OMERJEE AJA: This
appeal concerns a protracted legal dispute involving the rights, title and
interest in an immovable property namely Stand No. 6058 Glen View 3 Township,
Harare (hereinafter referred to as “the property”).
In 1980 the first respondent's husband purchased the
rights, title and interest in the property from Kufa Oswin Danda. At the time
of purchase, the first respondent's husband had acquired another property
within the municipal jurisdiction of the City of Harare (“the City Council”).
It was the policy of the City Council at the time not to permit any person to
acquire and register in his name more than one property within the municipal
area. The first respondent's husband agreed with the second respondent (his
young brother) that the property would be registered in the latter's name. They
also agreed that in due course it would be transferred and registered in the
name of the first respondent's children.
On 26 January 1982 the City Council approved the
cession of Danda's rights in the property to the second respondent. On 19 May
1998, the first respondent's husband requested the second respondent to cede
his rights in the property to his son, Lydman Chikadaya. The second
respondent refused to do so. On 25 September 1998, the first respondent's
husband then instituted proceedings in the High Court in Case No. HC 11678/98
against the second respondent and the City Council for the cession of rights in
the property. The second respondent contested the action.
On 1 March 2001, SMITH J, non-suited the first respondent's
husband on the basis of the “dirty hands” principle and dismissed his claim
without a hearing as to the merits. The first respondent's husband noted an
appeal to the Supreme Court on 29 March 2001. In Judgment No SC 58/2001
delivered on 14 June 2001, the Supreme Court, upheld the appeal, set aside the
order of the High Court and remitted the matter to the lower court for the
continuation of the trial on the merits. The subsequent trial was held on 3 and
4 September 2001.
On 20 February 2002, SMITH J granted the relief sought by
the first respondent's husband in Judgment No. HH-1-2002. In that
judgment the court ordered the second respondent to cede his rights, title and
interest in the property to the first respondent's husband failing which, the
Deputy Sheriff was authorised to act in his stead. The second respondent noted
an appeal to this Court in Case No. SC 85/02 against that decision. The
appeal was dismissed by this Court on 15 November 2004.
When the first respondent's husband sought to execute
the judgement of 20 February 2002, he discovered that, while the matter was still
pending before the courts, the council had already, under Deed of Transfer
1284/2001, transferred the property to the second and third respondents. The
second and third respondents had in turn sold the property to the appellant on
6 December 2000 and effected transfer of the property to the appellant on 14
February 2001.
When the first respondent's husband discovered that the
property had been sold to the appellant, he filed a court application under
Case No HC 12434/04 against the appellant, the second, third and fourth
respondents respectively, seeking inter alia the cancellation of the
sale, cancellation of transfer of the property to the appellant, transfer of
the property to him, eviction of all parties claiming occupation through the
appellant and costs of suit on the scale of legal practitioner and client. Only
the appellant opposed the application in the papers filed. The other parties
cited did not file any opposing papers in this matter.
On 24 March 2009 the first respondent's husband died
before the trial of the matter. The first respondent in her capacity as the
executrix was substituted as the plaintiff in the matter. The court a
quo granted the relief sought by the first respondent. It is against that
decision that the present appeal has been noted.
The appellant now appeals to this Court on the
grounds that:
“1.
The learned Judge a quo erred and misdirected himself on the evidence
presented to make a finding that the appellant was a mala fide purchaser.
In particular the learned Judge ignored evidence which proved that the
appellant was an innocent third party at the time he purchased the property and
took transfer of the same.
2.
The learned judge failed to appreciate that the first respondent was not
entitled to the relief of rei vindicatio as against second respondent.
In particular, the learned Judge ignored the fact that second respondent being
the registered owner of the property had proper title and dominium thereof.
3.
The learned Judge erred and misdirected himself in granting an order setting
aside the sale and transfer of the property to the appellant when the facts of
the case disclosed special circumstances in favour of non-cancellation of Deed
of transfer in favour of the appellant.
4.
The Learned Judge ought to have made a finding that the first respondent was
estopped from vindicating the property since the respondent did not take
appropriate steps to protect her interests in the property which situation
resulted in appellant purchasing and taking transfer of the same in good faith.
5.
The learned Judge failed to appreciate that at the time of the trial herein ,
the property had passed from second respondent to appellant and hence the
principle of res litigiosa had no application to the extent warranting
the cancellation of appellant's title to the property under circumstances shown
by the facts of the case.
6.
The learned Judge erred and misdirected himself in awarding costs against the
appellant on a Legal Practitioner and client scale.”
The appellant seeks the setting aside of the
judgement of the court a quo and for it to be substituted by an order
dismissing the claim by first respondent with costs.
Three issues arise for determination. I propose
to deal with each of the issues in turn. These are:
i. Whether
the appellant in casu was a bona fide purchaser of the
property in dispute.
ii. Whether the
first respondent (plaintiff in the court a quo) was entitled to the
remedy of rei vindicatio under the circumstances.
iii. Whether
the contested rights were res litigiosa.
On the first issue, it was the submission of Mr Dondo
for the appellant that the court a quo misdirected itself in
finding on the evidence adduced that the appellant was a mala fide purchaser.
This was a finding of fact.
It is trite that an appellate court will not interfere with
a decision of a trial court based on findings of fact, unless there is a clear
misdirection or the decision reached is irrational. In the case ofHama v
National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670C-E KORSAH JA
stated the following:
“The general rule of the law, as regards irrationality, is
that an appellate court will not interfere with a decision of a trial court
based purely on a finding of fact unless it is satisfied that, having regard to
the evidence placed before the trial court, the finding complained of is so
outrageous in its defiance of logic or of accepted moral standards that no
sensible person D who had applied his mind to the question to be
decided could have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380
at 395-7; Secretary of State for Education & Science v Metropolitan Borough
of Tameside [1976] 3 All ER 665 (CA) at 671E-H; CCSU v Min for the Civil
Service supra at 951A-B; PF-ZAPU v Min of Justice (2) 1985 (1) ZLR 305 (S) at
326E-G.”
The onus to prove that the appellant was a mala fide purchaser rested
upon first respondent in the court a quo. A careful analysis of the
evidence of Virginia Chikadaya the first respondent in her capacity as
executrix in the estate of the late Cyril Chikadaya, reveals that this witness
failed to discharge the onus upon her. She was unable to give reasons for
claiming that the appellant was aware of the legal wrangle between her husband
and the second respondent over the said property. The trial Judge correctly
found that the first respondent had failed to prove that the appellant had been
a tenant at the property prior to the purchase of the same.
The court a quo however found that the
probabilities confirmed that the appellant must have been aware of the claims
by the first respondent's husband to the property. There was no evidence
whether direct or circumstantial to establish that the appellant knew or should
have known of the legal dispute between the first respondent's late husband and
his brother over the property. There was a mere suspicion that he could have
known about it but nothing more. Furthermore the appellant's assertion that he
was not aware of the legal wrangle over the property was supported by the
evidence of Chiedza Chimere who was a tenant at the property at the time. She
testified that she never brought this issue to the appellant's attention at any
time, but confirmed seeing the appellant inspecting the property.
The first respondent failed to prove that the
appellant was a mala fide purchaser. She only relied on what she had
been told by her husband and this was regarded as first hand hearsay by the
court a quo. That court admitted such evidence despite the fact that
the late Chikadaya was an interested party and had an interest in this matter.
The appellant's evidence that he was unaware of the legal dispute as to the
rights in the property was supported and corroborated by two tenants who were
residing at the property at the relevant time.
Having regard to the evidence adduced on record, it
is clear that the first respondent failed to discharge the onus to prove that
the appellant was a mala fide purchaser. The court a quo
erred and misdirected itself in coming to such conclusion on the evidence
led. The appellant on the evidence on record was a bona fide
purchaser. However the resolution of this issue does not determine the fate of
this appeal. It is necessary to determine the two other remaining issues.
I turn to deal with the second issue that is, whether the
first respondent was entitled to the remedy of rei vindicatio.
The rei vindicatio is a common law remedy
that is available to the owner of property for its recovery from the possession
of any other person. In such an action there are two essential elements of the
remedy that require to be proved. These are firstly, proof of ownership and
secondly, possession of the property by another person. Once the two
requirements are met, the onus shifts to the respondent to justify his
occupation.
Mr Dondo for the appellant submitted that
the remedy was not available to the first respondent because her late husband
had never become the owner of the property. Prior to the transfer of the
property to the appellant, second respondent held rights, title and interest
therein.
The judgment of SMITH J in Chikadaya v Chikadaya
& Ors HH-1-2002, established that the first respondent's husband was
the owner of the rights, title and interest in the property which his young
brother the second respondent purported to dispose of to the appellant. The
second respondent purported to be the owner and disposed of the property in the
full knowledge that the property did not belong to him. He did so in order to
cheat and defeat the true owner of his rights in the property. In other words
he fraudulently sold the property to the appellant. The second respondent
disposed of the property before the merits of the matter had been determined by
SMITH J. When the trial commenced, he did not disclose the fact that transfer
had already been effected to the appellant. He deliberately concealed this
information from the court and proceeded to appeal to the Supreme Court against
the decision of SMITH J, which had awarded the rights, interest and title to
the first respondent's late husband.
Wille and Millin's in their book “Mercantile Law
in South Africa” by Phillip Millin and George Wille, 18th
edition at p 182 states that:
“If, however a vendor knowing himself not to be the true
owner of the thing, represents himself to be the owner of ascertained goods,
and sells them to a person ignorant of the truth so as to wilfully to expose
the latter to the danger of having the possession taken away from him by the
true owner, the law regards such conduct on the part of the vendor as
fraudulent; and the buyer is entitled to repudiate the contract and sue the
seller for damages even before he is evicted. This reflects the view of De
Villers JA in Kleynhans Bros v Wessels's Trustee 1927 AD 271, and is
submitted to be preferable to the contrary view of Wessels JA in that case – at
least as regards the sale of a specific merx.”
These sentiments are pertinent to the present matter.
The agreement of sale between the appellant and the second respondent was null
and void for lack of authority. The second respondent was not authorised by the
owner of the property to dispose of it on his behalf. He purported to dispose
of rights in the property which rights he did not have. As was pointed out by
LORD DENNING in Macfoy v United Africa Company limited (1961) 3 All ER
1169 (PC) at 1172:
“If an act is void, then it is in law a nullity. It is not
only bad, but incurably bad. There is no need for an order of court to set it
aside. It is automatically null and void without more ado, though it is
sometimes convenient to have the court declare it to be so. And every
proceeding which is founded on it is also bad and incurably bad. You cannot put
something on nothing and expect it to stay there. It will collapse.”
The same sentiments were also echoed by MAKARAU JP,
as she then was, in Katirawu v Katirawu & Ors HH-58-07 at p 5 of
the cyclostyled judgement when she said:
“... Nothing legal can flow from a fraud. His appointment
was null and void ab initio on account of fraud. It is as if it was
never made. It is a nothing and upon which nothing of consequence can hang.”
The first respondent has a right of vindication
against the appellant, despite the fact that the appellant had become the
registered owner of the property. The first respondent's right is derived from
the common law principle memo dat quod non habet which means no one
can transfer more rights to another than he himself has. In the present case
the second respondent who purported to sell the property to the appellant was
not the legitimate owner of the property and hence could not transfer the right
of ownership which he did not possess.
The court a quo correctly concluded that the first
respondent as the rightful owner of the property was entitled to recover it
from any person, who had possession of it without his consent. The first
respondent is entitled to the remedy of vindication as against the appellant.
The last issue that falls for determination is
whether or the principle of res litigiosa applies in the present case.
In Waikiki Shipping Company Limited v Thomas Barlaw and Sons (Natal) Ltd
and Anor 1978 (1) SA 671 at 676 H the court defined “res litigiosa”
as objects that are the subject matter of litigation.
In Zimbabwe Banking Corporation Ltd & Anor v
Shiku Distributors (Pvt) Ltd and Ors 2000 (2) ZLR 11 (H) at 18F the court
held that:
“- - - a res litigiosa may not be sold after
institution of action as there is no-one who can be enriched by the right as
everyone has an equal right to prosecute it.”
It is trite that all personal actions have the effect
of rendering their subject matterres litigiosa at the stage of litis
contestatio. The relevant stage is not the time of commencement of action,
but the time of litis contestatio. In the case of Opera House
(Grand Parade) Restaurant (Pvt) Ltd v Cape Town City Council 1986 (2) SA
656 (C), it was held that in a real action (action in rem) the land
becomes res litigiosa on the service of summons while in a personal
action, that status was achieved at the closure of pleadings.
I am in agreement with the findings of the trial Judge that
in the present matter, it was unnecessary to determine whether the rights in
issue were real or personal rights as at the time of the alienation summons had
been served and pleadings closed. It is common cause that the contested rights
were res litigiosa.
It is now settled in our law that where an object is res
litigiosa this does not preclude or prevent it from being alienated or
similarly dealt with, as long as the rights of the non-alienating litigant in
the res are protected. See the cyclostyled judgment of Supa Plant
Investments (Pvt) Ltd v Edgar Chidavaenzi HH-92-09 at p 6-7. l conclude
that the sale of the rights in the property after the closure of pleadings
without protecting the first respondent's rights rendered the sale a nullity.
The court a quo's findings in this regard cannot be faulted.
Accordingly and for these reasons, it is ordered as
follows:
The appeal be and is hereby
dismissed with costs.
GARWE
JA:
I agree
GOWORA
JA: I agree
Dondo & Partners, appellant's legal
practitioners
Musunga & Associates,
first respondent's legal practitioners
