Norbet Paradza v Mary Sithole and Norton Town Council

### Preamble
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HH 464-2012
HC 6029/08
NORBERT PARADZA
versus
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NORBERT PARADZA
versus
MARY SITHOLE
and
NORTON TOWN COUNCIL

HIGH COURT OF ZIMBABWE
UCHENA J
HARARE, 22, 28, 29 June, 24 July, 7, 27 November 2012 and 9 January 2013

Civil Trial

A A Debwe, for the plaintiff
A T Muza, for the first defendant.

UCHENA J: The plaintiff issued summons against the first and the second defendants for the transfer of stand number 2974 Katanga Norton from the first defendant to himself. The first defendant was the late Joseph Nine Sithole’s wife. Joseph Nine Sithole was the original registered owner of the stand in dispute. The late Joseph Sithole died and the first defendant without advising her husband’s relatives transferred the stand from the late Joseph’s estate to herself.

The plaintiff, who at his own expense built a house on the stand, was advised by his tenants that the first defendant had given them notice to vacate the premises or pay increased rent. He approached the first defendant in the company of George Musarurwa who had informed him of the incident. The first defendant denied having given the tenants notice to vacate or increase their rentals conceding that the issues of occupation of the property and rentals were the plaintiff’s responsibility. However, soon after the plaintiff went back to Harare the first defendant’s son Tawanda forcibly took occupation of a room on the premises, after forcibly evicting a tenant who was occupying that room. The plaintiff had no option but to institute these proceedings. He issued summons on 9 October 2008.

The first defendant initially pleaded to the plaintiff’s claim on 15 April 2009. She later filed an amended plea on 20 January 2010, which was a plea in bar based on prescription, after which she by another notice of amendment dated 23 September 2010, deleted her former plea substituting it with the current plea in which she alleges that her late husband and the plaintiff had agreed that the plaintiff would build the house for them and collect rentals from tenants until he recovered his building costs, after which he would hand over the developed stand to them. She in the accompanying counter claim now requires the plaintiff to account to her how much he spend on developing the stand and how much rentals he has collected to date.

Both parties led evidence after which their legal practitioners made written submissions. They appeared before me on 24 July 2012 for clarifications, and advised that they had reached a settlement. They on 25 July 2012 filed an order by consent which reads as follows:

“Whereas the parties have agreed that the plaintiff’s claim is in essence against the estate of the late Joseph Sithole.

Whereas it was essential to join the Master of the High Court and the Executor of the Estate of the late Joseph Sithole and

Whereas the parties have consented to an order for absolution from the instance so that plaintiff can follow the procedure laid down in the Administration of Estates Act [Cap 6.01].

It is Hereby Ordered By Consent:

1. That absolution from the instance be and is hereby granted.
2. Plaintiff shall pay the first defendant’s costs.”

The consent order was signed by the plaintiff’s legal practitioner Mr Debwe on 24 July 2012, and by the first defendant’s legal practitioner Mr Muza on 25 July 2012. I signed it on 25 July 2012.

I believed that the matter had been concluded until the Registrar referred to me a letter he received from the first defendant’s legal practitioner dated 8 August 2012 in which the first defendant counsel said;

“We write to confirm that the parties attended the hearing of this matter on 24 July before Justice UCHENA. We further confirm that at the said hearing absolution from the instance with respect to the plaintiff’s claim was entered by consent.
 We however advise that the first defendant’ claim in reconvention was not dealt with at the said hearing by his Lordship and as such its fate is unknown. As a result of the above we are writing to enquire as to when the parties can expect the Court’s ruling on the said claim in reconvention.”

In view of the apparent confusion which arose when the parties consented to absolution and there having been no indication as to what the parties wanted done in respect of the counter claim I caused the parties to appear before me on 7 November 2012. I wanted to establish the position of both parties on the counter claim before writing a judgment on it. At that hearing the parties requested me to hold the issue of a judgment in abeyance so that they could negotiate an agreement on the counter claim as they both agreed that they had omitted doing so when they reached an agreement on the plaintiff’s claim.

I held the matter in abeyance until I received defendant’s counsel’s letter dated 27 November 2012 in which he said;

“We write to advise that after the parties deliberated on the issue pertaining to the claim in reconvention that was filed by the first defendant they have failed to agree on any settlement of the case. In light of the above the parties have agreed that the Honourable Court must hand down judgment on the first defendant’s claim in reconvention”.

The first defendant’s claim in her claim in reconvention is for an account from the plaintiff on the cost of constructing a house on the property in dispute and the amount of rentals he has collected since the completion of the construction to date. The success of the first defendant’s claim depends on whether or not the plaintiff and her late husband had agreed that the plaintiff was to build the house for them and collect rentals until he had recovered the cost of construction after which he was to surrender the house to them.

The first defendant’s claim depends on the credibility of her evidence. Her evidence on this aspect hangs on common cause evidence to the following effect. The plaintiff, fully financed the building of the house. He freely controlled the construction, to the extent, of choosing the plan for the house. He built on the stand as he pleased giving no account to the first defendant’s husband during his life time nor to the first defendant after his death. This is supported by his only being asked to account through the counter claim and a belated one for that matter. The probabilities on that alone suggests an agreement other than the one claimed by the first defendant.

The first defendant did not impress me as an honest witness. She during cross examination had the following exchange with the plaintiff’s counsel.

“Q The plaintiff and his wife denied knowledge of the meeting at the Magistrate’s Court?

A I phoned plaintiff and informed him about the meeting and he said he was going to inform his wife.

Q In your summary of evidence you did not mention that?

A I did not leave that out. I informed the plaintiff.

Q Its not in your pleadings?

A I eeh maybe when I was being questioned I realised I was being asked.

Q Who else did you inform of the Edict meeting?

A I did not inform anyone else.

Q Your late husband had another sister residing in Kadoma?

A Yes.

Q Why not inform her about the Edict Meeting?

A I did not think of that as Court date had drawn near and I thought the plaintiff’s wife was going to come.

Q Who was near to Harare the one in Kadoma or the one in Zhombe?

A Plaintiff’s wife was still staying in Harare.

Q You alleged plaintiff told you she was in Zhombe?

A Yes but he said he would call her.”

In the exchange the first defendant lied about having mentioned that she informed the plaintiff about the edict meeting in her summary of evidence. Her summary of evidence and amended summary of evidence does not mention anything about the edict meeting. When this was put to her she gave a meaningless response as she realised her lies had been exposed. She answered “I eeh maybe when I was being questioned I realised I was being asked.” She further lied about the plaintiff’s wife having been in Harare just before the edict meeting forgetting that she had earlier told the Court that the plaintiff had told her that he would inform his wife who was in Zhombe. This proves that the first defendant deliberately avoided informing the plaintiff or any other member of her husband’s family about the edict meeting. This was despite her being aware that the plaintiff had built and was in full control of the house she hoped to inherit from her late husband.

The first defendant lied again when she said the plaintiff used their plan ex 3 to construct the house. The lie was exposed by, her own defence witness Bornface Madzana who partly built the house in question. Bornface told the Court that he used ex 2 the plaintiff’s plan to build the house. The first defendant therefore tried to mislead the court that the plaintiff used their plan to build the house. If that was the truth it would have shown that her husband retained some form of control over the construction of the house. The fact that the plaintiff had a right to build a house of his own choice is not consistent with the agreement being suggested by the first defendant.

Bornface conceded under cross-examination that he did not finish constructing the house because he had had a misunderstanding with the plaintiff about the plastering of some rooms. This demonstrates that the plaintiff had the final say as to how the house was to be constructed, which has a bearing on the ownership of the property in dispute. Bornface had told the court that he had been contracted to build the house by the late Sithole. The plaintiff said he had asked the late to find a builder for him. The plaintiff’s evidence is strengthened by his being the one who determined how the house was to be built. If he was building for the late Sithole, Bornface would not have been affected by his having a misunderstanding with the plaintiff. Sithole would have had the final say on the issue.

The fact that the plaintiff had not informed the first defendant’s husband or herself of the cost of construction is also not consistent with his having built the house for his in-laws. It is not logical for the first defendant’s husband to have allowed the plaintiff to build a house of his own choice at a cost, only known to himself, if he was not building for himself. It is also inconceivable that the first defendant’s husband would not have asked for an account of the cost of construction earlier than was done by the first defendant. Even the first defendant’s timing of the counter claim is suspicious. It was made at the eleventh hour after struggling with other possible defences to the plaintiff’s claim. The first defendant was a hesitant witness who took long to answer simple questions. She prefixed her answers with “eeh”—“huh”---, obviously a sign that she was formulating her answers to the questions as she stood in the witness stand, rather than answering from information she already had.

I am satisfied that there is no merit in the first defendant’s counter claim. It is dismissed with costs

*Debwe and Parters, plaintiff’s legal practitioners*

*Mawere and Sibanda, 1st defendant’s legal practitioners*
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