ZAECELL 2 (25 May 2016).
The Applicant, Grouse, argued that the property was not purchased and registered in Mdyogolo’s name as a gift, but rather, to have a roof over his head. The property was registered in her name only due to her false misrepresentation on which he acted on to his detriment. He was not opposed to the sale in itself, but sought to protect his interests and approached the Court to prohibit Mdyogolo from selling the property, pending the launch of an action regarding his right to the property.
The court held that the dispute of fact in relation to the circumstances surrounding the purchase and registration of the property into the name of Mdyogolo was a matter for the intended trial. With respect to the interim interdict application, Grouse needed to establish that there was a prima facie right, a well-grounded apprehension of irreparable harm and an absence of any other satisfactory remedy. He was successful in establishing this.
Prima facie right and apprehension of harm
The prima facie (at face value), right that Grouse had to establish was one that may have been open to some doubt. Parties have the freedom to contract. Therefore, there is nothing precluding two people from agreeing that one will buy an immovable property to be registered in the others name, rendering the latter as a mere nominee.
It is also available to one to challenge a sale giving rise to the transfer of immovable property induced by a fraudulent misrepresentation, as being of no force and effect. Subject to his version being truthful, Grouse was therefore not precluded from asserting the contractual right. In this case, the property paid for by him and registered in the name of Mdyogolo as a result of fraudulent misrepresentation, accorded him a direct and substantial interest in the property and its proceeds of sale. Thus, purely at face valuel, Mdyogolo’s version that the property was a gift, in the circumstances, is hard to believe.
Mdyogolo made no representation as to what she intended to do with the proceeds of the contemplated sale. Therefore giving no indication that the rights of Grouse would be taken into consideration and Mdyogolo would have access to the proceeds with without recourse to him. Were that to happen, Grouse would be prejudiced.
On the facts put before the court, there was a well-grounded apprehension of irreparable harm if the interdict was not granted and he was successful in his action.
The balance of convenience also favoured the granting of the interdict. Grouse stood to lose a substantial amount of money, should the intended sale proceed. He paid the purchase price of the property while Mdyogolo paid nothing. She therefore stood to lose nothing should the interdict be granted.