The High Court has dismissed with costs, an application by a local company, Bariadie Investments (Pvt) Ltd, to have a deed of transfer of a Mt Pleasant property that was purchased by businessman Mr Tendai Mashamhanda cancelled.
The company had made an opposing application following a wrangle over the immovable property worth over US$230 000 which was purchased by Mr Mashamhanda in 2019 measuring 4 377 square metres.
Bariadie Investments wanted the property to be transferred by the Registrar of Deeds into its name arguing that the property in question had already been sold to them by the Sheriff for US$270 000 through an auction in 2017.
In the application, Bariadie Investments (Pvt) Ltd had cited Harare lawyer Mr Puwayi Chiutsi as the first respondent, Mr Tendai Mashamhanda as the second respondent while the Registrar of Deeds, the Sheriff of the High Court of Zimbabwe and Mr Elliot Rogers were cited as the third, fourth and fifth respondents.
The company was represented by Advocate Thabani Mpofu while Mr Taona Wayne Nyamakura appeared for Mr Mashamhanda.
In his ruling, High Court Judge Justice Tawanda Chitapi said the applicant had prayed for an order that Deed of Transfer No. 708/19 made in favour of Mr Mashamhanda be cancelled and that the prior deed of transfer no. 8421/2000 in the name of Mr Chiutsi and from which transfer in favour of second respondent was made, should be revived.
“I accordingly dispose the application as follows; for the reasons that the application is res judicata and in any event, devoid of merit. It is hereby dismissed.
“The applicant shall pay the second respondent’s costs of suit. In regard to first and fifth respondents each party shall pay its own costs,” he said. Justice Chitapi said the part of the order sought directing transfer by the third respondent was incompetent.
The application was made by the company’s managing director, Kingstone Hamutendi Munyawarara who stated in his founding affidavit that: “The application is premised on the fact that the said property was sold to the applicant by the fourth respondent in execution proceedings against the first respondent in HC 3331/14.
“First respondent, whilst aware that the property had already been sold to the applicant by the Sheriff, fourth respondent hereto purported to sell and transfer the property to the second respondent.” Justice Chitapi said Mr Mashamhanda, in a lengthy opposing affidavit, had chronicled how he came to buy the property in question. “The second respondent (Mr Mashamhanda) did not connive with the first respondent when he purchased the property.
“The property was purchased through an estate agent company and the estate agent levied and was paid its commission.
“Second respondent paid transfer fees and registration cost and all taxes like capital gains tax. The second respondent before purchasing the property and taking transfer investigated whether there were any encumbrances and found none.
“Indeed, the legal practitioner who conveyanced the property did not find any caveats or other encumbrances noted against first respondent’s title deed to the property. The property was to all intents and purposes and to an outsider free for sale, conveyance and transfer. The second respondent averred that he was an innocent purchaser who took all reasonable steps as could be expected of any astute and reasonable would be purchaser to investigate that the property was free of impediments to purchase and transfer,” he said.
He added that the applicant in its heads of argument, had also submitted as in paragraph 16 that a caveat had been registered against the title deed and that consequently, it was a “wonder how transfer had been registered into the name Mr Mashamhanda.
“He who avers must of course prove. I have already noted that the so called caveat existed in name only and in the words of the applicant and counsel.
“It was just not proved to have been noted as l have already observed. It therefore appears to me that in considering the authorities cited herein, sight must not be lost that the attachment itself was not shown to have been done in terms of sale 347 (4).
He said Mr Mashamhanda took transfer of the property in the absence of a caveat having been noted against the property and if such caveat had been noted he would have been alerted to its existence.