Nemadziva v Majoni and Another (113 of 2024) [2024] ZWHHC 113 (18 March 2024)

1 HH 113-24 HC 3658/20 AUSTIN NEMADZIVA versus CLEOPAS MAJONI and THE REGISTRAR OF DEEDS N. O. HIGH COURT OF ZIMBABWE CHINAMORA J HARARE, 31 March 2023 & 18 March 2024 Civil Trial Mr P Mahembe, for the applicant Mr P Mashiri, for the respondent CHINAMORA J: Factual background The plaintiff issued summons against the first defendant claiming, inter alia, delivery of vacant possession of Stand Number 879 Lot 17 Goodhope, Harare, measuring 1920 square metres, held under Deed of Transfer No. 1267/1985 (“the property”). He also sought eviction of the first defendant and all those claiming occupation through him from the property, plus transfer of the said property into his name. Additionally, the plaintiff seeks an order for payment of holding-over damages of $5000-00 per month up to the date of eviction. The basis for this relief is that the first defendant sold the property to the plaintiff for the sum of US$65,000.00, which paid in cash and in kind by giving the first defendant motor vehicles. The entire sum of the purchase price was to be done within sixteen (16) months. The first defendant opposed the claim arguing that he cancelled the agreement of sale. Consequently, the first defendant submitted that the plaintiff has no right to ask for transfer or eviction of the defendant from the property. The joint pre-trial conference minute captures the issues for trial as follows: 1. Whether or not the values of the motor vehicles (for payment in kind purposes) were to be agreed by both parties or to be ascertained by competent and recognized valuers? HH 113-24 HC 3658/20 2. Whether or not the plaintiff paid the agreed purchase price in full? 3. Whether or not either of the parties is in breach of the agreement of sale? 4. Whether or not the plaintiff paid the purchase price within the stipulated period of 16 months? At the trial, it was apparent that the first defendant had abandoned the argument that the plaintiff has no cause of action because the agreement of sale had been cancelled. The contention was that plaintiff cannot enforce a cancelled agreement. The case for the plaintiff The plaintiff’s evidence was that on 24 April 2018, he and the first defendant entered into an agreement of sale in respect of the property. He continued that the terms were, inter alia, that the purchase price was US$65,000-00, payable in the manner I have already indicated. The plaintiff said that he was to give first defendant vehicles worth US$27,300-00, namely, a Toyota Hilux D4D registration number CAN 0981 (valued at US$19,500-00) and a Toyota Progress Chassis No. JCG10003543 (valued at US$7,800-00). In addition, a deposit in the sum of US$7,300-00 was required on signing of the agreement. The balance of US$30,400-00 was to be paid by delivery of vehicles over a period of 16 months from the 1 May 2018 to 30 September 2019. It was the plaintiff’s further testimony that, the parties would agree on the type of vehicles to be availed in order to fulfill the balance. Thereafter, according to the plaintiff, he would get occupation of the property after 10 months from the date the agreement was signed (i.e by end of March 2019). The plaintiff testified that, pursuant to the agreement, on 3 July 2018, he gave the first defendant a Mazda Demio vehicle at an agreed price of US$ 7 500.00. The first defendant confirmed this in an affidavit. The confirmatory affidavit appears on p 7 of plaintiff’s consolidated bundle of documents. Subsequently, on 17 August 2018, the plaintiff stated that the first defendant received another Mazda Demio at an agreed price of US$8,200.00. His further testimony was that he paid US$ 1 000.00 in cash on top of the vehicle. His evidence continued that, on 31 August 2018, he gave the first defendant a Mazda Bongo, registration number AEO 4252 at an agreed price of US$13,120.00. The plaintiff added that he made a cash payment of US$ 580.00 to the first defendant on 30 January 2019. The plaintiff asserted that he fully paid the purchase price as agreed by the parties. He concluded that all the payments were done within the agreed period of 16 months (i.e. from 1 May 2018 to 30 September 2019). HH 113-24 HC 3658/20 The first defendant’s case When his turn came, the first defendant gave evidence that the plaintiff had no right to claim transfer of the property or to evict him. He testified as follows. Following the agreement of sale between him and the plaintiff in respect of the property in question, 1st defendant sold the property to the plaintiff. According to the agreement which appears on p 1 to 6 of 1 st defendant’s consolidated bundle of documents, the material terms of the contract included, inter alia, that the purchase price of the property was US$ 65 000.00, which was to be paid as follows: 1. The plaintiff was to give the 1st defendant vehicles and money worth US$ 57 700.00; 2. The 1st defendant would take the cars for valuation to competent and recognized valuers to ascertain the real values of the cars in United States currency; 3. A deposit in the sum of US$ 7 300.00 to be paid upon signing of the agreement. 4. The balance was to be paid off in 16 months. 5. The parties were to agree on the type of vehicles to fulfill the balance; 6. The plaintiff was to take vacant possession of the property after paying the outstanding balance. The 1st defendant contends that plaintiff did not comply with the terms and conditions of the agreement. He alleges that the plaintiff failed to pay the full purchase price which led to the cancellation of the agreement. In essence, the 1st defendant argues that the parties agreed that the vehicles the plaintiff delivered ought to have been valued by competent and recognized valuers. The 1st defendant concedes to have received motor vehicles as part of the purchase price. However, contrary to the plaintiff’s position, the motor vehicles were valued by competent and recognized valuers as follows: The Toyota Progress registration number AEQ 2148 was valued at US$ 3 000.00; Mazda Bongo registration number AEO 4255 was valued at US$ 3 500.00; Mazda Demio H/Back registration number AEW 0890 was valued at US$ 4 000.00; Toyota Hilux 3.0D P/up registration number ACN 0981 was valued at US$ 7 000.00 and Mazda Demio H/back was valued at US$ 4 000.00. The 1st defendant also admitted that he received a cash payment of US$ 580.00. Analysis of evidence The court takes cognizance of the court application under HC 3090/19 between the same HH 113-24 HC 3658/20 parties which appears on pp 17 to 86 of the plaintiff’s bundle of documents. I will deal with the issues for determination as follows. In my view, the central to the resolution of the dispute is to examine the agreement between the plaintiff and the 1st defendant. Of the two agreements placed on record, the question that must be answered is: which of the two contracts wass to be specifically performed by the parties? Once that is determined, the rest of the questions will be answered without difficulty. It seems to me that the agreement which is being relied upon by the plaintiff is clear. The plaintiff’s version is that the parties never agreed to engage the professional services of competent and recognized valuers. In this respect, the relevant part of the agreement reads: “5.2.1 The purchaser to give the seller vehicles worth USD$ 27 300.00 (twenty seven thousand three hundred dollars) being: a Toyota Hilux D4D registration number ACN0981 valued at USD$19 500 9 (sic) (Nineteen thousand five hundred dollars) and a Toyota Progress (recent import engine number IJZ 1378117, Chassis number JCG 100035436 valued at USD$7 800.00 (seven thousand eight hundred dollars) … 5.2.4 The seller and the purchaser to agree on the type of vehicles to fulfill the balance.” On the other hand, the 1st defendant’s agreement had a clause to the effect that the parties would engage a competent and recognized valuator for the valuation of the motor vehicles. That part reads: “5.2.1 The purchaser to give the seller vehicles and Money worth USD$ 57 700.00 (fifty seven thousand seven hundred dollars). The seller shall take the cars for valuation to competent and recognized valuers to ascertain the real values of the cars in USD, being the only values to be considered in this agreement.” As I have already observed, my task is to decide which of the two agreements ought to be specifically performed by the parties? To answer this question, I must pay regard to the pleadings filed under HC 3090/19, in particular, the opposition affidavit by the 1 st defendant. When confronted by the plaintiff’s agreement, in his opposition on oath the 1st defendant said: “Admitted save that applicant misrepresented the values of the vehicles and we failed to agree on the values, thus my position is that applicant has not made payment in full. We did not reach an agreement as to the values of the vehicle for upon collection of all the vehicles in question. I took them to an independent valuator who then determined their actual and not applicant’s imposition…” [My own emphasis] HH 113-24 HC 3658/20 See page 39 of the plaintiff’s bundle of documents. It is apparent that, if really the 1st defendant had his agreement; it was at this juncture that he ought to have produced it to defend his case. On the contrary, in the depositions made on oath, the 1st defendant never suggested that the parties agreed to engage competent and recognized valuers. Instead, the 1st defendant suggests that he was not happy with the valuers that were attached to the vehicles by the plaintiff. As a result, he unilaterally engaged an independent valuer to do a valuation of the vehicles. Clearly, nowhere in those pleading does the 1st defendant point state that his agreement obligated the parties to engage competent and recognized valuers. It appears to me that the defence and the agreement the court is being referred to by the 1 st defendant is an after- thought to try and salvage his case. From what is on record and evidence in court, I find that the parties never agreed to appoint competent and recognized valuers. It can be discerned from the affidavits of acknowledgment of receiving the vehicles that the parties agreed to the values attributed to the motor vehicles on arrival. For example, on 3 July 2018, in acknowledging receipt of the Mazda Demio, the 1st defendant attested to an affidavit to the following effect: “I, CLEOPAS MAJONI 81-020133-F81, residing at …I have received a car Mazda demio recent import, Engine Number … From Austin Nemadziva … valued at $7 500”. [My own emphasis]. See Page 7 of the plaintiff’s bundle of documents. In yet another affidavit attested to by the 1st defendant on 31 August 2018, the 1st defendant noted: “…I have received a bongo Mazda from Austin Nemadziwa, chassis … valued at $13 120.00 (Thirteen thousand one hundred and twenty one US dollars) As part payment.” [My own emphasis] See page 12 of the plaintiff’s bundle of documents. The above illustrations necessarily lead me to the conclusion that the 1st defendant agreed to the values attributed to the vehicles. Simply put, if he was not in agreement, he would have objected to the said values and not accepted the vehicles as part payment without indicating a condition. The 1st defendant has placed before this court a handwritten signature forensic report HH 113-24 HC 3658/20 and questioned document forensic report. The handwritten signature forensic report sought to challenge the 1st defendant’s signature that appears on the affidavit dated 30 January 2019. The conclusion by the expert was that the 1st defendant was not the author of the signature. The questioned document forensic report was meant to investigate the authenticity of the certified copy of agreement of sale, namely, the agreement of sale filed under case number HC 3090/19, an original agreement in possession of Mr Majoni and 12 Copies of Mr Majoni’s initials. I did not place much reliance on these reports for the precise reason that the 1st defendant under HC 3090/19 had the opportunity to produce his own agreement and did not. This lends credence to the skepticism that at that time the affidavit was deposed no such agreement existed for the 1 st defendant is rely on. Secondly, I am not bound by the view of the handwriting or questioned document expert, because s 22 (3) of the Civil Evidence Act [Chapter 8:01], provides that: “A court shall not be bound by the opinion of any person referred to in subsection (1) or (2), but may have regard to the person’s opinion in reaching its decision.” In essence the above provision restates the position that expert testimony ought to be treated with caution. In British American Tobacco Zimbabwe v Chibaya SC 30-19 at p 11, it was held that: “It is trite that in the final analysis, the court itself must draw its own conclusion from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning it against known parameters.” Furthermore, in S v Zuma 2006 (2) SACR 257 at 263, the court stated that the expertise of a professional witness should not be elevated to such height that sight is lost of the court’s own capabilities and responsibilities in drawing inferences from the evidence. My view is that it would be remiss for a court to rely on expert opinion evidence which fails to clarify aspects which the court needs clarification on. The purpose of seeking expert opinion would be defeated. Having made the above finding, the next question to be answered is whether the plaintiff paid the full purchase price as agreed. A perusal of the evidence led by the plaintiff shows that the plaintiff paid the full purchase price for the stand. In particular, on 3 July 2018 the plaintiff gave the 1st defendant a vehicle namely Mazda Demio worth USD$ 7 500.00; on 17 August 2018, the plaintiff gave the 1st defendant a vehicle namely Mazda Demio worth USD$ 8 200.00 plus the sum of USD$ 1 000.00. Additionally, on 31 August 2018, plaintiff gave the 1st defendant a HH 113-24 HC 3658/20 vehicle, namely, Mazda Bongo worth US$ 13 120.00; and on 30 January 2019, the plaintiff gave 1st defendant the sum of US$ 580. Cumulatively, the delivery of these motor vehicles at the values indicated extinguished the outstanding balance of US$ 30 400.00. In conclusion, I am satisfied that the evidence tendered shows that binding obligations were created between the parties. The testimony demonstrates that the plaintiff complied with his part of the contact, and what remained was for the 1st defendant to perform its part of the agreement. The plaintiff demanded specific performance which was resisted. In this connection, in International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H), the late ROBINSON J, in dealing with the issue of specific performance had this to say: “I would wind up by saying that if the right of specific performance is to be shown to have real meaning to businessmen, then the loud and clear message to go out from the courts is: businessman beware. If you fail to honour your contracts, then don’t start crying if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract. In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of the breach. Businessmen at fault will therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain, no matter how costly that may turn out to be for them…”. [My own emphasis] I agree with the learned judge’s apposite observations. Accordingly, the sanctity of contractual arrangements should continue to be protected by courts of law. The plaintiff having complied with all the requirements, the contract was already in place and the 1st defendant was obliged to meet his obligation. There were legally binding obligations between the plaintiff and the 1st defendant. Disposition In view of the foregoing I find in favor of the plaintiff and order as follows: 1. 1st defendant be and is hereby ordered to deliver to plaintiff vacant possession of stand number 879 Lot 17 Goodhope, Harare measuring 1920 square meters held under parent Deed of Transfer Number 1267/1985. HH 113-24 HC 3658/20 2. The 1st defendant and all those claiming occupation through him be and are hereby evicted from stand number 879, Lot 17 Goodhope, Harare, measuring 1920 square meters held under Deed of Transfer Number 1267/1985. 3. The 1st defendant be and is hereby directed to sign all the transfer documents of stand 879, Lot 17 Goodhope, Harare measuring 1920 meters held under Deed of Transfer Number 127/1985 into plaintiff’s name within 7 days of this order. Failing which the Sheriff of the High Court is authorized to sign the transfer documents to stand number 879, Lot 17 Goodhope, Harare into plaintiff’s name. 4. Each party to bear its own costs. Gurira & Associates, plaintiff’s legal practitioners Makiya & Partners, first defendant’s legal practitioners