Richard Mudhanda v Jennifer Nan Brooker and Registrar of Deeds

In 2002, the plaintiff entered into a sale agreement with the first defendant for the purchase of stand numbers 285 and 286 Colne Valley Township held under Deeds of Transfer numbers 1788/69 and 1688/69. The plaintiff claimed he complied with all his obligations but the first defendant opposed registration in his name. In 2009, the plaintiff had the properties registered in the name of his company, Humworthy Investments (Pvt) Ltd. On 18 July 2011, the first defendant applied to court (HC 6909/11) for cancellation of these transfers, alleging the transfers were made fraudulently using a forged power of attorney without her knowledge and consent. The court granted the cancellation order on 27 October 2014. The plaintiff then issued summons on 25 November 2014 seeking an order compelling the first defendant to sign transfer papers and directing the Registrar of Deeds to process the transfer.

• Whether the plaintiff's claim had prescribed under sections 14 and 15 of the Prescription Act [Chapter 8:11]
• When does prescription begin to run in respect of a debt arising from a sale agreement
• When does a debt become 'due' for purposes of section 16(1) of the Prescription Act
• Whether mora ex persona requires a demand where the time for performance was not agreed upon
• Whether the period when properties were registered in the company's name (later cancelled) should be considered for prescription purposes

1. The special plea of prescription raised by the first defendant is dismissed. 2. The first defendant is to pay costs.

Where parties to a sale agreement for immovable property have not specified a date for transfer of ownership in their agreement, prescription does not begin to run automatically from the date of the sale agreement. In such circumstances, the purchaser must first place the seller in mora by making a demand for transfer, specifying a reasonable date for performance. Prescription only begins to run from the date agreed for transfer following such demand. A sale agreement merely creates obligations and does not automatically effect transfer of ownership. The debtor must be placed in mora ex persona through interpellatio (demand) before prescription can commence under section 16(1) of the Prescription Act where the time for performance has not been agreed upon.

The court observed that: (1) A contract of sale merely obliges the seller to pass vacua possessio and does not require the seller to be the owner of the property; (2) Neither delivery nor payment of purchase price is necessary for creation of a contract of sale - these fall within performance of the contract; (3) A purchaser is at liberty to have purchased property registered in the name of a third party nominee under the Deeds Registries Act; (4) The court noted that registering property in a nominee's name would not be a sound reason for cancellation of registration; (5) The court declined to determine the authenticity of the 2002 sale agreement, stating this should be decided by the court hearing the substantive transfer claim. The court also commented that the plaintiff's apparent concession (by not contesting the cancellation) suggested he had the transfers made without the first defendant's knowledge and consent.

This case is significant in Zimbabwean law for clarifying the principles governing when prescription begins to run in property sale transactions. It establishes that: (1) a sale agreement does not automatically trigger the running of prescription from the date of signature; (2) where parties have not agreed on a date for transfer of ownership, the creditor must place the debtor in mora through a demand before prescription can commence; (3) the distinction between the creation of a contract of sale and the performance thereof (transfer of ownership); and (4) that fraudulent or unauthorized registrations that are subsequently cancelled should be treated as non-events for prescription purposes. The judgment reinforces the importance of mora ex persona in determining when prescription commences.