KAMOCHA J:
The germane facts in this matter are briefly these. On 12 March 2012
Tapera Bauline the 1st respondent in the present matter was ordered
to pay US$18 491,00 which was due and payable in respect of money lent and
advanced to the then plaintiff Clingwrap Investments (Pvt) Ltd which is the 2nd
respondent in the present matter. The order was issued in the High Court,
Harare.
The 2nd respondent's legal practitioners issued a writ of execution
and instructed the Deputy Sheriff – Kwekwe to attach Tapera Bauline's property
in execution of the said writ.
On 10 May, 2012 the deputy sheriff served Michael Hanyani, as occupant, with
notice of attachment of Tapera Bauline's immovable property. On 11 May,
2012 the Sheriff, Harare duly attached Tapera Bauline's immovable property
known as Lot 3 of Subdivision 15 of Lot 14 Chicago, situate in the district of
Que Que, held under Deed of Transfer No. 4356/2002 – “the immovable
property”. The Sheriff placed a caveat on the title deeds of the said
property as C.V.T. 64/12 on attachment of the property.
Michael Hanyani – “Hanyani” and Tapera Bauline – “Bauline” purported to enter
into an agreement of sale on 21 March 2012 of the said property for the sum of
US11 000, but the buyer had not yet taken transfer of ownership of the
property. What is significant to note is that Hanyani failed to produce
proof of payment of the purchase price for the property. Yet despite that
fact Hanyani contended that he was the owner of the said property by virtue of
the purported agreement of sale entered into with Bauline.
Hanyani sought and was granted a provisional order on 5 July 2012 interdicting
the sale of the property. He now seeks a final order cancelling the
caveat placed by the Sheriff against the said immovable property and compelling
the Registrar of Deeds to transfer ownership to him.
Clingwrap Investments (Pvt) Ltd t/a UNUTU FINANCE opposed the confirmation of
the interim relief granted. The 2nd respondent contended that
Hanyani had failed to satisfy all the requirements of an interdict.
Firstly, he had failed to prove that he had paid the alleged purchase price of
US$11 000. The sale of an immovable property is not an insignificant
matter. When payment for such a property is made, there shall be evidence
of such payment. Hanyani failed to produce such evidence. The 2nd
respondent contended that the alleged sale was in fact a sham or elaborate scam
conceived by Hanyani and Bauline to defeat the lawful sale in execution of the
said property.
Quite clearly Hanyani has failed to establish a clear and definite right over
the property.
Further, since he has failed to prove that he actually purchased the property
and paid the purchase price of US$11 00,00 there is no conceivable injury to be
suffered or suffered by him following the sale of the property in
execution. There is simply no harm suffered or to be suffered by him.
Furthermore, if it had been held that he had indeed bought and paid for the
property he still had a remedy to sue Bauline for the recovery of his US$11
000,00.
Hanyani's application is devoid of any merit and must fail.
This is a proper case were an award of punitive costs is appropriate.
Hanyani obtained a provisional order on the basis that the property was owned
by him when he knew that his assertion was not correct. He was challenged
to produce any evidence showing that he paid the purchase price of $11 000,00
but did nothing about that thereby giving rise to the conclusion that the
purported sale was nothing but a sham.
Consequently, the provisional order granted to him is hereby discharged with
costs on an attorney and client scale.
Messrs Dube-Banda, Nzarayapenga & Partners, applicant's legal practitioners
Dazinger
& Partners, 2nd respondent's legal practitioners
