Saltana Enterprises (Pvt) Ltd versus Bright Gwafa

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SALTANA ENTERPRISES (PVT) LTD
versus
BRIGHT GWAFA


HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 21 July & 16 August 2021

J Koto, for the plaintiff
E. Jera, for the defendant



Civil Trial


        CHIRAWU-MUGOMBA J: The plaintiff issued summons against the defendant
claiming an order for eviction of the defendant and all those claiming occupation through him
from stand number 7874 Belvedere Harare. The basis stated in the summons and declaration
is that the defendant is in unlawful occupation of the property. His claim to occupation is
based on the rights of a former owner whose agreement of sale over the property has since
been cancelled. The defendant opposed the claim stating that he was in lawful occupation
and that the plaintiff has no right to evict him. The joint pre-trial conference minute captured
the issues for trial as follows: -
    1. Whether or not the plaintiff has a legal basis to evict the defendant from Stand 7874
        Belvedere West, Harare?
    2. Whether the plaintiff’s claim has prescribed?
    At trial, the defendant abandoned the plea of prescription.
    One Davy Fukwa Mutingwende gave evidence on behalf of the plaintiff in his capacity as
Director. His evidence was very simple. The land in question belongs to the plaintiff. The
land was allocated to it by the City of Harare in terms of a written agreement in 2002. The
plaintiff obtained vacant possession of the land in the same year. It proceeded to demarcate
the land with supervision from City of Harare. This entailed developing the land, opening
roads, sewer and water in the area. The plaintiff proceeded to sell pieces of land that
included the one in question. This stand was sold by the plaintiff to one Terence Sydney
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Kavande by the plaintiff on the 10th of April 2002. This buyer failed to meet his financial
obligations and as a result, Borm Real Estate (Borm) acting as agent for the plaintiff
cancelled the agreement and repossessed the stand. This was done by way of a letter
addressed to the defendant giving him up to 30 October 2002 to pay up and he failed to do so.
This letter was dated 4 October 2002. A certificate of repossession dated 7 November 2002
was subsequently sent to the defendant. The stand was subsequently sold to several people
who include the plaintiff. There was never any agreement of sale between the plaintiff and
the defendant. At some stage one Penias Nyamwino issued summons against the defendant
seeking his eviction in HC 8101/14. He was unsuccessful as the court dismissed his claim.
Defendant claims that he bought the stand from Borm but the plaintiff never authorised Borm
to sell the stand to him. Through Borm, the stand was sold by Terence Kavande to one
Phatushedzo Manala on 21 October 2002.
       The defendant gave evidence in support of his contention that the plaintiff had no
right to evict him from the stand. He testified as follows. Following the agreement of sale
between Phatutshedzo Manala and Terence Kavande, the former (Manala) sold the stand to
one Chenjerai Travolta Jana on 3 December 2002. By way of an agreement of sale dated 17
April 2003, Chenjerai Jana sold the same stand to the defendant. Prior to the sale of the
stand, defendant did a due diligence exercise and verified from Borm that the seller has
authority to sell. Borm had given Kavande notice dated 4 October 2002 to pay arrears by the
30 October 2002 failure of which the stand would be repossessed.           The arrears were
subsequently paid to Borm. The agreement of sale between Kavande and Manala was entered
into on 21 October 2002 through Borm. The certificate of repossession is dated 7 November
2002. This letter was written after the stand in question had already changed hands. Borm
acted as the plaintiff’s agent and it could not now claim that Borm had no authority. Borm
confirmed the agreement of sale between Kavande and Manala including receipt of the
purchase price. At one stage, the plaintiff was placed under judicial management under Dr
Cecil Madondo. The judicial manager confirmed that the stand belongs to the defendant.
Processes had to be done with City of Harare and these were done thus confirming the
defendant as the owner of the stand.
       The court takes cognisance of the order in HH-179-18. In that matter as already
indicated Penias Nyamwino issued process for the eviction of the defendant from the stand.
The court identified the issue that it was called upon to determine as who between the first
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defendant (the defendant in casu) and the plaintiff (Nyamwino) is the legitimate owner of the
property. The court observed that when Kavande sold the stand to Manala, he did so after the
sale had been cancelled and the stand repossessed. Mr Kavande no longer any legal ground to
be selling a stand that no longer belonged to him. In my view, that constitutes obiter given
the legal issue identified for determination. The ratio for dismissing the case by Nyamwino
against the defendant was that Saltana (Pvt) Ltd (the plaintiff in casu) sold the stand whilst it
was under judicial management. Saltana (Pvt) Ltd Directors had been divested of all powers
and could not purport to act on behalf of the company. Therefore, the sale between it and
Nyamwino was a nullity. On that basis, Nyamwino did not have the locus standi to evict
Gwafa from the stand.
       This court can only make a determination based on the evidence presented before it. It
is common cause that the stand was allocated to the plaintiff by the City of Harare as part of a
bigger piece of land. The plaintiff sold the rights, title and interests in the stand in question to
Terrence Sydney Kavande through Borm Real Estate on 10 April 2002. Kavande sold the
same piece of land to Phatutshedzo Manala through Borm on 21 October 2002. On 3
December 2002, Manala sold the stand to Jana. On 17 April 2003, Jana sold the stand to the
defendant. In between, Borm had, acting on behalf of the plaintiff issued a letter to Kavande
dated 4 October 2002 stating that he was in arrears and if he failed to pay by 30 October
2002, clause 13 of his agreement with the plaintiff on repossession would be invoked.
       The plaintiff although stating that it has pending cases against Borm cannot in my
view deny the agency of Borm. The central issue in my view involves going back to the
source, i.e. the agreement between Borm and Kavande. There is nothing in the agreement
that permits or prohibits the sale of the stand to a third party. The central issue relates to the
cancellation of the agreement between the plaintiff and Kavande. If it was valid, then
everything that Kavande did and that followed thereafter is a nullity. If valid, it means that
everything that flows from Kavande’s actions is valid.
       The agreement of sale between Kavande and the plaintiff stipulates in clause 3 that
the purchase price shall be paid through a deposit and thereafter monthly instalments over a
period of sixty months. That places the agreement within the purview of the Contractual
Penalties Act [Chapter 8:04]. The act has certain specific requirements for the cancellation of
a contract - see section 8 and also Saltana Enterprises (Pvt) Ltd v Ngoni Takundwa and anor,
HH-143-17. The plaintiff was adamant that the agreement between it and Kavande had been
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validly cancelled on its behalf by Borm. The dates tell a different story. The letter of
cancellation gives a time frame that is less than the one in clause 13:1 of the agreement (31
days) and in the act (30 days). Therefore, what the plaintiff ought to have pleaded in the
matter is that the purported cancellation was valid. Instead, the plaintiff in its declaration in
paragraph 7 was content to state that the defendant bases his rights of occupation on the rights
of a former buyer whose rights to the stand have been cancelled. I am fortified in my view by
the words of MUSHORE J, in the above cited matter of the plaintiff and Takundwa and anor,
that: -

          “The declaration filed in the present matter has makes no reference to the antecedent to
          eviction; that being a prayer for cancellation of the agreement. Such a prayer is necessary for
          the court to be able to adjudicate on the status quo of the agreement which necessarily binds
          the parties until the court determines otherwise.”
          The plaintiff never prayed for the cancellation of its agreement with Kavande. The
plaintiff’s claim against the defendant therefore has no merit and ought to be dismissed with
costs.

DISPOSITION
    1. The plaintiff’s claim is dismissed.
    2. The plaintiff shall pay the defendant’s costs


Koto and Company, plaintiff’s legal practitioners
Moyo and Jera, defendant’s legal practitioners