Court name
Supreme Court of Zimbabwe
Case number
SC 11 of 2007
Civil Appeal 187 of 2005

Chikoore v Bere and Others (87/05) (SC 11 of 2007, Civil Appeal 187 of 2005) [2007] ZWSC 11 (27 May 2007);

Law report citations
Media neutral citation
[2007] ZWSC 11











Judgment
No. SC 11/07


Civil
Appeal No. 187/05








TENDAYI CHIKOORE
v (1) MARTHA BERE (2) CHIPO PATRICIA
GARWE (3) THE REGISTRAR
OF DEEDS (4)
MESSRS WARARA & ASSOCIATES








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ, ZIYAMBI
JA & MALABA JA


HARARE, MARCH 20 &
MAY 28, 2007








J Dondo, for the
appellant





G C Chikumbirike,
for the first & second respondents





No appearance for the
third respondent





No appearance for the
fourth respondent








ZIYAMBI JA: On 23 February 2005
the High Court confirmed a provisional order granted in favour of the
first and second respondents
on 18 December 2001 in the following
terms:







“TERMS OF ORDER MADE





That you show cause to
this Honourable Court why a final order should not be made in the
following terms:






  1. That
    the first respondent be and is hereby interdicted from selling the
    property known as 3985, WINDSOR PARK, RUWA in the District
    of
    Goromonzi to any other person other than the applicant.








  1. That
    the third respondent proceed to lodge the transfer papers with the
    fourth respondent and get the property known as 3985 WINDSOR
    PARK,
    RUWA, to be registered in the name of the applicants’ against
    payments of the balance of the purchase price.











  1. That
    the first respondent pay to Messrs Warara & Associates the
    amount due to the City of Harare to enable a rate clearance
    certificate to be obtained within seven days of date of this order.








  1. That
    the first respondent pay costs of suit.











INTERIM RELIEF ALLOWED/MADE






That pending the
determination of this matter, applicant is granted.





The first respondent is
ordered to release the Title Deeds to the property in question to
second respondent who shall hold them until
the court has given a
final order on this matter.






  1. That
    the first respondent be and is hereby interdicted from selling or
    transferring the property described in paragraph (a) of the
    final
    order above before a final decision is made on paragraph (a); (b)
    and (c) above.








  1. That
    the fourth respondent be and is hereby ordered/interdicted from
    registering the transfer of the property described in paragraph
    (a)
    above.”










The appellant now appeals to this
Court against that order. The main ground of appeal was that the
learned Judge misdirected himself
in finding there were no material
disputes of fact and that the conflicting evidence on the papers
could be determined without calling
evidence.







It is necessary to set out the background facts which are as follows
-




In September 2001, the appellant
and the first respondent concluded an agreement of sale in respect of
certain property known as 3985,
WINDSOR PARK, RUWA (“the
property”). In terms of that agreement the purchase price was ZW$2
600 000 and the first respondent
who is a non-resident of Zimbabwe
was to pay to the appellant by way of a deposit of ZW$1 000 000,00, a
further deposit of 3 000
British pounds upon signature of the
agreement, and the balance of 3 000 pounds to be paid in terms of
an acknowledgement of
debt which was to be drawn up and signed by the
purchaser/respondent. That agreement was reduced to writing and,
although it was
not signed by the parties, it appears that both
parties agree that the agreement embodied in that written document
was a valid agreement.
This agreement was to be signed at the
offices of Messrs Warara & Partners who had reduced it to
writing. Clause 9 of that
agreement provided that any alteration
thereto would be invalid unless reduced to writing and signed by both
parties.







On 12 September 2001, the parties presented themselves at the offices
of Messrs Warara & Partners and certain variations to that
agreement were suggested which related to the purchase price and the
manner of payment thereof. In particular, the purchase price
of ZW$2
600 000 was now to be paid by a deposit of ZW$500 000 as well as a
payment of 3 000 British pounds. The balance of the purchase
price,
now stated as 2 250 British pounds, was to be paid in “two equal
instalments of 1 200 pounds and 1 050 pounds by no later
than 31
October 2001”. On an ordinary reading of the proposed amendment it
would appear that the pound value of the purchase price
had increased
to 6 450 pounds. However the parties appear to agree that, instead,
the pound value had decreased to 5 250 pounds
and that the balance
after payment of the deposit was 2 250 which was to be paid in two
instalments of 1 200 and 1 050 pounds respectively,
by 31 October
2001. It was agreed that these variations to the agreement would be
put in writing and that the parties would attend
at Messrs Warara &
Partners on the following day for signature of the agreement so
varied. The parties attended as agreed but
the appellant developed
“cold feet” and refused to sign the variation.







The first and second respondents contended that notwithstanding the
appellant’s refusal to sign the amended agreement, that agreement
was valid and enforceable as the reduction to writing was meant
merely as proof of what the parties had agreed to the day before.

Accordingly, they took the view that the appellant was contractually
bound to perform his part of the agreement and to tender transfer
on
receipt of payment of the balance of the purchase price.







The appellant on the other hand averred that it was agreed by the
parties that the agreement would only become binding after signature
by both parties.




The
learned Judge took the view that since the essential elements of the
agreement of sale were agreed by the parties the written
agreement
was meant to be as a memorial only of the oral variation made by the
parties. I proceed to examine the ground of appeal
in the light of
the background set out above.







In his opposing affidavit the appellant raised the following disputes
of fact. Firstly, he averred that it was agreed that the variation
of the (written) agreement would only come into effect upon signature
thereof.







A close look at the terms of the written agreement reached by the
parties appears to support the appellant. Clause 9 thereof requires
any variation thereof to be in writing and signed by the parties.
Thus the written variation would have to be signed by the appellant
before it could be clothed with validity. This would tend to support
the appellant’s stance that the agreement had to be signed
by the
parties before it could come into effect. Since the appellant did
not sign the varied document the variation did not come
into effect.
It was null and void. In the result, there was no variation of the
agreement.







The appellant averred further that shortly after his refusal to sign
the agreement, he spoke to the first respondent on the telephone
and
she also said she no longer wished to pursue the agreement. This
allegation was not denied by the first respondent who filed
no
answering affidavit. Accordingly, in the face of this uncontroverted
evidence it was imprudent for the Court to take a robust
view which
ignored this evidence which clearly meant that the agreement was
cancelled by mutual agreement.







The appellant also took the point on appeal that it was improper for
counsel for the first respondent who is the deponent to the
founding
affidavit, to appear to argue the case on the respondent’s behalf.





Whilst it is common for
legal practitioners to swear affidavits on behalf of their clients,
it is novel procedure for the legal practitioner
who is the deponent
of the founding affidavit to appear and argue his client’s case.
Mr Chikumbirike concedes that the facts averred in the
founding affidavit were not of his personal knowledge but were
received by him by way of instructions
from his client. This may or
may not be the reason why no answering affidavit was filed to rebut
the averments made in the opposing
affidavit which clearly called for
a reply.




Other
issues were raised in the grounds of appeal, for example the issue
of the legality or otherwise of the transaction vis-a-vis the
Exchange Control Act and Regulations; and that it was not clear from
the document what were the terms of the agreement.





The questions raised
remain unanswered or unsatisfactorily determined.










In the result, therefore, I am of the view that the disputes of fact
are such that they could not have been resolved on the papers
before
the court a quo.







Accordingly it is ordered as follows -







  1. The appeal is
    allowed with costs;







  1. The matter is
    referred to the High Court for trial;







         (3)   The
founding affidavit shall stand as summons and the
opposing
affidavit as an                  appearance
to defend and;




  1. The pleadings shall proceed thereafter in terms of  the
    High Court Rules and the date of filing of the declaration
    in terms
    of Rule 112 shall be calculated from the date of this judgment.














CHIDYAUSIKU CJ: I
agree.














MALABA JA: I
agree.














Chinamasa, Mudimu &
Chinogwenya
, appellant’s legal practitioners







Chikumbirike & Associates, first & second respondent’s
legal practitioners