The immovable property, described as Stand 382 Good Hope Township of Subdivision B of Good Hope, was transferred to the applicant in April 2007 by Deed of Transfer number 1597/2007.
On or about 1 October 2006, one Tsungirai Musenha and the first respondent herein filed an application, as co-applicants, in the Magistrates Court in Case No.12060/06. They cited Robert Adrian Campbell-Logan (the second respondent herein), estate late Maria Johanna Campbell-Logan, and the Registrar of Deeds (the fourth respondent herein) as the first, second, and third respondents respectively.
They contended therein that the second respondent herein had sold to them and they had purchased Stands Numbers 412 and 382.
They further contended, that, the second respondent herein was avoiding them then for the purpose of passing transfer to them of the said properties.
On or about 5 October 2006, a rule nisi was granted by the Magistrates Court in the following terms:
“A Rule Nisi be and is hereby issued returnable to this honourable court on the…, day of…,. 2006 calling upon the first and second respondents to show cause, if any, why? (sic)
1. First, second, and third respondents, and all those acting through them, should not be barred from transferring to anyone other than first and second applicants Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)
2. First, second, and third respondents should not be ordered to effect transfer of Stand 412 and 382 to first and second applicants Stand Numbers 412 and 382, respectively, being sub-divisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)
3. First, second, and third respondents, and all those acting through them, should not be barred from disposing first and second applicants in any way of their occupation of Stand numbers 412 and 382 respectively. (sic)
4. First respondent should not be ordered to pay costs of this application. (sic)
INTERIM RELIEF:
1. Pending the return date, all respondents and all those acting through them be and are hereby interdicted from disposing or transferring to anyone Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of sub-division B of Good Hope held under Deed Number 6180/95.”
On 8 November 2006, the magistrate granted default judgment in the same matter for an “interdict and compelling order” in favour of the applicants therein.
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 Fransisca Campbell-Logan, for the sole purpose of effecting transfer of “a certain piece of land situated in the District of Salisbury being a remainder of subdivision B of Good Hope, being Stand Number 382 measuring 2200 square metres into the name of Cosma Chiangwa.”
On 4 July 2007, the immovable property was transferred into the name of Cosma Chiangwa, the first respondent herein by Deed of Transfer 4079/2007.
The applicant now applies for an order in the following terms:
“1. That the sale to the first respondent, by the second respondent, of Stand 382 Good Hope is null and void. (sic)
2. That the registration of Stand 382 of Good Hope Township of Subdivision B of Good Hope into the name of first respondent is null and void. (sic)
3. That the appointment of the third respondent, as Executor Dative of the estate of the late Maria Johanna Fransisca Campbell-Logan, is null and void.
4. That the applicant is the sole lawful registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.
5. That the fourth respondent shall, within 3 days of service of this Order upon him, delete the name of the first respondent from the name of the applicant as the registered owner of Stand 382 Good Hope Township of subdivision B of Good Hope. (sic)
6. That the first, second, third, and fifth respondents shall pay costs of these proceedings jointly and severally, the one paying the others to be absolved.”
In the main, the applicant contends, that, the appointment by the sixth respondent of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary and during a period of time when the executrix testamentary was still holding office and was not incapacitated, is not valid in law.
He further contends, that, when the second respondent sold Stand 382 to the first respondent, he (the second respondent had no title to pass and that the sale by the second respondent was done in the second respondent's personal capacity and was also done without authority.
He also contends that when the second respondent sold the property (to the first respondent) he knew that it had already been sold to the applicant as he had co-signed the agreement of sale between the applicant and the executrix testamentary.
It is also contended by the applicant that the fourth respondent registered the property into the name of the first respondent without checking his register.
Furthermore, the fifth respondent, who was the conveyancer of the property into the first respondent's name, did not conduct any checks as to title to the property before drafting and lodging conveyancing papers with the Deeds Registry. If he had exercised care he would have discovered that the immovable property belonged to the applicant as it had already been registered into the applicant's name more than two months earlier.
The applicant further contends, that, the position stated by the executrix testamentary, in the letter of 1 September 2007, is the correct position at law.
The letter 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 the office by a competent court or judge.
The contention then was 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 is of no force or effect.
The property was thus illegally transferred into the name of the first respondent.
He also contends, that, the third respondent ought to have known that the sale by the second respondent to Tsungirai Musenha and the first respondent was defective.
It is the applicant's contention that there is sufficient justification for this court to grant him the relief that he seeks....,.
The fourth reason the respondents contend that the application ought not to succeed is that the applicant has no real rights over Stand 382 Good Hope Township of sub-division B of Good Hope and that the Registrar of Deeds has confirmed, by letter, that the property belongs to the first respondent....,.
The first respondent has sought to rely, inter alia, on the letter written on 3 April 2008 by the Assistant Registrar of Deeds addressed to the third respondent and which reads, in part:
“Ref: Deed Number 1597/2007 and 4079/2007
Reference is made to your letter dated 28 March 2008 where you wanted this office to clarify the position of Deed of Transfer 1597/2007 and 4079/2007. (sic)
Our investigation has shown that both deeds refer to Stand 382 Good Hope Township of Subdivision B of Good Hope. There are two records in our database. One in the name of David Katerere, under transfer p11…, 1597/2007, dated 2 April 2007, and the other in names of Cosma Chianwa, under transfer 4079/2007, dated 4/7/2007. (sic)
On further investigation, we noted that Deed of Transfer 4079/2007 was deducted first at the surveyor General's office and 1597/2007 was rejected because the Stand was already registered.
It is not clear why deed 4079/2007 was deducted first at the Surveyor General. But, this is not unusual since work is allocated to various examiners whose performances differ. What it now means is that Deed 4079/2007 has completed all the processes while transfer 1597/2007 has not, making it invalid. (sic)
However, ownership of the property and cancellation of invalid deed has to be done by the courts in line with section 8 of the Deeds Registries Act [Cap 20:05].”...,.
Counsel for the applicant submitted that the letter written by the Registrar of Deeds, indicating that the applicant's Deed is invalid, ought not to be admitted as evidence as the Registrar is one of the respondents and cannot be viewed as being entirely objective.
Furthermore, that, in any event, declaring a Deed invalid is the prerogative of the court and the Registrar was thus usurping the court's power when he wrote the letter....,.
Section 14 of the Deeds Registries Act provides:
“Subject to this Act or any other law -
(a) The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar.”
Section 8 of the Deeds Registries Act, which is referred to in the above quoted letter, provides as follows:
“(1) Save as is otherwise provided in this Act, or in any other enactment, no registered deed of grant, deed of transfer, or conveying title to land, or any real right in land, other than a mortgage bond, and no cession of any registered bond not made as security, shall be cancelled by a registrar except upon an order of court.”
The letter by the Assistant Registrar of Deeds does not constitute cancellation of the Deed of Transfer in favour of the applicant.
In my view, it expresses the author's opinion on the matter....,.
It does not, in my view, support the first respondent's contention that there is no double registration of the property. The fact is that there is double registration of the property in issue; the one registration being in favour of the applicant and effected on 2 April 2007 whilst the other registration is in favour of the first respondent and was effected on 4 July 2007 - some three months later.
Section 10 of the Deeds of Registries Act provides -
“(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar's signature thereto…,.”
Thereafter, section 11 provides -
“(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…,.”
The fourth respondent is of the opinion that the Deed of Transfer in favour of the applicant is invalid for the reasons stated in the letter from his office; which letter has already been quoted above....,.
The following are the facts which emerge from the papers and upon which this matter will be determined:
(i) Firstly, the applicant purchased the property in issue from the estate, as represented by the executrix testamentary. The first respondent, on the other hand, purchased the same property, purportedly from the same estate, but, in his case, the estate was represented by the executor dative.
It is an undisputed fact that the executor dative was appointed to the office while the executrix testamentary was still alive, holding office, not incapacitated, and still sane. Neither had the executrix testamentary been removed from office.
(ii) Secondly, the applicant's agreement of sale preceded that of the first respondent.
(iii) Thirdly, it is also clear from the papers that the property was registered into the applicant's name on 2 April 2007 by Deed of Transfer 1597/2007 while the transfer to the first respondent was done 3 (three) months later, on 4 July 2007, by Deed of Transfer 4079/2007.
The relevant law applicable to the instant matter, with particular regard to the registration of real rights as provided in the following sections of the Deeds Registries Act, is:
“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.”…,.
Section 11 then provides:
“11 Deeds to follow sequence of their relative causes
(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:
Provided that —…,.”…,.
Section 14 provides:
“14 How real rights shall be transferred
Subject to this Act or any other law —
(a) The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar;
(b) Other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by a registrar:
Provided that attestation by a notary public shall not be necessary in respect of the conveyance of real rights acquired under a mortgage bond.”…,.
On a perusal of section 10 of the Deeds Registries Act, it follows, therefore, that, when the Registrar affixed his signature to the Deed of Transfer in favour of the applicant, on 2 April 2007, the Deed was, with effect from that date, deemed to be registered.
Furthermore, and on a perusal of section 14 of the Deeds Registries Act, ownership was conveyed from the estate of the late Maria Johanna Francisca Campbell-Logan to the applicant. Thus, the applicant became or was henceforth deemed to be the owner, and the property no longer formed part of the deceased estate.
It therefore follows, that, when, in Deed of Transfer 4079/2007, on 4 July 2007, it was purported to convey ownership of the property from the estate to the first respondent, the estate, at that stage, was no longer the owner thereof and it thus had no rights to transfer to the first respondent.
The agreement of sale, purportedly in favour of the first respondent, cannot therefore be valid....,.
Although the Deed of Transfer in favour of the applicant was registered first, the fourth respondent's opinion is that the Deed is invalid for the reasons stated in the letter from his office already quoted above.
It would appear to me that this can only be viewed as the Registrar's opinion and not a statement or declaration of the legal position.
I am fortified in this assessment by the provisions of section 8(1) of the Deeds Registries Act already quoted above, in terms of which any Deed of Transfer shall not be cancelled by a Registrar except upon an order of court.
There has been no order of court which has cancelled or authorized the cancellation of the applicant's Deed of Transfer.
