CENTRAL AFRICAN BUILDING CONSTRUCTION

versus

CONSTRUCTION RESOURCES AFRICA (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

GOWORA J

HARARE14, 17, 28 and 29 June, 1 and 26 July 2010 and 2 March 2011

Civil Trial

E Jori, for the plaintiff

L Uriri, for the defendant

GOWORA J:  At the conclusion of the plaintiff’s case, Mr Uriri indicated that the defendant was applying for absolution from the instance and that he had the application ready which would be filed the following day. In the event the application was only filed on 16 September 2010. The response from the plaintiff was in turn filed on 21 October 2010. This has contributed in part to the delay in the determination of the application.

            The plaintiff filed summons on which the particulars of claim were endorsed. The particulars of claim on which the action was based were phrased as follows:

“The plaintiff’s claim is for an order evicting the defendant and all persons holding through it from three properties being 8 Whites Way, Msasa, 8 Loreley Close, Msasa and 8 Comet Close Mt Pleasant, which properties belong to the plaintiff and are in the wrongful and unlawful possession of the defendant, plus costs of suit.”

In answer to the summons, the defendant had, on 15 February 2007 filed a bald plea in which it merely denied the allegation on the summons and put the plaintiff to the proof thereof. On 17 May 2007 however, the defendant filed an amended plea in which it repeated the denial of allegations. It then amplified its plea with additional averments as follows:

“The defendant further avers as follows:

1. That a Mr Viera who has purported to institute these proceedings has not been authorised by the plaintiff to bring the current proceedings.
2. That in any event no resolution has been passed by the plaintiff’s current directors to bring a claim against the defendant because the defendant is not in occupation of the premises in question.
3. That the premises in question are lawfully occupied by the current directors and shareholders of the plaintiff and that the plaintiff can not seek its own eviction as there is no cause for such action.
4. That the current directors of the plaintiff have not breached the sale agreements between them and Mr Vieira concerning the premises in question upon which a vindicatory claim has been filed in this matter.
5. That all payments due to Mr Vieira were duly remitted and tendered.
6. That in the event that this court finds that Mr Vieira is still owed some money by the current directors and shareholders of the plaintiff, such amount is hereby tendered to Mr Vieira”.

The defendant then prays for a dismissal of the claim with costs. The plaintiff, through its legal practitioners protested to the defendant’s legal practitioners about the defective amendment to the plea but ultimately a replication was filed on behalf of the plaintiff. By the time the matter proceeded for a pre-trial conference it seems pretty evident that the parties had agreed to treat the amended plea as having been properly filed as no issue was raised at the pre-trial conference or thereafter.

The background to the claim by the plaintiff is the following: On 29 November 2004 the plaintiff in terms of a written agreement sold to the defendant assets listed on a schedule annexed to the agreement. An examination of the list shows that the assets comprised of office furniture, kitchen furniture and utensils, vehicles, workshop assets generators, water pumps and radios and various other items to do with the plaintiff’s business operations. In evidence, the plaintiff’s witness described the items sold under this agreement as plant equipment and goodwill. The purchase price was recorded as US$219 000-00, (Two Hundred and Nineteen Thousand United States Dollars). The effective dated of the agreement was 26 November 2004 and the purchase price was payable free of deductions against signature of the agreement by the parties. Clause 6 of the agreement provides:

“That the Zimbabwean Dollar equivalent of the United States Dollar shall be calculated at the auction rate prevailing in terms of the Zimbabwe Reserve Bank Auction Scheme as at the effective date.”

Clause 7 reads:

“It is recorded that delivery of the assets hereby sold shall be effected only against payment of the full purchase price”.

Again on 29 November 2004 the parties concluded another written agreement this time in relation to three immovable properties registered in the name of the plaintiff; viz; Stand 272 Beverley East Township of Stand 261 Beverley East Township, Stand 195 Beverley East Township 3 of Stand 218 Beverley East Township and Stand 8 Comet Rise Township 2 of Comet Rise Estate A. The purchase price for the properties was recorded as US$296 000-00, US$97 000-00, and US$88 000-00 respectively. The effective date of this agreement was the date of signature which was 29 November 2004. This agreement just like the first had provision for payment of a portion of the purchase in Zimbabwe dollars converted from United States dollars at the auction rate as at the date of payment. Clause 7 of the agreement provides that transfer of the properties shall be effected within a reasonable period after the purchaser has fully paid the purchase price to the seller. Risk and profit was in terms of clause 10 to vest in the purchaser with effect from the effective date from the purchaser was entitled to take occupation and be responsible for all rates, taxes, electricity, water, sewerage, refuse removal and other charges and surcharges lawfully rendered or levied in respect of the immovable properties.

A rift has developed between the parties on the implementation of the terms of the conditions of the two agreements and as a result the plaintiff has notified the defendant that it has cancelled both agreements. It has therefore sought the eviction of the defendant from all three immovable premises on the grounds that it remains the registered owner of the same.

In his submission for an order of absolution in favour of the defendant Mr Uriri has argued that the issues agreed at the pre-trial conference are not supported by the pleadings and that the real issues are; whether or not the suit before the court has been instituted by persons properly authorised to do so and, secondly, whether or not the plaintiff, acting by the hand of those behind the lis, is entitled to vindicate any or all of the properties which are the subject of the lis. Mr Jori on behalf of the plaintiff has accepted that this is the correct position. A brief cursory perusal of the submissions from counsel for both parties actually seems to dwell on the issues as originally agreed upon and settled at the pre-trial conference.

It is further argued that at the close of the plaintiff’s case there was no evidence placed before this court ‘upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff.’ There exists a plethora of authorities on the test to be applied by a court considering an application by a defendant for an order of absolution from the instance, the leading case being Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1wherein BEADLE CJ stated the test be as follows:

“The test therefore, boils down to this: is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make a definition which helps not at all.”

In Taunton Enterprises (Pvt) Ltd & Anor v Marais 1996 (2) ZLR 303 MALABA J (as he then was) defined the test thus:

“The test is whether at the close of the plaintiff’s case there is evidence upon which a reasonable man acting carefully might (not should) give judgment for the plaintiff on the issues before the court. The judicial officer is enjoined to bring to bear upon the evidence what the judgment of a reasonable man might be, but not what he thinks the judgment is: Gascoyne v Paul & Hunter 1917 TPD 170 at 173; Myburgh v Kelly 1942 EDL 202; Huzienga NO v Zvinoira 1987 (2) ZLR 276 (H) at 280A-B”. 

CHATIKOBO J in Munhuwa v Mhukahuru Bus Services 1994 (2) ZLR 382 (H) had described the test thus:

“… .It is axiomatic that an application for absolution from the instance stands much on the same footing as an application for the discharge of an accused at the end of the State case in a criminal trial. This much is clear from the judgment of BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A).”

In order for an application for discharge at the end of the State case in a criminal trial, an accused person has to convince the court that the State has failed to establish a prima facie case against the accused. It is trite that the onus on the State in a criminal matter is generally higher than required in civil proceedings. It seems to me therefore that in order to succeed in an application for absolution from the instance a defendant must convince the court that the plaintiff has not established a prima facie case, meaning that there is no evidence before such court which in the opinion of a reasonable might justify such making an error and find for the plaintiff.

What is the evidence by the plaintiff in this matter? The plaintiff produced copies of original title deeds for the three immovable properties which reflected that the properties were registered in the name of the plaintiff. In terms of the agreement of sale concluded on 29 November 2004 transfer of the properties into the name of the defendant would in terms of clause 7 of the same be effected by the Seller’s conveyancers within a reasonable period after the purchaser has fully paid the purchase price to the seller. Yet on 9 March 2009 the defendant’s legal practitioners addressed a letter to the plaintiff’s legal practitioners in which the following is stated:

“Be that as it may, it has also come to our attention through your aforesaid letter and pleadings in Case 708/09 that unbeknown to our Mr Chinawa;

1. our clients have sold some of the properties in question to third parties 

…

…

As indicated above, our Mr Chinawa only came to know of the alleged fraudulent transfers of the two properties through your letter. The transfers were not handled by us nor was our advice sought.

The writer has also ascertained that some time last year, Mr Masukuma approached our  conveyancing department with instructions for application for lost deeds. The department proceeded to take all the necessary steps in law recovery of the deeds as requested by Mr Musukuma.”

The letter from the defendant’s legal practitioners appears to me at face value to be contrary to what was agreed to by the parties in the agreements of sale in respect of the plant and equipment and the sale of the immovable properties themselves. The day after the two agreements were signed the plaintiff addressed a letter to the defendant for the attention of Mr Musukuma on the implementation of the agreements. The pertinent paragraphs for purposes of this application are the first and second paragraphs which state:

“Further to the signing of this agreement we wish to confirm the following:-

1. that on settlement of the full purchase price for the Deed of Sale and Agreement of Sale, we shall deliver to the purchaser all share certificates of the shares of company free from any pledge, cession or encumbrance, together with such transfer forms duly signed and stamped by or on behalf of the seller in such form of law as may be necessary to enable registration of the shares to be effected in the name of the purchase (sic) in the books of the company.
2. that upon settlement of the full purchase price for the Deed of Sale and Agreement of Sale, we shall procure the registration of the directors, secretary, public officer and other officers of the Company.”     

The plaintiff has produced letters from its legal practitioners and addressed to the defendant and its legal practitioners, wherein the plaintiff complains that the defendant had not paid the purchase price in terms of the schedules agreed between the parties and which schedules formed part of the agreement. The plaintiff has also produced letters written on behalf of the defendant regarding the issue of payment of the purchase price. On 5^thOctober 2006 the defendant’s legal practitioners addressed a ‘without prejudice’ letter to the plaintiff’s legal practitioners giving an undertaking by their client to undertake a comprehensive calculation and account on all payments done to date, including any arrears if any, by 25^th   October 2006. On the 25^ththe same legal practitioners addressed a letter to the plaintiff’s legal practitioners in which a schedule of payments allegedly made to the plaintiff was attached. A letter from the plaintiff’s legal practitioners dated 27^thOctober 2006 to those of the defendant’s disputed the amounts reflected on the schedule and invited the defendant to furnish proof of the alleged payments. On 7^thNovember 2006 the plaintiff’s legal practitioners gave thirty days written notice to the defendant of their client’s intention to cancel the agreements. On 6^thDecember 2006 the defendant’s legal practitioners sent a cheque of $2 500 000-00 to the plaintiff’s legal practitioners under cover of a letter. The letter states that the amount was in full and final settlement of the amount outstanding by the defendant. There is no reference made to the letter of cancellation sent a month earlier to the defendant.

 In terms of the agreement of sale transfer of the properties should have been done after full payment of the purchase price. The plaintiff’s evidence is to the effect that the defendant was in breach causing it, the plaintiff to cancel the agreements of sale yet the properties have been transferred to the defendant. In my view, the letter by the plaintiff of 29^thNovember 2004 was specific that transfer in respect of the shareholding in the plaintiff would only be effected upon full payment of the purchase price relating to the plant and equipment. The evidence from the plaintiff is to the effect that payment has not been effected in full and thus no shares were transferred to the defendant’s directors. The plaintiff contends that the real issue is whether or not the Vieiras had resigned and appointed the Musukuma brothers as the only directors in the company.  I am in agreement with that conclusion.

It seems to me that the issue of authority to institute the proceedings on the part of the Vieiras is interlinked with the issue of who the directors and shareholders of the company were. In other words, the question to be answered is whether the Vieiras appointed the Musukumas as directors of the company in their stead. This question then puts in issue the CR 14 which was filed at the Company registry office as well as the minutes of the meeting where the appointments were alleged to have been made.

The evidence from the plaintiff was that Vieira Jnr was not in the country on the date the meeting is supposed to have taken place. The plaintiff has put the validity of the two documents in issue and it is for the defendant to establish that indeed the meeting did take place and that the Musukumas were appointed directors in which event the Vieiras authority to institute proceedings on behalf of the plaintiff would not exist. The contention by the defendant is that there should be a valid resolution passed by a board of directors of the company at a properly constituted meeting in which the proceedings were authorised. Whether or not there was a meeting is a question of fact which should be established by evidence. The contention by the defendant is that once a director has been appointed the appointment must be notified to the registrar of companies in the form of a CR 14 and that once this form has been filed there is a presumption of regularity.

Mr Uriri contended that returns filed in the companies registry are prima facie proof of the correctness of the contents thereof and that such returns can only be set aside by the Registrar if he has reason to believe that they contain false information.

Section 12 of the Companies Act [Cap 24:03] on which the defendant relies provides as follows in the pertinent parts:

“Any person having dealings with a company or with someone deriving title from a company shall be entitled to make the following presumptions, and the company and anyone deriving title from it shall be stopped from denying its truth-

a) …n/a

b)   that every person described in the company’s register of directors and secretaries, or in any return delivered to the Registrar by the company in terms of section one hundred and eighty-seven, as a director, manager or secretary of the company has been duly appointed and has authority to exercise the functions customarily exercised by a director, manager or secretary as the case may be, of a company carrying on the business of the kind being carried on by the company;

1. ... n/a

d)   … n/a

e)   … n/a

Provided that-

1. a person shall not be entitled to make such assumptions if he has actual knowledge to the contrary or if he ought reasonably to know the contrary;
2. n/a”.

Mr Jori submits that the section deals with a situation where the company itself has lodged the CR14 and if it does so, then certain presumptions are made and the company is estopped from denying to third parties the contents of the document. The plaintiff has denied that the document was properly produced and alleges fraud on the part of the defendant and its directors relating to its signature by Mr Vieira senior and its lodgement with the Registrar of Companies. It is however safe to assume that the presumption provided for in the section would operate against the company in favour of any third parties doing business with the company. It would not be logical to interpret the section to provide for a presumption against its directors and shareholders where documents that have been lodged are disputed by the parties who are supposed to lodge the documents themselves. In any event, in terms of the proviso to the section, the presumption is not available to a person who has knowledge to the contrary or is supposed to have such knowledge. I am not convinced that at this stage the defendant is entitled to hide behind the presumption of regularity without an explanation from its directors as to the manner in which the document was lodged with the companies’ registry.

It remains therefore that the court will have to enquire into the validity of the returns as that is the mast upon which the defendant has nailed its defence to the claim launched by the plaintiff. In Henochsberg on the Companies Act at p 261 the statement is made that the annual return is admissible in evidence as prima facie proof of the truth of its contents since the company has the statutory duty to make the return and the Registrar is under a duty to preserve it and make it available for inspection by the public. See R v Halpin (1975) QB 907. There is no provision in the Act which states that the returns can only be set aside by the Registrar as suggested by Mr Uriri and he has not pointed the court to any section. Since it is an artificial  persona a company can only act through its directors, sometimes called the human agency. In this case the evidence suggests that those directors are the Vieiras. If any credence is to be placed upon the CR14 which was filed with the companies registry that would also include the Musukuma brothers. However, given the evidence of plaintiff’s witness that they were not appointed as directors and it is therefore incumbent upon the defendant to place before the court evidence that would confirm that they were indeed appointed as directors.

Mr Uriri seems to suggest that in the absence of a resolution from the board of directors of the plaintiff authorizing the institution of these proceedings I must find that the Vieiras were not duly authorized and accordingly dismiss the claim on that basis. He has placed his reliance on remarks I made in Siziba v Dankwerts & Anor HH 108-08 to the effect that in the absence of a resolution the plaintiff therein had failed to establish that he had the requisite authority to institute proceedings on behalf of Hawkhope Investments (Pvt) Ltd which had been cited as the second plaintiff. In my view the legal position has been correctly summarized by Mr Jori. Mr Vieira and his father were directors of the company for some point in time in existence of the company. A document from the Registrar of Companies has been produced which is seriously challenged by the plaintiff which denies that the defendant’s representatives were ever appointed as directors for the plaintiff. In the premises, it is my view that the authority cited by the defendant can be distinguished from the present case. In any event my remarks in Siziba were premised on the basis of dicta in Mall (Cape) (Pty)Ltd vMerino Ko-operasie Bpk 1957 (2) SA 347 (CPD), a judgment by WATERMEYER J. The learned judge of appeal appeared in that case to have placed a burden on both sides, first of all, on the one party to adduce evidence of authority to institute proceedings; and to the challenge evidence to suggest lack of authority on the other. The remarks by the learned judge were to the following effect:

“There is a considerable amount of authority for the proposition that, where a company commences proceedings by way of petition, it must appear that the person who makes the petition on behalf of the company is duly authorized by the company to do so (see for example Lurie Brothers Ltd v Arcache, 1927 NPD 139, and other cases mentioned in Herbstein and van Winsen, Civil Practice of the Superior Courts in South Africa at pp 37, 38). This seems to me to be a salutary rule and one which should apply also to notice of motion proceedings where the applicant is an artificial person. In such cases some evidence should be placed before the court to show that the applicant has duly resolved to institute proceedings and that the proceedings are instituted at its instance. Unlike the case of an individual, the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant are in my view insufficient. The best evidence that the proceedings have been properly authorized would be provided by an affidavit made by an official of the company annexing a copy of the resolution but I do not consider that that form of proof is necessary in every case. Each case must be considered on its own merits and the court must decide whether enough has been placed before it to warrant the conclusion that that it is the applicant which is litigating and not some unauthorized person on its behalf. Where, as in the present case, the respondent has offered no evidence at all to suggest that the applicant is not properly before the court, then I consider that a minimum of evidence will be required from the applicant. (cf Parsons v BarklyEast Municipality, supra; Thelma Court Flats (Pty) Ltd v McSwigin 1954 (3) SA 457 (C)”.

In order for the defendant to successfully argue that the institution of proceedings on behalf of the plaintiff has not been authorized by the company it is necessary, according to the authorities, that the defendant place before the court a minimum of evidence suggesting that there is no such authority. I am mindful of the fact that most of the authorities that have been cited which deal with this particular point emanate from matters brought before the court, either as petitions or on notice of motion in which event the parties thereto would have filed affidavits in which evidence is given by either side as to the lack of authority or to its existence. This is an action and only one party has given evidence as yet. Nevertheless, I am of the view that it would cause an injustice if at this stage of the proceedings I were to find that the suit before has not been authorized based on an application by a defendant who is yet to give evidence. As the existence of authority on the part of the persons purporting to act for the plaintiff or lack thereof depends on facts. I find it necessary that the defendant assist the court by placing before the court evidence that would assist in resolving the dispute.

The CR 14 which should be the best evidence on this position is hotly disputed as the circumstances under which it was filed remain clouded in mystery. The defendant seems to place reliance on it and it would be only just in the circumstances for the defendant to explain to the court how and when the document was originated and filed with the Registrar of Companies. This evidence is particularly necessary where the parties are in conflict as to whether or not ownership in the company has passed which would lead to a change in directors as a result of the change in shareholding. In my view the plaintiff filed the CR 14 as a response from the allegation by the defendant that the premises in respect of which the plaintiff seeks the eviction of the defendants are now occupied by the plaintiff’s current directors and shareholders. There has been no evidence tendered that would point to the shareholding having changed hands. It is trite that directors to a company are appointed by the shareholders. If the shareholding is still held by the Vieiras then it would be difficult for me to find that the CR 14 reflects the correct position as far as the persons responsible for running the affairs of the company are concerned. There are allegations that the CR 14 was filed fraudulently and the papers that have been placed before me coupled with the evidence of Mr Vieira Junior leads to conclude that the defendant needs to explain to the court the circumstances under which the document was filed when all the correspondence between the parties point to an inability or failure on the part of the defendant to pay the amount agreed as the purchase price for not just the plant and equipment, but the immovable properties as well.

In any event, as argued by the plaintiff even if the institution of the proceedings had not been authorized, they can be ratified. See Smith v Kwanonqubela Town Council 1999 (4) SA 947 at 952 F-G; which quoted with approval Uitenhage Municipality v Uys 1974 (3) SA 800 (E) at 806H-807H. The question as to whether or the Vieiras had the authority to institute proceedings on behalf of the plaintiff can only be resolved in my view with a determination of the issue of who the directors of the company are. The contested CR 14 has not resolved that the dispute as it is seriously challenged by Mr Vieira and it would in my view be inequitable to the case of the parties for the court to rely on its contents without a proper explanation as to the manner in which it was filed, which information is within the preview of the defendant. I do not believe that at this juncture I should be asked to determine whether or not the proceedings were properly authorized. It will suffice that there is a minimum of evidence from the plaintiff suggesting that it might have been authorized. It is for the defendant to adduce evidence to show that the action has not been authorized.

It has been argued on behalf of the defendant that the plaintiff must establish ownership of the property and unauthorized occupation by the defendant. Counsel for the defendant has correctly stated the law as relates to the principle of action rei vindication, viz, that an owner is entitled to claim possession of his property from whomsoever is in possession thereof. In Chetty v Naidoo 1974 (3) SA 13 the incidence of ownership was framed as follows:

“… It may be difficult to define dominium comprehensively (cf. Johannesburg Municipal Council v Rand Townships Registrar & Ors, 1910 TS 1314 at p 1319), but there can be little doubt, (despite some reservation expressed in Munsamy v Gengemma, 1954 (4) SA 468 (N) at pp 470-471 E) that one of its incidents is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it. It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (eg a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res, the onus being on the defendant to allege and establish any right to continue to hold against the owner”.

It seems to me that in casu the plaintiff has done just that. It has alleged that it is the owner and the onus is now on the defendant to establish a right to retain the property in the face of the claim by the plaintiff. The plaintiff produced to the court Deeds of Title in respect of the three immovable properties. At the time of the commencement of the proceedings the defendant was in possession of all the properties. In further pleadings filed subsequent to the summons being issued the plaintiff has alleged breach of contract on the part of the defendant leading to a cancellation of the contract and thus being the basis upon which the eviction of the defendant is sought from the properties. Although the defendant conceded that at the time of institution of the lis the plaintiff was the owner, it argues that the property has now been sold to parties who are not before this court. The defendant contends that its managing director became a director of the plaintiff and on that basis occupied the property. I will consider the issue of the Chisipite property first.

The defendant has accepted that it occupies this property through its managing director on the basis that he is a director of the plaintiff. In my view the defendant has assumed the onus to establish the right to retain possession of this property. If it is terms of a contract between the plaintiff and the defendant, it is incumbent then upon the defendant to prove the terms of the contract and that it, the defendant, has since performed its obligations in terms of the same thus justifying its retention of the property.

In so far as the two other properties are concerned the defendant has contended that they have been sold to parties who are not before me and that I should not concern myself with the lis in which the plaintiff seeks to claim it from third parties, as I am not seized with it. It is pertinent to note that the defendant concedes ownership of the two properties by the plaintiff at the time this lis was instituted. The disposal would appear to have happened after the defendant became aware of the lis. According to the authorities where a property is sold after the defendant has become aware of the plaintiff’s claim the property is res litigiosa.

What then is the effect of the property being res litigiosa. The authorities are divided as to when such property becomes res litigiosa, with some suggesting that it is due to the service of the summons upon the defendant and others opining that it is after litis contestation. All are agreed however, that the rei vidicatio is an action in rem. The effect of the property becoming res litigiosa is that the defendant cannot alienate or mortgage the property to the prejudice of the plaintiff, per Siberberg & SchoemanThe Law of Property 2^nded. The defendant has not disputed that the two properties disposed of are res litigiosa, all that the defendant argues is that the parties to whom the properties were sold are not before me and therefore I cannot determine that lis. That may be correct but at this stage of the proceedings I am not determining the rights of the parties as regards the properties being claimed. I am tasked with determining whether or not the plaintiff has mounted a prima facie case such as would defeat the application for absolution from the instance. If an item is res litigiosa a defendant in an action in rem is not allowed to alienate or mortgage the subject matter of the lis. See ex parte Deputy Sheriff, Salisbury: In Re Doyle v Salgo 1957 (3) SA 740 at p 741 G-H. According to Silberberg the sale of a res litigiosa is valid inter parties but the purchaser is bound by the judgment in the action and the successful plaintiff can recover it from the new possessor by execution and without fresh proceedings.

In the premises it is my finding that the plaintiff has placed sufficient evidence before me to defeat an application by the defendant for absolution from the instance. The application is accordingly dismissed with costs.

Wintertons, legal practitioners for the plaintiff

Kantor & Immernam, legal practitioners for the defendant