Pleadings re: Abandoned Pleadings

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i)...,.

(ii) The secondary basis for challenge is that the court a quo misdirected itself in making findings of ownership in respect of the property when the sole question for determination before it was the eviction of the appellant.

This aspect of the appeal does not appear to be of any particular consequence in the circumstances of this case.

Given that the appellant had denied that the respondent was the owner or bona fide purchaser of the property, the court a quo cannot be faulted for having delved into the question of ownership as a prerequisite to the respondent's right to evict the appellant.

In any event, this aspect was not canvassed in the heads of argument filed on behalf of the parties nor was it addressed by either counsel at the hearing of the appeal. I shall therefore treat this ground of appeal as having been abandoned....,.

At the hearing of the matter, counsel for the appellant abandoned any claim for costs, both a quo and on appeal.

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

Whether Point In Limine Properly Raised A Quo

In his pre-trial conference minute, dated 23 October 2012, the appellant raised two specific issues, as to whether Gildastone Holdings had any lawful title to pass to the respondent and whether the respondent enjoyed lawful ownership of the property. Until that stage, the appellant was legally represented.

In the joint pre-trial conference minute, signed on 12 February 2013, these two issues were omitted and the question of ownership was not directly addressed. At that time, however, the appellant had ceased to be legally represented.

In his plea, filed on 5 January 2012, the appellant had specifically disputed the respondent's ownership of the property. However, he did not raise the defence of lis alibi pendens. That defence was only indirectly alluded to later in his supplementary summary of evidence, filed on 5 March 2014 by his current legal practitioners, wherein he indicated that he had issued summons in Case No. HC2469/13, seeking nullification of the transfer of the property from himself to Lalapanzi Properties together with all subsequent transfers, and that he was still the owner of the property in dispute.

Counsel for the respondent refers to Rule 137(2) of the High Court Rules 1971. She submits that this sub-rule requires that all special pleas must be taken and filed together with the main plea. The appellant's plea and the joint pre-trial conference minute did not raise any special plea relating to the pendency of Case No. HC2469/13. The special plea was raised for the first time in the appellant's closing submissions a quo, filed on 8 January 2018. Consequently, so it is submitted, the special plea was unprocedurally raised.

Furthermore, it is contended that the court a quo quite correctly found that the appellant was delaying the matter by raising the special plea at a late stage. It was not raised bona fide and the court properly exercised its discretion in dismissing the appellant's point in limine in that regard.

Counsel for the appellant counters that the Rules do not require that a special plea must be raised at the same time as the main plea. In any event, so he submits, the pendency of Case No. HC2469/13 was raised not by way of a special plea but as a new point of law.

Order 21 of the High Court Rules 1971 deals with special pleas, exceptions, applications to strike out and applications for particulars. Rule 137(1) sets out the various alternatives available to a party instead of pleading to the merits. Rule 137(2) prescribes the form to be utilised, mutatis mutandis, for that purpose. It certainly does not, as is argued by counsel for the respondent, relate to when a special plea must be taken and filed. The only relevant provision in that regard is Rule 139(1) which provides that:

“A party shall state all his special pleas and exceptions and make all his applications to strike out at one time: Provided that where an exception or special plea is taken or where application to strike out is made it shall not be necessary to plead to the merits of the case.”

As is correctly submitted by counsel for the appellant, the Rules quite clearly do not dictate that a special plea must be taken and filed at the same time as the main plea. Rule 139(1) is only concerned with the filing of alternatives to pleading to the merits and makes it abundantly clear that it is not necessary for a party who excepts or takes a special plea to plead to the merits of the case.

In any event, the court a quo evidently did not relate to the pendency of Case No. HC2469/13 as a special plea but simply as a point in limine pertaining to the defence of lis alibi pendens.

The court noted that it had been requested to stay the matter before it pending the determination of the question of ownership in Case No. HC2469/13, in the interests of justice and to prevent conflicting judgments emanating from the same court. The learned judge then proceeded to deal with the substantive merits of the point in limine, without questioning its procedural propriety, before dismissing the defence of lis alibi pendens.

In my view, there was nothing that was procedurally incorrect in the manner in which the defence was raised a quo and disposed of by the learned judge. It was a matter that appears to have properly arisen from the pleadings and submissions before the court.

Cause of Action and Draft Orders re: Exceptions, Special Pleas, Plea in Bar and Plea in Abatement iro Approach

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

Whether Point In Limine Properly Raised A Quo

In his pre-trial conference minute, dated 23 October 2012, the appellant raised two specific issues, as to whether Gildastone Holdings had any lawful title to pass to the respondent and whether the respondent enjoyed lawful ownership of the property. Until that stage, the appellant was legally represented.

In the joint pre-trial conference minute, signed on 12 February 2013, these two issues were omitted and the question of ownership was not directly addressed. At that time, however, the appellant had ceased to be legally represented.

In his plea, filed on 5 January 2012, the appellant had specifically disputed the respondent's ownership of the property. However, he did not raise the defence of lis alibi pendens. That defence was only indirectly alluded to later in his supplementary summary of evidence, filed on 5 March 2014 by his current legal practitioners, wherein he indicated that he had issued summons in Case No. HC2469/13, seeking nullification of the transfer of the property from himself to Lalapanzi Properties together with all subsequent transfers, and that he was still the owner of the property in dispute.

Counsel for the respondent refers to Rule 137(2) of the High Court Rules 1971. She submits that this sub-rule requires that all special pleas must be taken and filed together with the main plea. The appellant's plea and the joint pre-trial conference minute did not raise any special plea relating to the pendency of Case No. HC2469/13. The special plea was raised for the first time in the appellant's closing submissions a quo, filed on 8 January 2018. Consequently, so it is submitted, the special plea was unprocedurally raised.

Furthermore, it is contended that the court a quo quite correctly found that the appellant was delaying the matter by raising the special plea at a late stage. It was not raised bona fide and the court properly exercised its discretion in dismissing the appellant's point in limine in that regard.

Counsel for the appellant counters that the Rules do not require that a special plea must be raised at the same time as the main plea. In any event, so he submits, the pendency of Case No. HC2469/13 was raised not by way of a special plea but as a new point of law.

Order 21 of the High Court Rules 1971 deals with special pleas, exceptions, applications to strike out and applications for particulars. Rule 137(1) sets out the various alternatives available to a party instead of pleading to the merits. Rule 137(2) prescribes the form to be utilised, mutatis mutandis, for that purpose. It certainly does not, as is argued by counsel for the respondent, relate to when a special plea must be taken and filed. The only relevant provision in that regard is Rule 139(1) which provides that:

“A party shall state all his special pleas and exceptions and make all his applications to strike out at one time: Provided that where an exception or special plea is taken or where application to strike out is made it shall not be necessary to plead to the merits of the case.”

As is correctly submitted by counsel for the appellant, the Rules quite clearly do not dictate that a special plea must be taken and filed at the same time as the main plea. Rule 139(1) is only concerned with the filing of alternatives to pleading to the merits and makes it abundantly clear that it is not necessary for a party who excepts or takes a special plea to plead to the merits of the case.

In any event, the court a quo evidently did not relate to the pendency of Case No. HC2469/13 as a special plea but simply as a point in limine pertaining to the defence of lis alibi pendens.

The court noted that it had been requested to stay the matter before it pending the determination of the question of ownership in Case No. HC2469/13, in the interests of justice and to prevent conflicting judgments emanating from the same court. The learned judge then proceeded to deal with the substantive merits of the point in limine, without questioning its procedural propriety, before dismissing the defence of lis alibi pendens.

In my view, there was nothing that was procedurally incorrect in the manner in which the defence was raised a quo and disposed of by the learned judge. It was a matter that appears to have properly arisen from the pleadings and submissions before the court.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

Whether Point In Limine Properly Raised A Quo

In his pre-trial conference minute, dated 23 October 2012, the appellant raised two specific issues, as to whether Gildastone Holdings had any lawful title to pass to the respondent and whether the respondent enjoyed lawful ownership of the property. Until that stage, the appellant was legally represented.

In the joint pre-trial conference minute, signed on 12 February 2013, these two issues were omitted and the question of ownership was not directly addressed. At that time, however, the appellant had ceased to be legally represented.

In his plea, filed on 5 January 2012, the appellant had specifically disputed the respondent's ownership of the property. However, he did not raise the defence of lis alibi pendens. That defence was only indirectly alluded to later in his supplementary summary of evidence, filed on 5 March 2014 by his current legal practitioners, wherein he indicated that he had issued summons in Case No. HC2469/13, seeking nullification of the transfer of the property from himself to Lalapanzi Properties together with all subsequent transfers, and that he was still the owner of the property in dispute.

Counsel for the respondent refers to Rule 137(2) of the High Court Rules 1971. She submits that this sub-rule requires that all special pleas must be taken and filed together with the main plea. The appellant's plea and the joint pre-trial conference minute did not raise any special plea relating to the pendency of Case No. HC2469/13. The special plea was raised for the first time in the appellant's closing submissions a quo, filed on 8 January 2018. Consequently, so it is submitted, the special plea was unprocedurally raised.

Furthermore, it is contended that the court a quo quite correctly found that the appellant was delaying the matter by raising the special plea at a late stage. It was not raised bona fide and the court properly exercised its discretion in dismissing the appellant's point in limine in that regard.

Counsel for the appellant counters that the Rules do not require that a special plea must be raised at the same time as the main plea. In any event, so he submits, the pendency of Case No. HC2469/13 was raised not by way of a special plea but as a new point of law.

Order 21 of the High Court Rules 1971 deals with special pleas, exceptions, applications to strike out and applications for particulars. Rule 137(1) sets out the various alternatives available to a party instead of pleading to the merits. Rule 137(2) prescribes the form to be utilised, mutatis mutandis, for that purpose. It certainly does not, as is argued by counsel for the respondent, relate to when a special plea must be taken and filed. The only relevant provision in that regard is Rule 139(1) which provides that:

“A party shall state all his special pleas and exceptions and make all his applications to strike out at one time: Provided that where an exception or special plea is taken or where application to strike out is made it shall not be necessary to plead to the merits of the case.”

As is correctly submitted by counsel for the appellant, the Rules quite clearly do not dictate that a special plea must be taken and filed at the same time as the main plea. Rule 139(1) is only concerned with the filing of alternatives to pleading to the merits and makes it abundantly clear that it is not necessary for a party who excepts or takes a special plea to plead to the merits of the case.

In any event, the court a quo evidently did not relate to the pendency of Case No. HC2469/13 as a special plea but simply as a point in limine pertaining to the defence of lis alibi pendens.

The court noted that it had been requested to stay the matter before it pending the determination of the question of ownership in Case No. HC2469/13, in the interests of justice and to prevent conflicting judgments emanating from the same court. The learned judge then proceeded to deal with the substantive merits of the point in limine, without questioning its procedural propriety, before dismissing the defence of lis alibi pendens.

In my view, there was nothing that was procedurally incorrect in the manner in which the defence was raised a quo and disposed of by the learned judge. It was a matter that appears to have properly arisen from the pleadings and submissions before the court.

Passing of Ownership, Proof of Title, Personal Rights and Cancellation or Diminution of Real Rights re: Immovable Property

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged...,.

Vindicatory Action or Rei Vindicatio re: Approach, Ownership Rights, Claim of Right, Estoppel and Lien

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

Damages re: Holding Over Damages

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

Debt re: Security, Executable Assets, Jus In re Aliena, Parate Executie or Summary Execution and Pactum Commissorium

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

Lis Alibi Pendens or Pending Litigation re: Approach

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Terminated or Complete Proceedings

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

Court Management re: Consolidation of Matters, Joinder of Actions, Fragmantation of Disputes and the Consolidation Order

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation, Perjury & Submissions from the Bar

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

(ii) There shall be no order as to costs.”

Costs re: No Order as to Costs or No Costs Order iro Approach

At the hearing of the matter, counsel for the appellant abandoned any claim for costs, both a quo and on appeal.

Law Portal
Zimbabwe

SC87-19 - PRECIOUS CHIPUNZA vs MOSLEY MASHINGAIDZE

Pleadings re: Abandoned Pleadings

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

Cause of Action and Draft Orders re: Exceptions, Special Pleas, Plea in Bar and Plea in Abatement iro Approach

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

Passing of Ownership, Proof of Title, Personal Rights and Cancellation or Diminution of Real Rights re: Immovable Property

Vindicatory Action or Rei Vindicatio re: Approach, Ownership Rights, Claim of Right, Estoppel and Lien

Damages re: Holding Over Damages

Debt re: Security, Executable Assets, Jus In re Aliena, Parate Executie or Summary Execution and Pactum Commissorium

Lis Alibi Pendens or Pending Litigation re: Approach

Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Terminated or Complete Proceedings

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders

Court Management re: Consolidation of Matters, Joinder of Actions, Fragmantation of Disputes and the Consolidation Order

Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court

Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation, Perjury & Submissions from the Bar

Costs re: No Order as to Costs or No Costs Order iro Approach

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SC87-19 - PRECIOUS CHIPUNZA vs MOSLEY MASHINGAIDZE

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Law Portal
Zimbabwe