BHUNU
JA: This
is an appeal against the entire judgment of the High Court sitting at
Harare which directed cancellation of Deed of Transfer Number 2541/14
issued in the name of the appellant, Guoxing Gong, with costs at the
punitive scale of legal practitioner and client.
The
order appealed against is couched in the following terms:
“In
the result I make the following order:
1.
Deed of transfer No. 2541/16 in the name of Guoxing Gong be and is
hereby deemed cancelled and the Registrar of Deeds be and is hereby
directed to effect such cancellation.
2.
The first respondent shall surrender the said Deed of Transfer to the
Registrar of Deeds within 48 hrs of service of this order to enable
the registrar of deeds to endorse such cancellation.
3.
The first and second respondent shall bear the costs of this
application on a legal practitioner and client scale.”
There
is no material dispute of facts as most facts giving rise to the
legal disputes on appeal are by and large common cause.
The
undisputed facts are that Mathonsi Family Enterprises (Pvt) Ltd who
was the second respondent in the court a
quo
is the registered owner of a certain immovable piece of property
commonly known as number 9 Simon Mazorodze Road being the Remainder
of Subdivision B of Delft Hopely.
Mathonsi
Family Enterprises wished to subdivide and sell a portion of the
property but apparently lacked the financial capacity to effect the
necessary subdivision and related costs to facilitate the sale and
transfer of the envisaged subdivision.
Eventually
it negotiated and entered into a conditional verbal agreement
sometime in 2010 where the first respondent would finance the whole
subdivision process, payment of capital gains tax and related costs
to facilitate its purchase of the resultant subdivision.
The
verbal agreement culminated in Mathonsi Family Enterprises (Pvt) Ltd
making the following resolution on 8 December 2010:
“RESOLVED
1.
That the company applies for the subdivision of the property commonly
known as No. 9 Simon Mazorodze being the Remainder of subdivision B
of Delft of Hopely into two properties.
2.
THAT Mayor Logistics (Pvt) Ltd be and is hereby authorised to provide
assistance and to make all such payments as may be necessary to
facilitate the subdivision, all of which will be taken into account
when disposing of the subdivision to it.
3.
THAT once the subdivision is approved, half or the smaller of the two
subdivided portions shall be sold to Mayor Logistics (Pvt) Ltd for
not more than US$35,000 per acre of the prime portions and at a
negotiated lower price for any swampy portions in recognition of
assistance in the subdivision process.
4.
THAT the payment terms be discussed with Mayor Logistics (Pvt) Ltd
once the subdivision is approved.
5.
THAT CLIFF Mathonsi be and is hereby authorised to sign any documents
and to do all such things as may be necessary on behalf of the
company to facilitate the subdivision and proposed disposal to Mayor
Logistics (Pvt) Ltd.”
According
to the first respondent the parties eventually settled for the price
of US$50,000.00 which is yet to be paid.
The
sale was however subject to a suspensive condition that it would only
come into effect upon the first respondent successfully facilitating
the subdivision in terms of the above resolution.
It
is common cause that the first respondent financed and facilitated
the acquisition of the necessary sub divisional permit thereby
partially fulfilling its part of the bargain.
Although
a draft written agreement was prepared in terms of the verbal
agreement and company resolution, Cliff refused to sign the draft on
behalf of Mathonsi Family Enterprises (Pvt) Ltd claiming that his
father wanted more money than previously agreed.
It
is plain that the verbal agreement was lawful and binding.
The
intended reduction of the verbal agreement to writing was a mere
formality not forming part of the contractual agreement.
It
is trite that in the absence of any prohibition or agreement to the
contrary, a verbal agreement is lawful and binding. This explains why
by far the majority of contractual agreements are verbal. There is no
legal requirement in our jurisdiction that every contractual
agreement be reduced to writing.
Despite
the verbal agreement and the 1st
respondent having partially fulfilled its part of the bargain,
Mathonsi Family Enterprises (Pvt) Ltd resold the disputed property at
a higher price to the appellant unbeknown to the first respondent on
4 April 2011.
The
above facts clearly establish beyond question that Mathonsi Family
(Pvt) Ltd sold the same property twice, firstly, to the first
respondent and secondly to the appellant.
The
court a
quo
was therefore correct in treating the matter as a double sale
dispute. There is absolutely no substance in the appellant's
argument to the contrary.
A
dispute having arisen and in a bid to protect and enforce its
contractual rights the 1st
respondent successfully sued Mathonsi Family Enterprises for specific
performance in the High Court under case number HC218/12 in which it
obtained the following default order on 5 June 2012:
“IT
IS ORDERED THAT:
1.
The defendant (Mathonsi
Family Enterprises (Pvt) Ltd)
be and is hereby directed to transfer stand 102 Grobbie Township of
subdivision B of Delft of Hopely to the plaintiff (1st
respondent)
against
payment
of US$50,000.00.
2.
Should the defendant refuse or neglect or fail to sign the documents
facilitating the said transfer the Deputy Sheriff be and is hereby
authorised to sign them in defendant's stead.
3.
The defendant shall pay the costs of suit on an attorney and client
scale.”
Counsel
for the appellant Mr Uriri
raised
the point that the above default judgment was unenforceable because
it has superannuated at common law through the effluxion of time as
it was issued more than 3 years ago.
He
however later abandoned the objection conceding that superannuation
was not in issue as the first respondent was not seeking execution.
In
view of that concession it shall not be necessary to determine that
issue.
I
now turn to consider the appeal on the merits.
It
is trite that save in special circumstances which do not concern us
here, no appeal lies to this court against a default judgment which
is normally reversed by rescission of judgment or a declaration of
nullity.
It
therefore, follows that in the absence of special circumstances, no
valid ground of appeal can be laid at the door of this court
concerning the propriety or otherwise of a default judgment. Whether
or not there was non-joinder or any other irregularity pertaining to
the default judgment that is a complaint to be laid at the court
a quo's
door and not this court.
There
being no special circumstances pleaded in this case, this court will
not entertain any argument calculated to impugn the validity of the
default judgment at hand.
Despite
the appellant's concerted efforts to have the default order
reversed, the order is still extant, valid and binding. That being
the case, it is not tainted by any form of illegality or impropriety.
It stands on equal footing with any other lawful court order capable
of enforcement at the instance of the judgment creditor.
For
that reason in a concerted effort to fortify itself against illicit
transfer of the disputed property, the first respondent followed up
by placing caveat No. 263/12 on the property on 20 June 2012.
Notwithstanding
the existence of a valid court order and a caveat barring transfer of
the disputed property to any third party, the appellant in apparent
connivance with Mathonsi Family (Pvt) Ltd somehow deviously managed
to beat both judicial and administrative safeguards and obtained
transfer of the property under Deed of transfer 2541/14.
The
facts show that the applicant far from being an innocent purchaser
was complicit in the irregular purchase and transfer of the property
to himself under deed of transfer 2541/14.
It
is common cause that the appellant's then legal practitioner Mr
Tavenhave
was apprised by Mr Tsivama
counsel
for the first respondent of the existence of both the court order and
caveat barring transfer of the disputed property.
The
appellant was equally aware of the existence of the court order as
amply articulated by the learned judge in the court a
quo
at p3 of her cyclostyled judgment where she says:
“Furthermore
the facts of this matter, which have not been disputed, point to the
fact that the first respondent was aware of the order in HC218/12
when he took transfer. On 23 May 2014, Mr Tavenhave
for the first respondent telephoned Mr Tsivama,
for the applicant, seeking confirmation regarding the existence of
the order. Mr Tsivama
confirmed
the existence of the order. Mr Tavenhave
then informed Mr Tsivama
that he had been approached by the 1st
respondent who produced the order and was in a state of panic since
he had purchased the same property from the second respondent. He
went on to advise Mr Tsivama
that he had reassured his client not to panic as he had already
obtained transfer some time back. He had retorted that it was a clear
case of double sale and enquired as to the applicant's position.
On
26 May Mr Tsivama
conducted a deeds search which confirmed that the property was still
registered in the second respondent's name and there was caveat
263/12 in place.”
From
the above summation of the undisputed facts it is plain that both the
appellant and its legal practitioner Mr Tavenhave
were patently aware of the existence of both the court order and
caveat barring transfer of the property in question.
Despite
such knowledge they connived and deviously obtained transfer of the
disputed property. Procuring transfer under such circumstances can
only amount to acquiring defective title which at law is a nullity
and an exercise in futility.
At
this juncture, it does not seem to matter to me whether or not the
appellant was the first purchaser as he alleges. What is material at
this stage is that he obtained defective invalid title in defiance of
a valid court order and caveat.
It
is an established principle of our law that anything done contrary to
the law is a nullity.
For
that reason no fault can be ascribed to the learned judge's finding
in the court a
quo
that
the conduct of the appellant and his lawyer in obtaining registration
of the disputed property in the face of a court order and caveat to
the contrary was reprehensible.
On
the basis of such finding the appeal can only fail.
The
appellant and his lawyer's unbecoming and deplorable conduct in
resorting to criminality in a bid to preserve their ill-gotten gains
cannot go unpunished.
It
is accordingly ordered that the appeal be and is hereby dismissed
with costs at the legal practitioner and client scale.
ZIYAMBI
JA: I
agree
UCHENA
JA: I
agree
Messrs
Tavenhave & Machingauta,
the
appellant's legal practitioners
Messrs
Sawyer & Mkushi,
the
1st
respondent's legal practitioners
The
Registrar of Deeds,
the 2nd
respondent
