Johannes Mupanduki v Mathew Sirahan and Winnet Sirahan and The Registrar of Deeds

### Preamble
1
HH 180-2012
HC 5429/09
JOHANNES MUPANDUKI
versus
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JOHANNES MUPANDUKI
versus
MATHEW SIRAHAN
and
WINNET SIRAHAN
and
THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE
MTSHIYA J
HARARE 19 JANUARY 2012 AND 25 APRIL 2012

Civil application

S .R. Mutasa for the applicant
B. Chidenga, for the respondent

MTSHIYA J: On 30 June 2005 the third respondent registered, under Deed of Transfer Number 5859 2005, an undeveloped stand, being a certain piece of land situate in the District of Salisbury known as stand number 518 GoodHope Township of Lot 6 of GoodHope (the property), in the name of the applicant.

On 17 September 2009 the third respondent, allegedly without the knowledge of the applicant, again registered the property under Deed of Transfer number 3863 / 2009 in the names of the first and second defendants. This was after the first and second defendants had, through an agreement of sale signed on 5 September 2009, purchased the property, purportedly from the applicant for a price of US$11 0000-00. The agreement of sale was prepared and managed by Messrs Parkford Investments (Pvt) Ltd, trading as Parkford Property Consultancy. Messrs Mantsebo and Company Legal Practitioners attended to the transfer of the property from the applicant to the first and second respondents who, through a statement from their Mr Stewart Nyamushaya dated 9 November 2009 stated the following:


“3. On the 7th of September 2009, a gentleman whose name I do not remember but from Parkford Property Consultancy came with the complainant. They had with themselves an agreement of Sale signed by the complainant.

4. Later in the day Johannes Mupanduki came after he was called to attend for signing of the agreement of Sale, and for the payment of the purchase price.

5. I requested for the said Johannes Mupanduki’s identification particulars, which he duly produced. He also surrendered the original title deed in his name.

6. The agreement of Sale was duly signed and he received his purchase price which he duly signed for. He also signed a Power of Attorney and declarations to facilitate transfer into the complainant’s name.

7. I attended to the transfer of the stand in question into complainant’s name, since all the necessary documents to me were in order.”

On 29 October 2009 the third respondent explained the registration of the property in the names of the first and second respondent in the following manner:

“A copy of the application has been served upon me and I report as follows:-

1. That stand 518 Goodhope Township of Lot 6 of Goodhope is registered in the names of Mathew Sirahah and Winnet Sirahah. Under Deed of Transfer number 3663/2009.

2. That Deed of Transfer 3863/2009 is missing in our office.

3. That I only saw the details of it from a copy which is attached on this application. The transfer from Johannes Mupanduki to first and second defendant was done by Messrs Mantsebo and Company, who were given instruction to transfer the property by Johannes Mupanduki.

4. That when the documents were sign who visited our office, that he never sold his property. Someone stole his title deeds and national identity card and sold his property, without his knowledge.

5. I have no objection to the decision made by the Court.”

The complainant referred to in the statement of Nyamushaya is the first respondent. The matter had now been reported to the police following developments which I shall briefly narrate in the following paragraphs.

The applicant denies having sold or authorized the sale of the property as averred in Stewart Nyamushaya’s statement. It is common cause that at the time of the sale the applicant was in the United Kingdom. He only learnt of the sale from his parents who had custody of the Title Deeds to the property. The applicant’s position regarding the transfer of the property to the first and second respondents without his consent is spell-out in paragraphs 4-14 of his founding affidavit which, for the sake of charity, I quote in full here below:-

“4. I am the lawful owner of the an undeveloped residential Stand being a certain piece of land situate in the District of Salisbury called Stand 518 Good Hope Township of Lot 6 of Good Hope “the property”. This property was registered in my favour by the third respondent under Deed of Transfer Number 5958/2005 on 30 June 2005. I attach hereto as Annexure “A” hereto a copy of this Deed of Transfer.

5. However, without my knowledge or consent and in my absence from the country my property was wrongfully transferred in favour of the first and second respondents under Deed of Transfer Number 3863/2009 on 17 September 2009. Annexure “B” hereto refers. This came out when the person who wanted to buy my other residential Stand, in a similar fashion contacted my parents to verify the seller.

6. Upon being advised of this, I immediately returned to Zimbabwe from the United Kingdom where I am currently based to establish how my property was transferred without my knowledge, consent and for no value to me. I attach hereto as Annexure “C and D” respectively copies of my air ticket and my passport pages indicating that I travelled and arrived in Zimbabwe only on 12 October 2009 and that I am scheduled to return back to the United Kingdom on 06 November 2009. It is also important to note there from that the last time I travelled to Zimbabwe was on 23 August 2007 and I left the country on 22 September 2007.

8. On checking with the third respondent’s records, I established that the property is alleged to have been sold by me to the first and second respondents on 7 September 2009. This appeared from the copy of the Declaration by the Seller which I saw at the third respondent’s office, a copy of which attached hereto as Annexure “E”. The signature thereon is not mine. The third respondent’s office copy of the new Title Deed, the Power of Attorney to pass transfer and the Capital Gains Tax Clearance Certificate used to pass this transfer could not be found.

9. I state that I did not sale my property to the first and second respondent’s or to anyone on the date or any other date. I did not even mandate anyone to sell this property on my behalf. As stated in paragraph 7 herein above, I was in fact in the United Kingdom when the alleged sale is said to have happened. I could not have signed the agreement of sale and the Transfer documents at the time in Harare when I was in fact in the United Kingdom. The first and second respondents certainly dealt with some other person impersonating me. The purported sale and the subsequent transfer of the property is therefore null and void.


10. As it is apparent that my property was fraudulently sold to the first and second respondent. I reported the matter to CID Serious Fraud Squad under reference number CR 399/10/09. I attach here to as Annexure “F” is a copy of my statement to the police.

11. The police and myself then set to trace the first and second respondents who we found at their Westlea, Harare address. The respondents stated that they purchased the property and produced a copy of their Title Deeds (Annexure B), as copy of their agreement of sale. An acknowledgement of receipt of payment allegedly signed by me, a copy of my long lost metal Identity Document and their proof of payment of the purchase price. Annexures “G”, “H”, “I” and “J” hereto refers, respectively.

12. The first respondent however admitted to the CID officers that I was not the person who had sold the property to them neither was I the person they had transacted with or paid the purchase price to. A statement was even recorded to this effect to the said CID Officers. I confirm that I did not sell the property to them, neither did they pay the purchase price to me nor did I receive the purchase price from them or any other person.

13. I confirm that I did not mandate anyone to sell the property on my behalf. I was in fact in Zimbabwe at the time of the alleged sale. The person who purported to sale this property was unknown to me and did not have my authority or consent to do so. He therefore could not sell a property he did not own or what he was not mandated to sell. He further could not pass transfer of title in this property which he did not have. Conversely the first and second respondents could not receive title of property from a person who had no such rights of title.

In the premises the purported transfer of my title in this property in favour of the first and second respondents is null and void and should be reversed without further ado.” (As can be seen from above there was an apparent error in the numbering of the applicant’s paragraphs-there is no para 7).

In view of the foregoing, on 4 November 2011 the applicant filed this application seeking the following relief:-

“IT IS ORDERED THAT;

1. The agreement of sale in respect of certain piece of land situate in the District of Salisbury called Stand 518 Godhope Township of Lot 6 of Goodhope purportedly signed by the applicant and by the second respondents on 7 September 2009 is hereby declared null and void.

2. The transfer of title of certain piece of land situate in the District of Salisbury called Stand 518 Goodhope Township of Lot 6 of Goodhope from the applicant in favour of the first and second respondents under Deed of
 Transfer No. 3863/2009 dated 17 September 2009 is declared null and void and is hereby set aside.

3. The third respondent is hereby directed to reverse and to cancel Deed of Transfer No. 3863/2009 dated 17 September 2009 and to register a certain piece of land situate in the District of Salisbury called Stand 518 Goodhope Township of Lot 6 of Goodhope in favour of the applicant.

4. The first and second respondents are directed to sign all the documents necessary to register a certain piece of land situate in the District of Salisbury called Stand 518 Goodhope Township of Lot 6 of Good Hope in favour of the applicant, failing which the Deputy Sheriff – Harare is hereby authorized to sign the same.

5. The costs of this application shall be paid by the first and second respondents jointly and severally the one paying the other to be absolved.”

In his opposing affidavit, the first respondent, supported by the second respondent, although not disputing the fact that the applicant was in the UK at the time of the transaction, states in part, as follows:-

“17. I wish to highlight the following:-

i) The applicant has chosen to totally ignore the fact that the seller had the original title deeds and he has not told the Court where his deed is or who the custodian of the deed is.

ii) The applicant is shying away from the real prospect that the custodian of the deed might verily be the one who sold the property and also brought the issue to light.

iii) The applicant can also himself be involved in the scam. How do we know that he was not in cahoots with the alleged fraudulent seller especially in light of the manner in which the sale was conducted and the sale brought to his attention.

18. I bought the stand after I went through a rigorous and thorough search at the Deeds office and there was no impediment to the sale. I bought the stand through an estate agency Parkford Property Consultancy where I dealt with Mr Benhura.

19. The general public needs to transact in safety and certainly and I did this by relying on the original title deed which the seller had and a search at the deeds office did not reveal an caveat and as such I feel the applicant cannot be allowed to have the transfer reversed since he allowed the title deeds to be used without his knowledge in as yet unclear circumstances.”


20. The applicant is mum on the very pertinent issue of the title deed and as they are the key to ownership and proof thereof he should have been more careful with the deeds and if he lost them the public should have been notified of the loss.

21. In the circumstances it remains unclear if he mandated the sale or not or if he did not benefit from the sale. He might actually be seeking to fraudulently benefit by having the transfer reversed. I as an innocent purchaser for value should not be disturbed in my possession of the property where it is clear that I took all the necessary steps to verify the authenticity of the sale and the seller and the applicant aided this by not securing the deeds.”

Mr Chidenga for the first and second respondents raised a preliminary issue, namely that there are disputes of facts which militate against the matter being decided on papers filed. He said the applicant should have proceeded by way of summons.

I am persuaded to agree with Mr Chidenga’s submission.

Mr Chidenga cited the case of *Mashingaidze vs Mashingaidze* 1995 (1) ZLR 219 at 221 where the late Robinson J, said,-

“It is necessary to discourage the too oft recurring practice whereby applicants who know or should know, as was the case with the applicant in this matter, that real and substantial disputes of fact will or are likely to arise on papers, nevertheless resort to application for proceedings on the basis that, at worst, they can count on the Court to stand over the matter for trial.”

In response to Mr Chidenga’s submissions on the point in limine, Mr Mutasa’s strong point was that since respondents admitted that the person they had dealt with was not the applicant and documentation before the Court proved that the property was at the outset procedurally transferred to the applicant by the third respondent, there was nothing to refer to trial. He also said the applicant had not received any value for the property and therefore believed the application route was appropriate.

The seemingly clear facts of this case might tend to persuade one to agree with Mr Mutasa’s submissions. However, it is clear to me that by the time the application was filed the applicant had already known that there would be resistance and the basis of the resistance was already clear to the applicant. I need to repeat the points raised in the apposing affidavit of the first respondent already quoted in full at pages 5 and 6 of this judgment. Those issues were already in existence on 4 November 2011. The parties had already indicated their position when the matter was placed in the hands of the police.

I find that the papers before me do not explain how the ‘actual’ Title Deeds went missing and how the alleged fraudster would have known exactly who to contact about this particular property without fear of exposing himself/herself. I also do not think that one can merely proceed on the basis of a denied signature without further evidence. There is also need for further evidence from the Legal Practitioners who dealt with the transfer. Their statement says they dealt directly with the applicant. They can probably assist in explaining in detail the circumstances of the transfer.

As already indicated, police involvement can be traced back to October 2009 as per the CR399/10/09 referred to in the applicant’s own founding affidavit. I therefore want to believe that because of the clear disputes of fact that the applicant knew would arise or had already arisen, he should have proceeded by way of summons in asserting his ownership of the property. Its not explained why he waited until 4 November 2011. Put in other words – the applicant knew disputes of facts would certainly arise. The application procedure was therefore clearly not available to him. The warning in Tamarillo ( Pvt) Ltd v B.N. Bitken 1982 (1) SA 398 (A) at 430 G-H, also approved by the late ROBINSON J in Mashingaidze supra, is worth noting. In that case MILLER JA said:-

“A litigant is entitled to seek relief by way of notice of motion. If he has reason to believe that facts essential to the success of his claim will probably be disputed, he chooses that procedural form at his peril, for the Court in the exercise of its discretion, might decide neither to refer the matter for trial nor to direct that oral evidence on the disputed facts be placed before it, but to dismiss the application.”

In view of the foregoing, the point in *limine* is upheld. This is clearly a case that cannot be decided on papers. There is need for *viva voce* evidence. The applicant should have foreseen that need.

The application is dismissed with costs.

*Messrs Costa & Madzonga* applicant’s legal practitioners
*Messrs Chidenga legal practice* 1st & 2nd respondent’s legal practitioners
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