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

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

In 1995, the applicant (Agro Chem) purchased an undeveloped Stand (the Stand) from the second respondent (City of Harare). The full purchase price was paid. In terms of the agreement, Agro Chem was enjoined to undertake certain minimum developments on the Stand within a stipulated period after the purchase. It is common cause that no development has ...
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HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

I turn now to consider the opposition mounted by Gomo against the claim for eviction. It seems to me that strength of his defence to the claim is wholly dependant on how successful the local authority is in defending its own position in this dispute. The basis of the defence was that the agreement had been cancelled; ...
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HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

The applicant herein seeks the following relief - “1. That the respondents and all persons claiming through them be and are hereby directed forthwith to vacate the property known as Greenhills Farm situate at the Prima Flora farming operation in Tynwald, together with such officers of the Zimbabwe Republic Police as he may require, shall eject ...
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Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

The full history of this case is reported in Chikadaya v Chikadaya Ors 2000 (1) ZLR 343 (HC) and its sequel cyclostyled judgments of Chikadaya v Chikadaya City Council of Harare SC58-01 and Chikadaya v Chikadaya City Council of Harare HH01-02.At the time the plaintiff purchased the rights, title ...
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HH50-09 : GRAMARA ENTERPRISES (PVT) LTD AND COLIN BAILIE CLOETE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LAND, LAND REFORM AND RESETTLEMENT AND MR NORMAN KAPANGA
Ruled By: MAVANGIRA J

Where a dispossession is based on a statutory provision, such statutory provision must be restrictively interpreted. A person who invokes the protection of such a statutory provision will need to establish that he acted strictly within its terms.
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HH10-09 : MARBLE TIMBE vs THE NGONIDZASHE FAMILY TRUST
Ruled By: OMERJEE J and MAVANGIRA J

Personal rights are in law considered to be subservient to real rights and therefore cannot, on their own, be successfully used as a defence to an action of eviction.
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HH03-12 : NYASHA EUNICE CHIKWINYA AND TWO OTHERS vs JUSTINE ZVANDSARA AND FOUR OTHERS
Ruled By: BHUNU J

The mere fact that the respondents have since unlawfully erected structures on someone's land without her consent cannot sanitise or legalise their unlawful conduct in allocating to themselves land belonging to another without lawful authority. The respondent clearly erected those structures at their own risk knowing full well that their conduct was unlawful.
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Appealed
HH72-10 : EDWARD GARDNER vs DAMPIER DEVELOPMENT and V MANGAMI and KIDS MHANGAMI and EXPORT CREDIT & GUARANTEE CORPORATION PL and REGISTRAR OF DEEDS
Ruled By: MAKONI J

One of the essential elements of an actio rei vindicatio is that a party seeking such relief must establish the right of ownership. The author, D CAREY MILLER, in The Acquisition and Protection of Ownership (1986)…, after making the above point, goes on to stress that:“As VOET points out, the ...
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HH38-09 : JOHN LANDA NKOMO vs LANGTON T MASUNDA
Ruled By: BHUNU J

It appears to me the basis of Mr.Masunda's claim to occupy Jijima Lodge on a claim of right is grossly misplaced in so far as the concept of claim of right is only recognized as a defence at criminal law and not as a mode of acquiring rights or perpetuating one's illegal occupation of ...
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HH38-10 : LUCIA MUNYANYI vs LIMINARY INVESTMENTS AND ISRAEL GUMUNYU N.O.
Ruled By: MAKARAU JP

The facts of this matter are largely common cause. I set them out as follows. On 27 March 2009 the applicant and the first respondent entered into a written Agreement of Sale in terms of which the applicant sold to the first respondent certain immovable property, fully described as Stand 2902 Bluff Hill Township of Bluff ...
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HH70-12 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs MUNYARADZI SEFAIDIGA and BLESSING MUNYORO
Ruled By: HUNGWE J

On the return day of the rule nisi I confirmed the provisional order and dismissed the counter application indicating that the reasons will follow. These are the reasons. This is the return day of the rule nisi issued by this court on 10 May 2007 interdicting the two respondents (applicants in the counter-application hereinafter referred to as ...
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HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

The respondents undertook to vacate Greenhills Farm by 31 May 2006. They still remain on the property. My finding, therefore, is that the respondents have no right whatsoever to remain at Greenhills Farm, and accordingly, the applicant is entitled to the relief it seeks.It is therefore ordered as follows -1. That the respondents, and all persons ...
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HH83-12 : BASIMON TAPFUMANEYI vs NOAH MUSARURO (in his capacity as Executor of the Estate Late Vasco Musaruro) AND FIVE OTHERS
Ruled By: MAWADZE J

Order 3 Rule 11(c) provides as follows: "Contents of Summons Before issue of, every summons shall contain- (a)...,. (b)...,. (c) A true and concise statement of the nature, extent and grounds of the cause of action and the relief or remedies sought in the exception. (d)...,." The plaintiff seeks the reconciliation of the court orders which are in apparent conflict and determination ...
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HH21-09 : MASHONALAND TURF CLUB vs MICHELLE NYAMANGUNDA
Ruled By: MTSHIYA J

This is an action for the eviction of the defendant and all those claiming occupation through her from the plaintiff's premises situate at the Borrowdale Park Race Course, Harare.It is common cause that on 23 April 2007 the plaintiff entered into a lease agreement with a company called Lunar Graphics ...
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HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA
Ruled By: MUTEMA J

This is an application for summary judgment whose draft order reads:“1. The respondent be and are (sic) hereby ordered to vacate the plaintiff's premises to wit House No. 1117 Haka Way, Chipadze Township, within seven (7) days of this order.2. The respondent pays costs of suit.”This is one of several ...
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Appealed
HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI
Ruled By: BERE J

The plaintiff, as represented by its Managing Director, Ms Elizabeth Chidavaenzi, issued summons out of this court on 9 June 2008 seeking the ejectment of the defendant from Stand number 3182 of subdivision A of Stand 159 Prospect in Harare ('the property'). On 2 October 2008 the defendant filed her plea and sought the dismissal of the ...
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HH26-10 : MEDICAL INVESMENTS LIMITED vs RUMBIDZAYI PEDZISAYI
Ruled By: MAKARAU JP

The applicant and the respondent were employer and employee respectively. The respondent was employed by the applicant as its Chief Pharmacist with effect from 1 December 2002 up to November 2008. It was a specific term of her employment that the respondent would be entitled to the use of a motor vehicle during the course ...
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HH01-10 : RIVER RANCH LIMITED vs DELTA CORPORATION LIMITED
Ruled By: PATEL J

The plaintiff in this matter seeks an order requiring the defendant to vacate Stands 322 and 324 in Beitbridge Township and pay holding over damages from the 1st of April 2006 to the date of vacation. The defendant avers that it is the lawful purchaser of both houses in terms of written agreements of sale and counterclaims ...
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HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

In Jadwat and Moola v Seedat 1956 (4) SA 273…, CANEY J dealt with the issue as follows:“An action for ejectment, on the grounds of a defendant being in wrongful and unlawful occupation, is, in essence, based upon his being a trespasser, and, trespass is an infringement of possession, which ...
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HH97-09 : WILLARD MAZHAWIDZA AND DORNICA MAZHAWIDZA vs ISAYA MASHAYAKARARA
Ruled By: GOWORA J

In this application, the applicants have sought the eviction of the respondent from 33 Taomina Avenue, New Marlborough together with all those claiming occupation through him. I will start with the facts which are common cause. The applicants are husband and wife. On 30 June 2008, the property in question was transferred into their joint names, and it ...
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HH99-09 : ALSPITE INVESTMENTS (PRIVATE) LIMITED vs TENDAYI WESTERHOFF
Ruled By: MAKARAU JP

The defendant was married to one Clemens Westerhoff in terms of the marriages Act [Chapter 5.11]. The marriage was dissolved by this court on a date that is not readily ascertainable, and is, any event, immaterial for the purposes of this trial. During the subsistence of the marriage, the parties had acquired an immovable property called Stand ...
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HH101-09 : JULIET MUCHA vs PHILIMON MUCHA
Ruled By: BERE J

On 22 July 2008, the plaintiff issued summons out of this court seeking the following: (a) An order compelling the defendant to release to herd sixteen her of cattle, plough, scotch-cart axle, two size 16 tyres with tubes and rims, seventy five litres of petrol, and a water pump. (b) Costs of suit. The plaintiff and her husband stay at..., ...
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HH107-09 : JULIA NDEMERA AND COSMAS NDEMERA vs SIPHELILE MOYO AND TAFADZWA CHITATE AND THE DEPUTY SHERIFF N O
Ruled By: CHITAKUNYE J

On 9 April 2008, the two applicants entered into an Agreement of Sale of Stand Number 2700 Glen Norah A, Harare, with the first respondent. They paid the purchase price, and had the Stand ceded into their names. On 14 April 2008, the applicants gave notice to occupants of the property to vacate the property so ...
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HH122-09 : EMMANUEL NEMUSESO vs DOROTHY MASHITA and LOVEMORE KATAYI and PAULINE MANDINGO and PANGANAYI MASHITA and INNOCENT WOYO and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS NO
Ruled By: GUVAVA J

The dispute in this matter revolves around an estate belonging to the late Panganayi Elias Mashita who died, testate, in South Africa on 10 December 1983. He was survived by his wife, the first defendant, and two minor children being the third and fourth defendants. In terms of his Will, dated 27 June 1978, the first defendant ...
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HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

The applicant herein is the registered owner of an immovable property commonly known as 425 Dandaro Village. The applicant has owned the property since April 2004. In this matter, the applicant is seeking the eviction of the respondent from the premises. The respondent is opposed to the granting of the relief being sought. The respondent, in seeking to ...
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HH131-09 : MAIROS LISIMBA vs LIZZY CHIPENDO
Ruled By: CHITAKUNYE J

On 16 March 2007, and at Harare, the applicant entered into a sale agreement with Gatsikanayi Enock Nyamupanda (herein after referred to as Nyamupanda) for the purchase of a certain piece of land being Stand Number 9642 A Salisbury Township also known as Number 2 Umuguza Close, Wilmington Park, Cranborne, Harare, held under Deed of Transfer ...
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HH132-09 : PINELONG INVESTMENTS (PVT) LTD vs THOMAS VALLANCE AND PARADDIGM TRUST (PVT) LTD
Ruled By: MAKONI J

On 26 July 2008, the applicant issued summons, out of this court, claiming eviction and other ancillary relief against the respondents.On the same date the summons were served on the first respondent who accepted service on behalf of the second respondent. The dies induciae expired on 6 August 2008.
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HH162-09 : ZIMBABWE BROADCASTING HOLDINGS vs SEMUKELISO GONO
Ruled By: GOWORA J

The applicant is a duly registered corporate entity under the laws of this country. On 30 March 2008, following conciliation through an arbitrator, the dismissal of the respondent from amongst the ranks of the applicant's employees was confirmed. As a result, the parties' formal relation came to an end. At the time, the respondent was in possession of ...
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HB76-09 : MAXWELL CHAITIKA vs ZIMBABWE NATIONAL WATER AUTHORITY
Ruled By: CHEDA J and NDOU J

This is an appeal against the trial court's order of eviction. The history of this matter is that the appellant was employed by the President's office at the department of Central Intelligence Office and was based at Beitbridge. During his employment he was allocated House Number 795 Dulibadzimu Township, Beitbridge. The circumstances surrounding this matter are that the respondent constructed ...
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HB102-09 : ERMANUS GERHADUS GROVE vs MARTIN MAKONESE and MRS MARWISA and MR CHIGARIRO
Ruled By: KAMOCHA J

The applicant averred that at the beginning of this year, during the month of February, he was arraigned for contravening the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] on allegations that he had continued to use gazetted land without lawful authority. He tendered a plea of not guilty on the basis that he was in lawful ...
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HB113-09 : MADUMELANA IMPORT AND EXPORT (PVT) LTD vs WATSON MPOFU
Ruled By: NDOU J

The applicant seeks a provisional order in the following terms - “Terms of the order sought That you show cause to this honourable court, if any, why a final order should not be made in the following terms:- (1) That Deputy Sheriff, Bulawayo be and is hereby ordered to keep the vehicle, namely, a Hino truck, registration number ...
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HB114-09 : DENNY NDABEZINHLE MASHENGELE vs JAMES NCUBE
Ruled By: NDOU J

The applicant seeks a provisional order in the following terms:- “Final Order It is ordered: That the provisional order granted by this honourable court be confirmed in the following manner: 1. The continued holding of the applicant's goods after he had complied with all the contractual obligations, and paid ZIMRA clearance, be and is hereby held to be illegal. 2. The respondent be ...
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HB124-09 : CITY OF BULAWAYO vs LILIAN KANDEMERI
Ruled By: NDOU J

The respondent has neither right nor title in the property, and these illegal occupants are, in essence, trespassing on the applicant's property. I adopted a robust approach and concluded that, from the facts before me, the respondent was behind the illegal occupations. Accordingly, notwithstanding what she raised in her opposing affidavit, I held the view that the applicant ...
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HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

In January 2003, the first respondent attempted to evict the applicant from the applicant from the property using the Order she had obtained from this court in June 2002, and which was confirmed in August 2002. The applicant successfully resisted the eviction, arguing that she was not occupying through anyone but in her individual right as ...
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HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

The plaintiff..., issued summons out of this court in February 1994 seeking an eviction of the first and second defendants..., from a property known as Number 18 Ridgeway South, Highlands, Harare..., and payment of damages. The first and second defendants counter-claimed for the cancellation of the transfer of the property to the applicant and subsequent ...
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HH51-10 : DHL INTERNATIONAL (PVT) LTD vs CLIVE MADZIKANDA
Ruled By: MAKARAU JP

Assuming that have erred in holding that this court has no jurisdiction in this matter, I still would have dismissed the application at common law. Vindication is a remedy that is available to an owner against the world at large. By reason of his or her rights of ownership, an owner is competent, at ...
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HH51-10 : DHL INTERNATIONAL (PVT) LTD vs CLIVE MADZIKANDA
Ruled By: MAKARAU JP

It..., appears to me that the provisions of section 92E of the Labour Act [Chapter 28:01] have no effect on the claim of right that the respondent is raising at common law. While the law regards the respondent as dismissed, he has never accepted that position, and is challenging his purported dismissal before the Labour Court. For ...
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HH85-10 : THE CITY OF HARARE vs SOUL KENNETH MANYASHA
Ruled By: BHUNU J

The municipality of the City of Harare is the lawful owner of a certain piece of immovable property known as House No.4 Hampshire Road, Eastlea, Harare. Sometime in September 1993 it entered into a written lease agreement with one Soul Kenneth Manyasha, the defendant under case number 3174/08, and the plaintiff under case number HC6675/08.The City ...
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HH102-10 : OLD MUTUAL LIFE ASSURANCE COMPANY ZIMBABWE (PVT) LTD vs PETER RAFTOPOLOUS t/a SELECTIONS
Ruled By: MTSHIYA J

On 23 January 2009 the plaintiff issued summons against the defendant seeking relief in the following terms:- “(a) An order for the ejectment forthwith of the defendant together with its subtenants, assignees, invitees and all those claiming through defendant from the plaintiff's premises known as Shop No.2 Stand No.12A Avondale Township located at Avondale Shopping Centre, Avondale, ...
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HH106-10 : COLLIN DUBE AND 129 OTHERS vs TUNGPAL INVESTMENTS (PVT) LTD and THE MESSENGER OF COURT, HARARE
Ruled By: BHUNU J

No onus lies on the respondent to show or deduce from the bulk payments as to who has paid or not in terms of the Deed of Settlement. This is because this information is solely within the knowledge of the applicants. For the following reasons the application cannot succeed because no one is in danger of ...
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HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED
Ruled By: GOWORA J

On 9 January 2007 the plaintiff herein instituted proceedings against the defendant by way of summons for an order for its ejectment from three immovable properties. The defendant filed papers in defence of the claim and in due course the matter was referred to a judge in chambers for the holding of a pre-trial conference. Issues ...
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Appealed
SC18-14 : SILVER ZHUWAKI vs TAZVITYA MUTANDWA and BRENDER LEEPER and DEPUTY SHERIFF and REGISTRAR OF DEEDS and CLEVER MANDIZVIDZA N.O.
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

This appeal involves a dispute over the ownership and occupation of Stand No.381 Goodhope Township. The court a quo found that the first respondent was the lawful owner of the Stand and granted him vacant possession thereof, failing which the appellant was to be evicted therefrom. The appellant's counterclaim was dismissed in its entirety and ...
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SC08-13 : NOBILITY DIMBI vs RONWEN INVESTMENT (PVT) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

At the end of hearing argument for both parties, the court dismissed the appeal with costs. It was indicated at the time that reasons for the decision to dismiss the appeal would follow in due course. These are they. The appellant is married, in terms of the Marriages Act [Chapter 5:11], to Tamuka Dimbi who ...
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HH178-10 : MATANDA (PRIVATE) LIMITED vs MINISTER OF NATIONAL SECURITY, LANDS, LAND REFORM AND RESETTLEMENT and ONIAS GOTORE and OTHERS
Ruled By: MAKONI J

The basis of the application is that the applicant is the current owner of a certain piece of land called Lot 1 of Orange Grove Hartley...,. On 12 December 2003 the Minister of Lands, Land Reform and Resettlement..., published a Notice of Acquisition of Lot 1 of Orange Grove Hartley in the Government Gazette. ...
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HH03-11 : JOYCE MADZORERA vs DAVID SHAVA
Ruled By: CHATUKUTA J

The applicant seeks an order for the ejectment of the respondent and any other person in occupation through him, from Stand 1741 Unit A, Seke, Chitungwiza and costs on a higher scale. The background to the application is that on 6 November 2001, the respondent purchased the property from one Gloria Madzorera. The respondent instituted proceedings in ...
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HH07-11 : RICHARD CHIHORO vs RUSERE MUROMBO and DOROTHY RUSERE
Ruled By: OMERJEE J and KARWI J

This matter has a long history of a dispute over the ownership of a piece of communal land, in Mayambara, Seke Communal lands. The parties to the dispute inherited the dispute from their parents. The appellant's father and the respondent' brother, who were the original disputants died many years ago. The matter was further confused ...
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HH31-11 : ESTHER CHIYADZWA vs BETTY MAGUWU
Ruled By: BERE J

On 11 March 2010, the plaintiff issued summons out of this court seeking the eviction of the defendant from Stand 3667 Township of Gweru Township Lands.Whilst accepting that the plaintiff is the registered owner of the property the defendant resisted the prayer sought by the plaintiff on the basis that she had been invited ...
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HH129-11 : STEPHEN ZINGWE vs SYNODIA GWANZURA (nee CHETENI) and PETTION ELTON GWANZURA
Ruled By: KUDYA J

The plaintiff concluded an Agreement of Sale with the second defendant on 20 January 2003 and took registered title of the immovable property, Stand Number 2946 Gwelo Township of Gwelo Township Lands, also known as 40 Mcllwaine Southdowns, Gweru, on 19 February 2003. The first defendant, Mrs Gwanzura, is the former wife of the second ...
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HH153-11 : MICHAEL TAREMBA (in his capacity as Executor in the Estate of the late Joseph Patrick Taremba) vs NYADA PHIRI
Ruled By: CHITAKUNYE J

The applicant is the son of the late Joseph Patrick Taremba who died on 24 December 2004 at Mutare. The applicant was duly appointed Executor Dative in the estate late Joseph Patrick Taremba on 15 October 2009. The respondent is a male adult residing at Number W629 Amaveni, Kwekwe. This property is registered in the ...
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HB30-11 : FISO FIKILINI vs JUMA JAMU
Ruled By: MATHONSI J

The applicant and her husband instituted proceedings against the respondent in case no. HC1756/10 seeking an order for the eviction of the respondent from No.21B Moffat Avenue, Hillside, Bulawayo and holding over damages. The respondent entered appearance to defend forcing the applicant to make this application for summary judgment on the basis that appearance has ...
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