THE High Court has saved a Zvimba family from losing a farm it has been living on since 1950 after a local company acquired an irregularly issued title deed to the land.
Stansilous and Pia Paraffin heaved a sigh of relief after High Court judges Justices Philda Muzofa and Catherine Bhachi-Muzawazi found that the title deed relied on by the company to seek the family’s eviction had been irregularly issued.
The Paraffin family had cited Rainbow Distributors (Private) Limited as the respondent in the application for appeal against a Chinhoyi magistrate’s decision to evict them.
The family’s father took occupation of the land in dispute in Murombedzi, Zvimba, in the 1950s and sometime in 1955, as a pioneer businessperson, the late Simon Paraffin, was allocated stand numbers 56, 63 and 118 by government.
In 1982, the surveyor-general through a Murombedzi Commercial General layout plan drew a plan that did not demarcate the family’s property from those of others in the vicinity.
Rainbow Distributors then obtained title deed number 5876/88 for stand number 57 as a whole, when the company bought the land from a third party not incorporated or mentioned by name in these and later proceedings.
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When it then emerged that the appellants’ family property had been inadvertently consolidated with that of the respondent, a query was raised with the Zvimba Rural District Council.
A litany of correspondence, minutes and resolutions that illustrate that both parties became aware of the error as a common mistake was presented and they resolved to settle the issue amicably.
Official documents from council on the process to rectify the mistake through the Surveyor-General’s Office with a view to procedurally cancel the title deed had begun.
However, for one reason or another, the respondent, then approached the magistrates court seeking the ejectment of the appellants on the basis of the same title deed it knew was in the process of being revoked.
Summons for eviction against the appellants were issued on September 7, 2023, while the Paraffin family raised the defence that they were legally on the property as their father had been lawfully allocated the stands which were then mistakenly consolidated with those owned by the respondent.
However, Raibow Distributors raised the defence of summary judgment, claiming that the appellants had entered their plea only to delay the inevitable and had no bona fide defence to their rei vindicatio [a powerful legal remedy that allows an owner to reclaim possession of their property from someone who unlawfully possesses it] action.
The main thrust of its argument for the summary judgment relief was that it had proof of ownership anchored in its title deed saying as such, as holders of real rights, it had indefeasible rights that can be exercised unperturbed against the world at large.
However, the respondent concealed to the trial court that relevant land authorities had resolved the dispute over the occupational rights of the appellants.
The trial court, however, found in favour of Rainbow Distributors’ reasoning that the appellants had no bona fide defence against the respondent’s claim of vindication.
The trial court found that since the respondent had title deeds, the appellants failed to prove their right of retention and dismissed the appellants’ triable issues argument.
The family appealed against the magistrate’s decision at the High Court on grounds that the trial court erred and misdirected itself in granting the application for summary judgment where the appellants had a valid and plausible defence.
In analysing the case, the High Court judges observed that a title deed is prima facie evidence of ownership, but the same does not obtain if that title is being challenged.
“There is irrefutable evidence borne in official documents, which are presumed correct until rebutted, that the respondents were not only privy to the dispute on the consolidated stands, but were also aware of the mistake in the consolidation of the stands.
“They willingly, voluntarily and without duress attended the meetings with the relevant public officials, entered into resolutions and appended their signatures to them.
“They were aware of the official processes that called for the cancellation of their title deed as it had been agreed it had been issued in error. It made the title deed defective,” the judges ruled.
The judges said the fact that the respondent did not deny that the appellants’ family’s stay on the property was lawfully sanctioned by the land authorities saying the respondent’s lack of candidness with the court led to the misdirected decision made by the trial court.
“The respondent is the one who instituted litigation against appellants. It made the initial blunder of not citing the appellants’ father’s estate and executor.
“They were well aware of this crucial fact through the meetings they held with the local authorities which are government and public offices.
“They could not turn around and use it as a weapon and point of law to derail the defence of those it had itself elected to sue.”
The judges said the appellants tendered a valid defence that there was an error common to both parties in the consolidation of the stands that belonged to both parties.