Court name
Supreme Court of Zimbabwe
Case number
SC 111 of 2002
Civil Appeal 122 of 2000

Karigambe and Another v Jogi and Others (122/00) (SC 111 of 2002, Civil Appeal 122 of 2000) [2003] ZWSC 111 (19 January 2003);

Law report citations
Media neutral citation
[2003] ZWSC 111










REPORTABLE
(99)


Judgment
No. SC 111/02


Civil
Appeal No. 122/00








(1)
CHRISTOPHER ZABRON KARIGAMBE (2) SUSAN KARIGAMBE





v
(1) CHARLES JOGI (2) DANIEL SHUMBA


(3)
CENTRAL AFRICA BUILDING SOCIETY


(4) THE
SHERIFF OF THE HIGH COURT








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
CHEDA JA & GWAUNZA AJA


HARARE,
SEPTEMBER 3, 2002 & JANUARY 20, 2003








E
T Matinenga
,
for the appellants





A
P de Bourbon SC
,
for the first respondent





No
appearance for the second respondent





No
appearance for the third respondent





No
appearance for the fourth respondent





CHEDA
JA: The appellants owed certain sums of money to Central Africa
Building Society (“CABS”) and other creditors. The
creditors
sued for their money and had the property of the appellants attached.
A sale in execution was eventually arranged.
In the meantime the
appellants sold the same property to the first respondent by private
treaty in an agreement of sale which was
signed by the appellants and
the first respondent.





Both
the appellants and the first respondent were aware that the property
was under attachment by the fourth respondent, the Sheriff
of the
High Court. The first respondent paid the appellants part of the
purchase price so that they could settle with their creditors.
This
would have had the effect of releasing the property from attachment.
However, the appellants did not settle their debts.
CABS refused
to consent to the cancellation of the sale in execution as the sale
between the appellants and the first respondent
had been arranged
without their consent.





On
3 March 1999 the first appellant advised the first respondent
that the sale in execution was on and that the first respondent
should come and bid in order to protect his interest. The first
respondent did exactly that.





At
the sale in execution, the first respondent made a bid up to
$3.1 million. The next highest bid was for $3 million.

The second respondent, Mr Shumba, was never declared a purchaser
and has not shown any interest in the matter.





The
first respondent subsequently applied to the High Court for the
auction sale to be set aside. The High Court granted the first
respondent’s application.





The
appellants argue that the sale by private treaty was a fraud. That
cannot be so. Rule 340 of the High Court Rules provides
as
follows:





“A
sale in execution shall be stopped as soon as sufficient money has
been raised to satisfy the said warrant and the costs of
the sale.”





There
is therefore nothing wrong with entering into an agreement with a
person who provides sufficient money on the condition that
such
person can buy the property and an agreement is entered into by the
parties to that effect.





Generally,
a sale by public auction should not be set aside unless it falls
under the provisions laid down in Rule 359, that
is, if “the
sale was not properly conducted, or the property was sold for an
unreasonably low sum, or any other ground”. Accordingly,
the
basis of the first respondent’s application properly falls under
“any other ground”.





In
their supplementary heads of argument, the appellants argue that the
first respondent could not be an interested party. This
submission
cannot be correct, given the fact that they had signed an agreement
with him and he had parted with a large sum of money
as a deposit for
the property. The court
a quo
was correct in holding that he was an interested party. They
recognised his interest and even invited him to come and protect it.





Even
the fraud they allege cannot assist the appellants. I have pointed
out that it is not a fraud; but I should point out also
that even if
it had been, they could not be allowed to benefit from their own
fraud as they had approached the first respondent and
sold the
property to him when it was already attached. He must have found
himself in a difficult situation when the same property
he had
already purchased was being offered for sale to other persons by
auction yet he had paid money in order to stop its sale.





The
sham bidding referred to by the appellants in their supplementary
heads of argument came about because they withheld the money
that he
paid and did not settle with their creditor CABS.





The
purpose of the first respondent attending the sale and bidding up to
$3.1 million was to protect his interest, as suggested
by the
first appellant. It was not to purchase the property for the second
time. For that reason, there was therefore no genuine
or valid sale
in execution.





If
a different party had made a higher bid than the first respondent,
then the sale would be proper and binding as such a sale would
have
been by an innocent and genuine party. Such sale would have
superseded the sale to the first respondent.





The
appellants continued to recognise the sale to the first respondent as
valid up to the date of the sale in execution. That
is why they
asked the first respondent to come and protect his interest. They
had not cancelled the previous sale. They had received
money as
part payment. They had not even offered to refund it.





When
the first respondent made part payment it was to enable the
appellants to “settle with (their) creditors”, as the first
respondent put it. If the appellants had done so, the sale in
execution would not have taken place. It came about because the
appellants had not paid the creditor CABS.





When
the first respondent applied for the cancellation of the sale in
execution, no-one else objected except the appellants. CABS,
the
then outstanding creditor, did not object. It seems satisfactory
arrangements have been made to pay CABS.





Mr Shumba,
who was referred to as the next highest bidder, has not shown any
interest in the matter. This is understandable,
as he lost nothing
and cancellation of the sale will not prejudice him in any way.





Cancellation
of the sale in execution will mean that only the previous sale to the
first respondent remains the proper and valid
sale.





The
argument by the appellants that that sale was cancelled is not
correct as there was no cancellation. It cannot be said to
be an
illegal sale either, because if CABS had given consent that would
have been the end of the matter even if it was entered into
when the
sale in execution was pending.





If
the sale in execution is not cancelled, it simply means the
appellants have the advantage of being paid more than what they had
agreed to in the previous agreement of sale. I agree with the court
a quo
that equity requires that the sale in execution be cancelled, as the
first respondent will be required to pay more while the appellants
will be enriched by their own mishandling of the matter. I say
“mishandling” because, firstly, when they were given part payment
they should have paid their creditors but they did not, thus
prejudicing the first respondent and putting his interest into
jeopardy.
Secondly, it is the appellants who asked the first
respondent to go and bid to protect his interest. They knew that
this bidding
was not to purchase the property again but to protect
the first respondent’s interest. They now want to benefit from
that arrangement.
This cannot be allowed.





Accordingly,
the appellants’ appeal cannot succeed. This means that the sale
by private treaty stands and, as such, they should
be evicted from
the property.





The
end result is that the appeal fails on the two matters and it is
dismissed with costs.














SANDURA  JA:
I agree.














GWAUNZA
JA: I agree.














Mudambanuki
& Associates
,
appellants' legal practitioners


Robinson
& Makonyere
, first
respondent's legal practitioners