Innocent Paradzai Makwiramiti v Sheriff for Zimbabwe & 5 Ors

### Preamble
Judgment No. SC 145/20
1
Civil Appeal No.SC 557/17
REPORTABLE
(136)
---------


REPORTABLE	(136)

INNOCENT     PARADZAI     MAKWIRAMITI

v

SHERIFF     FOR     ZIMBABWE     (2)     SOLOMON     SIGAUKE	    (3)      FANUEL     MADYIRAPANZE     (4)     PINIEL     MATIZANADZO     (5)     REGISTRAR     OF     DEEDS     N.O     (6)     KENNETH     MAVHUNGA

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MATHONSI JA & KUDYA AJA

HARARE: SEPTEMBER 14, 2020

G. Madzoka, for the appellant.

R. J. Zhuwarara, for the second and third respondents.

MATHONSI JA:	This is an appeal against the whole judgment of the High Court handed down on 26 July 2017 which judgment disposed of two cases, namely HC 8193/14 and HC 8866/14, which had been consolidated.  The former was a summons action instituted by the second respondent for the eviction of the appellant from a property known as Stand 102 Logan Park Township of Lot 6A, Hatfield, Harare (the property).  The latter was an action by the appellant for the cancellation of both the sale and transfer of the property to the second respondent.

After hearing submissions from counsel this Court dismissed the appeal with costs and stated that the reasons for judgment would follow.  The following are the reasons.

THE FACTS

The third respondent obtained judgment against the appellant on 29 June 2011 and, in execution thereof, had the property then in the name of the appellant attached by the Sheriff for sale.  After initial hiccups were encountered in selling the property by public auction, it was eventually sold by private treaty to the second respondent.

The sale was confirmed by the Sheriff on 7 March 2012 after which the second respondent took transfer of the property on 24 July 2014.  The second respondent currently holds title to the property by Deed of Transfer number 3616/2014.  Despite such transfer of title to the second respondent, he has not tasted the fruits of ownership because the appellant has remained firmly in occupation of the property.

So tenacious has been the appellant that more than 9 years after judgment was taken against him which he has not liquidated, 8 years after the property was sold and more than 6 years after ownership was transferred to the second respondent, the appellant has continued in occupation.  He has fought eviction tooth and nail.

After taking transfer, the second respondent instituted summons action under case number HC 8193/14, for the eviction of the appellant and those claiming occupation through him.  The appellant resisted the action and counter sued with an action of his own, being HC 8866/14.

The appellant sought an order cancelling both the sale and transfer of the property.  He alleged fraud, mala fides and gross irregularities in the manner in which the sale was conducted.

As I have said, the two cases were consolidated to be heard and determined at the same time.  The second respondent having taken transfer of the property and therefore being a holder of real rights capable of being vindicated against the whole world, the action for eviction subordinated itself against the appellant’s challenge of the sale and transfer.  A resolution by the court a quo of the appellant’s challenge whichever way also resolved the actio rei vindicatio.

At the trial, the appellant complained about a lot of things, most of which are not material in the resolution of this appeal.  He alleged that the default judgment taken against him was entered in error in that the debt owed to the judgment creditor was not due by him alone even though he had unsuccessfully tried to have it rescinded.  The appellant contended that the sale of the property by private treaty was done without his consent even though it was common cause that his legal practitioner had consented to the sale on his behalf.

The appellant also sought to challenge the locus standi of his legal practitioner to represent him in proceedings leading to the sale and confirmation thereof by reason he, either did not have the mandate to do so, or suffered from some mental incapacity rendering him unfit to practice law.  He also asserted that the property had been sold at an unreasonably low price.

Be that as it may, in light of the sale not only having been confirmed in terms of the rules of court but transfer also having taken place, the case turned solely on the appellant’s assertion that a fraud was perpetrated.  In that regard, the appellant could only locate the alleged fraud in the letter of the Sheriff in which the sale agreement with the second respondent was endorsed.

The appellant’s case was that, because the said letter contained three different dates, it was evidence of either fraud or collusion between the Sheriff and the purchaser.  It showed that the purchaser was either fraudulent or complicit in an unlawful sale.  For that reason the sale should be set aside and transfer reversed.

In view of its centrality in the determination of this appeal the Sheriff’s letter to

the parties dated 26 January 2012 is reproduced below:

“RE: FANUEL MADYIRAPADZE V INNOCENT MAKWIRAMITI AND ANOTHER

I refer to the above sale by private treaty and advise that on 7/03/12 the Sheriff declared the highest bidder Solomon Sigauke to be the purchaser in the sum of USD 55 000.00.

If no objections are made in writing to the Sheriff within 15 days from the date the highest bidder was declared to be the purchaser in terms of Rule 356 or the date of the sale in terms of 358 (sic) of the High Court Rules, 1971 the Sheriff will confirm the sale.

Copies of any objection made in terms of the above paragraph should be served without delay on all interested parties.  Written notice in opposition from interested parties should in turn be lodged with the Sheriff within 10 days of being served with the written request.

Yours faithfully

M. Madega

For: SHERIFF.”

The appellant of course objected to the sale in response to that letter and the objection was not successful.  He took the view that because that letter contains the Sheriff’s date-stamp of 6 March 2012 and indicates that the declaration of the second respondent as the highest bidder was on 7 March 2012 while the letter itself was purportedly written on 26 January 2012, long before the sale, this was evidence of fraud.

It is significant that the Sheriff testified at the trial and explained the anomalous situation posed by the conflicting dates.  In summary his evidence was to the effect that his office uses a template when generating such letters.  Whoever typed the letter may have overlooked changing the date from 26 January 2012 to the relevant date when the letter was printed.

The Sheriff also explained that, while the letter was despatched on 7 March 2012, the date of the declaration of the highest bidder, an officer charged with the responsibility of appending the date-stamp, may have forgotten to change the previous day’s date on the stamp.  The court a quo accepted the explanation given by the Sheriff finding that the errors in dates “were not indicative of any fraud.”

The court a quo found that the appellant had failed to establish any fraud, bad faith or any knowledge of prior irregularities on the part of the second respondent, which are the requirements for the setting aside of a sale in execution in circumstances where the property has been transferred to the purchaser.  In awarding costs against the appellant on the punitive scale, the court a quo took into account the “several court applications he had made to upset the conclusion of the transaction.”  He had not prosecuted them and had even withdrawn some thereby causing delay in the payment of the purchase price and finalisation of the matter.

The rejection of the appellant’s claim meant the success of the second respondent’s eviction claim.  The court a quo ordered the appellant’s eviction together with those claiming occupation through him.  The appellant was dissatisfied and noted the present appeal on a host of grounds.

GROUNDS OF APPEAL

I mention in passing that the appellant initially based the appeal on seven grounds.  Most of those grounds, the contests of which are no longer relevant in the determination of the appeal, infringed upon r 44 of the Supreme Court Rules, 2018.  They were not clear and concise and susceptible to being struck out.

Mr Madzoka, who appeared for the appellant, abandoned most of the grounds of appeal.  The remaining grounds speak to very narrow issues indeed.  They are basically that, the court a quo erred in failing to find irregularities or mala fides on the part of both the Sheriff and the second respondent in the way the sale was conducted; the court a quo erred in finding both the Sheriff and the second respondent innocent; the court a quo misdirected itself in finding that the appellant had not established the requirements for the setting aside of a sale after transfer and erred in awarding punitive costs against the appellant.

ISSUES FOR DETERMINATION

From the remaining grounds of appeal, the issues to be determined are:

Whether the court a quo erred in dismissing the claim for the setting aside of the sale in execution; and

Whether the court a quo erred in awarding costs on the punitive scale.

WHETHER THE COURT A QUO ERRED IN DISMISSING THE CLAIM

In his heads of argument, Mr Madzoka for the appellant motivated the appeal essentially only on the basis of the conflicting dates on the Sheriff’s letter quoted above.  He submitted that the letter constituted irrefutable evidence of collusion between the Sheriff and the second respondent.  This is because the letter in question sought to bring the second respondent into the transaction before the sale of the property. Mr Madzoka further submitted that as the declaration of the highest bidder already existed before the sale was conducted, this was evidence the sale was mala fide.

The position has long been settled in this jurisdiction that when a sale of an immovable property in execution has not only been properly confirmed by the Sheriff but transfer effected to the purchaser against payment of the purchase price, a claim to set aside the transfer must strictly conform with the principles of the common law.  See Mapedzamombe v Commercial Bank of Zimbabwe & Anor 1996 (1) ZLR 257 (S) at 260 C – E.

Under the common law, immovable property sold by judicial decree and transfer effected, cannot be impeached except, where an allegation of bad faith, knowledge of prior irregularities in the sale by execution or an allegation of fraud has been made and proved.  There is a reason why this is so and it is steeped in public policy considerations.  To begin with, it is the policy of the law that sales by judicial decree should not be undermined by ill-defined and fanciful allegations of impropriety.

In addition to that, our law attaches a lot of importance to the process of land registration.  Registration of title at the Deeds Registry conveys real rights to the title holder exercisable against the world at large.  Once transfer has been registered, the transaction should be virtually unassailable in order to protect the title holder.  It is only where fault can be attributed to the title holder that transfer is impeached. See Mutize v FMC Financial Services (Private) Limited & Others SC 112/20.

In the present case, the appellant relied on the discrepancy in the dates appearing on the letter declaring the highest bidder to find fault on the part of the second respondent.  The latter is not the author of that letter.  As such, the mistakes of the author cannot possibly be visited upon the second respondent.  In any event, the trial court made credibility findings in respect of the Sheriff’s testimony on the discrepancies.  It believed the explanation given by the Sheriff even though the second respondent could not be punished for the sins of the Sheriff.

It has not been shown that the findings of the court a quo on credibility which are purely factual, were irrational.  An appellate court will not interfere with a decision of a lower court based purely on a finding of fact unless it is satisfied that the finding is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his or her mind to the issue could have arrived at such a conclusion.  Simply put, the decision must be irrational.  See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670

C – D.

There is no basis for interference.  Even Mr Madzoka’s belated attempt to rely on the delay in the payment of the purchase price could not help the appellant.  This is because the court a quo again made a factual finding that it is the appellant who caused the delay by his obstructive and endless applications which were not prosecuted.  No fault was attached to the second respondent.

WHETHER THE COURT A QUO ERRED IN AWARDING COSTS ON A PUNITIVE SCALE

Mr Madzoka submitted that the appellant’s attack on the scale of costs contained in ground of appeal number seven was dependant on the success of the other grounds of appeal.  In fact he did not motivate that ground beyond that.  The other grounds did not find favour with the court.  It becomes unnecessary for me to relate to the award of costs on the higher scale, itself an exercise falling squarely within the discretion of the court a quo.

It is for these reasons that we dismissed the appeal with costs.

GWAUNZA DCJ:			I agree

KUDYA AJA:				I agree

Muringi & Kamdefwere, appellant’s legal practitioners

Kwenda and Chagwiza, 2nd & 3rd respondent’s legal practitioners