UCHENA
JA:
1.
This is an appeal against the whole judgment of the High Court
handed down on 31 July 2023, in which it confirmed the cancellation
of an agreement of sale between the first respondent and the
appellants.
2.
After hearing the appeal on 23 October 23 the Court gave an ex
tempore
judgment and issued the following order:
“IT
IS ORDERED THAT:
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
is set aside and substituted with the following:
(a)
The application be and is hereby referred to trial.
(b)
The applicant's founding affidavit shall stand as the summons.
(c)
The first and second respondent's opposing papers shall stand as
their appearance to defend.
(d)
Thereafter pleadings shall be in terms of the rules.
(e)
Costs shall be in the cause.”
Thereafter
on 30 September 2024 counsel for the appellants wrote a letter to the
Registrar requesting for written reasons for the order we granted.
These are they.
FACTUAL
BACKGROUND
3.
On 10 May 2018, the appellants and the first respondent entered
into a sale agreement. The agreement was for the sale of Stand No.
1239 Stand
1239 Good Hope Township of Lot 16 Good Hope, Harare, by
the first respondent to the appellants for US$50,875-00. A deposit
of US$25,000-00 was to be paid on the signing of the agreement in
cash to the first respondent. The balance of US$25,875-00 was to be
paid as cash in monthly installments of US$718-00 per month to the
first respondent, over a period of 13 months commencing on 1 August
2022 until it was paid in full.
4.
In terms of clauses 1 and 2 all payments were to be made directly to
the first respondent in cash. The first respondent cancelled the
agreement of sale four years later, on 4 May 2022 alleging that the
appellants had not paid the deposit and instalments in terms of
clauses 1 and 2 of the agreement of sale. At the time of cancellation
the appellants had completed the construction of the ground floor of
the house they were building on the property.
5.
In their opposing affidavit deposed to by SHUWISO
BANDIKA their agent
on the authority of a Power of Attorney issued to him by the first
appellant he stated that he paid the deposit to the first respondent
in cash, in the presence of his wife the second respondent. He
further stated that at the signing of the agreement and payment of
the deposit his principals the appellants who stay outside the
country, were participating through phone calls. He further stated
that the first respondent received the deposit and asked his wife
(the second respondent) to issue a receipt to the appellants. He
stated that the second respondent issued the receipt on 1 June 2018.
In respect of installments he stated that he would approach the first
respondent to make payments who, would on each occasion, instruct him
to make the payments to his wife who would give him, receipts for the
payments. He further stated that the first respondent allowed the
second respondent his wife to market the property and receive
payments of instalments on his behalf. He stated that all the
installments were paid to the second respondent on the instructions
of the first respondent.
6.
After the first respondent cancelled the agreement on 4 May 2022 he
applied to the court a
quo
for the confirmation of the cancellation.
7.
The deponent to the appellants opposing affidavit further stated
that the first respondent was duping purchasers of stands in his
development scheme using the same modus
operandi.
He
averred in paras 6 to 8 of the appellant's opposing affidavit that:
“6.
A
resolution of the dispute cannot be objectively attained without the
calling of further evidence. Which evidence can be tested through
cross-examination. The events as alluded to by the applicant and the
respondents are irreconcilable. The Applicant states that the first
and second respondents have never paid to him any money towards the
purchase of the property, which is at variance with the evidence of
the respondents who state that they paid the purchase price in full.
A point which can be confirmed by the third respondent who was and
still is the agent of the Applicant whom he had authorised to receive
payments on his behalf. A fact which he now denies in bad faith so as
to contemplate huge financial prejudice on the first and second
respondents. I hereby attach the proof of payment and globally mark
them as Annexure 'B'.
7.
The Court should also take judicial notice of the fact that the
Applicant is using the same modus operandi
to prejudice home seekers who would have paid to him the full
purchase prices for homes and he now disowns them. An example of
similar cases that are before the honourable court are a Court
Application for the confirmation of the cancellation of an agreement
of sale filed under reference HCH5557/22 between the Applicant and
Ronald Sithole and two others. Another Court Application for the
confirmation of the cancellation of an agreement sale filed under
reference HCH3646/22 between the Applicant and Fillet Madenga and
another and
many others that contains similar facts to the
present
case.
8.
This ought to encourage the Court to lean in favour of having all
issues canvassed through the leading of evidence and have the
witnesses cross examined. This will give the court the benefit of
determining the issues of credibility of the witnesses while having
an opportunity to deal with the core of the dispute.”
8.
It is clear that the dispute between the parties is that the first
respondent deliberately caused the appellants to pay instalments to
the second respondent his wife after he had personally accepted the
deposit after which he instructed his wife to issue the receipt.
DETERMINATION
OF THE COURT
A
QUO
9.
In
granting the first respondent's application the court a
quo
on the issue of whether or not the appellants had paid the purchase
price in the manner stated by their deponent said:
“Manifestly,
the applicant's cause of action does not hinge on the fact that the
respondents did not pay the purchase price. It hinges on the fact
that the payment was not made strictly in accordance with the
agreement of sale that required payments to be made directly to him
in cash.
The
applicant denies ever receiving the purchase price at all.
But
the respondents have produced incontrovertible proof that they did
pay, albeit via the third respondent. The applicant says he never
authorised the third respondent to receive the purchase price for
him. Yet the third respondent is not a distant and an unrelated third
party.
To
begin with, she was at all material times the wife of the applicant.
But more importantly, she was very much an integral player in the
sale deal. On the agreement of sale, not only did she sign as the
applicant's witness, but also whilst the applicant is captioned as
the 'seller' below her own signature is the caption: 'SOLD BY
MRS RATIDZAI MATUKUTIRE.'”
10.
In arriving at its decision the court a
quo
in para 13 of its judgment said:
“[13]
However, in the light of the Supreme Court decision in Matukutire
v Makwasha & Ors
above,
and the doctrine of stare
decisis,
the dispute in this matter is practically issue estoppel. The
respondents are estopped from raising the grounds of defence that
they have
raised
in this matter. The superior court has already ruled against such a
defence, namely that
they
paid the purchase price via the third respondent. The law on issue
estoppel, a species of
res
judicata,
is settled: see Galante
v Galante (2)
2002
(1) ZLR 144 (H). In paraphrase, it is this: in the interest of
finality in litigation as a tenet of public policy,
a party is precluded
from
raising in subsequent proceedings an issue, whether of fact or of
law, that was
previously
determined to finality by a competent court between the same parties
or their privies:
see Willowvale
Mazda Motor Industries v Sunshine Rent-a-Car
1996
(1) ZLR 415
(S)”.
(Emphasis
added)
11.
The court a
quo
eventually granted the first respondent's application for
confirmation of the cancellation of the agreement of sale.
SUBMISSIONS
BEFORE THIS COURT
12.
Mr Magwaliba
for the appellants submitted that there are disputes of facts which
cannot be resolved without leading viva
voce
evidence. He referred us to the appellants opposing affidavit which
states that the first respondent received the deposit and instructed
his wife to issue the receipt. He also referred to payments of
instalments after the first respondent on being approached for
payments instructed the appellants to make the payments to the second
respondent his wife. He referred us to the receipts issued by the
second respondent as proof of payment of the purchase price.
13.
Ms Mahere
for the first respondent argued that the appellants breached the
contract by failing to pay in terms of the contract.
THE
ISSUE
14.
The issue which arises for determination is whether or not there
were disputes of facts which warranted a remittal of the case for the
hearing of evidence.
APPLICATION
OF THE LAW TO THE FACTS
15.
The law on disputes of facts was clarified by MAKARAU JP (as she
then was) in the case of Supa
Plant Investments (Pvt) Ltd v Edgar Chidavaenzi
2009 (2) ZLR 132 at 136F, where she said:
“A
material dispute of fact arises when such material facts put by the
applicant are disputed and traversed by the respondent in such a
manner as to leave the court with no ready answer to the dispute
between the parties in the absence of further evidence.”
16.
In this case we are of the view that, the issue is on whether the
first respondent used deception to cancel the agreement of sale. The
appellants allegation is that the first respondent personally
received the deposit but did not personally issue the receipt having
instructed his wife to issue the receipt to the appellants. On
installments the appellants said the first respondent was approached
for purposes of payment but he would divert the appellant's agent
to his wife to whom payments were eventually made. The appellants
further alleged there are other purchasers under the first
respondent's Housing Scheme, who were duped in this manner. They
gave details of cases in the court a
quo
of persons who were subjected to the same modus
operandi.
These
in our view are disputes which do not leave the court with a ready
answer. They warrant the hearing of viva
voce
evidence. The issue goes beyond what the law says. It calls for the
determination of whether or not the first respondent personally
received the deposit and instructed his wife to issue the receipt. It
further calls for a determination on whether or not the appellant's
agent approached the first respondent to pay installments but was
deliberately instructed to go and pay to the second respondent.
17.
In respect of the case heard and determined by this Court in
Mutukutire
v Makwasha
SC 92/21, in which the first respondent successfully
appealed against the High Court's refusal to confirm his
application for confirmation of the cancellation of the agreement of
sale, we took the view that though it dealt with an agreement of
purchase of land in the same scheme the parties are different and the
details of what happened differ.
18.
We are of the view that the hearing of evidence will establish
whether or not the first respondent duped or induced the appellants
to pay in the manner they did. If he did the issue of whether he can
benefit from his wrong doing would arise.
19.
It was for these reasons that the court issued the order referred
to in para 1 of this judgment.
CHITAKUNYE
JA: I
agree
KUDYA
JA:
I agree
Mangwana
& Partners,
1st
& 2nd
appellants legal practitioners
Mugiya
& Muvhami Law Chambers,
1st
respondent's
legal practitioners
