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. ...
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 Kufa Oswin 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. HC11678/98 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. SC58-01 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. HH01-02.
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. SC85/02 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. HC12434/04 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 the
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 counsel 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)…, 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 the 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:
(i) Firstly, proof of ownership; and
(ii) Secondly, possession of the property by another person.
Once the two requirements are met, the onus shifts to the respondent to justify his occupation.
Counsel
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,
the second respondent held rights, title and interest therein.
The
judgment of SMITH J in Chikadaya v Chikadaya & Ors HH01-02,
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…, 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)…,.:
“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…, in Katirawu v Katirawu & Ors HH58-07…, 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.
