Mahanda (nee Samukange) v Zimbodza N.O and 5 Others (828 of 2022) [2022] ZWHHC 828 (16 November 2022)

1 HH 828-22 HC 1162/22 VICTORIA MAHANDA (nee Samukange) (In her capacity as the executrix dative of the Estate of the late Webster Samukange) versus OBEY ZIMBODZA N. O and PAMELA MKHONTWANA And EVERTON MUTSINZE and BARBARA MUTSINZE and THE MASTER OF HIGH COURT N. O and THE REGISTRAR OF DEEDS N. O HIGH COURT OF ZIMBABWE MHURI J HARARE, 28 October & 16 November 2022 Opposed application Ms R Gasa, for Applicant Mr V Mazhezhetese, for 1st Respondent Mr T Mjungwa, for 3rd and 4th Respondents No Appearance for 2nd, 5th and 6th Respondents MHURI J: This is an application in which applicant is seeking: (a) The nullification of an agreement of sale in respect of a piece of land situate in the district of Salisbury called stand 17164 Harare Township of Salisbury Township Lands known as House No. 17164 Sable road Borrowdale West, which agreement was entered into between first and third and fourth respondents. (b) The cancellation of the deed of transfer No. 3183/2014 dated 26 June 2014 in favour of third and fourth Respondents. The title of the property be registered back in the name of the estate late Webster Samukange. The basis for the nullification and cancellation being that the appointment of first respondent as the executor dative to the estate of the late Webster Samukange was procured by fraud hence the whole process was tainted by an illegality. HH 828-22 HC 1162/22 (c) That third and fourth respondents and all those claiming occupation through them of house number 17164 Sable Road Borrowdale West, Harare be ordered to vacate the said premises. (d) That in the event of non-compliance with paragraph (c) above the Sheriff be authorized to evict them from the said premises. (e) That the Registrar of Deeds be ordered to effect paragraph (b) above within 10 (ten) days of being served with this Order. (f) That first and second respondents pay costs of suit on an attorney and client scale. The first and second respondents were barred for failure to file any opposition. The fifth respondent filed a report in terms of r 61 of the High Court Rules 2021 stating: “Having read and understood the import of the application, relief, being sought and information filed of record, we hereby submit that given the magnitude of the dispute we have no objection to the granting of the relief being sought as this will bring finality to the long standing disputes.” The third and fourth respondents are opposed to the granting of the application. In brief, the historical background is that after the death of the late Webster Samukange (Webster) on the 22 December 2012, the second respondent and Josiah Samukange approached the Registrar of Births and Deaths and obtained a death certificate on which it was endorsed that Webster was customarily married. Married to second respondent. Thereafter second respondent then approached the Assistant Master with the death certificate claiming that she was customarily married to Webster and had two minor children. She then had the Estate registered. The Death Notice was filed by Josiah who claimed to be Webster’s brother. In a declaration form dated 14 June 2013, second respondent together with Josiah Samukange endorsed as brother, and Blessing Togara endorsed as cousin to Webster, declared first respondent as the executor of the late Webster’s estate and second respondent as the Guardian. On the same date (14 June 2013) both second respondent and Blessing Togara deposed to affidavits before first respondent as Commissioner of Oaths to the effect that though the surnames were different, they were the surviving spouse and cousin to Webster respectively. As an executor of the estate of the late Webster, first respondent did a distribution plan in which second respondent was awarded • House No’17164 Sable Road Borrowdale • House No’13003 Unit N Chitungwiza HH 828-22 HC 1162/22 • Mazda 626 AAB 3594 • Mazda 626 AAG 3762 On 22 May 2014 first respondent was issued with the Consent to Sale immovable property by private treaty in respect of stand number 17164 Harare Township by the Additional Assistant Master. The next day, that is 23 May 2014 first respondent through a Power of Attorney nominated Ishmael Mugwagwa to appear before the Registrar of Deeds to effect transfer of the property to third and fourth respondents. He indicated in the Power of Attorney that the property had been sold for US 155,000 and whereas on the inventory the property was valued at US 30,000. On 26 June 2014, the property was transferred to third and fourth respondents under Deed of Transfer 3183/2014. On 24 November 2014, through an application for review, this Court set aside the final distribution account and also ordered that the estate of the late Webster Samukange registered with the Master of the High Court be re-administered. Applicant’s case as per her founding affidavit in brief, is that the agreement of sale entered into between first, third and fourth respondents in respect of house number 17164 Sable Road Borrowdale West, based on the appointment of first respondent as executor dative of the Estate of the late Webster and the distribution plan was based on a process marred by fraud. Based on a fraud, nothing legal can flow from it, as such the appointment, the whole administration process, the sale and transfer of the property are all void ab initio. Third and fourth respondents’ case as per their notice of opposition, in brief is that they are innocent purchasers and should not be punished for the wrong doings of the first and second respondents. They carried out due diligence with the Deeds Registry and Master’s Office where they found the Title Deed free of any encumbrance and the letters of administration and Consent to Sale above board. They were not privy to the background events leading to the sale of the immovable property as such they never connived with the fraudsters. They have been living on the property since 2014 and have since made great improvements on the property. They paid the full purchase price and all costs necessary to the first respondent as such applicant should recover the proceeds of the sale from first and second respondents since they are the ones who benefited. They hold title to the property and this ownership cannot be reversed except in special and extenuating circumstances. HH 828-22 HC 1162/22 Based on the above, third and fourth respondents prayed that the application be dismissed with costs. The background to this case as alluded to earlier and the setting aside of the distribution account and the order to re-administer the estate under case number HC 8566/17 clearly establishes and confirms that the estate of the late Webster was fraudulently handled. This was an illegality perpetrated at the onset by second respondent together with Josiah who claimed to be a brother to Webster when in actual fact he was not and Blessing Togara who claimed to be a cousin and by first respondent who later became involved in the shady dealings with regards to the administration of the estate. Can anything flow from a process marred with illegality? As submitted by applicant, the answer is in the negative. The position was clearly stated by Lord Denning in the celebrated case of McFoy vs United Africa Company Ltd (1961) 3 AII E R 1169 at 1172 and cited with approval in the case of JENSEN vs ACAVALOS 1993 (1) ZLR 216 (S), where it was stated. “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” The third and fourth respondents are not disputing that there was a fraud at the initial stages. Their argument is that they are innocent purchasers who bought the property after due diligence and that the law on double sales should therefore apply. My considered view is and I reiterate the position that nothing flows or stands on an illegality. I am also persuaded by applicant’s submission that third and fourth respondents could not have done due diligence in view of the speed with which the property was sold to them. Consent to Sale was given on 22 May 2014 and a day later (23rd) they had entered into an agreement of sale and paid $300 and the next day (24th) had been issued with a pro forma invoice for the transfer of the property by first respondent. I find the observation and remarks by MWAYERA J (as she was) in the case of: HH 828-22 HC 1162/22 TAFUMA CHIRISA versus MAKUFA MUGADZAWETA And 2 others HH 323/2014 very persuasive. She observed that, “the circumstances of this case were on (sic) executor dative in the form of the respondent was appointed through misrepresentation and he transferred the only asset of value of the estate into his name without the involvement of the relatives of the deceased is not only unprocedural but illegal for it was based on a misrepresentation”. She went further to state, “Given the circumstances of this case, the court cannot fold its arms and perpetuate an illegality on the basis that the applicant should have approached the Court earlier.” In casu, the Court cannot perpetuate in illegality on the basis that the respondents are innocent purchasers. As I have indicated earlier, the speed with which the sale was done raises a lot of questions and puts into doubt the innocence of the third and fourth respondents. Of note also is the absence of proof of payment of the purchase price. In the case of FUTURE KATIRAWU vs DAVID KATIRAWU and OTHERS HH 58/2007 MAKARAU JP (as she was) also put the point clear when she stated: “Further, having established that the appointment of the first respondent as executor to the estate of the late Mairos Katirawu was procured by fraud, the removal of the 1st Respondent follows, the finding for nothing can legal can flow from a fraud. His appointment was null and void ab initio on account of the fraud. It is as if it was never made. It is a nothing and upon which nothing of consequence can hang. In conclusion, the ‘’rights” that the 2nd respondent believes to have purchase and acquired from the 1st respondent are tainted by the same illegality and amount to nought by token of the same reasoning. It is as if there was never a sale between her and the 1st respondent and consequently, no rights can flow from a non-sale in her favor. The sale and the consequent cession of rights in her favor amount to nothing at law for nothing legal can flow from it.” Clear as it is that this was not a double sale situation where the seller is the owner, has the right to sell but sells the property to more than one person, this case is distinguishable in that, the executor dative was appointed following a fraudulent process which the Assistant Master confirmed was not properly done and which was set aside by this Court under case number HC 8566/ 17, the result of which the executor dative had no right to transfer to anyone, the law of double sale does not apply in casu. The fact that third and fourth respondents were not part of the fraud will not assist them. The fraudulent representations which were made at HH 828-22 HC 1162/22 the beginning afflicted the whole process that ensued up to the sale of the property. You cannot put something on nothing and expect it to stand. In the result, I find for the applicant and grant the relief she is seeking. It is therefore ordered that: 1. The purported sale of a certain piece of land situate in the district of Salisbury called stand 17164 Harare Township of Salisbury Township lands also known as house number 17164 Sable Road Borrowdale West Harare to the third and fourth respondents be and is hereby nullified. 2. The Deed of Transfer number 3183/2014 dated 26 June 2014 in favour of the third and fourth respondents be and is here by cancelled. 3. Sixth respondent be and is hereby ordered to revive the Deed of Transfer number 7865/2005 in favor of the late Webster Samukange within 10 (ten) days of being served with this Order. 4. The third and fourth respondents together with all those claiming occupation through them of House number 17164 Sable Road, Borrowdale West, Harare, be and are hereby ordered to vacate the premises within 30 days of being served with this Order. 5. In the event that third and fourth respondents together with all those claiming right of occupation through them of House number 17164 Sable Road, Borrowdale West, Harare, fail to comply with paragraph (4) above, the Sheriff be and is hereby authorized to evict them. 6. The first and second respondents to pay costs of suit on a legal practitioner client scale. Gasa Nyamadzawo & Associates, applicant’s legal practitioners. Tavenhave & Machingauta, third and fourth respondent’s legal practitioners