The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be revived.
Upon revival of the prior Deed, the applicant prays for an order that the property conveyanced therein, called Remainder of Subdivision C of Lot 6 of Lot 1890 to 195 (inclusive) measuring 4,377 square metres be transferred, by the third respondent, into the applicant's name.
I must note that the part of the order sought, directing transfer by the third respondent, is incompetent.
The third respondent is the Registrar of Deeds. The Registrar of Deeds does not transfer properties but registers them. A conveyancer, acting under a power of attorney given by the owner of the property or transferor is the one who transfers the property to the transferee. The Registrar of Deeds, as the name clearly denotes, registers the transfer documents subject to all requirements imposed by applicable law being met.
For the benefit of the applicant, the duties of a Registrar are set out in section 5 of the Deeds Registries Act [Chapter 20:05] as read with the Deeds Registries Regulations S.I.236 of 2018.
The court does not create a duty outside what the law permits for the Registrar to perform.
The relief sought, for the court to order the third respondent to transfer the property, assuming that the current holding Deed is cancelled as prayed for is therefore a non sequitur and cannot be granted.
The applicant also prays for costs against the first respondent and any other respondent who opposes the application on the scale of legal practitioner and client.
The basis of the application is succinctly set out in paragraph 8 of the founding affidavit deposed to by the applicant company's Managing Director, Kingstone Hamutendi Munyawarara who stated that he is aware of the facts of the matter. He states as follows in paragraph 8 of the said affidavit:
“8. The application is premised on the fact that the said property was sold to the applicant by the fourth respondent in execution proceedings against the first respondent in HC3331/14. First respondent, whilst aware that the property had already been sold to the applicant by the Sheriff, fourth respondent hereto, purported to sell and transfer the property to the second respondent.”...,.
The applicant's case, as set out in the founding affidavit, was to the following effect:
It averred, that, it was declared the highest bidder at a judicial auction held on 18 September 2017 wherein the first respondent's property, which had been judicially attached, was up for sale to satisfy the judgment in case no. HC3331/14 made in favour of the fifth respondent against the first respondent.
The applicant was declared the highest bidder, having offered US$270,000 for the property.
Following the dismissal of an objection to the confirmation of the sale, filed by the first respondent, the applicant avers that it paid the purchase price of $270,000 to the fourth respondent as confirmed by the letter from the fourth respondent, dated 6 November 2018, addressed to the fifth respondent's legal practitioners as execution creditor.
The applicant paid transfer fees to the fifth respondent's legal practitioners in the sum of US$23,100 on 9 November 2018 as per proforma invoice of the same date prepared by the fifth respondent's legal practitioners.
The applicant attached a copy of judgment no. HH604-18 by MATHONSI J…, wherein the first respondent had, in case no. HC11349/17, challenged the fourth respondent's decision to confirm the sale of the property to the applicant.
Judgment HH604-18 was delivered on 3 October 2018 and the first respondent's challenge to confirmation was dismissed.
Judgment no. HH604-18 also disposed of case no. HC2650/18 brought by the fifth respondent herein as applicant therein. Case no's HC11349/17 and HC2650/18 were consolidated for purposes of hearing.
In case no. HC2650/18, the fifth respondent prayed for a declaratur to be made by the court to the effect that once the Sheriff had confirmed a sale, after dismissal of any objection(s) made in terms of Rule 359(7), then the Sheriff was obliged to pass transfer to the purchaser as provided for in Rule 361 of the High Court Rules (1971).
The court dismissed the application for the declaratur.
In dismissing the application for the declaratur, the learned judge, albeit agreeing that Rule 361 in its wording appeared to support the fifth respondent's interpretation, that, following confirmation of the sale and compliance with sale conditions, the Sheriff was required to transfer the property to the purchaser against payment of the purchase price; it made sense for the Sheriff to await giving transfer to the purchaser until all objection procedures had been exhausted.
The learned judge also held that the court had the discretion to regulate its processes.
In commenting on the provisions of section 14 of the High Court Act [Chapter 7:06] which gives this court jurisdiction to determine existing, future, and contingent rights, the learned judge, after referring to several decided cases, correctly held that the grant of a declaratory order was a discretionary matter for the court.
In my view, there is a further consideration which attaches to the interpretation of Rule 361.
The consideration has to do with rules of statutory interpretation. Rules of court, as with other legislative statutes, are read as a whole and not as a collection of isolated phrases.
Rule 361 should be read together with the rest of the rules regarding execution on immovable property.
Rule 359(8) and (9) provide that the Sheriff's decision to confirm a sale is open to challenge by “any person” who is aggrieved by the Sheriff's decision made in terms of Rule 359(7), that is, to confirm or cancel the sale.
The person challenges the decision by way of court application made within one month of the Sheriff's decision.
In terms of subrule 9 of Rule 359, the court may confirm, vary, or set aside the Sheriff's decision or “make such order as the court considers appropriate in the circumstances.”
It cannot have been the rule maker's intention that the Sheriff should carry out a concomitant transfer of the property upon his or her confirmation of the sale without allowing for the exercise by aggrieved parties of their right to object to court. Such interpretation would render nugatory the rights of objectors aggrieved by the Sheriff's decision.
Therefore, Rule 361 should be read as directing the Sheriff to transfer the property following his or her confirmation of the sale, only after allowing for the objection period of one month to lapse and no aggrieved party has applied to court to set aside the Sheriff's decision, or after all court processes have been exhausted in the event that an aggrieved party has applied to court.
This includes the appeal process which would need to be exhausted where the challenge by an aggrieved person has progressed that far.
It must therefore follow, that, even if l was to cancel the Deed of Transfer in favour of the second respondent, an order of the transfer of the property to the applicant by the fourth respondent can only be made if all court processes have been completed to finality.
In the judgment HH604-18, the learned judge made an order that “this order shall not be suspended by any appeal by either party but shall remain in force not withstanding such appeal.”
The first respondent was dissatisfied with the judgment. He noted an appeal against that judgment.
The notice of appeal was not attached to the papers but it appears common cause that such appeal was noted.
The applicant, in its founding affidavit, did not relate to the appeal nor deny its existence save in the answering affidavit, in paragraph 4, where, in denying that the matter is lis pendens, the applicant contended that an order was made that the noting of an appeal would not suspend the operation of judgment no. HH604-18.
The first respondent, on the other hand, averred that his appeal was also against the order decreeing the judgment to remain operational despite the noting of the appeal.
The applicant also averred that the “purported” appeal did not affect this application.
I cannot agree in view of my interpretation that transfer in terms of Rule 361 cannot be proceeded with until the court challenge processes given in Rules 359(8) and (9) have been finalized.
The applicant also attached the judgment of the HONOURABLE BERE JA delivered under case no. SC843/18 and bearing case citation SC02-19.
In that application, the first respondent filed an urgent application seeking interim relief that transfer of the property be stayed pending the determination of his appeal against the judgment HH604-18.
The learned judge dismissed the application for want of form and for the first respondent's failure to apply for condonation or to give an explanation for not using Form 29 or Form 29B of the rules of court.
The learned judge expressed his displeasure at what he described as “errant conduct” by the first respondent in engaging in endless and hopeless litigation to frustrate full execution on the judgment.
The learned judge's remarks were expressed obiter because the first respondent's application was found lacking or wanting as to form.
What, however, did not escape my attention was that neither MATHONSI J…, nor BERE JA made an order specific that the fourth respondent should transfer the property to the applicant.
The learned judges ruled in favour of the continuation of due process of execution.
The first respondent then purported to correct his defective application, which had been dismissed by BERE JA for want of form, by filing another application on 21 January 2019 seeking the same relief as sought in the dismissed application.
Under case no SC15-19, the Honourable GWAUNZA DCJ struck the application off the roll.
I imagine that since the same application had not been struck off the roll by BERE JA, but dismissed, it was incompetent for the first respondent to file the same application seeking the same relief.
The earlier dismissal had the effect of res judicata on the issue.
The first respondent however indicated that his appeal was still pending - a fact which was not disputed by the applicant.
The applicant referred to the judgment of this court in HH209-19 in case no HC1444/2019 delivered by MANZUNZU J on 14 March 2019.
In that case, the applicant filed an urgent application in which he cited all the other parties in the application before me as respondents. Significantly, the applicant herein was the fifth respondent therein.
The first respondent herein was the first respondent therein, the second respondent herein was also second respondent therein, and the third and fourth respondents herein were therein third and fourth respondents. There was a fifth respondent, namely, the Law Society of Zimbabwe which is not cited in the current application.
In the interim relief, and in particular in paragraph (i) of that application, the fifth respondent, as applicant therein, sought the following relief;
“That Deed of Transfer No.708/19, issued in the name of Tendai Mashayamunda, in respect of a piece of land in the district of Salisbury called the remainder of Subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands Estate of Welmold measuring 4,377 square metres be and is hereby cancelled.”
The rest of the relief sought, in both the interim relief and final relief, concerned prayers for orders of the de-registration of the first respondent herein as a legal practitioner, the placement of his legal firm under curatorship, and incidental relief, including costs.
It is common cause that application HC1444/19 was dismissed with costs by MANZUNZU J.
The case was determined on the merits and the decision by MANZUNZU J was therefore final.
In his judgment, MANZUNZU J made certain observations which l find apposite in so far as the present application is concerned. The learned judge stated as follows on page 3 of the cyclostyled judgment;
“Despite the judicial attachment of Chiutsi's immovable property, and, in fact, with a sale having been confirmed by the Sheriff, against all odds, Chiutsi sold the property and transferred ownership to the second respondent.
The applicant's interest in this application is for him to get his money from Chiutsi. The sale of Chiutsi's immovable property to the fifth respondent, by the Sheriff, had at least guaranteed him of his money. He fears the second respondent may pass title to a third party complicating his chances of recovering his money.
Chiutsi said he has now paid $115,000 to the applicant through his lawyers' trust account.
The payment has been acknowledged though there is a dispute as to whether or not such payment is considered as payment towards the judgment debt because, as Mr Biti argued, it goes towards costs.
As I have already pointed out, the applicant's interest is to get his money, otherwise he cannot be seen fighting a case for the fifth respondent as to whether the sale between fifth respondent and Sheriff should proceed. He has no mandate to do so.“
The above pronouncements hold true in the application before me in so far as the interests of the fifth respondent is concerned. His interest, as the judgment creditor in case no. HC3331/14, is to have the judgment order satisfied and must remain so.
What however happened is that in the case before MANZUNZU J, the fifth respondent prayed for cancellation of the Deed of Transfer no.708/19 in favour of the second respondent and left it at that.
He did not ask for any other relief as would have ensured that he gets payment in terms of the judgment granted in his favour.
The fifth respondent noted an appeal to the Supreme Court against the judgment of MANZUNZU J. The appeal was noted on 15 March 2019. It is pending before the Supreme Court under case no. SC140/19.
The first respondent, in the application before me, also raised the defence of lis pendens.
He averred, in his opposing affidavit, that, there was a pending case, HC649/17, in which he challenged the attachment of the property in question and that the matter was still to be resolved.
He also averred that there was further pending litigation in case no. HC8122/17 and that the fourth respondent should not have proceeded with the sale in execution.
He lastly averred, that, he had a pending appeal before the Supreme Court and that in any event the Judicial Services Commission had directed the fourth respondent to stay execution until the Supreme Court had determined the first respondent's appeal made against the judgment of MATHONSI J…,.
The applicant attached a copy of a letter from the Secretary of the Judicial Service Commission, dated 12 November 2018, directing the fourth respondent to stay execution pending appeal.
In response to the defence of lis pendens, the applicant, in its answering affidavit, did not deny the existence of the alleged pending litigations nor the appeal.
It took the position that the gist of its application was that the first respondent had sold to the second respondent the property in question in the full knowledge that the property had been attached by the fourth respondent.
The applicant further averred that the matter was not lis pendens by virtue of the first respondent's pending appeal because the appeal was also against the order that the judgment would remain operational despite the noting of any appeal.
The applicant also averred that BERE JA had dismissed the first respondent's attempt to interdict the transfer of the property to the applicant on the basis of a pending appeal. The applicant stated, in the final sentence in paragraph 4 of the answering affidavit, thus –
“Therefore, the fact that first respondent has noted a purported appeal against Justice MATHONSI's judgment does not affect this application.”
In regard to res judicata, the first respondent averred that the applicant filed an affidavit in case no. HC1444/19 specifically requesting the court to cancel the title deed in favour of the second respondent. The applicant further averred that the dismissal of case no. HC1444/19 by MANZUNZU J rendered the issue of cancellation of the Deed of Transfer to the second respondent res judicata and that this court was functus officio on the issue.
In response to the defence of res judicata, the applicant averred that the judgment of MANZUNZU J did not deal with the merits of the application. The applicant averred that whilst application HC1444/19 was concerned with the protection of the fifth respondent's rights, the applicant in casu was seeking to enforce its rights to transfer to itself the property in question as purchaser.
In regard to the preliminary defences raised, it is trite that the court has an unfettered right to refer to its records: see Mhungu v Mtindi 1986 (2) ZLR 171 in which McNALLY JA…, stated:
“It seems clear from the judgment in which the learned judge a quo granted summary judgment that he made reference to the papers in case no. HC3406/84. In so doing he was undoubtedly right. In general, the court is always entitled to make reference to its own records and proceedings and to take note of their contents…,.”
Guided by the above dicta, I perused the records referred to by the second respondent.
Significantly, and in relation to case no. HC1449/19, decided by MANZUNZU J, the applicant herein did not oppose the application. The applicant in fact supported the application as shown in the affidavit which was filed of record on 28 February 2019. In paragraph 2 of the applicant's affidavit thereon, it is stated;
“2. I have perused the urgent chamber application for the cancellation and setting aside of Title Deed No. 708/2019, together with the certificate of urgency and the founding affidavit of the applicant in support of the application. I confirm that fifth respondent is in support of the application and the relief sought as fifth respondent has an inherent interest in this matter as is apparent from applicant's affidavit itself.”
The applicant then chronicled the history of how it bought the property on the Sheriff's auction; the declaration made by the Sheriff that the applicant was the highest bidder and purchaser; the challenges mounted by the first respondent including attacking the court judgment by MATHONSI J…,.; that the applicant paid the purchase price and transfer fees; the failed interdict applications made by the first respondent in the Supreme Court and determined by BERE JA and GWAUNZA DCJ; the allegation that the first respondent's appeal no. SC734/18 was dismissed for non-compliance with the Rules; and that the sale of the property by the first respondent was fraudulent as the first respondent was aware of the prior sale to the applicant made on 18 September 2017.
The applicant, in paragraph 13 of the affidavit, accused the first respondent herein of having connived with officials of the third respondent herein to perpetrate a fraud by registering the transfer to the second respondent herein. The applicant states as follows in paragraphs 13–16 of its affidavit:
“13…,. The sale and transfer of the property to the second respondent is void and that void transaction must be quashed.
14. The fact is, the title deed in favour of the second respondent is a fraud and it must be cancelled. The actions of the first respondent are criminal in nature and should not be condoned.
15. Fifth respondent has and continues to suffer prejudice at the actions of the first respondent, which, if allowed to stand, will greatly prejudice the applicant, fifth respondent, and our justice system.
16. It is therefore fifth respondent's position that there is sufficient basis for this Honourable Court to grant the relief sought for by the applicant. First respondent also ought to be ordered to pay the costs on a punitive scale.”
It is therefore clear that in case no. HC1449/19 the applicant took advantage of the application filed by the fifth respondent to present its own case to the court.
The relief sought by the fifth respondent was in effect for the benefit of the applicant as well.
In a manner of speaking, the applicant took the position of a co-applicant and prayed to the court that the relief sought by the fifth respondent herein should be granted.
The applicant argued, before MANZUNZU J, for the relief of cancellation of the Deed of Transfer made in favour of the second respondent to be cancelled. In paragraph 15 of its affidavit, the applicant averred that it continued to suffer prejudice as did the fifth respondent.
The applicant adopted the applicant's cause as its own.
The cancellation of the Deed of Transfer, had such relief sought been granted, would have benefitted the applicant.
The present application would not have been made.
The applicant has, by this application, sought the same relief which it looked forward to getting in case no. HC1449/19 before MANZUNZU J.
The extension to the same order then and now sought, that the prior Deed be revived, would simply have followed as a causa causans of the cancellation of the now holding Deed which was the causa sine qua non of the revival of the prior Deed. The same reasoning would apply to the faulty relief sought, that the third respondent transfers the property to the applicant.
I have already pointed out that the third respondent does not transfer property but registers transfers. Transfers are done by the seller to the purchaser.
There can be no doubt the dismissal of the application by MANZUNZU J resulted in the fifth respondent and the applicant being denied the common relief which they sought.
In deciding whether the plea of res judicata applies against the applicant in this case and similarly against the fifth respondent, I need to restate the requirements for a successful plea of res judicata.
In the case of Wilson Nakunyunda Banda and 45 Others v Zimbabwe Iron and Steel Corporation SC54-99, SANDURA JA stated…;
“The requisites of the plea of res judicata have been set out in a number of previous cases. In Pretorious v Barkly East Divisional Council 1914 AD 407. SEARLE J set them out as follows at p409:
As to the first point, the requisites for a plea of res judicata have several times been laid down in this court.
The three requisites of a plea of res judicata, said the Chief Justice in Hiddingh v Denysson L (3 Juta p424) quoting Voet (44.2.3) are that the action in respect of which judgment has been given must have been between the same parties or their privies; concerning the same subject matter; and founded upon the same cause of complaint as the action in which the defence is raised. In order to determine the cause of complaint, the pleadings, and not the evidence in the case, must be looked at.”
The pleadings in case no.1449/19 and in casu are similar.
What has simply happened is that the applicant herein, having made cause with the fifth respondent as applicant in HC1449/19, and lost the case, has decided, out of misplaced ingenuity, to file this application which otherwise involves the same parties, the same subject matter, and founded on the same cause of complaint as was before the court in case no. HC1449/19 which MANZUNZU J dismissed.
The fact that the applicant was a respondent does not alter the position.
A respondent who participates in an application is as much a party to the case as the applicant. Such respondent becomes an interested party who will be affected and bound by the order which the court may grant. The respondent, as much as the applicant, has a right of appeal against the judgment in which such respondent is a party.
In casu, the applicant herein did not appeal against the judgment of MANZUNZU J which means that it did not take issue with the dismissal of the application.
The dismissal of the application meant that the current Deed, in the name of the second respondent, remained extant, yet, in the application, case no. HC1449/19, the applicant had prayed for the order of cancellation of the Deed, as sought by the fifth respondent, to be granted.
In the current application, the applicant now took the leading role and petitioned the court for the same relief as previously sought in case no. HC1449/19 with the fifth respondent, who was applicant in case no. HC1449/19, being now cited again as fifth respondent.
The fifth respondent, for its part, filed what it terms a supporting affidavit on 12 April 2019.
It is a curious supporting affidavit in that it comprises 33 pages compared to only 7 pages which make up the founding affidavit of the applicant. The affidavit has 169 individualized paragraphs containing separate allegations in line with Rule 227(1)(b). The annexures to the supporting affidavit comprise 24 pages. In totality, therefore, the fifth respondent's so-called supporting affidavit, with annexures, comprises 57 pages.
The fifth respondent's affidavit goes further than the applicant's affidavit in expanding on the grounds on which the relief sought by the applicant should be granted. Significantly, the fifth respondent, in the penultimate paragraph of the supporting affidavit, in paragraph 168, stated:
“Ad paragraphs 1 to 28 of the applicant's founding affidavit
168. I have read the founding affidavit of Mr Kingstone Hamutendi Munyawarara. I associate myself with the same. I agree with every contention made therein and l seek that an order be granted in terms of the draft.”
Other than paragraph 168, the fifth respondent, in the bulk of his affidavit, was setting out facts which found the application more comprehensively in content and detail than the applicant had done in the founding affidavit.
In my view, the procedure which was adopted by the fifth respondent is wrong.
Form 29, referred to in Rule 230, on application procedure, calls upon the respondents to oppose the relief sought by the applicant if they wish to do so. This implies that the respondent can also consent to the application expressly by stating so or not file any papers in which case the respondent who does not file any opposing papers is deemed not to be opposed to the order sought.
Where the respondent seeks to bring its own application and the cause of action, subject matter, and the parties are the same, he or she can file his or her own application separately and apply for consolidation of the applications for purposes of hearing.
The fifth respondent did not do this, and, instead, sought to sneak in its own dispute for resolution by the court through the back door in an application brought by another party.
To compound matters, the fifth respondent could not competently seek the court's determination on issue which it brought before the court and judgment which he has appealed against was given by the same court.
The matter is therefore res judicata as far as this court is concerned and lis pendens as far as the Supreme Court appeal is concerned.
This court has inherent power, in terms of section 176 of the Constitution, to regulate its processes, and, in the process of doing so, to guard against abuse of court process by litigants.
The fifth respondent seeks to abuse the court process by asking the court to determine and grant an order which he failed to obtain in case no. HC1449/19 and appealed against that decision.
Obviously, if the order is granted, the appeal becomes academic and may not be pursued leaving this court with two conflicting judgments.
In my view, what was before MANZUNZU J was a dispute which involved all the parties herein.
A decision thereon was granted. One of the parties, namely, the fifth respondent herein, appealed against the judgment. The others, including the applicant, did not do so.
The court is not a gambling place where parties take chances to try their luck where one who led the group failed to get relief which each member of the group was seeking in the prior or failed application.
I therefore found merit in the first respondent's plea of res judicata for the reasons l have outlined.
The dispute before me was determined in case no. HC1449/19, and, save for the fifth respondent herein who was the applicant, parties who did not appeal against the judgment, when in fact they were dissatisfied with it, must live with the judgment.
For the fifth respondent, the matter is not only res judicata in this court, but is lis pendens in the Supreme Court.
