Interim Interdict or Final Order re: Relief Conflicting with Statutes, Extant Court Orders & Prima Facie Lawful Conduct

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date.

The return date was, however, not stated in the order.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007.

This prompted the application in the court a quo wherein the first respondent sought an order that the sale, registration, and transfer of the property in question to the appellant be declared null and void; that the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void; and that the first respondent be declared the sole owner of the property in question.

The first respondent averred that the appointment of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary, and during a period when the executrix testamentary was still holding office and was not incapacitated, was not valid in law.

He also averred, that, when the second respondent sold Stand 382 to the appellant, he had no title to pass and that the sale was done in the second respondent's personal capacity and without authority.

He further averred, that, when the second respondent sold the property to the appellant, he knew that it had already been sold to the first respondent as he had co-signed the agreement of sale between the first respondent and the executrix testamentary.

Further, it was also alleged, by the first respondent, that, the fourth respondent registered the property into the name of the appellant without checking his register.

Furthermore, that the fifth respondent, who was the conveyancer of the property did not perform due diligence before drafting and lodging conveyancing papers with the Deeds Registry. Had he exercised due dilligence and care he would have discovered that the immovable property belonged to the first respondent as it had already been registered into his name more than two months earlier.

The first respondent further indicated that the position that was stated by the executrix testamentary in the letter of 1 September 2007 was the correct position at law.

The letter had raised, with the sixth respondent, the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from office by a competent court or judge. It was thus averred that the sixth respondent acted without authority when he appointed the third respondent as executor dative, and, consequently, all acts done by the executor dative in relation to the transfer of the property were of no force or effect.

On the other hand, the appellant contended that the application ought not to succeed for the reason that the first respondent was alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross-examined in trial proceedings.

Secondly, he contended that there were disputes of fact which could not be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property; how the Master authorized the third respondent to deal with the property; and how the first respondent (applicant then) sought to register his property with the fourth respondent. These issues, he contended, could not be adequately addressed in affidavits.

Thirdly, he contended that the first respondent did not challenge or cause the suspension of the 'compellation order' authorizing transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court, in default, on 8 November 2006.

He further contended, that, the court therein decided that the property belonged to him, and, until that order is suspended, the court a quo could not hear the first respondent's case.

The appellant also contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed, by letter, that the property belongs to him.

He contended, that, the first respondent's supposed title deed is not a valid title deed and does not confer any rights on him hence the first respondent could not challenge the registration of a property which he does not own. As such, he averred that there was no double registration of the immovable property in issue.

The appellant further contended that the first respondent's purported agreement of sale, dated November 1999, with the executrix testamentary, was invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006.

He further averred that the first respondent had sued the wrong party as he should have sued the estate from which his rights emanate in terms of the agreement of sale.

The appellant thus moved the court to dismiss the application with costs on the higher scale.

After considering submissions from the parties, and papers filed of record, the court a quo found that the appellant's Deed was unlawful and therefore null and void as his registration as owner was subsequent to that of the first respondent over the same property.

It was held that this was sufficient justification for the court to declare the registration of the appellant as owner to be null and void as deeds follow the sequence of their relative causes.

It also found, that, at the time ownership was purportedly passed to the appellant, the property no longer belonged to the estate, but to the first respondent; thus, it had no rights to transfer to the appellant.

Pertaining to the executor, the court a quo found that the appointment of the third respondent was irregular in that he was appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated, and still sane, thus rendering any acts carried out by him in the name of the estate as of no legal consequence.

The court a quo further found that the property was sold to the appellant by the second respondent, who was an heir to the estate, at a time when such property had not yet vested in him.

It was, on this basis, that the court a quo held the purported sale to be fraught with illegality and therefore a nullity. It thus concluded that both the agreement of sale and the deed of transfer in favour of the appellant were, in the circumstances, null and void.

Pertaining to the interdict, the court a quo found that the interim interdict granted had no return date and that it could not have been the intention of the Magistrates Court for it to be operative indefinitely as it could end up having the effect of a final interdict.

It further found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him.

On this basis, it found that the purported transfer to the appellant was invalid.

Aggrieved by the decision of the court a quo, the appellant noted the appeal to this Court on the following grounds;

1. The Learned Judge a quo erred in failing to appreciate and make a finding that there was a material dispute of fact regarding the validity of the agreements of sale between the appellant and first respondent, and, consequently, the deeds of transfer, which disputes could not be resolved on the papers.

2. The learned Judge a quo erred in her finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

3. The learned judge a quo erred at law in invalidating the appointed executor dative and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into the appellant's name.

4. The learned judge a quo erred at law in relying upon an agreement of sale which was never placed before the court for its scrutiny....,.

In motivating the appeal, the appellant's counsel submitted that the order of the court a quo was incompetent as it conflicted with another order of the Magistrates Court in terms of which a rule nisi was issued prohibiting the second and third respondents from transferring or disposing of the property in dispute.

He submitted, that, the court a quo ought to have set aside that order, failure of which it remains extant and commands obedience until set aside....,.

Conversely, counsel for the first respondent submitted, that, the rule nisi did not have a return date hence it lapsed on 31 of December 2006 as it could not have been the intention of the Magistrates Court that it should operate indefinitely.

Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date.

The return date was, however, not stated in the order.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007.

This prompted the application in the court a quo wherein the first respondent sought an order that the sale, registration, and transfer of the property in question to the appellant be declared null and void; that the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void; and that the first respondent be declared the sole owner of the property in question.

The first respondent averred that the appointment of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary, and during a period when the executrix testamentary was still holding office and was not incapacitated, was not valid in law.

He also averred, that, when the second respondent sold Stand 382 to the appellant, he had no title to pass and that the sale was done in the second respondent's personal capacity and without authority.

He further averred, that, when the second respondent sold the property to the appellant, he knew that it had already been sold to the first respondent as he had co-signed the agreement of sale between the first respondent and the executrix testamentary.

Further, it was also alleged, by the first respondent, that, the fourth respondent registered the property into the name of the appellant without checking his register.

Furthermore, that the fifth respondent, who was the conveyancer of the property did not perform due diligence before drafting and lodging conveyancing papers with the Deeds Registry. Had he exercised due dilligence and care he would have discovered that the immovable property belonged to the first respondent as it had already been registered into his name more than two months earlier.

The first respondent further indicated that the position that was stated by the executrix testamentary in the letter of 1 September 2007 was the correct position at law.

The letter had raised, with the sixth respondent, the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from office by a competent court or judge. It was thus averred that the sixth respondent acted without authority when he appointed the third respondent as executor dative, and, consequently, all acts done by the executor dative in relation to the transfer of the property were of no force or effect.

On the other hand, the appellant contended that the application ought not to succeed for the reason that the first respondent was alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross-examined in trial proceedings.

Secondly, he contended that there were disputes of fact which could not be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property; how the Master authorized the third respondent to deal with the property; and how the first respondent (applicant then) sought to register his property with the fourth respondent. These issues, he contended, could not be adequately addressed in affidavits.

Thirdly, he contended that the first respondent did not challenge or cause the suspension of the 'compellation order' authorizing transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court, in default, on 8 November 2006.

He further contended, that, the court therein decided that the property belonged to him, and, until that order is suspended, the court a quo could not hear the first respondent's case.

The appellant also contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed, by letter, that the property belongs to him.

He contended, that, the first respondent's supposed title deed is not a valid title deed and does not confer any rights on him hence the first respondent could not challenge the registration of a property which he does not own. As such, he averred that there was no double registration of the immovable property in issue.

The appellant further contended that the first respondent's purported agreement of sale, dated November 1999, with the executrix testamentary, was invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006.

He further averred that the first respondent had sued the wrong party as he should have sued the estate from which his rights emanate in terms of the agreement of sale.

The appellant thus moved the court to dismiss the application with costs on the higher scale.

After considering submissions from the parties, and papers filed of record, the court a quo found that the appellant's Deed was unlawful and therefore null and void as his registration as owner was subsequent to that of the first respondent over the same property.

It was held that this was sufficient justification for the court to declare the registration of the appellant as owner to be null and void as deeds follow the sequence of their relative causes.

It also found, that, at the time ownership was purportedly passed to the appellant, the property no longer belonged to the estate, but to the first respondent; thus, it had no rights to transfer to the appellant.

Pertaining to the executor, the court a quo found that the appointment of the third respondent was irregular in that he was appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated, and still sane, thus rendering any acts carried out by him in the name of the estate as of no legal consequence.

The court a quo further found that the property was sold to the appellant by the second respondent, who was an heir to the estate, at a time when such property had not yet vested in him.

It was, on this basis, that the court a quo held the purported sale to be fraught with illegality and therefore a nullity. It thus concluded that both the agreement of sale and the deed of transfer in favour of the appellant were, in the circumstances, null and void.

Pertaining to the interdict, the court a quo found that the interim interdict granted had no return date and that it could not have been the intention of the Magistrates Court for it to be operative indefinitely as it could end up having the effect of a final interdict.

It further found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him.

On this basis, it found that the purported transfer to the appellant was invalid.

Aggrieved by the decision of the court a quo, the appellant noted the appeal to this Court on the following grounds;

1. The Learned Judge a quo erred in failing to appreciate and make a finding that there was a material dispute of fact regarding the validity of the agreements of sale between the appellant and first respondent, and, consequently, the deeds of transfer, which disputes could not be resolved on the papers.

2. The learned Judge a quo erred in her finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

3. The learned judge a quo erred at law in invalidating the appointed executor dative and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into the appellant's name.

4. The learned judge a quo erred at law in relying upon an agreement of sale which was never placed before the court for its scrutiny....,.

In motivating the appeal, the appellant's counsel submitted that the order of the court a quo was incompetent as it conflicted with another order of the Magistrates Court in terms of which a rule nisi was issued prohibiting the second and third respondents from transferring or disposing of the property in dispute.

He submitted, that, the court a quo ought to have set aside that order, failure of which it remains extant and commands obedience until set aside....,.

Conversely, counsel for the first respondent submitted, that, the rule nisi did not have a return date hence it lapsed on 31 of December 2006 as it could not have been the intention of the Magistrates Court that it should operate indefinitely.

Administrative Law re: Presumptions of Regularity and Validity of Official Documents or Advice & Doctrine of Estoppel

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date.

The return date was, however, not stated in the order.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007.

This prompted the application in the court a quo wherein the first respondent sought an order that the sale, registration, and transfer of the property in question to the appellant be declared null and void; that the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void; and that the first respondent be declared the sole owner of the property in question....,.

The appellant..., contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed, by letter, that the property belongs to him....,.

Section 10 of the Deeds Registries Act [Chapter 20:05] provides that:

“10 When registration takes place

(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar's signature thereto:

Provided that no such deed which is one of a batch of interdependent deeds, intended for registration together, shall be deemed to be registered until all the deeds of the batch have been signed by the registrar.

(2) If, by inadvertence, the registrar's signature has not been affixed to a deed at the time at which the signature should have been affixed in the ordinary course, the registrar may affix his signature thereto when the omission is discovered, and the deed shall thereupon be deemed to have been registered at the time at which the signature should have been affixed.

(3) All endorsements or entries made on title deeds or in registers in connexion with the registration of any deed executed or attested by a registrar shall be deemed to have been effected simultaneously with the registration of such deed, although in fact they may have been made subsequent thereto.”…,.

By virtue of this section, the first respondent's title was deemed to have been registered on 2 April 2007 under transfer number 1597/2007 when the registrar affixed his signature.

Section 11 of the Deeds Registries Act further provides for deeds to follow sequence of their relative causes in these words:

“(1) Save as otherwise provided in this Act or as directed by the court —

(a) Transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made, and, if made in pursuance of testamentary disposition or intestate succession, they shall follow the sequence in which the right to ownership or other real right in the land accrued to the persons successively becoming vested with such right;

(b) It shall not be lawful to depart from any such sequence in recording in any deeds registry any change in the ownership in such land or of such real right unless the registrar is satisfied that the circumstances are exceptional and has consented to such departure:”…,.

From the foregoing, it was clear that the first respondent's registration of title preceded the appellant's....,.

Unfortunately for the appellant, sections 10 and 11 of the Deeds Registries Act protected the first respondent's position as the Registrar had affixed his signature on 2 April 2007.

Rules of Construction or Interpretation re: Deeming Provisions

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date.

The return date was, however, not stated in the order.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007....,.

The appellant..., contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed, by letter, that the property belongs to him....,.

Section 10 of the Deeds Registries Act [Chapter 20:05] provides that:

“10 When registration takes place

(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar's signature thereto:

Provided that no such deed which is one of a batch of interdependent deeds, intended for registration together, shall be deemed to be registered until all the deeds of the batch have been signed by the registrar.

(2) If, by inadvertence, the registrar's signature has not been affixed to a deed at the time at which the signature should have been affixed in the ordinary course, the registrar may affix his signature thereto when the omission is discovered, and the deed shall thereupon be deemed to have been registered at the time at which the signature should have been affixed.

(3) All endorsements or entries made on title deeds or in registers in connexion with the registration of any deed executed or attested by a registrar shall be deemed to have been effected simultaneously with the registration of such deed, although in fact they may have been made subsequent thereto.”…,.

By virtue of this section, the first respondent's title was deemed to have been registered on 2 April 2007 under transfer number 1597/2007 when the registrar affixed his signature.

Disputes of Fact or Conflict of Facts re: Approach, Factual, Non-Factual, Questions of Law and Material Resolutions

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date.

The return date was, however, not stated in the order.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007.

This prompted the application in the court a quo wherein the first respondent sought an order that the sale, registration, and transfer of the property in question to the appellant be declared null and void; that the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void; and that the first respondent be declared the sole owner of the property in question.

The first respondent averred that the appointment of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary, and during a period when the executrix testamentary was still holding office and was not incapacitated, was not valid in law.

He also averred, that, when the second respondent sold Stand 382 to the appellant, he had no title to pass and that the sale was done in the second respondent's personal capacity and without authority.

He further averred, that, when the second respondent sold the property to the appellant, he knew that it had already been sold to the first respondent as he had co-signed the agreement of sale between the first respondent and the executrix testamentary.

Further, it was also alleged, by the first respondent, that, the fourth respondent registered the property into the name of the appellant without checking his register.

Furthermore, that the fifth respondent, who was the conveyancer of the property did not perform due diligence before drafting and lodging conveyancing papers with the Deeds Registry. Had he exercised due dilligence and care he would have discovered that the immovable property belonged to the first respondent as it had already been registered into his name more than two months earlier.

The first respondent further indicated that the position that was stated by the executrix testamentary in the letter of 1 September 2007 was the correct position at law.

The letter had raised, with the sixth respondent, the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from office by a competent court or judge. It was thus averred that the sixth respondent acted without authority when he appointed the third respondent as executor dative, and, consequently, all acts done by the executor dative in relation to the transfer of the property were of no force or effect.

On the other hand, the appellant contended that the application ought not to succeed for the reason that the first respondent was alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross-examined in trial proceedings.

Secondly, he contended that there were disputes of fact which could not be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property; how the Master authorized the third respondent to deal with the property; and how the first respondent (applicant then) sought to register his property with the fourth respondent. These issues, he contended, could not be adequately addressed in affidavits.

Thirdly, he contended that the first respondent did not challenge or cause the suspension of the 'compellation order' authorizing transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court, in default, on 8 November 2006.

He further contended, that, the court therein decided that the property belonged to him, and, until that order is suspended, the court a quo could not hear the first respondent's case.

The appellant also contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed, by letter, that the property belongs to him.

He contended, that, the first respondent's supposed title deed is not a valid title deed and does not confer any rights on him hence the first respondent could not challenge the registration of a property which he does not own. As such, he averred that there was no double registration of the immovable property in issue.

The appellant further contended that the first respondent's purported agreement of sale, dated November 1999, with the executrix testamentary, was invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006.

He further averred that the first respondent had sued the wrong party as he should have sued the estate from which his rights emanate in terms of the agreement of sale.

The appellant thus moved the court to dismiss the application with costs on the higher scale.

After considering submissions from the parties, and papers filed of record, the court a quo found that the appellant's Deed was unlawful and therefore null and void as his registration as owner was subsequent to that of the first respondent over the same property.

It was held that this was sufficient justification for the court to declare the registration of the appellant as owner to be null and void as deeds follow the sequence of their relative causes.

It also found, that, at the time ownership was purportedly passed to the appellant, the property no longer belonged to the estate, but to the first respondent; thus, it had no rights to transfer to the appellant.

Pertaining to the executor, the court a quo found that the appointment of the third respondent was irregular in that he was appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated, and still sane, thus rendering any acts carried out by him in the name of the estate as of no legal consequence.

The court a quo further found that the property was sold to the appellant by the second respondent, who was an heir to the estate, at a time when such property had not yet vested in him.

It was, on this basis, that the court a quo held the purported sale to be fraught with illegality and therefore a nullity. It thus concluded that both the agreement of sale and the deed of transfer in favour of the appellant were, in the circumstances, null and void.

Pertaining to the interdict, the court a quo found that the interim interdict granted had no return date and that it could not have been the intention of the Magistrates Court for it to be operative indefinitely as it could end up having the effect of a final interdict.

It further found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him.

On this basis, it found that the purported transfer to the appellant was invalid.

Aggrieved by the decision of the court a quo, the appellant noted the appeal to this Court on the following grounds;

1. The Learned Judge a quo erred in failing to appreciate and make a finding that there was a material dispute of fact regarding the validity of the agreements of sale between the appellant and first respondent, and, consequently, the deeds of transfer, which disputes could not be resolved on the papers.

2. The learned Judge a quo erred in her finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

3. The learned judge a quo erred at law in invalidating the appointed executor dative and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into the appellant's name.

4. The learned judge a quo erred at law in relying upon an agreement of sale which was never placed before the court for its scrutiny.

ISSUES FOR DETERMINATION

Three issues arise for determination, being;

1. Whether or not the court a quo correctly found that there were no material disputes of fact.

2. Whether or not the court a quo correctly found that the Regional, Town and Country Planning Act did not apply in the present circumstances; and

3. Whether or not the court a quo erred in invalidating the agreement of sale between the appellant and second respondent; the appointment of the executor dative; and, subsequently, the purported transfer of the property into the appellant's name....,.

Counsel for the appellant argued that there were material disputes of fact which could not be resolved on the papers.

In that light, he moved that the appeal be allowed and that the matter be referred for trial....,.

1. Whether or not the court a quo correctly found that there were no material disputes of fact

The appellant, in his first ground of appeal, averred that the court a quo erred in failing to appreciate and make a finding that there were material disputes of fact regarding the validity of the agreements of sale between the appellant and the first respondent, and, consequently, the deeds of transfer, which disputes could not be resolved on the papers.

A material dispute of fact arises where a party denies material allegations made by the other and produces positive evidence to the contrary. Generally, in considering whether or not there is a material dispute of fact, the court is enjoined to adopt a robust, common sense approach to such defences when raised by litigants.

In Soffiantini v Mould 1956 (4) SA 150 (E), the court made the following pertinent comments:

“If, by a mere denial in general terms, a respondent can defeat or delay an applicant who comes to court on [application], then [application] proceedings are worthless, for a respondent can always defeat or delay a petition by such a device. It is necessary to make a robust, common-sense approach to a dispute on [application] as otherwise the effective functioning of the court can be hamstrung and circumvented by the most simple and blatant stratagem. The court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated, or seriously impeded and delayed, by an over-fastidious approach to dispute raised in affidavit.”

In Muzanenhamo v Officer in Charge CID Law and Order and Others 2013 (2) ZLR 604 (S)…, PATEL JA aptly stated, inter alia, that -

“As a general rule, in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party….,.

The first enquiry is to ascertain whether or not there is a real dispute of fact.

As was observed by MAKARAU JP (as she then was) in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at 136F-G:

'A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.'

In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence….,.

The respondent's defence must be set out in clear and cogent detail. A bare denial of the applicant's material averments does not suffice. The opposing papers must show a bona fide dispute of fact incapable of resolution without viva voce evidence having been heard: see the Room Hire Co. case, supra, at 1165, cited with approval in Vittareal Flats (Pvt) Ltd v Undenge & Others 2005 (2) ZLR 176 (H) at 180C-D; Van Niekerk v Van Niekerk & Others 1999 (1) ZLR 421 (S) at 428F-G.”…,.

Where there is a material dispute of fact, the court may dismiss the application; order oral evidence; or refer the matter to trial with such orders as to pleadings as it sees fit.

Upon a consideration of the alleged disputes of fact, I am of the view that the court a quo did take cognizance of the fact that the issue of the validity of the agreements of sale could be resolved without resorting to trial.

The appellant did not show that the issue was incapable of resolution on the papers.

The first respondent's papers were clear and concise.

He entered an agreement of sale with the executrix testamentary in 1999. The executrix received her Letters of Administration in 1998 and obtained authority to sell in 2006, and, thereafter, in April 2007, transfer of the property was effected. That the first respondent's transfer papers were lodged and signed for by the Registrar of Deeds, in April 2007, is without doubt.

The executrix, as the lawful representative of the estate, had the right to authorise transfer to the first respondent when she did so.

On the other hand, the appellant's registration papers were only effected in July 2007.

Section 10 of the Deeds Registries Act [Chapter 20:05] provides that:

“10 When registration takes place

(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar's signature thereto:

Provided that no such deed which is one of a batch of interdependent deeds, intended for registration together, shall be deemed to be registered until all the deeds of the batch have been signed by the registrar.

(2) If, by inadvertence, the registrar's signature has not been affixed to a deed at the time at which the signature should have been affixed in the ordinary course, the registrar may affix his signature thereto when the omission is discovered, and the deed shall thereupon be deemed to have been registered at the time at which the signature should have been affixed.

(3) All endorsements or entries made on title deeds or in registers in connexion with the registration of any deed executed or attested by a registrar shall be deemed to have been effected simultaneously with the registration of such deed, although in fact they may have been made subsequent thereto.”…,.

By virtue of this section, the first respondent's title was deemed to have been registered on 2 April 2007 under transfer number 1597/2007 when the registrar affixed his signature.

Section 11 of the Deeds Registries Act further provides for deeds to follow sequence of their relative causes in these words:

“(1) Save as otherwise provided in this Act or as directed by the court —

(a) Transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made, and, if made in pursuance of testamentary disposition or intestate succession, they shall follow the sequence in which the right to ownership or other real right in the land accrued to the persons successively becoming vested with such right;

(b) It shall not be lawful to depart from any such sequence in recording in any deeds registry any change in the ownership in such land or of such real right unless the registrar is satisfied that the circumstances are exceptional and has consented to such departure:”…,.

From the foregoing, it was clear that the first respondent's registration of title preceded the appellant's.

There was nothing unclear about the first respondent's case in this regard.

It was the appellant's case that left one with more questions than answers.

He had purportedly bought the property from an heir who had no legal right to deal with the property and the appellant's agent was appointed executor dative, upon his own solicitation, when the executrix testamentary was still in office.

He then had proceeded to effect transfer of the property three months after the first respondent had filed his transfer papers and the Registrar had acknowledged their receipt by affixing his signature thereto thus complying with section 10 of the Deeds Registries Act.

The fact that the appellant's papers were inexplicably finalized first by the fourth respondent does not detract from the sequence of the lodging of the papers.

In his papers, the appellant had not proffered any reasonable explanation to that course of events.

Unfortunately for the appellant, sections 10 and 11 of the Deeds Registries Act protected the first respondent's position as the Registrar had affixed his signature on 2 April 2007.

It was clear, that, with regard to the agreements of sale, there was no real dispute as to their sequence and parties thereto. The agreements of sale had similar suspensive conditions acknowledging the state of the sub-division.

The first respondent's agreement of sale was entered into with the executrix testamentary as the legal representative of the deceased's estate. The appellant's agreement of sale, on the other hand, was entered into with an heir who had no authority to deal in the property to the exclusion of the executrix.

In the circumstances, the appellant's request to have the matter referred to trial was only a delaying tactic hence it was not granted.

In my view, there were no real material disputes of fact. The real issues between the parties were capable of resolution on the papers without the calling of viva voce evidence or referring the matter to trial. There was thus no misdirection in this regard.

Passing of Ownership, Proof of Title and Jus in re Propria re: Subdivisions, Land Developments and Servicing of Stands

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date.

The return date was, however, not stated in the order.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007.

This prompted the application in the court a quo wherein the first respondent sought an order that the sale, registration, and transfer of the property in question to the appellant be declared null and void; that the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void; and that the first respondent be declared the sole owner of the property in question.

The first respondent averred that the appointment of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary, and during a period when the executrix testamentary was still holding office and was not incapacitated, was not valid in law.

He also averred, that, when the second respondent sold Stand 382 to the appellant, he had no title to pass and that the sale was done in the second respondent's personal capacity and without authority.

He further averred, that, when the second respondent sold the property to the appellant, he knew that it had already been sold to the first respondent as he had co-signed the agreement of sale between the first respondent and the executrix testamentary.

Further, it was also alleged, by the first respondent, that, the fourth respondent registered the property into the name of the appellant without checking his register.

Furthermore, that the fifth respondent, who was the conveyancer of the property did not perform due diligence before drafting and lodging conveyancing papers with the Deeds Registry. Had he exercised due dilligence and care he would have discovered that the immovable property belonged to the first respondent as it had already been registered into his name more than two months earlier.

The first respondent further indicated that the position that was stated by the executrix testamentary in the letter of 1 September 2007 was the correct position at law.

The letter had raised, with the sixth respondent, the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from office by a competent court or judge. It was thus averred that the sixth respondent acted without authority when he appointed the third respondent as executor dative, and, consequently, all acts done by the executor dative in relation to the transfer of the property were of no force or effect.

On the other hand, the appellant contended that the application ought not to succeed for the reason that the first respondent was alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross-examined in trial proceedings.

Secondly, he contended that there were disputes of fact which could not be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property; how the Master authorized the third respondent to deal with the property; and how the first respondent (applicant then) sought to register his property with the fourth respondent. These issues, he contended, could not be adequately addressed in affidavits.

Thirdly, he contended that the first respondent did not challenge or cause the suspension of the 'compellation order' authorizing transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court, in default, on 8 November 2006.

He further contended, that, the court therein decided that the property belonged to him, and, until that order is suspended, the court a quo could not hear the first respondent's case.

The appellant also contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed, by letter, that the property belongs to him.

He contended, that, the first respondent's supposed title deed is not a valid title deed and does not confer any rights on him hence the first respondent could not challenge the registration of a property which he does not own. As such, he averred that there was no double registration of the immovable property in issue.

The appellant further contended that the first respondent's purported agreement of sale, dated November 1999, with the executrix testamentary, was invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006.

He further averred that the first respondent had sued the wrong party as he should have sued the estate from which his rights emanate in terms of the agreement of sale.

The appellant thus moved the court to dismiss the application with costs on the higher scale.

After considering submissions from the parties, and papers filed of record, the court a quo found that the appellant's Deed was unlawful and therefore null and void as his registration as owner was subsequent to that of the first respondent over the same property.

It was held that this was sufficient justification for the court to declare the registration of the appellant as owner to be null and void as deeds follow the sequence of their relative causes.

It also found, that, at the time ownership was purportedly passed to the appellant, the property no longer belonged to the estate, but to the first respondent; thus, it had no rights to transfer to the appellant.

Pertaining to the executor, the court a quo found that the appointment of the third respondent was irregular in that he was appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated, and still sane, thus rendering any acts carried out by him in the name of the estate as of no legal consequence.

The court a quo further found that the property was sold to the appellant by the second respondent, who was an heir to the estate, at a time when such property had not yet vested in him.

It was, on this basis, that the court a quo held the purported sale to be fraught with illegality and therefore a nullity. It thus concluded that both the agreement of sale and the deed of transfer in favour of the appellant were, in the circumstances, null and void.

Pertaining to the interdict, the court a quo found that the interim interdict granted had no return date and that it could not have been the intention of the Magistrates Court for it to be operative indefinitely as it could end up having the effect of a final interdict.

It further found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him.

On this basis, it found that the purported transfer to the appellant was invalid.

Aggrieved by the decision of the court a quo, the appellant noted the appeal to this Court on the following grounds;

1. The Learned Judge a quo erred in failing to appreciate and make a finding that there was a material dispute of fact regarding the validity of the agreements of sale between the appellant and first respondent, and, consequently, the deeds of transfer, which disputes could not be resolved on the papers.

2. The learned Judge a quo erred in her finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

3. The learned judge a quo erred at law in invalidating the appointed executor dative and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into the appellant's name.

4. The learned judge a quo erred at law in relying upon an agreement of sale which was never placed before the court for its scrutiny.

ISSUES FOR DETERMINATION

Three issues arise for determination, being;

1. Whether or not the court a quo correctly found that there were no material disputes of fact.

2. Whether or not the court a quo correctly found that the Regional, Town and Country Planning Act did not apply in the present circumstances; and

3. Whether or not the court a quo erred in invalidating the agreement of sale between the appellant and second respondent; the appointment of the executor dative; and, subsequently, the purported transfer of the property into the appellant's name....,.

Counsel further submitted, that, the first respondent's case is premised on an agreement of sale which is void ab initio for the reason that the sale was conditional upon the grant of a subdivision permit in terms of the Town and Country Planning Act [Chapter 29:12].

Counsel for the appellant submitted, that, the Town and Country Planning Act specifically proscribes such agreements as in casu....,.

2. Whether or not the court a quo found that the Regional, Town and Country Planning Act did not apply

The appellant, in his second ground of appeal, averred that the court a quo erred in finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

The court a quo stated as follows with regards to the Regional, Town and Country Planning Act:

“None of the arguments raised by the first respondent, as detailed earlier in this judgment, can be of any avail to the first respondent in the face of the above stated and established facts. It would appear to me that the issue of whether or not the provisions of the Regional, Town and Country Planning Act are applicable, and, if so, with what effect, cannot be of any avail to the respondents in the circumstances of this case. Neither can it be the basis for this court, in these proceedings, to declare invalid the agreement of sale in favour of the applicant. That agreement has not been subjected to scrutiny by this court. The fact is that the applicant is currently registered as the owner of the property and there is no basis for this court, in these proceedings, to deny the relief sought by the applicant.”

The above is what the court a quo said with regards to the Regional, Town and Country Planning Act.

It did not make any findings that the Regional, Town and Country Planning Act did not apply, but, rather, that it would not delve into whether or not it applied in view of its findings pertaining to the registration of the first respondent's title that preceded that of the appellant which showed that he was the owner of the said property as of 2 April 2007.

Such registration of title was done with the authority of the executrix.

The facts of the case did not call for such a determination.

A reading of the judgment of the court a quo shows that the court did not make any determination on whether or not the Regional, Town and Country Planning Act was applicable in this case; hence, the allegation by the appellant, pertaining to this issue, is misplaced and this ground of appeal lacks merit and so must fail.

Contract of Sale re: Conditional, Unconditional, Suspensive Sales and the Officious Bystander Test

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date.

The return date was, however, not stated in the order.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007.

This prompted the application in the court a quo wherein the first respondent sought an order that the sale, registration, and transfer of the property in question to the appellant be declared null and void; that the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void; and that the first respondent be declared the sole owner of the property in question.

The first respondent averred that the appointment of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary, and during a period when the executrix testamentary was still holding office and was not incapacitated, was not valid in law.

He also averred, that, when the second respondent sold Stand 382 to the appellant, he had no title to pass and that the sale was done in the second respondent's personal capacity and without authority.

He further averred, that, when the second respondent sold the property to the appellant, he knew that it had already been sold to the first respondent as he had co-signed the agreement of sale between the first respondent and the executrix testamentary.

Further, it was also alleged, by the first respondent, that, the fourth respondent registered the property into the name of the appellant without checking his register.

Furthermore, that the fifth respondent, who was the conveyancer of the property did not perform due diligence before drafting and lodging conveyancing papers with the Deeds Registry. Had he exercised due dilligence and care he would have discovered that the immovable property belonged to the first respondent as it had already been registered into his name more than two months earlier.

The first respondent further indicated that the position that was stated by the executrix testamentary in the letter of 1 September 2007 was the correct position at law.

The letter had raised, with the sixth respondent, the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from office by a competent court or judge. It was thus averred that the sixth respondent acted without authority when he appointed the third respondent as executor dative, and, consequently, all acts done by the executor dative in relation to the transfer of the property were of no force or effect.

On the other hand, the appellant contended that the application ought not to succeed for the reason that the first respondent was alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross-examined in trial proceedings.

Secondly, he contended that there were disputes of fact which could not be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property; how the Master authorized the third respondent to deal with the property; and how the first respondent (applicant then) sought to register his property with the fourth respondent. These issues, he contended, could not be adequately addressed in affidavits.

Thirdly, he contended that the first respondent did not challenge or cause the suspension of the 'compellation order' authorizing transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court, in default, on 8 November 2006.

He further contended, that, the court therein decided that the property belonged to him, and, until that order is suspended, the court a quo could not hear the first respondent's case.

The appellant also contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed, by letter, that the property belongs to him.

He contended, that, the first respondent's supposed title deed is not a valid title deed and does not confer any rights on him hence the first respondent could not challenge the registration of a property which he does not own. As such, he averred that there was no double registration of the immovable property in issue.

The appellant further contended that the first respondent's purported agreement of sale, dated November 1999, with the executrix testamentary, was invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006.

He further averred that the first respondent had sued the wrong party as he should have sued the estate from which his rights emanate in terms of the agreement of sale.

The appellant thus moved the court to dismiss the application with costs on the higher scale.

After considering submissions from the parties, and papers filed of record, the court a quo found that the appellant's Deed was unlawful and therefore null and void as his registration as owner was subsequent to that of the first respondent over the same property.

It was held that this was sufficient justification for the court to declare the registration of the appellant as owner to be null and void as deeds follow the sequence of their relative causes.

It also found, that, at the time ownership was purportedly passed to the appellant, the property no longer belonged to the estate, but to the first respondent; thus, it had no rights to transfer to the appellant.

Pertaining to the executor, the court a quo found that the appointment of the third respondent was irregular in that he was appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated, and still sane, thus rendering any acts carried out by him in the name of the estate as of no legal consequence.

The court a quo further found that the property was sold to the appellant by the second respondent, who was an heir to the estate, at a time when such property had not yet vested in him.

It was, on this basis, that the court a quo held the purported sale to be fraught with illegality and therefore a nullity. It thus concluded that both the agreement of sale and the deed of transfer in favour of the appellant were, in the circumstances, null and void.

Pertaining to the interdict, the court a quo found that the interim interdict granted had no return date and that it could not have been the intention of the Magistrates Court for it to be operative indefinitely as it could end up having the effect of a final interdict.

It further found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him.

On this basis, it found that the purported transfer to the appellant was invalid.

Aggrieved by the decision of the court a quo, the appellant noted the appeal to this Court on the following grounds;

1. The Learned Judge a quo erred in failing to appreciate and make a finding that there was a material dispute of fact regarding the validity of the agreements of sale between the appellant and first respondent, and, consequently, the deeds of transfer, which disputes could not be resolved on the papers.

2. The learned Judge a quo erred in her finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

3. The learned judge a quo erred at law in invalidating the appointed executor dative and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into the appellant's name.

4. The learned judge a quo erred at law in relying upon an agreement of sale which was never placed before the court for its scrutiny.

ISSUES FOR DETERMINATION

Three issues arise for determination, being;

1. Whether or not the court a quo correctly found that there were no material disputes of fact.

2. Whether or not the court a quo correctly found that the Regional, Town and Country Planning Act did not apply in the present circumstances; and

3. Whether or not the court a quo erred in invalidating the agreement of sale between the appellant and second respondent; the appointment of the executor dative; and, subsequently, the purported transfer of the property into the appellant's name....,.

Counsel further submitted, that, the first respondent's case is premised on an agreement of sale which is void ab initio for the reason that the sale was conditional upon the grant of a subdivision permit in terms of the Town and Country Planning Act [Chapter 29:12].

Counsel for the appellant submitted, that, the Town and Country Planning Act specifically proscribes such agreements as in casu....,.

2. Whether or not the court a quo found that the Regional, Town and Country Planning Act did not apply

The appellant, in his second ground of appeal, averred that the court a quo erred in finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

The court a quo stated as follows with regards to the Regional, Town and Country Planning Act:

“None of the arguments raised by the first respondent, as detailed earlier in this judgment, can be of any avail to the first respondent in the face of the above stated and established facts. It would appear to me that the issue of whether or not the provisions of the Regional, Town and Country Planning Act are applicable, and, if so, with what effect, cannot be of any avail to the respondents in the circumstances of this case. Neither can it be the basis for this court, in these proceedings, to declare invalid the agreement of sale in favour of the applicant. That agreement has not been subjected to scrutiny by this court. The fact is that the applicant is currently registered as the owner of the property and there is no basis for this court, in these proceedings, to deny the relief sought by the applicant.”

The above is what the court a quo said with regards to the Regional, Town and Country Planning Act.

It did not make any findings that the Regional, Town and Country Planning Act did not apply, but, rather, that it would not delve into whether or not it applied in view of its findings pertaining to the registration of the first respondent's title that preceded that of the appellant which showed that he was the owner of the said property as of 2 April 2007.

Such registration of title was done with the authority of the executrix.

The facts of the case did not call for such a determination.

A reading of the judgment of the court a quo shows that the court did not make any determination on whether or not the Regional, Town and Country Planning Act was applicable in this case; hence, the allegation by the appellant, pertaining to this issue, is misplaced and this ground of appeal lacks merit and so must fail.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal and Notice of Appeal iro Approach

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and void.

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date.

The return date was, however, not stated in the order.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007.

This prompted the application in the court a quo wherein the first respondent sought an order that the sale, registration, and transfer of the property in question to the appellant be declared null and void; that the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void; and that the first respondent be declared the sole owner of the property in question.

The first respondent averred that the appointment of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary, and during a period when the executrix testamentary was still holding office and was not incapacitated, was not valid in law.

He also averred, that, when the second respondent sold Stand 382 to the appellant, he had no title to pass and that the sale was done in the second respondent's personal capacity and without authority.

He further averred, that, when the second respondent sold the property to the appellant, he knew that it had already been sold to the first respondent as he had co-signed the agreement of sale between the first respondent and the executrix testamentary.

Further, it was also alleged, by the first respondent, that, the fourth respondent registered the property into the name of the appellant without checking his register.

Furthermore, that the fifth respondent, who was the conveyancer of the property did not perform due diligence before drafting and lodging conveyancing papers with the Deeds Registry. Had he exercised due dilligence and care he would have discovered that the immovable property belonged to the first respondent as it had already been registered into his name more than two months earlier.

The first respondent further indicated that the position that was stated by the executrix testamentary in the letter of 1 September 2007 was the correct position at law.

The letter had raised, with the sixth respondent, the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from office by a competent court or judge. It was thus averred that the sixth respondent acted without authority when he appointed the third respondent as executor dative, and, consequently, all acts done by the executor dative in relation to the transfer of the property were of no force or effect.

On the other hand, the appellant contended that the application ought not to succeed for the reason that the first respondent was alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross-examined in trial proceedings.

Secondly, he contended that there were disputes of fact which could not be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property; how the Master authorized the third respondent to deal with the property; and how the first respondent (applicant then) sought to register his property with the fourth respondent. These issues, he contended, could not be adequately addressed in affidavits.

Thirdly, he contended that the first respondent did not challenge or cause the suspension of the 'compellation order' authorizing transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court, in default, on 8 November 2006.

He further contended, that, the court therein decided that the property belonged to him, and, until that order is suspended, the court a quo could not hear the first respondent's case.

The appellant also contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed, by letter, that the property belongs to him.

He contended, that, the first respondent's supposed title deed is not a valid title deed and does not confer any rights on him hence the first respondent could not challenge the registration of a property which he does not own. As such, he averred that there was no double registration of the immovable property in issue.

The appellant further contended that the first respondent's purported agreement of sale, dated November 1999, with the executrix testamentary, was invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006.

He further averred that the first respondent had sued the wrong party as he should have sued the estate from which his rights emanate in terms of the agreement of sale.

The appellant thus moved the court to dismiss the application with costs on the higher scale.

After considering submissions from the parties, and papers filed of record, the court a quo found that the appellant's Deed was unlawful and therefore null and void as his registration as owner was subsequent to that of the first respondent over the same property.

It was held that this was sufficient justification for the court to declare the registration of the appellant as owner to be null and void as deeds follow the sequence of their relative causes.

It also found, that, at the time ownership was purportedly passed to the appellant, the property no longer belonged to the estate, but to the first respondent; thus, it had no rights to transfer to the appellant.

Pertaining to the executor, the court a quo found that the appointment of the third respondent was irregular in that he was appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated, and still sane, thus rendering any acts carried out by him in the name of the estate as of no legal consequence.

The court a quo further found that the property was sold to the appellant by the second respondent, who was an heir to the estate, at a time when such property had not yet vested in him.

It was, on this basis, that the court a quo held the purported sale to be fraught with illegality and therefore a nullity. It thus concluded that both the agreement of sale and the deed of transfer in favour of the appellant were, in the circumstances, null and void.

Pertaining to the interdict, the court a quo found that the interim interdict granted had no return date and that it could not have been the intention of the Magistrates Court for it to be operative indefinitely as it could end up having the effect of a final interdict.

It further found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him.

On this basis, it found that the purported transfer to the appellant was invalid.

Aggrieved by the decision of the court a quo, the appellant noted the appeal to this Court on the following grounds;

1. The Learned Judge a quo erred in failing to appreciate and make a finding that there was a material dispute of fact regarding the validity of the agreements of sale between the appellant and first respondent, and, consequently, the deeds of transfer, which disputes could not be resolved on the papers.

2. The learned Judge a quo erred in her finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

3. The learned judge a quo erred at law in invalidating the appointed executor dative and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into the appellant's name.

4. The learned judge a quo erred at law in relying upon an agreement of sale which was never placed before the court for its scrutiny.

ISSUES FOR DETERMINATION

Three issues arise for determination, being;

1. Whether or not the court a quo correctly found that there were no material disputes of fact.

2. Whether or not the court a quo correctly found that the Regional, Town and Country Planning Act did not apply in the present circumstances; and

3. Whether or not the court a quo erred in invalidating the agreement of sale between the appellant and second respondent; the appointment of the executor dative; and, subsequently, the purported transfer of the property into the appellant's name....,.

Counsel further submitted, that, the first respondent's case is premised on an agreement of sale which is void ab initio for the reason that the sale was conditional upon the grant of a subdivision permit in terms of the Town and Country Planning Act [Chapter 29:12].

Counsel for the appellant submitted, that, the Town and Country Planning Act specifically proscribes such agreements as in casu....,.

2. Whether or not the court a quo found that the Regional, Town and Country Planning Act did not apply

The appellant, in his second ground of appeal, averred that the court a quo erred in finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

The court a quo stated as follows with regards to the Regional, Town and Country Planning Act:

“None of the arguments raised by the first respondent, as detailed earlier in this judgment, can be of any avail to the first respondent in the face of the above stated and established facts. It would appear to me that the issue of whether or not the provisions of the Regional, Town and Country Planning Act are applicable, and, if so, with what effect, cannot be of any avail to the respondents in the circumstances of this case. Neither can it be the basis for this court, in these proceedings, to declare invalid the agreement of sale in favour of the applicant. That agreement has not been subjected to scrutiny by this court. The fact is that the applicant is currently registered as the owner of the property and there is no basis for this court, in these proceedings, to deny the relief sought by the applicant.”

The above is what the court a quo said with regards to the Regional, Town and Country Planning Act.

It did not make any findings that the Regional, Town and Country Planning Act did not apply, but, rather, that it would not delve into whether or not it applied in view of its findings pertaining to the registration of the first respondent's title that preceded that of the appellant which showed that he was the owner of the said property as of 2 April 2007.

Such registration of title was done with the authority of the executrix.

The facts of the case did not call for such a determination.

A reading of the judgment of the court a quo shows that the court did not make any determination on whether or not the Regional, Town and Country Planning Act was applicable in this case; hence, the allegation by the appellant, pertaining to this issue, is misplaced and this ground of appeal lacks merit and so must fail.

Passing of Ownership, Proof of Title and Jus in re Propria re: Approach, Registration of Title and Deeds or Title Search