Nyangoni v Mugawazi (809 of 2022) [2022] ZWHHC 809 (16 November 2022)

1 HH 809-22 CIV “A” 94/21 CASE No. 217/21 BERNARD NYANGONI versus MILDRED MUGAWAZI HIGH COURT OF ZIMBABWE TAGU & MAXWELL JJ HARARE, 28 October 2021 & 16 November 2022 Civil Appeal – Summary Judgment G R J Sithole, for the appellant M F Makore, for the respondent TAGU J: Background facts This is an appeal from a judgment of the Magistrates Court (Civil), per Mrs Mazhande, which was handed down on 8 June 2021. We heard the appeal on 28 October 2021 and reserved judgment after hearing submissions from the parties. The background to the dispute which has culminated in this appeal are that, on 1 June 2020, the appellant and the respondent entered into a lease agreement in respect of premises known as B209 Odzi Apartments, Corner Glenara Road and Samora Machel Avenue, Harare (hereinafter referred to as “the property”). The said lease agreement, which appears on pp 24-27 of the record, was for a period of three (3) months which would terminate on 31 August 2020. On 6 March 2021, the respondent issued summons against the appellant averring that, as the lease had expired, the appellant was in unlawful occupation. The summons and particulars of claim are on pages 11-13 of the record and, inter alia, sought the following relief: 1. Eviction of the respondent and those claiming occupation through him from the property. 2. Payment of holding over damages in the sum of the equivalence of US$250-00 in local currency (at the prevailing bank rate) per month from the date of summons to the date of ejectment. HH 809-22 CIV “A” 94/21 CASE No. 217/21 Appearance to defend was entered on behalf of the appellant on 25 March 2021, and the respondent filed an application for summary judgment on 26 April 2021. The respondent asserted that the appellant had no bona fide defence to her claim, since the lease had expired and his continued occupation was unlawful. On 6 May 2021, the appellant filed his opposing papers and stated that he had purchased the property on 15 July 2019 for U$45,000-00 from one Tinashe Kwari (hereinafter referred to as “Karwi”), whom he alleged was the respondent’s agent. The appellant attached the agreement of sale which appears on pages 35-36 of the record. In addition, the appellant provided the acknowledgement of debt signed by Karwi, which appears on pages 50-52 of the record. Karwi acknowledged that he was indebted to the appellant in the sum of US$54,000-00, the following clause appears in the acknowledgement of debt: “Should the creditor manage to negotiate to buy the flat from Mildred Mugawazi, the debtor shall pay the creditor US$45,000-00 and the balance shall be determined on the agreed sale date”. The appellant claimed paying the full purchase price and that he was renovating the property. He also stated that the lease was entered into because the respondent and her agent had disagreements over the sale of the property. The appellant argued that there were material disputes of fact which could not be resolved without hearing evidence in a trial. In her answering affidavit, the respondent denied the alleged sale to the respondent, and said that no power of attorney from her to Karwi had been provided to verify authority to sell her property. She highlighted that the agreement of sale was between the appellant and Karwi and that such agreement predated the lease, and that the lease does not allow the appellant to make alterations to the property. The Magistrates Court found in favour of the respondent, and the appellant was not happy, resulting in the appeal before us. Grounds of appeal The grounds on which this appeal is based appear on pp 1-2 of the record, and can be captured as follows: 1. The court a quo erred in granting the application for summary judgment where the appellant had a valid defence to the claim and there were various disputes of fact involved. HH 809-22 CIV “A” 94/21 CASE No. 217/21 2. The court a quo erred in ruling that the agreement of sale did not involve the respondent whereas the respondent was represented by its agent who handed the appellant a copy of the deed of transfer of the same property upon signing of the agreement. 3. The court a quo erred in ruling that the agreement of sale was for a different property from the one that the respondent sought to evict the appellant, whereas the agreement of sale captured the full name as appearing on the deed of transfer and the lease agreement has the name that the property was loosely referred to as it was part of a block of flats. 4. The court a quo erred in ruling that, if the appellant had purchased the disputed property, it would not have signed the lease agreement, yet the appellant signed it for a period sufficie nt for the parties to finalize the issue of purchase and the respondent did not want to lose on rentals, and an option to purchase the property was endorsed to protect the appellant if it was agreed that he had purchased the property. Before I set out the respective submissions of the parties, let me examine the law applicable to the issue before the court, namely, the requirements for the grant of summary judgment. The applicable law The law on the subject of summary judgment is settled in this jurisdiction and in South Africa. Quite a number of cases across the two jurisdictions have stressed that this remedy is of an extraordinary and drastic nature, which is very stringent in that it closes the door for the defendant. The basis for granting the claim is that the plaintiff’s case is unimpeachable and that that the defendants’ defence is not bona fide or that it is bad at law. See Herbstein Van Winsen The Civil Practice of the High Courts 4th ed at 434. Similarly, in Meek v Kruger 1958 (3) SA 154 (T) at 158C, the court stated that summary judgment is a remedy that may be deployed to prevent an abuse of the court procedure by a recalcitrant defendant. Having said this, I go on to state that the defendant is required to establish a prima facie defence and, in this respect, must allege facts which if established at trial would entitle him to succeed in his defence. (See Rex v Rhodian Investments Trust Ltd 1957 (4) SA 631). HH 809-22 CIV “A” 94/21 CASE No. 217/21 The purpose of this special procedure was aptly explained in Chrismar (Pvt) Ltd v Stutchburg and Anor 1973 RLR 277, in the following words: “The special procedure for summary judgment was conceived so that a mala fide defence might summarily be denied except under onerous conditions, the benefit of the fundamental principle on audi alteram partem (principle of natural justice to hear both sides of the case) so extraordinary an invasion of a basic tenet of natural justice will not lightly be resorted to, and it is well established that it is only when all the proposed defences to the plaintiff’s claim are clearly unarguable both in fact and in law that this drastic relief will be afforded to a plaintiff.” It must be noted that the onus to satisfy the court that a good prima facie defence exists is on the respondent. In this connection, in Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H), it was held that, where a plaintiff applies for summary judgment against the defendant and the defendant raises a defence, the onus is on the defendant to satisfy the court that he has a good prima facie defence. The appellant’s submissions on appeal Adv Garikai Sithole for the appellant, contended summary judgment should not have been granted as the appellant had a valid defence, namely, that he had bought the property through the respondent’s agent. Counsel argued that the question of whether or not the appellant had bought the property in dispute from the respondent required resolution in a trial process. It was argued for the appellant that the averments in the opposing affidavit raised a prima facie defence to the summary judgment application. The submission proceeded that the court a quo erred by applying the wrong test, namely, one which required the appellant to give a defence that would absolve him on a balance of probabilities in a trial cause. The appellant referred the court to Ashanti Goldfields Zimbabwe Ltd v Matumira and Ors 2011 (1) ZLR 270 (H) at 271B-E, for the proposition that a defendant is only required to place before the court facts which show a prima facie plausible defence to the summary judgment application. Thus, the appellant contended that what he alleged in the opposing affidavit raised a triable issue, and that Karwi’s possession of the title deed to the property suggested that he was the respondent’s agent. It was further argued that as the appellant was able to effect improvements, it meant an agreement of sale had been concluded between the parties. The appellant also argued that the court a quo erred by failing to appreciate that the property in dispute is the same property described in the lease agreement and agreement of sale. Additionally, the appellant contended that the court a HH 809-22 CIV “A” 94/21 CASE No. 217/21 quo erred in concluding that, if the appellant had purchased the property he would not have signed a lease agreement. Reliance was placed on Jirira v Zimcor Trustee and Anor HH 98-10 for the submission that a court should not rank affidavits of the parties. The final argument made for the appellant was that the order of the court a quo allowed the respondent to be unjustly enriched to the impoverishment of the appellant in light of the improvements done on the property. The respondent’s submissions on appeal The respondent abided by her heads of argument and argued that the appeal was filed without a bona fide intention to correct the judgment of the court a quo. She added that there was no material or genuine dispute of fact which could not be determined without the aid of viva voce evidence to merit referral of the matter to trial. The respondent placed reliance on a number of cases in this jurisdiction and in South Africa, notably, Public Service Commission and Anor v Tsomondo 1988 (1) ZLR 427 (SC) and Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T). On the facts of this matter, the respondent submitted that there was no dispute of fact which raised a triable issue warranting resolution in a trial cause. It was argued that, in casu, the main issue for consideration was whether or not the appellant bought the property from the respondent, and that Karwi acted as the latter’s agent in the transaction. The appellant submitted that the agreement of sale on record was signed between the appellant and Karwi, and that the agreement does not indicate that Karwi was acting for and on behalf of the respondent. Moreover, the respondent contended, the agreement makes no mention of the respondent and a power of attorney from the respondent appointing Karwi as her agent was not provided to the court. In addition, it was the respondent’s contention that attaching an acknowledgement of debt, invoices and photographs of renovated areas of the property did not assist the appellant’s case, because the acknowledgement of debt was between Karwi and the appellant. The respondent also pointed out that the acknowledgement of debt was signed (on 2 June 2020) a year after the agreement of sale was signed (on 15 July 2019). Then she submitted that it is inconceivable that the acknowledgement of debt would contain a clause which says: should the creditor (i.e. the appellant) manage to negotiate to buy the flat from Mildred Mugawazi (the respondent), the debtor (Kwari) shall pay the creditor US$45,000-00. In the same context, the respondent contended that the appellant did not provide proof of payment of the purchase price. HH 809-22 CIV “A” 94/21 CASE No. 217/21 Counsel for the respondent submitted that there was nothing for the court a quo to refer to trial, as the appellant’s own evidence destroyed his case, making the suggested dispute of fact illusory and the appellant’s own creation. In the circumstances, it was argued that the appellant had no bona fide defence to the respondent’s claim since the lease between the parties had expired and the appellant’s continued occupation was unlawful. Further, the respondent submitted that the court a quo correctly concluded that the evidence proffered by the appellant did not establish a contract of agency between Karwi and the respondent, since the agreement of sale is between the appellant and Karwi. It was denied that the title deed for the property was given to Karwi, and the respondent asserted that she had the said deed. In fact, she argued that submitting, in heads of argument, that Karwi had the deed which he gave to the appellant amounted introducing a new issue on appeal. The respondent referred the court to Bendezi Sugar Farm (Pvt) Ltd v Mhene Estates (Pvt) Ltd 1995 (1) ZLR 135 (S) at 142, where the Supreme Court set out the requirements for fresh evidence to be adduced on appeal. Finally, on whether the property described in the lease agreement is the same as the one in the agreement of sale, the respondent’s contention was that the appellant did not produce anything to demonstrate that it was the same property. She therefore argued that the court a quo was correct in finding that it was not the same property, and that the real issue is not the property description but whether a sale took place between the parties. Analysis of the case Applying the principles that emerge from the decided cases, I have to decide whether the court a quo erred in the manner suggested in the appellant’s grounds of appeal. I start by observing that the application for summary judgment procedure may be used only where the merits of the claim are evident without the necessity of holding a trial involving oral evidence and cross- examination. It is granted where the defendant has not paced before the court facts which show a demonstrable bona fide defence to the claim. In casu, the respondent’s claim in the court a quo, simply put, was that she had a three months’ lease with the appellant which began on 1 June 2020 and terminated on 31 August 2020 and, when it ended, the appellant became an unlawful tenant. Hence, the respondent sued, among other things, for eviction of the appellant and anyone claiming a right to occupy the property HH 809-22 CIV “A” 94/21 CASE No. 217/21 through him. The appellant’s defence in the court a quo was that he had purchased the property from the respondent through Karwi whom he alleged was the respondent’s agent. He further provided an acknowledgement of debt signed by Karwi acknowledging that he owed him money. Additionally, the appellant submitted that he had begun effecting improvements to the property because he had bought the property. Let me examine some interesting (if not, curious) aspects of this defence. Firstly, the appellant did not avail anything to the court in the form of a power of attorney given to Karwi by the respondent to prove that Karwi was indeed an agent of the respondent and had been mandated to sell her property on her behalf. What was before the court a quo was a bare allegation that there was an agency arrangement without anything to demonstrate its existence. Nor was there anything, e.g. a letter, email or text message, at the very least, to show that the respondent has instructed Karwi to sell the property on her behalf. Secondly, I notice that on the appellant’s own documentary evidence in opposition to summary judgment, the lease agreement was signed after the agreement of sale had been concluded. I agree with Counsel for the respondent that it is incredible that someone who holds an agreement of sale and claims rights of ownership in the property would agree to sign an agreement to lease the same property. This is even more inconceivable given that the lease was entered into a year after the property had been sold to the appellant, if he is to be believed. I do not find this version of the appellant convincing at all, as it is an attempt to stretch things beyond credulit y. My view is fortified by the fact that, when signing the agreement of sale, Karwi did not purport to sign for and on behalf of the respondent, but in his own right. In fact, ex facie the agreement of sale, Karwi is described as “the seller” simpliciter without any mention of the respondent. Clause 2 of the agreement is particularly interesting in that it states: “… the parties have agreed that the first part or seller (i.e. Karwi) shall transfer ownership of the property (cession) to be concurrently signed with the agreement of sale upon payment of the purchase price”. It is clear from this clause that Karwi represented that he had rights which he had acquired in the property which he intended to cede to the appellant. Otherwise, the reference to cession would be completely superfluous. However, the promised cession document (to be signed simultaneously with the agreement of sale) was not provided to the court a quo. Therefore, there was no basis for HH 809-22 CIV “A” 94/21 CASE No. 217/21 the court a quo to treat this document as establishing, even at a prima facie level), that a sale of the property was done between the appellant and the respondent through the agency of Karwi. Consequently, the court a quo cannot be faulted when it reached this conclusion. I now turn to the acknowledgment of debt which was tendered to show that the appellant had paid the full purchase price through the said acknowledgement of debt. This allegation is made in para 7 (iv) of the appellant’s opposing affidavit, which appears on page 32 of the record. My first observation is that the acknowledgement of debt was signed on 2 July 2020, exactly a month after the lease agreement was signed between the appellant and the respondent. I make a comment that in clauses A and B of the acknowledgement of debt, Karwi acknowledges owing a sum of US$54,000-00 to the appellant, but the cause of debt is not described. This would have been relevant given that the agreement of sale signed as far back as 15 July 2019 mentions the sum of US$45,000-00 as the purchase price for the property. Even more significant in this respect, is that clause 5 of the agreement of sale declares the following: “A part payment of thirty four thousand two hundred and fifty United States dollars (US$34,250- 00) has been paid as at this date (being $31,250 paid on 15 July 2019 and $3,000-00 paid on 7 October 2019)”. The inevitable question that arises from these two documents is: if the purchase price was US$45,000-00 and US$34,250-00 had been paid as at 7 October 2019, what was the amount of US$54,000-00 acknowledged in the acknowledgement of debt for. The next intriguing aspect of the acknowledgement of debt is clause C 1, which I have referred to earlier in this judgment. This is the part where Karwi states that, in the event the appellant manages to negotiate to buy the property from the respondent, he would pay the appellant US$45,000-00, and “the balance shall be determined on the agreed sale price”. This clause clearly discloses that a sale of the property had not been concluded. As I said, this clause is in an acknowledgement of debt signed on 2 June 2020, making it obvious that negotiations to buy the property had not been finalized. My conclus io n is that the acknowledgement of debt does not show that the purchase price had been paid, since it is speaking to an event (the sale) which has not yet happened. From the papers before me, the appellant put forward a defence in the court a quo. However, this court still has to consider whether such a defence is plausible and raises a triable issue. The appellant did not, in my view, establish a bona fide prima facie defence. It is instructive HH 809-22 CIV “A” 94/21 CASE No. 217/21 that in Kingstons Ltd v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) at 458 F-G. ZIYAMBI JA made the important point which is apposite that: “Not every defence raised by a defendant will succeed in defeating a plaintiff’s claim for summary judgment. Thus what the defendant must do is to raise a bona fide defence – a ‘plausible case’ – with ‘sufficient clarity and completeness’ to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts which, if established ‘would entitle him to succeed.’ See Jena v Nechipote 1986 (1) ZLR 29 (S); Mbayiwa v Eastern Highlands Motel (Pvt) Ltd S-139-86; Rex v Rhodian Investments Trust (Pvt) Ltd 1957 R & N 723 (SR).” I do not see anything in the defence raised in the court a quo that required referral to trial and leading of viva voce evidence since, in my estimation, the respondent’s claim was unassailab le. The appellant’s own support documents, far from bolstering a bona fide defence undermined the intended defence. In the circumstances, I take the view that no basis has been shown for vacating the judgment of the court a quo. In this regard, in Rosemary Bastin v John Madzima SC 37-20, MATHONSI JA correctly, in my view, expressed the germane point that: “While summary judgment is an extraordinary remedy given that it deprives a litigant desirous of defending an action, the opportunity to do so without regard to the audi alteram partem rule, it has always been granted by the courts to an applicant possessing an unassailable case. It is trite that such an applicant should not be delayed by resort to a trial, whose outcome is a foregone conclusion”. [My own emphasis] A similar approach was taken in Beresford Land Plan (Pvt) Ltd v Urquart 1975 (1) RLR 260, where MACDONALD ACJ (as he then was) observed that summary judgment is a legal process that ensures that the legal process in civil cases is not abused by unscrupulous litigants who have no defence to the claim but may be tempted to delay its smooth conclusion on flimsy grounds. The court a quo reached the correct decision in light of the evidence before it. I am inclined to dismiss the appeal, but must now deal with the question of costs. The respondent has asked for costs on the scale of attorney and client. Generally, costs are always in the discretion of the court and invariably follow the result. I see no reason to depart from this approach. Nevertheless, I have to consider whether costs should be awarded at the higher level sought by the respondent. It is trite that an award of costs at this scale is a drastic measure, and one which should not be lightly resorted to, except where the court is satisfied that there was an attempt to abuse the process of the court or for some other good reason. (See Gwinyayi v Nyaguwa 1982 HH 809-22 CIV “A” 94/21 CASE No. 217/21 (1) ZLR 136 at 138F). The appellant pursued the appeal in circumstances where his own evidence did not support that he had purchased the property. None of the documents he provided in opposing summary judgment spoke to a transaction of sale between him and the respondent. If anything, they established a relationship between him and Karwi unlinked to the respondent. Therefore, it was foolhardy to lodge this appeal, especially after reading judgment of the court a quo. That being the case, it was cynical (if not, foolhardy) of the first respondent to oppose the application and resist the relief being sought. Clearly, there was no lawful basis for opposing the application for summar y judgment and to appeal the judgment of the court a quo. The conduct of the appellant smacks of abusing the court process. In my view, this is an appropriate case for this court to show its displeasure by awarding costs at the scale of attorney and client. Disposition In the result, the appeal is dismissed with costs on the scale of attorney and client. MAXWELL J……………………………………Agrees Mabulala & Dembure, appellant’s legal practitioners Makore & Company, respondent’s legal practitioners