MAFUSIRE
J: This was an application for the restoration of title over a certain immovable
property that the applicant alleged he had been fraudulently dispossessed of. Respondents
1 to 3 [“the respondents”] opposed the application. But they had no
case. At the end of the hearing I granted the substantive relief sought. Below
are my reasons.
The
applicant's case, in my own words, was this. In 1987 he bought a certain piece
of land in Prospect, Harare [“the property”]. It was duly
registered in his name under Deed of Transfer No 6132/87, dated 2 September
1987. All along he was keeping the deed in safe custody together with the diagram
deed. However, in 2013 he woke up to find his property “gone”. It was now
jointly owned by respondents 2 and 3, husband and wife, under Deed of Transfer
No 3241/2009, dated 5 August 2009. It transpired that respondents 2 and 3 had
bought the property from the first respondent who had “owned” it under Deed of
Transfer No 2451/2008, dated 21 August 2008.
Investigations
revealed that someone had impersonated the applicant and had “sold” the
property to the first respondent. Among other things, a fake special power of
attorney, with a fake signature of the applicant, and a capital gains tax
clearance certificate, also with a fake signature of the applicant, had been
used to facilitate the “transfer” from the applicant to the first respondent.
The crime was reported to the police. However, the thief was never caught.
The
applicant brought vindicatory proceedings. He cited respondents 2 and 3 as the current
holders of title. He also joined the first respondent as an interested party. He
sought inter-related orders, namely, the restoration of his title deed no. 6132/87
aforesaid, and the simultaneous cancellation of the other two deeds, the one in
favour of the first respondent [no. 2451/2008], and the other in favour of respondents
2 and 3 [no. 3241/2009].
The
mainstay of the respondents' defence was that their purchase and transfer of
the property, at different times, had been above board because at every turn
they had employed professionals in the form of estate agents [to conclude the
sales] and conveyancers [to register the transfers]. The application was said to
be fatally defective for the non-joinder of those professionals.
The
respondents' defence was moribund for a number of reasons.
That
it was not their fault or that professionals had facilitated their purchase and
transfer of the property could not possibly meet the applicant's case. It is
often the case that in situations of fraudulent transfers, such as was this, it
is the innocent buyer that gets hurt. The loss falls on him. His claim to title
is illusory because he got it from a thief.
If
the applicant could prove that he never sold his property but that a thief did,
then the respondents, bona fide as
they might have been, could not have obtained valid title. A thief cannot pass
valid title in the thing he has stolen. Concomitantly, a third part cannot
acquire valid title from the thief. The position was put this way by MAKONI J
in The Trustees of the Lacerose Trust
& Anor v Zimcor Trustees [Pvt] Ltd & Ors, quoting the then 3rd
ed. of SILBERBERG & SCHOEMAN'S The
Law of Property, at p 75:
“A thief cannot acquire ownership or
any other real right [except a jus
possessionis] in the things which he had stolen and since nobody can
acquire ownership in stolen goods, a third party can never acquire ownership /
or other real right in property that has been obtained by fraud.”
The respondents flatly refused to recognise or
accept that the proceedings before me were a rei vindicatio. They were mistaken. The law says the owner of a
thing cannot be deprived of their property against their will. If they do, they
are entitled to recover it from wherever found and from whomsoever may be
holding it: see Chetty v Naidoo.
The
non-joinder of the professionals was of no moment. It was not the applicant's
business. They had merely facilitated the sales and the transfers. They had
been mere agents. They had no interest in the property. They would have dropped
out of the picture once their mandates had been completed. The applicant had nothing
to do with any of them. Whatever story they might have, it was irrelevant to
the applicant's cause. But if the respondents felt that the story might have
been relevant, it was up to them to join such people to the proceedings. After
all, r 87 [2] of Order 13 of the Rues of this Court permits the joinder, at any
stage of the proceedings, of any person who ought to have been joined as a
party, or whose presence before the court is necessary. The rule does not say
only the applicant can do this.
Furthermore,
and at any rate, sub-rule [1] of r 87 is clear. It says no cause or matter
shall be defeated by reason of the joinder or nonjoinder of any party, and that
the court may, in any cause or matter, determine the issues or questions in
dispute so far as they affect the rights and interests of persons who are
parties to the cause or matter.
The
applicant's remedies lay chiefly against respondents 2 and 3 who held title to
his property against his will. The first respondent was an interested party. It
was him that purportedly took title from the applicant. It was him that
purportedly passed it on to the other respondents. Clearly his presence before
the court was necessary to explain where, how and from whom he had got that
title, and how he had subsequently purported to pass it on.
The
rest of the respondents, i.e. 4 and 5, were necessary nominal parties on
account of their different statutory roles, the fourth respondent, the
Registrar of Deeds, as the chief national custodian of all real rights in land;
the fifth respondent, the Master of the High Court, as the overseer of all
estate matters, given that the second respondent was an estate.
In
his opposing affidavit, the first respondent did explain how he had bought the
property via a firm of estate agents, and how he had subsequently transferred
it. But none of what he said amounted to a defence. Among other things, it did
not discount the applicant's story that a thief had “stolen” his property and had
sold it to the first respondent.
That
indeed a thief had “stolen” the applicant's property and sold it was proved.
Among other things, the applicant produced a copy of the original title deed
that had no endorsement of the putative transfer. He also produced the prior
deed of transfer, the diagram deed. He promised to produce the originals at the
hearing. He never had to. The documents were not challenged.
The
special power of attorney to pass transfer from the applicant to the respondent
was plainly counterfeit. Contrary to the respondents' lame protestations, the
signature on it, purporting to be that of the applicant, was markedly different
from his regular signature that he tendered and which was also very similar to
the one on his founding affidavit.
The
purported capital gains tax clearance certificate was also counterfeit. Among
other things, the purported national registration number of the applicant thereon
was incorrect, not just by one or two digits, but completely in all the digits,
as well as the check letter. It had 80 – 066197 Z 42. The correct one on the
applicant's metal identity document card was 63 – 164977 H 50.
The
respondents alleged that the applicant's case was one huge attempted fraud to try
and get back a property that he had purposefully sold away. However, that seemed
a long shot. It did not accord with probabilities. The applicant still had the
original title deed. He would have had to pass it on if he had legally
transferred the property to the first respondent. Nobody ever said a duplicate
original had had to be applied for, and had been obtained, as would have had been
the case had the applicant lost the original. Furthermore, the applicant had
gone on to report the fraud to the police when he had discovered it in 2013.
The police had opened a docket which, among other things, contained the first
respondent's statement. The sum total of it all was that a fraud had been
perpetrated on the applicant which had led to him losing title over his
property.
Two
other small issues raised by the respondents as grounds of opposition were that
there was a dispute of fact that the court could not possibly resolve on the
papers and that the applicant's claim had become prescribed. Both were ill-conceived.
There was no real dispute of fact. It was fanciful. I did not even have to
adopt a robust approach.
Respondents
2 and 3 said in their opposing affidavit the applicant had been aware of their
purchase of the property because they had spoken to him on the telephone in the
year 2009. That skimpy and bald statement was all they said. The applicant
denied it. All the respondents then latched onto that to argue that not only
was there a dispute of fact that was incapable of resolution on the papers, but
also that the matter had become prescribed because the applicant had allegedly
slept on his rights since 2009 [the application having been filed in 2015].
A
party wanting to illustrate and rely on a dispute of fact must put forward
cogent facts of his own version of events that must contrast with that of the
other party. In casu, against all
what the applicant had said to prove that he had never sold away his rights,
the respondents just casually alleged that they had spoken to him on the
telephone in 2009. About what? Why would they have been speaking to him? They
were not taking transfer from him, but from the first respondent. It was all
implausible. This was not the kind of factual basis to found a genuine dispute
of fact or the defence of prescription.
The
order that I granted at the close of argument read:
IT IS ORDERED THAT
1
Deed
of Transfer No 6132/1987 dated 2nd September 1987 and registered in
the name of Thomas Pasi, the Applicant, in respect of Stand 492 Prospect
Township of Stand 106 of Prospect situate in the District of Salisbury and
measuring four thousand one hundred and sixteen square metres [4 116m2] be and
is hereby revived in terms of s 8[2][a] of the Deeds Registries Act, Cap 20:05;
2
The
Registrar of Deeds, the fourth respondent herein, be and is hereby ordered and
authorised to cancel and set aside the following title deeds and to make the
appropriate endorsements on the relevant deeds and entries in the registers in
terms of s 8[2][b] of the Deeds Registries Act, aforesaid:
2.1
Deed
of Transfer No 2451/2008 dated 21st August 2008 in respect of the
property, purportedly transferred from Thomas Pasi and registered in the name
of Wonder Mushure;
2.2
Deed
of Transfer No 3241/2009 dated 5th August 2009 in respect of the
property, transferred from Wonder Mushure to Taurayi Madzivaidze and Linda
Madzivaidze;
3 The first, second and third
respondents shall pay the costs of this application.
10 February 2017
Atherstone &
Cook,
applicant's legal practitioners
Chinawa Law
Chambers,
first respondent's legal practitioners
Kwenda & Associates, second and third
respondents' legal practitioners
