SC 26-14 - FOLLY CORNISHE (PVT) LTD & ANOTHER v TAPOMWA N.O & OTHERS

(1) FOLLY CORNISHE (PRIVATE) LIMITED (2) JOHN HAMPHREYS

v

(1) SHINGIRAYI TAPOMWA N.O. (2) ESTATE LATE MISHECK TAPOMWA (3) T.E. MUDAMBANUKI, practising in partnership with Mudambanuki & Associates (4) MANSTEBO & COMPANY (5) ADMIRE     RUBAYA (6) THE REGISTRAR OF DEEDS

 

 

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, GARWE JA & OMERJEE AJA

HARARE, NOVEMBER 12, 2012 & MARCH 28, 2014

R Fitches, for the appellants

T Mpofu, for the first to the fifth respondents

 

GARWE JA: This is an appeal against the judgment of the High Court dismissing with costs an application filed by the appellants (applicants in the court a quo) seeking the cancellation of a deed of transfer in respect of Stand 2558, Glen Lorne, Harare, registered in the name of the second respondent and the simultaneous revival of the original deed of transfer registered in the name of the first appellant.

The facts of this case are these.  The first appellant was the owner and registered title holder of Stand 2558 Glen Lorne (“the stand in question”).  The second appellant is a director of the first appellant.  The late Misheck Tapomwa, whose relationship with the second appellant was the subject of dispute in the court a quo, was allowed to build, on the stand in question, some accommodation for himself and his family.  The first respondent is a son of the late Misheck Tapomwa.  When Misheck Tapomwa died in November 2000, his family continued to reside at the stand in question.  In October 2008 the first respondent, acting in his capacity as executor dative of his late father’s estate, filed an application in the Magistrates’ Court in which he sought and was granted an order declaring the stand in question to be part of the estate of the late Misheck Tapomwa and directing the directors of the first appellant and the second appellant to sign all necessary papers to effect the transfer of the stand into the name of the deceased estate, failing which the messenger of court was given authority to sign all such papers.

The basis of the order sought was that the second appellant had “pledged” the stand in question to the late Misheck Tapomwa “as remuneration and pension”.  The first respondent further sought an order in the same court interdicting both appellants from alienating, selling, encumbering or in any way disposing of the property in question.  Following this development, title in the stand in question was transferred to the deceased estate.  On discovery that the property had now been transferred to the second respondent, the appellants then filed a court application seeking an order interdicting the sale of the stand in question pending the determination of an application to cancel the registration of the stand in the name of the deceased estate.  Following the grant of the order, the appellants then filed an application seeking an order in terms of s 8 of the Deeds Registry Act [Cap 20:05] setting aside the deed of transfer registered in the name of the deceased estate and the revival of the original deed of transfer in the name of the first appellant.  It is the order given in respect of this application that forms the basis of the present appeal.

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