Crieff Investments (Pvt) Ltd and Aldawilia Investments (Pvt) Ltd v Grant Home Centre (Pvt) Ltd and Tapiwa Givemore Kasuso and Stewart Nyamushaya and The Registrar of Deeds

### Preamble
1
HH 734-18
HC 8895/12
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CRIEFF INVESTMENTS (PVT) LTD

and

ALDAWILIA INVESTMENTS (PVT) LTD

versus

GRANT HOME CENTRE (PVT) LTD

and

TAPIWA GIVEMORE KASUSO

and

STEWART NYAMUSHAYA

and

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE, 16 October 2018

Trial

T Hove, for the plaintiffs

Ms F Chinwawadzimba, for the 1st defendant

MUNANGATI-MANONGWA J: When parties appeared before me they agreed that this matter proceeds as a stated case. The first plaintiff is CRIEFF INVESTMENTS (PRIVATE) LIMITED, a company duly incorporated according to the laws of Zimbabwe, the second plaintiff is ALDAWILIA INVESTMENTS (PRIVATE) LIMITED. The second plaintiff changed its name to the first plaintiff. In essence the first and the second plaintiff are one party. The first defendant is GRAND HOME CENTRE PRIVATE LIMITED, a company duly incorporated according to the laws of Zimbabwe and whose address for service is care of its legal practitioners of record. The second and the third defendants are male adults who had been acting as legal practitioners for the plaintiffs. The fourth and fifth defendants are cited in their official capacity.

The agreed facts are as follows; the plaintiffs are the owners of the immovable property called stand 346 Beverly East Township, Salisbury. It is common cause that the Plaintiffs engaged the second and the third defendants as their legal representatives to represent them in various matters. Sometime in 2009 the second and the third defendants sold the Plaintiffs’ immovable property to the first defendant. The first defendant duly paid the purchase price to the third defendant. The property was transferred into the name of the first defendant.

Sometime in 2010 the plaintiffs discovered that their property was sold and they instituted criminal proceedings against the second defendant. The second defendant was convicted of fraud for disposing the property of the plaintiffs without being authorised by the Plaintiffs. The criminal proceedings have been appealed against and to date the matter has not been prosecuted. The first defendant was not party to the fraud and innocently purchased the property from the third defendant.

When the first defendant received transfer of the property it erected a perimeter wall sometime in November 2009. The perimeter wall was later demolished by the Plaintiffs in August 2010 when they discovered that their property had been sold fraudulently. After the conviction of the second defendant the Plaintiffs instituted the present proceedings. The second and the third defendants were in default at the pre-trial conference and default judgment was obtained against them. The matter was referred to trial and in terms of the pre-trial conference three issues were to be determined namely;

Whether or not the Plaintiffs authorised the sale of Stand No. 346 Beverley East, Township.

Whether or not the transfer was fraudulent?

Whether or not the Plaintiffs should be estopped from alleging that the second and the third defendants had no mandate to sell the property?

With the default judgment against the second and the third defendants, the first two issues fell away. The sole issue that remains for determination is whether or not the Plaintiffs should be estopped from alleging that the second and the third defendants had no mandate to sell the property?

Corbett JA in Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co. Ltd 1981 (3) SA 275 (A) aptly described the doctrine of estoppel as such; “The essence of the doctrine of estoppel is that a person is precluded; i.e. estopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice.”

The representation can be either in express terms or by conduct including silence or inaction. Van der Merwe in his book Contract General Principles 4th ed at p 29, states that the defence of estoppel requires that the party relying on it prove the following:

That the other party (estoppel-denier) made a representation about the correct facts;

That the misrepresentation was accompanied by fault (either dolus or negligence)

That he (the estoppel-raiser) reasonably relied on the misrepresentation.

That he acted upon the misrepresentation to his prejudice.

That the (act to his) prejudice was caused by the misrepresentation.

That the impression is one fit to be maintained by the law.

These elements are not to be hard and fast requirements which cannot undergo change. The first defendant seeks to maintain that the plaintiffs should be estopped from alleging that second and third defendants had no mandate to sell the property. Further since the second defendant is challenging his conviction on appeal reliance cannot be placed on the conviction, moreso when the third defendant has no standing conviction for fraud in this case. Ms Chimwadzimba further submitted that the first defendant had constructed a perimeter wall around the property in 2009 which was only demolished in 2010. Thus the silence of the plaintiff’s amounted to some form of misrepresentation as no one raised the issue.

The first defendant has not pointed to any conduct upon which the plaintiffs could have misrepresented to the first defendant the nature of the true existing facts. The first plaintiff still holds its original title deed and maintained it never passed a resolution authorising the second defendant to sell the property. This explains why the second defendant was charged with fraud and ultimately convicted. No express or tacit conduct of the plaintiffs can be said to have caused the first defendant to believe that the second and third defendants had authority to dispose of the property as the documents relied on, being the resolution and powers of attorney, were fraudulent. There being no misrepresentation from the plaintiffs the defence of estoppel cannot hold. Further, the building of the wall by the first defendant came after the conclusion and transfer of the sale and nothing turns on it. The first defendant had already entered into the sham sale. It is that misrepresentation which causes the raiser to act to his/its detriment that raises the defence of estoppel not subsequent acts. In any event the plaintiffs’ were not aware that their property had been sold until they discovered that fact in 2010 and instituted criminal proceedings.

Given that default judgment had already been granted against the second and third defendants, the bid to defend this matter by the first defendant was a futile exercise. The raising of the defence of estoppel is also a clutch on straws.

The plaintiffs having established their case on a balance of probabilities, they are entitled to the relief sought. Accordingly the following order is made:

The agreement of sale signed by the first and the second defendants on the 30th October 2009 pertaining to stand 346 Beverley East Township be and is hereby declared null and void.

The deed of transfer no. 4835/09 issued by fourth defendant be cancelled and that fourth defendant rectifies and correct entries in his register to reflect the first plaintiff Crieff Investments Private Limited as the registered owner of stand 346 Beverley East Township of subdivision A of Green Grove measuring 7355 square metres.

Stand 346 Beverley east Township of Subdivision A of Green Grove remain the sole and exclusive property of the first plaintiff.

The first, second and third defendants pay costs of suit jointly and severally the one paying the other to be absolved.

Musunga & Associates, plaintiff’s legal practitioners

Venturas and Samkange, the first defendant’s legal practitioners

Nyamushaya, Kasuso and Rubaya, the second& the third defendant’s legal practitioners