REPORTABLE
ZLR (45)
Judgment
No. SC 53/06
Civil
Appeal No. 23/05
ELLEN
RUPARANGANDA v (1) DEMETRIUS
JOHN
PETRAKIS (2) PLATION ANTHONY ATHIENITIS (3)
REGISTRAR OF DEEDS
SUPREME
COURT OF ZIMBABWE
CHEDA
JA, GWAUNZA JA & GARWE JA
HARARE,
SEPTEMBER 18, & NOVEMBER 20, 2006
H
Zhou, for the
appellant
R
M Fitches, for the
first and second respondents
No
appearance for the third respondent
CHEDA JA: The first and second
respondents were the registered owners of an immovable property known
as stand No 67 of Rolf Valley
of Lot 17 of Rolf Valley of Rietfontein
in the district of Salisbury held under Deed of Transfer No 2187/80
(the property).
In
or about March 1999, the above property was transferred into the name
of one Ellen Chivasa Rukayi hereinafter referred to as
Rukayi,
by Deed of Transfer No 6997/99 allegedly by the first and second
respondents. This transfer followed an agreement
of sale of the said
property dated 28 November 1997 in which it was recorded that Rukayi
was the purchaser, and the first and second
respondent were the
sellers.
On
18 March 1999, Rukayi entered into an agreement of sale in which she
sold the property to Ellen Ruparanganda (hereinafter referred
to as
Ruparanganda) and Gilbert Ruparanganda.
By
Deed of Transfer No 2863/99, the property was transferred to the
names of Ellen Ruparanganda and Gilbert Ruparanganda by Rukayi.
Sometime
in December 2003, while enquiring about rates payable for stand 67
and 68 which are joint properties, the respondents discovered
that
stand number 67 had been transferred to Ellen Chivasa Rukayi, and
that a certified copy of the Deed of Transfer No. 06997/98
had been
used.
The
first and second respondents declared that they had never sold their
property to anyone, that they did not know Rukayi, and
the Title
Deeds of stand No 67 was still in their possession. They did not
know how the property had been sold to Rukayi and later
to the
Ruparangandas. They reported the matter to the Zimbabwe Republic
Police.
Up
to the time of the hearing of the case at the High Court, the police
had not been able to locate Rukayi. Only Ellen Ruparanganda
was
located at No 36 Zambezi Flats, Block 6 Quendon Road, Mabelreign,
Harare.
The
respondents applied for cancellation of the sale and transfer of
their property to Rukayi and the Ruparangandas and said the
transfers
had been obtained fraudulently and that Rukayi had no good title of
the property to pass to the Ruparangandas.
The
High Court granted the order sought by the respondents and ordered
that the transfers of stand 67 to Rukayi and the Ruparangandas
be
cancelled.
Ellen
Ruparanganda has now appealed against that judgment.
In
support of their application to the High Court, the two respondents
submitted the following information -
1.
They have never parted with the Title Deeds of stand 67. The
Title Deeds have
always been and are still in their possession.
2. The
signatures on the agreement of sale of stand 67 to Rukayi
are not theirs.
3. The
signatures on the Power of Attorney to make transfer are not
theirs.
4. The
signatures on the Declaration of Seller are not theirs.
5.
A copy of the Title Deeds was used to make transfer because
their Title Deeds
(originals) are still in their possession.
A
quick look at the signatures of the respondents on their affidavits
filed in the application and on the other documents, including
their
wills which were filed with their legal practitioners long before
this case, shows very clearly that they are not the ones
who signed
the agreement of sale or power of attorney. The difference is so
clear that it does not even need an expert to tell the
court that the
signatures are different, as the applicant sought to argue.
Ruparangandas
evidence stands alone in this application and is not supported by any
other evidence, besides the documents on
which the signatures of the
respondents are clearly forged. Rukayi cannot be found. She is not
available to say how she obtained
the property of the respondents.
There is no affidavit from her.
The
submission by the appellant that the respondents should have noted
and responded to the advertisement in the Herald concerning
the
application to replace lost Title Deeds does not assist the
appellant. The respondents did not even need to be on the look out
for such an advertisements because they had not lost their Title
Deeds.
The
appellant has not even bothered to produce or obtain affidavits from
the witnesses to the signatures on the agreements to say
that the
respondents are the persons who signed the agreements.
The
affidavit of Delwin Chanakira does not take the matter any further.
What he says about Mrs Dos Santos is his impression whose
basis is
not clear. If he heard anything from Dos Santos it would still be
hearsay as there is no affidavit from Mrs Dos Santos.
Rukayi
has remained out of the picture, and it seems deliberately. She is
not available to assist.
What
remains clear so far, according to the documents filed, is that the
respondents never signed any documents authorising the
sale and
transfer of their property to Rukayi who passed it on to the
appellant.
Accordingly
the High Court was correct in holding that Rukayi had no good and
lawful title to pass on to the appellant, since the
signatures of the
respondents were forged.
Accordingly
the appeal is dismissed with costs.
GWAUNZA
JA: I agree.
GARWE
JA: I agree.
Gill, Godlonton & Gerrans,
appellant's legal practitioners
Scanlen
& Holderness,
first and second respondent's legal practitioners
