James Ginio v Memash Holdings (Pvt) Ltd and Others

The 4th respondent (Sino-Zimbabwe Cement Company) obtained a consent judgment against the 1st, 2nd and 3rd respondents in the Magistrates Court, Gweru (Case No. 775/2017) for payment of money loaned against security of a mortgage bond registered over Stand 20011 Seke Township. The mortgage was based on Deed of Grant No. 3345/2016 dated 3 June 2016 registered in the name of the 1st respondent (Memash Holdings). When the 4th respondent caused the property to be attached in execution, the applicant (James Ginio) laid claim to the property. The Magistrate's Court determined the interpleader against the applicant, finding that since the title deed was not in the applicant's name, he had not proved ownership. The applicant noted an appeal (CIV 'A' 184/20) against the magistrate's decision and simultaneously brought this High Court application seeking cancellation of the Deed of Grant and a declaratur of ownership. When the matter first came before Chinamora J on 12 May 2021, it was removed from the roll due to concerns about lis pendens arising from the pending appeal.

• Whether the application was lis pendens vis-à-vis the pending appeal from the Magistrates Court interpleader proceedings
• Whether the Magistrates Court had jurisdiction to determine ownership of registered immovable property and cancel a registered deed of transfer
• Whether the High Court could grant the declaratur and order for cancellation of the Deed of Grant despite the pending appeal
• Whether costs should be awarded against the 4th respondent who did not oppose the application

1. Judgment for applicant. 2. Deed of Grant No. 3345/2016 dated 3 June 2016 is hereby cancelled. 3. The status of ownership of rights in the property shall revert to the position obtaining prior to the cancelled registration. 4. The 1st, 2nd and 3rd respondents jointly and severally, the one paying the other to be absolved, shall pay the applicant's costs of this application.

The binding legal principles established are: (1) Under section 8 of the Deeds Registries Act [Chapter 20:05], only the High Court has jurisdiction to cancel registered deeds of transfer or other deeds confirming or conveying title to land - the Magistrates Court lacks such jurisdiction. (2) The special plea of lis alibi pendens must be specially pleaded by the party seeking to invoke it and cannot be raised by the court of its own motion (mero motu). (3) Where a court lacks jurisdiction over the subject matter of a dispute, proceedings before that court cannot constitute lis pendens in relation to proceedings properly before a court with competent jurisdiction. (4) Upon cancellation of a registered deed pursuant to a court order, section 8(2) of the Deeds Registries Act provides that the deed under which the land was held immediately prior to the cancelled registration is automatically revived by operation of law.

The court made several non-binding observations: (1) It acknowledged that some of its findings might impact the determination of the pending appeal but found solace in the principle that its findings would not bind the appeal court as a matter of law and procedure. (2) The court noted that lis alibi pendens shares features with res judicata as both are grounded in the principle that there should be finality to litigation. (3) The court observed that a plea of lis pendens does not have the effect of an absolute bar - the court retains discretion to allow proceedings to continue even if all essentials of the plea are present, considering what is more just, equitable or convenient. (4) In determining lis pendens, it is the substance of the cases and not their form, nor the method by which they have been instituted (action or application), that matters. (5) The court observed that it would be improper to make a declaration that the applicant is the rightful holder of rights in the property because the status of the property follows automatically as a matter of law upon cancellation of the deed.

This judgment clarifies important principles of Zimbabwean civil procedure and property law. It establishes that: (1) the Magistrates Court lacks jurisdiction to cancel registered deeds of transfer or make declarations of ownership over registered immovable property - this is exclusively within the High Court's jurisdiction under section 8 of the Deeds Registries Act; (2) the plea of lis alibi pendens must be specially pleaded by a party and cannot be raised by the court mero motu; (3) for lis pendens to apply, there must be identity of parties, subject matter, and cause of action, and both courts must have competent jurisdiction - where one court lacks jurisdiction, there can be no lis pendens; (4) courts must consider the substance rather than form of proceedings when determining lis pendens; and (5) upon cancellation of a deed of transfer, the legal position automatically reverts to the status quo ante by operation of law under section 8(2) of the Deeds Registries Act.