Jophn Edward TODD Versus Lydia Nhavira AND Lewis KEEL Horne AND Peggy JUDY Horne AND Viola Elizabeth TODD AND Registrar OF Deeds Harare N.O.

1
                                                                               HH 67-2011
                                                                              HC 3078/07
JOPHN EDWARD TODD
versus
LYDIA NHAVIRA
and
LEWIS KEEL HORNE
and
PEGGY JUDY HORNE
and
VIOLA ELIZABETH TODD
and
REGISTRAR OF DEEDS HARARE N.O.

HIGH COURT OF ZIMBABWE
PATEL J

Civl Trial

HARARE, 3 to 4 November 2010 and 22 March 2011

R. Harvey, for the plaintiff
M. Sinyoro, for the1st defendant
A.A. Debwe, for the 2nd and 3rd defendants
4th defendant (in person)
5th defendant (not opposed)


       PATEL J:        This case involves an ownership dispute in relation to Stand
No. 4795, No. 1 Milner Road, Braeside, Harare. The issues for determination herein
are as follows: (i) Did the plaintiff and/or the 4 th defendant donate the property in
question to the 2nd and 3rd defendants and, if so, on what terms? (ii) Did the plaintiff
and/or the 4th defendant and/or the 2nd and 3rd defendants sell their respective rights in
the property to the 1st defendant and did they authorise or notify or ratify the
sale/transfer to the 1st defendant? (iii) Were the 2nd and 3rd defendants lawfully entitled
to sell/transfer the property to the 1st defendant or did she take precarious title thereto?
(iv) Did the plaintiff and the 4 th defendant sign or notify the relevant documents used
to pass transfer and in what circumstances was the conveyance transacted? (v) Should
the said transfer be declared unlawful, with particular reference to the plaintiff’s
undivided half share therein?
       Before the trial commenced, the parties agreed on the facts that were common
cause, as follows. The plaintiff is married to the 4 th defendant but they have lived
apart for several years. The 3rd defendant is the plaintiff’s sister and she is married to
the 2nd defendant. The plaintiff and the 4th defendant were the registered owners of the
                                                                                      2
                                                                             HH 67-2011
                                                                            HC 3078/07
property, which was their residence and which they held under Deed of Transfer
1420/81, dated 9 March 1981. The property was transferred to the 2 nd and 3rd
defendants by Deed of Transfer 9236/05, dated 7 November 2005, the purported
cause being by way of donation. The 2 nd and 3rd defendants then sold and transferred
the property to the 1st defendant by Deed of Transfer 7424/2006, dated 30 October
2006. Both transfers were conveyed by Christopher Chigwanda, of Chigwanda Legal
Practitioners. By letter dated 9 May 2006 from her lawyers, the 4 th defendant
demanded payment of half the value of the proceeds of sale to the 1 st defendant, and
she was paid that sum by the conveyancer on 30 June 2006. The plaintiff reported the
2nd, 3rd and 4th defendants to the police on 13 December 2006, claiming that he had not
transferred the property and that the transfer of his half share therein was fraudulent.

The Evidence
        By consent of all the parties, Viola Elizabeth Todd, the 4 th defendant, was
allowed to testify first. Her evidence was that she sold her half share in the property to
the 2nd and 3rd defendants in March 2006, without the plaintiff’s consent or
involvement. She never saw or signed the relevant transfer papers, i.e. the Power of
Attorney, Declaration by Donor and Deed of Transfer. She did not recognise any of
the signatures on these documents as being hers or the plaintiff’s, nor did she appear
before the conveyancer to authorise the donation or transfer. She was aware of the
arrangement that the 2nd and 3rd defendants would stay at the property with the
plaintiff and pay all the recurrent expenses, including the instalments on the mortgage
bond.
        John Edward Todd, the plaintiff, confirmed that the 2 nd and 3rd defendants
lived at the property with him free of charge and, in return, they eventually paid off
the mortgage bond in November 2005. A year after receiving the title deed, he
gathered that the 2nd and 3rd defendants had stolen it and sold the property without his
consent. He then reported the matter to the Braeside Police Station. The matter is still
being investigated but no one has been charged with any offence as yet. He testified
that he never sold or donated his half share in the property to the 2 nd and 3rd
defendants. This is confirmed by his founding affidavit in Case No. HC 3416/07,
which he instituted on 3 July 2007 and wherein he sought and obtained a caveat
against further dealings with the property. The signatures on the Power of Attorney
and Declaration by Donor, dated 19 February 2003, are not his or the 4 th defendant’s.
                                                                                      3
                                                                             HH 67-2011
                                                                            HC 3078/07
The signatures on the Declaration by Donee, of the same date, belong to the 2nd and 3rd
defendants. He did not authorise any transfer in terms of the Deed of Transfer, dated 7
November 2005, and he does not know the conveyancer in question.
       Takawira Farikai Zembe has known the plaintiff and the 4 th defendant since
1985 from Braeside Shopping Centre, where they used to beg for money and drink
alcohol. He employed the plaintiff, a qualified journeyman, as a motor mechanic on
his farm for about one year, and then dismissed him when he found him drunk. He
later came to know the 3rd defendant as well. He responded to an advertisement in The
Herald for the sale of a house in Braeside. The estate agents took him and a third
party, who he later discovered was the 1st defendant’s representative, to view the
house and he was surprised to be taken to the property in dispute. They were greeted
by the 3rd defendant. She told the witness, in the presence and hearing of the agents
and the third party, that he was not to tell the plaintiff that she and the 2 nd defendant
intended to sell the house. They then viewed the interior of the house. On their return
trip, he queried the sale of the house as he knew that it belonged to the plaintiff. He
was informed by the estate agents that there would be no problem as they had the
papers showing that the property belonged to the 2 nd and 3rd plaintiffs. He then
withdrew his interest in the property. About a month later, the plaintiff approached
him for a loan to engage lawyers to recover his house. He then took the plaintiff to a
firm of lawyers and, because of his previous relationship with the plaintiff, he paid his
legal fees. The lawyers subsequently dropped the case because of the plaintiff’s
inconsistent statements. Thereafter, he lost contact with the plaintiff until he was
called by the plaintiff’s current lawyers to provide a witness statement. When
questioned by the Court, the witness stated that the plaintiff was drinking heavily and
regularly at the relevant time and, given his personal and family circumstances, it was
very possible that he was unaware of the house being sold behind his back.
       Angeline Chinyani is the 1st defendant’s sister and was appointed by her to
purchase the property and to litigate on her behalf. The 1st defendant was in the United
Kingdom at the relevant time and she still resides there. The witness entered into the
agreement of sale with the 2nd and 3rd defendants in June 2006. Her evidence was that
on the date of the visit to the property she only spoke to the 3 rd defendant. She could
not remember Zembe and did not hear what the 3rd defendant said to him. She would
not have purchased the property if she had known of the plaintiff’s title. Under cross-
                                                                                      4
                                                                             HH 67-2011
                                                                            HC 3078/07
examination, she accepted that a fourth person also came to view the house and that
he spoke to the agents on their return trip, but she could not recall what was said.
       Christopher Chigwanda is a conveyancer by profession. He processed both of
the deeds of transfer in casu. His evidence was that the plaintiff came to see him in
February 2003 and gave instructions for the transfer of the property to the 2 nd and 3rd
defendants. The relevant papers were prepared by him and his assistants. They were
then signed by the plaintiff and the 4th defendant at the firm’s offices. The references
in the papers to the 4th defendant as Viola Horne, rather than Viola Todd, were
typographical errors. In December 2006, he was invited by the police to explain what
transpired and he gave an affidavit statement as per his evidence above. Under cross-
examination, he stated that the plaintiff donated his half share in February 2003 and
that the 4th defendant sold her half share in March 2006 and was paid out in June
2006. However, the capital gains tax clearance certificate pertaining to the transfer is
dated 25 October 2005 and transfer was effected on 7 November 2005. He could not
explain these anomalies, nor could he recall to whom the 4 th defendant had sold her
share or whose money was deposited in the firm’s trust account for payment to her.
He could also not explain why the transfer papers refer to a donation by both the
plaintiff and the 4th defendant and make no mention at all of any sale of the latter’s
half share. He conceded that there were other formal deficiencies arising from the
absence of certain requisite documents, and that the transfer in casu was not strictly in
compliance with the prescribed legal requirements. With reference to his statement to
the police, he conceded that there were several contradictions within the affidavit
itself as well as between its contents and his evidence in court, particularly as regards
the donation of the property and the 4th defendant’s role in the transaction.
       Lewis Keel Horne, the 2nd defendant, is the plaintiff’s brother-in-law. He
stated that he vacated the property in 2007 and that it is presently occupied by the 1 st
defendant’s relatives. He and the 3 rd defendant paid off the mortgage arrears and bond
on the property. His evidence was that he accompanied the plaintiff and the 3 rd
defendant to see Chigwanda, as the plaintiff wanted to donate his half share to the 2 nd
and 3rd defendants. The plaintiff signed the Declaration by Donor and Power of
Attorney in his presence at Chigwanda’s offices. The 2nd defendant then went back to
the lawyers about one month later to sign the Declaration by Donee. The 4 th defendant
was to remain as the owner of half of the property. Before this omission in the papers
could be rectified, she demanded payment for her half share. Acting on Chigwanda’s
                                                                                        5
                                                                               HH 67-2011
                                                                              HC 3078/07
advice he then sold the property to the 1st defendant in June 2006 for $8 billion and
paid $3 billion to the 4th defendant at the end of that month. At that time, the plaintiff
wanted to reclaim his half share and declined the offer to be paid the balance of the
proceeds of sale. He eventually left the house at the end of December 2006. Under
cross-examination, the 2nd defendant was unable to explain the inconsistencies
between his testimony and Chigwanda’s evidence and statement to the police. Nor
was he able to say who signed the Power of Attorney as Viola Horne, as the 4 th
defendant was not present. He also contradicted his evidence-in-chief as to where and
when the plaintiff signed the Power of Attorney and when he himself signed the
Declaration by Donee. Nor could he identify the other signatures on these documents.
       Peggy Judy Horne, the 3rd defendant, is the plaintiff’s sister. She maintained
that the plaintiff wanted to donate the property and signed the relevant papers at
Chigwanda’s offices. She signed the Declaration by Donee at the same time and
place. She denied having told Zembe not to mention the intended sale to the plaintiff.
Under cross-examination, she could not remember where the plaintiff signed the
Declaration by Donor and Power of Attorney or when the 2 nd defendant signed the
Declaration by Donee. She confirmed that the signature of Viola Horne on the Power
of Attorney was not the 4th defendant’s. She could not identify any of the signatures of
the witnesses on these documents.

Assessment of Witnesses and Evidence
       The plaintiff, though not entirely certain as to the relevant dates, was very
clear in his testimony as to his non-involvement in the disposal of the property.
Similarly, the evidence of the 4th defendant was brief but to the point. Having
demanded payment for her half share of the property and received it, she was
disinterested in the present dispute. As regards Takawira Zembe, he proved to be an
immensely objective and impressive witness. In my view, his involvement in the
relevant events, particularly in assisting the plaintiff in his predicament, was nothing
less than altruistic. All in all, the evidence of these three witnesses was highly
persuasive and very credible.
       In contrast, the evidence on the other side was generally unconvincing and
unhelpful. As regards the 1st defendant’s representative, it is very difficult to credit her
denial of any knowledge of the plaintiff’s rights and interests, following her visit to
view the property. Even more difficult to credit is the testimony of Christopher
                                                                                     6
                                                                            HH 67-2011
                                                                           HC 3078/07
Chigwanda, which was nothing but a bundle of contradictions and disingenuous
evasion. Moreover, his professional role in the disputed transfer is extremely
questionable. The 2nd defendant’s evidence was equally unpersuasive. He was simply
attempting to explain and underplay the inconsistencies and anomalies that emerged
in the preceding testimony. As for the 3 rd defendant, her evidence was short but
confused and quite pointless.
       Turning to the documentary evidence of transfer, virtually all of it is defective
for one reason or another. The Power of Attorney to make transfer refers to a donation
only and appears to be a power to dispose of the entire property. It does not exclude
the 4th defendant’s half share and makes no mention of it being sold. It does not state
to whom the purported donation is being made, i.e. the transferee or transferees are
not identified. The original year typed on this document was 2005, which was then
altered by hand to 2003. Most pointedly, the surname of the 4 th defendant appears as
Horne (not Todd) and was signed as such. It was clearly not her signature. The
Declaration by Donor and the corresponding Declaration by Donee refer only to the
plaintiff’s half share. Again, there was no reliable evidence to verify the plaintiff’s
signature on the Declaration by Donor.
       All three documents were purportedly signed on the same date (19 February
2003) before different witnesses, none of whose signatures were identified at the trial.
Having regard to all of these discrepancies, as well as the conflicting testimony of the
defendants and the conveyancer, the authenticity of these documents and of the
purported signatures thereon is extremely dubious.
       The Deed of Transfer 9236/05, dated 7 November 2005, is premised on the
donation of the entire property, as one whole, and repeats the erroneous surname of
Horne (as opposed to Todd) in respect of the 4 th defendant. Again, the Capital Gains
Tax Certificate, dated 25 October 2005, also pertains to the donation of the whole
property. In my view, the supposed causa behind these transactions is wholly
undermined by the subsequent sale of the 4th defendant’s half share to the 2 nd and 3rd
defendants in May 2006.

Findings
       It is common cause that the 4 th defendant received payment for the sale of her
half share of the property and that the plaintiff was offered but declined his half share
of the proceeds of sale. This undisputed evidence of a subsequent sale clearly belies
                                                                                      7
                                                                             HH 67-2011
                                                                            HC 3078/07
the possibility of a prior donation of the same property. In any event, on the evidence
before the Court, I am amply satisfied that the plaintiff and the 4 th defendant did not
donate the property to the 2nd and 3rd defendants. Apart from the absence of any
formal deed of donation, there is no reliable evidence to show that they actually
signed the requisite instruments of donation and authority to transfer.
       I am also satisfied from the testimony of Takawira Zembe, coupled with the
manner in which the proceeds of sale were handled, that the 1 st defendant’s
representative was fully aware of the defects in the earlier transfer of title to the 2 nd
and 3rd defendants. She clearly took precarious title from them on behalf of her
principal.
       It is common cause that the plaintiff was grateful to the 2 nd and 3rd defendants
for their pecuniary and moral support in relation the property as well as the plaintiff
and his daughter. There is also evidence to show that in 1995 a Notarial Deed of
Servitude was prepared whereby the plaintiff and the 4 th defendant were to donate to
the 2nd defendant a servitude of habitatio over the land in question. However, this
deed was confined to a right of occupation as opposed to ownership and, in any event,
it was never eventually executed. It is also probable that the plaintiff may have at
some time or another expressed his wish to donate or bequeath the property to the 2 nd
and 3rd defendants. Nevertheless, the evidence before this Court points to the
conclusion that this wish was never fulfilled or actualised in terms of any binding
legal instrument.
       It follows from the foregoing that the 2 nd and 3rd defendants were not entitled
to take transfer of the property. By the same token, they were not entitled to sell and
transfer the property to the 1st defendant.

Disposition
       In the normal course of events, the donation of immovable property and its
transfer are effectuated by the following legal instruments: an agreement or deed of
donation, signed by the donor and the donee; a deed of transfer embodying two
causae, one of donation and one of acceptance; two powers of attorney, one
empowering the conveyancer to pass transfer in terms of a donation and another
empowering him to accept conveyance of the donation; the corresponding
declarations of value, one for the donation and the other for its acceptance, for the
purposes of levying stamp duty. Taken together, these are the requirements of
                                                                                       8
                                                                              HH 67-2011
                                                                             HC 3078/07
standard conveyancing practice and procedure. See Jones: The Law and Practice of
Conveyancing in South Africa at pp. 329-330. Obviously, all of the requisite
instruments must be duly signed by the relevant parties or their authorised agents.
       In the instant case, the plaintiff and the 4 th defendant did not, either jointly or
severally, donate their full or undivided half share in the property. The ostensible
donation is invalid and/or fraudulent for the reasons that I have already stated.
Therefore, the unlawful transfer of title to the 2 nd and 3rd defendants cannot stand. And
the same applies to the subsequent transfer of defective title from the 2 nd and 3rd
defendants to the 1st defendant. This is so whether or not the 1st defendant’s
representative was aware of the original defects. Even if she were an innocent or bona
fide purchaser and transferee (which she was not), this does not avail her as a defence
against the plaintiff’s claim for vindication. See Silberberg: The Law of Property
(1975) at pp. 148-152.
       It is trite that registration is the only legally recognised means of obtaining and
recording title to immovable property. On this basis, it is theoretically possible to
postulate a tacit or implied warranty of indefeasibility or unimpeachability of
registered title. See Miller: The Acquisition and Protection of Ownership at p. 173.
However, it seems to me that the benefit of this theory cannot possibly avail the
defendants in the present circumstances, where transfer of title has been invalidly or
fraudulently procured.
       It is further submitted for the defendants that the transfers in casu cannot be
cancelled because the 4th defendant has been paid for her half share and is not seeking
such cancellation. In my view, this argument cannot per se detract from the
voidability of the first transfer of title. Any right or claim that the other defendants
may have as against the 4th defendant is a separate matter which is not directly
pertinent to the present proceedings. Obviously and logically, it would entail the 4 th
defendant being required either to compensate for the moneys she received in 2006 or
to transfer her half share in the property, in compliance with the requisite
conveyancing procedures and formalities.
       In the premises, the plaintiff is entitled to the original unamended relief that he
sought in casu. Section 8 of the Deeds Registries Act [Chapter 20:05] enables the
cancellation of a deed of grant or deed of transfer, but only pursuant to an order of the
High Court. Upon such cancellation, the deed under which the property was
previously held is then revived to the extent of such cancellation. Thereafter, the
                                                                                    9
                                                                           HH 67-2011
                                                                          HC 3078/07
Registrar is enjoined to make the appropriate endorsements on the relevant deeds and
entries in the registers.
    Incidentally, I think it necessary for the Registrar to transmit a copy of this
judgment to the Officer-in-Charge at Harare Central Police Station for the purpose of
assisting the criminal investigations in CR 283/11/2006. As is evident from the
foregoing, it is necessary to investigate not only the conduct of the 1 st, 2nd and 3rd
defendants but also that of the conveyancer, Christopher Chigwanda. The Registrar is
directed to proceed accordingly.

    In the result, it is declared that:
    (i)     The transfer of Stand No. 4795 Salisbury Township of Salisbury Township
            Lands (also known as No. 1 Milner Road, Braeside, Harare) to the 2 nd and
            3rd respondents by Deed of Transfer No. 9236/2005 is null and void;
    (ii)    The sale and subsequent transfer of the aforesaid Stand to the 1 st
            respondent by Deed of Transfer No. 7424/2006 are null and void.

    Furthermore, it is ordered that:
    (i)     Deed of Transfer No. 9236/2005 and Deed of Transfer No. 7424/2006 be
            and are hereby cancelled;
    (ii)    Deed of Transfer No. 1420/81 be and is hereby revived;
    (iii)   The 1st, 2nd and 3rd defendants shall pay the costs of suit jointly and
            severally, the one paying the others to be absolved.




Granger & Harvey, plaintiff’s legal practitioners (in forma pauperis)
Sinyoro & Partners, 1st defendant’s legal practitioners
Debwe & Partners, 2nd and 3rd defendants’ legal practitioners