Court name
Supreme Court of Zimbabwe
Case number
SC 28 of 2008
Civil Appeal 303 of 2006

Makusha v Chihoho and Others (Civil Appeal No. 303/06 ) (SC 28 of 2008, Civil Appeal 303 of 2006) [2008] ZWSC 28 (22 October 2008);

Law report citations
Media neutral citation
[2008] ZWSC 28













REPORTABLE (18)


Judgment
No. SC 28/08


Civil
Appeal No. 303/06








AMBRITON
MAKUSHA v





(1)
ROSE CHIHOHO (2) ESTHER CHIHOHO


(3)
LESLIE GURAJENAH (4) REGISTRAR OF DEEDS N.O.








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
SANDURA JA & ZIYAMBI JA


HARARE, SEPTEMBER 2 &
OCTOBER 23, 2008








Ms P Kadembo,
for the appellant





No appearance for the
first respondent





M Kamudefewere,
for the second respondent





No appearance for the
third respondent





No appearance for the
fourth respondent






CHIDYAUSIKU CJ:







This is an appeal against the judgment of KAMOCHA J. In the
court a quo the appellant applied for an order to
set aside an Agreement of Sale entered into by and between the second
respondent, Esther
Chihoho (hereinafter referred to as “Esther”),
and the third respondent, Leslie Gurajenah (hereinafter referred to
as “Mr Gurajenah”), on the ground that the Agreement
of Sale was null and void by reason of the appellant (hereinafter

referred to as “Mr Makusha”) being the lawful owner
of the stand. Mr Makusha also sought an order directing
Esther
to transfer the stand in dispute to him.







Esther opposed the application. In support of her opposition she
filed an affidavit from Boniface Chihoho (hereinafter
referred
to as “Boniface”). Boniface is Esther’s natural
father. He had a general power of attorney from Esther.
The first
respondent, Rose Chihoho (hereinafter referred to as “Rose”),
is the mother of Esther. Boniface
and Rose were once husband and
wife but have since divorced. Esther is the daughter of Boniface
and Rose, born during the subsistence
of their marriage. The fourth
respondent is the Registrar of Deeds and is cited in his official
capacity.







The facts of this case are briefly these –







Boniface and Rose jointly purchased stand no. 1631/11 Bluffhill
Township, situate in the District of Salisbury (as it then
was)
(hereinafter referred to as “the stand”), from Trevor
Harry Hockley (hereinafter referred to as “Mr Hockley”).

In terms of the Deed of Sale signed by the parties on 26 May
1999 transfer of the stand to Boniface and Rose would only
take place
upon payment of the purchase price in full. It was also a condition
of the Deed of Sale that the purchasers would
apply for a mortgage to
pay the purchase price of the stand within six months of signing the
Agreement of Sale. The Deed of Sale
agreement prohibited the
purchasers from selling, ceding, assigning or transferring all or any
of the rights in the stand without
the written consent of the seller.







On 25 July 2000 Mr Makusha and Rose entered into an
Agreement of Sale, in terms of which agreement Rose sold to
Mr Makusha
the stand for the sum of $225 000. $100 000
of the purchase price was payable as a deposit upon the signing of
the
Agreement of Sale. In terms of the special conditions in the
Agreement of Sale “the balance of the sum of $125 000
will
be paid over a thirteen month period at a monthly instalment of
$10 000, commencing on 1 September 2000 without
interest
charged”. According to my calculation, the last instalment
was payable by 1 October 2001.







On 15 October 2002 Boniface and Rose jointly sold the stand to
Esther, their daughter, for the amount of $585 000.
The
Agreement of Sale is signed by all the parties, Boniface, Rose and
Esther. Mr Makusha disputes the authenticity and
bona fides
of this Agreement of Sale. According to Boniface, the money
received from Esther as the purchase price was used by Boniface and

Rose to pay the outstanding balance of the purchase price in terms of
the Deed of Sale agreement between them and Mr Hockley.

According to Boniface, upon the payment of the purchase price in full
to Mr Hockley in terms of the Deed of Sale, Boniface
and Rose
instructed Mr Hockley to transfer the stand to Esther. This
was duly done on 10 October 2003 under Deed of
Transfer No.
491/03. The stand is presently registered in the name of Esther.







On 15 July 2005 Esther sold the stand to Mr Gurajenah for
the amount of $80 million. She initiated the process
of
transferring the stand to Mr Gurajenah, but was interdicted from
transferring the stand to Mr Gurajenah when Mr Makusha

launched these proceedings.







Mr Makusha contends that this was a case of multiple sales of
the same stand to multiple purchasers and that he is entitled
to have
the stand transferred to him because his Agreement of Sale with Rose
preceded the other Agreements of Sale of the stand.







As I have said, Esther opposed the application. She opposed the
application on the grounds - (a) that Mr Makusha’s
claim
had prescribed, his cause of action having arisen in 2001; and (b)
that the Agreement of Sale between Rose and Mr Makusha
was
invalid because it was entered into by one co-owner, as opposed to
both co-owners, of the stand. Put differently, Rose had
no
authority, being only the co-owner of the stand, to sell the stand
without the consent or authority of the other co-owner, Boniface.







The learned judge in the court a quo concluded that
Mr Makusha’s claim had indeed prescribed and dismissed the
application on that basis.







Dissatisfied with the judgment of the court a quo
Mr Makusha appealed to this Court on the grounds set out in the
notice of appeal, which read as follows:






“1. The learned judge in the court a quo erred by
holding that the matter is prescribed. The learned judge decided
the matter on the point in limine in isolation and failed
to give due consideration to the fact the fraud that was committed by
the second respondent and her father
Boniface Chihoho on the
appellant led to the delay in the transfer.







2. The learned judge in the court a quo erred by holding
that since the purchase price had been paid in full in 2001 the
period of prescription started to run from that
time. It is worth
noting that as per the seller’s agent’s request the
applicant paid the sum of five hundred thousand
dollars ($500 000,00)
to ensure transfer in March 2005. Consequently prescription was
supposed to run from March 2005.







3. The learned judge in the court a quo clearly
misdirected himself, thus his analysis of the matter can be
successfully challenged.”







The first ground of appeal was abandoned and the third ground of
appeal is meaningless.







Accordingly, the issue raised in the second ground of the notice of
appeal is the only issue that falls for determination by
this Court,
namely whether the court a quo was correct in concluding
that Mr Makusha’s cause of action had prescribed.







I respectfully agree with the conclusion of the learned Judge in the
court a quo.







Section 16 of the Prescription Act [Cap. 8:11]
provides as follows:






16 When prescription begins to run







(1) Subject to subsections (2) and (3), prescription shall commence
to run as soon as a debt is due.







(2) If a debtor wilfully prevents his creditor from becoming aware
of the existence of a debt, prescription shall not commence
to run
until the creditor becomes aware of the existence of the debt.







(3) A debt shall not be deemed to be due until the creditor becomes
aware of the identity of the debtor and of the facts from
which the
debt arises;







Provided that a creditor shall be deemed to have become aware of
such identity and of such facts if he could have acquired knowledge

thereof by exercising reasonable care.”







Section 16 makes it abundantly clear that prescription begins
to run as soon as the debt is due. In terms of the Agreement
of
Sale relied on by Mr Makusha, assuming that the Agreement of
Sale is valid, the debt or Mr Makusha’s entitlement
to
transfer accrued in or about October 2001 when Mr Makusha was
entitled to tender payment and claim transfer. In my view,

Mr Makusha’s failure to pay the balance of the purchase
price by the agreed date does not postpone the date the cause
of
action arose. Thus, in my view, Mr Makusha’s contingent
debt or entitlement to transfer accrued in or about October
2001.
That is when prescription commenced to run.







I find untenable the contention by Mr Makusha that
prescription only commenced to run when he learned in 2005 that the
stand was about to be transferred by Esther to Mr Gurajenah.
As I understand Mr Makusha’s contention, the cause
of
action arose when he discovered the alleged fraudulent sales of the
stand to Esther and Mr Gurajenah.







It is quite clear on the papers that Mr Makusha’s cause
of action is contractual, alleging a breach of the Agreement
of Sale
as opposed to the cause of action being delictual, based on fraud.
Mr Makusha must have known from the Agreement
of Sale he signed
that he was entitled to the transfer of the stand upon the payment of
the balance of the purchase price and he
had thirteen months within
which to make the payment.




Apart from this, the validity of the Agreement of Sale between Rose
and Mr Makusha is open to serious doubt for a number
of reasons,
among them (a) the agreement between Rose and Mr Makusha was
signed by Rose alone as the owner of the stand when
in fact she was
only a joint owner of the stand; and (b) the rights in the stand
could not be alienated without the written consent
of the owner of
the stand in terms of the Deed of Sale between Rose and Boniface on
the one hand and Mr Hockley on the other.
Such consent is not
alleged to have been obtained prior to the signing of the agreement
between Mr Makusha and Rose. However,
those issues would have
been relevant if this Court was seized with the merits of this case.




In the result, I am satisfied that prescription against
Mr Makusha’s cause of action commenced running in
October/November
2001. Three years elapsed long before Mr Makusha
launched his application.







Accordingly, the appeal cannot succeed and is hereby dismissed with
costs.






SANDURA JA: I agree






ZIYAMBI JA: I agree





Gutu &
Chikowero
, appellant's legal practitioners





Musunga
& Associates
, second respondent's legal practitioners