BHUNU
J: This is an appeal against the
magistrate's ruling sitting at Kadoma dismissing the appellant's application
for rescission of judgment on 15 December 2008.
The
respondent Farai Ngorima is the registered owner of a certain piece of
immovable property known as house number 3795 Ingezi Township Kadoma. He
purchased the house from the late Monica Ruvimbo Dzinamarira on 7 March 2007
for $27 000 000-00. The property was registered in his name on 17 April 2007
under deed of transfer 000198/007 with the seller acknowledging that the whole
of the purchase price had been paid.
It
is common cause that after the respondent had purchased and obtained title of
the said property on 17 April 2007; the appellant subsequently purchased the
same property from Monica Dzinamarira and obtained cession of the same property
at the Municipality
of Kadoma's offices on 13
July 2007. Clause 3 of the cession agreement between the appellant and
Dzinamarira reads:
“3. The cessionary shall take
possession of the said property thereon on the 13th July 2007and all
risk, profit and loss in the property shall pass to him subject to the
aforesaid Municipal consent being granted.”
It
is clear that by the time the appellant purported to buy and obtain cession of
the disputed property on 13 July 2007, the respondent had already bought and
obtained title of the same property in the deeds registry on 17 April 2007. The
act of registration had the legal effect of divesting Monica Dzinamarira of any
rights and title she might have previously had in the property. Thus when she
purported to sell and cede the same property to the appellant she had nothing
to sell or cede as she had been divested of any rights and title in the
property. The second sale and cession was therefore a sham and of no force or
effect.
What
this means is that the appellant was cheated into buying property and obtaining
cession from a person who did not own the property. Common sense dictates that
Monica Dzinamarira could not and did not transfer any rights and interest in
the disputed property to the appellant for the simple reason that she had no
such rights and interest to transfer to her.
Jurisdiction
The
applicant has taken issue with the trial magistrate's jurisdiction on the basis
that the value of the property exceeds the Magistrates Court jurisdiction. It is
correct that the Magistrates' court is a court of limited jurisdiction. Parties
can however consent to the jurisdiction of the magistrate's court. In this case
it is common cause that it is the appellant who first took the matter to the
Magistrates' court under case number 405/07 seeking transfer of the same
property. She cannot therefore, be heard to complain that the magistrate had no
jurisdiction when she is the one who first approached that court for relief in
respect of the same property. She must therefore, be deemed to have acquiesced
or consented to that court's jurisdiction.
The
appellant's reliance on the case of Guga v Moyo & Ors 200 (2) 458 is
misplaced. That case dealt with a situation where transfer had not been
effected to the fist purchaser. In this case transfer had already been effected
to the first purchaser.
Conclusion
We
therefore come to the unanimous conclusion that the magistrate was correct in
dismissing the appellant's application for rescission of default judgment for
want of reasonable prospects of success on appeal.
“It
is accordingly ordered that the appeal be and is hereby dismissed with costs”.
KARWI J agrees
FG Gijima, the appellant's legal practitioners
The Legal Aid
Directorate, the respondent's legal practitioners
