Narru (Private) Limited v Gold Renk Enterprises (Private) Limited and 4 Others (825 of 2022) [2022] ZWHHC 825 (16 November 2022)

1 HH825/22 HC6266/13 NARRU (PRIVATE) LIMITED versus GOLD RENK ENTERPRISES (PRIVATE) LIMITED and SALIM SULEMAN DESAI and THE FAMILY BUSINESS ENTERPRISE (PRIVATE) LIMITED and LAWS ORGANISATION (PRIVATE) LTD and REGISTRAR OF DEEDS N. O HIGH COURT OF ZIMBABWE NDLOVU J HARARE 16, 18 MAY & 16 NOVEMBER 2022. TRIAL Mr N. Musadiwa, for the Plaintiff Mr S Noor Mahommed, for the 2nd Defendant Mr M. Muzaza, for the 3rd Defendant No Appearance, for the 1st, 4th & 5th Respondents NDLOVU J: Plaintiff issued a summons out of this court seeking Declaratory Orders and consequential relief arising therefrom. This matter is related to some immovable property known as: A certain piece of land situate in the District of Salisbury measuring 12134 hectares called 109 Midlands Township of Midlands commonly known as No. 109 Henley Drive, Waterfalls, Harare (“the property”). In 2013 Plaintiff discovered that its Title Deed had been cancelled and the property transferred firstly to the 1st Defendant and thereafter to the 3rd Defendant, Deed of Transfer No. 6704/2004 and Deed of Transfer No. 3321/2005 respectively refer. It soon thereafter initiated this action proceeding. PLAINTIFF’S CASE Plaintiff acquired the property sometime in 1997 from one Rebecca Masawi Deed of Transfer No 8006/1997 refers. From its incorporation in 1990 to date Plaintiff has only had 2 (two) directors namely Rugare Chidembo and Angeline Chidembo. It is common cause that Plaintiff never sold the property to any person at any time. Its directors have always been in possession of the Tittle Deed. A person purporting to be the plaintiff director, Mr Rugare HH825/22 HC6266/13 Chidembo, fraudulently sold and transferred the property to the 1st Defendant, who in turn sold it to the 3rd Defendant. The sale to the 1st Defendant was a fraud because; (a) Mr Rugare Chidembo’s signature was forged on all the documents that are necessary to effect and facilitate a sale of immovable property in the circumstances. (b) A wrong date of birth of Mr Rugare Chidembo was used, 12 July 1966 instead of 08 August 1960. (c) Mr Rugare Chidembo’s National Identification Number was given as 59- 0588222-W-85 instead of 63-621727-A-18. (d) His address was stated as No. 19 Debshire Road, Katanga Norton instead of No. 7 Cosham Avenue, Borrowdale Harare. (e) When the property was sold to the 1st Defendant the Plaintiff’s directors were resident in South Africa from 2001 to 2010. Plaintiff through its Directors never gave the 4th Defendant a mandate to sell the property and neither did it deal with the 2nd Defendant who is the legal practitioner who was responsible for conveyancing the property nor any employees of Desan and Associates the 2nd Defendant’s law firm. 2ND DEFENDANT’S CASE He is a registered legal practitioner and conveyancer. He handled the purported transfer of the property from Plaintiff to the 1st Defendant. At the material time, he had been practising law for about 2 (two) years. He received verbal instructions to undertake the conveyancing of the property from the employees of the 4th Defendant who were Estate Agents, advising that they had an agreement of sale for a property and that they required the services of a conveyancer. He was given an agreement of sale, a copy of what purported to be Mr Rugare Chidembo’s National Identification Document, copies of the certificate of incorporation of Plaintiff, Form C. R 14 and Form C. R 6 for Plaintiff. He told the court that he was told by one Veronica Pickard that due diligence had been done on the property (clearly that information was wrong or incomplete). He was given what purported to be the original Title Deed in the name of the Plaintiff. He does not recall ever meeting a Mr Rugare Chidembo nor did he communicate with the seller. He assumed that the 4th Defendant’s personnel had done due HH825/22 HC6266/13 diligence on both the seller and the buyer. He obtained all the necessary information for the transfer from the documents given to him by Veronica Pickard. The transfer of the property from Plaintiff to the 1st Defendant was then effected. The 2nd Defendant conceded that he did not carry out his obligations as expected of a conveyancer. He did not carry out due diligence by himself and did not meet with the parties directly. 3RD DEFENDANT’S CASE Nothing much came by way of facts from the 3rd Defendant largely because the majority of its witnesses were the personnel of the 1st or the 4th Defendants. These people were not involved in the transfer of the property to the 3rd Defendant. They were more of the 1st Defendant’s witnesses than they were of the 3rd. Nothing material turns on their evidence more so regard being had to the fact that the 1st Defendant did not defend this action. ISSUES 1. Prescription The Defendants have pleaded that Plaintiff’s claim has prescribed as it began to run on 20 August 2004 when the Deed of Transfer No 8006/1997 was cancelled, and Plaintiff instituted these proceedings more than 3 years after the debt became due. They have sought to rely on the doctrine of constructive notice, arguing that Plaintiff did not allege or prove that 1st and 3rd Defendants did not obtain transfer in good faith. On the facts of this matter and the nature of the relief being sought by Plaintiff, the argument by the Defendants who defended is untenable. The 1st Defendant from whom the 3rd Defendant got transfer has opted not to defend this claim. The 2nd and 3rd Defendants have not attempted to put in issues Plaintiff’s ownership of the property, and rightly so. The reality of all this is that there is no good faith to talk about because the 1st Defendant has not pleaded it by not defending the action. The claim against the 1st Defendant is therefore secure in Plaintiff’s favour. With the 1st Defendant having tainted title, the bona fides or otherwise of the 3rd Defendant matter no more. In case this Court is wrong in concluding as it has done in the preceding paragraph, the fact of the matter is that Plaintiff became aware of the identity of the debtors and of the facts from which the debt arose in 2013. Prescription, therefore, began to run in 2013. Section 16(3) of the Prescription Act Chapter 8;11 provides as follows; HH825/22 HC6266/13 “16(3) A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises.” It would be absurd and impractical for an ordinary citizen to wake up every morning and check with the Deed Registry whether their Title Deeds are safe from criminals. The law is against absurdity. To interpret the law the way the Defendants are suggesting will give life to the works of criminals. The plain and literal interpretation of the statute accord with the interpretation that the Plaintiff claim is not prescribed. Jonathan Moyo & Otrs -v- Austin Zvoma N. O & Anor SC28/10. Most importantly, the Plaintiff has not mounted a claim for a vindication relief but declaratory orders. A declaratory order is a remedy to secure the public interest of certainty or correct legal position. On the authority of Ndlovu -v- Ndlovu & Anor HB18/13, such a remedy cannot prescribe. This claim is based on an alleged nullity of a sale transaction and not on a debt as defined in the Prescription Act Chapter 8:11. The special plea falls to be dismissed and is dismissed. 2. Was there a valid sale and transfer of the property from Plaintiff to the 1st Defendant in 2004? The 1st & 4th Defendants have not defended this action. Both played a major role in the alleged sale and transfer between Plaintiff and the 1st Defendant. The 3rd Defendant did not even dispute that the alleged sale between Plaintiff and the 1st Defendant was fraudulent. The evidence before this Court clearly shows that the purported sale and transfer of the property was a fraud and that the 2nd Defendant was negligent in the manner he conducted the transfer, possibly owing to his relative inexperience at the material time. I have no doubt at all in my mind that the purported sale, transfer and cancellation of Deed of Transfer No 8006/1997 was done fraudulently. There was no valid sale and transfer of the property between Plaintiff and the 1st Defendant in 2004. 3. Estoppel The 3rd Defendant has pleaded estoppel. It is trite that for the defence of estoppel to avail the following must be established; (1) There must be representation by conduct or otherwise HH825/22 HC6266/13 (2) The representee must act on the representation. (3) The person’s reliance on the representation must be the cause of the detriment on the part of the representee. Plaintiff has always had its Title Deed and its Directors were in South Africa at the relevant time. The 3rd Defendant did not rely on a representation by Plaintiff, in fact, there was none made either 1st or 3rd Defendant, to buy the property from the 1st Defendant. To suggest that by not detecting the fraud earlier than it did, Plaintiff misrepresented to the 3rd Defendant and the 3rd Defendant acted on that representation to buy the property from the 1st Defendant, to its detriment is to stretch matters too far. Stanbic Financial Zimbabwe Ltd -v- Chivhunga 1999(1) ZLR 262. Oakland Nominees Ltd -v- Gelria Mining & Investment (Pvt) Ltd 1976 (1) SA 441 (AD). 4. Citing the 2ND Defendant. In my view, there was no basis to join the 2nd Defendant in this matter and for the relief sought against him. DISPOSITION An owner cannot be deprived of his property against his will and is entitled to recover it from anyone who retains possession of it without his or her consent. Silberberg and Schoeman’s “The Law of Property” 5th Edition (2006). R. H Christie, “Business Law in Zimbabwe”, 2nd Edition, Juta & Co Ltd. Cosmas Luckyson Zavaza & Anor V Jonah Tendere & 3 Otrs HH 740/15. The action succeeds as prayed for against the 1st, 3rd, 4th and 5th Defendants with costs. The action against the 2nd Defendant is dismissed with costs. Kantor & Immerman, Plaintiff’s Legal Practitioners. Ahmed & Ziyambi, 2nd Defendant’s Legal Practitioners Wintertons, 3rd Defendant’s Legal Practitioners.