REPORTABLE (102)
Judgment
No. SC. 100/04
Civil Appeal No. 370/03
JULIUS
MAZODZE v FARAI PHINEAS MANGWANDA
SUPREME COURT OF
ZIMBABWE
CHIDYAUSIKU CJ,
ZIYAMBI JA & GWAUNZA JA
HARARE JULY 15, 2004
& JANUARY 31, 2005
G. Mandizha, for
the appellant
G. Machingambi,
for the respondent
CHIDYAUSIKU CJ: The facts of this case, which are set out
very clearly in the judgment of the court a quo, are as
follows.
On 28 January 2003
the parties entered into a written agreement of sale of the
appellants house, Number 1837 Kushinga Crescent,
Ruwa, to the
respondent for the sum of $11 000 000.00. The
$11 000 000.00, in terms of clause A of the
agreements special conditions, was to be raised by the respondent
obtaining a 100% bond from Kingdom Bank as referred (sic)
in the purchase price and terms of payment above within 30 days of
the date hereof which bond will be applied for by the purchaser
on
the signing hereof and will be applied for by the purchaser on the
signing hereof and will be accepted by him when offered.
Condition 2 of the
general conditions provides for a bank guarantee or other guarantee
acceptable to the seller for the payment
of the purchase price. The
agreement provides that in the case of conflict between general
conditions and special conditions, special
conditions shall prevail.
Instead of applying
for the 100% bond from Kingdom Bank the respondent applied for and
obtained a CABS loan guaranteed by Kingdom
Bank as surety to the CABS
loan.
The appellants
appointed conveyancers on 21 February 2003 wrote to the
respondent tendering transfer of the property.
The conveyancers
attached the mortgage bond for the respondent to sign at the foot of
the second page. This means by 21 February
2003 CABS had
advised the appellants conveyancers of its willingness to loan to
the respondent $11 000 000.00 for the
purchase of the
appellants property.
The respondent argued
in the court a quo that even though there was a condition
precedent he had satisfied it by tendering the purchase price within
the stipulated period
even though the money was not from Kingdom
Bank. He argued that all the parties wanted was securing of the
purchase price whether
in forma specifica or by an equivalent
act. He further argued that his obtaining of a loan from CABS
guaranteed by Kingdom Bank constituted a substantial
performance of
the obligation contained in the special condition which entitled him
to an order requiring the appellant to sign all
the necessary papers
for the transference of the property to his name and, in the
alternative, that the Deputy Sheriff be authorised
to sign the
relevant papers on behalf of the appellant.
The appellant, on the
other hand, argued that because the transference was not strictly in
accordance with the wording of the agreement
he was entitled to
resile from the agreement.
The learned judge in
the court a quo, after a very careful analysis of the facts
and the law applicable came to the conclusion that the respondent
should succeed and
ordered the appellant to sign all the necessary
papers to transfer the property into the name of the respondent.
The appellant
was dissatisfied and noted an appeal to this Court.
Before the appeal was
heard the appellant filed a Chamber Application in terms of Rule 39
subrule (4) of the Rules of
this Court to lead further evidence.
I ordered that the application to lead further evidence be heard at
the same time as this
appeal. Accordingly, that application was
heard together with this appeal.
The further evidence that the appellant seeks to place before this
Court was that on 28 January 2003 he had entered into an
agreement of sale for immovable property in terms of which he sold
Stand 1837 Kushinga Crescent, Ruwa, to the respondent. On 7 April
2003 he unilaterally cancelled that agreement on the basis that the
respondent had breached the agreement by changing the source
of the
purchase price without his consent and that after he had received the
court application on 24 May 2003 in the court a quo, he
instructed his legal practitioners to defend the matter. The matter
was set down on 21 October 2003 and a court order for
specific
performance was granted in favour of the respondent. By the time
the order for specific performance was granted he had
already sold
and disposed of the immovable property to a third party by the name
of Gordon Chikumbu and that after he had signed
all the necessary
papers for the registration and transfer of the property into the
name of the third party the property was now
registered in the name
of the third party.
Thus, on the date the
court issued an order for specific performance the property in
question was registered in the name of the third
party and the third
party was not a party to the proceedings.
The facts of this
case therefore are somewhat unusual. I have no doubt in my mind
that the judgment of the court a quo was correct given the
facts of the evidence before it. However, I have no doubt in my
mind that if the learned judge in the court
a quo had been
aware that the property in respect of which he was about to issue an
order had already been transferred to a third party
he would have
directed that the third party be joined to the proceedings and given
an opportunity to defend his rights in the property
in respect of
which an order was sought. The court was not aware of the latest
development, as no evidence had been placed before
it. The court
made an order that I have no doubt it would not have made because it
was not capable of fulfilment.
Given these facts
this Court has no option but to set aside the order given by the
court a quo and refer the matter back to the court a quo
so that the third party is joined to the proceedings and a fresh
determination be made after the third party has been given an
opportunity
to establish whether he was an innocent purchaser or not,
which determination might affect the outcome of the proceedings.
However, this
situation has been brought about by the deceitful conduct of the
appellant and he should bear the costs of these proceedings
on an
attorney and client scale.
In the result the
appeal succeeds to the extent that the order made by the court a
quo is set aside and the matter is remitted to the court a quo
for the joinder of the third party and determination of the matter
afresh. The appellant shall bear the costs of these proceedings
on
an attorney and client scale.
ZIYAMBI JA: I
agree.
GWAUNZA JA: I
agree.
Mhiribidi, Ngarava &
Moyo, appellant's legal practitioners
G. Machingambi,
respondent's legal practitioner