Opposed
Application
CHITAPI
J:
The
applicant prays for an order that Deed of Transfer No.708/19 made in
favour of the second respondent should be cancelled and that the
prior deed of transfer no.8421/2000 in the name of the first
respondent and from which transfer in favour of second respondent was
made should be revived.
Upon
revival of the prior deed, the applicant prays for an order that the
property conveyanced therein called Remainder of Subdivision C of Lot
6 of Lot 1890 to 195 (inclusive) measuring 4,377 square metres be
transferred by the third respondent into the applicant's name.
I
must note that the part of the order sought directing transfer by the
third respondent is incompetent.
The
third respondent is the Registrar of Deeds. The Registrar of Deeds
does not transfer properties but registers them. A conveyancer acting
under a power of attorney given by the owner of the property or
transferor is the one who transfers the property to the transferee.
The Registrar of Deeds as the name clearly denotes, registers the
transfer documents subject to all requirements imposed by applicable
law being met.
For
the benefit of the applicant, the duties of a Registrar are set out
in Section 5 of the Deeds Registries Act, [Chapter
20:05]
as read with the Deeds Registries Regulations S.I 236/18.
The
court does not create a duty outside what the law permits for the
Registrar to perform.
The
relief sought for the court to order the third respondent to transfer
the property, assuming that the current holding Deed is cancelled as
prayed for is therefore a non
sequitur
and cannot be granted.
The
applicant also prays for costs against the first respondent and any
other respondent who opposes the application on the scale of legal
practitioner and client.
The
basis of the application is succinctly set out in paragraph 8 of the
founding affidavit deposed to by the applicant company's Managing
Director, Kingstone Hamutendi Munyawarara who stated that he is aware
of the facts of the matter. He states as follows in paragraph 8 of
the said affidavit:
“8.
The application is premised on the fact that the said property was
sold to the applicant by the fourth respondent in execution
proceedings against the first respondent in HC3331/14. First
respondent, whilst aware that the property had already been sold to
the applicant by the Sheriff, fourth respondent hereto purported to
sell and transfer the property to the second respondent.”
The
hearing of the application was punctuated by sustained attacks on the
alleged unprofessional and unethical conduct of the first respondent
given his background of being a registered and practising legal
practitioner in this jurisdiction.
A
number of judgments were cited in which adverse comments were made in
relation to the first respondent's conduct concerning his abuse of
trust funds which led to judgment in HC3331/14 being granted against
him to repay the fifth respondent his money paid into the first
respondents trust account and which money was converted by the first
respondent to his own use.
Further,
adverse comments were also made in regard to the first respondent's
alleged abuse of court process to frustrate execution of the property
the subject matter of this application.
In
arguments before me, the applicant and fifth respondent's counsel
mounted a sustained attack on what they alleged to be fraudulent
conduct by the first respondent in selling the property in issue
herein to the second respondent when the first respondent was aware
that the property was under attachment by the fourth respondent.
The
attacks on the first respondent's character and alleged
unprofessional and unethical conduct is an issue that l cautioned
myself to exercise restraint on because the conduct would need to be
investigated and first respondent disciplined in terms of the Law
Society Act and Regulations governing the conduct of legal
practitioners.
Fraud
and forgery allegations made against the first respondent being
criminal offences would have to be determined in the fullness of
time.
I
warned myself against making determinative findings on the
allegations made mainly because to do so would pre-empt whatever
findings may be made against the first respondent in terms of the
disciplinary and criminal laws of the country.
I
therefore decided to apply my mind to the pertinent facts of the case
without being influenced by the scathing attacks made on the first
respondent as aforesaid.
The
applicant's case as set out in the founding affidavit was to the
following effect.
It
averred that it was declared the highest bidder at a judicial auction
held on 18 September, 2017 wherein the first respondent's property
which had been judicially attached was up for sale to satisfy the
judgment in case no. HC3331/14 made in favour of the fifth respondent
against the first respondent.
The
applicant was declared the highest bidder having offered
US$270,000.00 for the property. Following the dismissal of an
objection to the confirmation of the sale filed by the first
respondent, the applicant avers that it paid the purchase price of
$270,000.00 to the fourth respondent as confirmed by the letter from
the fourth respondent dated 6 November, 2018 addressed to the fifth
respondent's legal practitioners as execution creditor.
The
applicant paid transfer fees to the fifth respondent's legal
practitioners in the sum of US$23,100.00 on 9 November, 2018 as per
proforma invoice of the same date prepared by the fifth respondent's
legal practitioners.
The
applicant attached a copy of judgment no. HH604/18 by MATHONSI J (as
he then was) wherein the first respondent had in case no. HC11349/17
challenged the fourth respondent's decision to confirm the sale of
the property to the applicant.
Judgment
HH604/18 was delivered on 3 October, 2018 and the first respondent's
challenge to confirmation was dismissed.
Judgment
no. HH604/18 also disposed of case no. HC2650/18 brought by the fifth
respondent herein as applicant therein. Case no's HC11349/17 and
HC2650/18 were consolidated for purposes of hearing.
In
case no. HC2650/18, the fifth respondent prayed for a declaratur
to be made by the court to the effect that once the Sheriff had
confirmed a sale after dismissal of any objection(s) made in terms of
Rule 359(7), then the Sheriff was obliged to pass transfer to the
purchaser as provided for in rule 361 of the High Court Rules (1971).
The
court dismissed the application for the declaratur.
In
dismissing the application for the declaratur,
the learned judge albeit agreeing that rule 361 in its wording
appeared to support, the fifth applicant's interpretation that
following confirmation of the sale and compliance with sale
conditions the Sheriff was required to transfer the property to the
purchaser against payment of the purchase price, it made sense for
the Sheriff to await giving transfer to the purchaser until all
objection procedures had been exhausted.
The
learned judge also held that the court had the discretion to regulate
its processes.
In
commenting on the provisions of section 14 of the High Court Act,
[Chapter
7:06]
which gives this court jurisdiction to determine existing, future and
contingent rights, the learned judge after referring to several
decided cases correctly held that the grant of a declaratory order
was a discretionary matter for the court.
In
my view there is a further consideration which attaches to the
interpretation of rule 361.
The
consideration has to do with rules of statutory interpretation. Rules
of court as with other legislative statutes are read as a whole and
not as a collection of isolated phrases. Rule 361 should be read
together with the rest of the rules regarding execution on immovable
property. Rule 359(8) and (9) provide that the sheriff's decision
to confirm a sale is open to challenge by “any person” who is
aggrieved by the sheriff's decision made in terms of rule 359(7),
that is, to confirm or cancel the sale.
The
person challenges the decision by way of court application made
within one month of the sheriff's decision.
In
terms of subrule 9 of rule 359, the court may confirm, vary or set
aside the sheriff's decision or “make such order as the court
considers appropriate in the circumstances.”
It
cannot have been the rule maker's intention that the sheriff should
carry out a concomitant transfer of the property upon his or her
confirmation of the sale without allowing for the exercise by
aggrieved parties of their right to object to court. Such
interpretation would render nugatory the rights of objectors
aggrieved by the Sheriff's decision.
Therefore
rule 361 should be read as directing the sheriff to transfer the
property following his or her confirmation of the sale, only after
allowing for the objection period of one month to lapse and no
aggrieved party has applied to court to set aside the sheriff's
decision or after all court processes have been exhausted in the
event that an aggrieved party has applied to court.
This
includes the appeal process which would need to be exhausted where
the challenge by an aggrieved person has progressed that far.
It
must therefore follow, that even if l was to cancel the deed of
transfer in favour of second respondent, an order of the transfer of
the property to the applicant by the fourth respondent can only be
made if all court processes have been completed to finality.
In
the judgment HH604/18, the learned judge made an order that “this
order shall not be suspended by any appeal by either party but shall
remain in force not withstanding such appeal.” The first respondent
was dissatisfied with the judgment. He noted an appeal against that
judgment.
The
notice of appeal was not attached to the papers but it appears common
cause that such appeal was noted.
The
applicant in its founding affidavit did not relate to the appeal nor
deny its existence save in the answering affidavit in paragraph 4
where in denying that the matter is lis
pendens,
the applicant contended that an order was made that the noting of an
appeal would not suspend the operation of judgment no. HH604/18.
The
first respondent on the other hand averred that his appeal was also
against the order decreeing the judgment to remain operational
despite the noting of the appeal.
The
applicant also averred that the “purported” appeal did not affect
this application.
I
cannot agree in view of my interpretation that transfer in terms of
rule 361 cannot be proceeded with until the court challenge processes
given in rules 359(8) and (9) have been finalized.
The
applicant also attached the judgment of the Honourable BERE JA
delivered under case no. SC843/18 and bearing case citation SC2/19.
In
that application, the first respondent filed an urgent application
seeking interim relief that transfer of the property be stayed
pending the determination of his appeal against the judgment
HH604/18.
The
learned judge dismissed the application for want of form and for the
first respondent's failure to apply for condonation or to give an
explanation for not using form 29 or 29B of the rules of court.
The
learned judge expressed his displeasure at what he described as
“errant conduct” by the first respondent in engaging in endless
and hopeless litigation to frustrate full execution on the judgment.
The
learned judge's remarks were expressed obiter
because the first respondent's application was found lacking or
wanting as to form.
What
however did not escape my attention was that neither MATHONSI J (as
he then was) nor Bere
JA
made an order specific that the fourth respondent should transfer the
property to the applicant.
The
learned judges ruled in favour of the continuation of due process of
execution.
The
first respondent then purported to correct his defective application
which had been dismissed by BERE JA for want of form by filing
another application on 21 January, 2019 seeking the same relief as
sought in the dismissed application.
Under
case no SC15/19, the Honourable GWAUNZWA DCJ struck the application
off the roll.
I
imagine that since the same application had not been struck off the
roll by BERE JA but dismissed, it was incompetent for the first
respondent to file the same application seeking the same relief. The
earlier dismissal had the effect of res judicata on the issue.
The
first respondent however indicated that his appeal was still pending,
a fact which was not disputed by the applicant.
The
applicant referred to the judgment of this court in HH209/19 in case
no HC1444/2019 delivered by MANZUNZU J on 14 March, 2019.
In
that case the applicant filed an urgent application in which he cited
all the other parties in the application before me as respondents.
Significantly the applicant herein was the fifth respondent therein.
The
first respondent herein was first respondent therein, the second
respondent herein was also second respondent therein and the third
and fourth respondents herein were therein third and fourth
respondents. There was a fifth respondent, namely the Law Society of
Zimbabwe which is not cited in the current application.
In
the interim relief and in particular in paragraph (i) of that
application, the fifth respondent as applicant therein sought the
following relief;
“That
Deed of Transfer No. 708/19, issued in the name of Tendai
Mashayamunda in respect of a piece of land in the district of
Salisbury called the remainder of Subdivision C of Lot 6 of Lot 190,
191, 192, 193, 194 and 195 Highlands Estate of Welmold measuring
4,377 square metres be and is hereby cancelled.”
The
rest of the relief sought in both the interim relief and final relief
concerned prayers for orders of the de-registration of the first
respondent herein as a legal practitioner, the placement of his legal
firm under curatorship and incidental relief including costs.
It
is common cause that application HC1444/19 was dismissed with costs
by MANZUNZU J. The case was determined on the merits and the decision
by MANZUNZU J was therefore final. In his judgment, MANZUNZU J made
certain observations which l find apposite in so far as the present
application is concerned. The learned judge stated as follows on page
3 of the cyclostyled judgment;
“Despite
the judicial attachment of Chiutsi's immovable property and in fact
with a sale having been confirmed by the Sheriff, against all odds,
Chiutsi sold the property and transferred ownership to the second
respondent.
The
applicant's interest in this application is for him to get his
money from Chiutsi. The sale of Chiutsi's immovable property to the
fifth respondent by the Sheriff had at least guaranteed him of his
money. He fears the second respondent may pass title to a third party
complicating his chances of recovering his money.
Chiutsi
said he has now paid $115,000.00 to the applicant through his
lawyers' trust account.
The
payment has been acknowledged though there is a dispute as to whether
or not such payment is considered as payment towards the judgment
debt because, as Mr Biti
argued, it goes towards costs.
As
I have already pointed out, the applicant's interest is to get his
money, otherwise he cannot be seen fighting a case for the fifth
respondent as to whether the sale between fifth respondent and
sheriff should proceed. He has no mandate to do so.“
The
above pronouncements hold true in the application before me in so far
as the interests of the fifth respondent is concerned. His interest
as the judgment creditor in case no. HC3331/14 is to have the
judgment order satisfied and must remain so.
What
however happened is that in the case before MANZUNZU J, the fifth
respondent prayed for cancellation of the deed of transfer no. 708/19
in favour of the second respondent and left it at that.
He
did not ask for any other relief as would have ensured that he gets
payment in terms of the judgment granted in his favour.
The
fifth respondent noted an appeal to the Supreme Court against the
judgment of MANZUNZU J. The appeal was noted on 15 March, 2019. It is
pending before the Supreme Court under case no. SC140/19.
The
first respondent in the application before me also raised the defence
of lis
pendens.
He
averred in his opposing affidavit that there was a pending case
HC649/17 in which he challenged the attachment of the property in
question and that the matter was still to be resolved. He also
averred that there was further pending litigation in case no.
HC8122/17 and that the fourth respondent should not have proceeded
with the sale in execution.
He
lastly averred that he had a pending appeal before the Supreme Court
and that in any event the Judicial Services Commission had directed
the fourth respondent to stay execution until the Supreme Court had
determined the first respondent's appeal made against the judgment
of MATHONSI J (as he then was).
The
applicant attached copy of a letter from the Secretary of the
Judicial Service Commission dated 12 November, 2018 directing the
fourth respondent to stay execution pending appeal.
In
response to the defence of lis
pendens,
the applicant in its answering affidavit did not deny the existence
of the alleged pending litigations nor the appeal.
It
took the position that the gist of its application was that the first
respondent had sold to the second respondent the property in question
in the full knowledge that the property had been attached by the
fourth respondent.
The
applicant further averred that the matter was not lis
pendens
by virtue of the first respondent's pending appeal because the
appeal was also against the order that the judgment would remain
operational despite the noting of any appeal.
The
applicant also averred that BERE JA had dismissed the first
respondent's attempt to interdict the transfer of the property to
the applicant on the basis of a pending appeal. The applicant stated
in the final sentence in paragraph 4 of the answering affidavit, thus
–
“Therefore,
the fact that first respondent has noted a purported appeal against
Justice MATHONSI's judgment does not affect this application.”
In
regard to res
judicata,
the first respondent averred that the applicant filed an affidavit in
case no. HC1444/19 specifically requesting the court to cancel the
title deed in favour of the second respondent. The applicant further
averred that the dismissal of case no. HC1444/19 by MANZUNZU J
rendered the issue of cancellation of the deed of transfer to second
respondent res
judicata
and that this court was functus
officio
on the issue.
In
response to the defence of res
judicata,
the applicant averred that the judgment of MANZUNZU J did not deal
with the merits of application. The applicant averred that whilst
application HC1444/19 was concerned with the protection of the fifth
respondent's rights, the applicant in casu
was
seeking to enforce its rights to transfer to itself the property in
question as purchaser.
In
regard to the preliminary defences raised, it is trite that the court
has an unfettered right to refer to its records: see Mhungu
v Mtindi
1986 (2) ZLR 171 in which McNALLY JA at p173A– B stated:
“It
seems clear from the judgment in which the learned judge a quo
granted summary judgment that he made reference to the papers in case
no. HC3406/84. In so doing he was undoubtedly right. In general the
court is always entitled to make reference to its own records and
proceedings and to take note of their contents…”
Guided
by the above dicta,
I perused the records referred to by the second respondent.
Significantly and in relation to case no. HC1449/19 decided by
MANZUNZU J, the applicant herein did not oppose the application. The
applicant in fact supported in the application as shown in the
affidavit which was filed of record on 28 February, 2019. In
paragraph 2 of the applicant's affidavit thereon, it is stated;
“2.
I have perused the urgent chamber application for the cancellation
and setting aside of Title Deed No. 708/2019, together with the
certificate of urgency and the founding affidavit of the applicant in
support of the application. I confirm that fifth respondent is in
support of the application and the relief sought as fifth respondent
has an inherent interest in this matter as is apparent from
applicant's affidavit itself.”
The
applicant then chronicled the history of how it bought the property
on the sheriff's auction, the declaration made by the Sheriff that
the applicant was the highest bidder and purchaser, the challenges
mounted by the first respondent including attacking the court
judgment by MATHONSI J (as then he was); that applicant paid the
purchase price and transfer fees, the failed interdict applications
made by the first respondent in the Supreme Court and determined by
BERE JA and GWAUNZA DCJ, the allegation that first respondent's
appeal no. SC734/18 was dismissed for non-compliance with the rules
and that the sale of the property by the first respondent was
fraudulent as the first respondent was aware of the prior sale to the
applicant made on 18 September, 2017.
The
applicant in paragraph 13 of the affidavit accused the first
respondent herein of having connived with officials of the third
respondent herein to perpetrate a fraud by registering the transfer
to the second respondent herein. The applicant states as follows in
paragraphs 13–16 of its affidavit:
“13….
The sale and transfer of the property to the second respondent is
void and that void transaction must be quashed.
14.
The fact is the title deed in favour of the second respondent is a
fraud and it must be cancelled. The actions of the first respondent
are criminal in nature and should not be condoned.
15.
Fifth respondent has and continues to suffer prejudice at the actions
of the first respondent which if allowed to stand, will greatly
prejudice the applicant, fifth respondent and our justice system.
16.
It is therefore fifth respondent's position that there is
sufficient basis for this Honourable Court to grant the relief sought
for by the applicant. First respondent also ought to be ordered to
pay the costs on a punitive scale.”
It
is therefore clear that in case no HC1449/19 the applicant took
advantage of the application filed by the fifth respondent to present
its own case to the court.
The
relief sought by the fifth respondent was in effect for the benefit
of the applicant as well.
In
a manner of speaking, the applicant took the position of a
co-applicant and prayed to the court that the relief sought by the
fifth respondent herein should be granted.
The
applicant argued before MANZUNZU J for the relief of cancellation of
the Deed of Transfer made in favour of the second respondent to be
cancelled. In paragraph 15 of its affidavit, the applicant averred
that it continued to suffer prejudice as did the fifth respondent.
The applicant adopted the applicant's cause as its own.
The
cancellation of the deed of transfer had such relief sought been
granted would have benefitted the applicant.
The
present application would not have been made.
The
applicant has by this application sought the same relief which it
looked forward to getting in case no. HC1449/19 before MANZUNZU J.
The
extension to the same order then and now sought that the prior deed
be revived would simply have followed as a causa
causans
of the cancellation of the now holding deed which was the
causa sine qua non
of the revival of the prior deed. The same reasoning would apply to
the faulty relief sought that the third respondent transfers the
property to the applicant.
I
have already pointed out that the third respondent does not transfer
property but registers transfers. Transfers are done by the seller to
the purchaser.
There
can be no doubt the dismissal of the application by MANZUNZU J
resulted in the fifth respondent and the applicant being denied the
common relief which they sought.
In
deciding whether the plea of res
judicata
applies against the applicant in this case and similarly against the
fifth respondent, I need to restate the requirements for a successful
plea of res
judicata.
In
the case of Wilson
Nakunyunda Banda and 45 others v Zimbabwe Iron and Steel Corporation
SC54/99,
SANDURA JA stated on p3 of the cyclostyled judgment –
“The
requisites of the plea of res judicata have been set out in a number
of previous cases. In Pretorious
v Barkly East Divisional Council
1914 AD 407. SEARLE J set them out as follows at p 409:
As
to the first point the requisites for a plea of res
judicata
have several times been laid down in this court.
The
three requisites of a plea of res
judicata,
said the Chief Justice in Hiddingh
v Denysson
L
(3 Juta p424) quoting Voet (44.2.3) are that the action in respect of
which judgment has been given must have been between the same parties
or their privies, concerning the same subject matter and founded upon
the same cause of complaint as the action in which the defence is
raised. In order to determine the cause of complaint, the pleadings
and not the evidence in the case must be looked at.”
The
pleadings in case no. 1449/19 and in casu
are
similar.
What
has simply happened is that the applicant herein having made cause
with the fifth respondent as applicant in HC1449/19 and lost the case
has decided out of misplaced ingenuity to file this application which
otherwise involves the same parties, the same subject matter and
founded on the same cause of complaint as was before the court in
case no. HC1449/19 which MANZUNZU J dismissed.
The
fact that the applicant was a respondent does not alter the position.
A
respondent who participates in an application is as much a party to
the case as the applicant. Such respondent becomes an interested
party who will be affected and bound by the order which the court may
grant. The respondent as much as the applicant has a right of appeal
against the judgment in which such respondent is a party.
In
casu,
the applicant herein did not appeal against the judgment of MANZUNZU
J which means that it did not take issue with the dismissal of the
application.
The
dismissal of the application meant that the current deed in the name
of the second respondent remained extant yet in the application case
no HC1449/19 the applicant had prayed for the order of cancellation
of the deed as sought by the fifth respondent to be granted.
In
the current application, the applicant now took the leading role and
petitioned the court for the same relief as previously sought in case
no. HC1449/19 with the fifth respondent who was applicant in case no.
HC1449/19 being now cited again as fifth respondent.
The
fifth respondent for its part filed what it terms a supporting
affidavit on 12 April, 2019.
It
is a curious supporting affidavit in that it comprises 33 pages
compared to only 7 pages which make up the founding affidavit of the
applicant. The affidavit has 169 individualized paragraphs containing
separate allegations in line with rule 227(1)(b). The annexures to
the supporting affidavit comprise 24 pages. In totality therefore the
fifth respondent's so called supporting affidavit with annexures
comprises 57 pages.
The
fifth respondent's affidavit goes further than the applicant's
affidavit in expanding on the grounds on which the relief sought by
the applicant should be granted. Significantly, the fifth respondent
in the penultimate paragraph of the supporting affidavit in paragraph
168 stated:
“Ad
paragraphs 1 to 28 of the applicant's founding affidavit
168.
I have read the founding affidavit of Mr Kingstone Hamutendi
Munyawarara. I associate myself with the same. I agree with every
contention made therein and l seek that an order be granted in terms
of the draft.”
Other
than paragraph 168, the fifth respondent in the bulk of his affidavit
was setting out facts which found the application more
comprehensively in content and detail than the applicant had done in
the founding affidavit.
In
my view the procedures which was adopted by the fifth respondent is
wrong.
Form
29 referred to in Rule 230 on application procedure calls upon the
respondents to oppose the relief sought by the applicant if they wish
to do so. This implies that the respondent can also consent to the
application expressly by stating so or not file any papers in which
case the respondent who does not file any opposing papers is deemed
not to be opposed to the order sought.
Where
the respondent seeks to bring its own application and the cause of
action, subject matter and the parties are the same, he or she can
file his or her own application separately and apply for
consolidation of the applications for purposes of hearing.
The
fifth respondent did not do this and instead sought to sneak in its
own dispute for resolution by the court through the back door in an
application brought by another party.
To
compound matters, the fifth respondent could not competently seek the
court's determination on issue which it brought before the court
and judgment which he has appealed against was given by the same
court.
The
matter is therefore res
judicata
as far as this court is concerned and lis
pendens
as far as the Supreme Court appeal is concerned.
This
court has inherent power in terms of section 176 of the Constitution
to regulate its processes and in the process of doing so to guard
against abuse of court process by litigants.
The
fifth respondent seeks to abuse the court process by asking the court
to determine and grant an order which he failed to obtain in case no.
HC1449/19 and appealed against that decision. Obviously if the order
is granted, the appeal becomes academic and may not be pursued
leaving this court with two conflicting judgments.
In
my view, what was before MANZUNZU J was a dispute which involved all
the parties herein. A decision thereon was granted. One of the
parties namely the fifth respondent herein appealed against the
judgment. The others including the applicant did not do so.
The
court is not a gambling place where parties take chances to try their
luck where one who led the group failed to get relief which each
member of the group was seeking in the prior or failed application.
I
therefore found merit in the first respondent's plea of res
judicata
for the reasons l have outlined.
The
dispute before me was determined in case no. HC1449/19 and save for
the fifth respondent herein who was applicant, parties who did not
appeal against the judgment when in fact they were dissatisfied with
it must live with the judgment.
For
the fifth respondent, the matter is not only res
judicata
in this court but is lis
pendens
in the Supreme Court.
Assuming
that my findings upholding the plea of res judicata are not properly
made, I would still determine the matter against the applicant on the
basis that it would be inequitable in the circumstances of this case
to cancel the deed of transfer in favour of the second respondent.
The
second respondent in a lengthy opposing affidavit chronicled how he
came to buy the property in question. The second respondent did not
connive with the first respondent when he purchased the property. The
property was purchased through an estate agent company and the estate
agent levied and was paid its commission.
The
second respondent paid transfer fees and registration cost and all
taxes like capital gains tax. The second respondent before purchasing
the property and taking transfer investigated whether there were any
encumbrances and found none. Indeed, the legal practitioner who
conveyanced the property did not find any caveats or other
encumbrances noted against first respondent's title deed to the
property.
The
property was to all intents and purposes and to an outsider free for
sale, conveyance and transfer.
The
second respondent averred that he was an innocent purchaser who took
all reasonable steps as could be expected of any astute and
reasonable would be purchaser to investigate that the property was
free of impediments to purchase and transfer.
In
response to the averment by the second respondent that he was an
innocent purchaser the applicant did not specifically deny the second
respondent's assertion nor allege any facts tending to show
otherwise. It stated in paragraph 18 of the answering affidavit:
“18.
I am also unable to comment on whether the second respondent was an
innocent purchaser or not as I am not privy to the sale. Second
applicant (sic) it to purchase the property from first respondent.
However, my point still remains that first respondent had not right
to dispose a property which was under judicial attachment and which
he knew had already been sold to the applicant.”
In
relation to the existence of a caveat on the property and the second
respondent's assertions that there was no caveat noted on the
property when he investigated whether or not the property was free
for conveyance, the applicant stated in paragraph 22 of the answering
affidavit as follows:
“22.
I should hasten to repeat that fourth respondent has already
confirmed that a caveat had been attached to the property. This has
been confirmed by the fifth respondent. I have no reason to believe
that fourth respondent and the lawyers for fifth respondent, being
officers of this Honourable Court, would have reason to mislead this
Honourable Court that a caveat had been registered against the
property.”
The
issue about the caveat being registered against the property is not
about whether or not to believe the fourth respondent's or fifth
respondent's lawyers on their say so that a caveat was registered
against the property.
The
registration of a caveat against a registered title deed is a
quasi-judicial act which is performed by the third respondent.
The
procedure for attachment of immovable property is set out in Rule 347
of the High Court Rules (1971).
In
terms thereof, the fourth respondent or his deputy should serve a
notice in form no. 43 or 44 as applicable upon the property owner and
the Registrar of the property. The notice to the owner of the
property is in form 43 whilst the notice to the Registrar of Deeds is
in form 44. The notice to the Registrar reads as follows in material
particulars after listing of the parties and the case number:
“Take
notice that in pursuance of the writ of execution issued on the …day
of… at …., a copy of which is annexed hereto, I hereby lay under
judicial attachment the undermentioned immovable property namely…..
(describe
in full the immovable property attached)
in order to satisfy the exigency of the said writ of execution and
the costs and charges thereof.
You
are hereby requested to note against the said property in your books
of registration that this judicial attachment has been made, and
advise me that you have done so.”
The
noting of caveat is meant to alert the world at large that the
property against which the caveat has been noted is under an
encumbrance the details of which can be checked by reference to the
caveat.
The
second respondent referred to the affidavit of the conveyancing legal
practitioner Jacqueline Sande who stated that she took diligent steps
to verify with the third respondent's offices that the property was
not encumbered and thus she proceeded to transfer the property.
The
fourth respondent did not oppose the application nor did the third
respondent. It is customary for them not to participate and abide the
court's determination instead.
I
however noted that fourth respondent did not prepare and file his
report as he did in case no. HC1449/19.
The
court cannot therefore ascertain whether the fourth respondent
complied with rule 347(4) and served a form 44 notice.
The
respondent in his report in case no. HC1449/19 indicated that he
placed a caveat no.364/16 on the property on 18 July, 2016.
There
was nothing placed before the court to indicate that caveat no.
364/16 if it existed related to the property in dispute.
Mr
Mpofu
for the applicant faced with the naked reality that there was no
proof of the caveat submitted without proof to that effect that the
caveat must have been removed from the third respondent's records
by the first respondent.
I
do not have proof of first respondent's shenanigans as alleged. The
first respondent would have connived with the third respondent's
and/or his or her officers.
Again
this would amount to speculation.
The
applicant did however base its argument for relief on the fact that
the property was under judicial attachment and that its sale by the
first respondent was invalid.
It
was argued that the first respondent's conduct in selling the
attached property violated section 22 of the High Court Act in that
the first respondent acted fraudulently. In consequence thereof it
was argued that since the sale of the property to the second
respondent resulted from a fraud, it should be set aside and the deed
of transfer cancelled since the sale was a nullity and nothing stands
on a nullity.
Section
22(1)(2)(b) of the High Court Act, provides as follows:
“Any
person who –
(a)…………
(b)
being aware that goods are under arrest, interdict or attachment by
the High Court, makes away with or deposes of those goods in a manner
not authorized by law or knowingly permits those goods, if in his
possession or under his control, to be made away with or disposed of
in such a manner;
Shall
be guilty of an offence and liable to a free not exceeding six months
or to both such fine and such imprisonment.”
The
quoted legislation does not provide that an innocent third purchaser
of attached goods will be deprived of the goods.
Consideration
must in any event be given to the fact that there is no proof which
was placed before me to establish that the attachment itself was
procedurally processed in terms of the rules. If nothing sits on a
nullity then nothing would sit on an invalid attachment.
The
applicant relying on the judgment of PATEL J (as he then was) in
Pambona
Kudakwashe v Muzira Mathias and others
HH52/2006 submitted that the transfer to the second respondent was
not valid because the first respondent lost title to the property
upon confirmation of the sale in execution.
I
disagree.
Title
in the property remained in the first respondent but would be
encumbered by the attachment if such attachment was proven. Title
would only be divested from the first respondent upon transfer to the
applicant or any other party whereupon the transferee would acquire
real rights to the property.
The
rule that no one can give what he does not have and no one can
transfer any right greater than he himself possesses is correct
provided that it proven that as in this case that the property had a
caveat registered against it such registration being shown to have
been procedurally done.
The
applicant further relied on the judgments of this court in Katsande
v Katsande
2010 (2) ZLR 82 and Katirawu
v Katirawu & Others
2007 (2) ZLR 64 to content that nothing attaches on a nullity.
I
do accept the general rule and the general approach of the court but
would caution that a case authority is only binding or persuasive if
the ratio
decidendi
sought to be invoked pertains to a factual scenario which is similar
to the case under determination because every case is determined on
its own peculiar facts and circumstances. The facts in the judgments
above were different from the facts of this application.
The
applicant in its argument submitted as in paragraph 16 of the heads
of argument that a caveat had been registered against the title deed
and that consequently it was a wonder how transfer had been
registered into the name of the second respondent.
He
who avers must of course prove.
I
have already noted that the so called caveat existed in name only and
in the words of the applicant and counsel. It was just not proved to
have been noted as l have already observed.
It
therefore appears to me that in considering the authorities cited
herein, sight must not be lost that the attachment itself was not
shown to have been done in terms of sale 347(4).
The
case of Maphosa
& Another v Cook & Others
1997 (2) ZLR 314 again cited by the applicant would be more
persuasive.
The
distinction sought to be drawn by the applicant that in casu,
the sale had been confirmed and the purchase price paid does not
persuade me otherwise because the confirmation of the sale and
payment of the purchase price is not an end itself.
The
sale remains suspensive until the challenge procedure provided for in
rule 359(8) and appeal procedures have been exhausted.
In
a manner of speaking, one can say that the purchase of an immovable
property consequent upon a judicial sale in execution can turn out to
be a gamble when challenges are mounted because it can take forever
before transfer is given to the purchaser in the event of the
challenge process being exhausted in favour of upholding the sale.
The
applicant raised what it coined as the real question as “can a
judgment debtor sale (sic) and transfer property to a third party
after a sale has been confirmed?”
In
my view the question cannot be answered by a simple yes or no.
The
intricate circumstances of each case must be considered against the
determination I made that rule 361 must be read together with other
relevant rules.
I
postulate that the real issue is to answer the question. “When is
confirmation of a sale deemed to be perfecta?”
It
can only be perfecta and final after the exhaustion of the challenge
process where a challenge has been mounted.
It
was not suggested that the challenge process had been exhausted. I
already dealt with this issue.
The
position which l consider to be the correct one is to understand that
the rules of court are made for the convenience of the court. The
court is not made for the rules.
The
process of execution of a judgment including a sale in execution is a
process of the court and the court can regulate its processes.
The
circumstances of this case require that the equities of the case be
considered.
The
applicant's purchase price is held by the fourth respondent and
thus by the court. The fourth respondent can refund the purchase
price paid. The applicant already failed in its challenge in case no
HC1449/19 to the sale of the property wherein it was a respondent and
the fifth respondent the applicant. Having ended up on the losing
aside when it made cause with the fifth respondent, the applicant did
not appeal but launched this application which l ruled to be res
judicata
and lis
pendens
as against fifth respondent.
The
fifth respondent for his part as judgment creditor accepted a payment
of $115,000.00 made by the first respondent to his legal
practitioner. The first respondent has offered to pay any balance
found to be due since he disputes that the money he paid did not
cover the debt but costs only. Further costs have not been taxed nor
agreed other than the sum of $38,873.00. The judgment debt was for
$70,000.00.
The
two can resolve the disputed balance.
The
second respondent took transfer of the property in the absence of a
caveat having been noted against the property. If such caveat had
been noted the second respondent would have been alerted to its
existence.
In
my determination, taking into account the peculiar circumstances of
this case and that the process of execution is one which the court
can regulate, there is no equitable reason to cancel the deed of
transfer in favour of the second respondent. If the applicant
considers himself hard done by the loss of the property he has the
alternative remedy of suing for damages.
There
is in view of the payment made by the first respondent to the
judgment creditor no just cause for continued execution.
I
need to lastly deal with the question of costs.
Costs
are in the discretion of the court with the general rule being that
costs follow the event. This means that if the application should be
dismissed the applicant must bear the costs of suit. The
circumstances of this case are however peculiar.
The
applicant and fifth respondent's positions were to pray for
cancellation of the deed of transfer in the name of the second
respondent. They mounted a sustained challenge to have the current
deed cancelled despite the fact that in the case of the fifth
respondent the same matter is pending determination on appeal by the
Supreme Court.
The
third and fourth respondents did not file any papers and did not
participate in the hearing. The second respondent is entirely
blameless in this whole saga. He deserves to be awarded his costs.
His attitude throughout the progress of the case has been to maintain
his position that he is an innocent purchaser who is being dragged
into the mud despite being blameless.
Indeed
none of the parties laid blame on him.
He
must be awarded his costs.
The
first respondent is the author of all the disputes which have
culminated in this litigation. He did not disclose to the second
respondent the correct history surrounding the property including the
first respondent's battles to save it from execution. I am not
persuaded to grant him his costs.
I
accordingly dispose the application as follows:
1.
For the reasons that the application is res
judicata
and in any event devoid of merit on the merits, it is hereby
dismissed.
2.
The applicant shall pay the 2nd
respondent's costs of suit.
3.
In regard to 1st
and 5th
respondents each party shall pay its own costs.
Gill,
Godlonton & Gerrans,
applicant's legal practitioners
Mtetwa
& Nyambirai,
2nd
respondent's legal practitioners
Tendai
Biti Law,
5th
respondent's legal practitioners
