KENNEDY TAKURA MUJOKORO
HIGH COURT OF ZIMBABWE
HARARE, 21 September & 16 November 2022
Civil Trial - Stated Case
T Mujaji and Ms S Mukwekwezeke, for the Plaintiff
Mr S K Chivizhe, for the Defendant
BACHI MZAWAZI J: The parties were once in a love relationship. Two residential stands, 734 and 735, Hatfield Township, of Lot 74A of Block C of Hatfield Estate were jointly purchased and registered in both their names during the tenure of their affair. Somehow, along the way their relationship lost steam and they parted ways. By mutual agreement, the plaintiff relinquished his rights in property stand 735 by deregistering his title, leaving the defendant as the sole registered owner. The same did not apply to property stand number 734, where the plaintiff held on to his co-ownership and proceeded to process the subdivision of the same so as to have a clean break. The defendant who is resident in the United Kingdom, has since refused to sign the subdivision permit claiming she contributed more to the property therefore she must get a higher share of the property or its proceeds.
In light of that stalemate, the plaintiff initiated this action by issuing summons under case number, HC9163/16, on 9 September 2016. He prayed for an order compelling the defendant to sign documents pertinent to the registration of the subdivision of the stand in dispute, the payment of her half share of the valuation and subdivision costs as well as, costs at a higher scale. The defendant opposed the application by filing her notice of appearance to defend and plea on 8 October 2019. This was followed by the plaintiff’s replication filed on 8March 2021. At a pre-trial conference conducted on the 28th of January, 2020, through an internet face to face video interaction, Zoom, the parties agreed to proceed by way of a stated case. The subsequent statement of agreed facts filed of record on 25 August, 2022, encompassed the plaintiff’s claim in the summons commencing action, the agreed facts and the points of law falling for determination.
The agreed facts so captioned are as follows:
- The parties agreed to purchase immovable property namely stand 734, Hatfield Township, of Lot 74A of Block C of Hatfield Estate jointly.
- During the negotiations of the purchase of the said immovable property a romantic relationship developed.
- The parties, both financially contributed to the purchase of the property which was subsequently registered in their names.
- Their love affair came to end.
- They both seek the protection of their individual rights in the property.
The following are the issues that the parties lined out points of law for the court’s determination;
- Whether or not there is a tacit universal partnership, where property is jointly owned?
- If there is no Universal partnership, what are the rights and interests of the parties?
- Can the plaintiff be entitled to a subdivision where there is a universal partnership?
Another term of the statement of agreed facts is that the parties were to file heads of argument in support of their respective positions.
Upon perusal of the papers, I could not help to notice that the defendant’s heads of argument raised disputes of facts. She claimed that the plaintiff only contributed ten percent of the purchase price of the stand in question, whilst she contributed ninety percent. She also alleged, that the process of subdivision of the stand was done fraudulently without her consent and signature. I summoned the parties so that the matter be referred to trial for the purposes of leading evidence as to the respective contributions of the parties. At the set down date, the parties insisted that the court proceeds with the matter as a stated case as per their statement of agreed facts as dictated by r 52 of the 2021 High Court rules.
As it where if strict adherence is to be applied to the adversarial system. The court is an inactive participant whilst the parties to a civil suit are dominus litus. In that regard, I will proceed to determine the point of law and rights of the parties in terms of the agreed statement of facts.
gowora JA (as she then was) in Leathout Investments (Private)Limited v Muvirimi & Anor SC60/22, explicitly, exquisitely and elaborately sets out what a stated case also referred to as a special case is and what it entails. I need not explain any further. Rule 52, of the 2021 High Court rules, is the governing rule in such cases. It allows parties to a civil suit by consensus to agree upon a written statement of facts or the question of law arising therein in the form of a special case for the adjudication or opinion of the court after the summons have been issued. This rule also prescribes the format and the roles of the parties in such instances. Its nobility is that it curtails civil actions by narrowing down the issues for determination thereby saving time and costs.
That being the case, the main point of law as agreed to by the parties is that of Tacit Universal Partnership. Stemming from it is the issue of an equilibrium distribution of jointly owned property.
As such the issues are;
1. Whether or not there was in existence, between the parties, a Tacit Universal Partnership?
2. Whether or not the plaintiff has made a case for the relief sought?
On the first issue it is best to firstly determine the concept of or what a Tacit Universal Partnership is. A tacit universal partnership is a recognised Common Law principle with Roman law origins. It is a recognition that unmarried people can pool their resources together, acquire properties jointly or individually, within the umbrella of their relationship and ought to share equitably when the grapes turn sour and they part ways without any party having to lose out. See, Chapendama v Chapendama 1998(1) ZLR, Aliner v Werner 2 All SA49/2020
In Mbaraidzo v Jose HH 40-18, it was noted that such a partnership may be concluded, expressly or tacitly, between a man and a woman who are not legally married, but who live together as husband and wife. Tacitly simply means that is impliedly, by action or conduct, through unspoken word. See, Christie: Law of Contract in South Africa, 8th edition ISBN lexis Nexis 2016.
As such, at the dissolution of a cohabitation relationship, for such a union to fall within the ambit of a tacit universal partnership for the purpose of property sharing or proprietary rights there are stipulated requirements that have to be satisfied. In the South African case of Fereira, Rui Emmanuel Gomes v Griffith , Diane Jill SA 34755/2021 , Mtuda v Ndudzo 2000(1)ZLR710 (H), and in Aliner v Weiner, above, it was noted that;
The party seeking to invoke this private law remedy must prove that:
- Each of the parties brought something into the partnership, whether money or labour skills
- The business has been carried out for the joint benefit of both parties
- The object was to make a profit
- The partnership contract was legitimate
The same essential ingredients were outlined in the case of Isaacs v Isaacs 1949 (1) 952 (C), Butters v Mncora 2012 (4) SA 1 (SCA).
In applying the law to the present set of facts, though the parties pooled their resources envisaging a lifetime together and purchased the immovable property in question their relationship, in my considered view falls short of a tacit universal partnership.
There is nothing that has been placed on record indicating that this immovable property was not a residential property but a business property bought with the object of making profit. As such, I am not swayed by the defendant’s submission that there was a tacit universal partnership. Her argument that the property be shared under this tenet falls away. The legitimacy of the contract is neither here nor there as it is not disputed that the parties where in a love relationship wherein they agreed to purchase properties together.
Rule 52 (6) of the 2021 rules, gives the court the liberty to draw from the facts and documents stated in any special case any inference, whether of fact or law which might have been drawn therefrom if proved through trial. In that regard, the only reasonable inference which can be drawn from the above set of facts viz a viz the exposition of the applicable law, is that there was no tacit universal partnership. I am there enjoined to make a factual finding that there is no universal partnership.
The second question to be considered is that of the distribution of the property in contention. On that note, reference is made once again to the statement of agreed facts. It is common cause that the property has an extant title Deed in both the party’s names. Hence, it is jointly owned property entitling each party half a share of the same by virtue of the registration of their names with the Deeds Registry. In this jurisdiction ownership of immovable property is evidenced by the title deed. It accords the title holder real rights excisable and defendable against the whole world. This has been expressed in a litany of authorities, amongst them, the oft quoted, Fryes, (Pty) Ltd v Ries, 1957(3) SA 575, Madzara v Stanbic Bank and & 4 Others HH546/15. Chapeyama v Chapeyama SC71/2000. Takafuma v Takafuma, 1994 (2) ZLR 103(S) at 105H- Manjala v Maphosa SC18/16. In Silberberg and Schoeman- ‘Law of Property,’ p 32, 4th edition, it was highlighted that:
“...in other words, a real right is enforceable against the world at large, that is against any person who seeks to deal with the thing to which a real right relates in any manner which is inconsistent with the exercise of the holders right to control or use (in so far as a person may have a real right in another person’s property, a real right is also enforceable against the owner of that property.”
In this case, it is evident that both parties have equal rights to the property as joint owners. Common logic dictates that, each one deserves a fifty percent share of the property. The defendant introduced facts extraneous from those agreed to by the parties claiming, she did not consent to the partitioning of the property and the subsequent application for a subdivision permit. By so doing she alleges that the applicant acted ultra vires section 40 of the Regional Town and Country planning Act [Chapter 29:12] and s 29 of the Deeds Registries act [Chapter 20:05]. These facts or points of law are not part of the agreed facts. Therefore, this is not the platform to address the same. The registration of the property in both names is sufficient proof at this juncture of equal rights in the property irrespective of who contributed less or more.
gwaunza DCJ in Ishemunyoro v Ishemunyoro and Ors, SC14/19, prounounced that,
“The contention by the appellant that she solely purchased the property does not alter the legal effect of its registration in the parties’ joint names. In other words, does not legally undermine the second respondent’s ownership”
In the Leathout case above, it was enunciated that,
“Once the facts are agreed, the court should proceed to determine the particular question of law that arises and not delve into the correctness or otherwise of the facts. It is bound to take those facts as correctly representing the agreed position and to thereafter determine any issues of law that may arise therefrom. It is not open to the parties to the stated case to seek to re-open the agreed factual position or to contradict such position. Nor can either party seek to ignore existing legal principle or findings of fact made in connection with the same matter by another court.”
Guided by Leathout investments (Pty) Ltd, dictum, above, I am not swayed to take in the submissions outside the agreed facts. A reasonable inference that can be drawn from the totality of facts is that the applicant has demonstrated that he is entitled to the relief sought. His explanation is more probable. It has been confirmed that of the two properties purchased by the parties, all registered in their names the applicant willingly let go of his title and interests in the other. For him to cling on to this one is clear evidence that he did contribute considerably towards the same. It is my finding that each part is entitled to his or her own half of the property in question in tandem with their vested registered rights.
I find no justification warranting the defendant to pay costs at a higher scale.
In the result the applicant’s claim succeeds.
IT IS ORDERED THAT:
- The defendant is ordered to sign all relevant papers necessary for the registration of the subdivision of Stand 734, Hatfield Township of Lot 74 A of Block C, of Hatfield Estate with the Registrar of Deeds, failing which the Sheriff of the High Court of Zimbabwe be and is hereby directed to sign all relevant papers on her behalf.
- That defendant pays her half share in the sum of US715,00 being 50/% of the valuation costs
- That defendant contributes towards the payment of 50/%of all cost related to the subdivision of Stand 734, Hatfield Township of Lot 74 A of Block C of Hatfield Estate
- Each party to pay its own costs.
Chimwamurombe Legal Practitioners, plaintiff’s legal practitioners
AB & David, defendant’s legal practitioners