The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.

The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring authority and is responsible for the administration and implementation of the Land Acquisition Act [Chapter 20:10] and other allied pieces of legislation currently in force.

The second respondent is Nyasha Chikafu who is, in terms of the Land Acquisition Act [Chapter 20:10], the beneficiary of subdivision 1 of Dodhill in Chegutu District, Mashonaland West Province; which, incidentally, the applicants claim to have legitimate right over.

For purposes of this judgment, I will refer to the property in question as Dodhill Farm.

THE BACKGROUND

From the papers filed of record, coupled with the submissions made by the two legal practitioners representing the applicants and the second respondent, there are conflicting perceptions as regards the current status of Dodhill Farm.

The applicants feel very strongly that annexure '2' confirms their legitimate possession of the property.

Annexure '2' is a court order which was consented to at a time when the other portions of the property were voluntarily conceded to the State for purposes of agricultural resettlement following the formal gazetting of the applicants farm in January of 2005.

The second respondent's position is that following the promulgation of the constitutional amendment number 17/05, Dodhill Farm was properly allocated to her by the first respondent.

I accept the position adopted by the second respondent, that, annexure '2' was overridden by the subsequent promulgation of constitutional amendment number 17/05 which culminated in the introduction of, inter alia, section 16B(2)(a)(i) of the Constitution which conferred the ownership of the farm in question firmly in the hands of the first respondent.

I will therefore proceed on the basis that Dodhill Farm was indeed allocated to the second respondent.

The plaintiff issued summons against the first, second, third and fourth defendants claiming the following relief:

1. An order that the fourth defendant takes all the necessary steps to pass possession of Stand Number 9314, Budiriro Township, Harare, within 48 hours of the order of court.

2. An order that if the fourth defendant fails, within 48 hours of the court's order, to take the necessary steps, the Deputy Sheriff be authorized to take such steps on the fourth defendant's behalf.

3. The first, second and third defendant's pay the costs of suit on the legal practitioner and client scale jointly and severally, the one paying the others to be absolved.

The background to this action is as follows.

Miriam Munemo and Faina Munemo were both married to Thomas Munemo. He held a lease-to-buy agreement with the City of Harare over Stand 9314 Budiriro Township, Harare. They assumed his rights, title and interest over the said Stand upon his death. In September 2002, the two wives “sold” their rights, title and interest in the Stand to the third defendant through the agency of one Davison Shonhiwa of Southern Life Executors. A month later, in October, they “sold” their rights, title and interest to the plaintiff.

All formalities were observed regarding obtaining the consent of the fourth respondent and a Memorandum of Agreement of Assignment was executed. Prior to the signature of the Memorandum of Agreement of Assignment of rights, title and interest, it was brought to the fourth respondent's notice that there existed a prior agreement of assignment between the two wives and the third defendant. The assignment was not proceeded with. The plaintiff sued in HC10708/02. The two wives both died soon thereafter. This action was withdrawn pending the appointment of the executors to their estates.

It is common cause that in HC10708/02 the two wives had claimed that the earlier “sale” had been cancelled for breach (exhibit 3). It is also common cause that one Davison Shonhiwa had facilitated the “sale” to the third respondent but had not passed on the proceeds of the “sale” to the two wives.

After the appointment of the executors to the late two wives' estates, the third defendant counter-claimed seeking the same relief as that which the plaintiff is presently seeking on the basis that a prior sale takes precedence over a subsequent sale.

At the pre-trial conference the parties agreed that the issues for determination were;

(a) Which agreement, between the two, should be upheld;

(b) Whether the third defendant's agreement with the two wives was cancelled for breach;

(c) Whether the plaintiff is a bona fide purchaser; and

(d) What an appropriate order should be.

At the trial, the plaintiff was able to show that indeed he had entered into an “agreement of sale” with the two wives. Pursuant to that agreement, the parties had attended at the fourth defendant's sub-office in Budiriro and were referred to the Remembrance Drive offices where the final documents formalising the cession of rights, title and interests in favour of the plaintiff would be concluded.

It was admitted, by the third defendant, that the purchase price paid to Davison Shonhiwa was not passed on to the two wives. The plaintiff's witness confirmed that the only “sale” which the last dying wife, Faina Munemo, acknowledged to him, as executor of her estate, was that of the subsequent sale to the plaintiff.

The witnesses for the plaintiff were both credible and honest.

The plaintiff even admitted that he could not recall the exact amount of money he had paid over to his legal practitioners as the purchase price. Had he rehearsed his evidence he could simply have given the figure.

In my assessment of the evidence, although the third defendant may have signed an “agreement of sale” with the two wives at the behest of a shadowy figure called Davison Shonhiwa, the difficulty her case faces is that Davison Shonhiwa was an incredibly unreliable character even in court. He claimed he acted as agent of both the sellers and the buyer in the transaction. He could not produce any proof that he had been lawfully appointed to deal with the estate of the late Thomas Munemo and the estate of the late Miriam and Faina Munemo in the manner he did. He failed to explain why, for example, his firm of executors demanded payment from Miriam Munemo if they held any funds in the form of proceeds of sale from the third defendant in 2002.

The evidence shows that on 22 and 23 October 2002 Miriam Munemo paid a total of $125,375= to Southern Life Executor Services. To my mind this put Davison Shonhiwa's credibility into serious doubt and cast him as a shameless liar. Even the document his firm admittedly drew regarding the sale, there is nothing to suggest that his firm was behind it.

Why was he hiding his firm's role? Whose agent was he?

The sellers dispute that he acted for them and claim that he coerced them into signing exhibit 6 against their will. From the manner he conducted himself in this case, I cannot put it beyond him.

Counsel for both the plaintiff and the third defendant argued this case as if it involved an agreement of sale of immovable property. That approach is misplaced because it in effect ignores the fact that what is being claimed is not the transfer of right, title and interest by the plaintiff from the first, second and fourth defendants but a cession of the rights enshrined in the “lease-to-buy” agreement between the fourth defendant, who is the owner of the land, and the “sellers” who signed off their rights to two different parties.

Where a seller fraudulently sells immovable property to two purchasers the court has to decide between two innocent buyers. Where transfer has not been passed to either party the basic rule, in cases of double sales, is that the first purchaser should succeed, in the absence of special circumstances. The first purchaser is treated as having the stronger claim and the second purchaser is left with a claim for damages against the seller. Guga Moyo & Ors 2000 (2) ZLR 458 (SC).

But that rule applies only "in the absence of special circumstances affecting the balance of equities". See McKERRON (1935) 4 SA Law Times 178; BURCHELL (1974) 91 SALJ 40.

BURCHELL was of the view that "the balance of equities must weigh heavily in favour of the second purchaser" before the court could favour her over the first purchaser….,.

In BP Southern Africa (Pty) Ltd v Desden Properties (Pvt) Ltd 1964 RLR 7 (G), MACDONALD J…, said:

"In my view, the policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim for damages for breach of contract. I do not suggest that this should be the invariable rule, but I agree with the view expressed by Professor McKerron that save in 'special circumstances' the first purchaser is to be preferred."

The broad principle, as set out above, was acknowledged to be our law in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) although that case turned on the fact that the second purchaser had knowledge of the first purchase. See also Lindsay v Mathews & Anor 1972 (1) SA RLR 186 (G)…,.

In Jangara v Nyakuyamba & Ors 1998 (2) ZLR 475, the head note of which reads:

“The cession of the rights in breach of the non-cession clause creates rights between the lessee-purchaser and the third party, but it cannot bind the lessor-seller. This agreement is not illegal and invalid, but is only unenforceable against the lessor-seller. At the instance of the third party, the court may enforce the contract as against the lessee-purchaser but it cannot make an order, such as an order of transfer, that can bind the lessor-seller. The court has the discretion to order the lessee-purchaser to make transfer if he is in a position to do so or to take transfer of the property in order to give transfer to the third party. Where the lessor-seller is joined in the action and does not oppose the transfer, the court can exercise a discretion to order specific performance of a contract which, had the lessor-seller objected to transfer, would only have been enforceable by way of damages.”

That case is authority for the proposition that the court may confine the third party lessee-buyer to a claim for damages even if his claim may have been earlier in time, depending in the circumstances of the particular case.

In the present case, I consider the fact that the lessor-seller had virtually approved of the cession to be of overriding importance. This is a special circumstance because the lessee-buyer had signed the relevant documentation together with the City of Harare virtually assigning their rights, title and interest to third party thereby placing that third party in a position to enforce the right to claim transfer upon fulfilment of whatever obligations are set out in the lease-to-buy agreement. Payment of the full purchase price to the lessee-buyer by third party puts his claim on a stronger footing compared to the other party whose payment is held by the executor.

The third defendant has a claim in damages against her agent, the said Davison Shonhiwa.

Her “agreement” cannot be held to have earned the approval of the fourth defendant who had already considered and approved the plaintiff's Agreement of Sale (exhibit 1), Memorandum of Agreement of Assignment dated 30 October 2002 (p14 of bundle of documents) and the parties “Application For Cession” (exhibit(s) 2) taken together.

I am satisfied that the plaintiff has succeeded in making a case for the order he claims.

As for costs, normally costs follow the event but this is an unusual situation where, from the evidence, it appears that the third defendant was a victim of unscrupulous executors. I will not grant the order prayed for but on party and party scale.

In the result therefore, I make the following order:

1. The fourth defendant be and is hereby ordered to finalise the process initiated on 22 October 2002 by taking all the necessary steps to pass cession of all rights, title and interest in favour of the plaintiff within fourteen days of the date of this order.

2. In the event that the fourth defendant fails or neglects to comply with paragraph (1) above, then in that event, the Deputy Sheriff be and is hereby authorised to take such steps on the fourth defendant's behalf.

3. The third defendant's counter-claim be and is hereby dismissed with costs.

4. The first, second and third defendants to pay the plaintiff's costs.

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.

The plaintiff asserted that he entered into the agreement with the first and second defendants on the other hand through the agency of PMA Real Estate Agency (Pvt) Ltd.

The first defendant denied that he ever entered into an agreement of sale with the plaintiff. He denied authorising PMA Real Estate Agency to sell his rights and interests in House No.5706 Muroro Crescent Glen Norah B, Harare.

The first defendant, Zondai Chimbwanda, and the second defendant, Givemore Karimazondo, are joint holders of certain personal rights and interests in the property known as No.5706 Muroro Crescent, Glen Norah B, Harare in equal shares. As holders of equal shares in the said property they agreed between themselves to dispose of their rights and interests in the property. Pursuant to this understanding, the second defendant approached PMA Real Estate and granted them a mandate to sell the said rights and interests.

At the material time, the first respondent was out of the country in Botswana.

In completing the mandate to sell form, the second defendant endorsed both the first and second defendants names as holders of rights and interests in the property.

That form was however signed by the second defendant only.

PMA Real Estate Agency proceeded to advertise the property and the plaintiff expressed interest. On 16 August 2005, the plaintiff executed an irrevocable offer and acceptance form in which he offered a purchase price of $220 million. On 17 August 2005, the second defendant appended his signature to that form in acceptance of the offer as seller.

Thereafter, on 18 August 2005, an agreement of sale was drawn up by PMA Real Estate Agency. The agreement of sale was executed by the plaintiff and the second defendant.

The plaintiff paid a deposit of $214 million to PMA Real Estate and the balance was to be paid in instalments.

The purchase price was subsequently revised upwards to Z$260 million.

The plaintiff paid the balance of the purchase price to PMA Real Estate Agency. The agreement of sale was amended to reflect the new purchase price of Z$260 million (see exb. 5).

It is common cause that when the parties entered into the agreement of sale they knew that the agreement was conditional on the first defendant ratifying the agreement upon his return from Botswana.

The first and second defendants subsequently sold the same rights and interests in the property in question to the third defendant, in September 2005, for the price of Z$350 million.

The third defendant duly paid the purchase price and has since taken occupation of the property.

His effort at obtaining cession was stalled when PMA Real Estate Agency advised the fourth respondent that the same property had been sold to the plaintiff and so no cession should be effected.

The plaintiff therefore brought this suit against the first and second defendants seeking:-

(1) Cession of Stand No.5706 Muroro Crescent, Glen Norah B, Harare into his name, alternatively;

(2) The sum of Z$15 billion being the cost of a house similar to Stand 5706, as at the date of the summons, being 14 November 2007.

The first defendant denied that he had ever agreed to the purchase price purportedly paid to PMA Real Estate by the plaintiff and he also contended that he never ratified the agreement of sale.

The second defendant, in his plea, conceded that he had entered into that agreement conditional on the first defendant ratifying it.

The issues for determination were essentially three, namely:-

(1) Whether there was a binding agreement of sale between the plaintiff and first and second defendants or not;

(2) If the answer to the above is in the affirmative, whether the third defendant was himself an innocent third party purchaser.

(3) If so, who between the two purchasers has dominant rights over the property in dispute.

It is pertinent to note that a conditional sale can only be valid/binding where the condition precedent has been fulfilled.

It is the fulfilment of the condition that gives life to such an agreement.

In casu, the plaintiff and PMA Real Estate were made aware that whatever they were entering into with the second defendant was conditional upon the second defendant ratifying such agreement.

In this regard, it may be noted that ratification is the act of adopting a contract or other transaction by a person who was not bound by it originally: see Osborne's Concise Law Dictionary, 6th Edition, by J. BURKE.

The prerequisite of ratification may be stated as follows:-

“1. The contract must be professedly made on behalf of the principal.

2. There must be a competent principal at the time of the contract.

3. The contract must not be void.

See CHESHIRE, FIFOOT and FURMSTAN's Law of Contract, 11th Edition…,.

Ratification may be express or tacit. Ratification may be implied from an act or conduct showing an interest to adopt the contract.

In casu, the plaintiff alleged that the first defendant ratified the agreement of sale that had been entered on his behalf as joint-holder of rights and interest by the second defendant.

In support of his case, the plaintiff gave evidence and called two witnesses from PMA Real Estate Agency, namely, Simon Mukondo and Jerry Ndemera.

The first defendant gave evidence. The second defendant did not avail himself for trial though he had participated in the proceedings up to the pre-trial conference stage.

In his evidence, the plaintiff alluded to the fact that he himself never came into contact with the first defendant. His assertion that the first defendant ratified the agreement of sale was based on reports he received from PMA Real Estate Agency. He thus could not vouch for certainty that the first defendant, either by word of mouth or in writing, ratified the agreement.

All the documentary exhibits he tendered in support of his case did not have the first defendant's signature.

The conduct that he could only refer to was again based on reports he received from PMA Real Estate that the first defendant had given his consent to the agreement of sale subject to an upward increase in the purchase price.

He had no direct evidence of the first defendant ratifying the Agreement of Sale.

Mr Simon Mukondo gave evidence next. He is a co-shareholder in PMA Real Estate Agency. He is also the Principal Registered Agent of PMA Real Estate Agency.

His evidence was to the effect that PMA Real Estate Agency was given mandate to sell by the second defendant. The second defendant had made it clear the rights and interests were jointly held. That mandate to sell was signed by the second defendant as seller. The co-holder of rights and interests, the first defendant, did not sign the mandate to sell and did not, in his own right, give such mandate.

The second defendant did not provide a power of attorney, or some other written authority, from the first defendant, for him to dispose the first defendant's rights and interests in the property in question.

Despite this omission, PMA Real Estate Agency proceeded to advertise and sell the rights and interests as instructed by the second defendant. This, PMA Real Estate did on the second defendant's word that he had such mandate and that the first defendant would ratify the agreement of sale upon his return from Botswana.

The agreement of sale was executed on 18 August 2005.

It was Mr Mukondo's evidence that on the next day after execution, Mr Jerry Ndemera and the second defendant approached him in his office. They advised him that the two of them had been in touch with the first defendant on the phone who was still in Botswana. They advised that the first defendant had dictated terms for them to re-do the agreement. They had the dictated terms on a piece of paper. That piece of paper was tendered into evidence as part of the plaintiff's bundle of documents. The document in question is on page 7 of the said bundle. The terms on the document were that:

1. That the selling price should be increased to Z$260 million;

2. That the payment would be strictly cash of Z$220 million and balance of Z$40 million would be paid in two instalments in the months of September and October; and

3. That the seller who was present tenant would vacate when schools calendar for 3rd term 2005 ended;

4. The last point was that once the last payment was done, in October, the seller would become a tenant paying rent.

As at that stage, when these terms were brought to his attention, Mr Mukondo had not seen or spoken to the first defendant.

Mr Mukondo said that he saw the first defendant for the first time when the first defendant came with the second defendant in the company of a woman he thought/believed was the first defendant's wife.

When this trio came, the first defendant demanded to be paid the purchase price. They refused to release the money to him contending that they could not do so before cession. The first defendant had then offered that cession be done that same day but this was not done. The first defendant had then said that if he was not paid on that day then the purchase price would go up.

The first defendant was not made to sign the Agreement of Sale or any other document relating to the Agreement of Sale of his rights and interests in the property in question.

The next witness was Mr Jerry Ndemera. At the material time he was employed by PMA Real Estate Agency as Sales Manager.

In his evidence, Mr Ndemera confirmed that PMA Real Estate Agency dealt with the second defendant upon the second defendant's word that he had the mandate to sell from the co-holder of rights and interests in the property.

There was no request or insistence on the second defendant furnishing the requisite power of attorney or and other written authority from the first defendant.

PMA Real Estate Agency were spurred to act simply on the second defendant's assurance.

It was not till after the Agreement of Sale had been concluded that he saw the first defendant.

On his first meeting with the first defendant, the first defendant did not agree with what had been entered into. According to Mr Ndemera, the first defendant came to see him on the day page 7 of the plaintiff's bundle of documents was written.

Mr Ndemera contradicted Mr Mukondo's evidence on how this document came to be.

His evidence was to the effect that this document was written by the first defendant on the day the first defendant came to their offices. He is the one who in fact provided the first defendant with the piece of paper to write on when the first defendant indicated there were some terms to be changed.

The contradiction was in that Mr Mukondo had said Mr Ndemera had indicated to him that the first defendant had dictated those terms on the phone from Botswana and not that the first defendant had come to their offices.

Despite Mr Ndemera's contention that this document was written by the first defendant, he was unable to explain why the first defendant did not append his signature thereto. Instead, the signature thereon is that of Mr Ndemera, just as he had signed for the second seller in exhibit. 1, the Agreement of Sale.

If indeed the first defendant had, on this occasion, ratified the Agreement of Sale, albeit with an increased purchase price and additional terms, he would at least have signed on this document to signify his approval of the transaction, if those terms were accepted by the plaintiff.

It was Mr Ndemera's evidence that the first defendant must have come to their offices on 2 or 3 times. Somehow, he was not made to sign the Agreement of Sale which the plaintiff says he had ratified.

It may also be noted that both Mr Mukondo and Mr Ndemera indicated that when the first defendant came to PMA Real Estate offices he demanded payment. When asked to sign the Agreement of Sale, the first defendant said he wanted to be paid before he could sign.

This, in my view, is inconsistent with a party who had ratified the agreement and had assumed his obligations as contained in the Agreement of Sale.

Further, both Mr Mukondo and Mr Ndemera admitted, that, when the first defendant came in the company of his wife, this was after a PMA Real Estate employee had been to the first defendant's residence with an armed police officer. At that residence, they had forced the first defendant's mother to append her signature to a document tendered in as exhibit. 8.

That document invited the first and second defendants to come and activate the process of transfer.

The visit by the first defendant and his wife was therefore to complain about that visit by a PMA Real Estate employee and the armed police officer. This is the visit Mr Mukondo apparently recalled.

It is clear to me, that, though the first defendant visited PMA Real Estate Agency offices he never signed the Agreement of Sale or any document showing that he consented to the sale of his rights and interests in the property in question.

He never ratified the Agreement of Sale in writing.

The tacit ratification that Mr Mukondo and Mr Ndemera alluded to needed to be proved.

The conflict in the evidence of Mr Mukondo and Mr Ndemera, as key witnesses to the issue of ratification, on such aspects as who authored the document on page 7 of the plaintiff's bundle of documents, the number of visits made by the first defendant to PMA Real Agency, and the fact of a PMA Real Estate Agency employee visiting the first defendant's residence in the company of an armed police officer to force matters, creates doubt on the credibility of their testimony.

They did not impress me as reliable witnesses.

They may have had cause to believe the second defendant when he told them that he had the first defendant's mandate to sell and that the first defendant would ratify the Agreement of Sale, but, that was not adequate. They ought to have obtained consent or mandate from the first defendant himself to proceed with the sale.

They could easily have demanded that the second defendant furnishes them with a Power of Attorney for them to action the second defendant's mandate to sell.

Equally, when the first defendant availed himself at their offices, they ought to have clarified the issue by ensuring that he ratified the agreement in an unequivocal manner. To seek to rely on tacit ratification or consent to the agreement was always going to be difficult.

The onus is on the plaintiff to prove, on a balance of probabilities, that the first defendant ratified the Agreement of Sale for it to be binding on him.

A careful analysis of the evidence adduced in court on this issue does not show that the plaintiff discharged such onus.

The evidence showed that when the second defendant entered into the Agreement of Sale he made it clear that he was also doing so for and on behalf of his co-holder of rights and title and that the co-holder would have to come and ratify the agreement. The first defendant was a competent co-holder to ratify the agreement had he wanted to. The Agreement of Sale was not void. It was capable of ratification.

The failure is on the fact that the plaintiff has not proved, on a balance of probabilities, that the first defendant adopted the agreement of sale.

As the Agreement of Sale was conditional upon the first defendant's ratification, it follows that there was no valid agreement of sale to bind the first defendant.

In the circumstances, the first defendant was free to enter into a sale agreement with anyone that the joint holders of rights and interests in the property preferred.

In this case, they sold their rights and interests to the third defendant. There was no legal impediment to such a transaction.

The plaintiff's remedy, if at all he felt hard done, is against those who led him to part with his money when the agreement had not been ratified.

Accordingly, the plaintiff's claim is hereby dismissed with costs.

This is a classic case of multiple sale of immovable property, being Stand Number 2689, Cowdray Park, Bulawayo.

The second respondent sold this property to the first respondent on 11 April 2002 in terms of a written Agreement of Sale. When the second respondent exhibited some reluctance to honour the said Agreement, the first respondent approached this court and obtained an order on 7 August 2003 under HC 1783/02, against the second respondent, for the said property to be transferred into his name.

The order was granted by this court before the present applicant entered into an Agreement of Sale with the second respondent, forming the subject matter of these proceedings.

The second respondent also sold the same property to one Nqobizitha Nzima.

There has been mention in the papers filed of record of other multiple buyers of the same property, and of one buyer in particular, who is said to be in the process of claiming the property as well.

This is a double sale of House Number 2105 Nkulumane Township, Bulawayo.

The applicant claims to have bought the house from one Jotham Magudu, who later passed away, and the second respondent was appointed executor dative of the estate of Jotham Magudu.

The house was bought through an estate agent known as Likwa Ndlovu.

He bought the property for $6,000,000= which he allegedly paid to the estate agent in October 2003. However, Likwa Ndlovu does not seem to have paid the full purchase price to the second respondent. The applicant and the second respondent discussed the issue of the purchase price over the phone, and was made aware that the full purchase price had been paid to Likwa Ndlovu.

The second respondent does not deny the fact that they discussed the matter with the applicant.

The applicant took vacant possession of the property on 30 September 2004 through a Magistrates Court order arranged by the second respondent and Likwa Ndlovu, estate agent, through Messrs. Ben Baron and Partners.

The applicant has been in occupation of the property ever since until the first respondent approached him on 21 February 2006 with a writ of ejectment issued on 13 February 2006 by the Small Claims Court.

The second respondent had sold the property to the first respondent when he knew that it had been bought by the applicant who had paid the full purchase price way back.

The second respondent seems to have changed his mind, and was then denying that the property was ever sold to the applicant. He challenged the applicant to produce the Agreement of Sale, and proof of payment, for the property. He denied that Likwa Ndlovu, estate agent, was his agent.

This is simply not true.

There is uncontroverted evidence that the applicant, and himself, discussed the issue of payment for the house over the phone. The affidavit by Nathan Mashayamombe, the legal practitioner who used to represent Likwa Ndlovu, estate agent, confirmed that the second respondent engaged the estate agent to sell the property to the applicant. He confirmed to the legal practitioner that he had not yet recovered the full purchase price from Likwa Ndlovu. That the second respondent engaged Likwa Ndlovu, estate agent, is also confirmed in the first and final liquidation and distribution account in the estate of the late Jotham Magudu.

The plaintiff denied suggestions made in cross-examination that he bought the property in the full knowledge that it had been bought by the first and second defendants.

He stressed that he was only told that the people occupying the property were tenants.

Tendai Musemburi told the court that he knew, for the first time, that the plaintiff had bought the same property, on 18 April 1989, when the plaintiff came to the property in the company of about six of his friends, and advised that he had bought the property. He wanted them out of the property.

He said they did not know the plaintiff before.

Tendai Musemburi also told the court that he knew that the property was registered in the name of the plaintiff but believes that he was not a bona fide purchaser because he did not view the house when he bought it, and was aware that they had bought the property first.

The law governing double sales is well-established.

It was set out by PROFESSOR McKERRON in (1933) 4 SA Law Times 178, and repeated with approval by PROFESSOR BURCHELL in (1974) 91 SALJ -

“It is submitted that where A sells a piece of land to B and then to C, and the position is the same mutatis mutandis in the case of a sale of a movable property, of which would decree specific performance, the rights of the parties are as follows:

1. ...,.

2. Where transfer has been passed to C, C acquires an indefeasible right if he had no knowledge, either at the time of the sale, or at the time he took transfer, of the prior sale to B, and B's only remedy is an action for damages against A. If, however, C had knowledge, at either of the said dates, B, in the absence of special circumstances affecting the balance of equities, can recover the land from him, and, in that event, C's only remedy is an action for damages against A.”

The question then is whether the plaintiff had knowledge at the time of the sale, or at the time he got transfer, that the property had been bought by the first and second defendants.

The plaintiff told the court that when he bought the property in 1988 the sale to the first and second defendants had been cancelled, and was shown a letter of such cancellation by the third defendant. He said he referred to the first and second defendants as tenants whom he was evicting for not paying rent.

It seems to me that whether he was gullible or not in believing the third defendant as he did, the plaintiff's belief was bona fide and reasonable. I am of the view that it is most improbable that the plaintiff would have bought a property which was riddled with problems if he had known the full facts. I see no reason why he would tie down his money to such a deal. I accept his evidence that he genuinely believed that the first and second defendants, as tenants, would be evicted. This is supported by the action he took soon after purchasing the property to evict the first, second, and third defendants from the property.

In or about January 2006, the applicant and the first respondent entered into an Agreement of Sale in respect of certain immovable property called Stand Number 584 Greystone Park Township of Greystone.

In terms of the written agreement, the purchase price for the property was the sum of $400,000,000= and this was to be paid in full within 5 days of the signing of the agreement. The payments clause in the Agreement of Sale provided that the purchase price was payable in full upon the signing of the agreement but a special condition of the agreement provided that the payment be made within five working days of the signing of the agreement failing which the agreement would be considered null and void.

It is common cause that the applicant did not pay the full purchase price within the stipulated period or at any time thereafter. The parties appear to have agreed, immediately after executing the agreement, that the purchase price of the property be converted to the sum of US$120,000= and that payment be made into a Channel Islands bank account whose details were furnished to the applicant by the first respondent.

This variation to the written agreement was not itself reduced to writing.

In pursuance of the new agreement, the applicant paid the sum of US$30,000= to the applicant by making a deposit into the nominated account. He also paid the estates agents' commission in local currency in the sum of $30,000,000= directly to the estate agents who had arranged the sale.

In due course, the first respondent pressed for payment of the balance of the purchase price in foreign currency as the applicant was taking too long to remit same. The applicant tendered local currency which was spurned by the first respondent. On 22 February 2007, the estate agency, acting on behalf of the first respondent, wrote to the applicant canceling the Agreement of Sale.

In the letter, the agency alleged that the applicant was in breach of the written agreement of sale in that he had failed to pay the full purchase price within five working days of the execution of the agreement of sale.

The applicant denied that he was in breach of the agreement but did not thereafter take any steps to enforce the agreement of sale against the first respondent.

In due course, the property was sold, jointly, to the Late Samuel Mushaninga and the Late Salome Kudzai Chisvo. Before transfer could be effected in favour of the second purchasers, the applicant obtained an order restraining the first respondent from doing so. In the meantime, the second purchasers took occupation of the property.

On 10 July 2009, the applicant filed this application, seeking an order compelling the first respondent to pass transfer of the property to him against payment of the sum of Z$370,000,000= and also evicting the first respondent and all those occupying through him from the property.

It may be pertinent, at this stage, to note that the applicant brought a similar application in 2007 which he withdrew in June 2009 with a tender of costs.

The first respondent was served with the application through service upon one Violet Tanda at the disputed property. It is not indicated on the certificate of service who Violet Tanda is and in what capacity she accepted service of the court application on behalf of the first respondent as it is common cause that the first respondent left the country immediately after selling the property to the applicant and that the families of the late Samuel Mushaninga and the late Salome Kudzai Chisvo are the ones in occupation of the property.

Not surprisingly, the first respondent did not oppose the application.

I have considered, but have not decided, on the issue whether the purported service on the first respondent in this matter is proper. In view of the conclusion that I reach in this matter, it is not necessary that I determine the issue. I simply raise it to highlight that in another forum the issue will have to be determined before an order can be made against the first respondent.

The second and third respondents did oppose the application.

Of material importance in the opposing affidavits filed by the second and third respondents is a narration of how the Late Mushaninga and the Late Chisvo purchased the property from the first respondent and paid the full purchase price. The respondents also sought to argue that the applicant was in breach of the contract between himself and the first respondent, prompting the applicant to challenge their locus standi to make such allegations.

The situation presented by the facts of this mater depicts to me the classical double sale situation.

The first respondent first sold the property in dispute to the applicant, and, thereafter, to the late Mushaninga and the late Chisvo who purchased the property jointly. The first purchaser now approaches court for an order of specific performance ahead of the second purchasers.

As stated above, at the hearing of the matter, the applicant took the point in limine that the second and third respondents had no locus standi in the matter to challenge the validity of the contract between the applicant and the first respondent.

In this regard, the use of the term “locus standi” was, in my view, misplaced.

Locus relates to the standing of the party before the court. It does not relate to the weight that should attach to the evidence of a party that was not close to the transaction and who has no personal knowledge of such. The issue of locus standi does not arise in this matter as the second and third respondents have each an interest to protect in the property in dispute. In any event, the applicant cited the second and third respondents in this application and it cannot lie in his mouth to deny them locus standi after he has dragged them to court.

It appears to me that what the applicant intended to do was to urge the court not to attach any weight to the averments of the respondents regarding the alleged breach of the sale agreement by the applicant as they were not close to the transaction. As will emerge from this judgment, the breach of the agreement by the applicant is, in my view, self confessed.

The law relating to double sales is well settled.

The principles which apply where a person sells a property to two or more persons, separately, were set out by this court in Crundall Brothers (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 125 (S)…,.

Relying on the Article by Professor E.M. Burchell titled “Successive Sales” and published in the South African Law Journal in 1974, this court adopted the approach set out by the late Professor McKerron in his article, “Purchaser with Notice”, published in 1935 in the South African Law Times. The conclusions reached at by Professor Mackeron appeared in his article as follows:

“It is submitted that where A sells a piece of land to B and then to C…, the rights of the parties are as follows:

(1) Where transfer has been passed to B; B acquires an indefeasible right, and C's only remedy is an action for damages against A.

(2) Where transfer has been passed to C; C acquires an indefeasible right if he had no knowledge, either at the time of the sale or at the time he took transfer, of the prior sale to B, and B's only remedy is an action for damages against A. If, however, C had knowledge at either of those dates, B, in the absence of special circumstances affecting the balance of equities, can recover the land from him, and, in that event, C's only remedy is an action for damages against A.

(3) Where transfer has been passed to neither; B, in the absence of special circumstances affecting the balance of equities, can interdict A from passing transfer to C and obtain specific performance on the contract, and, in that event, C's only remedy is an action for damages against A.”

The facts of the matter before me fall into the third conclusion reached by the Late Professor R G McKerron. Transfer has passed to neither.

The issue that immediately falls to be determined is whether the applicant is entitled to specific performance on the written contract of sale as he prays for. If he is so entitled, his right to the property should prevail unless there are special circumstances in the matter that favour the second purchasers.

Specific performance is a discretionary remedy.

Generally speaking, any party to a binding contract, who is ready to carry out his own obligations, has a right to demand, from the other party, so far as this is possible, reciprocity. See Farmer's Coop Society (Reg) v Berry 1912 AD 343 and Haynes v Kingswilliamtown Municipality 1951 (2) SA 371 (A)…,.

It is trite that before a party can approach the court for specific performance he or she must set up a contract whose terms are clear and unequivocal and in terms of which the order is to be granted.

Trite as it may be, the issue arises before me as to what contract the applicant is setting up before me and upon whose terms I must grant specific performance as the applicant has deposed to two possible agreements between the parties. I find, however, that each is fraught with fatal difficulties.

It is convenient that I dispose of the second agreement first.

As stated above, after the parties had concluded the written Agreement of Sale, they verbally agreed that the purchase price be converted to the sum of US$120,000= and that payments be made into an offshore account whose details the first respondent furnished to the applicant. The applicant part performed under this verbal agreement and when he failed to pay the balance of the US$120,000=, the first respondent purportedly cancelled the Agreement of Sale.

I cannot grant specific performance of the second agreement of sale for two good reasons.

Firstly, and this should effectively close the matter, the applicant has not sought specific performance of this arrangement. He urges me to ignore it and for me to revert to the written agreement between the parties.

Secondly, even if I could find that this was the effective agreement between the parties, as I am inclined to, I would not have been able to grant specific performance on it as it was tainted with illegality. The parties, whilst resident in this country and without the prior approval of the foreign exchange authorities, had sought to trade in foreign currency for a property in Zimbabwe.

It appears to me that being aware of the illegality tainting the second arrangement, and, most probably, also wishing to avoid the onerous obligations imposed upon him by the arrangement, the applicant has urged me to enforce the written agreement between the parties wherein the purchase price was payable in local currency.

The applicant has not given me a reason why I should revert to the written agreement in view of the subsequent developments between the parties.

It is common cause that almost immediately after concluding the written Agreement of Sale, the parties entered into the verbal arrangement, the details of which I have already given. It is further common cause that the applicant did not pay the local purchase price of the property in local currency within the stipulated five days - or at all.

In my view, the fact that the second arrangement was entered into almost at the same time as the written agreement and was acted upon whilst the terms of the written agreement were not, strongly suggests that the parties did not intend to be bound by the written agreement at all. It was a sham. It was not contracted with the necessary animus. It was never meant to be binding between the parties but to clothe the transaction between the parties with some legality in the event that the transaction attracted the scrutiny of the authorities.

I am fortified in reaching this conclusion from the actions of the parties.

The first respondent never demanded payment of the purchase price in local currency. The applicant himself did not approach the court to enforce the contract by tendering the purchase price in local currency. It was as if the written contract was never written until the applicant failed to raise the balance of the foreign currency. Then, for convenience, the first respondent alleged breach of the written agreement.

Assuming that I have erred in holding that the written agreement was concluded without the necessary animus and is thus not binding between the parties, I still would have refused the applicant an order of specific performance on the same.

By his own confession, the applicant is in breach of the agreement. It was a specific term of the agreement that the purchase price in full be paid within five working days of the agreement. Failure to pay within the stipulated period would render the agreement of no force and effect. Thus, the failure by the applicant to make the stipulated payment on due date made the agreement lapse ipso facto. At the time he brought his application to court, the contract had long lapsed and could not be revived for enforcement.

Finally, and in any event, assuming that the contract had not automatically lapsed when the applicant failed to make the stipulated payment on due date, I would have withheld my discretion to grant specific performance in the circumstances of this matter.

In Zimbabwe Express Services (Private) Limited v Nuanetsi Ranch (Private) Limited SC21-09, the Supreme Court declined to order specific performance of a contract whose contract price had been determined in 2003 and had been eroded into nothing by inflation at the time specific performance was sought. In declining to order specific performance, the court was of the view that were it to grant specific performance, the appellant it that matter would take delivery of 280 heifers for a very small amount of money. In other words, the court reasoned, the appellant would take possession of a herd of cattle worth a considerable sum of money for which it would have paid virtually nothing.

In the matter before me, it is common cause that the applicant is seeking an order compelling the first respondent to transfer the immovable property to him against payment of the sum of Z$370 million. It is not in dispute that the local currency has now gone into disuse and is accordingly valueless currently. The order that the applicant seeks is for him to obtain transfer of a patently valuable asset against the payment of a valueless currency.

While this court upholds the principle of the sanctity of contracts, it will also not grant specific performance of a contract where to do so will result in an apparent injustice.

I do not see any features in the application before me that would distinguish the case from the case that was before the Supreme Court.

It is therefore my finding that even without the advent of the second purchasers, the applicant would not have succeeded in enforcing any of the two agreements of sale that he concluded with the first respondent in respect of the property in dispute.

In view of the conclusions I reach in this matter, it appears unnecessary to me that I embark on an exercise of determining whether there are any special circumstances in this matter that dis-entitle the applicant from obtaining an order transferring the property to him ahead of the second and third respondents. It is my finding that the applicant has not been able to establish that he is entitled to specific performance of the contract that he seeks to rely on.

In the result, I make the following order:

1. The application is dismissed.

2. The applicant is to bear the respondents' costs.

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 Monica Dzinamarira reads -

“3. The cessionary shall take possession of the said property thereon on the 13^th 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. 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 first 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.

The dispute in this case is essentially between the plaintiff and the first defendant who both claim to have purchased Stand Number 2110 Solani Epworth from the second defendant.

The plaintiff claims to have bought the property on 12 March 2000 but did not take cession of the purchased property. The second defendant, however, later purchased the same property from the first defendant and took cession on 21 of March 2003. The cession was duly registered by the third defendant in its capacity as the Local Board and owner of the property in dispute. On 27 June 2006 the plaintiff issued summons against the defendants claiming nullification of the Sale Agreement between first and second defendants.

Another dimension was the contention by the plaintiff's counsel that this was a case of a double sale. In the event of a double sale then the first sale ought to be preferred.

Counsel for the third defendant argued that the plaintiff can still not succeed as the first sale has not been proved - even from the plaintiff's evidence. Be that as it may the court can still use its discretion in favour of the third defendant. Firstly, the third defendant was not aware of the prior sale; secondly, for close to two years after he took occupation the plaintiff never raised any claim against him or the Seller. Thirdly, the third defendant has been in occupation of the property since 1 October 1989 - a period in excess of twenty (20) years.

I am of the view that because of the various reasons outlined above the plaintiff's case cannot succeed. As for the third defendant, I accept that he has made out a case for the relief he is seeking.

Accordingly, the plaintiff's case is hereby dismissed. The third defendant is hereby granted the following order-

1. The interdict placed by this court on 2 September 1992, by judgment number HH170-92, in case number. HC1375/91 be and is hereby set aside.

2. The right, title and interests in Stand 13451 Unit N, Seke be registered in the name of Hezekia Muzopa, the applicant in case number HC1107/07.

3. The Deputy Sheriff, Chitungwiza be and is hereby authorized and required, in the place and stead of the late Jackson Jekera, to sign all documents and perform all deeds necessary to effect cession of the right, title and interest in Stand 13451 Unit N, Seke to Hezekia Muzopa.

The law regarding double sales is well settled in our jurisdiction.

In Choruma Blasting & Earth Mowing Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (S) it was held that when dealing with the sale of the same property to two buyers, a factor that the court takes into account when deciding upon the remedy is whether the second buyer was aware of the earlier sale of the same property. In Grundall Bros (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 123 (SC)..., it was stated:

“The two extreme cases are clear enough when the second purchaser is entirely ignorant of the claims of the first purchaser, and takes transfer in good faith and for value; his real right cannot be disturbed, contra, when the second purchaser knowingly, and with intent to defraud the first purchaser, takes transfer; his real right can, and normally will, be overturned subject to considerations of practicality.”

The same point was made in Ridler v Gortner 1920 TPD 249...., where WESSELS J had this to say-

“There must be an element of deceit, an element of chicanery, in the transaction before the court will set it aside on the ground of knowledge. It must be perfectly clear to the court that the person who alleges that he bought a clean transfer know perfectly well and did not expect that he would get a clean transfer except by his fraud. Any other view of the law would be extremely dangerous and would dig away the very foundations upon which our whole system of registration is based.”

Turning to the facts in this matter, Marko avers that Tawanda must have been aware of his Agreement of Sale when he entered into an Agreement of Sale with Bernwin. In paragraph 11 of the founding affidavit to the urgent chamber application his agent, who is Richard, states-

“Sometime in November 2003, I started receiving visits from people who claim to have bought the same Stand. I caused my lawyers to write a letter as 'D', which I asked the gardener looking after the place to show to whom it may concern.”...,.

From the respondents' own facts, it appears when they instructed their lawyers to write the “to whom it may concern letter,” the property had already been sold. Even assuming it had not been sold, the respondents have not established that the letter was brought to Tawanda's knowledge. They did not attach an affidavit from the gardener as to what he did with the note.

It is my view that Marko has not established a basis for me to make a finding that Tawanda purchased the property well knowing that he will not get a clean transfer and with intent to defraud Marko.

The balance of convenience, in my view, favours Tawanda. He is a holder of real rights and for value as compared to Marko's personal rights. Marko has not advised the court as to what action he took when he received the re-imbursement for the amount he had paid as purchase price. From his silence on that point, one can safely assume that he did not return the cheque to Berwin. If that is so, then he did not pay any value for the property.

In view of the above, the respondents have not established a basis to disturb the applicant's real rights. In the result, I will make the following order:

1. The Provisional Order is hereby confirmed.

2. It is declared that the applicant is the lawfully registered owner of Stand No.2849 Chacombe of Stand No.134 Chadcombe Township 2.

Consequently, it is ordered that:

1. The first respondent, second respondent, and all those claiming rights to Stand No.2849 Chadcombe of Stand No.134 Chadcombe Township 2 through them are hereby ordered to vacate the property within 7 days of service of this order. Failing which the Deputy Sheriff be and is hereby directed to evict them.

2. First and second respondents to pay costs of suit.

Despite the stipulation in the Agreement that the balance of $130,000,000= would only be paid to the Sellers on transfer, the Sellers, on two occasions, requested for part payment of the balance. On 23 January 2006 they asked for $20,000,000= and two days later, on 25 January 2006, they asked for $10,000,000=. They were advanced with those sums of money. In each of their letters for the requests they asked the applicant to bear with them and promised that the estate would be wound shortly and thereafter they would effect the transfer into the applicant's name.

The Sellers continued with the assurances and attributed the delay to the Master of the High Court's office which had allegedly not given the necessary authority. They urged the applicant be patient with them while they were sorting out the matter.

It, however, turned out later that the Sellers were not genuine at all but were, instead, outright dishonest.  A check at the Housing Office on 20 June 2008 revealed that the right, title and interest in the house were transferred from the second respondent's deceased wife's name to his name on 25 March 2008 and, subsequently, into the names of the third and fourth respondent's names on 16 June 2008. They never, at any stage, intimated to the applicant that they were considering cancelling the agreement; and yet, they purported to sell the same property to the third and fourth respondents into whose names the rights, title and interest were registered on 16 June 2008. The City of Bulawayo effected the transfer notwithstanding the contents of the letter of 24 October 2005 from the applicant's lawyers quoted supra…,.

The third and fourth respondents averred that they were innocent buyers.

They contended that the applicant, who was the first purchaser, should have sought an interdict to protect the property from being sold and transferred to innocent third parties.

That contention is untenable in the light of the repeated assurances by the Sellers that transfer into his name would be effected as soon as the paperwork had been sorted out by the Master of the High Court's office. At no stage did the Sellers evince any intentions to sell the property to other parties. Moreover, the applicant had addressed letters to the local authority and the Master of the High Court's office declaring his rights, title and interest in the property. The need for an interdict did not arise in the circumstances. In the result, I find that the applicant did enough to protect his rights, interest and title in the property.

Were the third and fourth respondents innocent purchasers?

They submitted that they were and went on to state that they made a diligent enquiry and were satisfied that the property was free from any competent claims. The applicant contended that they either may not have carried out a diligent search at all or did so and found that there was the applicant's competing claim but because they held a view that since there was no caveat placed against the property and there was no prohibition in the form of an interdict to the disposal of the property, they could go into the agreement of the sale they decided to take a chance. That assertion was based on the fact that both the local authority and the Master of the High Court's office have copies of the Agreement of the first sale in their respective files relating to this matter. The files also contain the letters written on 24 October 2005 quoted supra…,.  It would be a strange coincidence that both offices would fail to see those documents in their respective files. There is merit in the above contention.

This court therefore makes a finding that the third and fourth respondents either did not make any diligent search, or, if they did, they found out the correct position but decided to take a chance.

Even if they had been innocent purchasers, ownership of the property was still vested with the local authority. What was transferred to the second purchasers were rights, interests and title in the property. The law in a situation like this is, as stated by McNALLY JA in Guga v Moyo and Others 200 (2) ZLR 458 (S)…, thus:-

“The basic rule in a double sale, where transfer has not been passed to either party, is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages against the seller which is usually small comfort. But that rule applies only 'in the absence of special circumstances affecting the balance of equities.' It has been stated that the balance of equities must weigh heavily in favour of the second purchaser before the court could favour her over the first purchaser.”

In casu, no special circumstances affecting the balance of equities exist. The law consequently favours the first purchaser.

The next issue to be determined is that of the double sale since the same property was later sold to Getrude Siwela, the 4^th respondent.

The law relating to double sales was long settled and is repeated almost daily in this court. The property has not yet been transferred to any of the buyers. In a situation like that the first buyer, who is the first in time, is favoured by the law. The second buyer should look to the seller for damages. There are no special circumstances in this case why the law should favour Getrude Siwela.

The basis for claiming the order was that he had allegedly purchased the said property much earlier than Mfanukhona Phiri, in 1998, and had already taken occupation of the property. That, ipso facto, made him an interested party. He further alleged he had instituted proceedings in this court in case number HC1552/08 seeking to have the sale between Mfanukhona Phiri and the Mpofus set aside.

A look at case number HC1552/08 reveals that after Timothy Sijiye had been evicted, in terms of an order granted by this court in case number HC907/08, he instituted proceedings in case number HC1552/08.  He sought, inter alia, to have Mfanukhona Phiri evicted from the said property so that he himself could regain occupation thereof. He also sought to interdict the transfer of the property from David Mpofu to Mfanukhona Phiri pending the finalization of that matter or case number HC3804/01, whichever of the two cases would be finalized first. In the final order he sought to have the sale of the property between Mfanukhona Phiri and the Mpofus set aside.

The application, which had been filed on a certificate of urgency, was filed on 30 July 2008. It was set down for a hearing in chambers on 20 August 2008. The application was dismissed with costs on the appointed date.

In case number HC3803/01 Timothy Sijiye issued summons on 19 December 2001 seeking an order compelling David Mpofu to sign all the documents necessary for the transfer of rights, title or interest in the said property from David Mpofu's name into Timothy Sijiye's name, failing doing so within seven days of the order, the Deputy Sheriff would be empowered and directed to do so.

In his declaration, Timothy Sijiye alleged that on 16 May 1998 he had entered into an Agreement of Sale of the property with David Mpofu. The purchase price was $120,000=. He allegedly paid the sum of $55,000= on signing the Agreement. The balance would be paid in monthly installments of a minimum of $2,000= until it was liquidated. He averred that he had paid the full purchase price of $120,000= and was therefore entitled to have the rights, title or interest in the property transferred from David Mpofu's name into his name.

Regarding the issue of the double sale, Stephen Nyamutuma having sold to the applicant and the first and second respondents, the position is as clear as daylight.

In Crundall Brothers (Pvt) Ltd v Lazarus NO and Another 1991 (2) ZLR 125 (S)…., the full bench of the Supreme Court stated the law as follows -

“This approach was set out as follows by Professor McKerron in (1935) 4 SA Law Times 178 and repeated with approval by Professor Burchell in (1974) 91 SALJ 40:

'It is submitted that where A sells a piece of land first to B and then to C – and the position is the same mutatis mutandis in the case of a sale of a movable of which the court would decree specific performance - the rights of the parties are as follows:

(1) ….,.

(2) Where transfer has been passed to C, C acquires an indefeasible right if he had no

knowledge, either at the time of sale or at the time he took transfer, of the prior sale to B, and B's only remedy is an action for damages against A. If, however, C had knowledge at either of these dates B, in the absence of special circumstances affecting the balance of equities, can recover the land from him, and in that event C's only remedy is an action for damages against A.'”

I am satisfied that the first and second respondents did not know of the sale to the applicant either at the time of the sale or at transfer.

In fact, even the applicant himself conceded that much in earlier papers filed in this court. He appears to have changed his stance in his answering affidavit and in the heads of argument; perhaps after realising the difficulties of his case. For that reason, the first and second respondents were innocent purchasers and applying the above legal proposition, they should retain transfer.

In any event, having taken transfer, and indeed occupation, the balance of equities favours maintenance of the status quo ante.

This brings me to the second issue for determination which is whether or not the third respondent is an innocent purchaser.

The third respondent pleaded that he is an innocent purchaser and is therefore entitled to remain on the property. The applicant submitted that the respondent was not an innocent purchaser. He alleged that the third respondent had fraudulently entered into the agreement in order to defeat his claim over the property.

Both parties appear to have been operating under the same misapprehension that upon paying the purchase price stipulated in their respective Agreements they had concluded valid Sale Agreements with the first respondent. 

I do not believe that they had.

Clause 17 of the Agreements, which are identical, provided that in addition to the payment of the purchase price, they were required to provide the first respondent with the proof that they had respectively entered into contracts for the development of the property.  None of them produced the proof that they had entered into such contracts, neither did they plead that they had complied with all the terms of the lease agreements. The parties, and particularly the third respondent, appear, in their pleadings, to have been aware that the relationship between them and the first respondent was that of a lessee and a lessor. The third respondent used the terms “bona fide purchaser” and “bona fide lessee” interchangeably.

In any event, there is a distinction between the lease agreements the applicant and the third respondent entered with the first respondent respectively. The agreements were primarily lease agreements with an option to purchase the property. The agreements were not Agreements of Sale.

Therefore, the question of an innocent purchaser does not arise. I have therefore not considered it necessary to determine the allegations of fraud raised by the applicant.

It therefore appears to me that both the applicant and the third respondent were lessees.

The first respondent appeared in person and submitted Deed of Transfer No.4570/99 as proof of ownership. He stated that he was given the Deed by the second respondent after he had paid for the Stand and the construction in full, otherwise the second respondent would not have given him the Deed. His attention was drawn to the fact that the mortgage bond registered on his Deed had been cancelled on 5 October 2001 long before construction of the house had commenced.

He could not explain how this happened.

The first respondent confirmed that when he visited the site in 2002 there was a structure being constructed. Asked to produce proof that he had paid for the Stand and the construction he produced four receipts. The first receipt was issued by the second respondent on 1 April 1997 in the sum of $400= local currency and shows that the payment was “accommodation deposit.” The second is a receipt issued by Webb Low and Barry Legal Practitioners on 27 April 1999 in the sum of $1,863=10 local currency, for “Bond FBS”, presumably for the registration of a bond in favour of Founders Building Society. The third receipt is for $17,250= local currency, issued by Coghlan and Welsh Legal Practitioners on 5 November 2003 as consultation fee. The last one is a Barclays Bank cash deposit slip of $150,000= local currency into the account of TLP AGENCIES (PVT) LTD. The depositor's address is given as 6711 Cowdray Park Bulawayo. This is a payment which was made long after the house had been constructed using funds availed by Beverley Building Society through a loan facility extended to the applicant who serviced the loan in full.

The first respondent, therefore, has not shown that he paid the purchase price of the Stand and the costs of construction of the house.

At the hearing, I allowed the parties to submit further documents if they so wished which would help clarify the issues in dispute. The documents submitted by the first respondent show that he had been offered a loan by Founders Building Society to develop the Stand but he never took that loan.

An affidavit by one Edmond Moyo was also put in and it reads as follows:

“I am employed by Alpha Construction as an Administration Director. When we went into an agreement with Sifiso Thebe, we arranged with our financers, Founders Building Society, to give him a mortgage bond for House No.6711 Cowdray Park. He never withdrew the mortgage money, so no payment was done to us. We later sold the property to Sehlukene Sibanda after failing to trace Thebe who was reported to be working in Botswana. It took more than 4 years before we saw Thebe who only appeared demanding the house which had already been constructed for Sehlukene Sibanda and was staying there, using funds from Beverley mortgage bond for Sehlukene Sibanda. The property was paid for by Beverley Building Society not Thebe's Founders Building Society.

We were only made aware of this case when Thebe approached us seeking assistance. We are not able to assist Mr Thebe since he never paid for the property. Accordingly, the property, according to our records, belongs to Sehlukene Sibanda. When we discovered that the property had been double registered we approached the Deeds Office who apologised and advised us that the error was regrettable. Founders Building Society have and had no interest in the said property since they never parted with any money for the property.”

This explanation puts the matter in proper perspective and shows why the first respondent was unable to produce proof that he paid for the property. What we have here is a situation where the first respondent took advantage of the title deed in his name which had not been cancelled. When the applicant bought the property it had been repossessed from the first respondent but he unlawfully evicted the applicant who had paid for the construction of the house on the Stand.

This is clearly a case of a double sale in which the same property was sold to both the first respondent and the applicant.

I had occasion to examine the law relating to double sales of immovable property in Howera v Mudzingwa and Others HB123-10…, where I made reference to Crundall Brothers (Pvt) Ltd v Lazarus N.O. and Another 1991 (2) ZLR 125 (S)…, where the Supreme Court stated:

“This approach was set out as follows by PROFESSOR McKERRON in (1935) 4 SA Law Times 178 and repeated with approval by PROFESSOR BURCHELL in (1974) 91 SALJ 40:

“It is submitted that where A sells a piece of land first to B and then to C – and the position is the same mutatis mutandis in the case of a sale of a movable of which the court would decree specific performance – the rights of the parties are as follows:-

(1)…,.

(2)  Where transfer has been passed to C, C acquires an indefeasible right if he had no knowledge, either at the time of sale or at the time he took transfer, of the prior sale to B, and B's only remedy is an action for damages against A. If, however, C had knowledge at either of these dates, B, in the absence of special circumstances affecting the balance of equities, can recover the land from him, and in that event C's only remedy is an action for damages against A.”

In that case, the court accepted that when the second purchaser is entirely ignorant of the claims of the first purchaser, and takes transfer in good faith and for value, his real right cannot be disturbed…,.  It also accepted that there may be special circumstances affecting the balance of equities which should guide the court even where the second purchaser was aware of the first purchaser's prior right.

In casu, at the time the applicant entered into a sale agreement with the second respondent he was advised that the vacant Stand in question had been repossessed from the first respondent for failure to pay. He was given a copy of a letter addressed to the conveyancers, James Moyo Majwabu and Nyoni, by the seller to that effect. He therefore was entirely unaware that the first respondent would raise a claim. For that reason, the applicant's claim deserves to be respected.

Even if I am wrong in that conclusion, this is a case where there are special circumstances which affect the balance of equities. The applicant purchased the property for value at a time when it was a vacant Stand. He paid for the construction of a three roomed house as opposed to the first respondent's two roomed one. The first respondent did not pay for the construction and only surfaced after completion of the house. The first respondent unlawfully evicted the applicant from the house when the latter had title to it. This is a peculiar case where both of them hold title even though that of the applicant ought not to have been registered. The balance of equities however favour the applicant.

I am therefore persuaded that the applicant has made out a good case for the relief sought. In the result it is ordered that:

(1) The Deed of Transfer number 4570/99 for Stand 6711 Cowdray Park Township of Cowdray Park of the Helenvale Block, Bulawayo, in favour of the first respondent is hereby cancelled.

(2) The Deed of Transfer number 1272/2002 for Stand 6711 Cowdray Park Township of Cowdray Park of the Helenvale Block, Bulawayo in favour of the applicant is hereby upheld.

(3) The first respondent and all those claiming occupation of the said Stand through him are directed to forthwith vacate the property failing which the Deputy Sheriff should eject them.

The background to the matters is that the applicants bought residential units from the first respondent in a Cluster Housing Scheme being developed by the second respondent on land owned by the first respondent. They also entered into building contracts with the second respondent.

The first applicant (Dr Dudka) bought Share Number 9. She paid the full purchase price. A dispute arose due to failure of the second respondent to fulfil its obligations in terms of the Agreement. By mutual agreement, the dispute was referred to arbitration. The arbitral award was to the effect that the Agreement of Sale was valid. Since the second respondent had failed to comply with its obligations in the terms of the building contract, Dr Dudka was entitled to take over the construction of the house. The respondents were to transfer to Dr Dudka share in the first respondent which would confer ownership and right to possession of Unit 9. Following the award, Dr Dudka engaged building contractors to complete the house. The contractors were confronted by certain persons who claimed ownership of the Unit. A Deeds search was done and it revealed that the Unit had been transferred to the first respondent (Khan).

The second applicant (Russell) bought Share Number 5 from the first respondent. He also entered into a building contract with the second respondent. The third applicant (Fairclot) bought Shares Number 6 and 12 from the first respondent. It also entered into a building contract with the second respondent. A dispute arose between the parties and was referred to arbitration. On 23 October 2008, Russell obtained an interim order to the effect that pending the finalisation of his matter and that of Fairclot, the first and second respondents were interdicted from selling, disposing of or transferring in whole or in part by way of share transfer or any one method the property in issue which is the remaining extent of Lot 3 Lewisam of Lot E of Colne Valley of Rietfontein situate in the district of Salisbury and measuring 26,638 hectares. It was also ordered that the copy of the award be served on the Registrar of Deeds, Registrar of Companies and Messrs Enerst & Young. The order was served on the Registrar of Deeds on 23 October 2008. The dispute was finally resolved by an award in favour of Russell and Fairclot. This award was registered with this court on 21 May 2009. The order provided, inter alia, for the issue to Russell of Share Number 5 of Cheni Estates (Pvt) Ltd giving Russell right of ownership of Unit 5. It also ordered the issue of Share Number 4 and 12 of Cheni Investments (Pvt) Ltd to Fairclot giving it the right of ownership over Unit 4 and 12. It further ordered the Deputy Sheriff to give effect to the order by signing necessary documents to effect transfer to Russell and Fairclot.

The fourth applicant (“John”) bought Share Number 3 from the first respondent and also entered into a building contract with the second respondent. The respondents failed to comply with their obligations in terms of the building contract. John took over the construction. Around June 2009, he discovered that the first respondent had transferred his Unit to Khan.

The applicants then filed the present proceedings seeking the setting aside of the transfer of their Units to the third, fourth and fifth respondents and an order to have the Units transferred into their names….,.

The applicants seek their orders based on three main grounds. First they contend that when transfer was effected, same proceeded in defiance of a judicial caveat placed against the property. Secondly, the property transferred was res litigiosa and incapable of being alienated to the prejudice of the applicant. Thirdly, they contend that the third, fourth and fifth respondents are not innocent third parties as they were or ought to have been aware of the dispute between the applicants and the first and second respondents.

This case was a double sale situation.

At this stage, I use the phrase “double sale” in a non-legal sense, simply to denote that the immovable property in question was sold twice by the same person to two different parties. Whether or not there was a double sale in the legal sense is one of the issues I shall have to decide….,.

The parties were agreed that, in terms of the first sale agreement, if the sale had validly been cancelled then the plaintiffs would be entitled to half the amount of the purchase price paid by the third defendant in the second sale. That amount was US$48,000=. So half of it was US$24,000=.

If the first sale was not validly cancelled, the parties agreed that the situation would be a double sale proper.

In that event, the court would have to determine in whose favour, between the plaintiffs and the third defendant, did the balance of equities lie. The party in whose favour the balance of equities lay would be entitled to the property and the other party to damages against the seller. The quantum of such damages would be the average of the two valuations commissioned by the parties; one in the sum of US$112,000= and the other in the sum of US$88,500=. Thus, such average would be US$100,250=….,.

(c) Since the first sale was never validly cancelled, and it now being a double sale situation, in whose favour does the balance of equities lie?

The law on double sales is well settled. In Guga v Moyo & Ors 2000 (2) ZLR 458 (SC), the Supreme Court (McNALLY JA) unpacked it as follows…,.:

“The basic rule in double sales, where transfer has not been passed to either party, is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages against the seller, which is usually small comfort. But that rule applies only 'in the absence of special circumstances affecting the balance of equities'. See McKERRON (1935) 4 SA Law Times 178, BURCHELL (1974) 91 SALJ 40…,; and in BP Southern Africa (Pty) Ltd v Desden Properties (Pvt) Ltd 1964 RLR 7 (G), MACDONALD J (as he then was) said:

'In my view, the policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim for damages for breach of contract. I do not suggest that this should be the invariable rule but I agree with the view expressed by Professor McKerron that save in “exceptional circumstances” the first purchaser is to be preferred.'

...,. The broad principle, as set out above, was acknowledged to be our law in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)...,. Similarly, in Charuma Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors 2000 (1) ZLR 85 (S).”

Where transfer has passed, for example to the second buyer, as in this case, then the second buyer acquires an indefeasible right if he had no knowledge, either at the time of the sale, or at the time of transfer, of the prior sale to the first buyer. The first buyer's remedy is an action for damages against the seller. If, however, the second buyer had had knowledge of the prior sale, either at the time of the second sale, or at transfer, then, in the absence of special circumstances affecting the balance of equities, the first buyer can recover the property from the second buyer. In that event, the second buyer's remedy is an action for damages against the seller: see Barros & Anor v Chimponda 1999 (1) ZLR 58 (S)…, and Crundall Bros (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 125 (S); 1992 (2) SA 423 (S).

“Balance of equities” refers to a balance of fairness. “Equitable” means fair and reasonable; treating everyone in an equal way. Oxford Advanced Learner's Dictionary.

In this case, the balance of equities between the plaintiffs and the third defendant, in relation to the property, were, in my view, equal. Their circumstances may have been different, but, on balance, the positives and negatives of the one cancelled out the negatives and positives of the other. I give a few examples:

(1) The plaintiffs, for seven years, manifestly slept on their rights. They had paid the purchase price in full. The next thing would have been transfer and payment of the costs associated with it. Yet the evidence established that they made no appreciable effort to take transfer. The law helps the vigilant and not the sluggard.

Ndebele v Ncube 1992 (1) ZLR 288, 290; Masama v Borehole Drilling (Private) Limited 1993 (1) ZLR 288 (SC); Mubvimbi v Maringa & Anor 1993 (2) ZLR 24 (HC); Maravanyika v Hove 1997 (2) ZLR 88 (HC); Beitbridge Rural District Council v Russel Construction Co (Private) Limited 1998 (2) ZLR 190 (SC); and Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (SC).

On the other hand, the third defendant undoubtedly “snatched” the transfer. I refer to the record time within which she saw the advert; viewed the property; concluded the second sale and then took transfer. But whilst such speed raises eyebrows, I refrain from imputing to her knowledge of the first sale. She denied that she had been aware of it. Furthermore, the first sale had, at any rate, been purportedly cancelled. Still further, it transpired that the defendants' legal practitioners of record, T. H. Chitapi and Associates, were the ones involved to the hilt in virtually all the transactions and legal disputes that flowed from them. It is them that knew what was going on.

(2) Despite claims that they intended to build a dream home and live on the property, and despite having taken possession of the property immediately after the agreement, the plaintiffs, for more than seven years, had only put up an unfinished two bedroomed cottage that evidently was neglected over time. The property was in a suburb of Harare called Philadelphia, a part of Borrowdale. It is a posh area. The evidence established that the plaintiffs had another property in Chisipite, another posh area of Harare. It was there that they were staying all along.

On the other hand, the third defendant claimed that her intention with her husband, in acquiring the property, had been to build their own house. However, I took this with a pinch of salt. The evidence established that soon after acquiring it they quickly changed their minds. They decided against the inevitably tedious and arduous process of building. They simply bought a cluster home elsewhere in Harare. About three months after taking transfer they put up the property for sale.

The point is, none of the parties could be said to have been desperate for shelter. All they now wanted was compensation. But money can do that adequately.

(3) The plaintiffs claimed that they had a longer attachment to the property and that they had already invested heavily on it by building the cottage. They said that on the other hand, given that the third defendant was already selling the property, it meant that she had bought it for speculative purposes. She never developed any form of attachment to it.

But that argument is neatly cancelled out by the fact that the third defendant now had title. She was now the registered owner, enjoying all the attendant rights of ownership.

In the circumstances, I consider that none of the contending parties has any greater or lesser claim to the property than the other. The loss of the property by either would be nothing that money could not ameliorate. But the third defendant is undoubtedly in the stronger position in that she has title. Therefore, there are no strong grounds to upset the status quo as far as title in the property is concerned.

Since the parties had already agreed on the formula for the compensation due to the party that loses the property, all that remains now is to declare the final outcome….,.

(d) Disposition

It is hereby declared and ordered as follows:

1. The Agreement of Sale, dated 12 September 2003, between the plaintiffs and the first defendant, in respect of the property that was then a subdivision of the Remaining Extent of Sherwood known as Stand 273, measuring 4,026m², but which is now registered as Stand 273 Philadelphia Township of Sherwood A (“the property”) was never validly cancelled.

2. In spite of paragraph 1 above, the plaintiffs' claim that the sale of the property to the third defendant by the first and second defendants; that the subsequent registration of title of the property in favour of the third defendant under Deed of Transfer No.1448/2010 be declared null and void; and that the property be transferred to them, is hereby dismissed.

3. As compensation for the loss of the property, the first and second defendants, jointly and severally, shall pay the plaintiffs the sum of one hundred thousand two hundred and fifty United States dollars (US$100,250=).

This is an application for a joinder. The draft order attached to the application reads as follows:-

“1. The 6^th Respondent be and is hereby joined as the 6^th Respondent in Case No. HC1393/08.

2. The 6^th Respondent shall, if he wishes to defend the 1^st and 2^nd Applicants' claim, file a Notice of Opposition within (10) ten days of service of the pleadings in Case No. HC1393/08 on him.

3. The rest of the pleadings shall be dealt with in accordance with the rules of the Court.

4. There shall be no order as to costs.”

I give, here-below, a brief background to the relief sought.

On 7 March 2008 the applicants filed an application under case number HC1393/08 (the main matter) for the following relief:-

“IT IS ORDERED THAT:

1. The 1^st Respondent [the plaintiff herein] is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Harare, also known as a certain piece of land situate in District of Salisbury Township Lands measuring 3,066 square metres under Deed of Transfer 39/76 to anyone except the 1^st and 2^nd Applicants.

2. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd Respondent [Sandra Muir] is directed to sign all the necessary documents to finalise the transfer within 10 days of the Order.

3. Should the 2^nd Respondent fail or refuse to sign the necessary documents to effect transfer, the 4^th or 5^th Respondent [Sheriff and Deputy Sheriff respectively] are hereby directed to sign all the necessary documents to effect the transfer by the 3^rd Respondent [Registrar of Deeds] to 1^st and 2^nd Applicants.

4. The 1^st and 2^nd Respondents shall bear all the costs of this application on attorney-client scale jointly and severally one paying the other to be absolved.”

On 21 May 2008, I granted the above order in default.

On 22 August 2008, the sixth respondent, in his capacity as the Managing Director of the first respondent, filed an application, under case number HC4211/08, for the rescission of the default judgment granted in favour of the applicant on 21 May 2008. I must mention that when the rescission application was filed, the default order had already been executed/enforced.

In paragraph 14 of the founding affidavit in the rescission application filed on 22 August 2008 in HC4211/08, the sixth respondent averred as follows:-

“14. I humbly submit that the Applicant has got a prima facie right and a bona fide defence to the 1^st and 2^nd Respondents claim. Applicant bought all the shares from the 3^rd Respondent, through its Managing Director, and took transfer of the shares well before the 16^th of June 2008 when the 1^st and 2^nd Respondents took transfer of the immovable property. In fact, the Order granted by this Honourable Court, see Annexure “I”, was granted in error. The alleged Agreement of Sale between 1^st, 2^nd and 3^rd Respondents was not for the sale of the immovable property but for the sale of shares. In fact, it is quite doubtful that the same could have been granted if the 1^st and 2^nd Respondents' Legal Practitioners had been candid with this Honourable Court and included Annexure “H” which is the Notice of Opposition to the Court Application. As it is, 1^st and 2^nd Respondents Legal Practitioners saw it fit to cherry pick the information and omitted to mention or attach the Opposing Affidavit to Case No. HC6660/07. In a nutshell, the transfer of the immovable property to the 1^st and 2^nd Respondents is null and void as the company shares in the Applicant were bought and transferred to JOHN LEGGETT, who, in his capacity as the sole shareholder, became the owner of all assets owned by the Applicant well before it purported to take transfer of the immovable property on the 16^th of June, 2008.”…,.

The first and the second respondents referred to in the above passage are the first and the second applicants herein. The third respondent is the second respondent in this matter. John Leggett, referred to in the above passage, is the sixth respondent that the applicant herein seeks to join in the main matter (HC1393/08).

The contents of the above passage are further reinforced in the answering affidavit filed by the sixth respondent on 25 September 2008 in HC4211/08 on behalf of the applicant therein. In paragraphs 6 and 7 of the answering affidavit, the sixth respondent states as follows:

“6. Annexures “B1” and “B2” clearly show that 3^rd Respondent transferred her shareholding to John Leggett. I also attach hereto, as Annexure “A” a Share Certificate which clearly shows that John Leggett is the owner of 100 fully paid ordinary shares in the Applicant. It is true that the Applicant was the owner of all its assets, including the immovable property in dispute, and the same (Applicant) was owned by the 3^rd Respondent hence her power to sell and transfer the shares to John Leggett who became the owner of the Applicant. Simple logic testifies that the purpose of purchasing shares is to own and control that company and how 'the deponent did not become the owner of the Applicant's property by acquiring shares in it' is confusing (for want of a better word).

Is it being suggested that Applicant's shareholder (John Leggett) elected to buy the name of the company and did not want to become owner of Applicant's property by acquiring shares in it?

The averments in this paragraph by the 1^st and 2^nd Respondents is, with respect, confusing. Initially, it is alleged that “3^rd Respondent did not transfer any shares to the Applicant. Then a few lines down it is alleged that 'the deponent did not become owner of the Applicant's Property by acquiring shares in it.'

The issue is not who entered into an Agreement with 3^rd Respondent first. The issue is simply, who took transfer of the shares first.

As at 28^th May 2008, John Leggett was the new shareholder and owner of the Applicant.

Annexure “A”, attached hereto, clearly shows that the Share Certificate was issued to John Leggett on the 5^th of June 2008 and 1^st and 2^nd Respondents took transfer improperly of the immovable property on the 16^th of June 2008. The 1^st and 2^nd Respondents either deliberately or through a genuine error on their party overlooked the fact that the Applicant has a new shareholder who took transfer of the Shares from 3^rd Respondent, and, as such, has got a vested interest in the matter. The Applicant is the owner of the immovable property and other movable property and if it cannot be the Applicant who deposes to the Founding Affidavit who should then be?

7. The Applicant had new Shareholders who should have been cited by the respondents. The law is quite clear.”…,.

As per his own averments, the sixth respondent was actually the new sole shareholder of the first respondent in casu. The foregoing brings to the fore the sixth respondent's vested interest in the main matter. Clearly, the relief sought in paragraph 2 of the draft order in the main matter (HC1393/08) would adversely impact on the vested interest of the sixth respondent. That position requires no argument and would indeed form the legal basis upon which a joinder is being sought.

When the rescission application was placed before PATEL J…, he directed that, because of the disputes of fact in the matter, it should go to trial.

The matter eventually went to trial before MAFUSIRE J who granted the rescission on 19 March 2014. The rescission meant that the main matter, (HC1393/08), should now be heard in terms of the rules of this court. However, before the hearing of the matter, the applicants correctly deemed it necessary to join the sixth respondent who was not cited in the main matter.

Curiously, the application for joinder is opposed by the sixth respondent. This is despite the fact that, according to him, he is now the Managing Director and sole shareholder of the first respondent. Ownership of the property, which is really at the center of the dispute between the parties, is said to vest in the first respondent, whose total shares the sixth respondent now claims to own.

In his founding affidavit, in casu, the first applicant explains, in part, as follows:

“8. On the 7^th of March 2008, I together with 2^nd Applicant filed a Court Application before this Honourable Court, seeking an order for specific performance against the 1^st and 2^nd Respondents, among other things. The order was granted in default and has since been rescinded by this Honourable Court. Parties are back to the previous status quo.

I beg leave to refer to the pleadings in 1393/08 as if specifically traversed herein. At the time of the issuing of the said application the 2^nd Respondent had in her possession on the Share Certificates reflecting her as the sole shareholder of the 1^st Respondent, the Company owning Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare. I together with 2^nd Applicant, entered into an agreement to buy the said shares to facilitate ownership and control of Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare.

However, it subsequently came out that the 2^nd Respondent had later purported to issue and sell the same shares in the 1^st Respondent to the 6^th Respondent, John Legett, without our knowledge. Therefore, the said John Legett clearly has an interest in the outcome of the Case No. HC1398/08 which seeks to have us declared the true shareholder of the 1^st Respondent and subsequently, the process of Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare at 6^th Respondent's expense.

9. The 2^nd Applicant and I insist that we are the rightful shareholders in 1^st Respondent and believe that the purported transfer to John Legett was improper and a legal nullity.

We would want the court to rule that purported sale of the shares to John Legett be deemed null and void and it is only proper that the 6^th Defendant/Respondent be given an opportunity to give his side of the story.

10. Therefore, it is necessary that the 6^th Respondent, John Legett, be joined in this case to enable us to enforce the order we are seeking before this Honourable Court. In fact, the Court can properly determine the issue of the purported sale of shares to the 6^th Respondent by the 1^st and 2^nd Respondents as all the interested parties would be before it.”

Indeed, the relief sought in the main matter is the one reproduced in full at page 2 of this judgment. In the main, the applicants pray for the transfer of the property in dispute to themselves.

In the main matter, (HC1393/08), the opposing affidavit sworn to by the sixth respondent states, in part, as follows:-

“(a)…,.

(b) The 2^nd Respondent's interest in this matter ceased on the 28^th of May 2008 when 2^nd Respondent sold and transferred to me her two shares in the 1^st Respondent. I must mention that by this date I already held 98 shares in the 1^st Respondent.

(c) As from 11 December 2007 I had been the majority shareholder in the 1^st Respondent as I had ninety eight shares. Following the agreement of 28 May 2008 I had then assumed 100% shares of the 1^st Respondent.

(d)…,.”

The above is consistent with other averments made in the rescission application (HC4211/08) and already quoted in this judgment.

Notwithstanding the sixth respondent's clear interest in the main matter, (HC1393/08), he remains opposed to the joinder.

In his opposing affidavit in the main matter the sixth respondent states as follows:-

“4. The First Applicant has deliberately misrepresented the relevant facts of this matter which facts are well known to him. Undoubtedly, he has chosen to adopt a course based on incorrect and incomplete facts in order to justify this extremely belated application for joinder.

5. It is correct that on 7 March 2008 the Applicants instituted a Court Application in Case No. HC1393/2008. I was not cited as a party in that application. In that matter, the Applicants sought an order, without any factual or legal basis, for the transfer of the property in Churchill Avenue from the name of the First Respondent into their personal names. There had not been any proper service of the papers in the matter on the First Respondent, but, notwithstanding, a judgment in default was granted.

6. As soon as I learnt to the default judgment, I caused an application for rescission of that default judgment to be made on behalf the First Respondent, which was Case No. HC4211/2008. It was an application brought, in the main, by the First Respondent, for the rescission of the judgment obtained without notice or proper service and without any basis for the transfer to the Applicants of the property belonging to the First Respondent.

7. However, that application was referred to trial by the Honourable Mr Justice Patel on 24 September 2009 and the parties were directed to file pleadings. Among the pleadings filed was one termed “1^st and 2^nd Defendants' Counterclaim', filed on behalf of the present Applicants on 2 November 2009. In the so-called Counter-claim I was cited as the Second Defendant, and the relief sought in that Counterclaim was, in essence, precisely the same relief as is now being sought through the application for joinder. I attach a copy of that so-called Counter claim as Annexure “A” for the benefit of this Honourable Court.

Objection was taken to the attempt to join me as a party as none of the original papers had been served on me, and the legal practitioners representing the present Applicants thereafter withdrew the so-called Counterclaim. When the trial took place earlier this year before the Honourable Mr Justice Mafusire there was no claim made by the present Applicants against me in my personal capacity.

8. The result of that trial, handed down on 19 March 2014, was that the judgment given in default was set aside. Subsequent thereto, on 2 April 2014, I caused to be filed on behalf of the First Respondent the necessary opposing papers to the application brought in Case No. HC1393/2008, together with a counter-application for the eviction of the Applicants from the property belonging to the First Respondent.

The response thereto, on behalf of the Applicants, was to file, on 8 May 2014, the Applicants filed an opposing affidavit to the counter-application. The delay in filing that opposing affidavit had been the subject of correspondence between Gill, Godlonton & Gerrans and Sawyer & Mkushi. As agreement had been reached to allow the late filing of the Opposing Affidavit I make nothing of that delay.

10. On 30 May 2014, Heads of Argument for the Applicants were filed in Case No. HC1393/2008. I am advised that these Heads of Argument were filed out of time and that issue will be raised at the hearing of the application. Some five business day later the present application for joinder was filed and served.

12. The papers in Case No HC1393/2008 are now closed and the matter ready for hearing, rendering it inappropriate to reopen all those papers simply because the Applicants have eventually decided to bring an application for joinder. Most certainly, the Applicants have had since 19 March 2014 to make any such application, but have delayed, I would suggest, deliberately, until 6 June 2014 to bring that application in order to extend their unlawful occupation of the house in Churchill Avenue. It is also intended to interfere with the administration of justice and the proper determination of the issues raised in Case No. HC1393/2008.

11.3 Furthermore, more than three years have elapsed since the Applicants knew that I had entered into two agreements relating to the shares of the First Respondent. Those details had been set out in the founding papers which I caused to be filed on behalf the First Respondent in Case No. HC1393/2008 as long ago as 22 August 2008. I am therefore advised that the claim purported to be brought by way of the joinder application is prescribed and cannot be pursued.”

I take note of the withdrawal of the counter-claim wherein the sixth respondent had been cited.

In addition to the above objections, which I have, for the purpose of clarity, quoted at length, during the hearing of this application the sixth respondent raised another issue. It was an issue of law and the submission was:-

“19. The Form 29 used to institute this present application for joinder specifically states that the application is made in terms of Order 13 Rule 85 of the High Court Rules 1971. This reads:

'85. Subject to Rule 86 two or more persons may be joined together in one action as plaintiffs or defendants whether in convention or in reconvention where -

(a) If separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

(b) All rights to relief claimed in the action, whether they are joint, several or alternative, are in respect of or arise out of the same transaction or series of transactions.

The Rule clearly applies solely to actions and not to applications. It is submitted that there has been no extension of this Rule in the procedure relating to applications. Therefore, the attempt to make an application in terms of Rule 85 in the present circumstances was ill-founded.

21. This is not to say that in application procedures and Order 32 the Court cannot order the joinder of an interested party. But it does mean that any such joinder cannot be to permit substantive relief different to that sought in the founding application to be claimed.”

I find myself in a situation where the party to be joined is clearly an interested party, and, to me, that is the major issue in this case.

The sixth respondent has indeed loudly pronounced his interest in the matter. However, for the detailed reasons given above, the interested party (i.e. the sixth respondent) does not want to be joined. To the extent that my finding, based on his own statements, is that he is indeed an interested party, it becomes difficult to accept the issue of delay as militating against the joinder. The main matter is yet to be set down and heard.

I also believe that the issue of prescription is a matter to be determined during the hearing of the main matter. The same applies to whether or not, because of disputes of fact, the matter should have been by way of action. That, in my view, is an issue to be determined by the judge who will deal with the main matter. It will be his/her prerogative to either dismiss the matter or give directions as happened in the first respondent's application for rescission (i.e. HC4211/08).

It is also important to understand the full import of the rescission order granted by MAFUSIRE J. The full order read as follows:-

“IT IS ORDERED THAT:

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008 in HC1393/08 is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No.4778/08 over certain piece of land situate in the district of Salisbury called Stand 12896 Salisbury Township Lands measuring 3,066 square metres ^, dated 16 June 2008, in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No.39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1. Whether or not the agreement of sale between the first and second defendant, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Legget, should be set aside.

3.3. Whether or not the first and second defendant should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order and thereafter the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendant jointly and severally, the one paying the other to be absolved.”…,.

As can be seen under the Judge's directions, given under paragraph 3.2. of the order, the sixth respondent is brought into the main matter. Given the import of paragraph 3.2. of the court order, I do not see how the residual matters referred to in that order can be determined without the participation of the sixth respondent. My view is that the order indirectly called for the joinder of the sixth respondent.

With regards to the legal issue, I acknowledge the fact that both Rules 85 and 87 appear to confine themselves to actions. However, I take the view that a rigid construction of those Rules will result in a miscarriage of justice. I therefore believe that reference to “any cause” in Rule 87 should enjoy a wider and encompassing meaning. In that case, an interested party can join or be joined as long as the matter is yet to be determined i.e. at any stage. It would therefore, in the circumstances, be appropriate to invoke Rule 4C of the High Court Rules 1971 which provides as follows:-

“4C. Departures from Rules and directions as to procedure

The court or a judge may, in relation to any particular case before it or him, as the case may be –

(a) Direct, authorize or condone a departure from any provision of these Rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these Rules as appear to it or him, as the case may be, to be just and expedient.”

In view of the foregoing and given the fact that this court can manage its own Rules in order to render justice to litigants, I am unable to accept that an application for joinder cannot be made in a matter/cause brought by way of application. That, in my view, would be an unfair law.

It was correctly argued that pleadings had closed and the matter was ready for hearing. That may be the case, but this court has, in the interests of justice, a discretion which it can, without prejudice to the sixth respondent, use to accommodate the situation that the sixth respondent is uncomfortable with. That extends to the possibility of supplementary affidavits being filed subject to leave being granted by the court. I cannot, therefore, at this stage, pronounce on how the main matter will be handled upon the sixth respondent being joined. I can, however, boldly declare that the sixth respondent has a vested interest in the main matter and should therefore be joined as a party to the main matter. That move will enable the court to properly interrogate the issues to be addressed in the main matter.

The application must succeed.

IT IS ORDERED THAT:

1. John Leggett be and is hereby joined as the 6^th Respondent in Case No. HC1393/08.

2. The 6^th Respondent shall, if he wishes to defend the 1^st and 2^nd Applicants' claim, file a Notice of Opposition within (10) ten days of service of the pleadings in Case No. HC1393/08 on him.

3. The rest of the pleadings shall be dealt with in accordance with the Rules of the Court.

4. There shall be no order as to costs.”

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15.

The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot be deprived of his property against his will means that he is entitled to recover it from any person who retains possession of it without his consent; SILBERBERG and SCHOEMAN, Law of Property, 3ed…,.

A common thread runs through the above cited dicta. It is that no person is allowed, at law, to retain the property of another against the latter's will. Put differently, the law allows the owner to recover his property from whoever is holding the same against the owner's will. The only exception which the law recognizes is where the possessor has some enforceable right against the owner.

The generally accepted position which is enunciated in the first paragraph of this judgment constitutes the applicant's cause of action. Its contention is that gold claim number 45464, Makaha [“Makaha”] belongs to it. Makaha is in Mudzi which is under Mutoko District. It states that:

(a) Makaha was granted to it in 2012 by the fourteenth respondent (Minister of Mines and Mining Development); and

(b) In an ownership dispute of Makaha which ensued between the fourth respondent and it in October 2016, the Acting Provincial Mining Director for Mashonaland East Province, who works under the purview of the fourteenth respondent (Minister of Mines and Mining Development), decided the dispute in its favour.

It alleges that the first to thirteenth respondents' continued occupation of, and mining at, Makaha adversely affects its interests as well as its mining rights. It, therefore, moves the court to evict the respondents from Makaha.

All the respondents oppose the application.

The second to the thirteenth respondents are a syndicate which is known as Tabatana Mining Syndicate, the first respondent in casu. The fourteenth respondent is the Minister of Mines and Mining Development.

(i) They own Makaha through the fifth respondent; and

(ii) They appealed the decision of the Acting Provincial Mining Director to the fourteenth respondent who is yet to decide the appeal.

They allege that the application for their eviction was prematurely filed. They contend that the parties should await the decision of the fourteenth respondent.

They state that there is a dispute of ownership of Makaha in terms of which the applicant and them are both in possession of certificates of registration. They aver that there is a material dispute of fact which cannot be resolved on the papers. The matter, they insist, should be properly ventilated and determined by way of an action. They aver that it requires viva voce evidence for its resolution.

They challenge the applicant's certificate of registration. They say it is not authentic but a fraud.

They deny that there was ever any forfeiture of Makaha which was made against them or against the fifth respondent. The forfeiture, they state, was improperly done and is, therefore, invalid. They insist that their mining activities at Makaha are within the law. They state that their appeal suspends the decision of the Acting Provincial Mining Director. They aver that all the processes are suspended pending the determination of the appeal. They deny having ever despoiled the applicant of Makaha. They move the court to dismiss the application with costs on a higher scale.

The fourteenth respondent's affidavit (Minister of Mines and Mining Development) aims at clarifying issues, he says. He acknowledges that the respondents' appeal is before him for his consideration. He states that he set up what he terms the Disputes Committee which he mandated to hear, deliberate and make recommendations on the parties' dispute to him. He confirms that the Disputes Committee is seized with the parties' case.

As proof of its ownership of Makaha, the applicant attached to its application Annexure C. The annexure is a certificate of registration which the fourteenth respondent issued to it on 9 September 2014. It shows that it is the registered owner of Makaha.

The applicant's statement, which is to the effect that it acquired mining rights of Makaha in 2012, cannot possibly be correct. The date of registration which appears on the certificate does not support that allegation. Mineral rights are not acquired through any form other than by way of the annexure which bears 9 September 2014 as the date that the fourteenth respondent granted mining rights of Makaha to the applicant.

It is common cause that the respondents, less the fourteenth respondent (Minister of Mines and Mining Development), showed some activity at Makaha in 2016. Their activity created the dispute between the applicant and them. The same was referred to the Acting Provincial Mining Director (“the Director”) for Mashonaland East Province for resolution. The Director works under the supervision of the fourteenth respondent. The dispute which, in earnest, was between the applicant and the fourth respondent was decided in the applicant's favour.

The Director's ruling, which is dated 25 October 2016, reads, in part, as follows:

“Please be advised that Earthrow Investments (Pvt) Ltd has no legal right over mining claims registered in favour of Prosper Machekera even though he might be a Director in the company. Earthrow Investments and Prosper Machekera should sign an official tribute agreement and/or transfer title from Machekera P.

Basing on the above observations it is concluded that Earthrow Investments (Pvt) Ltd does not have a claim in the areas under dispute….,. Milmath Securities should be allowed to work…,.”…,.

It is the statement of the applicant that the decision of the Director constitutes its second reason for claiming title in Makaha. It submits that it should be allowed to continue its mining operations at Makaha without any interference from the respondents. It avers that these despoiled it of Makaha. It therefore moves the court for their eviction from the same.

The decision of the Director should, in my view, be read in its proper context.

An effortless reading of the same shows that the Director acknowledged the fifth respondent's title in Makaha. What he is disagreeing with is the allegation that the fourth respondent has title in the same. He, in all probability, must have examined the records which are in his office. Those must have revealed to him that the fifth (Proper Machekera), and not the fourth (Earthrow Investments) respondent has title in Makaha.

It is for the mentioned reason, if for no other, that he stated that the fourth respondent (Earthrow Investments) has no legal right over mining claims which are registered in favour of the fifth respondent (Proper Machekera).

He acknowledged, as late as October 2016, that Makaha was registered in the name of the fifth respondent. He acknowledges, further, that the fifth respondent may be a director of the fourth respondent. He states the correct position of the law which is that the only occasion when the fourth respondent can have title of Makaha occurs when the registered owner of Makaha (i.e. the fifth respondent) signs an official tribute agreement with, and/or transfers title in Makaha to, the fourth respondent.

According to the Director's records, therefore, two persons have title in Makaha. These are the applicant and the fifth respondent (Proper Machekera). The fourth respondent (Earthrow Investments) does not.

It was by way of comparative analysis that he remained of the view that when the fourth respondent's case is compared with that of the applicant, the latter entity, which has title in Makaha, was better placed than the fourth respondent to continue its mining operations at Makaha. That is the context in which the Director's decision should be understood....,.

The applicant has real rights in Makaha. The fifth respondent does also have real rights in the same. The remaining respondents who teamed up with the fifth respondent whose rights the Director recognized in his ruling do, through him, have some rights in Makaha.

Whether or not the respondents, the fifth respondent in particular, suffer(s) forfeiture of Makaha remains a matter for another day. The issue of the alleged forfeiture can only be resolved through viva voce evidence. That is so because the respondents contest the same in a very emphatic manner. They describe the alleged forfeiture as having been of no force or effect. Their reason is that it was irregularly implemented. They challenge the applicant's certificate of registration for Makaha. They state that the certificate is a fraud on the part of the person or official who issued it in the name of the applicant.

There are, in my view, material disputes of fact in the parties' case. The fourteenth respondent states as much. He is seized with the parties' dispute which he will determine after he has received the recommendations of the Disputes Committee which he set up to investigate the parties' competing claims of Makaha.

It goes without saying that neither party has a better claim to Makaha than the other. Their claims are equal in competition one against the other. The court cannot, in the circumstances, grant the application.

The applicant failed to establish its case on a balance of probabilities. Its application is without merit. It is, accordingly, dismissed with costs.