OMERJEE
AJA:
This appeal concerns a protracted legal dispute involving the rights,
title and interest in an immovable property namely Stand No. 6058
Glen View 3 Township, Harare (hereinafter referred to as “the
property”).
In
1980 the first respondent's husband purchased the rights, title and
interest in the property from Kufa Oswin Danda. At the time of
purchase, the first respondent's husband had acquired another
property within the municipal jurisdiction of the City of Harare
(“the City Council”).
It
was the policy of the City Council at the time not to permit any
person to acquire and register in his name more than one property
within the municipal area.
The
first respondent's husband agreed with the second respondent (his
young brother) that the property would be registered in the latter's
name. They also agreed that in due course it would be transferred and
registered in the name of the first respondent's children.
On
26 January 1982 the City Council approved the cession of Danda's
rights in the property to the second respondent.
On
19 May 1998, the first respondent's husband requested the second
respondent to cede his rights in the property to his son, Lydman
Chikadaya.
The
second respondent refused to do so.
On
25 September 1998, the first respondent's husband then instituted
proceedings in the High Court in Case No. HC 11678/98 against the
second respondent and the City Council for the cession of rights in
the property.
The
second respondent contested the action.
On
1 March 2001, SMITH J, non-suited the first respondent's husband on
the basis of the “dirty hands” principle and dismissed his claim
without a hearing as to the merits.
The
first respondent's husband noted an appeal to the Supreme Court on
29 March 2001.
In
Judgment No. SC 58/2001 delivered on 14 June 2001, the Supreme Court,
upheld the appeal, set aside the order of the High Court and remitted
the matter to the lower court for the continuation of the trial on
the merits.
The
subsequent trial was held on 3 and 4 September 2001.
On
20 February 2002, SMITH J granted the relief sought by the first
respondent's husband in Judgment No. HH-1-2002.
In
that judgment the court ordered the second respondent to cede his
rights, title and interest in the property to the first respondent's
husband failing which, the Deputy Sheriff was authorised to act in
his stead.
The
second respondent noted an appeal to this Court in Case No. SC 85/02
against that decision.
The
appeal was dismissed by this Court on 15 November 2004.
When
the first respondent's husband sought to execute the judgement of
20 February 2002, he discovered that, while the matter was still
pending before the courts, the council had already, under Deed of
Transfer 1284/2001, transferred the property to the second and third
respondents.
The
second and third respondents had in turn sold the property to the
appellant on 6 December 2000 and effected transfer of the property to
the appellant on 14 February 2001.
When
the first respondent's husband discovered that the property had
been sold to the appellant, he filed a court application under Case
No HC 12434/04 against the appellant, the second, third and fourth
respondents respectively, seeking inter
alia
the cancellation of the sale, cancellation of transfer of the
property to the appellant, transfer of the property to him, eviction
of all parties claiming occupation through the appellant and costs of
suit on the scale of legal practitioner and client.
Only
the appellant opposed the application in the papers filed. The other
parties cited did not file any opposing papers in this matter.
On
24 March 2009 the first respondent's husband died before the trial
of the matter.
The
first respondent in her capacity as the executrix was substituted as
the plaintiff in the matter.
The
court a
quo
granted the relief sought by the first respondent. It is against that
decision that the present appeal has been noted.
The
appellant now appeals to this Court on the grounds that:
“1.
The learned Judge a
quo
erred and misdirected himself on the evidence presented to make a
finding that the appellant was a mala fide purchaser. In particular
the learned Judge ignored evidence which proved that the appellant
was an innocent third party at the time he purchased the property and
took transfer of the same.
2.
The learned judge failed to appreciate that the first respondent was
not entitled to the relief of rei
vindicatio
as against second respondent. In particular, the learned Judge
ignored the fact that second respondent being the registered owner of
the property had proper title and dominium thereof.
3.
The learned Judge erred and misdirected himself in granting an order
setting aside the sale and transfer of the property to the appellant
when the facts of the case disclosed special circumstances in favour
of non-cancellation of Deed of Transfer in favour of the appellant.
4.
The Learned Judge ought to have made a finding that the first
respondent was estopped from vindicating the property since the
respondent did not take appropriate steps to protect her interests in
the property which situation resulted in appellant purchasing and
taking transfer of the same in good faith.
5.
The learned Judge failed to appreciate that at the time of the trial
herein, the property had passed from second respondent to appellant
and hence the principle of res
litigiosa
had no application to the extent warranting the cancellation of
appellant's title to the property under circumstances shown by the
facts of the case.
6.
The learned Judge erred and misdirected himself in awarding costs
against the appellant on a Legal Practitioner and client scale.”
The
appellant seeks the setting aside of the judgement of the court a
quo
and for it to be substituted by an order dismissing the claim by
first respondent with costs.
Three
issues arise for determination. I propose to deal with each of the
issues in turn. These are:
(i)
Whether the appellant in
casu
was a bona
fide
purchaser of the property in dispute.
(ii)
Whether the first respondent (plaintiff in the court a
quo)
was entitled to the remedy of rei
vindicatio
under
the circumstances.
(iii)
Whether the contested rights were res
litigiosa.
On
the first issue, it was the submission of Mr Dondo
for
the appellant that the court a
quo
misdirected itself in finding on the evidence adduced that the
appellant was a mala
fide
purchaser.
This
was a finding of fact.
It
is trite that an appellate court will not interfere with a decision
of a trial court based on findings of fact, unless there is a clear
misdirection or the decision reached is irrational.
In
the case of Hama
v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670C-E KORSAH
JA
stated the following:
“The
general rule of the law, as regards irrationality, is that an
appellate court will not interfere with a decision of a trial court
based purely on a finding of fact unless it is satisfied that, having
regard to the evidence placed before the trial court, the finding
complained of is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at such a
conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of
State for Education & Science v Metropolitan Borough of Tameside
[1976] 3 All ER 665 (CA) at 671E-H; CCSU v Min for the Civil Service
supra at 951A-B; PF-ZAPU v Min of Justice (2) 1985 (1) ZLR 305 (S) at
326E-G.”
The
onus to prove that the appellant was a mala
fide
purchaser rested upon first respondent in the court a
quo.
A
careful analysis of the evidence of Virginia Chikadaya the first
respondent in her capacity as executrix in the estate of the late
Cyril Chikadaya, reveals that this witness failed to discharge the
onus upon her.
She
was unable to give reasons for claiming that the appellant was aware
of the legal wrangle between her husband and the second respondent
over the said property.
The
trial Judge correctly found that the first respondent had failed to
prove that the appellant had been a tenant at the property prior to
the purchase of the same.
The
court a
quo
however found that the probabilities confirmed that the appellant
must have been aware of the claims by the first respondent's
husband to the property.
There
was no evidence whether direct or circumstantial to establish that
the appellant knew or should have known of the legal dispute between
the first respondent's late husband and his brother over the
property. There was a mere suspicion that he could have known about
it but nothing more.
Furthermore
the appellant's assertion that he was not aware of the legal
wrangle over the property was supported by the evidence of Chiedza
Chimere who was a tenant at the property at the time. She testified
that she never brought this issue to the appellant's attention at
any time, but confirmed seeing the appellant inspecting the property.
The
first respondent failed to prove that the appellant was a mala
fide
purchaser.
She
only relied on what she had been told by her husband and this was
regarded as first hand hearsay by the court a
quo.
That
court admitted such evidence despite the fact that the late Chikadaya
was an interested party and had an interest in this matter.
The
appellant's evidence that he was unaware of the legal dispute as to
the rights in the property was supported and corroborated by two
tenants who were residing at the property at the relevant time.
Having
regard to the evidence adduced on record, it is clear that the first
respondent failed to discharge the onus to prove that the appellant
was a mala
fide
purchaser.
The
court a
quo
erred and misdirected itself in coming to such conclusion on the
evidence led. The appellant on the evidence on record was a bona
fide
purchaser.
However
the resolution of this issue does not determine the fate of this
appeal. It is necessary to determine the two other remaining issues.
I
turn to deal with the second issue that is, whether the first
respondent was entitled to the remedy of rei
vindicatio.
The
rei
vindicatio
is a common law remedy that is available to the owner of property for
its recovery from the possession of any other person. In such an
action there are two essential elements of the remedy that require to
be proved. These are firstly, proof of ownership and secondly,
possession of the property by another person. Once the two
requirements are met, the onus shifts to the respondent to justify
his occupation.
Mr
Dondo
for the appellant submitted that the remedy was not available to the
first respondent because her late husband had never become the owner
of the property. Prior to the transfer of the property to the
appellant, second respondent held rights, title and interest therein.
The
judgment of SMITH J in Chikadaya
v Chikadaya & Ors
HH-1-2002, established that the first respondent's husband was the
owner of the rights, title and interest in the property which his
young brother the second respondent purported to dispose of to the
appellant.
The
second respondent purported to be the owner and disposed of the
property in the full knowledge that the property did not belong to
him. He did so in order to cheat and defeat the true owner of his
rights in the property.
In
other words he fraudulently sold the property to the appellant.
The
second respondent disposed of the property before the merits of the
matter had been determined by SMITH J.
When
the trial commenced, he did not disclose the fact that transfer had
already been effected to the appellant. He deliberately concealed
this information from the court and proceeded to appeal to the
Supreme Court against the decision of SMITH J, which had awarded the
rights, interest and title to the first respondent's late husband.
Wille
and Millin's in their book “Mercantile
Law in South Africa”
by
Phillip Millin and George Wille, 18th
edition
at p182 states that:
“If,
however a vendor knowing himself not to be the true owner of the
thing, represents himself to be the owner of ascertained goods, and
sells them to a person ignorant of the truth so as to wilfully to
expose the latter to the danger of having the possession taken away
from him by the true owner, the law regards such conduct on the part
of the vendor as fraudulent; and the buyer is entitled to repudiate
the contract and sue the seller for damages even before he is
evicted. This reflects the view of De Villers JA in Kleynhans
Bros v Wessels's Trustee
1927 AD 271, and is submitted to be preferable to the contrary view
of Wessels JA in that case – at least as regards the sale of a
specific merx.”
These
sentiments are pertinent to the present matter.
The
agreement of sale between the appellant and the second respondent was
null and void for lack of authority. The second respondent was not
authorised by the owner of the property to dispose of it on his
behalf. He purported to dispose of rights in the property which
rights he did not have.
As
was pointed out by LORD DENNING in Macfoy
v United Africa Company Limited
(1961) 3 All ER 1169 (PC) at 1172:
“If
an act is void, then it is in law a nullity. It is not only bad, but
incurably bad. There is no need for an order of court to set it
aside. It is automatically null and void without more ado, though it
is sometimes convenient to have the court declare it to be so. And
every proceeding which is founded on it is also bad and incurably
bad. You cannot put something on nothing and expect it to stay there.
It will collapse.”
The
same sentiments were also echoed by MAKARAU JP, as she then was, in
Katirawu
v Katirawu & Ors
HH-58-07 at p5 of the cyclostyled judgement when she said:
“...
Nothing legal can flow from a fraud. His appointment was null and
void ab
initio
on account of fraud. It is as if it was never made. It is a nothing
and upon which nothing of consequence can hang.”
The
first respondent has a right of vindication against the appellant,
despite the fact that the appellant had become the registered owner
of the property. The first respondent's right is derived from the
common law principle memo
dat quod non habet
which means no one can transfer more rights to another than he
himself has.
In
the present case the second respondent who purported to sell the
property to the appellant was not the legitimate owner of the
property and hence could not transfer the right of ownership which he
did not possess.
The
court a
quo
correctly concluded that the first respondent as the rightful owner
of the property was entitled to recover it from any person, who had
possession of it without his consent. The first respondent is
entitled to the remedy of vindication as against the appellant.
The
last issue that falls for determination is whether or the principle
of res
litigiosa
applies
in the present case.
In
Waikiki
Shipping Company Limited v Thomas Barlaw and Sons (Natal) Ltd and
Anor
1978 (1) SA 671 at 676H the court defined “res
litigiosa”
as objects that are the subject matter of litigation.
In
Zimbabwe
Banking Corporation Ltd & Anor v Shiku Distributors (Pvt) Ltd and
Ors
2000 (2) ZLR 11 (H) at 18F the court held that:
“-
- - a res
litigiosa
may not be sold after institution of action as there is no-one who
can be enriched by the right as everyone has an equal right to
prosecute it.”
It
is trite that all personal actions have the effect of rendering their
subject matter res
litigiosa
at
the stage of litis
contestatio.
The relevant stage is not the time of commencement of action, but the
time of litis
contestatio.
In
the case of Opera
House (Grand Parade) Restaurant (Pvt) Ltd v Cape Town City Council
1986 (2) SA 656 (C), it was held that in a real action (action in
rem)
the land becomes res
litigiosa
on the service of summons while in a personal action, that status was
achieved at the closure of pleadings.
I
am in agreement with the findings of the trial Judge that in the
present matter, it was unnecessary to determine whether the rights in
issue were real or personal rights as at the time of the alienation
summons had been served and pleadings closed.
It
is common cause that the contested rights were res
litigiosa.
It
is now settled in our law that where an object is res
litigiosa
this does not preclude or prevent it from being alienated or
similarly dealt with, as long as the rights of the non-alienating
litigant in the res
are protected. See the cyclostyled judgment of Supa
Plant Investments (Pvt) Ltd v Edgar Chidavaenzi
HH92-09 at p6-7.
l
conclude that the sale of the rights in the property after the
closure of pleadings without protecting the first respondent's
rights rendered the sale a nullity.
The
court a
quo's
findings in this regard cannot be faulted.
Accordingly
and for these reasons, it is ordered as follows:
The
appeal be and is hereby dismissed with costs.
GARWE
JA: I agree
GOWORA
JA: I agree
Dondo
& Partners,
appellant's legal practitioners
Musunga
& Associates,
first respondent's legal practitioners
