This
is a hotly contested appeal against the whole judgment of the High
Court sitting at Harare and delivered on 30 October 2013.
The
epicentre of the dispute is a certain piece of land in the Goromonzi
District known as the Remaining Extent of Stuhm measuring 583,1360
hectares in extent registered in the name of TIBIC ...
This
is a hotly contested appeal against the whole judgment of the High
Court sitting at Harare and delivered on 30 October 2013.
The
epicentre of the dispute is a certain piece of land in the Goromonzi
District known as the Remaining Extent of Stuhm measuring 583,1360
hectares in extent registered in the name of TIBIC INVESTMENTS (PVT)
LTD under Deed of Transfer 1724/2009. TIBIC INVESTIMENTS (PVT) LTD is
an indigenous company in the sense that its shareholders and
directors are indigenous citizens of this country.
The
historical background and factual basis of the case is, by and large,
common cause.
The
genesis of the dispute is that in 1970, the late Paul Michael Henry
Reimer obtained ownership of a certain piece of land in the District
of Goromonzi known as the Remaining extent of Stuhm measuring
1,074.7410 hectares in extent, under Deed of Grant 1262/70. Paul
Reimer does not appear to have bought the land as there is no mention
of any money having exchanged hands. His son, Cecil Michael Reimer,
in due course, inherited the said piece of land from his late father
under Deed of Transfer 3032/87.
Starting
from 1997 to 2009, Cecil Michael Reimer began to subdivide the main
block of the remaining extent of Stuhm measuring 1,074.7410 hectares
in extent into three (3) lots which he sold as follows:
DATE
LOT
SOLD BUYER HECTERAGE DEED OF TRANSFER
1997 2 Darnall Investments 412.1091 497/97
1998 3 Douglasdale (Pvt) Ltd 79.4959 9247/98
2009 1 TIBIC Inv(Pvt) Ltd 583.1360 1724/09
1,074.741
Total
3 Lots
He
however sold the disputed Lot One in 2009 in circumstances where
Government had already issued a preliminary notice to compulsorily
acquire the disputed land under General Notice 405A of 2000 published
in the Extraordinary Government Gazette of 25 August 2000.
The
Preliminary Notice reads:
“NOTICE
is hereby given, in terms of subsection (1) of section 5 of the Land
Acquisition Act [Chapter 20:10], that the president intends to
acquire, compulsorily, the land described in the schedule for
resettlement purposes.
A
plan of the land is available for inspection at the following offices
of the Ministry of Lands, Agriculture and Rural Resettlement between
8a.m. and 4p.m. from Monday to Friday other than on a public holiday
on or before the 24th
of September 2009 –
140.
Deed of Transfer 3032/87, registered in the name of Cecil Michael
Reiner
,
in respect of certain piece of land situate in the district of
Goromonzi, being the remaining extent of Stuhm, measuring one
thousand and seventy- four, comma seven four one zero (1,074,7410)
hectares.”
The
same Notice was re-gazetted under General Notices 298A of 2003 and
323 of 2003. In all the three (3) notices, the extent of the land
earmarked for acquisition was given as 1,074.741 hectares. The
gazetted land had, however, been subdivided into three (3) lots.
Considering that it had acquired the whole land, the acquiring
Authority offered Lot 1 to the first respondent, Kennedy Mangenje, as
compensation for his farm which it had compulsorily acquired and
distributed to other beneficiaries.
The
first respondent accepted the offer.
The
offer letter addressed to the first respondent, and dated 7 August
2006, reads in part:
“Dear
Sir/Madam
Re:
OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT
PROGRAMME. (MODEL A2 PHASE II0)
1.
The Minister of State for National Security, Lands. Land Reform and
Resettlement in the President's Office has the pleasure in
informing you that your application for land under Model A2 Scheme
has been successful.
2.
You are offered Subdivision 1 of R/E of STUHM in GOROMONZI District
of MASHONALAND PROVINCE for agricultural purposes. The farm is
approximately 534.00 hectares in extent.
3.
The offer is made in terms of the Agricultural Land Settlement Act
[Chapter 20:01] whose provisions you are advised to acquaint yourself
with. Conditions that go with the offer are attached.”
In
summary, what was gazetted was the whole of the original Remaining
Extent of Stuhm. However, Lots 2 and 3 had already been sold and
ceased to be part of the original block of land. Lot 1 thus remained
as part of the remaining extent of the whole original block of land.
It stands to reason that when the acquiring authority gazetted the
whole of the original Remaining Extent of Stuhm, Lot 1, being the
remaining fraction of the original block was equally gazetted in
tandem as part of the whole. That reasoning is anchored on the
well-known maxim that the greater includes the lesser, which
principle is of universal application. See City
of Lakerwood v Plain Dealer Publishing Co.
[1988]
USSC 123.
In
other words, the gazetting of a whole piece of land includes the
gazetting of a fraction of that land.
The
severed Lots 2 and 3 were not validly gazetted because they had
ceased to be part of the original block and the new owners were not
given notice of the intended compulsory acquisition.
The
same cannot, however, be said of Lot 1 which remained as a fraction
of the whole original Remaining Extent of Stuhm which Cecil Reimer
continued to hold under Deed of Transfer 3032/87.
Just
to draw an analogy, if the Sheriff had given notice to attach the
three (3) Lots under the mistaken belief that they all belonged to
Cecil Reimer his notice and attachment of Block 1 could not be foiled
simply because Lots 2 and 3 belonged to some other people. The
Sheriff will undoubtedly be entitled to attach the remaining Lot 1
belonging to Cecil Michael Reimer. By the same token, once the
acquiring authority had gazetted the whole original piece of land, it
was entitled, as of right, to acquire any fraction of that land that
was legally subject to acquisition in terms of the Constitution.
The
appellant sought to attack the first Notice, No.405A of 2000, on the
basis that it had expired in terms of the provisions of the Land
Acquisition Act. The same applies to the second and third Notices,
298A of 2003 and 323A of 2003. It also sought to argue that the land
gazetted does not exist simply because the gazetted land is 1,704.741
hectares in extent whereas the land in dispute is 583.136 hectares in
extent.
The
disputed land in respect of which notice to compulsorily acquire was
given can easily be identified by employing the blue pencil rule to
excise Lots 2 and 3 from the whole, leaving the land in dispute
intact; being the Remaining extent of Stuhm measuring 583.136
hectares held by Cecil Michael Reimer under Deed of Transfer
3032/1987.
The
blue pencil rule is a common law doctrine which allows a court to
sever an unenforceable portion of a contract so as to enforce the
remaining enforceable portion of that contract. Although this is not
a contractual dispute I find the concept useful in this case to
separate that which is enforceable from that which is not
enforceable….,.
Cecil
Michael Reimer sowed the seeds of severability or divisibility when
he subdivided the original land into separate and distinct three (3)
lots which could easily be identified as shown above. What emerges
quite clearly is that the severance of Lots 2 and 3 from the whole
block of land cannot divest Lot 1 of its identity. It remains intact
and its gazetting remains extant despite the severance of Lots 2 and
3 from the whole. In the result, the conclusion that Lot 1, which is
the land in dispute, was identified and gazetted is beyond contest.
What
is in dispute is the correctness and validity of the process of
identification and gazetting of the land for purposes of compulsory
acquisition.
The
disputed land was properly identified and gazetted as part of the
whole original Remaining Extent of Stuhm measuring 1,704.741 hectares
in extent. It is therefore anomalous for the appellants to argue that
the land in question does not exist when the first appellant bought
it from Michael Reimer and had it registered in its name under the
same description; being the Remaining Extent of Stuhm measuring
583.136 situated in the district of Goromonzi. By the same token, the
second appellant cannot dispute the existence of the disputed land
when he leased and occupied it under the same description.
There
is therefore no merit in the appellants' argument that the land in
question was not properly identified and gazetted. For that reason,
the finding by the court a
quo
that the disputed land exists is beyond reproach.
There
can, however, be no denying that the process of identifying the
disputed land for purposes of compulsory acquisition was fraught with
errors including the spelling of the name of the previous owner of
the land, its exact size and extent as correctly found by the court a
quo.
These errors, and more, were not peculiar to this particular piece of
land. The mistakes were many and varied relating to various other
pieces of land thereby threatening to derail the entire land
reform
programme.
In
order to protect and keep the land
reform
programme
on course, Parliament, in its wisdom, amended the former
Constitution. The intention of the legislature was to automatically
validate the acquisition of all agricultural land identified and
listed under Schedule 7 for purposes of the land reform programme on
or before 8 July 2005 regardless of any errors or mistakes that may
otherwise have nullified the acquisition in the normal run of things.
The
disputed land was acquired under the former Constitution of which
section 16B(2), as amended, provides as follows:
“(a)
All Agricultural land –
(i)
That was identified on or before the 8th
July 2005, in the Government Gazette or Gazette Extraordinary, under
section 5(1) of the Land Acquisition Act [Chapter 20:10], and which
is itemized in Schedule 7 being agricultural land required for
resettlement purposes is acquired by and is vested in the State with
full title therein with effect from the appointed date.
….,.
(5)
Any inconsistency between anything contained in –
(a)
A notice itemized in schedule 7; or
(b)
A notice relating to land referred to in subsection (2)(ii) OR (iii);
and the title deed to which it refers or is intended to refer, and
any error whatsoever contained in such notice, shall not affect the
operation of subsection (2)(a) or invalidate the vesting of title in
the State in terms of that provision.”
The
effect of the above section was to revive, resuscitate, and validate
the acquisition of all identified agricultural land listed in the 7th
Schedule for resettlement purposes prior to 8 July 2005 regardless of
any errors or withdrawals in the acquisition process. No limitation
can be imposed on the acquisition process once the land is shown to
have been gazetted and listed in the 7th
Schedule prior to 8 July 2005.
The
language used in section 16B(2) of the former Constitution is clear
and unambiguous admitting no ambivalent interpretation. The only
meaning to be ascribed to the section is that once land is gazetted
and listed in Schedule 7 it automatically stands acquired by the
State with full title by operation of law. The mere fact that the
Notice was at one time withdrawn or expired is irrelevant.
Applying
the law to the facts, it is plain that the disputed land was
identified and a preliminary notice of intention to acquire was
gazetted on 25 August 2000. The same preliminary notice was
re-gazetted twice in 2003. The land in dispute was duly itemised in
Schedule 7 of the Government Gazette according to the prevailing law.
The land, having been identified and itemized
in Schedule 7, it fell squarely within the ambit of section 16B(2) of
the former Constitution. By virtue of section 16B(5) of the former
Constitution, the fact that at one time the Notice expired or was
withdrawn and that it was beset by other errors complained of by the
appellant were of no force or effect. They could not invalidate or
adversely affect the vesting of title in the State whatsoever.
Credible
evidence was proffered before the trial court that, upon acquisition,
the original title deeds were endorsed signifying the perfection of
State acquisition of the disputed land. The endorsed original title
deeds
however mysteriously disappeared in suspicious, fraudulent
circumstances to facilitate transfer for the benefit of the
appellant.
Once
the land had been identified and itemised under Schedule 7, title to
the land automatically vested in the State with the result that it
automatically became State property by operation of law. In
consequence whereof the previous owner was divested of his title to
the land and stripped of all rights of ownership to the acquired land
thereto.
The
learned judge in the court a
quo
was therefore correct when he remarked, at page 24 of his judgment,
that:
“TBIC
obtained transfer of the remaining extend of Stuhm only in 2009.
Until it did, it had no real rights over it. But, most importantly,
Reimer, who purported to transfer the property to it, had lost all
rights over the property, save the rights to a fair compensation. By
3 November 2005, the property had become State land by virtue of s16B
of the then Constitution.”
For
that reason, Deed of Transfer No.1724/09, dated 18 March 2009, in
favour of TBIC (Pvt) Ltd, was a nullity at law and of no force or
effect.
That
factual finding, and interpretation of the law, cannot be faulted at
all as it finds support in a plethora of precedents, chief among
them, Agro
Chem Dealers (Pvt) Ltd v Gomo & Others
2009
ZLR 255 where GOWORA J…, made it clear that:
“…,.
No person who is not the owner can transfer ownership in anything
whether or not such transferor was acting in good faith or mala
fide.”
That
interpretation and conclusion of the law finds solid support from R H
CHRISTIE, Business Law in Zimbabwe, 2nd
ed, Juta & Co Ltd…, where the learned author states that:
“An
owner whose property has been sold and delivered without his consent
remains the owner as the seller cannot pass title that was not his.”
On
the authorities, a buyer who acquires property from a seller who is
not the owner, and without valid mandate to sell the property, as
happened in this case, acquires defective title which is a nullity at
law. A nullity is an event that never happened in the eyes of the
law.
As
Cecil Michael Reimer had lost all rights of ownership to the land in
dispute, the sale of the land to TBIC (Pvt) Ltd was patently unlawful
and a nullity at law. No valid title can be founded on an illegality.
In Guoxing
Gong v Mayor Logistics (Pvt) Ltd
SC02-17.., this Court made it abundantly clear that anything done
contrary to the law is a nullity….,.
Having
lawfully acquired the disputed land, the acquiring authority remained
the lawful owner regardless of the unlawful purported sale and
transfer of the land to the first appellant. The acquiring authority
was therefore within its rights when it offered the disputed land to
the respondent for resettlement purposes. The respondent, in turn,
had the right to accept the offer, as he did, thereby concluding a
valid contract with the acquiring authority.
The
conclusion that the respondent's offer letter is valid and
enforceable is, in the circumstances, beyond reproach.
That
conclusion of law renders both appellants strangers to the contract
between the acquiring authority and the respondent.
This
brings us to the doctrine of privity of contract.
That
doctrine restricts the enforcement of contractual rights and remedies
to the contracting parties - to the exclusion of third parties. The
learned author, INNOCENT MAJA, in his book The
Law of Contract in Zimbabwe…,
graphically explains the doctrine as follows:
“The
doctrine of privity of contract provides that contractual remedies
are enforceable only by or against parties to a contract, and not
third parties, since contracts only create personal rights. According
to LILIENTHAL, privity of contract is the general proposition that an
agreement between A and B cannot be sued upon by C even though C
would be benefited by its performance. LILIENTHAL further posts that
privity of contract is premised upon the principle that rights
founded on contract belong to the person who has stipulated them and
that even the most express agreement of contracting parties would not
confer any right of action on the contract upon one who is not a
party to it.”
The
second respondent, being the only other contracting party to the
Offer Letter swept the carpet from underneath the appellants' feet
when he elected not to contest the court a
quo's
judgment choosing to remain neutral and abide by the court's
decision. That, in effect, means that the only other party privy to
the contract has capitulated and is no longer challenging the
validity of the first respondent's Offer Letter. For that reason,
the learned judge's finding that the Offer Letter issued to the
first respondent by the second respondent is valid is
unassailable….,.
In
the final analysis, we come to the unanimous conclusion that there is
absolutely no merit in this appeal. It is accordingly ordered as
follows:
That
the appeal be and is hereby dismissed with costs.
