Forkpress Investments (Private) Limited v Thapelo Dube and Mr Gore and Matura Enterprises (Private) Limited

### Preamble
1
HH 86-21
HC 2298/20
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FORKPRESS INVESTMENTS (PRIVATE) LIMITED

versus

THAPELO DUBE

and

MR GORE

and

MATURA ENTERPRISES (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 10 November 2020 & 3 February 2021

Opposed application

P. Nhokwara, for the applicant

H. Muromba, for 1st & 2nd respondents

TAGU J: This is an application for the eviction of the first, second and third respondents and all those claiming occupation through them from Lot 5 of Merchiston measuring 22.2 hectares held under parent Deed of Transfer number 1355 of 2008 dated 18 March 2008.

The facts are that the applicant and the third respondent entered into a land development contract in which applicant was supposed to subdivide and develop the remainder of Merchinston Farm held under Deed of Transfer 1355/2008 dated 18th March 2008. In return applicant would get 40% of the subdivided land. When the land development was about to be completed the third respondent purported to cancel the contract. The applicant referred the matter for arbitration. An arbitration award was awarded in favour of the applicant. The arbitrator awarded the applicant among other things Lot 5 measuring 22.2 hectares, Lot 9 measuring 18.6 hectares, Lot 10 measuring 20.1 hectares, Lot 11 measuring 20.2 hectares and Lot 13 measuring 117.9 hectares. The award was later registered by this Honourable Court on 22 January 2020 as a Court Order. This Honourable Court’s order is still extant. The applicant then became the one who was in lawful and peaceful possession of the subdivided land.

When the third respondent got knowledge of the arbitral award it purportedly sold Lot 5 of Merchiston farm to first and second respondents in order to defeat the arbitral award. The first and second respondents then hurriedly erected a fence during the Christmas holidays when the applicant’s directors were in Mozambique on holiday thereby committing an act of spoliation against the applicant. When the applicant’s directors returned and noticed what the first and second respondents had done they filed the present court application for their eviction.

The first and second respondents opposed the court application. In the process the first and second respondents forgot to attach a Power of Attorney. They promised to attach the same which they have not done to date.

At the hearing of this application the applicant raised a point in limine to the effect that there is no valid notice of opposition because the respondents did not attach a Power of attorney. It prayed that this application be treated as an unopposed application.

The counsel for the respondents indicated that it wanted to seek the leave of the court to file special power of attorney. The counsel for the applicant did not object to the production of the special power of attorney. However, the counsel for the applicant submitted that the special power of attorney produced by the respondents was a photocopy. He said in terms of High Court authentication of documents Rules, it should follow certain formalities. To that extent he submitted that the special power of attorney was not authentic. Therefore, there was no opposition to the application.

The court indeed noted the special power of attorney produced by the respondents. It is a photocopy. It does not comply with the Rules of this court. There is therefore no opposition to the applicant’s application.

The applicant obtained an arbitral award in its favour. The arbitrator awarded the applicant a number of pieces of land. The applicant duly took occupation of the same. The third respondent then entered into a sham agreement of sale in order to defeat the arbitral award. The arbitral award was registered by this court as an order of this court. It is therefore extant. The actions of the first and second respondents amounted to spoliation since they took over Lot 5 from the applicant without a court order. The applicant has managed to prove its claim on a balance of probabilities. If the respondents have a case, they can sue the third respondent.

IT IS ORDERED THAT

First, second and third respondents and all those claiming occupation through them be and are hereby evicted from Lot 5 Merchiston Farm situate in the district of Hartley held under parent Deed of Transfer number 1355/2008 dated 18 March 2008.

Third respondent is prohibited from conducting sham sales of applicant’s allocated Lots granted in case number HC 10343/19 and authority is given to the Sheriff or his lawful assistants to evict Third Respondent and any person claiming occupation through it from applicant’s Lots 5, 9, 10, 11 and 13 Merchinston Farm Chakari.

Costs of suit on a higher scale.

Madzingira and Nhokwara, applicant’s legal practitioners

Lawman Chimuriwo Attorneys, 3rd respondent’s legal practitioners