Folly Cornishe (Private) Limited and John Hamphreys v Shingirayi Tapomwa N.O. and Others

The first appellant, Folly Cornishe (Private) Limited, was the registered owner of Stand 2558 Glen Lorne, Harare, measuring 18.2024 hectares. The second appellant, John Hamphreys, was a director of the first appellant. The late Misheck Tapomwa was allowed to build temporary accommodation on the stand. After his death in November 2000, his family continued to reside there. In October 2008, the first respondent (the late Misheck Tapomwa's son, acting as executor dative) filed an application in the Magistrates' Court claiming the stand had been "pledged" to his late father as remuneration and pension. The Magistrates' Court granted a default order declaring the stand part of the deceased estate and directing transfer to the estate. The court application was served at an address (25 Meath Road, Avondale West) which the appellants claimed was unknown to them, on a person named Gabriel. Following the order, title was transferred to the deceased estate (Deed of Transfer No. 8361/2008). The second appellant had left Zimbabwe in 1999 and was not present when service was effected. The appellants discovered the transfer when the property was advertised for sale at US$300,000. The appellants then filed an application in the High Court seeking cancellation of the deed of transfer under section 8 of the Deeds Registry Act and revival of the original deed in the first appellant's name.

• Whether the Magistrates' Court had jurisdiction to order the transfer of immovable property exceeding its monetary limit
• Whether a default judgment from a court without jurisdiction constitutes a nullity
• Whether the High Court could interfere with an extant Magistrates' Court order without rescission or appeal
• Whether section 8 of the Deeds Registry Act permits cancellation of a deed of transfer made pursuant to a void court order
• Whether the corporate veil could be pierced to bind the first appellant to the second appellant's alleged pledge
• Whether the transfer was obtained fraudulently through improper service

The appeal succeeded with costs on the legal practitioner and client scale. The High Court order was set aside. The Supreme Court ordered: (1) cancellation of Deed of Transfer No. 8361/2008 registered in the name of the Estate Late Misheck Tapomwa; (2) revival of Deed of Transfer No. 6050/2006 in the name of Folly Cornishe (Private) Limited; (3) the Registrar of Deeds to effect the cancellation and revival and make appropriate endorsements; (4) the Registrar to reinstate the first appellant as lawful owner; (5) costs against the first and second respondents jointly and severally on a legal practitioner and client scale; (6) the application against the third, fourth and fifth respondents was dismissed with costs.

A court order made without jurisdiction is void ab initio and constitutes a nullity. It does not matter when, by whom, or by what procedure the issue of validity is raised - if an act is void, it is incurably bad and everything founded upon it is equally void. A Magistrates' Court order directing transfer of immovable property valued far in excess of its statutory monetary jurisdiction (Z$500,000 in October 2008) is a nullity. When a Magistrates' Court acts as Assistant Master in deceased estate matters under the Administration of Estates Act, it performs administrative functions, not judicial ones, and has no power to judicially order transfer of property. A deed of transfer registered pursuant to a void court order can be cancelled under section 8 of the Deeds Registry Act. The failure to apply for rescission of a default judgment is irrelevant where the underlying order is void for lack of jurisdiction.

The Court made observations about the conduct of the first and second respondents suggesting impropriety: the cause of action based on an alleged "pledge" was never properly established; the assertion that the corporate veil should be pierced to bind the company to the director's alleged pledge was not substantiated with proper legal grounds; service was effected at an address unknown to the appellants despite the respondents' knowledge that the second appellant had been out of the country since 1999; the claim that the service address was obtained from the Registrar of Companies was never supported by documentation and remained a "bald" assertion. The Court noted that while the fifth respondent (legal practitioner) did not display expected competence, no clear evidence of impropriety on his part was established as he was acting on instructions. The Court found no proper basis for citing the third to fifth respondents (the law firms and legal practitioner).

This case is significant in Zimbabwean law for establishing several important principles: (1) that courts must strictly observe their jurisdictional limits, particularly monetary limits in property transfer matters; (2) that orders made without jurisdiction are void ab initio and require no formal rescission or appeal to be challenged; (3) that a void order is "incurably bad" and anything predicated on it collapses; (4) that the principle in MacFoy v United Africa Co Ltd applies - "you cannot put something on nothing and expect it to stay there"; (5) that the Magistrates' Court, even when performing functions as Assistant Master in deceased estates, acts administratively not judicially and cannot order transfer of property; (6) that section 8 of the Deeds Registry Act can be invoked to cancel deeds registered pursuant to void court orders; (7) that improper service and failure to establish a proper legal basis for relief may constitute conduct warranting costs on the higher scale. The case reinforces the importance of proper legal foundations for property transfers and the consequences of exceeding jurisdictional limits.