Manfred Giese v Fred Andrews Enterprises (Pvt) Ltd and Andrew Nyamhunga and Focal Point College

### Preamble
1
HH 494 -25
Case No HC 2324/23
---------


MANFRED GIESE

versus

FRED ANDREWS ENTERPRISES (PVT) LTD

and

ANDREW NYAMHUNGA

and

FOCAL POINT COLLEGE

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 19, 20, 21, May & 2 September 2025

Civil Trial - Eviction & Damages for Lost Income

Mr S.A. Murondoti with Ms S. Dizwani, for the plaintiff

Mr N. Chikono, for the defendants

MUSITHU J:    The plaintiff approached the court seeking an order for the eviction of the defendants and all those claiming occupation through them from a property identified as Muchera of Graylands of Apsley of Subdivision A of Stoneridge, Harare (the property). The plaintiff also sought an accompanying order of costs on the legal practitioner and client scale. The genesis of the plaintiff’s claim is set out hereunder.

Background to the Plaintiff’s Claim

The plaintiff is the registered owner of the property which is registered under Deed of Transfer Number 7956/1995. Sometime in 1998, the plaintiff and the first defendant entered into a lease agreement, in terms of which the plaintiff leased the property to the first defendant. The first defendant was represented by the second defendant in his capacity as its director. The plaintiff and the second defendant were both directors and shareholders of the first defendant. The whole idea behind the lease agreement was for the plaintiff and second defendant to carry out a business venture through the first defendant at the plaintiff’s property.

In terms of the lease agreement, the first defendant was allowed to sublet only one of the dwellings to a third party. Part of the property was sublet to the second defendant and his family. The plaintiff claimed that the first defendant’s business never incepted as had been planned. That notwithstanding, the plaintiff allowed the second defendant to continue residing at the premises with his family, while overseeing the business venture. The first defendant however failed to remit rentals to the plaintiff, thus committing a breach of the lease agreement. The plaintiff averred that the first defendant had no right to remain in occupation of the property following the cancellation of the lease. Similarly, the second and third defendants had no right to remain in occupation of the property, since their right of occupation was tied to the arrangement between the plaintiff and the first defendant.

The plaintiff also claimed that the second defendant sublet the premises to the third defendant and several other occupants whose particulars were unknown to him. Despite demand, the second and third defendants had refused to vacate the property. Instead, the defendants had resorted to violence and threats directed at the plaintiff.

The Defendants’ Plea

In their defence, the defendants averred that the property was jointly acquired by the plaintiff and the second defendant, although it was registered in the plaintiff’s name. The second defendant averred that he and the plaintiff formed the first defendant sometime in 1993. The intended business of the company was to trade in electrical gadgets. The defendants claimed that the company never operated, nor did it occupy the premises as alleged. No rentals were ever paid in terms of the lease agreement since the first defendant never took vacant possession. The lease agreement was at most a purely administrative arrangement in case the company managed to trade in future.

The second defendant claimed that he occupied the premises on 1 September 1995, before the title was registered in the plaintiff’s name. He never vacated the property since then. The second defendant further claimed that he was given the right of occupation by a Mrs Smith, the wife of the previous owner of the property. The second defendant invited the plaintiff when he was already in occupation of the property.

The second defendant also averred that he formed the third defendant in 2016, but the company was taken over by the plaintiff in June 2017 to this date. The plaintiff was the one operating a school through the third defendant. There was never a lease agreement between the second and third defendants.

The defendants denied the allegations of harassment averring that it was the plaintiff who was harassing the second defendant and his family, and also refusing to acknowledge payments made to him by the second defendant as his contribution towards the purchase of the property.

The First Defendant’s Counterclaim

In addition to filing their plea, the second defendant filed his own counterclaim as follows. Sometime in 1995, the second defendant and the plaintiff jointly acquired the property from the estate of the late George Smith. The second defendant was offered the property by Mrs Smith, the wife of the late George Smith, but he had no sufficient funds to pay for the property. The second defendant invited the plaintiff so that they could buy the property as joint purchasers that same year.

The parties jointly purchased the property, with the second defendant using proceeds from the sale of his two properties, while the plaintiff used funds sourced from Germany. The plaintiff and the second defendant were supposed to have the property registered in their joint names, but the plaintiff clandestinely registered the property in his name alone. After the registration of the property in his name, the plaintiff undertook to have the property registered into the second defendant’s name once the second defendant had reimbursed the plaintiff his own portion of the purchase price.

The second defendant claimed to have carried out improvements amounting to US$62,000.00, and paid levies to the city council in the sum of US$33,000.00. The second defendant also claimed to have paid the sum of US$51, 000.00 to the plaintiff. The second defendant further claimed US$125, 000.00 from the plaintiff for protecting the property from land invaders, as well as for its upkeep since 1995. It was also alleged that the plaintiff disturbed the second defendant from fully utilising the property in order to generate income. The claims arising from such disruption were summarised as follows:

US$57, 600.00 for disruption of wedding garden;

US$200, 000.00 for disruption of farming activities between 2017 to 2021;

US$19, 000.00 for miscellaneous activities.

In total, the second defendant claimed the sum of US$626, 900.00 for what he termed part of the purchase price that he paid to the plaintiff towards the purchase price of the property, as well as the losses and damages that he suffered because of the plaintiff’s conduct. The second defendant also claimed interest on the said amount at the prescribed rate from the date of the claim to date of full payment.

In the alternative, the second defendant made the following claims:

that the property be subdivided into two equal portions with the plaintiff transferring the half share to the defendant;

that the subdivision process be initiated within 30 days from the date of the granting of the order;

that the transfer of the property be made within 60 days from the approval of the subdivision;

Costs of suit.

The matter was referred to trial on the following agreed issues as recorded in the joint pre-trial conference minute.

Whether or not the 2nd defendant and the plaintiff jointly acquired a property known as Muchera of Graylands of Apsely of Subdivision A of Stoneridge, Harare.

Whether or not the 2nd defendant suffered any damages.

Whether or not the plaintiff is entitled to eject the defendants from the property concerned.

The Plaintiff’s Case

The plaintiff was the first witness, and his evidence was as follows. He acquired the property in 1995 from the Executor Dative of the Estate Late George Smith, one Christiaan Petrus Scholtemeijer. The purchase price was ZW$500,000.00, which he financed through funds that he transferred from his bank account in Germany into his Barclays Bank account in Zimbabwe. The purchase price was paid as follows:

ZW$40, 000.00 on signing the agreement of sale on 10 August 1995;

ZW$40, 000.00 on 15 September 1995;

ZW$420, 000.00 on 30 September 1995.

According to the plaintiff, none of the defendants was involved in the purchase of the property, which he funded from his personal resources. The property was transferred into his name on or about 25 October 1995, from the estate of the late George Smith. The conveyancers of the property were Atherstone & Cook legal practitioners.

The plaintiff explained his relationship with the second defendant as follows. At the time of the purchase of the property, they both worked at the Department of Civil Aviation.  The plaintiff had been engaged as a consultant by the Government of Zimbabwe for the rehabilitation of airports for a period of 10 years. The plaintiff met the second defendant in 1989 when he first came to Zimbabwe, until the expiry of his contract in 1999.

The plaintiff and the second defendant founded the first defendant in 1993. The idea of forming the company was inspired by the second defendant’s passion for agricultural activities. After purchasing the property, the plaintiff entered into a lease agreement with the first defendant on 8 May 1995, for a monthly rental of ZW$8, 000.00. No rental was ever paid by the first defendant. The plaintiff allowed the second defendant to reside at the property at his request. He received no rentals from the second defendant.

The plaintiff claimed that he only received a payment of US$1, 000.00 after they opened a school at the property. He requested the second defendant to furnish him with monthly balance sheets of all the income generating projects at the property since they had agreed to a 50% sharing of income and expenses. The plaintiff rarely received the balance sheet, and of the few that he received, they portrayed loss position. Even after the second defendant failed to comply with their arrangement, he still allowed him to stay at the property because he was his friend.

The plaintiff only asked the defendant to leave the property when he released that he was cheating him. He discovered that the second defendant was cutting down trees and selling firewood without informing him. It was at that stage that he wrote warning letters to the second defendant, and the second defendant in turn wrote his own letters making some demands. The plaintiff also referred to several correspondences in which the second defendant acknowledged that he (the plaintiff), was the owner of the property.

The plaintiff denied that the second defendant made any improvements to the property, as claimed in his claim in reconvention. He averred that the plaintiff actually demolished some structures such as garages. The second defendant also invited other third parties to come and carry their businesses without the plaintiff’s consent. These included a security company. A workshop was opened for a company that specialised in the manufacturing of drinks. The plaintiff claimed that when he visited the property, he was threatened by some unknown people who ordered him never to set foot at the property again. The plaintiff also claimed that he made a police report, but the police never came to his aid.

The plaintiff also denied that the second defendant paid levies to the City of Harare in the amount claimed. In any case, it was the second defendant and the people he allowed to stay at the property who were benefitting from the property. He could not be expected to incur that burden in respect of municipal rates on their behalf. The plaintiff also denied that he received a payment of US$51, 500.00, save for the sum of US$1, 000.00 he was advised was in respect of farming activities. As regards the sum of US$125, 000.00, which was allegedly a protection fee, the plaintiff denied asking the second defendant for any protection. He was not even aware of the alleged protection of the farm. The plaintiff denied owing the defendant US$57, 600.00, which is alleged to have arisen from the disruption of a wedding event. The plaintiff claimed that the wedding garden was actually set up at the property without his consent and he never received any income from its operation.

The plaintiff dismissed the claim for US$200, 000.00 arising from the alleged disruption of farming activities. He denied disrupting any farming activities alleging that even after he gave the second defendant notice to vacate, he continued with planting and harvesting. The plaintiff also dismissed the claim for US$19, 000.00, which the second defendant claimed was for miscellaneous activities, which were unknown to the plaintiff. The plaintiff also dismissed the second defendant’s claim for a half share of the property since it had no justification.

Under cross examination, the plaintiff admitted that it was the second defendant who informed him about the property during the first half of 1995, and that it was suitable for agricultural activities. The plaintiff however denied any knowledge of the discussions between the second defendant and Mrs Smith, and that it was Mrs Smith who gave the second defendant vacant possession of the property in May 1995. The plaintiff also expressed ignorance of the commitment fee that was allegedly paid to Mrs Smith by the second defendant to secure the property. Instead, the plaintiff claimed that it was the second defendant who approached him to buy the property so that they could both use it. He travelled to Germany to source funds after he and his wife had a chance to view the property.

According to the plaintiff, the second defendant invited him to take part in the transaction. When the agreement of sale was drawn up, the second defendant was not present. The plaintiff denied that he went behind the second defendant’s back when the agreement of sale was prepared. The plaintiff claimed that when he informed the second defendant of the purchase of the farm, the second defendant was very pleased to the extent that he wrote him a congratulatory letter. The plaintiff denied that he assured the second defendant that he would transfer the property to him once he refunded him the purchase price.

The plaintiff denied receiving any payment towards the refund of the purchase price of the property and that he issued receipts acknowledging such payments. The plaintiff also denied that the file that he received from the second defendant at one point contained the receipts confirming payments made by the second defendant, insisting that the file only had receipts from City of Harare and ZESA. On being asked to explain the deposits of US$400.00; US$300.00; US$200.00 and US$100.00 made into his bank account by the second defendant, the plaintiff stated that he assumed it was the profit that had been realised during that material time since the amounts were not labelled. The payments were made during the 2011 -2012 period. This would also have been in line with their agreement to share profits on the agricultural project that they had jointly undertaken. The second defendant had started fish and potato farming and raising chicken layers and roadrunners. He never assumed that the payments were towards the refund of the purchase price that he paid for the property since that amount was nowhere near the purchase price.

The plaintiff admitted that the second defendant paid some bills to the City of Harare although he left some arrears for rates, that remained unpaid.

The plaintiff also admitted that although the second defendant advised him that there were farm invasions and he was protecting the property, the plaintiff never asked him to risk his life protecting the property.

As regards the school project, the plaintiff averred that his involvement only started in 2017. He supported the third defendant by sending funds to the school manager.  He sourced the funds together with his wife from Germany. The plaintiff disengaged himself from the third defendant after disputes arose between him and the second defendant concerning the way it was being managed. Sometime in 2023, he started his own school called the Bridge School, which was operating from the property. He denied interfering with the affairs of the third defendant insisting that his school was operating independently of the third defendant.

The evidence of Rosmarie Martaha Giese

She was the second witness and the plaintiff’s wife. Her evidence was as follows. She and the plaintiff went to view the property sometime in 1995 and met Mrs Smith’s son. They liked the property and decided to purchase it. They intended to make it their retirement home when they returned to Zimbabwe with their family. She knew the second defendant as a friend of the plaintiff. The second defendant was not present when they went to view the property. After deciding to purchase the property, the plaintiff secured a loan from Germany and transferred the funds into his Zimbabwean Bank Account. She was not aware whether there were any discussions between the plaintiff and the second defendant concerning the acquisition of the property.

The witness stated that the plaintiff was never directly involved in the running of the third defendant. He was only supporting it financially. She denied the second defendant’s claims that between 2017 and 2022 the plaintiff was involved in the running of the third respondent. She stated that when they returned to the country in 2017, the standards at the school had plummeted significantly. They invested funds towards renovations and built two more school blocks. Their idea was to give back to the community especially for the benefit of the underprivileged.

She wanted the defendants and all those occupying through them evicted from the property as she and her family had suffered financially, mentally and physically. They were emotionally distressed when they had the damage that was being caused at the property. Trees were being cut without their consent. New tenants which were operating businesses were also hired without their involvement. They were also physically and emotionally harassed by the second defendant and people around him.

The Defendants’ Case

The second defendant gave evidence as follows. He met the plaintiff in 1992 when he was working at the Harare International Airport. He was involved in the procurement of equipment from Germany. The plaintiff came to Zimbabwe as a Consultant Engineer, and the second defendant was assigned to work with him in the project for the installation of equipment which had been sourced from Germany by the Zimbabwean Government. Their friendship grew even more when they travelled together making installations of equipment at all the airports in Zimbabwe.

He dismissed the plaintiff’s claim arguing that he could not just be evicted from a place he had called home for the past thirty years. He also claimed that the property was his. During the time they were working together, he used to tell the plaintiff that he needed to secure a place in Harare where he would stay in his retirement as he did not wish to retire to the rural areas. He started looking for the place in March 1995, and found one in May 1995. The place had a caretaker assigned by Mrs Smith. He approached the caretaker who told him everything about the property. He got the contact details for Mrs Smith and arranged to meet her at the property. When they eventually met, Mrs Smith informed him that she was selling the place as she needed money.

The two agreed on a purchase price of about ZW$554, 000.00. The second defendant claimed that he started to look for the money. He had a few savings and he decided to sell some of his properties in order to raise the required amount. He sold his house at No. 4133 Unit D Seke, Chitungwiza and managed to raise ZW$11, 000.00. He raised an additional ZW$8, 000.00 from the sale of his stands in Waterfalls, Tynwald and Borrowdale. He paid the whole amount of ZW$19, 000.00 to Mrs Smith. Their arrangement was that Mrs Smith would record all the payments he made in her book and when he finished making the payments, she would issue him with a receipt to facilitate the transfer of title into his name.

Mrs Smith was satisfied about his interest in the property and in August 1995, she invited him to occupy the property with his family, while he continued to look for the money. Mrs Smith informed him that she had friends in town who could assist with funds to purchase the property.

They visited finance houses and one of the companies, which he could not remember, agreed to lend him the money. He completed the relevant forms and the company agreed to give him a two-year grace period before he could start repaying the money. When he went home, he called his friends and informed them that he had secured the funds to pay for the property. Some of his friends dissuaded him from accepting the loan from a finance house because once he defaulted, they would attach the property and sell it in order to recover their money. They advised him to look for friends who could chip in with money so that he could pay Mrs Smith, without worrying about losing the property.  The only person who immediately came to mind was the plaintiff since he was his best friend.

The second defendant claimed that he approached the plaintiff and he told him about the property and that he had run out of money. The plaintiff visited the farm with his wife and children. He introduced the plaintiff to Mrs Smith as his best friend who wanted to help him purchase the property. The plaintiff travelled to Germany to source the funds to purchase the property. He returned from Germany and he advised the second defendant that he had sourced the funds. The second defendant waited for the day they would proceed to pay Mrs Smith, but that did not happen. After about two weeks, the plaintiff came to the second defendant with a title deed in hand and advised him that he had paid for the property.

On examining the title deed, he noticed that his name was not appearing. On enquiring why his name was not appearing on the title deed, the plaintiff told him not to worry. He had simply processed the title deed in his name in order to protect his money. As a foreigner with no Zimbabwean citizenship, he needed that protection. The plaintiff assured the defendant that he could do whatever he wanted to do on the plot. Once he finished paying the plaintiff, they would proceed to the Deeds Registry to have the property transferred into the second defendant’s name.

The second defendant’s first project was the raising of chicken broilers and layers. He then diversified into piggery. To enhance his knowledge, he enrolled for a management course at the Harare Polytechnic. He also enrolled at the Gwebi College of Agriculture where he studied potato farming. The second defendant claimed that he went to the Pig Industry Board where he got three sows and a boar. He also got support in the form of stockfeed in order to grow the pig rearing project. He started on the piggery project in 2002, by which time the plaintiff had left for Germany. He also ventured into maize farming in order to support the piggery project.

The second defendant also claimed that he set up a wedding garden at the property. The venture even attracted positive comments from the plaintiff and his wife. The second defendant also claimed that in 2016, his late daughter started an Early Childhood Development school, which was later upgraded to accommodate grade 7 pupils. The second defendant averred that all the projects were his, which he started with the intention of raising funds to repay the plaintiff.

Along the way, the second defendant claimed that he started encountering interference from war veterans who wanted to take over the property and asked him to leave. He stood his ground asserting that he was a government employee and he would only leave if he was served with a notice from government advising that the land had been formally acquired by the State.

The second defendant claimed that between 1998 and 1999, he used to pay the plaintiff amounts of not less than US$1000.00 or US$2000.00, partly from his own salary. These amounts were acknowledged in the form of receipts that were issued by the plaintiff. He handed over the file with the receipts after the plaintiff asked for the receipts and the membership card from the Farmers Union.

The second defendant also claimed that he deposited about US$1, 100.00 into the plaintiff’s local bank account. The plaintiff claimed that the money was his income from the business ventures. There was no business venture to talk about as the plaintiff allegedly stopped the piggery project. The second defendant also claimed that the plaintiff disrupted wedding events by telling people that he was the owner of the property. The second defendant did not want people to know that the property was owned by the plaintiff as it was going to be invaded. He also claimed that he used to pay the police to come and guard the property from people who would come to cut trees for firewood.

The plaintiff justified the claim for US$19, 000.00 for miscellaneous activities alleging that of that amount, US$11, 000.00 was for the house that he sold in Unit D Seke, and the balance was for the other land he sold in Tynwald and Waterfalls. He also claimed to have made improvements on the property in excess of US$62, 000.00. He constructed toilets at the school for the students, as well as setting up the wedding garden. In the alternative, he was prepared to forgo a half share of the property so that they could share it equally, even though he claimed the whole property belonged to him.

The second defendant admitted under cross examination that if he had been paying the sum of US$1,100.00 per month as he claimed in his evidence, then he would have paid a total amount of US$52, 800.00 to the plaintiff within a period of four years. However, in his settlement proposal to the plaintiff, he had indicated that he paid US$19, 500.00, which was receipted by the plaintiff. He also claimed to have made a further payment of US$20, 000.00, which was unreceipted, and a further US$1, 000.00, which was paid into the plaintiff’s bank account. These amounts would have totalled US$40, 500.00, which was less than the US$52, 800.00, which he claimed to have paid in the four years that he was paying US$1, 100.00 per month. The second defendant also conceded under cross examination that he had only paid part of the purchase price of the property, and not the full amount.

Under cross examination, the second defendant denied that he claimed the sum of US$125,000.00 for protecting the property from land invasions and its upkeep since 1995. The second defendant also denied that he claimed US$33,000.00 in respect of levies allegedly paid to the City of Harare.

The Plaintiff’s Closing Submissions

Mr Murondoti for the plaintiff submitted that the second defendant’s counterclaim was affected by s 23 of the Finance Act No. 7 of 2019, which prescribed the Zimbabwe dollar to be the sole currency for legal tender purposes with effect from 24 June 2019. The second defendant’s claims were all denominated in the United States dollar currency making them incompetent. Mr Murondoti also submitted that the second defendant’s claims had long prescribed as he became aware that title in the property had passed on to the plaintiff in 1995.

It was also submitted that the second defendant had failed to place any evidence before the court to prove his claims. The only amount that he managed to prove through documentary evidence was the payment of US$1,000.00, which the plaintiff assumed was his own share from the running of the business venture. Counsel submitted that the second defendant presented two versions regarding the acquisition of the property. In his counterclaim, he claimed that the property was jointly acquired. On his part, he claimed that he utilised proceeds from the sale of his two properties, while the plaintiff sourced funds from Germany. In his evidence, the second defendant claimed that the plaintiff acquired the property on his own behind his back.

Mr Murondoti further submitted that the issue before the court was whether the parties jointly acquired the property together. The issue was easily resolved if regard was had to the following. The second defendant had not title in his favour. He had not produced an agreement of sale to confirm any sale. He did not deny that he signed the lease agreement between the plaintiff and the first defendant. The amount of US$1,000.00 which he claimed went towards the purchase price of the property, was so insignificant considering the value of the property. The only logical explanation was that it was intended to be the plaintiff’s share of the business, after the second defendant conceded that the plaintiff participated in the projects.

Regarding the issue of damages, it was submitted that these were a matter of evidence. No evidence was placed before the court to sustain the claim for damages. The second defendant even disowned some of his own claims.

As regards the claim for eviction, it was submitted that eviction was a derivative right emanating from the right of ownership. An owner could not be deprived of his property without their consent.  The defendants had no lawful basis to stay at the property. The second defendant may have desired to purchase the property, but such desire did not translate to ownership of the property. The court was urged to grant the plaintiff’s claim with costs on the punitive scale because the second defendant did not have any defence at all.

Defendants’ Closing Submissions

Mr Chikono for the defendants submitted that the preliminary issues raised by plaintiff’s counsel were misplaced. The plaintiff ought to have decided to except or raise a special plea much earlier in the exchange of pleadings so that these matters could be dealt with before the trial. Counsel further submitted that if these issues had been raised at the appropriate stage, then the second defendant would have placed evidence before the court to rebut them.

On the first issue for trial, Mr Chikono submitted that it was the second defendant who looked for the property. The plaintiff had also admitted this position. The second defendant also took occupation with the consent of Mrs Smith before its purchase. He could only have taken occupation on the basis of his arrangement with Mrs Smith. It was further submitted that Mrs Smith would not have given the second defendant vacant possession had she not been paid.

Mr Chikono further submitted that the plaintiff failed to prove that the first defendant ever commenced operations. The second defendant’s initial occupancy was therefore not based on any lease or some arrangement with the plaintiff, but the benevolence of Mrs Smith. The continued occupation was now based on the verbal arrangement between the second defendant and the plaintiff after he acquired title. The second defendant was not asked to pay any rentals meaning that his claim of an arrangement with the plaintiff could not be denied.

It was further submitted that the plaintiff admitted to collecting the second defendant’s file with all the information pertaining to the property. The plaintiff had decided to conceal that file to the second defendant’s prejudice.

As regards the claim for eviction, it was submitted that the second defendant had a valid defence to the claim based on his half share. Relying on the case of Noreen Chikaka N.O (In Her Capacity as Executrix Dative in the Estate of The Late Nesbert Chauraya) v (1) James     Chauraya (2) The Master of The High Court SC 168/20, it was further submitted that the second defendant could lay claim to the property without evidence, as happened in that case.

Mr Chikono conceded that the second defendant’s main claim was difficult to sustain in the absence of evidence which was alleged to be in the plaintiff’s possession. The second defendant could only lay claim to those amounts that were justified by the evidence placed before the court. The monetary claims were justified as follows. On the claim for improvements, while conceding that there were no invoices or receipts to justify the amount claimed, Mr Chikono submitted that the claim for ablution facilities in the estimated sum of US$800.00 was justified because the facilities were still being used by the students. According to him, it did not matter that they had not been approved by the municipal authorities and were therefore illegal.

As regards the claim for protecting the property from land invasions in the sum of US$125, 000.00, Mr Chikono conceded that the amount was not proven. The same conclusion was reached with respect to the claim for miscellaneous activities in the sum of US$19, 000.00. The claim arising from the alleged disruption of the wedding garden was abandoned by counsel. At the conclusion of his address on the main claim, Mr Chikono abandoned the entire main claim after conceding that it was not properly computed.

On the alternative claim, Mr Chikono submitted that the conduct of the second defendant and the manner in which he took care of the property was a significant contribution on its own. The evidence of the improvements made justified the alternative claim.

Mr Chikono submitted that the question of the defendants’ eviction from the property was dependant on the finding that the court made on the counterclaim. If the court determined that the counterclaim was not sustainable, then there was no defence to the claim for eviction.

The Analysis

Before I advert to the trial issues, I will dispose of the two preliminary issues that were raised by the plaintiff’s counsel. The first was that the claim was not properly before the court because it offended s 23 of the Finance Act No. 7 of 2019, which prescribed the Zimbabwe dollar to be the sole currency for legal tender purposes with effect from 24 June 2019. That submission was without merit as the law did not completely outlaw the denomination of legal claims in a foreign currency as a hedge against loss of value, in view of the volatility associated with the local currency. What the court could not do assuming it was persuaded to grant the relief sought, was to grant an order that sounded exclusively in that foreign currency. The court could grant an order that permitted payment to be made at the prevailing official exchange rate.

The second preliminary point was that the second defendant’s claim had all but prescribed, seeing as he became aware of the status of the property as far back as 1995, when title was passed to the plaintiff. Counsel for the plaintiff relied on s 20(2) of the Prescription Act [Chapter 08:11] to justify the raising of that preliminary point at this late stage. Section 20(3) states as follows:

“20 Prescription to be raised in pleadings

(1) No court shall of its own motion take notice of prescription.

(2) A party to litigation who invokes prescription shall do so in the relevant documents filed of record in the proceedings:

Provided that a court may allow prescription to be raised at any stage of the proceedings.”

While prescription is indeed a question of law, s 20 (2), qualifies the circumstances under which it must be raised, and it also confers discretionary powers on the court to determine whether it is proper to raise it at any stage of the proceedings. As a matter of practice and procedure, prescription is raised by way of a special plea, and it must be disposed of at the outset before the matter is referred to trial. It allows the parties to relate to the matters arising in their pleadings, and where oral evidence is required, the parties must be allowed to place such before the court in accordance with rules of procedure. Raising the issue of prescription at the stage of closing submissions would have denied the second defendant an opportunity to refute any evidentiary issues that would have arisen post the closure of the parties’ respective cases. The point was therefore improperly taken and stands to be dismissed.

Whether the parties jointly acquired the property

The second defendant’s case as pleaded in the papers was that he and the plaintiff jointly acquired the property using their personal resources. In his evidence, the second defendant appeared to make an about turn while conceding that it was indeed the plaintiff who fully paid for the property, but clandestinely had title registered in his name. The second defendant further claimed that he was the one who engaged Mrs Smith, the widow of the owner of the property. Mrs Smith permitted him to take occupation before he had fully paid the purchase price. In fact, she agreed to a payment plan, and she was recording the payments made in some book which was not placed before the court.

The court found the second defendant’s version of events to be highly implausible. His account was more fanciful. His demeanour portrayed him as a highly knowledgeable person with a sound understanding of business management. According to him, he needed a plot within the precincts of Harare to retire to, as he did not wish to go to the village where he would eat dried vegetables. Yet with all that visionary mind, the second defendant failed to place before the court any documentary evidence that connected him with the acquisition of the property.

There was no evidence of the second defendant’s engagement with Mrs Smith, whom he claimed gave him vacant possession of the property. There was no evidence of any payments having been made to Mrs Smith, following the disposal of his immovable properties to finance the purchase of the property as he claimed. In his claim in reconvention, the second defendant claimed that he paid his own contribution towards the purchase of the property from the sale of his two properties. In his evidence, he spoke of the sale of four properties from which he raised $19, 000.00, which he initially paid Mrs Smith. Mrs Smith herself was not invited to testify to give credence to this account.

After discovering that the plaintiff had registered the property in his own name, the second defendant claims that he struck a deal with the plaintiff in terms of which he would make periodic payments towards securing the title of the property into his own name. Their arrangement was that he would utilise the property for business projects that would in turn enable him to raise funds to meet his financial obligations to the plaintiff. That arrangement, according to him, was more of a gentleman’s agreement. Nothing was reduced to writing. He claimed to have paid significant amounts of money which were recorded in receipts that went away with the folder which was requested by the plaintiff. He did not request that folder back. The only amount that was proven on the papers was US$1, 000.00, which the plaintiff claimed was his own share of the business projects that they had agreed to run together.

What made the second respondent’s account even more improbable and unbelievable was that it was at variance with some letters that he wrote to the plaintiff updating him about the goings on at the property. In a letter dated 3 November 2001, which was produced as an exhibit in court, the second defendant wrote to the plaintiff who was out of the country then, as follows:

“I write to notify you that I am back in Zimbabwe from UK. I am here to give some details about our project. As per the $60, 000.00 you sent me, out of that I bought 600 day old egg layers costed me $18, 000.00, then I had a balance of $42, 000.00 which was not enough for the feeding and medication for 600 day old……………………

………………………………………

My main aim is to keep your property safe from the intruders until such time when things will be settled…..” (Underlining for emphasis)

In yet another letter dated 3 April 2002, he wrote to the plaintiff giving the following update:

“My projects sim to be going fine and I am happy the way they are moving.

So be happy your property is safe……..”	 (Underlining for emphasis)

The second defendant did not address the import of this communication in his evidence or closing submissions. The tone of the letters does not strike as having written by someone who claimed some rights in the property. Instead, they portray the second defendant as a person who was beholden to the plaintiff and was content with giving updates of how his investment was faring under his stewardship. The fact that the second defendant denied that the plaintiff made any contributions to the project in the face of all these correspondences made him an undependable witness.

The plaintiff’s account on the other hand was clear and straightforward. He purchased the property because he found it an ideal retirement home when he eventually returned to settle in Zimbabwe. His business arrangement with the second defendant was that they would operate the property as a commercial venture through the first defendant. That explained the signing of the lease agreement in which the second defendant represented the first defendant. It only made sense that as his partner in the first defendant, the second defendant would reside at the property overseeing their business operations. This was also consistent with the periodic updates that the second defendant gave the plaintiff.

To confirm his acquisition of the property, the plaintiff produced a deed of sale that he signed with the Executor Dative to the Estate of the late George Smith. Having complied with the terms of the agreement of sale, the plaintiff received title in the property on 25 October 1995. The plaintiff’s account of events was consistent with the documentary evidence that was also placed before the court. His evidence was also corroborated by the evidence of his wife who gave a brief account of how they acquired the property with funds sourced from Germany.

Based on the entirety of the evidence placed before the court, the only judicious finding that this court could make was that the property was acquired exclusively by the plaintiff without any financial assistance from the second defendant.  Litigation is about the weight and the reliability of evidence that the court is invited to consider. The plaintiff had solid documentary evidence to support his claims. The second defendant had no documentary evidence to support his own claims. He had the arduous task of persuading the court to disregard the plaintiff’s account of events which was supported by documentary evidence, in preference of his own verbalised account. He failed in that respect.

Whether or not the 2nd defendant suffered any damages

This component of the second defendant’s counterclaim constituted his main claim as captured in the prayer accompanying the counterclaim. As noted already, the second defendant’s counsel abandoned the main claim midstream as he was making his closing submissions. The reason given was that the claim was unsustainable because of lack of evidence.

The fate of the second defendant’s alternative claim

In the analysis of the first issue, the court determined that on the evidence before the court, the property was acquired by the plaintiff without any financial assistance from the second defendant. Having made that conclusion, there exists no other legal basis upon which this court could find for the second defendant in his alternative claim.

In the alternative claim, the defendant prayed for an order that the property be subdivided into two equal shares, and that the plaintiff must be ordered to transfer the other half share to the second defendant. Mr Chikono submitted that the court must consider the second defendant’s contributions that were made as set out in the main claim, in deciding on whether to award the half share of the property to the second defendant. The submission is clearly without merit because once the main claim was abandoned for lack of merit in the absence of evidence to sustain it, then it could not be resuscitated through the back door to give a lease of life to the alternative claim. The evidence which was required to sustain the main claim is the same evidence that was required to sustain the alternative claim.

In his submissions, Mr Chikono sought to rely on the case of Noreen Chikaka N.O (In     Her Capacity As Executrix Dative In The Estate of The Late Nesbert Chauraya) v (1) James     Chauraya (2) The Master of The High Court, in advancing the point that the court could still find in favour of the second defendant, even in the absence of documentary evidence. Although that case also involved a claim for a half share by the first respondent in the appeal (the plaintiff in the lower court), the court found the first respondent’s claim unassailable because of the weight of the evidence that supported the first respondent’s case. At p 7 of the judgment, the court had this to say about the evidence that supported the first respondent’s claim:

“All the four supporting witnesses were found to be credible and reliable witnesses. Their evidence reads well and the learned judge a quo cannot be faulted for believing and relying on their evidence. It is highly unlikely that Thomas Nherera an independent professional man responsible for granting loans at the material time would deliberately mislead the court.”

In that case, the first respondent had relied on the evidence of four witnesses to support his claim. It was the weight of the evidence that carried the day in favour of the first respondent. The same cannot be said of the second defendant in casu. He had no documentary evidence, and he chose not to call any witnesses to corroborate his viva voce evidence. The court determines that there is no merit in the second defendant’s claim in reconvention and it must be dismissed.

Whether the plaintiff is entitled to evict the defendants from the property

In his closing submissions, Mr Chikono conceded that the fate of the defendants on this issue was reliant on the finding the court made on the second defendant’s counterclaim. If the court found the counterclaim unsustainable then there was no defence to the claim for eviction. In January v Maferefu SC 14/20 at p5-6 of the judgment, the court made the following observations about claims of this nature:

“The rei vindicatio is a common law action in terms of which an owner of a thing is entitled to claim possession of his property from whoever is in possession of it without his consent. In Savanhu v Hwange Colliery Company SC 8/15, this Court held as follows:

“The actio rei vindicatio is an action brought by an owner of property to recover it from any person who retains possession of it without his consent.  It derives from the principle that an owner cannot be deprived of his property without his consent. As it was put in Chetty v Naidoo 1974 3 SA 13 (A):

It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g., a right of retention or a contractual right).”

The above observations apply with equal force to the circumstances of this case. All the defendants failed to set out a legal basis upon which they can resist the plaintiff’s claim. While in the plea it appeared as if all the defendants were represented by the same legal practitioner, nothing was said about their fate in the evidence and the closing submissions. The defendants’ case as motivated, appeared to be focused around the second defendant, who made his claim in reconvention. The plaintiff’s claim is therefore unassailable.

Costs of suit

The general rule is that a successful party is entitled to costs of suit at a scale determined by the way litigation was conducted and the level of success amongst other factors. The plaintiff’s counsel sought costs on the punitive scale if the court found in the plaintiff’s favour. 	In the exercise of my discretion, I find it appropriate to order that the second defendant pays costs of suit on the ordinary scale.

Resultantly, it is ordered that:

Judgment be and is hereby granted in favour of the plaintiff for the eviction of the first, second and third defendants and all those claiming occupation through them from a property known as Muchera of Graylands of Apsley of Subdivision A of Stoneridge, Harare.

The Sheriff or his lawful deputy be and are hereby authorised and directed to take such steps as are necessary to evict the first, second and third defendants and all persons holding occupation through them from the premises described in paragraph (1) above in the event that the said defendants and all those claiming occupation through them do not vacate the property within ten (10) days of service of this order.

The second defendant’s claim in reconvention is hereby dismissed with costs.

The second defendant shall pay the plaintiff’s costs of suit in the claim in convention.

Musithu J: …………………………………………………….

Absolom & Shepherd, legal practitioners for the plaintiff

Moyo Chikono & Gumiro, legal practitioners for the defendants