BHUNU
JA: This
is a hotly contested appeal against the whole judgment of the High
Court sitting at Harare, and delivered on 30 October 2013. The
epicentre of the dispute is a certain piece of land in the Goromonzi
District known as the Remaining Extent of Stuhm measuring 583,1360
hectares in extent registered in the name of TIBIC INVESTMENTS (PVT)
LTD under Deed of Transfer 1724/2009. TIBIC INVESTIMENTS (PVT) LTD is
an indigenous company in the sense that its shareholders and
directors are indigenous citizens of this country. The historical
background and factual basis of the case is by and large common
cause.
The
genesis of the dispute is that in 1970 the late Paul Michael Henry
Reimer obtained ownership of a certain piece of land in the District
of Goromonzi known as the Remaining extent of Stuhm measuring
1,074.7410 hectares in extent, under deed of grant 1262/70. Paul
Reimer does not appear to have bought the land as there is no mention
of any money having exchanged hands. His son Cecil Michael Reimer in
due course inherited the said piece of land from his late father
under deed of Transfer 3032/87.
Starting
from 1997 to 2009 Cecil Michael Reimer began to subdivide the main
block of the remaining extent of Stuhm measuring 1,074.7410 hectares
in extent into 3 lots which he sold as follows:
DATE
LOT
SOLD BUYER
HECTERAGE
DEED
OF TRANSFER
1997
2 Darnall Investments 412.1091 497/97
1998
3 Douglasdale (Pvt) Ltd 79.4959 9247/98
2009
1 TIBIC Investments (Pvt) Ltd 583.1360 1724/09
1,074.741
Total.
3 Lots
He
however sold the disputed lot one in 2009 in circumstances where
Government had already issued a preliminary notice to compulsorily
acquire the disputed land under General
Notice 405A of 2000
published in the Extraordinary
Government Gazette of 25 August 2000.
The
preliminary notice reads:
“NOTICE
is hereby given, in terms of subsection (1) of section 5 of the Land
Acquisition Act [Chapter 20:10], that the president intends to
acquire compulsorily the land described in the schedule for
resettlement purposes.
A
plan of the land is available for inspection at the following offices
of the Ministry of Lands, Agriculture and Rural Resettlement between
8 a.m. and 4 p.m. from Monday to Friday other than on a public
holiday on or before the 24th
of September, 2009 –
140.
Deed of transfer 3032/87, registered in the name of Cecil Michael
Reiner
, in respect of certain piece of land situate in the district of
Goromonzi , being the remaining extent of Stuhm, measuring one
thousand and seventy- four, comma seven four one zero. (1 074, 7410)
hectares.”
The
same notice was re-gazetted under General notices 298A of 2003 and
323 of 2003. In all the 3 notices the extent of the land earmarked
for acquisition was given as 1,074.741 hectares. The gazetted land
had however been subdivided into 3 lots. Considering that it had
acquired the whole land, the acquiring Authority offered lot 1 to the
first respondent Kennedy Mangenje as compensation for his farm which
it had compulsorily acquired and distributed to other beneficiaries.
The first respondent accepted the offer.
The
offer letter addressed to the first respondent and dated 7 August
2006 reads in Part:
“Dear
Sir/Madam
Re:
OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT
PROGRAMME. (MODEL A2 PHASE II0
-
The
Minister of State for National Security, Lands. Land Reform and
Resettlement in the President's Office has the pleasure in
informing you that your application for land under Model A2 Scheme
has been successful.
-
You
are offered Subdivision 1 of R/E of STUHM in GOROMONZI District of
MASHONALAND PROVINCE for agricultural purposes. The farm is
approximately 534.00 hectares in extent.
-
The
offer is made in terms of the Agricultural Land Settlement Act
[Chapter 20:01] whose provisions you are advised to acquaint
yourself with. Conditions that go with the offer are attached.”
In
summary, what was gazetted was the whole of the original Remaining
Extent of Stuhm. However, lots 2 and 3 had already been sold and
ceased to be part of the original block of land. Lot 1 thus remained
as part of the remaining extent of the whole original block of land.
It stands to reason that when the acquiring authority gazetted the
whole of the original Remaining Extent of Stuhm, lot 1 being the
remaining fraction of the original block was equally gazetted in
tandem as part of the whole. That reasoning is anchored on the
well-known maxim that the greater includes the lesser, which
principle is of universal application. See City of
Lakerwood v Plain Dealer Publishing Co. [1988]
USSC 123. In other words the gazetting of a whole piece of land
includes the gazetting of a fraction of that land.
The
severed lots 2 and 3 were not validly gazetted because they had
ceased to be part of the original block and the new owners were not
given notice of the intended compulsory acquisition.
The
same cannot however, be said of lot I which remained as a fraction of
the whole original Remaining Extent of Stuhm which Cecil Reimer
continued to hold under deed of transfer 3032/87. Just to draw an
analogy, if the Sheriff had given notice to attach the 3 lots under
the mistaken belief that they all belonged to Cecil his notice and
attachment of block I could not be foiled simply because lots 2 and 3
belonged to some other people. The Sheriff will undoubtedly be
entitled to attach the remaining lot 1 belonging to Cecil Michael
Reimer. By the same token, once the acquiring authority had gazetted
the whole original piece of land, it was entitled as of right to
acquire any fraction of that land that was legally subject to
acquisition in terms of the Constitution.
The
appellant sought to attack the first notice No. 405A of 2000 on the
basis that it had expired in terms of the provisions of the Land
Acquisition Act. The same applies to the second and third notices
298A of 2003 and 323A of 2003. It also sought to argue that the land
gazetted does not exist simply because the gazetted land is 1,704.741
hectares in extent whereas the land in dispute is 583.136 hectares in
extent.
The
disputed land in respect of which notice to compulsorily acquire was
given can easily be identified by employing the blue pencil rule to
excise lots 2 and 3 from the whole, leaving the land in dispute
intact, being the Remaining extent of Stuhm measuring 583.136
Hectares held by Cecil Michael Reimer under deed of transfer
3032/1987. The blue pencil rule is a common law doctrine which allows
a court to sever an unenforceable portion of a contract so as to
enforce the remaining enforceable portion of that contract. Although
this is not a contractual dispute I find the concept useful in this
case to separate that which is enforceable from that which is not
enforceable.
Graphically,
that conception in this case can be plotted and visualised as
follows:
Cecil
Michael Reimer sowed the seeds of severability or divisibility when
he subdivided the original land into separate and distinct 3 lots
which could easily be identified as shown above. What emerges quite
clearly is that, the severance of lots 2 and 3 from the whole block
of land cannot divest lot 1 of its identity. It remains intact and
its gazetting remains extant despite the severance of lots 2 and 3
from the whole. In the result, the conclusion that lot 1 which is the
land in dispute was identified and gazetted is beyond contest. What
is in dispute is the correctness and validity of the process of
identification and gazetting of the land for purposes of compulsory
acquisition.
The
disputed land was properly identified and gazetted as part of the
whole original Remaining Extent of Stuhm measuring 1,704.741 hectares
in extent. It is therefore, anomalous for the appellants to argue
that the land in question does not exist when the first appellant
bought it from Michael Reimer and had it registered in its name under
the same description being the Remaining Extent of Stuhm measuring
583.136 situated in the district of Goromonzi. By the same token, the
second appellant cannot dispute the existence of the disputed land
when he leased and occupied it under the same description.
There
is therefore no merit in the appellants' argument that the land in
question was not properly identified and gazetted. For that reason
the finding by the court a
quo
that the disputed land exists is beyond reproach.
There
can however, be no denying that the process of identifying the
disputed land for purposes of compulsory acquisition was fraught with
errors including the spelling of the name of the previous owner of
the land, its exact size and extent as correctly found by the court a
quo.
These errors and more were not peculiar to this particular piece of
land. The mistakes were many and varied relating to various other
pieces of land, thereby threatening to derail the entire Land Reform
Programme.
In
order to protect and keep the Land Reform Programme on course,
Parliament in its wisdom amended the former Constitution. The
intention of the legislature was to automatically validate the
acquisition of all agricultural land identified and listed under
schedule 7 for purposes of the Land reform programme on or before 8
July 2005 regardless of any errors or mistakes that may otherwise
have nullified the acquisition in the normal run of things.
The
disputed land was acquired under the former Constitution of which s
16B (2) as amended provides as follows:
“(a)
All Agricultural land –
-
That
was identified on or before the 8th
July 2005, in the government Gazette or Gazette Extraordinary under
section 5 (1) Of the Land Acquisition Act [Chapter 20:10], and which
is itemized in Schedule 7 being agricultural land required for
resettlement purposes is acquired by and is vested in the State with
full tittle therein with effect from the appointed date.
...
(5)
Any inconsistency between anything contained in –
-
a
notice itemized in schedule 7 ; or
-
a
notice relating to land referred to in subsection (2) (ii) OR (iii);
and the tittle deed to which it refers or is intended to refer, and
any error whatsoever contained in such notice, shall not affect the
operation of subsection (2) (a) or invalidate the vesting of title
in the State in terms of that provision.”
The
effect of the above section was to revive, resuscitate and validate
the acquisition of all identified agricultural land listed in the 7th
schedule for resettlement purposes prior to 8 July 2005 regardless of
any errors or withdrawals in the acquisition process. No limitation
can be imposed on the acquisition process once the land is shown to
have been gazetted and listed in the 7th
schedule prior to 8 July 2005.
The
language used in s 16B (2) of the former Constitution is clear and
unambiguous admitting no ambivalent interpretation. The only meaning
to be ascribed to the section is that once land is gazetted and
listed in schedule 7 it automatically stands acquired by the State
with full title by operation of law. The mere fact that the notice
was at one time withdrawn or expired is irrelevant.
Applying
the law to the facts, it is plain that the disputed land was
identified and a preliminary notice of intention to acquire was
gazetted on 25 August 2000. The same preliminary notice was
re-gazetted twice in 2003. The land in dispute was duly itemised in
schedule 7 of the Government gazette according to the prevailing law.
The land, having been identified and itemised in schedule 7, it fell
squarely within the ambit of s 16B (2) of the former Constitution. By
virtue of s 16B (5) of the former Constitution, the fact that at one
time the notice expired or was withdrawn and that it was beset by
other errors complained of by the appellant were of no force or
effect. They could not invalidate or adversely affect the vesting of
title in the State whatsoever. Credible evidence was proffered before
the trial court that upon acquisition the original title deeds were
endorsed signifying the perfection of State acquisition of the
disputed land. The endorsed original title Deeds however mysteriously
disappeared in suspicious fraudulent circumstances to facilitate
transfer for the benefit of the appellant.
Once
the land had been identified and itemised under schedule 7, title to
the land automatically vested in the State with the result that it
automatically became State property by operation of law. In
consequence whereof the previous owner was divested of his title to
the land and stripped of all rights of ownership to the acquired land
thereto.
The
learned judge in the court a
quo
was therefore, correct when he remarked at page 24 of his judgment
that:
”TBIC
obtained transfer of the remaining extend of Stuhm only in 2009.
Until it did, it had no real rights over it. But most importantly
Reimer who purported to transfer the property to it had lost all
rights over the property, save the rights to a fair compensation. By
3 November 2005 the property had become State land by virtue of s 16B
of the then Constitution.“
For
that reason Deed of Transfer No. 1724/09 dated 18 March 2009, in
favour of TBIC (Pvt) Ltd, was a nullity at law and of no force or
effect.
That
factual finding and interpretation of the law cannot be faulted at
all as it finds support in a plethora of precedents, chief among
them, Agro
Chem Dealers (Pvt) Ltd v Gomo & Others 2009
ZLR 255 where GOWORA J, as she then was made it clear that:
“… No
person who is not the owner can transfer ownership in anything
whether or not such transferor was acting in good faith or mala
fide.”
That
interpretation and conclusion of the law finds solid support from RH
Christie, Business
Law in Zimbabwe,
2nd
ED Juta & Co Ltd at 149 where the learned author states that:
“An
owner whose property has been sold and delivered without his consent
remains the owner, as the seller cannot pass title that was not his.”
On
the authorities, a buyer who acquires property from a seller who is
not the owner and without valid mandate to sell the property, as
happened in this case, acquires defective title which is a nullity at
law. A nullity is an event that never happened in the eyes of the
law. As Reimer had lost all rights of ownership to the land in
dispute, the sale of the land to TBIC (Pvt) Ltd was patently unlawful
and a nullity at law. No valid title can be founded on an illegality.
In Guoxing
Gong v Mayor Logistics (Pvt) Ltd
SC –2–2017 at p 6 this Court made it abundantly clear that
anything done contrary to the law is a nullity.
To
make matters worse, as correctly found by the learned Judge in the
court a
quo,
the appellant obtained dubious title in circumstances where the
original title deeds with the endorsement of State title had been
fraudulently removed from the Deeds Registry. It is trite that one
cannot transfer ownership of rights that he does not have nor can
rights be lawfully transferred through fraudulent means. This is
because the law prohibits anyone from deriving benefit from
criminality regardless of the origin of the criminal conduct.
I
note in passing that the prevalence of fraudulent and corrupt
disappearance of records and documents in the Deeds Registry has now
reached alarming proportions. This prompted MATHONSI J to lament in
the case of Cosmas
Luckson Zavazava and Anor v Tendai Anania Tendere and 2 Ors
HH 740/15 to remark as follows:
“It
would appear that conveyancing laws of this country are not
fool-proof because fraudsters continue to exploit the weaknesses in
the procedure for registration of transfers to defraud innocent
property seekers. The leakages in the system have meant that cases of
unlawful transfers of immovable property continue to reach the courts
with alarming frequency. For how long will these fraudsters, who
strut among communities, continue to hold sway, to make a mockery of
transfer rules to milk unsuspecting home seekers dry in order to make
a dishonest living? These shameless individuals bring the whole
process of private ownership of property to disrepute.”
In
this case, the fraudulent disappearance of the original Title Deeds
dully endorsed with State Title in the Deeds Office could only have
benefitted the parties to the illegal sale of the State land in
question. The fraudulent transfer was then perpetrated using a copy
of the seller's tittle Deeds without endorsement of State Tittle.
This was meant to facilitate the bogus transfer of State Land to the
appellant.
In
the absence of any other credible evidence to the contrary, the only
reasonable inference that can be drawn is that the appellant and
Cecil Michael Reimer were co-conspirators in the perpetration of the
fraud. This uncouth reprehensible behaviour cannot be sanctioned by
the courts. That type of criminal conduct discredits both of them as
witnesses. It betrays knowledge on their part that the land had
indeed been lawfully acquired by the State prior to the sale.
Otherwise, why act unlawfully if the deal was clean and above board?
Having
lawfully acquired the disputed land, the acquiring authority remained
the lawful owner regardless of the unlawful purported sale and
transfer of the land to the first appellant. The Acquiring authority
was therefore within its rights when it offered the disputed land to
the respondent for resettlement purposes. The respondent in turn had
the right to accept the offer as he did thereby concluding a valid
contract with the acquiring authority. The conclusion that the
respondent's Offer Letter is valid and enforceable is in the
circumstances beyond reproach.
That
conclusion of law renders both appellants strangers to the contract
between the acquiring authority and the respondent.
This
brings us to the doctrine of privity of contract. That doctrine
restricts the enforcement of contractual rights and remedies to the
contracting parties, to the exclusion of third parties. The learned
author Innocent Maja in his book The
Law of Contract in Zimbabwe
at p 27 para 1.5.3 graphically explains the doctrine as follows:
“The
doctrine of privity of contract provides that contractual remedies
are enforceable only by or against parties to a contract, and not
third parties, since contracts only create personal rights. According
to Lilienthal, privity of contract is the general proposition that an
agreement between A and B cannot be sued upon by C even though C
would be benefited by its performance. Lilienthal further posts that
privity of contract is premised upon the principle that rights
founded on contract belong to the person who has stipulated them and
that even the most express agreement of contracting parties would not
confer any right of action on the contract upon one who is not a
party to it.”
The
court a
quo
having correctly found that the sale of the land in dispute to the
first appellant was a nullity and that the acquiring authority
remains the lawful owner of the land in dispute, it follows that both
appellants were not privy to that contract. That being the case, the
doctrine of privity of contract excluded them from suing for
cancellation of the contract between the first and second respondents
in the form of the first respondent's offer letter.
The
second respondent being the only other contracting party to the Offer
Letter swept the carpet from underneath the appellants' feet when
he elected not to contest the court a
quo's
judgment choosing to remain neutral and abide by the court's
decision. That in effect means that the only other party privy to the
contract has capitulated and is no longer challenging the validity of
the first respondent's Offer Letter. For that reason, the learned
judge's finding that the Offer Letter issued to the first
respondent by the second respondent is valid is unassailable.
By
virtue of the landmark decision in the case of Commercial
farmers Union & Ors v Minister of Lands & Ors
2010 ZLR 576 the courts are enjoined to support the holders of valid
offer letters as correctly argued by the second respondent in the
court a
quo.
This is in keeping with the time honoured principle laid down in
Barlow
and Jones Ltd v Elephant Trading Co.
1905 TS 67 to the effect that existing rights should not be
infringed. Thus in general courts will lean in favour of the
enjoyment of rights rather than their extinction.
By
virtue of the valid Offer Letter issued to him by the second
respondent in his capacity as the acquiring authority, the first
respondent has the right to occupy and use the Remaining
Extent of Stuhm In the Goromonzi District Measuring approximately
534, 00 Hectares in extent
as stipulated in the offer letter.
As
regards the appellants' right of occupation of the land, the
disputed land is gazetted land. Section 3 of the Gazetted Land
(Consequential Provisions) Act [Chapter
20:28]
prohibits and criminalizes the occupation of gazetted land without
lawful authority in the form of:
-
an
offer letter; or
-
a
permit; or
-
a
land settlement lease.
It
is common cause that both appellants have no lawful authority in the
form of an Offer Letter, permit or land settlement lease authorising
them to occupy and use the disputed land. Their plea is for the
acquiring authority to strip the first respondent of his rights
acquired in terms of his Offer Letter and confer them on the first
appellant. They argue that the first appellant is an indigenous
person and it is not government policy to dispossess one indigenous
person of land in order to give it to another.
This
Court has already determined that the court a
quo
correctly nullified Cecil Michael Reimer's ownership of the
disputed land. It also correctly held that ownership of the disputed
land still vests in the second respondent. That being the case, the
courts cannot protect the appellant on the basis that the disputed
land is owned or occupied by an indigenous person.
Although
the first appellant is in occupation of the gazetted land and the
second appellant occupies it through a lease agreement, the
occupation is unlawful. As already determined elsewhere in this
judgment the law and the courts cannot protect an illegality
regardless of the colour, nationality or race of the perpetrator.
This
should really be the answer to the appellants' argument in this
respect, but for the sake of completeness, there is need to look at
the argument from a different perspective. For that purpose I
consider it necessary to determine whether the first appellant being
a juristic person is in fact an indigenous black person. The 1st
appellant's argument is that it is an indigenous black person
because its shareholders are black indigenous natural persons.
It
is trite and a matter of elementary law that a company is a
fictitious juristic legal entity with a separate and distinct legal
existence apart from its shareholders. It is capable of owning
property in its own right separate from that of its shareholders. It
is an established principle of our law that a company's property is
not the property of its members, shareholders or directors. The
principle was laid down in Salomon
v Salomon and Co Ltd
[1897] AC 22 HL per LORD HALSBURY LC (30) when he said:
“It
seems to me impossible to dispute that once a company is legally
incorporated it must be treated like any other independent person
with its rights and liabilities appropriate to itself, and that the
motives of those who took part in the promotion of the company are
absolutely irrelevant in discussing what those rights and liabilities
are.”
From
the above exposition of the law it follows that the first appellant
TBIC Investments (Pvt) Ltd is a separate legal entity from its
owners, shareholders and directors.
The
question to be addressed in the circumstances is whether a registered
company can be classified as being of black or white race.
In
addressing that question it is important to note that a company has
no real physical existence but it is merely an abstract fictitious
legal entity. It has no physical existence, colour, flesh or blood.
In Dadoo
Ltd and Others v Krugersdorp 1920
AD 530 at 552 the Court held that:
“A
company cannot have an enemy character. In the words of BUCKLEY L. J,
it has neither body parts nor passions; it cannot be loyal or
disloyal.”
From
the authorities and pure common sense, it follows that a company has
no colour or race. It does not adopt the colour or race of its
owners, shareholders or directors. The argument by the first
appellant TBIC Investments (Pvt) Ltd that it is a black indigenous
person is therefore seriously flawed. Government policy relating to
indigenous persons only relates to natural persons and not companies.
No government policy is violated when government acquires land from a
company for resettlement purposes. The court a
quo's
determination that the first appellant could lawfully be removed from
the land to pave way for the first respondent cannot be faulted.
I
now turn to consider whether the first respondent's claim can be
defeated by virtue of the alleged change of land use.
The
first appellant filed its opposing affidavit on 8 February 2011. The
opposing affidavit was deposed to by its director Killian Kapaso duly
authorised thereto by resolution of the company directors. Nowhere in
that affidavit did the appellant raise the issue of change of land
use as a defence to the first respondent's claim.
The
first appellant only raised the issue of change of land use more than
two years later in an affidavit deposed to by the same company
director Killian Kapaso who had deposed to the original opposing
affidavit two years earlier.
In
that affidavit, the first appellant was responding to the Chief
Registrar of Deeds' affidavit confirming that the land in dispute
was registered in the name of the President of Zimbabwe and had
become State land in terms of s 16B of the Constitution. That
registration still subsists. It has not been nullified by any court
of competent jurisdiction.
The
issue of State ownership of the acquired land is really an issue
between Cecil Michel Reimer and the acquiring authority. Cecil
Michael Reimer has however chosen not to be a party to this matter
electing merely to furnish an affidavit confirming that he sold the
disputed land to the first appellant.
The
appellants' claim that the land in dispute is no longer
agricultural land is premised on a photocopy of a Sub-divisional
Permit apparently granted to the first appellant by the Minister of
Local Government Rural and Urban Development. The alleged permit
reads in part as follows:
“PERMIT
FOR THE SUBDIVISION OF
SUBDIVISION
OF REMAING EXTENTOF STUHM:
GOROMONZI
DISTRICT
The
Minister of Local Government Rural and Urban Development (hereinafter
called the Minister) in terms of Section 40 (3) of the Regional Town
and Country Planning Act, [Chapter 29:12] (hereinafter called “The
Act”) hereby grants a PERMIT in respect of an application dated
13th
November 2009 and numbered Mash East 04/2009 in the Register of the
Provincial Planning Officer, Mashonaland East, to T.B.I.C INVESTMENTS
(PRIVATE) LIMITED (hereinafter called “the applicant”) for the
subdivision of:-
A
certain : Piece of land situate in the District of Goromonzi
Being
: Remaining extent of Stuhm
Measuring
: 583.1360 hectares
Held
Under : Deed of Transfer N0. 1724/2009 dated 18 March 2009”
The
appellants' complaint is that the court a
quo
erred in not making a ruling on the objection to the effect that the
land in dispute no longer constituted agricultural land but urban
land. As such, it was no longer susceptible to compulsory acquisition
in terms of the constitution.
It
must be noted that the so called sub-divisional permit was issued to
TBIC INVESTMENTS (PRIVATE) LIMITED that is to say the first appellant
which did not own the land. The court a
quo
having correctly determined that the disputed land belonged to the
acquiring authority, a sub-divisional permit granted to the first
appellant who did not own the land was a nullity ab
initio
and of no force or effect.
A
perusal of case law shows that there is no need for the court to
pronounce or declare something which is a nullity as being null and
void as held in the well-known case of Mcfoy
v United Africa Co. Ltd
[1961] 3 ALL ER 1169 (PC) at 1172. In that case Lord DENNING had
occasion to remark that:
“If
an act is void, then it is in law a nullity. It is not only bad but
incurably bad. There
is no need for an order of the court to be set aside. It is
automatically null and void without more ado, although it is
sometimes convenient to have the court declare it to be so.
And every proceeding which is founded on it is also bad and incurably
bad. You cannot put something on nothing and expect it to stay there.
It will collapse.” (Emphasis provided).
It
is plain common sense that a permit granted to the first appellant to
subdivide land which did not belong to it was a nullity which did not
bind anyone. For that reason although it was desirable for the court
a
quo
to pronounce its verdict on the objection raised by the first
appellant, there was no strict requirement to do so at law.
It
is an established fact that the land in question is registered as
agricultural land in the name of the acquiring authority. In the
absence of any evidence as to how it ceased to be agricultural land,
the registration in the Deeds Office prevails.
In
the case of Lilifort
Toro v Vodge Investments (Pvt) Ltd
SC 15/2017, there was clear evidence as to how the land had ceased to
be agricultural land to become urban land by virtue of Proclamation 3
of 2012, S.I 115 of 2012. This was followed up by an official hand
over of the land through a letter dated 10 June 2013.
In
this case, nothing of the sort happened. The acquiring authority
continues to claim ownership of the land registered in his name. It
is trite that registration in the Deeds Registry constitutes proof of
ownership of land. All the parties to this case looked up to him for
relief without any reference to the Minister of Local Government
Rural and Urban Development. This amounts to recognition of his
ownership and authority over the disputed land. That is ample proof
that the Minister of Local Government had no Authority to convert
agricultural land to urban Land without the consent of his colleague,
the acquiring authority. Any purported change of ownership of the
land without the consent of the acquiring authority was therefore a
legal nullity and of no force or effect.
In
the final analysis we come to the unanimous conclusion that there is
absolutely no merit in this appeal.
It
is accordingly ordered as follows:
That
the appeal be and is hereby dismissed with costs.
GWAUNZA
JA I
agree
GOWORA
JA I
agree
Gama
& Partners, appellants'
legal practitioners
Moyo
& Jera, 1st
respondent's legal practitioners
Civil
Division of The Attorney-General, 4th
respondent's legal practitioners
