Chingosho v Musariri (841 of 2022) [2022] ZWHHC 841 (18 November 2022)

1 HH 841-22 HC 185/17 CHRISETTA CHINGOSHO versus JULIET MUSARIRI HIGH COURT OF ZIMBABWE MUSITHU J HARARE, 14 October 2021 & 18 November 2022 Civil Trial-Prescription Mr T Nyamucherera, for the plaintiff Ms B Murenga, for the defendant MUSITHU J: On 10 January 2017, the plaintiff instituted summons action against the defendant seeking the following relief: “WHEREFORE Plaintiff claims: (a) That the Defendant be and is hereby ordered to pay US$ 15 000.00 (b) Interests at the prescribed rate from the date of the issuance of summons. (c) Costs of suit on an attorney-client scale.” Plaintiff’s Case Sometime in 2001, the plaintiff and the defendant entered into an oral agreement in terms of which the plaintiff purchased from the defendant an immovable property known as Stand Number 944/7 Kasipiti Way, Rujeko, Marondera (the property). The purchase price was allegedly paid in monthly instalments which totalled ZW$ 280 000. The plaintiff claims that the current market value of the property is US$20 000. The plaintiff took vacant possession of the property upon payment of the purchase price. Efforts to transfer title to the plaintiff were in vain prompting the plaintiff to approach this court for an order to compel the defendant to pass title to her. In judgment HH 44/11 (pursuant to proceedings under HC 3370/07), this court, per CHITAKUNYE J (as he was then), determined that the agreement of sale between the parties was a nullity since the defendant had fraudulently sold a property that did not belong to her. According to the plaintiff, sometime in November 2016, the defendant paid US$5 000 towards the refund of the purchase price paid by the plaintiff. The plaintiff contends that the amount is HH 841-22 HC 185/17 US$15 000, less than the market value of the property, and for that reason the plaintiff remained prejudiced hence the present claim. Defendant’s Case While acknowledging the existence of the agreement of sale, the defendant denied that the sum of the ZW$ 280 000 represented the market value of the property. She also claimed that the plaintiff was aware at the time that they negotiated the terms of the agreement of sale, that the property belonged to the estate of her late husband. The ownership of the property was to pass from her late husband to her minor child as the heir. Both plaintiff and defendant were under the mistaken belief that the defendant had a right to sell the property by virtue of her being the minor child’s guardian. The defendant denied that the court in HC 3370/07 made a finding that she fraudulently sold the property to the plaintiff. Rather, a finding was made that as the guardian of the minor child, the defendant had not acted in accordance with the law in the manner in which she dealt with the property. The agreement of sale between the parties was thus found to be a nullity and the plaintiff’s claim in that matter was accordingly dismissed. The defendant claimed that following the dismissal of the plaintiff’s claim in HC 3370/07, the plaintiff caused the defendant’s arrest on allegations of fraud in 2015. She was prosecuted on a charge of fraud at the Chitungwiza Magistrates Court in 2016, under CRB No. 85/16. She was found guilty and sentenced to 18 months imprisonment of which 4 months were suspended for 5 years on the usual conditions of good behaviour. A further 6 months were suspended on condition the defendant paid restitution to the plaintiff in the sum of US$5 000 The remaining 8 months were suspended on condition the defendant completed 280 hours of community service at Chinembiri Primary School. The defendant claims that she complied with the terms of the court order. The defendant contends that the amount paid towards restitution was meant to atone for the prejudice suffered by the plaintiff in the aborted deal. The trial court considered the sum of US$5 000 to be adequate compensation for the plaintiff’s loss, and the plaintiff could thus not approach this court again for payment of any additional amounts. That would be tantamount to unjust enrichment. The Issues When the parties first appeared before me as part of case management in preparation for trial, it became clear that the disputable issues were clearly of a legal nature that were HH 841-22 HC 185/17 resolvable through oral argument instead of a fully-fledged trial. The parties identified the following to be the issues for determination: ➢ whether the plaintiff’s claim had prescribed; ➢ whether the plaintiff’s claim was competent at law, seeing as the agreement of sale between the parties was void ab initio; ➢ Whether either of the parties was unjustly enriched. Although the issue of prescription was not one of the trial issues agreed between the parties, the parties nevertheless agreed that it be determined at this stage, seeing as it was a point of law1. I directed counsel to file heads of argument and postponed the matter for hearing of arguments on the points of law. I will now turn to consider these legal points. Whether or not the plaintiff’s claim is prescribed The defendant submitted that based on the facts before the court, the plaintiff’s claim had hopelessly prescribed. The agreement of sale between the parties was concluded on 4 August 2001. Having paid the full purchase price and taking occupation of the property, the plaintiff had approached the defendant to sign the necessary papers to facilitate the cession of the property into her name. The defendant did not cooperate. The plaintiff approached the Marondera Magistrates Court in September 2005, seeking an order compelling the defendant to sign all documents necessary to effect cession of the property into her name. That application was unsuccessful with the court determining that it had no jurisdiction to hear the matter. That ruling was made on 12 March 2007. The plaintiff approached this court under HC 3370/07 claiming essentially the same relief. The court, per CHITAKUNYE J, determined that the defendant had no lawful authority to dispose of the property, and consequently the agreement of sale between the parties was a nullity. That judgment was delivered on 17 February 2011, under HH 44/11. In 2015, the plaintiff caused the arrest and prosecution of the defendant at the Chitungwiza Magistrates Court under CRB 85/15. The defendant was found guilty and part of the sentence was suspended on condition the defendant pays restitution to the plaintiff in the sum of US$5 000 through the Clerk of Court, Chitungwiza Magistrates Court. On 4 November 2016, the plaintiff filed an application for the review of the decision of the criminal court under HC 10040/16. The defendant herein was the first respondent, while the State was the second 1 See The Forestry Commission v Varden Safaris (Pvt) Ltd SC 58/16 HH 841-22 HC 185/17 respondent. The learned Trial Magistrate was the third respondent. The relief sought was as follows: “IT IS HEREBY ORDERED THAT: 1. The Order of restitution by the 3rd Respondent be and is hereby set aside. 2. The 1st Respondent be and is hereby ordered to pay restitution at the market price to be determined by an independent valuation, within 3 months after such valuation. 3. Costs of suit.” The record of proceedings shows that the application for review was withdrawn on 13 October 2021, with a tender of wasted costs. It was submitted on behalf of the defendant that the plaintiff became aware of her entitlement to claim compensation from as far back as 2011, when she lost her case against the defendant in HC 3370/07. The court had made it clear that the defendant had sold non-existing rights in the property to the plaintiff. It was at that stage that the cause of action arose. In her oral submissions, counsel for the defendant submitted that the plaintiff ought to have mounted the present claim on or before February 2014. She urged the court to dismiss the claim on that basis. In her response, the plaintiff denied that her claim had prescribed. She averred that in terms of the s 18(1) of the Prescription Act2, the running of prescription was interrupted by an express or tacit acknowledgment of liability by a debtor. The payment of the US$5 000 towards restitution after conviction was an acknowledgment of liability, which meant that prescription started to run afresh. The plaintiff further averred that the defendant could not blow hot and cold by admitting liability and making payment towards the debt and then turn back and argue that she was not liable. The parties ought to focus rather on the question of the quantum to be paid. The court was urged to dismiss the point as it lacked merit. I pause here to observe that this is not the first time that the question of prescription is being raised by the defendant. It also arose in the matter before CHITAKUNYE J. It however arose in the context of a document titled “Acknowledgment of Payment” signed by the two parties herein on 4 June 2005. In that document, the defendant acknowledged receipt of the sum of three million two hundred thousand dollars as rentals from August 2001 to March 2002 in respect of the property. She also undertook to do everything to pass title from her late husband’s name to the plaintiff. It was her failure to meet her side of the bargain that prompted the plaintiff herein to approach the Magistrates Court. CHITAKUNYE J determined that the matter before him had not yet prescribed. The court found rightly so because proceedings 2 [Chapter 8:11] HH 841-22 HC 185/17 before him were instituted soon after the ruling of the Magistrates Court declining jurisdiction in 2007. In his determination in HH 44/11, CHITAKUNYE J framed the issue before him as follows: “The major issue may be viewed as whether or not the first respondent as guardian to the second respondent could validly sell the first respondent’s property as she purported to do; or did her appointment as guardian bestow on her the powers to deal with the property as she deemed fit?”3 Having considered the provisions of the Administration of Estates Act as they relate to the alienation of immovable property by a curator or tutor, as well as the need to procure the consent of the Master of the High Court before disposal of an estate property, the learned judge came to the following conclusion: “In as far as it is conceded that the first respondent did not comply with the provisions of the Act as stated above it follows that the purported sale was a nullity. The first respondent had nothing to sell. That property belonged to a minor. The applicant’s plea became more of moral persuasion which unfortunately cannot override the legal position. The applicant’s recourse can only be against the first respondent for having misled her that she could validly sell a minor’s property in those circumstances.”4(Underlining for emphasis). Thus as at 17 February 2011, this court per CHITAKUNYE J had determined that the plaintiff’s recourse lay against the defendant for the misrepresentation that she had made to the plaintiff. Going by the CHITAKUNYE J judgment, it meant that the plaintiff was alive to the need to institute proceedings against the defendant for whatever relief she claimed within three years of that pronouncement by the court. That meant that proceedings ought to have been instituted on or before 17 February 2014 at the very least that is within three years from the date the cause of action arose.5 The cause of action would have arisen from the point that the plaintiff’s claim to enforce the agreement of sale was dismissed by CHITAKUNYE J on the basis that the agreement between the parties was a nullity, and the plaintiff’s recourse was against the defendant. Criminal proceedings against the defendant were only instituted in 2015 and concluded in 2016. It followed that even at the time that the criminal court made an order of restitution, the plaintiff’s claim had long prescribed. Section 18 of the Prescription Act that the plaintiff alluded to states as follows: “18 Prescription interrupted by acknowledgment of liability 3 At p 4 of the judgment 4 At p 4 of the judgment 5 See s 15(d) of the Interpretation Act HH 841-22 HC 185/17 (1) The running of prescription shall be interrupted by an express or tacit acknowledgment of liability by the debtor. (2) If the running of prescription is interrupted in terms of subsection (1), prescription shall commence to run afresh— (a) from the date on which the interruption takes place; or (b) if at the time of the interruption or at any time thereafter the parties postpone the due date of the debt, from the date upon which the debt again becomes due.” An issue that arises is whether the payment of the restitution amount is of any consequence to the current proceedings given that criminal proceedings were instituted way after the claim had prescribed? In my view, the criminal proceedings and the outcome thereof are of no moment once it is clear that the plaintiff’s claim had prescribed at the time that the criminal proceedings were instituted. The plaintiff sat on her laurels between the time that CHITAKUNYE J delivered judgment and the institution of criminal proceedings in 2015. The plaintiff allowed her claim to prescribe. In any case, criminal proceedings do not preclude the institution of civil proceedings for damages. This court therefore determines that the plaintiff’s claim is hopelessly prescribed as proceedings ought to have been instituted on or before 17 February 2014. Having made that determination, it becomes unnecessary for the court to determine the remaining issues which were all dependant on the outcome of the court’s finding on this preliminary point. The parties did not address the court on the question of costs. Be that as it may, and having considered the background and circumstances of the case, I find it befitting that each party be ordered to bear its own costs. DISPOSITION Resultantly it is ordered that: 1. The plaintiff’s claim is hereby dismissed. 2. Each party shall bear its own costs. Lawman Chimuriwo Attorneys, plaintiff’s legal practitioners MT Chiwaridzo Attorneys At Law, defendant’s legal practitioners