Muteweye and Another v Stillford Investments (Pvt) Ltd and 5 Others (738 of 2022) [2022] ZWHHC 738 (26 October 2022)

1 HH738/22 HC3079/20 WILFRED MUTEWEYE and SUSAN MUTEWEYE versus STILLFORD INVESTMENTS (PVT) LTD and MCBASE INVESTMENTS (PVT) LTD and SHERIFF OF ZIMBABWE N. O and LINAH NDOLI AGERE and REGISTRAR OF DEEDS and TALLSPRING INVESTMENTS (PVT) LTD HIGH COURT OF ZIMBABWE NDLOVU J HARARE, 04 & 26 OCTOBER 2022 OPPOSED APPLICATION Ms C. Damiso, for the applicants Mr G,Madzoka, for the 1st & 2nd respondents Mr T. Bhatasara, for the 6th respondents NDLOVU J: This is an application for the cancellation of title deeds issued under No DT3150/18 and No DT3139/18 in favour of the 1st and 2nd respondents for the immovable property commonly known as Stand 157 Meyrick Park Township. Lot 109 of Meyrick Park, Mabelreign, Harare, less undivided 7,7% share No. 8 in Stand 157 Meyrick Park, Mabelreign, measuring 3997 Square Metres, in terms of Sec. 8 of the Deeds Registries Act, [Chapter 20:05] THE FACTS It is common cause that the applicants had bought the property from the Sherriff in a judicial sale in execution of a judgement of this court wherein the 6th respondent, Tallspring Investment (Pvt) Ltd was the judgement debtor. The sale was confirmed by the Sherriff. In May 2017 the applicants paid the full purchase price for the property together with the HH738/22 HC3079/20 conveyancer’s fees and Stamp Duty for the purposes of transfer of the property to themselves by the Sheriff. The sale was therefore perfecta. The Sheriff however did not transfer the property to the applicants. In June 2018 the Sheriff wrote to the applicants advising them that he had cancelled the sale on the instructions of the judgement creditor, the 4th respondent, apparently the judgment debtor and the judgment creditor had settled the controversy between themselves and had entered into a Deed of Settlement and request the Sheriff to cancel the sale between him and the applicants and uplift the caveat that had been placed on that property. The property was therefore not transferred to the applicants, and in meantime the 6th respondent sold the property to the 1st and 2nd respondents and both took transfer of the property on 11 June 2018. The purported cancellation of the sale by the Sheriff to the applicants prompted the applicants to file with this court an application under case number HC928/19 in which they sought the following relief; (1) To compel transfer of the property to them by the Sherriff. (2) A declarator that the setting aside of the sale by the Sherriff was null and void. They did not succeed in having the Sherriff compelled to transfer the property to them because that was now an impossibility regard being had to the fact that the Sheriff had long uplifted the caveat on the property and by so doing enabled the 6th respondent to transfer the property to the 1st and 2nd respondents. This court however granted part of their prayer and declared the purported cancellation of the sale by the Sheriff to have been illegal. See HH 300/22. APPLICANTS’ CASE The applicants argued in their papers that the cancellation of the sale by the Sheriff was a legal nullity and at the hearing, that argument became fortified by the declaratory order of this court by Muremba J in HH300/22 to that effect, which order is extant. That nothing can stand or flow from a legal nullity and that by extension the sale of the property by the 6th respondent to the 1st and 2nd respondents was a legal nullity too. They further argued that, it does not matter whether or not the 1st and 2nd respondents were innocent purchasers. They reasoned that when a property is sold in violation of the law the sale is a nullity and 3rd parties cannot acquire rights from a nullity. They counter-argued that this case cannot be said to a double sale or akin to one, because in a double sale both transactions would be valid, unlike in this case in which the subsequent sale was tainted with an illegality and therefore the principle of equity does not apply as a factor to be considered in resolving the dispute. The cancellation HH738/22 HC3079/20 of the deeds of transfer in this matter as sought, is the only sure way of preserving the public confidence in the judicial sales in execution. 1st and 2nd RESPONDENTS’ CASE The 1st and 2nd respondents argued that they did not get transfer from the Sheriff with whom the applicants had dealings with. That applicants want to elevate personal rights, that they hold to real rights, that the 1st and 2nd respondents hold in the property. That personal rights are subject to real rights in an immovable property. The applicants cannot after failing to get specific performance from the Sheriff turn around and pursue parties they never dealt with. According to them, this is a case of a double sale because when the Sherriff cancelled the sale between him and them, there was already a sale and transfer of title between the 6th respondent and themselves. The first sale takes precedence and equity favours that they retain the property and in any case they have effected improvements on the property. 6th RESPONDENT’S CASE Nothing much turns on the arguments by the 6th respondent. It is basically sang from the same “Hymn Book, song and verse”, as it were, with the 1st and 2nd respondents. THE LAW Contrary to the respondents’ submissions, this is not a case of a double sale at all. A double sale is when a property is sold to two buyers by the same seller and both buyers pay the full purchase price for the property. In this case, the property was not sold by the same seller. Sec 8(1) of the Deeds Registries Act [Chapter 20:05] provides as follows; “8 Registered deeds not to be cancelled except upon order of court. (1) ……….. no registered deed of grant, deed of transfer, certificate of title or other deed conferring or conveying to land or any real right in land other than a mortgage bond, and no cession of any registered bond not made as security, shall be cancelled by a registrar except upon an order of court” RESOLUTION Once a judicial sale in execution is perfecta it can only be set aside by an order of the High Court. Any purported sale of the same property before or without a lawful cancellation of the first sale is a legal nullity. The argument by the 6th respondent that at the time it sold the HH738/22 HC3079/20 property, the caveat on it had been uplifted and therefore its sale was valid is not helpful to say the least. It appears to me that the logical corollary of that position of the law is that any registration of title pursuant to a sale in violation of the law governing judicial sales in execution is a legal nullity too. I have not heard any of the respondents disputing that the conduct of the Sheriff was unlawful or stating that the judgment of Muremba J in HC 928/19 is being appealed or has been set aside. All force has been thrust at motivating that the purchase and registration of the property by the 1st and 2nd respondents was lawful and valid. The question that arises from a logical and legal perspective is how can an unlawful process beget a lawful product? It simply cannot. The law being so clear, the status quo ante must return to the position matters were before the registration of title in favour of the 1st and 2nd respondents on 11 June 2018 and the illegal cancellation of the sale between the applicants and the Sheriff. That can only be achieved by the cancellation of the title deeds as prayed for in this application. Accordingly, the following order is made. IT IS ORDERED THAT: (1) The Registration of Title Deed No. 3150/18 and Deed No. 3139/18 be and is hereby held null and void. (2) The 5th Respondent be and is hereby ordered to cancel Title Deed No. 3150/18 and Deed No. 3139/18 held under the 1st and 2nd Respondents. (3) The 1st, 2nd and 6th Respondents to pay the Applicants costs of this suit. Mushangwe & Company, Applicants’ Legal Practitioners. Mangezi, Nleya & Partners, 1st and 2nd Respondents’ Legal Practitioners. Mupanga & Bhatasara, 6th Respondent’s Legal Practitioners.