This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:
“1. An order declaring that:
(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing therefrom, including but not limited to the removal of directors and appointment of new directors; and
(ii) The sale and transfer of Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare to 5th defendant represented by 4th defendant, are null and void;
(b) The minor children, Panashe Ralph Rushesha and Tivonge Sacha Rushesha, remain the sole shareholders in 2nd plaintiff; and
(c) The directors of 2nd plaintiff, as at 12 February 2009, remain directors unless lawfully removed or through resignation (sic).
2. An order that:
2.1 4th defendant, or, failing it, the Deputy Sheriff, takes all necessary steps to transfer Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare, back into the name of the 2nd plaintiff;
2.2 4th defendant and all those claiming occupation through it vacate 3 Justice McNally Close, Mount Pleasant, Harare within fourteen (14) days from the date of judgment; and
2.3 2nd to 5th defendants, jointly and severally, the one paying the others to be absolved: pay for an assessment and report, within fourteen (14) days of such report, by an independent property expert appointed by the High Court, of 3 Justice McNally Close, Mount Pleasant, Harare of any structural changes or damage, other than fair wear and tear, caused to 3 Justice McNally Close, Mount Pleasant, Harare since 12th February 2009 and the costs of repairs or reconstruction; and
(ii) Pay 2nd plaintiff the amount recommended within thirty days of such assessment.
3. An order barring 6th defendant from transferring the property referred to in 6 (sic) above to any third party until transfer to 2nd plaintiff is concluded.
4. In any event, costs of suit on an attorney and client scale to be paid by 1st to 5th defendants, the one paying the others to be absolved.”...,.
Turning to the merits of the claim, the background to the dispute may be summarised as follows:
The first plaintiff is a medical practitioner of Zimbabwean origin. He is presently resident in the United Kingdom together with his wife and children. He is married to the second witness, Aquilina Rudo Rushesha. They had two sons together before they moved to the United Kingdom, namely, Panashe Ralph Rushesha (hereinafter referred to as “Panashe”) and Tivonge Sacha Rushesha (hereinafter referred to as “Tivonge”).
The first defendant, Alexious Mashingaidze Dera, is his brother-in-law, being a brother to his wife.
When the trial commenced, Panashe Ralph Rushesha had attained majority age, and was, by consent, substituted as the third plaintiff.
The first plaintiff's evidence was that before he went to the United Kingdom he acquired an immovable property known as Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, also known as 3 Justice McNally Close, Mount Pleasant, Harare (hereinafter referred to as “the property”).
He asked the first defendant, who is an accountant by profession, to help him form a company in which the shareholders would be the two children mentioned above.
The second plaintiff is the company which was then established for the benefit of the children.
The reason for incorporating the company, according to the first plaintiff, was to have the immovable property registered in the name of the company.
The directors of the company were to be Acquilina Rudo Rushesha and the first defendant.
The property was duly registered in the name of the second plaintiff and was its only asset.
He stated that the name of the second plaintiff derives from the middle names of his two children. “Ra” is from the name 'Ralph; “Sa” is from the name 'Sacha'; while the “R” comes from their surname, Rushesha.
At the time that the property was acquired Panashe was ten years old while Tivonge was about a year old.
The witness paid the purchase price for the property using his own resources.
When the first plaintiff and his family moved to the United Kingdom, in 2003, they leased the property to the South African Embassy. The first defendant was their contact person on some matters relating to the property, but, the rentals were paid directly into his account.
Thus, the first defendant did not receive any rentals in respect of the property; neither did he spend any money on the property.
In or about June 2010, the first plaintiff and his family discovered that the first defendant had sold shares in the second plaintiff to the second defendant, represented by the third defendant. That discovery was only made when the first plaintiff's wife came to Zimbabwe from the United Kingdom.
They discovered that the shares had been sold for a sum of US$36,350.
Subsequent to the sale of the shares in the second plaintiff, the immovable property was then sold to the fourth defendant, represented by the fifth defendant.
The first plaintiff spoke to the fifth defendant by telephone. The fifth defendant advised him that he had purchased the property from the first defendant.
In that conversation, the fifth defendant admitted that he had known that the property belonged to the first plaintiff's wife.
The first plaintiff stated, that, different amounts were given as to the price at which the immovable property had been sold. Initially, a sum of US$90,000 was mentioned. Later on, a figure of US$125,000 was stated as having been paid for the immovable property.
The first plaintiff denied that he authorised the sale of the shares in the second plaintiff or the sale of the immovable property. He, in fact, still holds the original Deed of Transfer for the property.
The first plaintiff described the improvements on the property.
There is a house with three bedrooms. All three bedrooms have bathrooms and toilets; it has three lounges; a kitchen; and a garage on top of which is a tiled entertainment area. There are two rooms next to the garage which the witness stated that he intended to use as offices. The house is fully alarmed. There is a borehole on the property. The other amenities at the property include a gazebo; a swimming pool; a 75 metre driveway with lights; and car shades which can accommodate three motor vehicles.
The second witness for the plaintiff was Aquilina Rudo Rushesha, wife of the first plaintiff.
She is the mother of the two children, Panashe and Tivonge. She was one of the directors of the second plaintiff company at the time that it was incorporated. She never resigned her directorship. She came to Zimbabwe from the United Kingdom in June 2010. That was when she discovered that the immovable property had been alienated by her brother, the first defendant.
She approached the police to help her access the property. She also approached Gerald Mlotshwa, a legal practitioner. A meeting was held which culminated in an affidavit being prepared and sworn to by the first defendant.
The plaintiffs also called Fortune Tapiwa Chasi who is a relative of the first plaintiff's family.
He testified that he knew both the third and fifth defendants at a personal level. The witness was notified of the sale of the property to the Boka company by the first plaintiff. He spoke to the fifth respondent about the matter. From his conversation with the fifth defendant, the latter knew that the first defendant had borrowed money from the second plaintiff and used the immovable property as security for the loan.
The fifth defendant also stated to him, that, he was aware that the property did not belong to the first defendant but to the first plaintiff.
He also communicated to the third defendant, by telephone and e-mail, about the transactions relating to the immovable property. The third defendant stated to him, that, matters related to that were to be directed to his legal practitioners, and that his affairs should be separated from those of the second defendant.
The last witness called to testify for the plaintiffs was the first defendant, Alexious Mashingaidze Dera.
He was, at all material times, a director of the second plaintiff. As stated above, he is a brother to Aquilina Rudo Rushesha and a brother-in-law to the first plaintiff. Although he was cited as the first defendant he did not enter appearance to defend the matter. He only came as a witness at the instance of the plaintiffs after being subpoenaed to attend.
His testimony was that, in February 2009, he obtained a loan in the sum of US$36,350 from the third defendant in order to finance his business of purchasing sugar from Triangle for resale.
As security for the loan, the witness then entered into an agreement for the sale of the shares in the first plaintiff to the second respondent, a company in which the third defendant has an interest.
The agreement of sale was reduced to writing.
His name is recorded as the seller and beneficial owner of “the 2 issued shares in the company” the second plaintiff.
The memorandum acknowledges that the second plaintiff is the registered owner of the immovable property in dispute.
He stated that he repaid to the second and third defendants an amount of money between US$7,000 and US$10,000 in an attempt to liquidate the debt, but, could not catch up with the increasing interest which was being charged on the amount loaned.
He stated that he had known the fifth respondent as a friend prior to meeting the third defendant. He was introduced to the third defendant by the fifth defendant. He then approached the third respondent for a loan which he was duly given as stated above.
When he was having problems in repaying the loan, the third defendant approached the fifth defendant to inquire as to whether the witness had property which could be sold to raise money to repay the balance outstanding on the loan which had gone up to US$70,000.
Interest was being charged on the outstanding amount every month.
In his evidence, the fifth respondent then went and paid to the third respondent the amount outstanding. At the time that the fifth respondent paid off the amount, it had gone up to about US$90,000. The witness stated, that, the fifth defendant wanted to be paid US$100,000 for having settled the debt owed to the second and third defendants.
He deposed to an affidavit prepared by Mr Mlotshwa, a legal practitioner who had been instructed by the first plaintiff's wife, on 24 June 2010. The affidavit was produced as part of the plaintiff's documents.
The second defendant led evidence through one Simon Charehwa who is its Public Officer.
His evidence was that the second defendant, represented by Frank Buyanga, the third defendant, purchased shares in the second plaintiff from Alexious Mashingaidze Dera, the first defendant.
The witness stated, that, the person who dealt directly with the plaintiff was the third defendant.
He, the witness, was responsible for compilation of the information in the files of the second defendant.
He stated, that, Alexious Mashingaidze Dera handed over to Frank Buyanga share certificates relating to the shares as well as resolutions authorising the sale.
The share certificate, according to the witness, was taken to the United Kingdom.
The rest of the documents were kept in the file at the local office. The witness identified a document at page 7 of Exhibit 2 as the resolution which was given by Alexious Dera to the third defendant.
At the time that the transactions were conducted, he was a Clerk.
In cross-examination, he readily admitted that he was not involved when the agreement between the first defendant and the second defendant, acting through the third defendant, was concluded.
He stated that the shares in the first plaintiff were purchased for US$36,350.
He stated, that, the house in dispute, which was the only asset of the first plaintiff, was sold by the second defendant, to the fourth defendant, for a sum of US$110,000, in September 2009.
He stated, that, he knew the first defendant prior to the transaction relating to the shares of the first plaintiff as he used to render accounting services to the third defendant on a part-time basis.
The fifth defendant gave evidence on his behalf as well as on behalf of the fourth defendant.
He is a director of the fourth defendant which is a family company. He stated that he purchased the immovable property in dispute on 15 September 2009. At the time of the agreement, he was shown a Form CR14 and a Form CR6 and a resolution by one James Nqindi.
According to him, James Nqindi and Frank Buyanga were the directors of the second plaintiff at the time that he purchased the property.
He stated that he first knew the first defendant in 2007. He denied that they were friends, but that he was just someone he knew.
The witness stated, that, he had known the third defendant since 2004. He stated, that, the property was vacant at the time that he purchased it. He indicated to the Court, that, the fourth defendant was prepared to relinquish the property if it was paid back the money it had paid for the property. He stated that he purchased the property from the second plaintiff.
The fourth defendant took transfer of the property in 2010.
He described the main structure on the property as a four-bedroomed house, with four bathrooms, a kitchen, lounge, dining room and an additional lounge or office. There is an outbuilding for employees, as well as a swimming pool and a gazebo. At the time of the purchase, there was, according to him, a derelict tennis court. He removed the tennis court with the intention of resurfacing it. The property, which is about an acre, is walled and gated. The main house is partly a double storey, with a room upstairs. The main bedroom has a dressing area. There is a borehole.
The issues which were referred to trial are set out in the joint pre-trial conference minute as follows:
1. Whether or not a valid agreement of sale of shares, allegedly belonging to the minor children (herein represented by the first plaintiff), was entered into between the first and second and third defendants.
2. Whether or not the changes relating to second plaintiff's directors and shareholders, effected as a result of any such agreement, is valid. If not, whether or not such directors and shareholders should revert back (sic) to the period before the 12th of February 2009.
3. Whether or not the second defendant validly entered into an agreement for the sale of the immovable property, being Stand Number 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant with fourth and fifth defendants. If not, whether the registration of title into the fourth defendant (sic) must be set aside and the original deed reinstated.
4. Whether or not the plaintiffs have any claim for damages against the second to fifth defendants arising out of the structural alterations to the immovable property. If they have a claim, what the quantum of damages recoverable is.
5. Whether or not, if the plaintiffs succeed, the fourth defendant should remain in possession of the immovable property on the basis of a lien and until any such claim as it may have (has) been realized....,.
The last issue to be determined is whether the fourth defendant has a lien over the immovable property pending compensation.
A lien is a right of retention, ius retentionis, which a party has over the property of another person in respect of which he or she or it has incurred expenditure on: see Nexbak Investments (Pvt) Ltd & Anor v Global Electrical Manufacturers (Pvt) Ltd & Anor 2009 (2) ZLR 270 (S)…,.
Such ius retentionis is pleaded in paragraph 13 of the plea filed on behalf of the fourth and fifth defendants.
However, no evidence was led of any improvements which were effected on the property by the fourth respondent. Indeed, neither the fourth nor fifth defendants indicated an intention to make any claim based on improvements during the course of the trial. There was also no mention of a claim to retain possession of the property in order to secure payment of compensation by the fifth defendant when he gave his evidence.
Even in the closing submissions, the fourth defendant did not make any reference to the lien.
In the circumstances, there is nothing to sustain ius retentionis over the property by the fourth defendant.
