Shomet Industrial Holdings (Pvt) Ltd and Yan Yu v Vincent Tom-Barris and Washington Frera and Registrar of Deeds

First applicant was a company incorporated on 17 March 2006, with second applicant (Yan Yu) and her deceased husband as sole directors. In 2009, second applicant purchased Lot 358 of Prospect (25.1499 hectares) and registered it in first applicant's name under Deed of Transfer 621/2009. On 27 September 2017, a CR14 was filed purportedly resigning all directors and appointing first and second respondents as sole directors, based on a loan agreement dated 9 May 2017 between second applicant's husband and the respondents' company Christian Community Life Assurance. Applicants alleged this loan agreement was cancelled for breach and that a subsequent sale/exchange agreement was a forgery. In October 2018, first and second respondents advertised that the Deed of Transfer was lost and obtained a certified copy on 31 October 2018, despite the original deed remaining in second applicant's possession throughout. Second applicant had filed a fraud complaint with the Registrar on 7 May 2018 and with police. By HC4088/19 dated 22 June 2020, the purported sale agreement was declared null and void.

• Whether first and second respondents misrepresented to the Registrar of Deeds that Deed of Transfer 621/2009 was lost or destroyed when applying for a certified copy
• Whether there was fatal non-joinder of the Registrar of Companies
• Whether the matter should be postponed pending other proceedings (rescission application and alleged appeal)
• Whether a permanent interdict should be granted restraining use of the fraudulently obtained certified copy of the deed
• Whether respondents were entitled to apply for a replacement deed when they never had possession of the original

The provisional order was confirmed with the following terms: (1) The Registrar of Deeds was ordered to expunge the Certified Copy of Deed of Transfer No. 621/2009 issued on 31 October 2018 from his records; (2) The original Deed of Transfer in second applicant's custody was recognized as the authentic deed in favour of first applicant; (3) First and second respondents were ordered to surrender the certified copy to the Registrar within seven days; (4) A permanent interdict was issued against all respondents from using or acting on the certified copy; (5) The Sheriff was authorized to retrieve the certified copy from respondents in case of default; (6) First and second respondents were ordered to pay applicants' costs of suit.

An application for a replacement of a lost or destroyed title deed under section 20 of the Deeds Registries Regulations must be made by a bona fide possessor who has lost possession. Where an applicant never had possession of the original deed, it constitutes misrepresentation to apply for a replacement. Anything not denied in pleadings is deemed admitted. A shareholder is not entitled as of right to possession of title deeds in a company unless they are a sole trader or an officer mandated with day-to-day management. An application for replacement title deeds based on an agreement subsequently declared null and void is founded on misrepresentation and will be set aside.

The court made strong observations about legal practitioners' growing tendency to ignore procedural rules without seeking leave or condonation, stating this practice must be discouraged as rules are essential tools for the due administration of justice. The court noted that while rules are made for the court and not the court for the rules, they serve important purposes in regulating conduct of matters and ensuring due administration of justice. Charewa J also commented that respondents appeared to be litigants who would "grasp at any straw to keep the wills of justice from turning," criticizing their various delay tactics. The court observed that postponement is not to be had for the mere asking and must be based on good and sufficient grounds, and that applicants have the right to be heard to finality and to equal protection before the law.

This case is significant in Zimbabwean property and company law as it establishes important principles regarding fraudulent applications for replacement title deeds. It reinforces that misrepresentation to obtain certified copies of title deeds in lieu of originals will not be countenanced by the courts, particularly where the applicant never had possession of the original document. The case demonstrates the court's willingness to protect legitimate property owners from attempts to circumvent their rights through procedural mechanisms designed for different purposes. It also affirms the broad discretion courts have under Rule 87(1) regarding non-joinder issues and demonstrates judicial intolerance for procedural delay tactics and abuse of process.