CRAFTCALL INVESTMENTS (PRIVATE) LIMITED v CHIPENDO and ANOTHER (198 of 2024) [2024] ZWHHC 198 (20 May 2024)

1 HH 198-24 HC 575/22 CRAFTCALL INVESTMENTS (PRIVATE) LIMITED versus DIANA MUTSA CHIPENDO and LAWRENCE MASANGA HIGH COURT OF ZIMBABWE CHINAMORA J HARARE, 20 May 2024 Court application Mr J Mambara, for the applicant Ms M T Newman, for the respondents CHINAMORA J: Introduction The applicant approached this court seeking the following relief: “WHEREUPON after reading documents filed of record and hearing counsel: IT IS ORDERED THAT: 1. The first Respondent be and is hereby ordered to sign all the cession forms necessary to cede her right, title and interest in Stand No. 72 Gletwyn Township of stand 81 of Gletwyn Township measuring 1, 5357 hectares held under Deed of Transfer 0002620/2003 to the applicant within 7 days of the date of this order. 2. The Sheriff, Harare, be and is hereby authorized to sign the necessary forms should the 1 st respondent fail to comply with paragraph 1 above. 3. The 1st respondent shall pay the costs of suit on a legal practitioner – client scale.” The applicant’s case The applicant contends that on 26 April 2013, the applicant executed an agreement of sale with the first respondent who was represented by one Omasi Makaza, whom she had granted a power of attorney. The terms of the agreement were that the applicant purchased from the first HH 198-24 HC 575/22 respondent a certain piece of land situate in the district of Salisbury called Stand 72 Gletwyn Township of stand 81 Gletwyn Township held under Deed of Transfer 0002620/2003 measuring 1,15357 hectares for the sum of US$ 140 000.00 which was paid in full on or before 22 June 2013. According to the applicant, it paid the deposit to the seller and some payments were made to one Makaza who was the holder of an extant power of attorney. The remaining balance was paid before 22 June 2013 into the designated account of the applicant’s husband the second respondent herein. The applicant contends that sometime in September 2014, the first respondent wrote to the applicant’s legal practitioners expressing her intention to withdraw the power of attorney she had given to Mr. Omus Makaza and further requested proof of payment of the purchase price. The first respondent was provided with proof of payment made to the second respondent and the second respondent confirmed receipt to the said payment made to him. Furthermore, the first respondent requested the original sale papers that is the agreement of sale, special power of attorney, proof of payment and all paperwork in relation to the sale. According to the applicant, despite the fact that the first respondent has received the payment in full, she has refused, neglected and failed to effect transfer of interest, title and rights of the said property into applicant’s name. The first respondent’s case On her part, the first respondent disputes that there was a legally binding agreement between the applicant and her. The first respondent denies ever signing the agreement in question for the sale of the said immovable property. Furthermore, first respondent denies authorizing the second respondent through a written power of attorney to facilitate the sale of stand 72 of Gletwyn Township. In addition, the first respondent disputes ever receiving full purchase price. The first respondent avers that the said power of attorney was executed 29 May 2013, while the agreement of sale was executed on 26 April 2013. Therefore, the agreement of sale could not have been properly executed when the power of attorney had not yet been effected. The first respondent also notes that the signature on the power of attorney is not that of Mr. Makaza who was said to be her agent. This therefore leaves a question as to who authorized the second respondent to sign on her behalf. HH 198-24 HC 575/22 In addition, the first respondent claims that sometime in June 2013, the applicant filed an application with the City of Harare for the subdivision of the property without her authorization. This was notwithstanding the fact that there were still outstanding payments. The first respondent alleges that the applicant for the said application for subdivision used a fraudulent Special power of attorney. The first respondent argues that after discovering the fraudulent scheme by the second respondent and one Makaza she emailed the applicant’s legal practitioners with the intention to withdraw the fake power of attorney and never at any time mentioned that she authorized Makaza to represent her. The second Respondent’s case filed an affidavit in which he indicated that he was not opposed to the relief being sought by the applicant. In the said affidavit, the second respondent provided reasons why he was not opposed to the application. I shall detail the same below. The second respondent notes that what the first respondent’s averments contradicts what she stated before this court under HC 10701/14. In her replication to the summons under HC 10701/14 in paragraph 5, she clearly stated that she sold her property. She did not state that the sale was fraudulent. She further accepts that the property she acquired in the United Kingdom, No. 3 Westwood Gravesand DS117AA was bought with the proceeds from the sale of her Shawasha Hills property. I notice that the second respondent acknowledges receipt of the first payment of US$ 70 000.00 to which he disbursed to the first respondent in the United Kingdom. The second respondent further confirms receipt of the sum of US$ 40 000.00 which he withheld for reasons best known between the first and second respondent and in the same divorce proceeds the 1 st respondent was claiming the said US$40 000.00. The second respondent argues that he had the authority to sign the agreement of sale when it was prepared and that the first respondent saw it fit to give a power of attorney to Mr. Makaza a relative. According to the second respondent, Mr. Makaza handles second respondent’s business transactions in Zimbabwe. One Omasi Makaza filed an affidavit wherein he associated himself with the Special power of attorney to the main application and the Power of Attorney that was granted to him by the first respondent. He further denied that the power of attorney was forged and that they were extant. The first respondent in her heads of arguments raised for the first time the question of prescription. I wish to deal with this point first. It is first respondent’s contention that the HH 198-24 HC 575/22 applicant must have claimed delivery of the property within 14 days from the date of full purchase price. The applicant, according to the first respondent did not exercise its rights until 2022 and its debt has since prescribed in 2017. I have no problems in finding that the said point in limine has not been properly raised. In Brooker and Others v Mudhanda and Others SC 8-18, the Supreme Court held that: “The party who alleges prescription must allege and prove the date of the inception of the period of prescription…The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based…”. Simply put the first respondent ought to have specifically pleaded in her opposing affidavit by setting out sufficient facts to show on what the defence is based on. Sadly, the first respondent failed to do so rendering the said defence improperly before this court. On the merits, the applicant clearly crystalizes the issues before this court and these are whether or not there is a valid agreement of sale and whether or not specific performance should be granted. In my view, if the court finds that there was a valid agreement between the applicant and the first respondent, it would follow that the first respondent ought to transfer the property into applicant’s name. The opposite is true. Whether a valid agreement of sale existed In Warren Park Trust v Pahwaringira and Others HH 39-09 cited with approval in the Supreme Court matter of Ashanti Goldfields Zimbabwe Limited vs. Jafati Mdala SC 60-17 at page 8, the court held as follows: “It is trite and a matter of elementary law that the essential elements of a valid contract of sale comprise: Agreement (Consensus ad idem) as to: - 1. The thing sold, the (merx) and 2. The price of the thing sold, the (pretium)”. In other words, a contract of sale comprises three essential elements, that is to say: “1. an agreement between the parties to buy and sell. 2.an agreement on the thing or commodity sold known as the merx. 3. an agreement on the price known as a pretium” The applicant argues that the agreement of sale in this case satisfies all the elementary requirements for a valid contract of sale. On the other hand, the first respondent disputes that the HH 198-24 HC 575/22 agreement is a valid one on the basis that it is a product of fraudulent conduct of the applicant, second respondent and one Makaza. In the result, the first respondent relies on the case of Lazarus Estates Ltd vs. Beasley [1956] 1 Q. B. 702 in which the court held that: “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minster, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”. Was there fraud, in as much as the first respondent alleges it, the first respondent fails to prove that the agreement of sale between her and the applicant was such especially if regard is heard to the letters that the first respondent herself authored. In my view, the said correspondences between the 1st respondent and the other parties to the present case clearly shows that the first respondent was aware of the agreement and even sanctioned it. I will refer to a number of emails that the 1st respondent exchanged with the other parties as proof that she was aware of the agreement and had even sanctioned it. Annexure E2 which is an email from the 1st respondent to one Mataka dated 12 September 2014 reads: “Following our conversation today I would like to withdraw with immediate effect the power of attorney given to Mr. Makaza with the sale of my property number 72 Gletwyn farm shawasha hills. From now onwards I am directing you to correspond with me with regards to this issue. Furthermore I would like a copy of the evidence that Mr Masanga received a payment of $70000 from you with regards to this property. Please advise the buyers to pay the balance of this property as arranged or alternatively I will seek legal advice to withdraw the sale…” My own underlining for emphasis. Coupled with other emails from the second respondent to the first respondent, it is clear that the first respondent was quite aware of the sale and had sanctioned it. A good example is the above quotation, the first respondent acknowledges the sale when she requested for the balance on the property and even threatened to withdraw the sale. In my view, the question of fraud falls away, even the question that the power of attorney had a much later date than the agreement of sale. In any event, the power of attorney itself ratifies and confirms whatever the holder of the power of attorney had done lawfully. HH 198-24 HC 575/22 Whether specific performance should be granted Once it has been found as above that there was a valid agreement between the applicant and the first respondent, it follows that the first respondent must deliver title to the applicant. However, this is subject to the applicant having met all the obligations imposed to it by the agreement. In terms of the agreement, the applicant was required to pay the full purchase price in the sum of US$ 140 000.00 by the first respondent. The evidence place before this court shows that the applicant paid the sum of US$ 70 000.00 through the second respondent being the deposit. The outstanding balance as the documentary evidence of transfers would prove shows that the balance was paid off on or before 22 June 2013. In terms of the agreement, the first respondent ought to have tender transfer within 14 days of the payment of the full purchase price. It is on this basis that I am of the view that specific performance must be granted. I now have to decide the issue of costs. On the question of costs, it is settled law that costs follow the result and there is no exception to this case. Furthermore, nothing has been put before me to justify awarding costs on a punitive scale and as a result will not entertain that question. Disposition In the result, I make the following order: 1. The first respondent be and is hereby ordered to sign all the cession forms necessary to cede her right, title and interest in Stand No. 72 Gletwyn Township of stand 81 of Gletwyn Township measuring 1, 5357 hectares held under Deed of Transfer 0002620/2003 to the Applicant within 7 days of the date of this order. 2. The Sheriff, Harare, be and is hereby authorized to sign the necessary forms should the first respondent fail to comply with paragraph 1 above and effect transfer of Stand No. 72 Gletwyn Township of stand 81 of Gletwyn Township measuring 1, 5357 hectares held under Deed of Transfer 0002620/2003 into applicant’s name. 3. The first respondent shall pay applicant’s costs of suit. J Mambara & Partners, applicant’s legal practitioners Newman Attorneys, respondents’ legal practitioners HH 198-24 HC 575/22