Norest Nyamakope v Yvonne Nyaradzo Makwiyanah and Registrar of Deeds

### Preamble
1
HH 770-18
HC 9475/16
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NOREST NYAMAKOPE

versus

YVONNE NYARADZO MAKWIYANAH

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 13 September 2018 & 21 November 2018

Stated Case

Ms Chiguvare, for the applicant

B Mutiro, for the respondent

HUNGWE J:	The plaintiff issued summons against the defendants seeking an order declaring him the sole holder of the rights, title and interest in a certain piece of land situate in the district of Salisbury called Stand 757 Kambuzuma Township measuring 255 square metres held under Deed of Transfer No 1251/2012 also known as Stand No 757 Section 3 Kambuzuma, Harare. He also seeks an order that second defendant be ordered to, within three days of service of the order of court upon him, rectify the said Deed of Transfer No. 1251/2012 by deleting the first defendant’s name as registered co-owner of the said piece of land. First defendant entered an appearance to defend. Second defendant did not. Pleadings were exchanged and the parties appeared before me at the pre-trial conference stage.

By then both parties had effected discovery. They had prepared their bundles of documents in preparation for trial. It was clear that first defendant opposed the declaration of sole ownership on the basis that she had contributed towards the purchase price of the house and that she was a registered co-owner of the immovable property. She claimed that she was entitled to 75% of the value of the property which applicant ought to pay before he assumed sole ownership. The parties agreed that it would resolve the matter if first respondent was asked to furnish some form of proof of her claim of a contribution towards the purchase price. The pre-trial conference was postponed to allow her to secure something to support her claim. She could not. At the resumed hearing the parties agreed that the matter proceeded as a stated case on the basis of the papers filed in the pleadings and the bundle of documents. The statement of agreed facts upon which the case was stated did not advert to the fact that plaintiff produced proof that he had paid the purchase price of the immovable property. First defendant, on the other hand relied, for her claim on the property, on the fact of registration only. Although she had promised to produce evidence of her contribution towards the purchase of the immovable property, she never did so. Her claim regarding her contribution was not proven and the parties agreed that the matter proceeded on the basis that her claim to an interest in the property arose from being a registered co-owner of the property.

The case was therefore stated as follows: who between the two should be declared the sole owner of the immovable property?

Facts

The agreed facts are as follows: The applicant and respondent met at a shopping centre in 2012 and fell in love. Both were married to someone else. In contemplation of their own happier marriage plaintiff paid for their future home in Kambuzumba. The immovable property was registered in their joint names. Before they moved in together, the woman grew cold feet and announced that she could not go ahead with their original plan. The affair crumbled before it blossomed. He approached this Court for an order declaring him sole owner of all rights, title and interest in the immovable property and that the Deeds Registrar expunges first respondent’s name from the Deed of Transfer of the same. First respondent opposes the grant of such an order. She argues that her rights flow from the act of registration and as such she is entitled to be paid half the value of the property before he can assume full ownership.

Legal consequence of the act of registration

Ownership of immovable property can only pass by registration of transfer into the name of the new owner. However, an act of registration is only but prima facie proof that one is the owner of the property. Therefore, there is a prima facie proof that first defendant is a co-owner of the said property. However, this is a rebuttable presumption. If the plaintiff can show that first defendant obtained ownership unlawfully or that she has failed to meet certain conditions which entitle her to continue as a co-owner, the ownership can be revoked.

The plaintiff wants first defendant’s right of co-ownership revoked. He advances three arguments in support of his claim. The first argument is that the romantic relationship between him and first defendant has broken down. It is important to note that the nature of their relationship was neither a marriage nor a civil union for they never lived together. Theirs was what other people could classify as dating, where the couple is staying apart, living different lives but hoping to eventually get married to each other.  The second argument advanced by the plaintiff is that the first defendant did not contribute anything towards the acquisition of the property. Here, the plaintiff is referring to the undisputed fact that the first defendant did not pay anything towards the acquisition of the property. The question is whether these would be valid arguments to revoke first defendant’s right of co-ownership.

The question whether the first defendant’s right of co-ownership can be revoked turns on the analysis of the nature of the legal instrument through which the plaintiff ceded or transferred a portion of his rights of ownership to first defendant. The facts do not expressly indicate the type of an agreement entered into by the first defendant and the plaintiff. Put differently, the facts to not clearly indicate the legal instrument by which the plaintiff ceded or transferred part of his ownership rights to the defendant. However, one can infer that the legal instrument was either a contractual agreement or the rights were ceded by the plaintiff as a gift to the first defendant. Thus, in order to determine whether the presumption of co-ownership can be rebutted or not, the Court has to inquire into whether there was any valid agreement of donation or contractual agreement between the two, which saw the plaintiff ceding and or transferring a portion of his rights to the first defendant.

Was there a valid agreement of donation between the two?

This matter may be disposed by inquiring into whether the first defendant received the right of co-ownership as a gift or donation from the plaintiff and if so, whether the plaintiff has a valid ground for revoking the gift. In Potte v Rand Township Register 1945 AD 277 at 290, a gift or donation was defined as:

“an agreement which has been induced by pure benevolence or sheer liberality whereby a person under no legal obligation undertakes to give something to another person, called the donee, with the intention of enriching the donee, in return for which the donor receives no consideration nor expects any further advantage ".[My own emphasis]

The above definition was adopted without variation in the South African case of Peter Fenton v Paul Neil Fenton at para 3. A similar definition was proffered in another South African case of J. P. M. K. v R. P where at para 10 the Court said:

“A true donation is an agreement whereby the donor, motivated by pure liberality, undertakes to give to a donee a gift without receiving any advantage in return for it, in other words, unconditionally. The onus is on the party alleging a donation to prove that the motive of the donor to the agreement was one of “pure liberality.”

If the Court strictly applies the above definition, then the rights ceded to the first defendant cannot qualify as a true gift or donation because the facts show that the plaintiff ceded those rights with a clear and substantial expectation of marriage with the first defendant. Thus, the applicant did not unconditionally cede a portion of his rights over the property.

Alternatively, it could be argued that the rights were given up as a conditional gift. It seems (from the facts) that there was an implied condition that the two would live in the house not just as co-owners but as husband and wife.  This has not happened because first defendant grew cold feet and decided not to move in with the plaintiff. By so doing, she did not meet the condition against which the gift was given and thus the gift is revocable. This reasoning is well supported in Vogler v Matzick (1988), 33 B.C.L.R. (2d) 82 (C.A.) at 84-85, where the court said:

“I add this comment about gifts made “in contemplation of marriage”. Any gift may be made conditional, or subject to revocation. A term to that effect may be expressed or it may be implied. If it is implied, the factual matrix that gives rise to the implication must make the implication obvious, in accordance with the requirements of the officious bystander test. Where a household item is given by one prospective marriage partner to another, at a time when they are engaged but not sharing a household, the implication of a term that the gift was intended to be revocable if the marriage did not take place and the household never came into being, without any change of heart on the part of the donor, would be straightforward. As a form of shorthand, such a gift could be said to be “in contemplation of marriage”. But if the household is already in being, and if, as in this case, the donor may have had some motive for making the gift other than, or as well as, a prospective marriage, then the implication of a term that the gift is intended to be revocable if the marriage does not take place becomes much more problematical. A gift made “in contemplation of marriage” is not merely a gift between an engaged couple, with a marriage clearly in the offing. Nor is it a gift for use by both parties in a joint household. At the very least it requires that the gift would not have been made but for the impending marriage itself.”

At p 80 of the “Treatise on the Law Relating to Gifts and Advancements (1893)” W. W. Thornton said as follows in support of the above reasoning:

“If a person making his addresses in view of marriage, on reasonable expectation of success gives presents, and the lady deceive him afterward, the presents must be returned, or the value of them paid; but where made to introduce a person only to a woman's acquaintance, he is looked upon in the light of an adventurer, and, if he lose by the attempt, must take it for his pains, especially where there is a disproportion between the lady's fortune and his own.”

The above suggests that a distinction must be made between gifts given in order to introduce a person to another person's acquaintance and gifts that are given upon reasonable expectation of marriage. The facts show that plaintiff ceded a portion of his rights of ownership not as a way of introducing himself to the applicant’s acquaintance but in anticipation of a marriage. Thus the rights were ceded on condition that the two would eventually get married to each other. The first defendant has refused to marry the plaintiff and therefore, the rights of co-ownership can be revoked if the plaintiff so wishes.

The position in the United States jurisprudence is also supportive of the above and it has been summarised follows:

“Under general principles in the law of gifts, a valid inter vivos gift cannot be revoked and recovered. In a consideration of the cases, it is necessary to distinguish between gifts given merely to advance the donor in the acquaintance of the donee and thereby gain her favor, and those in anticipation of or in contemplation of marriage. The former are held to be absolute, the donor being considered "only in the light of an adventurer . . . if he will run risks and loses by the attempt, he must take it for his pains."  Where the gift made in contemplation of marriage, different results have been reached in certain general situations. (I) Where the donee has breached the contract to marry the donor is universally allowed to recover [the gift] either on the theory of a pled or a conditional gift, the two terms often being used by the court simultaneously and interchangeably, or, in the reasoning of other courts, on a theory of consideration." ; (2) Where the donor has breached, or caused the breach by his own actions, recovery is generally denied on the ground that one cannot take advantage of his own wrongful acts.”

In a United States case of Meyer v Mitnick, a question arose as to whether an engagement ring was a gift or not. The Court held that an engagement ring is an implied conditional gift, which is only a completed gift upon marriage and if the engagement is terminated for whatever reason, the gift is not capable of being a completed gift and must be returned to the donor. This approach was upheld in South Africa in J. P. M. K. v R. P where the Court held as follows:

“The engagement ring was given to the respondent in this case in contemplation of a marriage and remained a conditional gift. Since the condition of marriage was not fulfilled, the ring ought to be returned to the donor, because it is no longer capable of becoming a completed gift.”

Although the case between the plaintiff and first defendant concerns an immovable property and not an engagement ring, the same principle should apply because it is a principle which governs circumstances under which conditional gifts can be revoked. If it were to be accepted that the plaintiff ceded a portion of his ownership rights to the first defendant as a conditional gift, the facts show that the gift was given on an implied condition that the two would get married to each other. The condition for which the gift was given was not fulfilled because first defendant developed cold feet. The gift therefore falls revocable.

Was there a valid contractual agreement?

Another way of disposing this matter is to consider whether the instrument by means of which rights were transferred to the first defendant created a valid contractual agreement. However, the facts do not seem to suggest the possibility of a contract of sale because there was no consideration received from the first defendant when the rights were ceded to her by the plaintiff. It may have been some kind of a verbal contractual agreement.

The plaintiff argues that there is one requirement which may have not been complied with. It is the requirement relating to consideration, which entails that the party who accepted the offer must pay some consideration. If the first defendant did not pay any consideration (as claimed by plaintiff), does that mean there was no valid contractual agreement between the two?

In Zimbabwe, consideration is not part of the requirements for a valid contract. The doctrine of consideration was dropped from our law in 1919 through the landmark case of Conradie v Rossouw 1919 AD 279. Also see para 94 of the Constitutional Court of South Africa’s decision in Kwazulu-Natal Joint Liaison Committee v Member Of the Executive Council, Department Of Education, Kwazulu-Natal [2013] ZACC 10, which confirms beyond doubt that the effect of Conradie v Rossouw was to do away with consideration as a stand-alone requirement for a valid contract.

Contra bonis mores?

However, this Court also considered the marital status of both the plaintiff and the defendant when they entered into this contractual agreement. They were both married to someone else. As such, the question whether their agreement was contra bonis mores does arise.

When considering whether a contract is contra bonis mores or not, the Court ought to remember the following remarks by Smalberger JA in Sasfin (Pty) Ltd v Hendrik Johannes:

“One must be careful not to conclude that a contract is contrary to public policy merely because its terms (or some of them) offend one's individual sense of propriety and fairness. In the words of Lord Atkin in Fender v St John-Mildmay [1938] AC 1 at 12 'the doctrine should only be invoked in clear cases in which the harm to the public is substantially incontestable and does not depend upon the idiosyncratic inferences of a few judicial minds”

Christie and Bradfileld make the point that “the importance of marriage as an institution is naturally recognised by the law, and any contract which undermines this institution is therefore void”.  In Zimbabwe, both the law and culture attach enormous significance to marriage. Whilst there is nothing that would stop the plaintiff and first defendant to divorce from their marriages, they certainly could not enter into a contractual agreement which undermines their existing marriages. It is reasonably clear (from the facts) that the defendant ceded a portion of his ownership rights to the first defendant with the hope that or in preparation for an anticipated marriage with the her, and yet this transaction was carried out at a time when the plaintiff was married to someone else, and the first defendant was also married to someone else. The resources used to purchase the property do not exclusively belong to the plaintiff but also to the plaintiff’s wife with whom he was in a marriage at that time. It seems, on that basis, that the contractual agreement between plaintiff and first defendant was contra bonis mores. It was a contract concluded against public policy relating to protection of marriage.

In Holman v Johnson (1775) 1 Cowp at 341, Lord Mansfield said:

“No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa (i.e out of an evil cause), or the transgression of a positive law of this country, there the courts say he has no right to be assisted”.

The above would suggest that the applicant does not deserve protection because the basis upon which he ceded his rights to the defendant was contra bonis mores. However, the Court should depart from that position in the interests of justice and fairness, particularly when one considers that behind the applicant is a wife (and potentially children) who may have been prejudiced when the applicant ceded these rights to the defendant. The fact that the applicant’s wife is not a party to these proceedings does not means she does not exist.

The South African case of J. P. M. K v R. P (supra) is of persuasive value here. One of the questions in this case was whether the engagement ring should be returned to plaintiff given that the engagement between plaintiff and the defendant was void by virtue of it being contra bonis mores. In this case, plaintiff and defendant engaged at a time when both knew that defendant was married to someone else. The court held as follows:

“[16] Counsel for the applicant referred me to a decision of the Court of Appeals of Michigan where it was held that an engagement ring is an “impliedly conditional gift” which is only a completed gift upon marriage and if the engagement is terminated for whatever reason, the gift is not capable of being a completed gift and must be returned to the donor. That is with respect, a sensible approach.

[17] The engagement ring was given to the respondent in this case in contemplation of a marriage and remained a conditional gift. Since the condition of marriage was not fulfilled, the ring ought to be returned to the donor, because it is no longer capable of becoming a completed gift. This principle, in my view, also applies if the engagement is void ab initio by virtue of it being contra bonis mores.

[18] It strikes me as rather unfair in these particular circumstances that the respondent (donee) should benefit from the par delictum rule at the expense of the applicant, if both parties were “at fault” and the engagement was terminated by mutual consent. Why should the applicant alone be penalized? It makes no sense.”

In the matter before this Court, both plaintiff and first defendant were fully aware that they are both married to someone else and their verbal agreement which resulted in rights being ceded to the first defendant was contra bonis mores, in the sense that it undermined the existing marriages. It is therefore in the interests of justice and fairness that the Court reverses this contractual agreement and revoke the first defendant’s rights of co-ownership given that: (a) Both the plaintiff and the first defendant are at fault as they knew about their marital status at the time they entered into this verbal agreement to cede rights to the first defendant; (b) first defendant did not pay any consideration in exchange for the rights given to her by the plaintiff; and (c) plaintiff potentially prejudiced his wife and children when he ceded those rights to first defendant.

Consequently I make the following order:

That it be and is hereby declared that plaintiff is the sole owner of the rights, title and interests in certain piece of land situate in the District of Salisbury called Stand 757 Kambuzuma Township measuring 255square metres held under Deed of Transfer No. 1251/2012 also known as house No 757 Section 3 Kambuzuma, Harare.

Second Defendant be and is hereby ordered and directed to rectify Deed of Transfer No. 1251/2012 by deleting all reference to the First Defendant as a registered co-owner of a certain piece of land situate in the District of Salisbury called Stand 757 Kambuzuma Township measuring 255square metres held under Deed of Transfer No. 1251/2012 also known as house No 757 Section 3 Kambuzuma, Harare.

First defendant is to pay plaintiff’s costs.

Muvirimi Law Chambers, plaintiff’s legal practitioners

Rubaya & Chatambudza, 1st defendant’s legal practitioners