This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.
FACTUAL BACKGROUND
The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.
The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).
The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.
The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.
In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.
The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.
Aggrieved by this decision, the appellant filed this appeal on the following grounds:-
1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.
2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.
3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.
I will consider these grounds in relation to the evidence before the court....,.
WHETHER OR NOT THE COURT A QUO ERRED IN AWARDING COSTS AGAINST THE APPELLANT
In its third ground of appeal, the appellant contends that the court a quo grossly misdirected itself in making an award of costs against the appellant 'in view of the circumstances' of the case. In particular, the appellant argues that it was an innocent purchaser of the property, as the court a quo itself found. Further, that the first respondent had exhibited lack of diligence in protecting her rights, given that she had only sought to have the 1998 provisional order confirmed after the appellant had instituted vindicatory action against her in the court a quo.
The general rule is that costs follow the cause.
In view of this, it cannot, in my view, be said that the court a quo ought not to have made an award of costs against the appellant who was the unsuccessful party in the proceedings. The cancellation of the Title Deed that was in the appellant's name was not ordered on the basis of whether or not the appellant was an innocent purchaser. There simply was no basis for the issuance of the Title Deed, since the transfer that it purported to perfect was, at law, a nullity.
There is also no evidence that the timing of the application for confirmation of the 1998 provisional order brought by the first respondent was an issue before the court a quo.
It is settled law that costs are at the discretion of the presiding officer. In Barros and Wasserman v Ruskin 1918 AD 63…, the court stated as follows:-
“The rule of our law is that all costs, unless expressly enacted, are in the discretion of the judge. His discretion must be judiciously exercised, but, it cannot be challenged taken alone and apart from the main order without his permission.”…,.
It is also a settled position of the law that a court of appeal will not lightly interfere with the exercise of discretion by a lower court unless it is shown that it was not judiciously exercised. See Barros and Anor v Champonda 1999 (1) ZLR 58 (S) where it was stated as follows…,:-
“…,. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its discretion in substitution, provided always (that it) has the materials for so doing.”
I do not find, in view of the above, that there is anything to show that the discretion of the court a quo, to award costs on an ordinary scale, was not exercised judiciously. The appellant has therefore not proved a case for interference, by this Court, with the order of costs made against it.
In the result, the appellant's third ground of appeal is dismissed for lack of merit.
