MAKONI J: On 8 May 2006 the first respondent (“Marko”) being assisted by
the third respondent (“Richard”) through a power of attorney, approached this
court on an urgent basis. He was seeking spoliatory relief against the
applicant (“Tawanda”). The Provisional Order was granted by consent. The matter
was not set down for confirmation or discharge.
On 1 August 2006 Tawanda filed the
present application before this court seeking an order that he be declared the
lawful registered owner of stand number 134 Chadcombe Township 2 (“the
property), eviction of the respondents and costs of suit. Marko counter-claimed
for the transfer of the property to Tawanda to be declared null and void and of
no force or effect, and that the third respondent (“Bernwin”) effects transfer
to him of the property and costs of suit.
The background to the matter is that
on 4 April 2002, Marko entered into an agreement of sale with Bernwin, whereby
Marko purchased the property in issue for five million dollars ($5 000 000-00).
It was a term of the agreement that Marko would pay a deposit of one million
two hundred thousand dollars ($1 200 000-00) upon signature of the agreement
“or such longer period not exceeding seven days as the developer may consent”.
The balance was to be paid in instalments of $100 000-00 per month for a period
of 38 months starting on 1 April 2009.
On 8 August 2003 Bernwin left a
cheque in a letter box, payable to Marko in the sum two million eight hundred
thousand dollars of ($2 800 000-00). It was not accompanied by
any explanation. Richard took the cheque to their legal practitioners on 22
August 2003. The legal practitioners wrote to Bernwin asking for an
explanation. Bernwin responded by letter dated 2 September 2003 advising that
the agreement of sale between their client and them was duly cancelled on 4
August 2003 after this client had been given due notice on 15 July 2003. It was
cancelled as the client had breached the terms of the agreement.
Sometime in 2003, Tawanda entered
into an agreement of sale with Bernwin whereby he purchased the property.
Sometime in 2005 he had the property transferred to him under Deed of Transfer
No. 00 5415/05. He took occupation in 2006 triggering the urgent application
for spoliatory relief.
As these events were unfolding and
on 10 November 2003, Marko instructed his legal practitioners to write a letter
notifying would be buyers that the property was not available for sale. The
letter was given to Mr Mois the gardener who was in occupation of the property.
He was instructed to show it to would be buyers.
At the initial hearing of this
matter, it was observed that the provisional order had not been confirmed or
discharged. In the final order, Marko sought that Tawanda restores possession
and occupation of the property to him permanently. The parties agreed that that
matter be consolidated to the present matter. The order for consolidation was
granted. Tawanda did not file any opposing papers. He only filed heads of
argument. I will take it that he is not opposed to the granting of the final
order.
The basis for Tawanda approaching
this court is that he is the registered owner of the property. He has real
rights in the property. He also claims that he is an innocent purchaser.
Marko opposes the matter on the
basis that the agreement of sale between him and Bernwin was not validly
cancelled. Bernwin did not file any papers in the main application. It filed a
notice of opposition to the counter claim whereby it averred that the agreement
of sale between itself and Marko was cancelled. It gave the requisite notice
and refunded Marko the amount he had paid towards the purchase price. Marko has
no basis for attaching Tawanda's title.
My approach would be to first
inquire into whether the agreement of sale between Marko and Bernwin was
validly cancelled. If it was that would be the end of the road for Marko. If it
was not, then I will have a double sale situation.
It is not in dispute that the agreement
of sale between Marko and Bernwin was an instalment agreement. An instalment
agreement is defined in the Contractual Penalties Act Cap 5:04 as:
“a contract for the sale of land
whereby payment is required to be made –
(a)
in
three or more instalments; or
(b)
by
way of a deposit and two or more instalments”.
It is common cause that payment in
this matter was to be made in more than 38 instalments.
Before terminating a sale by
instalment, a seller is obliged to comply with the provisions of ss 1 and 2 of
s 8 of the Act. Section 8 (1) of the Act provides:
“No seller under an instalment sale
of land may, on account of any breach of contract by the purchaser-
(a)
enforce
a penalty stipulation or a provision for the accelerated payment of the
purchase price; or
(b)
terminate
the contract; or
(c)
institute
any proceedings for damages; unless he has given notice in terms of subsection
(2) and the period of the notice has expired without the breach being remedied,
rectified or discontinued, as the case may be”
Subsection 2 of s 8 of the Act provides:
“Notice for the purposes of subs (1)
shall-
(a)
be
given in writing to the purchaser; and
(b)
advise
the purchaser of the breach concerned; and
(c)
call
upon the purchaser to remedy, rectify or desist from continuing, as the case
may be, the breach concerned within a reasonable period specified in the
notice, which period shall not be less than –
(i)
the
period fixed for the purpose in the instalment sale of the land concerned;
(ii)
thirty
days;
whichever is the longer period”.
In casu the agreement provided for 14 days notice to the buyer to
remedy a breach. In view of the provision s 8 (2) ( c) of the Act, Bernwin was
therefore obliged to give thirty days of its intention to terminate the
agreement, unless the breach was
remedied, as the period agreed to in the agreement is shorter than 30 days. I
want to believe Marko when he says he was not given any notice to cancel the
agreement. Bernwin in its papers, curiously did not attach the notice they gave
to Marko to remedy the breach neither did it attach the notice to cancel the
agreement. It only attached the letter from Marko's legal practitioner and
their response. If those documents existed, they would have attached them as
they are the basis of their opposition. Marko's position is buttressed by the
fact that there were no attachments to the cheque re-imbursing he purchase
price. One would have thought that the cheque would be attached to the notice
to cancel the agreement.
In view of the above the purported
cancellation of the agreement of sale by Bernwin is not valid. That finding
presents a double sale scenario before me. The law regarding double sales is
well settled in our jurisdiction.
In Choruma Blasting & Earth Mowing Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (S)
it was held that when dealing with the sale of the same property to two buyers,
a factor that the court takes into account when deciding upon the remedy is
whether the second buyer was aware of the earlier sale of the same property.
In Grundall Bros (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 123 (SC) at p 131F it was
stated:
“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 contra when the second purchaser knowingly and with intent
to defraud the first purchaser takes transfer his real right can and normally
will be overturned subject to considerations of practicality”.
The same point was made in Ridler v Gortner 1920 TPD 249 at 259-260 where WESSELS J had this to say:
“There must be an element of deceit,
an element of chicanery in the transaction before the court will set it aside
on the ground of knowledge. It must be perfectly clear to the court that the
person who alleges that he bought a clean transfer know perfectly well and did
not expect that he would get a clean transfer except by his fraud. Any other
view of the law would be extremely dangerous and would dig away the very
foundations upon which our whole system of registration is based”.
Turning to the facts in this matter,
Marko avers that Tawanda must have been aware of his agreement of sale when he
entered into an agreement of sale with Bernwin. In para 11 of the founding
affidavit to the agent chamber application his agent who is Richard states:
“Sometime in November 2003, I started
receiving visits from people who claim to have bought the same stand. I caused
my lawyers to write a letter as 'D', which I asked the gardener looking after
the place to show to whom it may concern.” (sic)
From the respondents' own facts, it
appears when they instructed their lawyers to write the “to whom it may concern
letter”, the property had already been sold. Even assuming it had not been
sold, the respondents have not established that the letter was brought to
Tawanda's knowledge. They did not attach an affidavit from the gardener as to
what he did with the note. It is my view that Marko has not established a basis
for me to make a finding that Tawanda purchased the property well knowing that
he will not get a clean transfer and with intent to defraud Marko.
The
balance of convenience, in my view, favours Tawanda. He is a holder of real
rights and for value as compared to Marko's personal rights. Marko has not
advised the court as to what action he took when he received the re-imbursement
for the amount he had paid as purchase price from his silence on that point,
one can safely assume that he did not return the cheque to Berwin. If that is so
then he did not pay any value for the property.
The
maxim “vigilantibus non dormientibus jura subveniunt” applies to the respondents fully. When they first
become aware that there were people claiming to have bought their property they
did not investigate the matter. They were re-imbursed the amount they had paid
of purchase price. They did not take any action. When Tawanda wanted to take
occupation, that is when they were again jolted into action. They filed an
urgent chamber application for spoliatory relief. When the Provisional Order
was granted, they did not set it down for confirmation. They were again jolted
into action when Tawanda filed the present application. That is when they then
counter claimed for the cancellation of Tawanda's title deed. The law does not
help the sluggard.
In
view of the above, the respondents have not established a basis to disturb the
applicant's real rights.
The
applicant claimed costs of a higher scale. It is my view that the facts of this
matter do not warrant costs on a punitive scale. The respondents felt they had
a basis to oppose the matter regarding the issue of notice. They in effect
succeeded in that regard. I will therefore award costs on the ordinary scale.
In
the result, I will make the following order:
1.
The
Provisional Order is hereby confirmed
2.
It
is declared that the applicant is the lawfully registered owner of Stand No.
2849 Chacombe of Stand No. 134 Chadcombe Township 2.
Consequently
It is ordered that:
1. The first respondent, second
respondent and all those claiming rights to Stand No. 2849 Chadcombe of Stand
No. 134 Chadcombe Township 2 through them are hereby ordered to vacate the property
within 7 days of service of this order. Failing which the Deputy Sheriff be and
is hereby directed to evict them.
2. First and second respondent to pay
costs of suit
3. The first and second respondents'
counter claim be and is hereby dismissed.
Lofty & Fraser, applicant's legal practitioners
Chihambakwe,
Mutizwa & Partners, 1st
& 2nd respondents' legal practitioners
