Tendai Masamba v Phenomenal Mahamba & Felistas Hove (In her capacity as the Executrix Dative of the Estate Late Cleopas Hove) & 4 Ors

### Preamble
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HCCO 43/23
HCC 187/23
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TENDAI MASAMBA

versus

PHENOMENAL MAHAMBA

and

FELISTAS HOVE (In her capacity as the Executrix Dative of the Estate Late Cleopas Hove)

and

MACKINTOSH KUDAKWASHE MURAHWE

and

SHERIFF OF ZIMBABWE

and

BEVANDA GWARA

and

REGISTRAR OF DEEDS, NO

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI, 30 August, 4 &  12 September 2023

Urgent chamber application

M. Mutsvairo, for the applicant

A. Taruvinga, for the 3rd respondent

No appearance, for the 1st, 2nd, 4th and 5th respondents

M. Mapepa, observing

MUZOFA J:  This matter was placed before me as an urgent chamber application. The applicant seeks the following provisional order.

TERMS OF THE INTERIM RELIEF GRANTED

That pending the final determination of this application, applicant is granted the following interim relief;

The 4th respondent or any of his authorised officers, assignees or agents, be and are hereby ordered to suspend the sale in execution of stand No 174 Banket Township set for 8 September 2023.

Costs of this application shall be determined in the application for consolidation case no. HC 6659/20.

TERMS OF THE FINAL ORDER SOUGHT

The Provisional Order granted in this matter be and is hereby confirmed in the following terms:

The sale in execution of immovable property called Stand 174 Banket Township measuring 3135 square metres in pursuance of the judgment under case number HH5400/20 be and is hereby stayed pending the final determination of the action for a declaratur under case number HC185/23.

Costs of suit be borne by the respondents if they oppose this application jointly and severally and in solidium, the one paying the others to be absolved.

SERVICE OF ORDER

Service of this Urgent Chamber application and Provisional Order shall be done by applicant’s legal practitioners.

Since the date for the sale in execution was imminent, at the end of the hearing I issued an interim order to suspend the sale in execution pending the decision in this matter.

The formulation of the provisional order is not in accordance with Form 26A as provided in R60 (11) (b) of the High Rules ,2021. It may be that counsel did not pay particular attention to the format of the provisional order and l do not assume it to be a deliberate infraction. The wording of the final order which must actually appear first is not as provided for. Legal Practitioners must comply with the Rules. That as it maybe, this is about format and has nothing to do with the substance. Courts endeavour to deal with the substance in order to resolve real disputes between the parties.

The applicant’s case can be summarised as follows.  The root of the application revolves around a property known as stand 174 Banket Township ‘the property’.  There is a dispute pending before this honourable court pertaining to the sale of that property under case number HC 185/23.

According to the applicant, he purchased the property from the 2nd respondent in 2018. He did not receive title for some reason. Despite having sold the property to the applicant, the 2nd respondent also sold the property to the 1st respondent .Title has passed to the 1st respondent.

Meanwhile, the 1st respondent obtained a loan from the 3rd respondent and used the property as collateral. Having failed to meet her obligations, the property was attached and is subject to a sale in execution. It is on that basis that the applicant seeks on an urgent basis the suspension of the sale in execution pending, in the final order determination of the parties’ rights in the property.

Surprisingly the 1st respondent who is the supposed holder of title and required to vindicate the 3rd respondent’s claim has not opposed the application. Naturally the 2nd respondent who is the instigator of the problems did not oppose the application. However, it would appear that her existence is now questionable. There is a high likelihood that she is now deceased.

The 3rd respondent strenuously opposed the application. Initially four preliminary points were taken. Our courts have bemoaned this culture that has permeated the legal fraternity to raise preliminary points on any issue even the slightest and maybe irrelevant issues just to delay the disposal of the matter on the merits. It is settled that a preliminary point is one that is capable of disposing of the matter without having to resort to the merits of the matter. In so disposing of the matter the preliminary point must be supported by the facts or the law not just to raise it without any legal of factual foundational basis as in this case.

The 1st and 4th preliminary points on locus standi and availability of an alternative remedy were correctly abandoned when the court sought clarifications from the 3rd respondent’s legal practitioner. Surely to imagine that the applicant has no locus standi in such a matter where he alleges to have bought the property flies in the face of proper legal principles.

The 3rd respondent also took the point that the matter lacks urgency. I dismissed the point for the following reasons. He suspects some collusion by the applicant, 1st and 2nd respondents to frustrate the scheduled sale to recover the amounts owed to him. He avers that this is self-made urgency. The applicant must have become aware of the initial impending sale scheduled for 8 August earlier than stated because an attempt to attach movable property was done on the 28th of February 2023 by the 4th respondent. The property is now occupied by a tenant. The tenant must have informed the applicant.

The averment is obviously based on speculation that the tenant must have advised the applicant. It would be the normal thing to do for the tenant to advise the applicant, but there was nothing showing that the tenant advised the applicant in this case. A finding on speculation is not sustainable. In any event by the 28th of February 2023 there was no pending sale in execution, so there was nothing to rush to court to suspend.

The second issue on urgency is that the applicant became aware of the 8 August sale and did nothing about it until 20 days or so lapsed. Indeed, for a matter to be deemed urgent, among the considerations the applicant must treat the matter as urgent by taking action as soon as the need to act arises. Two issues stand out for consideration on urgency time and harm. The applicant must demonstrate he is likely to suffer irreparable harm and that he acted timeously to avert the harm. Where there is a delay in acting timeously, there must be a reasonable explanation for the delay. What defines timeous action depends on the circumstances of the matter no one size fit all definition can be made. See Zimbabwe Anti-Corruption Commission v Siney Uhse HH534/15 ; Tonbridge Assets Limited And Ors v Livera Trading (Private) Limited And Ors HH574/16.

In this case it is not in dispute that the applicant did not just sit on his laurels. As soon as he got wind of the sale, he sought to find out what transpired until he had what he believed are the correct facts. It is necessary that a litigant comes to court with a proper set of facts than to rush to court with half backed and maybe incorrect facts. The delay in approaching the court cannot be said to be inordinate. The 20 or so days delay was satisfactorily explained. That is why the applicant could give a concise of what could have happened supported by documentary proof. It is for those reasons that l dismissed the point taken on urgency.

I also dismissed the preliminary point that the certificate of urgency was defective. The certificate of urgency set out when the need to act arose and the basis of the urgency. The certificate substantially captured the issues to assist the court on the issue of urgency as envisaged under r60 (6) of the High Court Rules, 2021

On the merits, first l must lay out the requirements for an interim interdict. These requirements are now settled and citation of the locus classicus Setlogelo v Setlogelo 1914 AD 221 should suffice. An applicant must show a prima facie right having been infringed, or about to be infringed, even if it is open to some doubt; an apprehension of an irreparable harm if the interim relief is not granted; a balance of convenience favouring the granting of the relief;  and the absence of any other satisfactory remedy. The factors are considered cumulatively and objectively based of the facts and the circumstances.

To establish the prima facie right the applicant attached a paper trail that speaks to what transpired. He attached the Deed of Grant in favour of the deceased late Cleopas Hove, the Letters of Administration showing that the 2nd respondent was lawfully appointed the executrix dative of the estate late Cleopas Hove and a consent to sale the property by the Master of the High Court. The consent is dated 17 July 2018.This paper work shows that the 2nd respondent was authorised to sale the property.

An agreement of sale dated the 4th of September 2018 was also attached .It seems the purchase price was paid on the same day as reflected on the acknowledgement of receipt of the purchase price by the 2nd respondent attached which  was dated the same date the 4th of September 2018.It was explained that the parties agreed to delay transfer until the applicant had funds thus the  2nd respondent handed over the original Deed to the applicant  as security that the  property would not be sold to any other person.

Equipped with that the applicant then proceeded to lease the property. A lease agreement signed on the 4th of January 2019 between the applicant and a tenant Little Angels Preparatory School was also attached. In my view the lease agreement showed that the applicant was the owner of the property and had commenced enjoying the fruits of the property.

In his investigations after he learnt of the intended sale, the applicant said he discovered that the second respondent then subsequently applied for a replacement Deed of Grant claiming that the original was lost yet she had handed it over to the applicant. He also discovered that the process to apply for the replacement of the Deed was done by 3rd respondent’s legal practitioners. So in a way he also suspects some collusion between the 1st and 2nd respondent and the legal practitioner facilitating the sham sale.

Despite the seemingly convincing paper trail, the 3rd respondent sought to challenge the authenticity of the sale. He believes it’s a sham sale meant to frustrate the imminent sale in execution. The opposing affidavit highlighted some of the alleged pointers that this was a sham agreement. The opposing affidavit seem to blow hot and cold  from alleging that the 2nd respondent is deceased therefore the application is incompetent yet in another breath sets out facts that indicate that she is still alive. For instance, it alleges that the 1st ,2nd respondent together with the applicant colluded to frustrate the impending sale. The initial sale was scheduled for the of August 2023. So by then she was alive.

That there is some collusion or some shenanigans in this matter is beyond doubt. However, the parties that were or are involved in the shenanigans are yet to be known. They can only be unmasked by way of evidence. On the 1st day of hearing the 1st and 2nd respondent did not appear. The first respondent’s husband who happens to be the 2nd respondent’s brother appeared with an excuse why the 1st respondent could not attend court. Fortunately, the parties in attendance were not ready to proceed so the matter was postponed. The brother who was not under oath indicated that the 2nd respondent had passed on, no dates were given. The brother promised to assist the applicant with proof which we were advised on the date of hearing did not materialise. The difficulty that arises about the supposed death of the 2nd respondent is that there was no death certificate or at least a burial order to confirm the death. The issue remains hanging. For the purposes of this litigation no specific order against her is required. Therefore, that the order sought is incompetent is not sustainable. With or without the 2nd respondent the order is enforceable.

I revert to the factors highlighted as showing some collusion between the applicant, 1st and 2nd respondents. The issues raised are a matter of evidence. That there was no evidence that the purchase price was paid and why the applicant did not take transfer for that long  a period can only be addressed in evidence.

In paragraph 19 of the opposing affidavit the 3rd respondent challenges the authenticity of the lease agreement as nothing was attached to show that the applicant received rentals from the tenant. At this stage in my view, the agreement of sale is adequate proof as to the parties to the contract. The 3rd respondent did not place before the court evidence contradicting the lease agreement. The lessee did not disown the contract.

The agreement of sale coupled with the lease agreement, constitute a prima facie right. That there is a high likelihood of irreparable harm is clear. If the property is sold in execution it may be difficult to reverse the sale.

The 3rd respondent’s difficulty is understandable because the 1st and 2nd respondents decided not to oppose the application. The non-opposition can either be evidence of collusion or a simple disdain knowing that either way they will no longer benefit from the property. As matters stand the non-opposition by the 1st respondent means all the averments by the applicant that the latter agreement was contrived is not opposed. So despite holding title, the 1st respondent does not oppose that the sale agreement between her and the 2nd respondent was a sham giving way to the applicant’s agreement as authentic.

The established property law principles are that real rights are enforceable against the world at large. In The Sheriff for Zimbabwe v Hersel (Pvt) Limited t/a Exim Freight & Anor HH 875/15 the court restated the legal concepts in respect of ownership of immovable property and real rights that registration of title in the deeds office is a transfer of real rights. These real rights can be enforced against the whole world. It is not in dispute that the 1st respondent is now the holder of title in the property. She has real rights. In contradistinction the applicant has established personal rights over the property. Personal rights are relative in the sense that they are enforceable against the other party to the obligation.

This is a double sale situation. The 3rd respondent submitted through counsel that the applicant has an alternative remedy to claim damages from the 2nd respondent since he holds a personal right which is inferior to the 1st respondent’s real rights. The challenge with the submission is that, it is settled that title in a property is not absolute, it can be challenged. In this case the strange trajectory of the sale between the 2nd and 1st respondent may taint the 1st respondent’s title. It is not in dispute that the 1st and 2nd respondent are related. The 2nd respondent was an executrix dative to the estate of the 1st respondent’s brother in law’s estate. In other words the 1st respondent’s husband is a brother to both the 2nd respondent and the late Cleopas Hove. Generally the administration of deceased estates is a family affair. There is a high likelihood that the sale of the property to the applicant was known by the 1st respondent yet she purported to purchase the property from the 2nd respondent. My comments are really based on inferences subject to evidence in the determination of the parties’ rights.

On the other hand the 3rd respondent raised a very persuasive point that the applicant has failed to explain why he did not take title for almost 4years. In his letter to the 3rd respondent’s legal practitioners the applicant said the papers could not be processed because the 2nd respondent had passed on. Before this court the applicant indicated that he did not have adequate funds to transact. This prevarication was not adequately explained before the court. However, l am persuaded that Courts must endeavour to deliver simple justice between litigants. In that regard, it is my firm view that, the alternative remedy suggested may not adequately compensate the applicant considering the circumstances of this case. The matter must be properly ventilated to establish the rightful owner of the property.

The balance of convenience is in the applicant’s favour. The balance of convenience was defined in Tornbridge Assets Limited and Cut Rag Processors (Private) Limited v Livera Trading (Private)Limited and 3 Others HH 122-17 at page 7 as follows:-

“The balance of convenience is determined by weighing the prejudice to the applicants if the interim relief is refused against the prejudice to the respondent if it is granted.”

My finding is that in the event that the sale in execution takes place and title passes to an innocent third party it would be difficult to recover. The applicant is likely to suffer irreparable harm. On the other hand the 3rd respondent’s situation is more of delayed gratification until the parties’ rights are determined. He is only inconvenienced by the delay and if the 1st respondent is ruled to be the rightful owner then the sale can still proceed.

Accordingly, the provisional order is granted in  the following terms .

TERMS OF THE FINAL RELIEF SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

The sale in execution of immovable property called Stand 174 Banket Township measuring 3135 square metres in pursuance of the judgement under Case No. HH5400/20 be and is hereby stayed pending the final determination of the action for a declaratur under Case No. HC185/23.

Costs of suit borne by the Respondents if they oppose this application jointly and severally and in solidium, the one paying the others be absolved.

INTERIM RELIEF GRANTED

Pending determination of this matter, Applicant is granted the following relief:-

The 4th respondent or any of his authorized officers, assignees or agents, be and hereby ordered to suspend the sale in execution of Stands No. 174 Banket Township[ set for 8 September 2023.

Mushonga, Mutsvairo and Associates, applicant’s legal practitioners

Mutuso Taruvinga & Mhiribidi, 3rd respondent’s legal practitioners