By Brenna Matendere
Harare businessman Tendai Mashamhanda has lodged a High Court application seeking cancelation of title deeds awarded to Barriade Investments for his US$1.5 million mansion which was facilitated by lawyer and opposition politician Tendai Biti as well as the Registrar of Deeds.
In the court application, Biti is cited as the second defendant followed by the sheriff of the High Court,
Puwayi Chiutsi, Elliot Rodgers and the Registrar of Deeds.
Mashamhanda avers that in or around February 2019, the he purchased a piece of land situated in Harare called the Remainder of subdivision C of Lot 6 of Lots 190,191,193,194 and 195 Highlands Estate of Welmoed measuring 437 square metres (“the property”;) from one Puwayi Chiutsi which property was subsequently transferred to him.
“At all material times there were no encumbrances on the property which explains why there was no difficulty or impediment in having the property transferred from Puwayi Chiutsi to the Plaintiff. It became apparent after title to the property had been registered in the Plaintiff’s name that the first Defendant was laying claim to the property on the alleged basis that it had bought the property at an auction.
The property had allegedly been judicially attached by the third Defendant in order to satisfy a debt owed to the fourth Defendant by Puwayi Chiutsi.
“After a lengthy legal dispute, the property was subsequently transferred to 1st Defendant under Deed of Transfer 2541/22. During the time the Plaintiff was the lawful occupier of the property, he made massive improvements on the property.
“The Plaintiff is claiming US$1,196 749.00 (one million one hundred and ninety-six thousand seven hundred and forty-nine United States Dollars) from the first Defendant for unjust enrichment and separate Summons under cover HCH1725/24 were issued on 9ht April 2024 and the mater is pending before the Courts,” reads part of the court application.
The businessman also submitted that the Sherrif of High Court instituted eviction proceedings against him on illegal basis. “During the protracted litigation, upon a perusal of the title deed, it became apparent that the documents submitted to the Registrar of Deeds by the conveyancer were irregular. The Plaintiff became aware that the Capital Gains Tax (CGT) Certificate and the Rates Clearance Certificate were not properly obtained and therefore invalid.
“Further the Plaintiff noted that there are many anomalies on the Deed of Transfer including wrongly quoted extending clause, wrong purchase price and improper endorsement and alteration ot Bariade (Pvt) Ltd’s title ”The court papers say Biti used a fraudulent Special Power of Attorney which purported to emanate from the fifth Defendant to pursue what was described in the fraudulent document as “the execution of all my (fifth Defendant’s ) claims arising from case number HC3331/2014”.
“The fraudulent Power of Attorney purport to have been made in favour of one Constantine Chaza and alleges that Chaza was nominated and appointed two years earlier than its date of purported execution.
“More fundamentally, the fraudulent power of attorney does not establish that it was signed before a notary public as required by law. It was therefore invalid. All subsequent actions which were taken by the Defendants on the basis of the fraudulent power of attorney which purported to emanate from the fifth Defendant in “the execution of al his claims arising from case number HC3331/201” including the purported sale in execution-were accordingly of no legal consequence.
“The documents which were used to effect registration of title to the property in the name of the first Defendant (being an application /affidavit by the second Defendant dated 7* April 2021 and a purported power of attorney by the third Defendant dated 18 January 2019) were legally invalid.
“The application/affidavit does not accord with the provisions of section 3 of the Deeds Registries Regulations RGN 236/2018. There is nothing to show that the second Defendant is the entity carrying out the judgment, and the application/affidavit does not certify the matters which should be certified in terms of that section.
“The purported power of attorney does not comply with section 78(a)of the Deeds Registries Act [Chapter 20.05] (as amended) relating to the attestation of powers of attorney. It does not show that it was witnessed by either a legal practitioner or a notary public or a justice of the peace and that the signature of such legal practitioner or notary public or justice of the peace was affixed thereto in the presence of the person executing it.”
Mashamhanda said the purported mandate by Biti to transfer the property to Barriade Investments was unlawful as it emanated from the unlawful document purporting to be a power of attorney from the fifth Defendant. Such transfer was accordingly invalid.
“The second Defendant’s application was made at a time when there was no court determination in favour of the first Defendant entitling the latter to register title to the property in its name. The same position obtains in respect of the third Defendant’s power of attorney. Both documents were accordingly invalid and no lawful act could flow from them. The Supreme Court judgment which was relied on in transferring the property ot the first Defendant was only delivered on 15 February 2022. For that reason, deed of transfer number 2541/22 cannot stand. It must be cancelled.”
The businessman is praying for an order that in terms of section 8 of the Deeds Registries Act (Chapter 20:05) that the 6th Defendant cancels and annuals:} (1) Deed of Transfer Number 2541/2022 dated 5; May 2022 registered in favour of Barriade Investments
(Pvt) Ltd in respect of the Remainder of Subdivision C of Lots 190,191,193,194 and 195 Highlands Estate of Welmoed measuring 4377 square metres also known as 41 Ridgeway North, Harare. b) Costs of suit against the 51 to 5”; Defendants, jointly and severally, the one paying the others to be absolved.”
Last month Mashamhanda successfully stopped eviction from his house after Barriade solicited services of the Sherrif of the High Court despite a legal fact there is a Supreme Court case pending over the whole matter.
About Author
