Trial
MATANDA-MOYO
J:
The
plaintiff issued summons against the defendants for the following
relief:
“1.
That the plaintiff be and is hereby declared the rightful owner of
Stand number 454 Unit Seke, Chitungwiza;
2.
That the transfer of Stand 454 Unit C Seke, Chitungwiza into Gideon
Musendo's name be and is hereby nullified;
3.
That the 2nd
defendant cede rights, title and interest in the property
aforementioned back to the plaintiff within seven (7) days of this
order failure of which the Sheriff be and is hereby empowered to
signal documents necessary to effect cession to the Plaintiff;
4.
That the 1st
defendant and all those claiming occupation though her be evicted
from house no. 454 Unit F Seke Chitungwiza; and
5.
That the 1st
and 2nd
defendants pay costs of suit on an attorney client scale.”
The
first respondent filed an appearance to defend and opposed the order
sought.
Before
trial the parties agreed that the matter proceed by way of a Stated
Case. The facts agreed by the parties are as follows:
House
number 454 Unit F Seke, Chitungwiza (hereinafter referred to as the
property) is owned by and belongs to second defendant as it has no
title to date.
The
second defendant gave occupation of the property to one Moses
Mutandwa under a lease to buy agreement. Moses Mutandwa died and his
heir Gordon Madzima assumed occupation of the property under the same
terms and conditions the house was held by the late Moses Mutandwa.
In
1992 Gordon Madzima sold the property to first defendant's deceased
husband Gideon Musendo.
The
said late Gideon Musendo pursuant to the agreement took occupation of
the property.
On
13 March 1993 Gordon Madzima entered into another sale agreement with
the plaintiff for the sale of the same property. Gordon Madzima
alleged to have cancelled the earlier agreement of sale with the late
Gideon Musendo.
Gordon
Madzima failed to give vacant possession of the property to the
plaintiff.
The
second defendant also refused to enforce the sale agreement between
Gordon Madzima and the plaintiff on the basis that it had not
consented to the sale of the property, it being the owner of that
property.
The
plaintiff under HC case number 9232/93 approached this court seeking
the agreement of sale between him and Gordon Madzima to be declared
valid and to compel Gordon Madzima to transfer the right, title and
interest in the property to herself.
The
order was granted in default by the High Court on 27 April 1994.
The
second defendant was not cited as a party to the proceedings.
In
compliance with the court order the second defendant on 7 June 1994
issued the plaintiff with a certificate of occupation and ownership
card for the property. Rates and water bills were transferred into
the plaintiff's name.
The
plaintiff sought to evict the first defendant from the property in
the magistrates court under case number 155/94.
The
order was granted.
The
first defendant appealed to the Supreme Court and the order was set
aside and the first defendant's deceased husband was granted leave
to defend the eviction proceedings.
The
first deceased's husband was also advised to seek rescission of HC
case number HC9232/93.
The
matter before the magistrate court was later dismissed.
The
first defendant's deceased husband remained in occupation of the
property.
On
11 December 2002, the first defendant's deceased husband 'applied'
to the second defendant for allocation of the property.
In
September 2006 a lease to buy was entered into between the second
defendant and the first defendant's deceased husband for the
property. On 4 September 2006 the second defendant issued the first
defendant's deceased husband with a certificate of occupation of
the property.
The
plaintiff persists in its claim as per summons.
The
first defendant opposed the claim on the basis that Gordon Madzima
could not have legally sold the property to the plaintiff without the
second defendant's consent. Both parties are claiming costs on a
higher scale.
The
issues referred for determination are;
(1)
Whether the matter is res
judicata;
and
(2)
Who between the plaintiff and the first defendant is the rightful
owner of Stand 454 Unit F Seke.
Whether
the matter is res judicata
It
is common cause that there is a default judgment by this court under
HC9233/93 which ordered that the right in the property be transferred
to the plaintiff.
Such
default judgment had not been rescinded and is extant.
The
principle of res
judicata
is simply a term used for a matter already judged, a case in which
there has been final judgment and is not a subject of appeal.
Generally
the legal doctrine is meant to preclude continued litigation of a
case on same issues between the same parties. The matter especially
is barred from being heard against either in the same court or in a
different court. A court will use the principle of res judicata to
refuse to rehear and reconsider the matter. The principle prevents
litigants from multiplying judgments and subsequently causing
confusion.
In
order to succeed a party claiming res
judicata
must show that the earlier judgment is identical to the present in
the following;
(1)
Same parties.
(2)
Same cause of action.
(3)
Same relief sought.
See
Kommissaris
Van Binnelands Inkoruste v Absa Bank Bpk
1995 (1) SA 653A at 6690-671B where the court held that the defence
of res judicata requires careful scrutiny as it has the potential of
causing great unfairness and great injustice.
Each
case should be determined on its own facts.
As
pointed out by De
Villiers CJ in Bertram v Wood
(1893) 10 SC 177 at 180:
“Unless
carefully circumscribed (the defence of res
judicata)
is capable of producing great hardships and even positive injustice
to individuals.”
The
basis of the plaintiff's assertion that the matter is res
judicata
is
premised on the fact that the matter was determined under HC9233/93.
However
the parties before the High Court then were the plaintiff and the
seller.
For
the plaintiff to succeed he must prove that the same parties herein
were the same parties in HC9233/93, she must show that the first
defendant is a privy of the later seller, who was the defendant then.
The
privy must derive title from the party: see Shokkos
v Lampert NO
1963 (3) SA 421 (W) and Commuters
Group and Others v Transport Limited and Ors
2006
(6) SA 68 (C).
The
parties must be the same or must be identified with those who were
parties to the proceedings. See also Thembekile
Molaudzi and The State
CCT 42/15.
From
the evidence before me the first defendant is wife to the late buyer.
The first defendant cannot be said to be the privy to the seller.
I
am therefore unable to find that the same parties as in HC9233/93 are
the same parties before me presently.
The
plaintiff must also show that this present matter is premised on the
same cause of action as in HC9233/93.
What
was before this court in 1993 was for the determination of the
validity of the agreement of sale between the plaintiff and the
seller. Herein the cause of action is for this court to determine the
true owner of the property as there was a double sale.
The
causes of action in the two matters are different.
Consequently
the relief sought is different. The plaintiff herein seeks transfer
of property from the first defendant to herself.
I
am thus of the view that the defence of res judicata is inapplicable
herein.
Assuming
I am wrong in that respect and assuming the defence is available I am
of the view that the doctrine should not be applied rigidly as an
inflexible or immutable rule.
In
the Canadian case of Arutim
Capital Inco. v Appliance Recycling Centers of America 2014 ONCA 62
it was held that the purpose of res judicata should be balanced
between public interest in finality of litigation with the public
interest of ensuring a just result on the merits.
The
doctrine should not be mechanically applied where to do so would
create an injustice.
In
Donyluk
v Ainsworth Technologies Inc
2001 SCC 44; [2001] 2 SCR at paragraphs 80–81 the court held;
“As
a final and most important factor, the court should stand back and
taking into account the entirety of the circumstances, consider
whether application of issue estoppel in the particular case would
work an injustice. Rosenberg JA conceded that the appellant had
received neither notice of the respondent's allegations nor an
opportunity to respond……..”
In
order to depart from the norm it should be clear that a significant
injustice will be occasioned and that there is no effective
alternative remedy.
The
doctrine of res
judicata
in this case ought to be relaxed in the interest of justice.
The
decision relied upon by the applicant is a default judgment. A
default judgement is given in favour of the plaintiff where the
defendant has not responded to a summons or failed to appear in
court.
It
is imperative that the full facts of the matter were not ventilated
at the time. Judgment was not on the merits.
In
order to come to my conclusion, I have considered that the HC case
number 9232/93 although extant was not between the same parties.
That
case was between the plaintiff and the late Gordon Madzima.
The
second defendant herein was not a party to it and neither was the
first defendant.
At
the time of the summons in 1993 the plaintiff was aware that the
first defendant and her family occupied the property under the
strength of an agreement of sale. Although the late Gordon Madzima
allegedly informed the plaintiff that such agreement was cancelled, a
prudent person would have cited the defendants.
It
was clear then that the defendants were interested parties.
I
am also of the view that the cause of action is different.
No
court order is in existence, which order defines the rights of the
current parties to the property.
HC9232/93
determined rights and title as between the plaintiff and the late
Gordon Madzima. To blindly apply the principle of res
judicata
would obviously create unfairness and injustice between the current
parties.
There
is need to relax and flexibly apply the principle.
Doing
so would lead to the result that the rights as between the parties in
casu
are still to be determined.
Accordingly
I am of the view that the doctrine of res
judicata
is inapplicable in this matter.
Who
is the rightful owner of the property?
I
shall move on to determine who between the plaintiff and the first
defendant is the true owner of the property.
It
is common cause that the first defendant was the first purchaser. The
late Gordon Madzima sold the property to the first defendant's
husband in 1992. The sale agreement with the plaintiff was only
entered into in 1993.
There
has been placed before me no proof of the cancellation of the
agreement of 1992.
The
inescapable conclusion is that there was a double sale.
I
agree with the legal position enunciated by the parties in respect of
the double sales found in Chimphonda
v Rodriques and Ors
1997 (2) ZLR 63 ZLR 63 (H) that:
“In
a double sale situation where the second buyer had knowledge of the
first sale of the property, either at the time of the sale or at the
time it took transfer of the property, then, unless there are special
circumstances affecting the balance of equities, the first buyer can
recover the property from the second buyer. In such instance, the
second buyer's only remedy is an action for damages against the
seller. In deciding whether there are special circumstances affecting
the balance of equities, the court must bear in mind that the primary
right of the wronged buyer is the remedy of specific performance
which will be granted unless there is some equitable reason
disqualifying him from obtaining such relief.”
See
Crundall
Brothers (Pvt) Ltd v Lazarus NO & Anor
1991 (2) ZLR (S); Guga
v Moyo
2000 (2) 458 (S) that once the second purchaser has knowledge of the
prior sale, then the first purchaser in the absence of special
circumstances affecting the balance of equities is entitled to
recover the property from the second purchaser.
The
second purchaser's rights are limited to claiming damages from the
seller.
Applying
the above principles to the present case, the first defendant's
late husband was the first purchaser. The plaintiff at the time of
the purchase of the property knew of the existence of the sale
agreement between the seller and the first defendant's late
husband.
It
is clear that from 1992 to date the first defendant and her family
have been in occupation of the property. The plaintiff has not been
able to get vacant possession of the property.
The
plaintiff even attempted to evict the first defendant from the
property. The plaintiff failed in that regard as far back as 1994.
The
evidence tends to point to the fact that the plaintiff has been aware
all along that the first defendant was also claiming ownership of
that property.
The
plaintiff did nothing then to have the parties rights determined by a
competent authority.
It
is common cause that the plaintiff in 1994 sued the seller and got
judgment to have the property transferred to her. Later on it is also
common cause that the first defendant got certificate of occupation
to the property.
The
doctrine of notice decrees that if the latter purchaser at the time
took transfer knew that the property had been sold to another, then
the property must be transferred back to the other. Herein it is
apparent that the plaintiff knew at the time she applied to court for
rights in the property that the property had been sold to the first
defendant's late husband.
The
plaintiff conceded that point in the statement of agreed facts.
It
follows then that when the plaintiff attempted to take transfer it
was a form of fraud.
In
the case of Riley
v Sliep
NO [2008] ZANHC 22 the court quoted with approval an earlier judgment
which held that “it is a species of fraud to attempt to secure a
res
(an item of property) which is known to have been promised to
another.”
The
same applies with full force in the present matter.
The
plaintiff fraudulently obtained an order under HC9233/93, having
known that the property had earlier on been sold to another. See also
Grundal
Brothers (Pvt) Ltd v Lazarus N.O and Anor
1991 (3) SA, 812.
Having
found as above it is obvious there are no special circumstances
affecting the balance of equities.
The
first purchaser ought to succeed to be declared the true owner of the
property.
The
plaintiff bought the property when the first defendant was already in
occupation of the property. The balance of equities cannot weigh in
her favour.
This
court has not been favoured with any evidence showing that the late
Gordon Madzima cancelled the agreement of sale between himself and
the late Musendo.
Without
such evidence the agreement of sale between the late Madzima and late
Musendo is valid.
Consequently
the late Musendo is the first purchaser and there being no special
circumstances favouring the plaintiff, it is my finding that the
first defendant is the true owner of the property.
The
plaintiff can always adopt the option of suing for damages.
Consequently
the plaintiff's claim is dismissed with costs.
Koto
and Company,
plaintiff's
legal practitioners
Mawire
J.T. & Associates,
1st
defendant's legal practitioners
