CHIMPHONDA v RODRIQUES & ORS 1997 (2) ZLR 63 (H)

Flynote

Sale — immovable property — property sold to two different buyers — second buyer having notice of prior sale at time it took transfer — first owner entitled to recover property in absence of special circumstances disqualifying him from such relief

Headnote

The seller had fraudulently sold her immovable property to two different buyers. Both buyers paid the full purchase price for the property. The second buyer had obtained transfer of the property to it. The first buyer sought an order that the second buyer transfer the property to him on the grounds that the second buyer had knowledge of the first sale before transfer of the property was registered in the second buyer's name.

Held, that if in a double sale situation the second buyer has knowledge of the first sale of the property, either at the time of the sale or at the time it took transfer of the property, then, unless there are special circumstances affecting the balance of equities, the first buyer can recover the property from the second buyer. In such an instance, the second buyer's only remedy is an action for damages against the seller. In deciding whether there are special circumstances affecting the balance of equities, the court must bear in mind that the primary right of the wronged buyer is the remedy of specific performance which will be granted unless there is some equitable reason disqualifying him from obtaining such relief.

Held, further, that in the present case there were no special circumstances affecting the balance of equities disqualifying the first buyer from being granted his primary right of specific performance.