REPORTABLE
(30)
Judgment
No. SC 39/06
Civil
Appeal No. 334/05
FARAI
NDEMERA v
(1)
ROSALIND MARIE (2) BLESSING MANYECHE (3) THE
REGISTRAR OF DEEDS
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, CHEDA JA & ZIYAMBI JA
HARARE,
JUNE 20, 2006
A
M Gijima,
for the appellant
A
Moyo,
for the second respondent
No
appearance for the first respondent
No
appearance for the third respondent
CHEDA JA: After hearing both
counsel in this appeal, we dismissed it with costs and said the
reasons would follow.
These are the reasons:
Two applications were heard by
the High Court together as they involved the same parties and the
same property. The background to
the applications was given in the
judgment of KAMOCHA J as follows:
The
triangle of the double sale is as follows:
The
said property was owned by Rosalind Marie Ngulube the first
respondent who sold it to Farai Ndemera - the applicant - for
$600
000 000,00 on 12 July 2004. The purchaser had to pay $300 000
000,00 on or before 14 July 2004 and the balance upon transfer
of the
property into his name.
Farai
Ndemera Ndemera, complied with the terms of the agreement and
paid $300 000 000,00 by the due date and went on to pay
$230 000
000,00 before transfer leaving a balance of only $70 000 000,00.
While
Ndemera was religiously complying with the terms of the agreement
Ngulube was busy offering the same property to other people
for a
higher price.
On
3 November, 2004 she entered into a sale agreement with Blessing
Manyeche. The property was sold for $700 million which Manyeche
paid in full and transfer into his name was effected on 9 December
2004.
Ndemera
in the meantime had taken occupation of the property although it had
not yet been transferred into his name.
When
Ndemera learnt that the property had been sold and actually
transferred to Manyeche he made a court application to reverse
the
sale and transfer to Manyeche.
Ndemera
also claimed in the alternative that Ngulube refund him the $550
million plus interest at the prevailing bank rate.
On
the other hand, Manyeche also sued for the eviction of Ndemera from
the property.
On
the alleged knowledge of the prior sale of the property to Ndemera
before it was sold to Manyeche the court found that Ndemera
had not
shown that Manyeche was aware that Ndemera was a prior purchaser.
It found that Ndemera had contradicted himself about
the visits of
Manyeche to the property and viewing it before he purchased it.
Mr Gijima
submitted that the balance of convenience favoured Ndemera as he had
already settled on the property and had children attending school
in
the area.
However,
this was countered by the fact that Ndemera had acquiesced in the
cancellation of the sale to himself because he even went
as far as
providing his bank account to which the refund of the money he had
paid for the property could be deposited, that is, his
Zimbank
account.
He
only sued the complainant about the sale when he had problems about
recovering his money.
The finding
by the court a
quo
that he acquiesced in the cancellation of the contract by Ngulube
cannot be faulted.
He
could not arrange for a refund if he still wanted to enforce his
right and entitlement to the property.
The
respondent was entitled to cancel the contract once the appellant
agreed to accept a refund.
He
could not have both the refund and the property.
It
was for these reasons that we found the appeal to be devoid of merit
and dismissed it with costs.
CHIDYAUSIKU
CJ: I agree.
ZIYAMBI
JA: I agree.
P Chiutsi,
appellant's legal practitioners
Kantor
& Immerman,
second respondent's legal practitioners