Taya v Madarameta & Ors (HC 6715 of 2016; HH 96 of 2017) [2017] ZWHHC 96 (15 February 2017)

1 HH 96 -17 HC 6715/16 MKWANDA TAYA versus ETINARA MADARAMETA and MR MUTANDWA and RUWA LOCAL BOARD and THE CHAIRMAN RUWA LOCAL BOARD HIGH COURT OF ZIMBABAWE TAGU J HARARE, 18 January & 15 February 2017 Opposed Application N Mugiya, for the applicant M Chiheve, for the 1st respondent No appearance for 3rd and 4th respondents TAGU J: The applicant (Mkwanda Taya) filed this present application for a declaratur seeking a relief in the following terms:- “ 1. The transfer of Stand No. 3114 Gushungo Street, Ruwa from the Applicant’s names to the 1st Respondent’s names and eventually into the 2nd Respondents’ names is declared unlawful and wrongful. 2. The 3rd and 4th Respondents’ transfer of Stand No.3114 Gushungo Street, Ruwa is declared null and void. 3. The 3rd and 4th Respondents are ordered to transfer Stand No.3114 Gushungo Street, Ruwa into the Applicant’s names within three days from the date of this order. 4. The Respondents are ordered to pay costs of suit on a client- attorney scale.” This application was opposed by the first and second respondents. The 3rd and 4th respondents were in default despite that they were served with the notices of the hearing. Consequently default judgments were granted against the 3rd and 4th respondents. HH 96 -17 HC 6715/16 The first respondent raised a point in limine to the effect that there are material dispute of facts which could not be proved entirely on papers, that is, whether or not the applicant donated the property to the applicant and whether or not the applicant is illiterate. The first respondent prayed that this application be dismissed and that the matter proceed by way of an action procedure. Reference was made to the cases of Dewa v Sibanda and Others HC 615/08, Nyazorwe v Guta and others HH 234/88, Masukusa v National Foods Ltd and Another 1983 (1) ZLR 233 and Smith v Smith 1980 (3) SA 1010 at 1015. “The applicant opposed the point in limine and argued that no material disputes of facts have been pointed out and urged the court to decide the matter on the papers. Having heard submission from both councils the court was of the view that there were no disputes of facts which could not be decided on papers. Hence the parties argued the matter on the merits.” The applicant in para 4 of his founding affidavit claimed that he bought the said stand as far back as 1992 from the third and fourth respondents. The record is however not favoured with the alleged agreement of sale or lease of land which if so provided by the applicant could have cleared the dust surrounding this application. At p 18 of the record this court is confronted with an agreement of lease purportedly entered into by the Ministry of Local Government and National Housing and the applicant registered as A/2834/98. This agreement bears a date stamp of 20 April 1999 with the applicant having accepted the terms and conditions outlined therein as far back as 1998 contrary to the applicant’s assertion that he bought the said stand in 1992. However, be that as it may, note should also be taken of the fact that the agreement bears the name “Mkwanda” beneath the portion where the lessee appended his/her signature. Given that the applicant avers that he cannot read nor write, it is now unclear whether the applicant is indeed the signatory of the document introduced to this Honourable court as the Agreement of lease between the Ministry and the Applicant. The question that arises is whether the applicant himself is being economic with the truth by failing to attach his agreement of lease to prove his case so that the court can make a distinction between the two agreements of lease or whether that document was manufactured by the respondents. I say so because this agreement was produced by the respondents and not the applicant. Be that as it may, it is quite clear that the stand in question was as late as 15 October 2015 still registered in the name of the applicant as per the water and services statement attached as annexure A. The record speaks for itself therefore, that as per water and service statement appearing on p 6 of the record that the stand in question was in the names of the applicant. Surprisingly, HH 96 -17 HC 6715/16 however, the same stand number as at 15 April 2016 now reflected that the owner of the stand was the first respondent as per water and services statement attached as annexure B. This court was urged to believe that the applicant donated the said property sometime in 2006 per affidavit appearing on p 17 of the record. Whilst the applicant might have had the intention to donate the stand, if ever the agreement of lease produced by the first respondent is something to go by, this court is alive to the provisions of para 12 of the said agreement. In essence the paragraph peremptorily limits the lease’s rights to either donate, alienate, mortgage, or otherwise dispose of the same without the authority of the Ministry which in this case is the lessor. Paragraph 12 reads as follows- “12. THAT the Lessee shall not cede or assign this lease or sublet or part with the possession of the stand/stands or any part thereof, or alienate, mortgage, donate or otherwise dispose of the same, or cede or assign any right acquired by him/it hereunder without the previous consent in writing of the Lessor, or until title to the hereinafter shall mentioned.”(Underlining is mine for emphasis) stand/stands granted him/it been have as to To this end the question to be answered is this “was there any valid authority to donate, alienate or cede any rights in relation to the said property which can be recognised by this Court? It is quite clear that the answer to this question is in the contrary for the sole reason that the purported document originating from Ruwa Local Board is not authentic ex facie. This Court noted that the document appearing on page 16 of the record, the Cession Form is incomplete in itself since no official from the Ministry which is the lessor ever signed it approving the alleged donation of the property in question. The Form is not even date stamped. Section 4 of the alleged cession document is unarguably left blank. I verily believe that for the document to have full legal force and effect should have been signed and stamped by the Ministry official authorising the cession in clear terms. This incompleteness is very fatal to any transfers that might have taken place. Local Boards and Ministries entrusted with documents relating to property rights of the majority of the Zimbabwean citizens cannot issue out such a document and make someone to act upon it. To this Court’s knowledge and trust, a date stamp of the Ministry as the approver of the cession is wanting let alone the Local Board itself. The predicament does not end there. This Court was further drawn to the Lease with option to purchase in favour of the first respondent again dated 01 November 2013. If ever HH 96 -17 HC 6715/16 the said donation was actually done, was there any need for the Donee to enter into a lease with an option to purchase the same property which was actually donated to herself? Certainly no. The genuiness of the document itself is quite questionable. No wonder why Ruwa Local Board and the Chairman thereof as third and fourth respondents respectively never opposed nor appeared at the date of the hearing of this matter despite being properly served culminating into a default judgment being entered against them. This actually raises suspicion that there might be someone behind the scene who was behind such scandalous dealings. Furthermore, all documents from Ruwa Local Board do not even have the blessings of the date stamps throughout the whole application. To this end the whole transaction becomes suspicious. It would appear to be potentially labouring the trial court to accept that there was any donation which can stand at law. Whilst the Court is alive to the fact that the Applicant might have at one point or another have the intention to donate, such a move was well limited with regard to the provisions of para 12 of the agreement of lease as well as the glaring nature of the cession document believed to be from Ruwa Local Board which in the eyes of this Court suffers an incurable fatality rendering the whole transaction a nullity. Whilst at the centre of this application it is humbly acknowledged that the “Signer be aware rule” popularly known in contract as the caveat subscriptor rule still have relevance in this jurisdiction, this Court is not favoured with the 1992 agreement of lease to show how he signed then. In the case of Muzuva v FBC Bank Ltd SC 554/14 it was held that the fact that respondent is denying his signature brings into operation the caveat subscripto rule. In the case of Oasis Medical Centre (Pvt) Ltd v Beck & another HH 84/16 it was held that the signer must beware of whatever he is signing. In casu the applicant denied ever signing the documents in question and told the court that he is illiterate and signs by putting an “X” as he did in his founding affidavit. In my view it has not been proved that the applicant indeed signed the documents in question. . However, it is not in dispute that the applicant was the owner of the said property till late 2015 when the property was later unceremoniously transferred to the first respondent under unclear circumstances. For want of compliance with the provisions of para 12 of the Lease Agreement assuming that it is the document signed by the applicant or resembles the one he might have signed no donation occurred for there is no authorisation by the Ministry which in any event is the lessor of the property in question. For this reason all purported documents in favour of the first respondent are incomplete and HH 96 -17 HC 6715/16 suspiciously crafted to achieve a goal which this court cannot sanction. In the result the application is granted. The applicant is therefore granted an order as prayed for in the following terms:- 1. The transfer of Stand No. 3114 Gushungo Street, Ruwa from the Applicant’s names to the 1st Respondent’s names and subsequently into the 2nd Respondent’s names is declared unlawful and wrongful. 2. The 3rd and 4th Respondents’ transfer of Stand No.3114 Gushungo Street, Ruwa is declared null and void. 3. The 3rd and 4th Respondents are ordered to transfer Stand No.3114 Gushungo Street, Ruwa into the Applicant’s names within three days from the date of this order. 4. The Respondents are ordered to pay costs of suit on a client- attorney scale. Mugiya & Macharaga, applicants’ legal practitioners Legal Aid Directorate, 1st respondent’s legal practitioners