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 HC 218/12 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 p
3 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 HC 218/12 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
