Rinos Terera v George Lentaigne Ingram Lock and CK Holland t/a Holland Estate Agent and Zimbabwe Housing Company (Private) Limited and The Registrar of Deeds

### Preamble
1
HMT 72-20
HC 107/20
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RINOS TERERA

versus

GEORGE LENTAIGNE INGRAM LOCK

and

CK HOLLAND t/a HOLLAND ESTATE AGENT

and

ZIMBABWE HOUSING COMPANY (PRIVATE) LIMITED

and

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 24 September 2020 and 29 October 2020

Special Plea

Plaintiff in person

T. Maanda, for the First and Second Defendants

B. Majamanda, for the Third Defendant

MWAYERA J: The three Defendants filed a special plea seeking dismissal of the Plaintiff’s claim. The Plaintiff issued summons seeking the following relief from the court:

An order declaring the agreement of sale between the Plaintiff and First Defendant to be valid and still operational.

An order declaring the agreement of sale that was entered into between the First, Second and Third Defendants to be null and void.

An order nullifying the transfer of title of land into the Third Defendant’s name.

Costs of suit.

The First and Second Defendants sought dismissal of the Plaintiff’s claim on the basis that the claim has prescribed, the Defendants are wrongly cited, the matter is res judicata and lis pendens. The Third Defendant’s argument for dismissal of the Plaintiff’s claim is centred on the following grounds:

That the claim has prescribed.

That the matter is res judicata and

The Plaintiff is estopped from claiming setting aside of the Third Defendant’s Deed.

The Plaintiff argued that the claim has not prescribed and that the matter is neither res judicata nor lis pendens and that the sale to the Third Defendant was not above board. It was fraudulent since there was no proper cancellation or termination of the sale agreement between him and the seller.

The issues that fall for determination in this case can be summarised under the following headings:

Whether or not the Plaintiff’s claim has prescribed?

Whether or not the matter is res judicata?

Whether or not the matter is lis pendens?

Whether or not the non-joinder of the former registered owners who sold to Third Defendant is fatal to the Plaintiff’s Claim?

Whether or not the Plaintiff is estopped?

It is worth noting that in his opposition of the special plea, the plaintiff did not dispute specific factual averments by the Defendants but nonetheless as a self-actor expressed he opposed the relief sought by the Defendants arguing the special plea was just raised as a delaying tactic. The Plaintiff went ahead to file heads of argument opposing the relief and insisting his claim was properly before the court since the initial agreement with himself was not cancelled. The Plaintiff maintained this stance even in oral submissions. I must hasten to point out that it is settled that failure to put to issue averments made by Defendant would ordinarily mean that the averments are not challenged and are agreed with. See Brooker v Mutanga SC 5/18 which shows that seeking to deal with a special plea by way of heads of argument would not be proper.

In this case a close look at the Plaintiff’s reply and heads shows the lack of detail in the reply which the Plaintiff then sought to beef up in heads. Strictly speaking the Plaintiff did not introduce new evidence in the heads of argument. He as a lay person sought to beef up and expand on his replication to the special plea. As a lay person the lack of detail and unsystematic presentation of his opposition of the special plea is not viewed as that there is no opposition to the special plea. It is my considered view that the Plaintiff’s failure to give detail of opposition in replication should not detract the court from accepting that the special plea is opposed. Rule 4C application in the interest of ensuring justice is done should appropriately be invoked in this case. It states:

“The court or a Judge may, in relation to any particular case before it or him, as the case may be-

direct, authorise or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he as the case may be, is satisfied that the departure is required in the interests of justice.

give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.”

Clearly from the papers filed of record and oral submissions, the Plaintiff is opposing the special plea to dismiss his claim. The lack of detail and flesh to substantiate the clear opposition should not be misconstrued to mean agreement in the circumstances. I will proceed to deal with the matter on merits.

Mr Maanda clearly spelt out the First and Second Defendant’s position. It is common cause the First and Second Defendants acted as agents for the former registered owners of the property that fell for sale. The First and Second Defendants therefore are not the owners of the property but as agents only facilitated the sale and subsequent transfer of property to the Third Defendant for and on behalf of their principal. The sellers and transferors are known but the summons issued by the Plaintiff does not include them. Considering that transfer was effected to the Third Defendant by the original owner, the non-joinder in this case is fatal. The non-joinder is coupled with misjoinder of First and Second Defendant who were discharging legal functions for and on behalf of their principals.

The cause of action against the First and Second Defendant is hazy. There is really no valid claim against the First and Second Defendants. They acted as agents in circumstances where the principals were known. In the case of Musema and Others v Estate Misheck Tapomwa and Others HH 136/16, dube j remarked as follows:

“The law is clear where an agent executes a mandate on behalf of a known principal, he carries out the mandate on behalf of the principal and binds his principal. An agent who has actual or apparent authority is not liable for acts committed during the course of his employment. The principal remains accountable to the third party. The agent becomes liable only in instances where he has no authority to act or has not disclosed his principal or the principal is unidentified.”

In the present case the seller of the property entrusted an estate agent and a conveyancer (Second and First Defendant) with the responsibility to sell property and transfer title to the purchaser respectively. The mandate was accomplished on behalf of the principal who is accountable to third party. The Plaintiff was aware of the principal and that First and Second Defendants were authorised agents but he proceeded to issue summons against parties not privy to the contract of sale. The seller and transferor were excluded from the proceedings. The fact that the First and Second Defendants were authorised agents and disclosed principal supports the assertion by the Defendant that both the misjoinder and non-joinder renders the Plaintiff’s claim fatal.

The second argument propagated by both Mr Maanda for the First and Second Defendants and Mr Majamanda is that the claim by the Plaintiff has prescribed. According to the Defendants the cause of action that is the entire set of factors which enabled Plaintiff to bring a claim constituted the cancellation of his sale agreement, the communication of such cancellation, and the subsequent sale to the Third Defendant. Cause of action has been simply defined in several case law. In Mukahlera v Clerk of Parliament and Others HH 107/07 it was defined as:

“The entire set of facts which gives rise to an enforceable claim and includes every act which is material to be proved to entitle a Plaintiff to succeed in his claim.”

See also Dube v Banana 1998 (2) ZLR 92 and Abrahams and Sons v A Railways and Harbours 1933 CPD 626. In the present case the entire set of facts which would enable the Plaintiff to bring his claim constituted the cancellation, communication and sale to the Third Defendant. The Plaintiff was advised of cancellation of agreement between him and the Second Defendant’s principals on 14 September 2015, further notifications were effected on 12 January 2016 and the subsequent sale and transfer of property on 30 December 2016 respectively. The Plaintiff was further notified of registration of transfer on 20 January 2017. From the sequence of events from the time of default of payment of purchase price on the Plaintiff’s party effective communication was done on cancellation from 14 September 2015 culminating in last communication of transfer on 20 January 2017.

Despite the fact that the cause of action arose back then the Plaintiff did not bring any claim up until on 9 June 2020 after sale and transfer has long been concluded. Whichever way one were to calculate the time lapse from 2015 or 2017 the claim is stale. In terms of the Prescription Act [Chapter 8:11] s 5 (d) the claim should be brought to surface within 3 years of cause of action. The legislature’s intention among others is to ensure certainty and finality of matters. The remarks by mathonsi j, as he then was, in John Conrad Trust v The Federation of Kushanda Pre-School Trust HH 503/15 are opposite. The court stated:

“……..in fact there should be legal certainty and finality in the relationship of parties after the lapse of a certain period of time. It would be against public policy for one who had a complete cause of action to sit on it and not litigate upon it ad infinitum.”

See also Cape Town Municipality v Allie N.O 1981 (2) SA 1. The court commenting on prescription stated:

“It cannot be denied that society is intolerant to stale claims. The consequence is that a creditor is required to be vigilant in enforcing his rights. If he fails to enforce them timeously he may not enforce them at all.”

Prescription extinguishes a claim. In this case the Plaintiff despite having the entire set of facts to institute a claim did not bring his claim on time neither did he do anything to interrupt the running of prescription. The Plaintiff’s claim was only filed on 9 June 2020 more than 3 years after cancellation of agreement, subsequent sale and transfer to Third Defendant. The claim was prescribed and thus extinguished.

The Defendants further sought to rely on the claims being res judicata. The main thrust of argument being that the Plaintiff and Third Defendant (at time of hearing, the registered owner of the property in question) had been to court and ownership determined. The Third Defendant was declared the owner by this court and the Plaintiff was ordered to be evicted. The court order is still extant. In fact Plaintiff has since been evicted from the property in question on 26 March 2019.

The requirement for successful invocation of res judicata is that the proceedings relied upon are involving the same parties or their privies and that the cause of action is the same. See Wolfenden v Jackson 1985 (2) ZLR 313. The Plaintiff is seeking to assert his rights in order to challenge the ownership which is vested in the Third Defendant. This was determined in HC 1377/19 an unchallenged default judgment and also HC 2042/19 which gave effect to the execution and eviction of the Plaintiff. This court is empowered to have recourse to its own court records and decisions for administration of justice. It is therefore a fact that ownership was determined in favour of Third Defendant thus rendering the matter res judicata.

The Defendants also sought to rely on lis pendens considering that the Applicant had filed proceedings and HC 67/2020 this time citing the First and Second Defendant’s principals. The Plaintiff at the time of hearing had withdrawn the case and as such the matter was not pending before the court. The Defendants did not pursue lis pendens as a ground for the special plea as it naturally fell off by withdrawal.

The Third Defendant also argued estoppel in support of dismissal of the Plaintiff’s claim. It is apparent the sale of property to the Plaintiff was in 2014. That sale agreement was cancelled due to non-payment of purchase price and communication of that cancellation was given to the Plaintiff. The latter ignored and neglected his obligation to pay purchase price culminating in the subsequent sale to the Third Defendant. The Third Defendant paid and had property transferred to him by the Deeds Registries Office. Cancellation of the sale agreement was communicated to the Plaintiff in 2014 and 2015 and remained inactive until June 2020. This was way after the sale to the Third Defendant and subsequent transfer to the Third Defendant.

For the inaction and delay for an unreasonable length of time the Plaintiff would have to contest with the defence of estoppel. See North Vaal Mineral Co. Ltd v Lavasz 1961 (3) SA 604 and also Resisto Dairy (Pvt) Ltd v Auto Protection Insurance Co. Ltd 1963 (1) SA 632 A. At the time the Plaintiff chose to act as the Third Defendant was already legal owner of the immovable property in question. As a registered owner by law the Defendant’s rights are vindicated. It is trite that once a deed of transfer is obtained it is public information and the whole world is assumed by operations of law to be aware. It follows therefore that from 30 December 2016 when transfer was effected the Plaintiff was aware of the Third Defendant’s ownership but he only reacted in June 2020 hence both estoppel and prescriptions are validly laid as basis of the special plea. See Eftromou Pvt Ltd HH 112/13.

Considering the totality of submissions it is clear that the cancellation of the sale agreement between the Plaintiff and the First and Second Defendants’ principals was communicated as early as 2015. Further communication in 2016 and subsequent sale of the property to Third Defendant, culminating in transfer in 2016 was to the knowledge of the Plaintiff. The Plaintiff despite the knowledge did not take action until June 2020 when he issued summons. The Defendant’s special pleas that the Plaintiff’s claim must be dismissed on basis of prescription, estoppel, non-joinder and misjoinder is well supported by the facts of this matter. The special plea must succeed.

The Defendants have applied for costs on a punitive scale to censor the Plaintiff from using intemperate and derogatory language. Indeed the heads of arguments to a marked extent appeared accusatorial and insultive of the justice delivery system, the Judicial Service Commission, the Secretary Ministry of Justice, the Judges and the Judge President. The Plaintiff referred to the officials as puppets and economic saboteurs as examples without necessary regurgitating all the other insults. Going by the number of cases and instance on matters being transferred creates the impression of being highly litigious and that if given chance would forum shop for a Judge of his own choice. The Plaintiff apologised for his intemperate language.

The issue of costs is at the discretion of the court. Whereas we condemn the Plaintiff’s use of intemperate language we condone his conduct on the basis that little knowledge might have been proven to be dangerous in this case. The bitterness of failing to buy property might have caused bitterness to the laymen, causing him to view the justice delivery system with suspicion. The Applicant being a self actor will not be visited with punitive costs but costs on an ordinary scale.

Disposition

In the result, it is ordered that:

The special plea succeeds.

The Plaintiff’s claim is dismissed with costs.

Henning Lock, First and Second Defendant’s legal practitioners

Khupe & Chijara Law Chambers, Third Defendant’s legal practitioners