SC 04-15 - CHIOZA v SIZIBA

AGSON     MAFUTA     CHIOZA

v

SMOKING     WILLIAMS     SIZIBA

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, GARWE JA, & OMERJEE AJA

HARARE, NOVEMBER 13, 2012 & FEBRUARY 23, 2015

J B Wood, for the appellant

B Chikowero, for the respondent

ZIYAMBI JA: [1] During the week ending 29 December 2006, the Herald newspaper carried an advertisement inserted by Murenga Estate agents (“Murenga”) wherein stand No. 1759 of 323 Midlands, Waterfalls, was being advertised for sale at a purchase price of twenty five million dollars.  The respondent was interested in the property and visited Murenga’s offices where he spoke to a Mrs Madziva, a sales agent thereat. He was  referred  to Stand 323 Thorn Road and, having viewed the property, returned to Murenga and expressed his desire to purchase the property at the asking price of $25 000 000.00.  He was given Murenga’s bank account number wherein he could transfer the purchase price.  Later that week, having effected the transfer as directed, he met with the appellant at Murenga’s offices where they were to sign the agreement of sale.

[2] According to the respondent, the appellant pleaded with Mrs Kasenza who drafted the agreement of sale to reflect the purchase price as $8 000 000 instead of the actual price of $25 000 000.00 that he had paid.  Mrs Kasenza was reluctant to understate the purchase price but following consultations with her superior, Mr Murenga, and more pleading from the appellant, who claimed to be heavily indebted with medical bills and the like, the respondent, after an initial objection to this proposal since he had already paid $25 000 000.00, and it was generally known that properties in the area were fetching prices in excess of $8 000 000.00, finally agreed to the appellant’s suggestion that the agreement be back-dated to September 8, 2006 and the purchase price be understated. The appellant, however, states that it was the respondent who requested the understatement of the price in order to evade stamp duties on transfer.

[3] Following these events and on 29 December 2006, the appellant, as seller, and the respondent, as purchaser, concluded an agreement for the sale of:

“certain piece of land situate in the District of Salisbury being subdivision of 323 Midlands Township 2 of Upper Waterfalls Estate called Stand No. 1759 measuring 2 167 square metres.  A residential stand with staff quarters partly walled measuring 2 167 square meters.”

[4] In terms of the agreement, the purchase price was $8 000 000 (eight million dollars) which was to be deposited with Murenga and held by them pending transfer.  Clause  2 of the General Conditions provided that the Seller was to tender transfer of the property within a reasonable period of the date of acceptance of this offer and the Purchaser was to provide the Seller’s Conveyancers with the requirements  specified in Clause 2 within fourteen days of the date of  such tender of transfer.  The Conveyancers were to be Messrs Gutu & Chikowero.  Vacant possession was to be given to the purchaser by mutual agreement.

[5] It is common cause that the agreement, notwithstanding the actual date of its conclusion and signature (29 December 2006), was dated 8 September 2006.

2015

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