. The defendant without just cause continued in occupation. The defendant has not been paying rentals. The house in question comprises of 3 bedrooms, 2 toilets, dining room, lounge and a verandah. The market rentals for such property is $500 per month. This witness also added that no mention of Frank Buyanga was ever made in these transactions.

Under cross examination this witness said whilst it is true that at some point the defendant paid rentals through Nyamushaya, Kasuso and Rubaya Legal Practitioners, he had not presented such proof in the form of receipts. He insisted defendant paid such rental for two months.

On being questioned on the existence of a court order cancelling sale from defendant to Lalapanzi, this witness said since he was not party to the proceedings he was unaware of the court order cancelling the sale from defendant to Lalapanzi. He insisted he was not aware of the participation of Frank Buyanga in these matters.

On re-examination this witness denied knowledge of Frank Buyanga nor one Akim Ndlovu.

The defendant opened his case by calling Mr Cheza – the client services manager for the Zimbabwe Revenue Authority. He testified that during the course of his duties he received a request from defendant’s lawyers to confirm whether the transfer to plaintiff of the property in question passed through his office. He confirmed transfer to Lalapanzi did not exist in their records. There was no record of defendant having paid capital gains tax. In fact he said he failed to get any records pertaining to the transfer.

Under cross-examination he confirmed he has been working for ZIMRA since 2001 and in the present capacity since 2014. He clarified that his evidence was to the effect that no records were found. He could not say for sure that the parties did not deal with ZIMRA. He admitted it could be a question of misfiling. He confirmed transfer could not be effected without proof of payment of capital gains tax. Under re-examination he maintained his position that it was possible that documents were lost at ZIMRA.

The defendant testified that no evidence was led by the plaintiff to show capital gains tax was paid by the defendant to ZIMRA. He said earlier on he got judgment from this court for transfer to be reversed. However such judgment has since been reversed for failure to cite the plaintiff. He said he never received purchase price from plaintiff nor from Gilderstone nor Lalapanzi. Gilderstone at some point tried to seek his eviction and payment of rentals but abandoned the claim. 	Under cross examination he stated that he was a Director of a company which provides financial advisory services. In that capacity he is aware of what constitutes security for a loan. He admitted that he did not produce any loan agreement. He said he once worked for Banc ABC and would securitize loans by pledging title deeds. He failed to answer whether the Bank made people sign agreements of sale for the properties and powers of attorney to make transfer. On being probed further he replied in the negative. He admitted he signed an agreement of sale and not a loan agreement.

He confirmed that in the agreement of sale between plaintiff and Gilderstone, Frank Buyanga’s name did not appear anywhere. Instead Alexander Chitamba represented the company. He admitted that there was no proof that the transfer was done by Buyanga. He admitted he had no proof that Buyanga had links with Lalapanzi or Gilderstone. The property was never registered in Frank Buyanga’s name. He conceded that plaintiff could well be an innocent purchaser. He was taken to task on whether he had told plaintiff during inspection that there was a dispute, and his answer was, he did not.

Under re-examination he said plaintiff never replicated to his plea suggesting he agreed with same. He said plaintiff was aware of  matter before the court where defendant was challenging transfer to Lalapanzi.

Analysis of Evidence

From the evidence submitted , the plaintiff gave simple and straightforward evidence. He is the owner of the property in question. All parties agreed that such property is registered in his name. He bought the property from Gilderstone (Pvt) Ltd having viewed the property. His evidence was that no one told him of the disputed sale. I believed him. The conduct of the defendant of sitting back and not doing anything until later on after receiving these summons tends to corroborate the plaintiff’s story.

The plaintiff paid $55 000 for the property and defendant is still occupying the house. He has not benefited from the house from date of transfer. He has lost out in terms of revenue. The current rentals claimed are not disputed. The plaintiff gave his evidence well and such evidence was not controverted during cross-examination.

The defendant called Mr Cheza from ZIMRA. His evidence did not take the matter any further. He could not say for sure capital gains tax over the property was not paid for. There was no evidence from him that ZIMRA was indeed following up on unpaid capital gains tax. Although he said no records pertaining to the sale of he property in question were found, he did not rule out misfiling. In any case this witness was not employed within that department responsible for capital gains tax at the time of the transfer. Someone else could have handled the assessment of capital gains. However this witness admitted that without a capital gains tax certificate, transfer would not have gone through.

The defendant’s testimony was too complicated. The defendant tried to throw in anything and everything that could make his story believable. The defendant testified that he was a finance person, well versed in loan documents. The defendant was very clear that what he signed was an agreement of sale. He however testified that it was executed in place of a loan agreement.  His testimony was that he borrowed $19 000 from Frank Buyanga who made him sign an agreement of sale. He said he signed the agreement after being satisfied with the explanation he got from Frank Buyanga that such agreement of sale represented a loan agreement. Having worked with a Bank where he came into contact with documents required for securitization of a loan, the defendant knew that he had signed an agreement to sell his property. So it is my finding that indeed the defendant sold his property to Lalapanzi. The purported agreement between Lalapanzi and the defendant according to defendant’s version was that if he failed to service the loan agreement his house would be sold. Evidence before me show that the defendant failed to service the loan agreement and the agreement of sale came to fruition. Either versions I am of the view that the defendant appreciated and by conduct agreed to the sale of the house.

The defendant admitted that the plaintiff’s sister and the plaintiff at some point viewed the house. However he said they were advised of the dispute. The defendant did not call anyone to testify on that. At one point he said they were told by his wife. The defendant’s wife never testified. However the defendant admitted that he only filed an application challenging transfer to Lalapanzi after he received these summons. Such conduct to me confirmed the plaintiff’s position that the defendant never disputed the sale at the time the plaintiff bought the property.

The plaintiff even testified that the defendant paid rentals for two months to the plaintiff’s lawyers. Although no receipts were provided such testimony had a ring of truth. It was only after the defendant heard that others were challenging the sales of their property that he had a change of heart and tried to cling onto the property.

It is also important to note that the defendant’s claim to have loaned money from Hamilton Finance and yet the agreement of sale produced was between the defendant and Lalapanzi. Before me is no evidence on the relationship between Hamilton Finance and Lalapanzi. Besides bold assertion that Frank Buyanga was behind these sales, but no evidence to prove that was placed before me.

Defendant raised a point in limine, that this matter be deferred until another matter dealing with ownership of the property in question has been determined. The court has been requested to stay the matter pending decision of matter HC 2213/14. It is defendant’s submission that it is in the interest of justice that this matter be deferred since it is only dealing with eviction. The matter dealing with ownership should be determined first so as to prevent conflicting judgments coming from the same court.

The present matter was filed before the matter referred to above was filed. A look at reference numbers indicate that the matter in casu was filed in 2011. It has been pending since then. The matter I have been referred to was filed in 2014 well after this matter was already pending. When the present matter was filed in 2011 there was no similar matter pending before the parties. In Nestle (South Africa) (Pvt) Ltd v Mars Inc 2001 (4) SA 542 SCA Nugent AJA said;

“The defence of his alibi pendens shares features in of res judicata because they have a common underlying principle, which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it, the suit must generally be brought to its conclusion before the tribunal and should not be replicated (lis pendens) by the same token the suit will not be permitted to revive once it has been brought to it proper conclusion (res judicata). The same suit between the same parties, should be brought for once and final.

See also Socratous v Grindstone Investments 2011 (6) SA 325 (SCA). This defence applies to a pending earlier matter involving same parties, same subject matter and same cause of action. The action which was first commenced should be decided first.

This matter was filed first and was the one pending. The 2014 matter is a latter one which was filed over three years after the present matter. It is the court’s function to ensure that it adjudicates over defences genuinely raised. This defence is an afterthought. The defendant only decided to file the other matter in 2014 and turns around to argue that the 2011 matter must give preference to the 2014 matter. According to defendant the 2014 matter is the one which seeks to determine ownership of the property in question. I do not agree. The present claim is based on the principle of rei vindicatio. The plaintiff herein must still prove that he is the owner of the property in question. The defendant also has a right to disprove such ownership. Therefore it is my view that although the claim is for eviction, it still requires the court to determine ownership of  the property. I am of the view that the point in limine should fail at this stage.

This is a claim based on rei vindicatio. The law of rei vindicatio provides a remedy to owners of property to vindicate such property from whosoever would be in possession of such property without their consent. I was referred to the case of Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H) where the court had this to say on the principle:

“The principle on which the action rei vindication is based is that the owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent. The plaintiff in such a case must allege and prove that he is the owner of a clearly identifiable movable or immovable asset and that the defendant was in possession of it at the commencement of the action. Once ownership has been proved its continuation is presumed. The onus is on the defendant to prove a right of retention. Chetty v Naidoo 1974 (3) SA 13 (A) ….”

See also Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd and Ors SC 40/15 and Johannesburg Municipal Council v Rand Township Registrar and Ors 1910 TS 1314 @ 1319, Gondine Chirome (Pvt) Ltd v MCC Contracts (Pvt) Ltd 91992) ZASCA 186.

Herein the plaintiff provided a title deed that he is the holder of title to the property in

dispute. It is common cause that the defendant is in occupation of the property. Once the plaintiff so discharged the onus on him, the onus shifted to the defendant to prove any one of the acceptable defences to a claim of rei vindicatio which are;

(1)	that plaintiff is not the owner of such property. The defendant must show documentary proof to such averment.

(2)	that the property in question is no longer identifiable or does not exist

(3)	that the defendant’s possession or physical control of the property is not unlawful or

(4)	that the defendant is no longer in physical control of the property.

In order for the defendant to succeed he must show that he is vested with same right enforceable against the owner. The defendant herein argued that he never sold his property to anyone and is still the lawful owner of the immovable property. He submitted that any transfer of his property from himself was never sanctioned by himself. Contrary to that argument evidence before me showed that the defendant sold his property to Lalapanzi Investments (Pvt) Ltd and he signed a Power of Attorney to pass transfer. The defendant acknowledged the signatures on those documents as his signatures. Once the defendant accepted signing those documents he required further evidence to show that he later withdrew from those agreements. No such evidence was produced.

The defendant submitted that this court should take judicial notice of the illegal dealings of Frank Buyanga. The defendant has not provided any evidence to show that he entered into my agreement with such Frank Buyanga. Had such an agreement been presented to court then such argument would have held water. As reiterated above the onus was on defendant to prove by way of documents that he never sold his property or that Frank Buyanga was involved. No such documents were placed before myself.

Equally the issues of evasion of tax have not been proved. The defendant argued at length on the illegality of transfer where he observed that capital gains tax was not paid. Again no proof was tendered before the court of such tax evasions. I have no cause at this moment to find that the transfer did not follow the law.

The defendant has thus failed to raise any recognisable defence to a rei vindicatio action. On the issue of holding over damages the defendant put no defence to that claim – rightfully so. The plaintiff is entitled to holding over damages.

I do not believe this is a matter calling for punitive costs.

In the result the plaintiff’s claim succeeds and order as follows:

That defendant and all those claiming occupation through him from plaintiff’s premises known as number 20 Saint Stephens Road, Meyrick Park Harare be and are hereby ordered to vacate the above premises forthwith.

That defendant be and is hereby ordered to pay $500-00 per month being holding over damages from 1 November 2011 to date of vacation or eviction.

That defendant pays costs of suit.

Mushoriwa Pasi Corporate Attorneys, plaintiff’s legal practitioners

Messrs Sinyoro & Partners, defendant’s legal practitioners