Nkomo v Ncube (HC 187 of 2003) [2004] ZWBHC 73 (26 May 2004)

Judgment No. HB 73/2004 Case No. HC 187/2003 VUSUMUZI NKOMO Versus FLORENCE NCUBE IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 12 FEBRUARY AND 27 MAY 2004 C Dube for applicant Ms H Moyo for respondent Civil Trial NDOU J: The plaintiff seeks an order in the following terms- “1. Eviction of the defendant from house number 58 Emakhandeni, Bulawayo. 2. $10 000,00 per month from the 1st November 2002 to the date of eviction. 3. Costs of suit on an attorney and client scale.” The salient facts are that on 22 August 2002 the plaintiff concluded an agreement of sale with one George Kahari. The agreement of sale was in respect of an immovable property being house number 58 Emakhandeni, Bulawayo. The agreement of sale was produced during the trial. The purchasing price was agreed to be in the sum of $1 400 000,00 which amount was paid in full to George Kahari. Prior to the conclusion of the sale, the plaintiff personally viewed the property and satisfied himself that indeed it met with his expectations. At the time the plaintiff viewed the property, it was occupied by tenants who confirmed that indeed they were tenants of the seller George Kahari. The property was registered in the name of George Kahari. Plaintiff proceeded to the offices of the Bulawayo City Council in the HB 73/04 company of George Kahari to have his i.e. plaintiff’s name registered against the property. The records at the Council offices did not indicate that there was a third party claim in the property. There was no caveat. The plaintiff and George Kahari proceeded to change names. The property is now registered in the plaintiff’s name. When the plaintiff intended to move into the property he encountered problems with the defendant who advised him that she had an interest in the property. The defendant has been resisting to vacate the property as from November 2002. The basis of her case is that she purchased the same property from George Kahari on 15 August 2002. She produced a written agreement in support of this. This seems beyond dispute. The key issue is whether or not the plaintiff was aware of this earlier between George Kahari and the defendant when he entered into his agreement with George Kahari for the same property on 22 August 2002. Plaintiff’s case (a) Plaintiff He testified that he was unaware of the defendant’s interest in the property at the time he entered into the above-mentioned agreement with George Kahari. There was nothing that would have alerted him of the existence of such an interest. He never suspected that George Kahari has entered into an agreement of sale with someone else at the time. In short, he wants the court to believe that he was a bona fide purchaser in this double sale situation. He could not have suspected any prior sale agreement as the sale was conducted by an Estate Agent after he had responded to a newspaper advertisement placed by the latter. He did not negotiate directly with the seller but with the latter’s agent. He only met George Kahari at the time the agreement was signed at the Estate Agent’s offices. I am satisfied that the plaintiff HB 73/04 gave credible testimony and I have no reason to doubt his version. He was cross examined at some length and his story is consistent with probabilities. I am satisfied that at the time of his agreement of sale he was unaware of one between George Kahari and the defendant. Even the defendant conceded that she had no evidence that the plaintiff was aware. She merely suspected. (b) Christopher Mangisi He is the Estate Agent who acted on behalf of George Kahari in the sale agreement between the plaintiff and the latter. At the time of the signing of the agreement between plaintiff and George Kahari his Estate Agency was unaware of the defendant’s interest in the property. I find him to be a credible witness. Defendant’s case (a) George Kahari He was very hostile towards the defendant. This is understandable as he was serving a prison term for the double sale subject matter of these proceedings. It was the defendant who referred the matter to the police resulting in the prosecution. He said he sold the property to plaintiff and refunded the defendant her $360 000,00 from the proceeds of the sale to plaintiff. He also confirmed that the plaintiff was not aware of the earlier transaction between him and the defendant. The witness was extremely bitter and at times refused to answer questions. Bearing in mind his confessed dishonesty and animosity towards the defendant it is unsafe to rely on most parts of his evidence. In any event, I do not see the wisdom of calling him on the part of the defendant. He did not support the defendant’s case on the crucial issue of whether or not the plaintiff was aware of the defendant’s interest in the disputed property at the material time he entered into the agreement with Kahari. HB 73/04 (a) Defendant She testified and gave graphic details of her dealings with George Kahari in respect of the disputed property. I do not doubt that she is truthful in this regard. I have no doubt that her dealings with George Kahari were bona fide. Although she said a lot of things she did not say that she was aware as a fact that the plaintiff knew of her interest in the property at the time the latter purchased it. She only suspected. She gave several incoherent facts in support of the basis of her suspicion. With respect, there is no credible evidence on which one can say the plaintiff knew of her interest at the material time. It is clear to me that this is a case of double sale where both purchasers were duped by the seller. In law, how should one resolve the matter as far as the innocent purchaser is concerned? This indeed is one of those unfortunate cases of a double sale of immovable property. Such cases are disturbingly on the increase especially in the sale of rights and interest in the so-called township properties. In casu, there is no doubt that the defendant is the first purchaser and the plaintiff the second. Credible evidence show that the second purchaser, the plaintiff, only became aware of the first purchaser’s interest after the agreement of sale was concluded and after plaintiff took transfer. The doctrine of notice applies to facts of this case. This doctrine requires nothing more than notice or knowledge of the prior claim. It is not necessary to prove mala fides or fraud – Madan v Macedo Heirs & Anor 1991 (1) ZLR 295 (SC); Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Backereien (Pty) Ltd & Ors 1982 (3) SA 893 (A) and Crundall Brothers (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 125 (SC) at 133C-D. HB 73/04 The full bench of the Supreme Court in the Crundall Brothers case supra, stated at 131D-F- “The real issue is whether, in a case of double sale where the second purchaser takes transfer with notice of the first purchaser’s rights, the court must order specific performance in favour of the first purchaser or whether it has a discretion, or whether it is limited to an award of damages. The two extreme cases are clear enough. When the second purchaser is entirely ignorant of the claims of the first purchaser, and takes transfer in good faith and for value, his real right cannot be disturbed. Per contra, when the second purchaser knowingly and with intent to defraud the purchaser takes transfer, his real right can and normally will be overturned subject to considerations of practicality.” (emphasis added) As alluded to the second purchaser, the plaintiff was entirely ignorant of the first purchaser’s (the defendant’s) claim to the property and took transfer in good faith and for value. In fact plaintiff paid far more than the defendant. In the circumstances, the plaintiff has established his case on a balance of probability. Accordingly, I order that: 1. The defendant be and is hereby evicted from house number 58 Emakhandeni, Bulawayo within 30 days of the service of this order on her. 2. The defendant be and is hereby ordered to pay the plaintiff $10 000,00 per month from 1 November 2002 to date of eviction. 3. The defendant be and is hereby ordered to pay costs of suit. Paradza, Dube & Associates, plaintiff’s legal practitioners Joel Pincus, Konson & Wolhuter , defendant’s legal practitioners