Prize Commercial Holdings (Pvt) Ltd v Ruth Goldberg & Ors

### Preamble
1
HH 446-12
HC 1091/11
---------


PRIZE COMMERCIAL HOLDINGS (PVT) LTD

versus

RUTH GOLDBERG

and

ESTHER HIRAM

and

ROBERT ROOT (PVT) LTD

and

M.PETER AGENCIES (PVT) LTD

and

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 30 and 31 October 2012, 1 November 2012

and 5 December 2012

E Chizikani, for the plaintiff

Ms L. Mhundirwa, for 1st, 2nd and 3rd defendants

D. Halimani, for 4th defendant

CIVIL TRIAL

MATHONSI J:	In downtown Harare is located 4 adjoining pieces of land known as subdivision A of stand 1499 Salisbury Township measuring 299 square metres, the remainder of stand 1499 Salisbury Township measuring 297 square metres, stand 1500 Salisbury Township measuring 595 square metres and stand 1498 Salisbury Township measuring 595 square metres.  Those properties are currently held by M. Peters Agencies (Private) Limited, the forth defendant in this matter, by Deed of Transfer No. 239/11 Physically they are stands 129 to 135 Mbuya Nehanda Street Harare.

Historically the properties were owned by the Estate late Aubrey Urback, the erstwhile gentleman having passed on, on 26 February 1993, which estate leased out the 4 units to different tenants including the plaintiff, who leased No 129 Mbuya Nehanda Street.  The forth defendant was later to come into one of the units No. 135 in 2008.

In the process of the winding up of the Estate late A. Urback, the properties were inherited jointly by Ruth Goldberg and Esther Hiram (the first and second defendants), who held title by Deeds of Transfer numbers 7581/06 and 7582/06.  The respective lease agreements of the tenants including that of the plaintiff continued after transfer to first and second defendants.  In due course, the first and second defendants sold the properties to the forth defendant for US$200 000-00 by agreement of sale signed on 25 June 2010.  The forth defendant took transfer on 28 January 2011.

This did not impress the plaintiff who instituted proceedings against first, second and third defendants (being the estate agent mandated to manage the properties and to sell them), forth and fifth defendants, the latter being the registrar of deeds.  In its declaration, the plaintiff averred that about January 1997 it had, through the agency of the third defendant, entered into a written lease agreement with the estate late Urback in terms of which it leased number 129 Mbuya Nehanda Street Harare. It went on to aver that in 2003 it had offered to purchase the leased property which offer was accepted by the landlord duly represented by the third defendant, thereby conferring unto the plaintiff the right of first refusal in the event of the property being sold.

In addition, the plaintiff alleged the existence in Zimbabwe, of a binding convention and practice requiring owners of immovable property tenanted to first offer such property to sitting tenants should they elect to sell the property.  The plaintiff averred that when the first and second defendants inherited the property, they assumed the rights and obligations attached to the property as successors in title, including the right of first refusal that it enjoyed.

When it learnt that the property was being sold, it rushed to register an XN Caveat on the title deed but this did not stop the forth defendant taking transfer from the first and second defendants.  The plaintiff averred that, to the extent that the property was sold and transferred without regard to its right of first refusal, the sale to the forth defendant was invalid and should be annulled with deed of transfer No. 239/11 cancelled.  The property should be put back on the market according it the opportunity to exercise its first option to purchase it.

All the defendants, except for the fifth defendant, opposed the claim.  The first, second and  third defendants denied the existence of a right of first refusal available to the plaintiff either by virtue of the written lease  agreement or by convention or practice.  They averred that the written lease agreement specifically excluded such right.  The third defendant specifically took issue with being cited in the proceedings when at all material times it acted as an agent of a named principal and as such cannot be held liable out of a contract in which it was not a party.  While conceding that they assumed the rights and obligations of the lessor upon taking over the property, the first and second defendants maintained that such rights and obligations were limited to the terms set out in the written lease agreement and nothing more.

In its plea, the forth defendant denied any knowledge of the existence of a right of first refusal enjoyed by the plaintiff.  It insisted that it bought the property in good faith, took transfer lawfully after complying with, not only the terms of the sale agreement, but also with the requirements of the law relating to transfer as it satisfied the requirements of the Zimbabwe Revenue Authority and the Registrar of Deeds. For those reasons, it averred that it is an innocent purchaser which should be protected by the law.  It added that if the plaintiff really had a right to protect, it should have taken measures to stop the sale and transfer, which it did not do.  Having failed to protect whatever interest it had, the plaintiff cannot now seek to impugn the forth defendant’s title.

The forth defendant also made a counter claim averring that from the time that it took transfer of No. 129 Mbuya Nehanda Street, the plaintiff was obliged to pay rent, rates, electricity and water bills to the forth defendant which had inherited the tenancy.  In breach of the agreement, the plaintiff has failed to pay anything up to now and is therefore in arrears.  The forth defendant therefore craves for an order evicting the plaintiff from the property and directing it to pay the arrears set out in the counter claim.

In response to the counter claim the plaintiff denied being under any obligation to make any payments to the forth defendant.

At the pre-trial conference of the parties trial issues were identified and set out as follows:

“1) Did plaintiff have a right of first refusal bestowed on it by contract?

2) Is there in Zimbabwe, custom, convention and practice under which plaintiff can

claim right of first refusal as a sitting tenant on property to be sold?

3) Was the sale of the property, regular or ellegal?

4) Was the transfer of the property regular?

5) Whether or not the forth defendant (plaintiff in reconvention) is on bona fide

purchaser?

6) Whether or not the plaintiff in reconvention is entitled to evict the first defendant

in reconvention.

7) Whether or not the first defendant in claim in reconvention is liable to pay holding

over damages, rates, water and electricity.

8) Whether the plaintiff as a third party can challenge the authority of first defendant,

in acting on behalf of second defendant in a contract she was not privy to.

9) Whether or not the alleged right of first refusal between plaintiff, first defendant

and second defendant is enforceable against third parties.”

The plaintiff led evidence from 6 witnesses namely Miriam Denga, Meeting Gomba, Upenyu Jaka, Christian Mgbemena, Onesmo Manenji and Kudakwashe Denga.

Miriam Denga is the Managing Director of the plaintiff, she having taken over that position when her husband, Andrew Denga, who had been running the company, died in 2003.  She acknowledged that the relationship between the parties was governed by the written lease agreement signed with the estate in March 2006 and stated that when she took over the plaintiff company in 2003, she immediately wrote a letter to the third defendant, as agent of the landlord, offering to purchase the property when it was being sold.

That letter, which is dated 29 July 2003, reads in relevant part as follows:

“REF: PROPOSAL FOR PURCHASING THE PROPERTY STAND 1498 HARARE TOWNSHIP, NO. 129 MBUYA NEHANDA STREET – EASTLEA (SIC) LATE AURBACKESR.

We wish to apply for the purchase of the above property when you consider selling it in due course.

We would appreciate it if you could consider our proposal and let us know the selling of the building or whether you could consider rent to buy.

Please let us have your opinion regarding the above proposal.”

In response to that letter, the third defendant wrote to the plaintiff on 31 July 2003 in the following:

“RE: PROPOSAL TO PURCHASE LEASED PREMISES – 129 MBUYA NEHANDA STREET

We are in receipt of your letter dated 29 July 2003 wherein you indicated your wish to purchase the above mentioned property.

We regret to inform you that the property is not for sale at present and we shall let you know when our client decides to sell.”

Denga testified that the third defendant’s response was an indication that the plaintiff’s interest had been acknowledged and that it was entitled to a right of first refusal.  She stated that when the estate was wound up in 2006, the plaintiff was part of the estate and that the first and second defendants “inherited the plaintiff as well.”

She went on to say that in April 2010 she was approached by Diana and Rudo Peters, the sisters of M. Peter, who owns the forth defendant.  They advised her that the third defendant was in the process of selling all the properties belonging to the first and second defendants to some Nigerian nationals and they suggested that each of the tenants should instead be allowed to purchase the property they were renting.  She said that she was not worried about that as she had “applied to buy” her own rented property.  After Diana and Rudo had left she had informed her employee Onesimo Manenji and her son Kudakwashe Denga of what the 2 ladies had told her.

Onesimo Manenji and Kudakwashe Denga were called by the plaintiff to confirm the visit by Diana and Rudo and the discussion they allegedly had with Miriam Denga after they had left.

Miriam Denga went on to state that after the discussion with Diana and Rudo, she had again written to the third defendant on 10 June 2010 in the following:

“RE: OFFER TO PURCHASE STAND 129 MBUYA NEHANDA STREET

Developments in our operations have put us in a position in which we are able to own the premises from which we are trading.  We refer to our letter of 2003 in which we informed you of our interest in the property.

We are hereby offering to purchase stand 129 Mbuya Nehanda Street, for US$ 150 000. Should there be any other persons interested in the property kindly enable us to exercise our right of first refusal, as we consider ourselves in a position of being able and willing to purchase this property and will not loose (sic) in any contest for this property.

We await your response at your earliest convenient time.”

The third defendant only responded on 15 July 2010 after follow up letters had been sent, stating that:

“RE: STAND 129 MBUYA NEHANDA STREET

We refer to your letter of 6th July which was received by us on the 14th instant.  This matter is being handled by our client’s lawyers, Sinyoro and Partners and your letter has been forwarded to them for attention.”

Sinyoro and Partners then wrote to the plaintiff on 21 July 2010 and their brief letter reads:

“RE: PROPERTY – NO. 129 MBUYA NEHANDA

We refer to the above and to your letter of dated (sic) 07 July 2010 addressed to our

client Messrs Robert Root with a proposal to purchase the above mentioned property.

Regrettably the property was disposed off (sic).”

That letter set in motion the dispute which has culminated in this trial.  The plaintiff queried why the property had been sold when it had offered to purchase it.  Miriam Denga stated that she proceeded to register a caveat on the property as she was of the view that the plaintiff had a right of first refusal.  Notwithstanding that, the property was transferred to the forth defendant as the fifth defendant cancelled the caveat without notifying the plaintiff.

She made reference to the sale agreement between first and second defendants which was signed on 25 June 2010 at a time when she had been corresponding with the third defendant, suggesting that they had been doing everything behind her back when she was a sitting tenant.  She had offered $150 000 for her unit when ultimately the 4 units were sold to the forth defendant for $200 000.  She concluded that the third defendant was not being honest.  She maintained that having been a good tenant for a long time, the plaintiff should have been given the option to purchase the property.

Denga admitted that the plaintiff had sublet part of the property, which had brought it on a collision course with the third defendant, resulting in those subtenants being given their own leases.  She admitted that she stopped paying utility bills in 2010 and that the plaintiff has not paid any rent to the forth defendant since transfer because it does not recognise the forth defendant as owner of the property.

She would like the sale agreement in favour of the forth defendant cancelled to enable the plaintiff to make an offer to purchase the property although it cannot afford to pay for it in cash.  It can only pay on terms.

Miriam Denga did not make a good witness.  Although admitting that the relationship between the parties was governed by the written lease agreement which specifically excluded any terms not incorporated in it, she struggled to argue that there was an agreement according her a right of first refusal, even when such was not in the written lease.  In fact clause 22 (a) provides:

“This lease constitutes the whole of the agreement between the parties; any variations or collateral agreements, unless in writing signed by both parties, shall be of no force and effect.”

Although she sought to argue that the parties had entered into a separate agreement through correspondence, in terms of which the plaintiff was given a right of first refusal, she only produced letters which she had written “applying” to purchase the property.  In response to her first letter of 29 July 2003, the third defendant had made it clear that the property was not for sale.  The wording of third defendant’s letter of 31 July 2003 cannot, by any stretch of the imagination, be construed as an acceptance creating a binding contract between the parties.

She referred to a visit by Rudo and Diana Peter in which they discussed the proposed sale of the properties to the exclusion of sitting tenants but the relevance of that discussion, even if it did take place, was not shown.  She then brought in her son and security guard to support a story which did not advance the plaintiff’s case in any way.

She insinuated, without the slightest proof, that there was “underhand dealings” between the third and forth defendants.  Although accepting that the forth defendant had purchased the property and taken transfer, she refused to pay any rent, water and electricity bills because she did not recognise the forth defendant has a legitimate owner.  It is strange that a tenant would want to remain in occupation of rented property for close to 2 years without paying anything and still insist on being taken seriously.

Meeting Gomba also testified on behalf of the plaintiff.  He is a registered estate agent with 14 years experience and is currently employed by Southgate & Bancroft (Pvt) Ltd as General Manager.  He testified that a right of first refusal is a clause that can be found in a Lease Agreement between a landlord and a tenant providing that in the event that the landlord would be contemplating selling the leased property, the tenant would be given the first option to purchase the property.

Gomba went on to say that, in instances where there is no express clause in the Lease Agreement providing for a right of first refusal, the practice is that the tenant has no right of first refusal but should the property be up for sale, the tenant has to be advised that is the case so that he or she may decide to buy or vacate.  All that the landlord is required to do is to disclose to the tenant that the property is on sale.

Under cross examination Gomba admitted that he had previously been employed by the third defendant and that when his employment was terminated he had been accused of running a separate estate agency as a result of which he left employment.  Gomba gave his evidence well and I accept it.

Upenyu Tinoramba Jaka, another registered estate agent of 7 years experience, who currently runs his own agency, also testified for the plaintiff.  According to him, in a set up where a property is tenanted, the practice is that if the landlord decides to sell that property, the sitting tenants has a right of first refusal even if no such provision is contained in the written lease agreement.

Jaka’s evidence was in sharp contrast with that of Gomba.  When asked to comment on that contrast, Jaka simply said he disagreed with Gomba’s evidence.  As shall be seen later, Jaka’s evidence regarding the right of first refusal is also in conflict with that of another experienced estate agent Antony Robert Root who testified on behalf of the third defendant.  Perhaps its because he is the least experienced of the 3 expert witnesses.

Christian Mgbemena told the court that he was subletting one of the units from Hilex Technology, when he heard that the properties were being sold, he was receiving information from an employee of the third defendant he refused to disclose, he made written offers to purchase them, first for $200 000 and later for $250 000 but none of his offers were accepted.  Christian stated that his unnamed informant told him that the third defendant had been pressured to sell the properties to the forth defendant, although he is not privy to the details of that undue influence.

He said that he had spent $33 517 renovating the property that he rented and had been to court trying to stop the sale of the property to the forth defendant but his action was thrown out because his lawyer was a tenant of the third defendant who pressured him to compromise his case.  There after the forth defendant evicted them from the property and has demolished the structures that he had put up.  He has not been compensated.

The evidence of Christian is of no probative value.  He came out as a bitter person following his eviction and the demolition of his structures.  He is the type of witness with so many underhand dealings himself.  He has an informant in third defendant’s employ he is unwilling to disclose.  He even has no confidence in his own lawyer whom he accuses of compromising his case.  His demeanor was very bad and appears to be inherently suspicious of others.  I have no hesitation in rejecting his evidence.

The first and second defendants did not give evidence and were not in attendance, they being resident outside the country.  Antony Robert Root is the Managing Director of the third defendant, a company established in 1958.  He was registered as an estate agent in 1986 and now has 26 years experience.  The third defendant had been managing the property in dispute for close to 30 years before it was sold to the forth defendant.

He told the court that the third defendant was mandated by the family of the first and second defendants to sell the properties and at all times acted professionally and in the best interest of the principal.  He denied any “underhand dealings” in the transaction or any “dark secrets” which the forth defendant exploited.  He readily accepted that the letter of the plaintiff of July 2003 offering to purchase the property had been received at his office but by a junior person who has since left employment.  He stated that at the time the offer was made the property was not on the market and by the time he was mandated to sell it, he was not aware that the plaintiff had made an offer some 7 years earlier.

Regarding the right of first refusal, Root denied that the plaintiff had any such right as the plaintiff’s rights were governed by the written lease agreement which specifically excluded it.  He stated that the right only exists where, in writing, the lease would state that if the owner decided to sell the property during the course of the lease, the owner would advise the tenant in writing as to the conditions of the proposed sale and grant the tenant a limited period of time within which to match any offer made.

Root denied the existence of a custom or convention giving a sitting tenant a right of pre-emption even where the lease agreement does not provide for it or specifically excludes it.  His evidence in that regard resonates with that of Meeting Gomba leaving Upenyu Jaka as the only estate agent rooting for its existence.

It was Root’s evidence that there were multiple tenants at the properties but all of them were aware that the properties were for sale.  He denied that the plaintiff had made an offer to purchase the property at the time that it was still available in the market.  He went on to say that although he had received the offer from Christian, he had been instructed by his clients to accept that of the forth defendants as the client wanted to dispose of the properties quickly.

Root gave his evidence well readily accepting that he did not deal with first and second defendants and that he did not have their mandate to represent them in court.  Where he was not sure of the facts he did not hesitate to point that out.  I accept his evidence.

Maston Peter, the director of the forth defendant also testified.  He stated that in March 2010, the third defendant had filed an urgent chamber application against the forth defendant seeking an order stopping it from carrying out renovations, extensions and construction work at the property the forth defendant rented, No. 135 Mbuya Nehanda Street.  The matter was withdrawn after a settlement was reached after which he approached the third defendant with an offer to purchase the properties.  Subsequent to that, a sale was concluded in terms of which he purchased the properties for $200 000-00.

He had not inspected the properties before the purchase because he knew them well and they were all in such dilapidated state that it was just like buying the ground only.  He bought them merely to bring the structures down and start construction afresh.

The forth defendant paid the purchase price in instalments over four months starting with a deposit of $50 000-00.  They then sought transfer, where upon Zimra came and inspected the properties.  Zimra demanded that they secure (2) two valuation reports which were done by Pride Real Estate, which placed the value at $233 500 and Ebenezer Properties (Pvt) Ltd which valued them at $285 000.  Zimra settled for the latter value and assessed capital gains tax of $14 250-00.  The forth defendant duly paid that and obtained the Zimra clearance certificate.  It also paid $11 000-00 to the local authority as arrear rates to pave way for transfer which was done by deed of transfer number 239/11 on 28 January 2011.

Peter testified further that at the time that he purchased the property he was not aware that the plaintiff had an interest in it.  Specifically he was not aware of any right of first refusal enjoyed by the plaintiff who also did not do anything to protect such right if ever it existed.

After taking transfer, he instructed the third defendant to give all the 26 tenants sitting at the properties 3 months notice to vacate.  Most of the tenants vacated except for the plaintiff which refused not only to vacate but also to pay any rent or water and electricity bills.  Those tenants, other than the plaintiff, who remain are paying rent and other charges to the forth defendant. When the parties went for pre-trial conference before BHUNU J, it was agreed that the third defendant would measure the area occupied by the plaintiff in order to ascertain the rent and other charges due by the plaintiff.  This was done and the fair rent due by the plaintiff is $826,51 per month in terms of the computation done by the third defendant (Exhibit 73).  The plaintiff is therefore in arrears of $16 370-00.  It also owes electricity charges of $1 084-04 and $3 877-58 for municipal charges.

Peter testified that the forth defendant was an innocent purchaser which purchased the property in good faith.  He denied that there were any “dark secrets” between him and Root or that he used “underhand dealings” to purchase the property.

Maston Peter gave his evidence very well and was not shaken at all under cross examination.  Although he was a bit emotional especially when accused of impropriety which was not defined, he was consistent in his evidence.  He struck me as a truthful witness.  I have no reason whatsoever to disbelieve him.

Rudo and Diana Peter, sisters of Maston Peter were also called by the forth defendant.  They denied ever meeting Miriam Denga to discuss the pending sale of the property.  Both insisted that Denga is far older than them and they are not even on talking terms.  Their evidence and that of plaintiff’s witnesses on that point is mutually destructive.  Nothing useful comes out of it.

I now turn to answer the questions posed for this trial at the pre-trial conference.

Did the plaintiff have a right of first refusal bestowed on it by contract.

According to the learned author R.H.Christe, Business law in Zimbabwe, 2nd Ed, Juta & Co Ltd at p 146;

“A right of pre-emption or first refusal differs from an option by giving the holder the right to buy in priority to other prospective buyers if and when the seller decides to sell.”

In Central African Processed Exports (Pvt) Ltd & Ors v Macdonald & Ors 2002 (1) ZLR 399 (S) at 403 C – H MALABA JA (as he then was) quoted with approval Nicholas JA in Soterious v Retco Poyntons (Pvt) Ltd 1985 (2) SA 922 (A) at 932 B – F where the learned judge said:

“A right of first refusal is well known in our law.  In the context of sale, it is usually called a right of pre-emption.  The grantor of such a right cannot be compelled to sell the property concerned.  But if he does sell, he is obliged to give the grantee the preference of purchasing and consequently he is prevented from selling to a third person without giving the first refusal------. So, a right of pre-emption involves a negative contract not to sell the property to a third party without giving the grantee the first refusal; and the grantee has the correlative legal right against the grantor that he should not sell.  This is a right which is enforceable by appropriate remedies ------.

‘Refusal’ imports an offer.  As FARWELL J said in Manchester Ship Canal Co v Manchester Race Course Co [1900] 2 Ch 352 at 364:

‘Now, a refusal, to my mind, implies an offer.  A thing is not in ordinary parlance refused before it is offered.’”

The learned appeal judge went on to say at 403G and 404A;

“The facts show that no right of first refusal was granted to Central African by the

owner of the property in any of the numerous written leases the parties entered into.  I am prepared, in the circumstances of this case to accept that the letter from Roz Baker to Mr Gullan dated 6 November 1996 granted him a right of first refusal and an offer to exercise that right.  Mr Gullan exercised the right by refusing to purchase the property at the price of $1,6 million which the seller was prepared to accept from a third person.  The offer of first refusal could not remain open after it had been refused.”

See also Nerger Properties (Pvt) Ltd v R. Chitrin & Ors (Pvt) Ltd 2006 (2) ZLR 287 (S) and Eastview Gardens Residents Association v Zimbabwe Reinsurance Corporation (Ltd) & Ors 2002 (2) ZLR 543 (S) 548 G – H.  In that case MALABA JA (as he then was) stated at 549B:

“It is clear from all these decided cases that a right of pre-emption can only be created  by contract or agreement between the grantor and the grantee.  Where breach of the right is alleged as a cause of action and its existence is denied, the onus is on the plaintiff to show that there was an agreement between the parties in terms of which the defendant undertook to offer to him the property at a price equal to that offered by another.”

The foregoing is a pronouncement of the Supreme Court binding on me.  For a right of first refusal to exist there must be a contract between the parties creating it.  In casu it is common cause that the lease agreement between the parties did not contain any right of first refusal.  Quite to the contrary, it specifically excluded any “variations or collateral agreements” not contained in the lease unless such were reduced to writing and signed by the parties.

The plaintiff has sought to argue that the right of pre-emption was given to it by correspondence.  I have already stated that its letter of 29 July 2003 and the response from the third defendant did not create a contract between the parties.  In considering the existence or otherwise of a contract of pre-emption the basic rules of offer and acceptance apply.  It cannot be said that these existed especially as the third defendant made it clear that the property was not for sale and that it would notify the plaintiff if the house was put on the market.  No intention to create a right of pre-emption can be imputed on the third defendant by virtue of the wording of its letter of 31 January 2003.

I therefore answer the first question in the negative.

Is there in Zimbabwe, a custom, convention and practice under which plaintiff can claim the right of first refusal as a sitting tenant, on a property to be sold?

The evidence led from the 3 expert witnesses is divided.  Meeting Gomba and Antony Robert Root, estate agents of long standing testified that no such custom exists and that such right cannot only be granted in writing in the lease agreement.  Only Upenyu Taka, a relative light weight in the profession, claimed the existence of such a right.

The authorities I have referred to above clearly indicate that a right of pre-emption can only be granted by the property owner and by agreement of the parties; Eastview Gardens Residents Association (supra) at 548G.

I therefore conclude that no such convention exists outside the agreement of the parties.

Was the sale of the property regular or illegal and was the transfer of the property regular

The plaintiff tried very hard to impugn the agreement and indeed the transfer.  It tried to suggest, extraneously in my view, that the first and second defendants did not authorise the sale or that transfer documents were signed on the strength of an “expired” power of attorney.  Other than the fact that the plaintiff was not privy to those transactions, I am satisfied that the sale and transfer were regular.

I therefore answer those two questions in the affirmative and find that there was nothing illegal in both the sale and the transfer.

Whether or not forth defendant is a bona fide purchaser

I have already made a finding that Maston Peter was a truthful witness and that the sale and transfer of the property was over board.  The plaintiff has failed dismally to discredit the manner in which the property was sold.  The fact that the property was not offered to the plaintiff, when it did not have a protected right to be offered the property, and that whatever offer it made was not considered, does not mean that the forth defendant was not a bona fide purchaser.

Whether or not the plaintiff is liable to pay holding over damages, rates, water and electricity.

The forth defendant is the registered owner of the property.  The plaintiff remains a tenant who is required to pay rent and other charges.  Even if it had a right of pre-emption, until such time that it had exercised that right and the property transferred to it, the plaintiff would still be a tenant required to pay rent and other charges.

The arrears in rentals and other charges have been set out in evidence and no meaningful challenge was made against the quantum of those damages.  In fact the evidence shows that the plaintiff owes more than what is prayed for. I therefore conclude that the claims have been proved.  The plaintiff is liable in that regard.

It is unfortunate that the plaintiff elected not to recognise the forth defendant as owner and refused to pay in breach of the lease agreement.  The forth defendant is entitled to evict the plaintiff.

Whether the plaintiff as a third party can challenge the authority of the first defendant in acting on behalf of second defendant in a contract it was not privy to?

This issue has been rendered superfluous by the findings I have already made on the other issues.  Whatever challenge the plaintiff mounted in this regard has not been successful.  The matter should therefore end there.

Whether or not the alleged right of first refusal between first and second defendants is enforceable against third parties.

I have made a finding that the plaintiff has failed to prove the existence of a right of first refusal.  No such right has been shown by the evidence.  Accordingly the enquiry should end there.

In the result, I find against the plaintiff and make the following order, that:

The plaintiff’s claim against all the defendants be and is hereby dismissed with costs.

The plaintiff is hereby ordered to vacate stand 1498 Salisbury Township also known as 129 Mbuya Nehanda Street, Harare.

The plaintiff should pay holding over damages of US$350-00 per month with effect from 1 April 2011 to date of eviction.

The plaintiff should pay arrear rates, water and electricity charges of US$4 159-48 and any such future charges until the date of eviction.

The plaintiff shall bear the costs of suit on an ordinary scale

A.R.Chizikani, plaintiff’s legal practitioners

Messrs Wintertons, 4th defendant’s legal practitioners

Messrs Sinyoro and Partners, 1st, 2nd and 3rd defendants’ legal practitioners