The facts
CBZ Bank Limited (CBZ), pursuant to a judgment of court, instructed the Sheriff of the High Court to attach immovable property registered in the name of the judgment debtor. David Moyo (DM) challenged the attachment by the Sheriff and argued that he had bought the property from the judgment debtor before CBZ was granted the judgment. DM argued that even though the property was still registered in the name of the judgment debtor, it in fact now belonged to him as he had entered into an agreement of sale and was awaiting registration of the property in his name.
The legal issue before the Court
The legal question that was before the court therefore was whether a person, by merely having an agreement of sale, can claim ownership to an immovable property which is registered in someone else’s name. In essence, the court had to decide who owned the property between the judgment debtor, whose name was registered on the Title deeds, and DM, who had an agreement of sale of the property.
Decision of the Supreme Court
In a unanimous decision of three judges of the Supreme Court (Patel JA, Uchena JA and Mavangira JA), the Supreme Court held that title deeds to immovable property were not conclusive proof of ownership of immovable property. It was held that a title deed registered in the Deeds Registrar’s office is simply prima facie proof of ownership. Where a person with an agreement of sale can show that they actually purchased the property with the intention of having it transferred to themselves, then they can successfully be found to be owners of the property. In other words, there are circumstances in which an Agreement of Sale can be held to be proof of ownership over the Title Deed registered with the Registrar of Deeds.
Comments
Effectively, the Supreme Court has negated the importance of registration of transfer of land in the Deeds Registrar’s office. A title deed has effectively therefore been reduced to no more than prima facie proof of ownership, akin to a motor vehicle registration book. The difference however is that a motor vehicle registration book specifically says that it is not conclusive proof of ownership while the same cannot be said of a title deed to immovable property. Section 14 (a) of the Deeds Registries Act is clear that transfer of immovable property may only be transferred “only by means of a deeds of transfer executed and attested by a Registrar”. There is no other way to transfer ownership of immovable property. The Supreme Court has
however held otherwise meaning that even an Agreement of Sale may transfer ownership of immovable property.
The far reaching and probably unintended consequences of this is that lenders of money, especially banks, may find themselves without any security even though they would have executed a mortgage bond on a property’s title deed. Even in sale of land transactions, buyers may no longer take comfort following a deeds search with the Registrar’s office as someone else with an Agreement of Sale may claim ownership of the land. Suffices to add that there is no legal requirement for agreements of sale to be registered. Additionally uncouth judgment debtors can now easily avoid execution of their immovable property by entering into bogus Agreements of Sales in order to avoid execution of their immovable properties. With respect, the Supreme Court decision needs to be revisited and hopefully another case will come up where the Supreme Court will be persuaded to overturn its decision.
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