Claudius Masukuv Ignatius Pamire and Stanley Mutetwa and Axcillia Loveness Ganda and Registrar of Deeds

### Preamble
1
HH 192-18
HC 3716/16
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CLAUDIUS MASUKU

versus

IGNATIUS PAMIRE

and

STANLEY MUTETWA

and

AXCILLIA LOVENESS GANDA

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 22 February 2018 & 3 April 2018

Opposed Application

Adv L Uriri, for the applicant

F M Katsande, for the 1st respondent

M D Hungwe, for the 2nd respondent

Adv S Hashiti, for the 3rd respondent

No appearance, for the 4th respondent

MANGOTA J: The applicant purchased stand number 7 Dove Crescent Vainona (“the property”) from the first respondent. The first respondent and him concluded the agreement of sale on 21 August 2001.

The first respondent sold the property in his capacity as the executor dative of the late Mr Peter Pamire. The property did not, therefore, belong to the first respondent. It was part of the deceased estate.

Having purchased the properly, the applicant moved to have the same transferred into his name. The transfer took place on 30 March 2003. Reference is made in this regard to Annexure C1 which the applicant attached to the application.

Prior to the purchase of the property by the applicant, the first respondent had sold it to the second respondent. The allegations are that this first sale took place in September, 1997.

Further allegations are that the first respondent cancelled the first agreement of sale. He, it was said, did so on 31 July 2000 through a letter Annexure B, which the applicant attached to the application. It is alleged that the first and the second respondents later agreed between themselves to cancel their agreement of sale. The applicant referred the court to Annexure C which he said was evidence of cancellation of the first sale.

When the applicant took transfer of the property, the second respondent filed an urgent chamber application. He did so in April 2003 and under Case No. HC 2490/03. He sought, inter alia, cancellation of  title of the property which had been registered in the applicant’s name.

A provisional order was entered in the second respondent’s favour. That order was discharged on 14 March 2016 and confirmed on 26 March 2016. Reference is made in this regard to the respective orders of MTSHIYA J and MATANDA-MOYO J.

It was on the basis of the confirmed order – MATANDA-MOYO J’s order  –  that the second respondent purported to have taken title in the property. He sold it to the third respondent into whose name he purported to have transferred title in the same.

The applicant’s contention is that the second respondent’s transfer of title in the property to himself and his subsequent transfer of the same to the third respondent are invalid. He moved the court to cancel the third respondent’s title in the property and to reinstate the same to him.

The first three respondents opposed the application. The fourth respondent did not. The assumption is that he chose to abide by the decision of the court.

The first respondent’s papers supported the applicant’s cause. He said he sold the property to the second respondent who paid nothing for it. He stated that he cancelled the agreement of sale which he had concluded with the second respondent and resold the property to the applicant who took title in the same. He expressed shock and surprise to learn that title of the property was with the third respondent. He moved the court to grant the relief which the applicant which he moved the court to grant to him.

The second respondent’s contention was that the applicant’s agreement of sale with the first respondent was invalid. The agreement, he averred, aimed at defeating his rights in the property. He submitted that the applicant was not an innocent purchaser. He said the applicant was fully aware of his contract with the first respondent when he purchased the property. He admitted that he entered into the confidentiality agreement with the first respondent. He stated that the order of MATANDA-MOYO J cancelled the applicant’s title in the property. The order, he argued, authorised transfer of the property into his name. He submitted that the order in question was final. The third respondent, he said, was an innocent purchaser. He moved the court to dismiss the application with costs which he insisted should be on a punitive scale.

The third respondent was less belligerent than the second respondent. She submitted that she was an innocent purchaser. She urged the court to protect her interests in the property. She said she was not aware of the dispute of the applicant, the first and the second respondents until she received this application. She stated that she got to know of the sale of the property through an advertisement which had been inserted in the newspaper. She said she viewed the property, had an interest in it, secured a loan from her employer and she used the property as security for the loan. She submitted that she made improvements on the property. She moved the court to dismiss the application with costs.

The second respondent purchased the property in 1997. He did not take title in the same from the mentioned date to 14 May 2014 when he finally did have the property transferred into his name. His reasons for not taking title remain largely unknown.

The applicant’s statement which the second respondent confirmed is that the first and the second respondents entered into what they described as a confidentiality agreement. He attached the same to his application. He called it Annexure C.

The annexure records the agreement which the two respondents concluded between them on 28 January, 2003. Paragraph 6 of the annexure is relevant. It states in clear and categorical terms that the first and the second respondents agreed between them to terminate the contract of sale which they concluded on 17 September, 1997. It states, further, that the first respondent should retain title in the property but shall not transfer the same to any other person pending finalization of HC 8240/01.

It is mentioned in passing that the agreement is what it is. It is not an order of court. It could, therefore, be breached by either party. Where a breach occurs, as was the case when the first respondent sold and transferred title in the property to the applicant, the latter does not acquire less right in the property because of the breach. He acquires full and unquantified title in the same.

The first respondent’s conduct vis-a-vis the confidentiality agreement did not in any way adversely affect the applicant’s rights in the property. The breach was not and is not of any concern to him. It was and is for the two respondents to resolve between them.

It is, in my view, because of the first respondent’s breach of the confidentiality agreement that the second respondent filed an urgent chamber application with the court under HC 2490/03. The court ruled in his favour at the provisional stage of the order. It purportedly also ruled in his favour at the final stage of the same.

I use the word purportedly because the provisional order had been discharged on 14 March, 2016 when it was confirmed on 26 March, 2016. Reference is made in this regard to MTSHIYA J’S order as read with MATANDA-MOYO J’s order.

Confirmation of an order which has been discharged renders the confirmation process a nullity. MATANDA-MOYO J could not confirm a provisional order which was no longer existent it had been discharged. It was no longer present when it was purportedly confirmed.

The long and short of the above analysed set of matters is that the applicant remained with title which the first respondent transferred to him on 30 March, 2003. That title was not at all disturbed by the purported confirmation of the order by MATANDA-MOYO J.

In the urgent chamber application which the second respondent filed under HC 2490/03, he cited the first respondent in his individual capacity. He overlooked the fact that the first respondent was not the owner of the property. The property did not belong to the first respondent. It belonged to the estate of the late Peter Pamire.

The second respondent’s citation of the first respondent was and remains fatally defective. He should have cited him in his capacity as the executor dative of the estate of the late Peter Pamire. The defect in the citation of the first respondent was continued right up to the stage that Mtshiya J discharged the order and MATANDA-MOYO J confirmed the order.

The defect is not of the Honourable Judges’ making. It rests on the shoulders of the second respondent who cited him as such. The second respondent who was ably legally represented should have known that the estate of the deceased is separate and distinct from its executor whom the Master appointed to administer the same. He, for reasons known to himself, decided to cite the second respondent in a very incompetent way. The citation, therefore, rendered his urgent chamber application and the contradicting court orders which flow from it a complete nullity.

The remarks which Lard Denning made in MacFoy v United Africa Co. Ltd (1961) 5 ALL ER 1169 (PC) 1172 describe the situation which the second respondent created for himself in a very graphic manner. The learned Lord Justice said:

“if an act is void, then it is 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, although 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” [emphasis added].

It requires little, if any, debate to state, as it should be stated, that the urgent chamber application in which the first respondent was cited in his personal, as opposed to his official, capacity was incurably bad. It stands to reason, therefore, that all the proceedings which followed from the urgent chamber application were also incurably bad. Everything which related to the urgent chamber application and all subsequent proceedings which followed it were a nullity. They remain so todate.

The second respondent, it is not difficult to see, acquired no title in the property. The purported confirmed order upon which he justified his acquisition of title was a nullity. It was so for two reasons. The first is that the provisional order had been discharged when it was purportedly confirmed. The second is that the alleged provisional order was anchored upon a detective application.

It is evident that the second respondent acted in a fraudulent manner when he took title of the property. He knew that provisional, order the confirmation of which he sought before Matanda-Moyo J had been discharged by Mtshiya J. He, for reasons known to himself, proceeded to seek its confirmation his knowledge of the discharge of the same notwithstanding. The speed with which he took title in the property and transferred the same to the third respondent only but serves to confirm the fraud with which he treated the matter which related to the property. He purportedly acquired title in the property on 14 May, 2014. Before the ink which pertained to his alleged acquisition of title in the property had dried up, he sold and transferred the property to the third respondent. The third respondent took transfer of the property on 19 July, 2014. Both actions followed each other in a period of less than two months.

The second respondent knew that his conduct was tainted with fraud. He remained alive to the fact that the applicant may, sooner than rather later sue him to claim title in the property. He, with a great measure of mala fides, made up his mind to entangle the third respondent in a matter which was of his own concern. He not unnaturally sold, and transferred, the property to the third respondent. He did so as a way of taking his hands off the same.

Because the second respondent did not ever have title in the property, he could not, therefore, pass any title to the third respondent. He had, because of the confidentiality agreement which he signed with the first respondent, no personal rights against the latter person. He, therefore, had neither personal rights nor real rights in the property.

The fraud which the second respondent perpetrated against the applicant and the third respondent is of a very serious magnitude. A fortiori when he used the court as his weapon of attack. The manner in which he obtained the purported confirmation of the provisional order, as viewed from the applicant’s narration of events, shows nothing other than the inescapable conclusion that the second respondent is a very resourceful person.

It goes without saying, therefore, that the third respondent has every right to claim from the second respondent all the money which she spent following his deceitfulness. She is at liberty to claim from him the purchase price for the property and all the improvements she made on the same. She must, in other words, be placed at the status quo ante the purchase of the property.

The second respondent’s conduct, it has already been found, was a complete fraud. He defrauded both the applicant and the third respondent.

It is trite that nothing legal can flow from a fraudulent conduct. I, in this regard, associate myself with the remarks which Makarau J (as she then was) was pleased to make on this matter. The learned judge stated in Katirawu v Katirawu and Ors, HH 58/07 at p 5 of the cyclostyled judgment as follows:

“Nothing legal can flow from a fraud. ….. It is as if it was never made. It is a nothing upon which nothing of consequence can hang.”

Willie and Millin’s Mercantile Law in South Africa, 18 ed p 182 describe the sorry

situation of the third respondent who fell victim to the deceitful conduct of the second respondent .The learned authors state:

“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 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 …”.

The learned authors spelt in a clear and unambiguous manner the avenue which

remains open to the third respondent in the circumstances of the present case. She cannot continue to cling onto the property. It is not hers. It belongs to the applicant. She was defrauded of her hard-earned money by a deceitful person. She has, therefore, to let go the property to its lawful owner.

The second respondent was and remains the proximate cause of what the applicant and the third respondent suffered. He should, therefore, be made to bear the costs of this application alone. He will, because of his unwholesome conduct, bear them on a punitive scale.

The applicant, I am satisfied, proved his case on a balance of probabilities. The application is, accordingly, granted as prayed in the draft order which is amended, on the issue of costs, to read:

The second respondent shall bear the costs of this application on an attorney and client scale.

Muronda Malinga Legal Practice, applicant’s legal practitioners

F M Katsande & Partners, 1st respondent’s legal practitioners

Kadzere, Hungwe & Mandevere, 2nd  respondent’s  legal practitioners

Gill, Godlonton & Gerrans. 3rd respondent’s legal practitioners