Court name
Harare High Court
Case number
HC 3078 of 2007

Todd v Nhavira & Ors (HC 3078 of 2007) [2011] ZWHHC 67 (21 March 2011);

Law report citations
Media neutral citation
[2011] ZWHHC 67

JOPHN EDWARD TODD

versus

LYDIA NHAVIRA

and

LEWIS KEEL HORNE

and

PEGGY JUDY HORNE

and

VIOLA ELIZABETH TODD

and

REGISTRAR OF DEEDS HARARE N.O.

 

HIGH COURT OF ZIMBABWE

PATEL J

 

Civl Trial

 

HARARE, 3 to 4 November 2010 and 22 March 2011

 

R. Harvey, for the plaintiff

M. Sinyoro, for the1st defendant

A.A. Debwe, for the 2nd and 3rd defendants

4th defendant (in person)

5th defendant (not opposed)

 

 

            PATEL J:        This case involves an ownership dispute in relation to Stand No. 4795, No. 1 Milner Road, Braeside, Harare. The issues for determination herein are as follows: (i) Did the plaintiff and/or the 4th defendant donate the property in question to the 2nd and 3rd defendants and, if so, on what terms? (ii) Did the plaintiff and/or the 4th defendant and/or the 2nd and 3rd defendants sell their respective rights in the property to the 1st defendant and did they authorise or notify or ratify the sale/transfer to the 1st defendant? (iii) Were the 2nd and 3rd defendants lawfully entitled to sell/transfer the property to the 1st defendant or did she take precarious title thereto? (iv) Did the plaintiff and the 4th defendant sign or notify the relevant documents used to pass transfer and in what circumstances was the conveyance transacted? (v) Should the said transfer be declared unlawful, with particular reference to the plaintiff’s undivided half share therein?

            Before the trial commenced, the parties agreed on the facts that were common cause, as follows. The plaintiff is married to the 4th defendant but they have lived apart for several years. The 3rd defendant is the plaintiff’s sister and she is married to the 2nd defendant. The plaintiff and the 4th defendant were the registered owners of the property, which was their residence and which they held under Deed of Transfer 1420/81, dated 9 March 1981. The property was transferred to the 2nd and 3rd defendants by Deed of Transfer 9236/05, dated 7 November 2005, the purported cause being by way of donation. The 2nd and 3rd defendants then sold and transferred the property to the 1st defendant by Deed of Transfer 7424/2006, dated 30 October 2006. Both transfers were conveyed by Christopher Chigwanda, of Chigwanda Legal Practitioners. By letter dated 9 May 2006 from her lawyers, the 4th defendant demanded payment of half the value of the proceeds of sale to the 1st defendant, and she was paid that sum by the conveyancer on 30 June 2006. The plaintiff reported the 2nd, 3rd and 4th defendants to the police on 13 December 2006, claiming that he had not transferred the property and that the transfer of his half share therein was fraudulent.

 

The Evidence

            By consent of all the parties, Viola Elizabeth Todd, the 4th defendant, was allowed to testify first. Her evidence was that she sold her half share in the property to the 2nd and 3rd defendants in March 2006, without the plaintiff’s consent or involvement. She never saw or signed the relevant transfer papers, i.e. the Power of Attorney, Declaration by Donor and Deed of Transfer. She did not recognise any of the signatures on these documents as being hers or the plaintiff’s, nor did she appear before the conveyancer to authorise the donation or transfer. She was aware of the arrangement that the 2nd and 3rd defendants would stay at the property with the plaintiff and pay all the recurrent expenses, including the instalments on the mortgage bond.

            John Edward Todd, the plaintiff, confirmed that the 2nd and 3rd defendants lived at the property with him free of charge and, in return, they eventually paid off the mortgage bond in November 2005. A year after receiving the title deed, he gathered that the 2nd and 3rd defendants had stolen it and sold the property without his consent. He then reported the matter to the Braeside Police Station. The matter is still being investigated but no one has been charged with any offence as yet. He testified that he never sold or donated his half share in the property to the 2nd and 3rd defendants. This is confirmed by his founding affidavit in Case No. HC 3416/07, which he instituted on 3 July 2007 and wherein he sought and obtained a caveat against further dealings with the property. The signatures on the Power of Attorney and Declaration by Donor, dated 19 February 2003, are not his or the 4th defendant’s. The signatures on the Declaration by Donee, of the same date, belong to the 2nd and 3rd defendants. He did not authorise any transfer in terms of the Deed of Transfer, dated 7 November 2005, and he does not know the conveyancer in question.

            Takawira Farikai Zembe has known the plaintiff and the 4th defendant since 1985 from Braeside Shopping Centre, where they used to beg for money and drink alcohol. He employed the plaintiff, a qualified journeyman, as a motor mechanic on his farm for about one year, and then dismissed him when he found him drunk. He later came to know the 3rd defendant as well. He responded to an advertisement in The Herald for the sale of a house in Braeside. The estate agents took him and a third party, who he later discovered was the 1st defendant’s representative, to view the house and he was surprised to be taken to the property in dispute. They were greeted by the 3rd defendant. She told the witness, in the presence and hearing of the agents and the third party, that he was not to tell the plaintiff that she and the 2nd defendant intended to sell the house. They then viewed the interior of the house. On their return trip, he queried the sale of the house as he knew that it belonged to the plaintiff. He was informed by the estate agents that there would be no problem as they had the papers showing that the property belonged to the 2nd and 3rd plaintiffs. He then withdrew his interest in the property. About a month later, the plaintiff approached him for a loan to engage lawyers to recover his house. He then took the plaintiff to a firm of lawyers and, because of his previous relationship with the plaintiff, he paid his legal fees. The lawyers subsequently dropped the case because of the plaintiff’s inconsistent statements. Thereafter, he lost contact with the plaintiff until he was called by the plaintiff’s current lawyers to provide a witness statement. When questioned by the Court, the witness stated that the plaintiff was drinking heavily and regularly at the relevant time and, given his personal and family circumstances, it was very possible that he was unaware of the house being sold behind his back.

            Angeline Chinyani is the 1st defendant’s sister and was appointed by her to purchase the property and to litigate on her behalf. The 1st defendant was in the United Kingdom at the relevant time and she still resides there. The witness entered into the agreement of sale with the 2nd and 3rd defendants in June 2006. Her evidence was that on the date of the visit to the property she only spoke to the 3rd defendant. She could not remember Zembe and did not hear what the 3rd defendant said to him. She would not have purchased the property if she had known of the plaintiff’s title. Under cross-examination, she accepted that a fourth person also came to view the house and that he spoke to the agents on their return trip, but she could not recall what was said.

            Christopher Chigwanda is a conveyancer by profession. He processed both of the deeds of transfer in casu. His evidence was that the plaintiff came to see him in February 2003 and gave instructions for the transfer of the property to the 2nd and 3rd defendants. The relevant papers were prepared by him and his assistants. They were then signed by the plaintiff and the 4th defendant at the firm’s offices. The references in the papers to the 4th defendant as Viola Horne, rather than Viola Todd, were typographical errors. In December 2006, he was invited by the police to explain what transpired and he gave an affidavit statement as per his evidence above. Under cross-examination, he stated that the plaintiff donated his half share in February 2003 and that the 4th defendant sold her half share in March 2006 and was paid out in June 2006. However, the capital gains tax clearance certificate pertaining to the transfer is dated 25 October 2005 and transfer was effected on 7 November 2005. He could not explain these anomalies, nor could he recall to whom the 4th defendant had sold her share or whose money was deposited in the firm’s trust account for payment to her. He could also not explain why the transfer papers refer to a donation by both the plaintiff and the 4th defendant and make no mention at all of any sale of the latter’s half share. He conceded that there were other formal deficiencies arising from the absence of certain requisite documents, and that the transfer in casu was not strictly in compliance with the prescribed legal requirements. With reference to his statement to the police, he conceded that there were several contradictions within the affidavit itself as well as between its contents and his evidence in court, particularly as regards the donation of the property and the 4th defendant’s role in the transaction.

            Lewis Keel Horne, the 2nd defendant, is the plaintiff’s brother-in-law. He stated that he vacated the property in 2007 and that it is presently occupied by the 1st defendant’s relatives. He and the 3rd defendant paid off the mortgage arrears and bond on the property. His evidence was that he accompanied the plaintiff and the 3rd defendant to see Chigwanda, as the plaintiff wanted to donate his half share to the 2nd and 3rd defendants. The plaintiff signed the Declaration by Donor and Power of Attorney in his presence at Chigwanda’s offices. The 2nd defendant then went back to the lawyers about one month later to sign the Declaration by Donee. The 4th defendant was to remain as the owner of half of the property. Before this omission in the papers could be rectified, she demanded payment for her half share. Acting on Chigwanda’s advice he then sold the property to the 1st defendant in June 2006 for $8 billion and paid $3 billion to the 4th defendant at the end of that month. At that time, the plaintiff wanted to reclaim his half share and declined the offer to be paid the balance of the proceeds of sale. He eventually left the house at the end of December 2006. Under cross-examination, the 2nd defendant was unable to explain the inconsistencies between his testimony and Chigwanda’s evidence and statement to the police. Nor was he able to say who signed the Power of Attorney as Viola Horne, as the 4th defendant was not present. He also contradicted his evidence-in-chief as to where and when the plaintiff signed the Power of Attorney and when he himself signed the Declaration by Donee. Nor could he identify the other signatures on these documents.

            Peggy Judy Horne, the 3rd defendant, is the plaintiff’s sister. She maintained that the plaintiff wanted to donate the property and signed the relevant papers at Chigwanda’s offices. She signed the Declaration by Donee at the same time and place. She denied having told Zembe not to mention the intended sale to the plaintiff. Under cross-examination, she could not remember where the plaintiff signed the Declaration by Donor and Power of Attorney or when the 2nd defendant signed the Declaration by Donee. She confirmed that the signature of Viola Horne on the Power of Attorney was not the 4th defendant’s. She could not identify any of the signatures of the witnesses on these documents.

 

Assessment of Witnesses and Evidence

            The plaintiff, though not entirely certain as to the relevant dates, was very clear in his testimony as to his non-involvement in the disposal of the property. Similarly, the evidence of the 4th defendant was brief but to the point. Having demanded payment for her half share of the property and received it, she was disinterested in the present dispute. As regards Takawira Zembe, he proved to be an immensely objective and impressive witness. In my view, his involvement in the relevant events, particularly in assisting the plaintiff in his predicament, was nothing less than altruistic. All in all, the evidence of these three witnesses was highly persuasive and very credible.

            In contrast, the evidence on the other side was generally unconvincing and unhelpful. As regards the 1st defendant’s representative, it is very difficult to credit her denial of any knowledge of the plaintiff’s rights and interests, following her visit to view the property. Even more difficult to credit is the testimony of Christopher Chigwanda, which was nothing but a bundle of contradictions and disingenuous evasion. Moreover, his professional role in the disputed transfer is extremely questionable. The 2nd defendant’s evidence was equally unpersuasive. He was simply attempting to explain and underplay the inconsistencies and anomalies that emerged in the preceding testimony. As for the 3rd defendant, her evidence was short but confused and quite pointless.

            Turning to the documentary evidence of transfer, virtually all of it is defective for one reason or another. The Power of Attorney to make transfer refers to a donation only and appears to be a power to dispose of the entire property. It does not exclude the 4th defendant’s half share and makes no mention of it being sold. It does not state to whom the purported donation is being made, i.e. the transferee or transferees are not identified. The original year typed on this document was 2005, which was then altered by hand to 2003. Most pointedly, the surname of the 4th defendant appears as Horne (not Todd) and was signed as such. It was clearly not her signature. The Declaration by Donor and the corresponding Declaration by Donee refer only to the plaintiff’s half share. Again, there was no reliable evidence to verify the plaintiff’s signature on the Declaration by Donor.

All three documents were purportedly signed on the same date (19 February 2003) before different witnesses, none of whose signatures were identified at the trial. Having regard to all of these discrepancies, as well as the conflicting testimony of the defendants and the conveyancer, the authenticity of these documents and of the purported signatures thereon is extremely dubious.

            The Deed of Transfer 9236/05, dated 7 November 2005, is premised on the donation of the entire property, as one whole, and repeats the erroneous surname of Horne (as opposed to Todd) in respect of the 4th defendant. Again, the Capital Gains Tax Certificate, dated 25 October 2005, also pertains to the donation of the whole property. In my view, the supposed causa behind these transactions is wholly undermined by the subsequent sale of the 4th defendant’s half share to the 2nd and 3rd defendants in May 2006.

 

Findings

            It is common cause that the 4th defendant received payment for the sale of her half share of the property and that the plaintiff was offered but declined his half share of the proceeds of sale. This undisputed evidence of a subsequent sale clearly belies the possibility of a prior donation of the same property. In any event, on the evidence before the Court, I am amply satisfied that the plaintiff and the 4th defendant did not donate the property to the 2nd and 3rd defendants. Apart from the absence of any formal deed of donation, there is no reliable evidence to show that they actually signed the requisite instruments of donation and authority to transfer.

            I am also satisfied from the testimony of Takawira Zembe, coupled with the manner in which the proceeds of sale were handled, that the 1st defendant’s representative was fully aware of the defects in the earlier transfer of title to the 2nd and 3rd defendants. She clearly took precarious title from them on behalf of her principal.

It is common cause that the plaintiff was grateful to the 2nd and 3rd defendants for their pecuniary and moral support in relation the property as well as the plaintiff and his daughter. There is also evidence to show that in 1995 a Notarial Deed of Servitude was prepared whereby the plaintiff and the 4th defendant were to donate to the 2nd defendant a servitude of habitatio over the land in question. However, this deed was confined to a right of occupation as opposed to ownership and, in any event, it was never eventually executed. It is also probable that the plaintiff may have at some time or another expressed his wish to donate or bequeath the property to the 2nd and 3rd defendants. Nevertheless, the evidence before this Court points to the conclusion that this wish was never fulfilled or actualised in terms of any binding legal instrument.

            It follows from the foregoing that the 2nd and 3rd defendants were not entitled to take transfer of the property. By the same token, they were not entitled to sell and transfer the property to the 1st defendant.

 

Disposition

            In the normal course of events, the donation of immovable property and its transfer are effectuated by the following legal instruments: an agreement or deed of donation, signed by the donor and the donee; a deed of transfer embodying two causae, one of donation and one of acceptance; two powers of attorney, one empowering the conveyancer to pass transfer in terms of a donation and another empowering him to accept conveyance of the donation; the corresponding declarations of value, one for the donation and the other for its acceptance, for the purposes of levying stamp duty. Taken together, these are the requirements of standard conveyancing practice and procedure. See Jones: The Law and Practice of Conveyancing in South Africa at pp. 329-330. Obviously, all of the requisite instruments must be duly signed by the relevant parties or their authorised agents.

            In the instant case, the plaintiff and the 4th defendant did not, either jointly or severally, donate their full or undivided half share in the property. The ostensible donation is invalid and/or fraudulent for the reasons that I have already stated. Therefore, the unlawful transfer of title to the 2nd and 3rd defendants cannot stand. And the same applies to the subsequent transfer of defective title from the 2nd and 3rd defendants to the 1st defendant. This is so whether or not the 1st defendant’s representative was aware of the original defects. Even if she were an innocent or bona fide purchaser and transferee (which she was not), this does not avail her as a defence against the plaintiff’s claim for vindication. See Silberberg: The Law of Property (1975) at pp. 148-152.

It is trite that registration is the only legally recognised means of obtaining and recording title to immovable property. On this basis, it is theoretically possible to postulate a tacit or implied warranty of indefeasibility or unimpeachability of registered title. See Miller: The Acquisition and Protection of Ownership at p. 173. However, it seems to me that the benefit of this theory cannot possibly avail the defendants in the present circumstances, where transfer of title has been invalidly or fraudulently procured.

            It is further submitted for the defendants that the transfers in casu cannot be cancelled because the 4th defendant has been paid for her half share and is not seeking such cancellation. In my view, this argument cannot per se detract from the voidability of the first transfer of title. Any right or claim that the other defendants may have as against the 4th defendant is a separate matter which is not directly pertinent to the present proceedings. Obviously and logically, it would entail the 4th defendant being required either to compensate for the moneys she received in 2006 or to transfer her half share in the property, in compliance with the requisite conveyancing procedures and formalities.

            In the premises, the plaintiff is entitled to the original unamended relief that he sought in casu. Section 8 of the Deeds Registries Act [Chapter 20:05] enables the cancellation of a deed of grant or deed of transfer, but only pursuant to an order of the High Court.Upon such cancellation, the deed under which the property was previously held is then revived to the extent of such cancellation. Thereafter, the Registrar is enjoined to make the appropriate endorsements on the relevant deeds and entries in the registers.

Incidentally, I think it necessary for the Registrar to transmit a copy of this judgment to the Officer-in-Charge at Harare Central Police Station for the purpose of assisting the criminal investigations in CR 283/11/2006. As is evident from the foregoing, it is necessary to investigate not only the conduct of the 1st, 2nd and 3rd defendants but also that of the conveyancer, Christopher Chigwanda. The Registrar is directed to proceed accordingly.

 

In the result, it is declared that:

  1. The transfer of Stand No. 4795 Salisbury Township of Salisbury Township Lands (also known as No. 1 Milner Road, Braeside, Harare) to the 2nd and 3rd respondents by Deed of Transfer No. 9236/2005 is null and void;
  2. The sale and subsequent transfer of the aforesaid Stand to the 1st respondent by Deed of Transfer No. 7424/2006 are null and void.

 

Furthermore, it is ordered that:

  1. Deed of Transfer No. 9236/2005 and Deed of Transfer No. 7424/2006 be and are hereby cancelled;
  2. Deed of Transfer No. 1420/81 be and is hereby revived;
  3. The 1st, 2nd and 3rd defendants shall pay the costs of suit jointly and severally, the one paying the others to be absolved.

 

 

 

 

Granger & Harvey, plaintiff’s legal practitioners (in forma pauperis)

Sinyoro & Partners, 1st defendant’s legal practitioners

Debwe & Partners, 2nd and 3rd defendants’ legal practitioners