The facts giving rise to this application are largely common cause. They are as follows:

The applicant is in the farming business, operating a farm in Chakari. In October 2006, it set out to acquire a centre pivot irrigation system for its farm. Its Managing Director, duly authorized to act on behalf of the applicant, approached one Douglas Chihuri (“Chihuri”) who was selling a center pivot system on behalf of the respondent.

An agreement of sale was concluded between the plaintiff and Douglas Chihuri, acting for his principal, regarding a 140HA center pivot system belonging to the respondent.

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.

The plaintiff asserted that he entered into the agreement with the first and second defendants on the other hand through the agency of PMA Real Estate Agency (Pvt) Ltd.

The first defendant denied that he ever entered into an agreement of sale with the plaintiff. He denied authorising PMA Real Estate Agency to sell his rights and interests in House No.5706 Muroro Crescent Glen Norah B, Harare.

The first defendant, Zondai Chimbwanda, and the second defendant, Givemore Karimazondo, are joint holders of certain personal rights and interests in the property known as No.5706 Muroro Crescent, Glen Norah B, Harare in equal shares. As holders of equal shares in the said property they agreed between themselves to dispose of their rights and interests in the property. Pursuant to this understanding, the second defendant approached PMA Real Estate and granted them a mandate to sell the said rights and interests.

At the material time, the first respondent was out of the country in Botswana.

In completing the mandate to sell form, the second defendant endorsed both the first and second defendants names as holders of rights and interests in the property.

That form was however signed by the second defendant only.

PMA Real Estate Agency proceeded to advertise the property and the plaintiff expressed interest. On 16 August 2005, the plaintiff executed an irrevocable offer and acceptance form in which he offered a purchase price of $220 million. On 17 August 2005, the second defendant appended his signature to that form in acceptance of the offer as seller.

Thereafter, on 18 August 2005, an agreement of sale was drawn up by PMA Real Estate Agency. The agreement of sale was executed by the plaintiff and the second defendant.

The plaintiff paid a deposit of $214 million to PMA Real Estate and the balance was to be paid in instalments.

The purchase price was subsequently revised upwards to Z$260 million.

The plaintiff paid the balance of the purchase price to PMA Real Estate Agency. The agreement of sale was amended to reflect the new purchase price of Z$260 million (see exb. 5).

It is common cause that when the parties entered into the agreement of sale they knew that the agreement was conditional on the first defendant ratifying the agreement upon his return from Botswana.

The first and second defendants subsequently sold the same rights and interests in the property in question to the third defendant, in September 2005, for the price of Z$350 million.

The third defendant duly paid the purchase price and has since taken occupation of the property.

His effort at obtaining cession was stalled when PMA Real Estate Agency advised the fourth respondent that the same property had been sold to the plaintiff and so no cession should be effected.

The plaintiff therefore brought this suit against the first and second defendants seeking:-

(1) Cession of Stand No.5706 Muroro Crescent, Glen Norah B, Harare into his name, alternatively;

(2) The sum of Z$15 billion being the cost of a house similar to Stand 5706, as at the date of the summons, being 14 November 2007.

The first defendant denied that he had ever agreed to the purchase price purportedly paid to PMA Real Estate by the plaintiff and he also contended that he never ratified the agreement of sale.

The second defendant, in his plea, conceded that he had entered into that agreement conditional on the first defendant ratifying it.

The issues for determination were essentially three, namely:-

(1) Whether there was a binding agreement of sale between the plaintiff and first and second defendants or not;

(2) If the answer to the above is in the affirmative, whether the third defendant was himself an innocent third party purchaser.

(3) If so, who between the two purchasers has dominant rights over the property in dispute.

It is pertinent to note that a conditional sale can only be valid/binding where the condition precedent has been fulfilled.

It is the fulfilment of the condition that gives life to such an agreement.

In casu, the plaintiff and PMA Real Estate were made aware that whatever they were entering into with the second defendant was conditional upon the second defendant ratifying such agreement.

In this regard, it may be noted that ratification is the act of adopting a contract or other transaction by a person who was not bound by it originally: see Osborne's Concise Law Dictionary, 6th Edition, by J. BURKE.

The prerequisite of ratification may be stated as follows:-

“1. The contract must be professedly made on behalf of the principal.

2. There must be a competent principal at the time of the contract.

3. The contract must not be void.

See CHESHIRE, FIFOOT and FURMSTAN's Law of Contract, 11th Edition…,.

Ratification may be express or tacit. Ratification may be implied from an act or conduct showing an interest to adopt the contract.

In casu, the plaintiff alleged that the first defendant ratified the agreement of sale that had been entered on his behalf as joint-holder of rights and interest by the second defendant.

In support of his case, the plaintiff gave evidence and called two witnesses from PMA Real Estate Agency, namely, Simon Mukondo and Jerry Ndemera.

The first defendant gave evidence. The second defendant did not avail himself for trial though he had participated in the proceedings up to the pre-trial conference stage.

In his evidence, the plaintiff alluded to the fact that he himself never came into contact with the first defendant. His assertion that the first defendant ratified the agreement of sale was based on reports he received from PMA Real Estate Agency. He thus could not vouch for certainty that the first defendant, either by word of mouth or in writing, ratified the agreement.

All the documentary exhibits he tendered in support of his case did not have the first defendant's signature.

The conduct that he could only refer to was again based on reports he received from PMA Real Estate that the first defendant had given his consent to the agreement of sale subject to an upward increase in the purchase price.

He had no direct evidence of the first defendant ratifying the Agreement of Sale.

Mr Simon Mukondo gave evidence next. He is a co-shareholder in PMA Real Estate Agency. He is also the Principal Registered Agent of PMA Real Estate Agency.

His evidence was to the effect that PMA Real Estate Agency was given mandate to sell by the second defendant. The second defendant had made it clear the rights and interests were jointly held. That mandate to sell was signed by the second defendant as seller. The co-holder of rights and interests, the first defendant, did not sign the mandate to sell and did not, in his own right, give such mandate.

The second defendant did not provide a power of attorney, or some other written authority, from the first defendant, for him to dispose the first defendant's rights and interests in the property in question.

Despite this omission, PMA Real Estate Agency proceeded to advertise and sell the rights and interests as instructed by the second defendant. This, PMA Real Estate did on the second defendant's word that he had such mandate and that the first defendant would ratify the agreement of sale upon his return from Botswana.

The agreement of sale was executed on 18 August 2005.

It was Mr Mukondo's evidence that on the next day after execution, Mr Jerry Ndemera and the second defendant approached him in his office. They advised him that the two of them had been in touch with the first defendant on the phone who was still in Botswana. They advised that the first defendant had dictated terms for them to re-do the agreement. They had the dictated terms on a piece of paper. That piece of paper was tendered into evidence as part of the plaintiff's bundle of documents. The document in question is on page 7 of the said bundle. The terms on the document were that:

1. That the selling price should be increased to Z$260 million;

2. That the payment would be strictly cash of Z$220 million and balance of Z$40 million would be paid in two instalments in the months of September and October; and

3. That the seller who was present tenant would vacate when schools calendar for 3rd term 2005 ended;

4. The last point was that once the last payment was done, in October, the seller would become a tenant paying rent.

As at that stage, when these terms were brought to his attention, Mr Mukondo had not seen or spoken to the first defendant.

Mr Mukondo said that he saw the first defendant for the first time when the first defendant came with the second defendant in the company of a woman he thought/believed was the first defendant's wife.

When this trio came, the first defendant demanded to be paid the purchase price. They refused to release the money to him contending that they could not do so before cession. The first defendant had then offered that cession be done that same day but this was not done. The first defendant had then said that if he was not paid on that day then the purchase price would go up.

The first defendant was not made to sign the Agreement of Sale or any other document relating to the Agreement of Sale of his rights and interests in the property in question.

The next witness was Mr Jerry Ndemera. At the material time he was employed by PMA Real Estate Agency as Sales Manager.

In his evidence, Mr Ndemera confirmed that PMA Real Estate Agency dealt with the second defendant upon the second defendant's word that he had the mandate to sell from the co-holder of rights and interests in the property.

There was no request or insistence on the second defendant furnishing the requisite power of attorney or and other written authority from the first defendant.

PMA Real Estate Agency were spurred to act simply on the second defendant's assurance.

It was not till after the Agreement of Sale had been concluded that he saw the first defendant.

On his first meeting with the first defendant, the first defendant did not agree with what had been entered into. According to Mr Ndemera, the first defendant came to see him on the day page 7 of the plaintiff's bundle of documents was written.

Mr Ndemera contradicted Mr Mukondo's evidence on how this document came to be.

His evidence was to the effect that this document was written by the first defendant on the day the first defendant came to their offices. He is the one who in fact provided the first defendant with the piece of paper to write on when the first defendant indicated there were some terms to be changed.

The contradiction was in that Mr Mukondo had said Mr Ndemera had indicated to him that the first defendant had dictated those terms on the phone from Botswana and not that the first defendant had come to their offices.

Despite Mr Ndemera's contention that this document was written by the first defendant, he was unable to explain why the first defendant did not append his signature thereto. Instead, the signature thereon is that of Mr Ndemera, just as he had signed for the second seller in exhibit. 1, the Agreement of Sale.

If indeed the first defendant had, on this occasion, ratified the Agreement of Sale, albeit with an increased purchase price and additional terms, he would at least have signed on this document to signify his approval of the transaction, if those terms were accepted by the plaintiff.

It was Mr Ndemera's evidence that the first defendant must have come to their offices on 2 or 3 times. Somehow, he was not made to sign the Agreement of Sale which the plaintiff says he had ratified.

It may also be noted that both Mr Mukondo and Mr Ndemera indicated that when the first defendant came to PMA Real Estate offices he demanded payment. When asked to sign the Agreement of Sale, the first defendant said he wanted to be paid before he could sign.

This, in my view, is inconsistent with a party who had ratified the agreement and had assumed his obligations as contained in the Agreement of Sale.

Further, both Mr Mukondo and Mr Ndemera admitted, that, when the first defendant came in the company of his wife, this was after a PMA Real Estate employee had been to the first defendant's residence with an armed police officer. At that residence, they had forced the first defendant's mother to append her signature to a document tendered in as exhibit. 8.

That document invited the first and second defendants to come and activate the process of transfer.

The visit by the first defendant and his wife was therefore to complain about that visit by a PMA Real Estate employee and the armed police officer. This is the visit Mr Mukondo apparently recalled.

It is clear to me, that, though the first defendant visited PMA Real Estate Agency offices he never signed the Agreement of Sale or any document showing that he consented to the sale of his rights and interests in the property in question.

He never ratified the Agreement of Sale in writing.

The tacit ratification that Mr Mukondo and Mr Ndemera alluded to needed to be proved.

The conflict in the evidence of Mr Mukondo and Mr Ndemera, as key witnesses to the issue of ratification, on such aspects as who authored the document on page 7 of the plaintiff's bundle of documents, the number of visits made by the first defendant to PMA Real Agency, and the fact of a PMA Real Estate Agency employee visiting the first defendant's residence in the company of an armed police officer to force matters, creates doubt on the credibility of their testimony.

They did not impress me as reliable witnesses.

They may have had cause to believe the second defendant when he told them that he had the first defendant's mandate to sell and that the first defendant would ratify the Agreement of Sale, but, that was not adequate. They ought to have obtained consent or mandate from the first defendant himself to proceed with the sale.

They could easily have demanded that the second defendant furnishes them with a Power of Attorney for them to action the second defendant's mandate to sell.

Equally, when the first defendant availed himself at their offices, they ought to have clarified the issue by ensuring that he ratified the agreement in an unequivocal manner. To seek to rely on tacit ratification or consent to the agreement was always going to be difficult.

The onus is on the plaintiff to prove, on a balance of probabilities, that the first defendant ratified the Agreement of Sale for it to be binding on him.

A careful analysis of the evidence adduced in court on this issue does not show that the plaintiff discharged such onus.

The evidence showed that when the second defendant entered into the Agreement of Sale he made it clear that he was also doing so for and on behalf of his co-holder of rights and title and that the co-holder would have to come and ratify the agreement. The first defendant was a competent co-holder to ratify the agreement had he wanted to. The Agreement of Sale was not void. It was capable of ratification.

The failure is on the fact that the plaintiff has not proved, on a balance of probabilities, that the first defendant adopted the agreement of sale.

As the Agreement of Sale was conditional upon the first defendant's ratification, it follows that there was no valid agreement of sale to bind the first defendant.

In the circumstances, the first defendant was free to enter into a sale agreement with anyone that the joint holders of rights and interests in the property preferred.

In this case, they sold their rights and interests to the third defendant. There was no legal impediment to such a transaction.

The plaintiff's remedy, if at all he felt hard done, is against those who led him to part with his money when the agreement had not been ratified.

Accordingly, the plaintiff's claim is hereby dismissed with costs.

Faced with this dilemma, the deponent sought authorization from one of the current Directors.

What the deponent is attempting to do is to ratify proceedings instituted without legal capacity.

Onius Gumbo further said that the first applicant had no locus standi to represent the second applicant. Mr. Todd Phiri, besides not being an elder in the second applicant, does not have the locus standi to represent the second applicant and the first applicant. The first applicant brought these proceedings as Reverend R.S.Sibanda, in his official capacity as Overseer of the Apostolic Faith Church. However, the power of attorney upon which Todd Phiri purports to act upon only empowers him to act on behalf of R.J.Sibanda in his personal capacity. Todd Phiri cannot, therefore, claim to have the mandate to represent the second applicant through the said power of attorney.

The applicant seeks a provisional order in the following terms:-

“Terms of the provisional order granted

1. Respondents be and are hereby ordered to forthwith hand over a property listed in Annexture 'B' to the founding affidavit to the applicant upon service of this order.

1(a) In the event of the respondents refusing or forbidding to comply with the terms of para 1 above, the Deputy Sheriff be and is hereby authorized to retrieve the said property from the respondents' property and deliver it to the applicant.

2. Respondents are required to account for one applicant's property sold prior to 14 of July 2010 and to handover all proceeds of such sales to the applicant within 48 hours of service of this order.

3. Leave is given to the applicant's attorney to serve a copy of this order.”

The terms of the final order sought are constructed as follows:-

“Terms of the final order sought

1. It is hereby declared that the property listed in annexture 'B' attached to the founding affidavit is the exclusive property of the applicant.

2. Respondents be and are hereby ordered to pay costs of suit on legal practitioner client scale.”

The brief facts of the matter can be briefly stated as follows:-

The applicant conducts the business of interior and exterior decorations and sells diversified specifically-designed household goods and effects. On or about October 2009, the applicant entered into negotiations with the first respondent who was allegedly representing herself and the second respondent. It was agreed that that the first respondent, through the second respondent, would act as an agent of the applicant.

The nature of the agency relationship was that the applicant would supply the respondents with goods for sale which would be sold on the applicant's behalf by the respondents who would, in turn, receive 20% commission on any goods sold.

On 14 July 2010, the applicant wrote to the respondents cancelling the agency agreement alleging improper conduct and breach of the material term of the agreement between the parties by the respondents.

The second respondent, by way of letter on 15 July 2010, confirmed the cancellation of the agency agreement but sought to remain in possession of the property listed in Annexture 'B' until a certain date and that the respondents be paid certain amounts due arising from the applicant's cancellation of the agreement.

The applicant persisted in demanding to be handed over the property in Annexture 'B' valued at US$116,627=50 but the respondents refused indicating that certain conditions should be met.

When the applicant visited the respondent's shop, on 13 August, ostensibly for a stock take, the applicant was denied access into the shop. The applicant alleges that some of the property had been removed from the shop and property valued at about US$100,000 was no longer in the shop.

The applicant's fear was that the respondents were disposing of the applicant's property hence causing possible irreparable loss to the applicant.

The applicant then approached this court, on a certificate of urgency, praying for the interim relief already alluded to.

This application is opposed.

Counsel for the respondents raised three points in limine, two of which he argued are capable of resolving the matter without even going into the merits of the application. The points in limine are;

(i)...,.

(ii) Secondly, that the first respondent is improperly cited;...,.

That first respondent is improperly cited

Counsel for the respondents, in argument, stated that it was improper to cite Maria Katsande as the first respondent in these proceedings in her personal capacity as the Agency Agreement was between the applicant and the second respondent. He argued that the first respondent, despite being both a shareholder and director of the second respondent, should not be party to these proceedings in her personal capacity.

Counsel for the respondents submitted that the second respondent is a duly registered company in terms of the Companies Act [Chapter 24:03] and has a separate legal persona distinct from the first respondent.

On the other hand, counsel for the applicant countered that the first respondent was properly cited as she is the one who negotiated the Agency Agreement on her own behalf and that of the second respondent. Counsel for the applicant submitted that the first respondent at no stage produced a resolution from the Board of Directors of the second respondent indicating that she was acting on behalf of the second respondent.

Reference was made to the case of Madzivire & Ors v Zvarirwadzwa & Ors 2005 (2) ZLR 148 (H) in support of counsel for the respondents argument.

My view is that this case is irrelevant to the point in issue as it dealt primarily with the right of individual directors or shareholders to bring action on behalf of the company.

It is common cause that the second respondent prima facie is a duly registered company in terms of the Companies Act [Chapter 24:03]. I say prima facie because the applicant did not contest this point although the certificate of incorporation attached as Annexture 'A' to the second respondent's opposing affidavit is unsigned by the Registrar of Companies and is a photocopy.

Section 9 of the Companies Act [Chapter 24:03] provides as follows:-

“A company shall have the capacity and powers of a natural person of full capacity in so far as a body corporate is capable of exercising such powers.”

In the absence of any basis to pierce the corporate veil, I would agree with counsel for the respondents that there would be no proper basis in law to cite the first respondent in these proceedings in her personal capacity, albeit, being both a director and shareholder of the second respondent. Accordingly, the first point in limine is upheld.

However, this would not dispose of the matter as the second respondent remains party to the proceedings.

The wording of the special power of attorney does not appear to restrict the powers that have been given to Lovemore Magwenzi by the executor. It is, in my view, necessary to set out in full the wording of the special power of attorney. It states -

"I, Lovemore Goredema born on 9 November 1948, and identity number 63-449191L 63, of 15 Kwadikwidi Street Chitungwiza, do hereby appoint Lovemore Kuwawoga Magwenzi, born 25 October 1947, I.D Number 63-166393 X 47, of 6193, 87^th Crescent, Glen View 3 Harare, to be my lawful agent to represent me as an executor of the estate late Robert Tendayi Magwenzi DR 364/2001." …,.

Memory Chatambudza Makope was the first witness to give evidence on behalf of the plaintiff….,. He was involved in all transactions involving this matter and was always acting on behalf of his brother, the plaintiff.

He produced a special power of attorney executed in his favour by the plaintiff.

The fourth defendant's case

The facts in this case are basically as outlined in my interim judgment of 8 April 2008. The facts are as follows:

The first plaintiff, Mabonde Agricultural Enterprises (Pvt) Ltd, is a duly registered company in terms of the laws of this country. It is the owner of two pieces of land known as Estantia Farm, measuring 853,7087 hectares, and Stoneygate Farm, measuring 120010,4599 hectares, situate in the Chegutu area.

The third plaintiff is a Director and major shareholder of the first plaintiff with 65% of the shares. The second plaintiff is also a shareholder and Director retaining 32% of the shares. The other shareholders are the estates of the late Roger Moyo, Mathew Moyo and David Moyo comprising one percentage point each.

The three deceased estates are not part of these proceedings.

The background to this case is that sometime in 1998, and on 25 August, the second plaintiff, Jacob Moyo, left Zimbabwe to settle in the United Kingdom with his wife, the third plaintiff. Before departure, he executed a general power of attorney in favour of his son, one Sibangilizwe Moyo, authorizing him to manage all his personal affairs and estates here in Zimbabwe. On the strength of the general power of attorney, and in the absence of his parents, Sibangilizwe Moyo allegedly went on an extravagant spree, prodigal-son style, disposing of his father's assets and effects as well as the two farms, Estantia Farm and Stoneygate Farm, which are at the heart of this trial. He subdivided the two farms and sold the subdivisions to the respective defendants cited in this case.

It is, however, common cause that the two farms did not, and do not, belong to his principal but to the first plaintiff, Mabonde Agricultural Enterprises (Pvt) Ltd, a duly registered company. It is trite that the company is a separate legal entity with a separate existence from the second plaintiff who granted him the power of attorney.

The cardinal point for determination is whether Sibangilizwe Moyo abused the power of attorney and acted ultra vires the power of attorney. In other words, the real issue at hand is whether or not it was within Sibangilizwe Moyo's power to subdivide and sell the subdivisions to the second to fourteenth defendants. Did he have the necessary mandate to do what he did? If not, then it might mean that the sales may be tainted with illegality.

The general power of attorney reads in party:

“Know all men whom it may concern:

That I JACOB SIGODO MABONDE MOYO

Do hereby nominate and appoint Sibangilizwe Moyo

To be my General Attorney and Agent for managing and transacting all my affairs in banking, Mabonde Agricultural Enterprise P/L, Moyo and Partners, Muneyinazvo General Dealer and any other business or undertaking whatsoever, including my goats, sheep, cattle, house and stands if any,

With power to ask, demand, sue for recover all debts or sums of money…,. AND to buy and sell immovable or mining property, and for that purpose to make the necessary declaration as to the truth of the amount of purchase money and to receive, or to make and give, as the case may be, the necessary acts and Deeds of transfer of such landed or mining property in due and customary form according to the local laws and usages, to locate, peg, register or abandon mining claims or locations, either in my name, or in the name of any person whose rights I shall have acquired…,. AND to transfer and accept transfer of shares, sock or debentures in any syndicate, public company or corporation: AND, if necessary, for me and on my behalf to commence, prosecute, or to defend, any action, suit or other proceeding in or before any Court, or other body or person, and to suffer judgment or decree to be given against me in any such proceedings…,.”

Two witnesses testified at the trial on behalf of the plaintiff.

When matters of the family end up in court, finding the truth in the maze of family disputation, especially when a loving father and husband finds himself having to choose between members of his family, is the proverbial searching for a needle in a haystack.

Never mind that this is litigation mainly between incorporations which in itself may be deceiving indeed, but this matter seeks to resolve differences that have arisen within members of one family.

The plaintiff, which is an incorporation founded in 1975 by Senator Aguy Georgias, the major shareholder and the pulse of the company, instituted proceedings against the first defendant, who is Senator Georgias's son born out of wedlock, his company the second defendant, and the other three defendants seeking an order nullifying mortgage bond number 01533/2011 registered in favour of the third defendant, Telecel Zimbabwe (Pvt) Ltd and mortgage bond number 04504/2011 registered in favour of the fourth defendant; People's Own Savings Bank and costs of suit.

The plaintiff's declaration contains the following relevant averments:

“8. On the 6^th February 2011, the plaintiff and the first and second defendants entered into and signed an agreement in terms of which the first and second defendants would register a second Bond over plaintiff's property, namely, Stand 374 Willowvale Township, Harare.

9. It was a term of the agreement that the bond was a Covering Bond for first and second defendants' drawdown on airtime cards.

10. Having entered into the said agreement, it was a requirement that Trinity Engineering (Private) Limited, represented by Senator Aguy Clement Georgias, would sign a power of attorney to pass mortgage in favour of Telecel Zimbabwe (Private) Limited.

11.Trinity Engineering (Private) Limited and/or any of its duly authorized representatives did not sign such power of attorney to pass mortgage.

12. The first and second defendants however managed to have two bonds registered over the plaintiff's property without its mandate.

13. First and second defendants registered a bond over plaintiff's property in the sum of US$250,000= in favour of fourth defendant through Messrs Mawere and Sibanda   Legal Practitioners without the knowledge and consent of the plaintiff.

14. On the 4^th March 2011, first and second defendants caused to be registered yet another bond over plaintiff's property in the sum of US$1,000,000= in favour of the third defendant.

15. In short, first and second defendants forged signatures of Aguy Clement Georgias on both Powers of Attorney to pass mortgage bonds and the respective minutes of the Board of Directors of Trinity Engineering (Private) Limited authorising the registration of the said bonds.

16. It is my humble submission that the Bonds are null and void and as a result of forgery.”

The last paragraph of the declaration is misplaced in its wording as it is a departure from standard pleading and assumes a personal nature of an affidavit which it is not.

Only the first, third and fourth defendants entered appearance and pleaded to the claim.

I must say that the first defendant's initial plea, filed on 23 January 2012 (he later amended it and filed a completely different plea recanting the first one), makes interesting reading to the extent that it is an unmitigated confession to forgery. Self-acting, the first defendant pleaded.

“The 1^st defendant pleads as follows to the plaintiff's claim:

Ad Paragraph 1-7

No issues arises (sic)

Ad Paragraph 8-9

These are correct.

Ad Paragraph 10

This is correct

Ad Paragraph 11-12

This is admitted. I, on behalf of the second defendant connived with a representative of the third defendant in the person of its Chairman, Mr James Makamba, to forge Senator Georgias' signature as he was not acting expeditiously and was becoming reluctant to sign. Indeed, I had no authority or mandate to so act.

Ad Paragraph 13

This is admitted.

Ad Paragraph 14

This is admitted. Again, I reiterate that this was without the consent and knowledge of the plaintiff and/or Mr Georgias.

Ad Paragraph 15-16

These are admitted.

WHEREFORE, I and the second defendant admit that plaintiff be granted the prayer that it seeks.”

As I have said, more than two (2) years later, on 31 October 2014, the first defendant recanted that plea in an amended plea averring that he never caused the registration of the bonds but the plaintiff itself did.  The plaintiff registered the bond over its property in terms of the agreement of the parties and as consideration for that the second defendant paid the plaintiff again in terms of the agreement.  The first defendant denied forging the signature of the plaintiff's representative on the powers of attorney and Board minutes and asserted that the bonds are valid.

In its own plea, the third defendant insisted that the Bond registered in its favour was registered by the plaintiff and is therefore valid. The third defendant counter-claimed against the plaintiff and the second defendant for payment of US$686,172=38 due in terms of a credit agreement for the supply of recharge telecommunication cards to the second defendant wherein “the plaintiff agreed to stand as surety and co-principal debtor.”

The third defendant's counter-claim and plea was amended a number of times and now includes an averment that the plaintiff is bound by its contractual obligations evinced by the mortgage bond, especially as, prior to issuing summons, it was aware of the bond, made queries with the third defendant about the amount of indebtedness and never raised any contemporaneous objection or challenge to the signature. It further averred that the plaintiff had received the benefit of payments effected under the advance secured by the mortgage bond. The payment received by the plaintiff constitutes unjust enrichment.

The fourth defendant averred in its plea that the mortgage bond over the plaintiff's property, registered in its favour, was registered with the knowledge and consent of the plaintiff.

At the pretrial conference of the parties, held before a Judge, the dispute between the plaintiff and the fourth defendant was settled. According to the agreed pre-trial conference minute;

“1. It was agreed that the fourth defendant, without admission of liability, does not oppose the relief sought against it, subjection (sic) to a cession of the said mortgage bond to CBZ Bank Limited pursuant to an agreement between the plaintiff and the said CBZ Bank Limited.

2. The plaintiff and the fourth defendant shall file of record a consent order recording the settlement between the said parties. Thereafter, the fourth defendant will play no further part in these proceedings.”

Indeed, an order was granted by consent, per KUDYA J, on 19 October 2012, in the following:

“IT IS ORDERED THAT;

1. The 4^th defendant, without admission of liability, does not oppose the relief sought against it by plaintiff subject to a cession of the mortgage bond number 04504/2011 to CBZ Bank Limited pursuant to an agreement between the plaintiff and the said CBZ Bank Limited.

2. Each party shall bear its own costs.”

That way, the fourth defendant was phased out of these proceedings.

The trial involved the plaintiff against the first and third defendants only, the second defendant's defence having been struck off at the pre-trial conference. The claim of the third defendant against the second defendant was referred to the unopposed roll.

As between the plaintiff, the first and third defendants', three issues were identified, namely:

1. Whether the plaintiff's duly authorised agent signed the power of attorney authorising the registration of the mortgage bond in favour of the third defendant.

2. Whether the said mortgage bond in favour of the third defendant is valid.

3. Whether the plaintiff stood as surety and co-principal debtor for any amount that may be owing by the second defendant to the third defendant.

On 29 November 2006, the plaintiff issued summons against the defendants seeking an order compelling the defendants to pass transfer of certain immovable property to her. She also sought an order evicting the defendants and all those occupying through the defendant from the property in dispute.

As the basis for her claims, the details of which appear in paragraph 7 of her declaration, the plaintiff averred that from all the defendants, second to fourth defendants being represented by the first defendant under a general power of attorney, she had purchased the property in dispute in July 2003 under a written Agreement of Sale.

The plaintiff sues for the eviction of the defendant from her plot while the defendant counter-sues for the transfer of title, rights and interest in a portion of the same plot.

The plaintiff testified and called the evidence of two other witnesses who were her daughter, Eneresi Simon, and an employee of the Epworth Local Board, Cagewell Muzangaza. The defendant gave evidence and called the testimony of two other witnesses who were Pastor Elizabeth Nyakudanga and Tedius Kagande. A total of six (6) documentary exhibits were produced by both parties.

THE PLAINTIFF'S CASE

The plaintiff is an 83 year old woman. She cannot read or write. She has difficulty in walking. According to her summary of evidence, her husband died on 18 February 1982. In their pleadings, both parties accepted that she was appointed an executrix dative on 22 August 2007 and subsequently became the legal holder of the rights, title, and interest in Stand 1125 Makomo Extension, Epworth in Harare.

After the death of her husband she survived on handouts from well-wishers. She became a member of the Ambassadors for Christ Ministries; a church led by, amongst others, Tedius Kagande. Kagande doled out handouts to her, and, purporting to act under the auspices of the church, built for her a more habitable two roomed structure on the Stand in question. He requested her to sign a certain document on which he purportedly wrote out her grandchildren's names and the materials required for the construction of the more habitable structure. She did not know whether he built it from his or church funds. Thereafter, he introduced her to the defendant, who was a teacher by profession, and a member of the same church. The defendant was supposed to look after her. She allowed the defendant to build another two-roomed house for his use on the Stand after she was assured that he would be there for a short while. The defendant has been ensconced on her Stand for the past nine (9) years. He neither pays rentals nor municipal charges.

She was adamant that she did not sell the smaller portion for $16,000= or the bigger one for $23,000=. She disputed executing exhibit 1A and 1B averring that she was illiterate. She denied seeking the subdivision of the Stand in 2000. She averred that it was in 2008 that she went with the defendant to the Epworth Local Board to have the dispute resolved; and not to seek the subdivision of the Stand.

She was cross examined.

She considered Tedius Kagande as a leader of the church in Epworth and did not know Pastor Nyakudanga and Pastor Matyora. She disputed that she advised Kagande, in 1999, that she was selling a portion of her Stand. She denied receiving $16,000= in the presence of Tedius Kagande, the defendant's wife, and her daughter, Eneresi Simon. She disputed that the amount in question was used by Tedius Kagande in the construction of her two rooms. She denied requesting Eneresi Simon to sign exhibit 1A on her behalf before a Commissioner of Oaths. She also denied executing exhibit 1B. She disputed using her daughter to sign legal documents on her behalf.

She related how the defendant sought to evict her from her Stand at the Magistrates' Courts. She did not appear to be aware of exhibit 2, the warrant for the ejectment of the defendant which she obtained on 3 August 2001 in the Magistrates Court; exhibit 3, the affidavit signed on 16 May 2001, in her name, in the hand similar to that of her daughter in exhibit 1A and exhibit 4; her application for a peace order dated 13 December 2001 in which she graphically set out how the defendant was disturbing her peace. She denied attending a funeral in Malawi using the proceeds of the sale of a portion of the Stand. She was given money by her daughter who was her breadwinner. She denied informing Pastor Nyakudanga and Charles Shamuyarira of the sale of a portion of her Stand to the defendant.

Eneresi Simon stated that her mother never sold a portion of the Stand to the defendant. She identified exhibit 1A as the blank document on which she wrote out the plaintiff's name and national identity number. She stated that her mother did not sell a portion of the Stand for $16,000= or $23,000=. She denied signing exhibit 1A before a Commissioner of Oaths.

She stated that her mother's trip to Malawi was funded by her daughter-in-law in Malawi. In 2008, she accompanied her mother and the defendant to the Epworth Local Board offices where they saw Mr. Muzangaza. The plaintiff was against the subdivision of her Stand.

She was cross-examined.

She admitted to signing a blank exhibit 1A but denied signing exhibit 1B. She stated that the defendant sought to evict the plaintiff notwithstanding that exhibits 2 and 3 indicated her mother as the plaintiff. That the defendant sought to evict the plaintiff from the Stand was confirmed by exhibit 6, the summons issued out of the Magistrates' Court by him on 27 June 2002. She denied signing for her mother in exhibit 3 and 4. She disputed that $16,000= was paid in her presence. She averred that her mother, who is of Nyanja origin, could not converse in Shona.

Cagewell Muzangaza is a Building Inspector for the Epworth Local Board. In that capacity he deals, inter alia, with sub-divisions of residential Stands in Epworth. He told the court that the Stand is registered in the plaintiff's name. He stated that temporary structures, which are not based on an approved plan, are on the Stand. He explained that a subdivision of a Stand is initiated by the registered holder who writes to the local authority and fills in a special document to this effect identifying to whom the sub-division is to be registered. The Housing department vets the information and makes its recommendations and forwards these to his department. The witness checks the Stand on his master plan prepared by town planners and approved by the Department of Physical Planning in the Ministry of Local Government to satisfy himself whether it is feasible to subdivide the Stand. He forwards his recommendations to the Urban Development Corporation (UDCORP). He stated that it is only the local authority which approaches UDCORP and not the registered holder, or, for that matter, anyone else.

He stated that in the file of the Stand in his custody is a request purportedly made by the plaintiff in 2000 for a subdivision in favour of the defendant. The application was rejected for two reasons. Firstly, she was not the registered holder; her husband was, and, secondly, there was no subdivision permit for the Stand.

He further revealed that on 20 December 2007 the Urban Development Corporation (UDCORP) wrote an unsolicited letter, exhibit 5, to the local authority. The local authority ignored it because it had not originated from it. He categorically stated that a sale of a portion of a Stand cannot be approved by the local authority prior to sub-division.

He was cross examined.

He disputed the averment that he was interested in the portion that was allegedly disposed to the defendant. He denied that the Urban Development Corporation (UDCORP) wrote its letter in response to that of the local Board. At one time in 2008 the parties came to see him. The defendant wanted sub division but the plaintiff was against it as the matter was pending in Court and alleged that the defendant was forcing her to sub-divide the Stand.

As will more fully appear when I determine the issues referred to trial, I believed the plaintiff and her witnesses. They gave consistent and credible testimony.

THE DEFENDANT'S CASE

The defendant stated that he purchased a portion of the Stand from the plaintiff through the medium of Tedius Kagande. He paid $16,000= to the plaintiff in the presence of his wife, Tedius Kagande and Eneresi Simon in September 1999. They drove into town to Mr. Gode, a Commissioner of Oaths, before whom Eneresi Simon signed for her illiterate mother on exhibit 1A. The plaintiff persuaded him to buy the bigger portion of the Stand by an additional payment of $7,000=. She accepted periodic payments.

The latter agreement was recorded as exhibit 1B and executed for the plaintiff by her daughter, Eneresi Simon.

He commenced construction and started to reside on the Stand on 1 February 2000. Even though the Stand was in her late husband's name, the plaintiff submitted an application for sub-division to the local Board. The application failed because the plaintiff had not constructed the main house on the Stand. The plaintiff was not in a position to do so; so he suggested that he build the main house and have it registered in his name. She took the view that he wanted to evict her and all hell broke loose.

The plaintiff issued summons for his eviction and obtained a default judgment on 19 May 2001, in case number 7926/2001, as shown in exhibit 2. She deposed in an affidavit, exhibit 3, on 16 May 2001, that the defendant was her grown up son who was giving her problems. It was purportedly signed by her; her full names were handwritten above her typed name.

He confirmed the visit to Cagewell Muzangaza in 2008 where the plaintiff refused to have the Stand sub-divided into his name. He produced exhibit 5, a letter written to the local Board by the Urban Development Corporation (UDCORP) on 20 December 2007 for Stand 1171. The typewritten Stand number 1171 was cancelled by pen and the number 1125 inserted. The cancellation was not countersigned. It does not refer to any previous correspondence from the local authority. Its authenticity is questionable. In my view, it does not assist the defendant in his case.

He was cross-examined.

He stated that he borrowed $16,000= from his employers. Tedius Kagande told him of the purchase price and it was confirmed by the plaintiff. Tedius Kagande's young brother authored exhibit 1A. He further averred that the sum of $16,000= was paid in the presence of the young brother after he had drafted exhibit 1A. On 28 October a new agreement on the additional payment for the bigger portion was executed. The typed agreement, exhibit 1B, was typed by Tedius Kagande at his town offices. By then, the plaintiff had commenced building her two roomed structure. He commenced building on the portion sold to him after the execution of exhibit 1B. He paid the installments of $7,000= in two batches of $3,000= and 4,000= in February and April 2000, respectively, to the plaintiff in the presence of Eneresi Simon.

He disputed issuing summons to evict her contrary to exhibit 6, the summons in his name dated 27 June 2002, for the eviction of the plaintiff alleging he had purchased the Stand. He maintained buying the bigger portion of the Stand and denied conniving with Tedius Kagande to defraud the plaintiff of a portion of her Stand.

He called the evidence of Elizabeth Nyakudanga, a pastor of the church attended by the parties in 1999. The pith of her testimony was that the plaintiff informed her that she had sold a portion of the Stand so that she could use the proceeds to build a better house. Her church was not involved in humanitarian work at the time of the sale.

Under cross examination, she alleged that the defendant paid the full amount of $23,000= in 1999. She revealed that the defendant refreshed her memory of the events of 1999 in January 2009.

The last witness to testify for the defendant was Tedius Kagande. He stated that he was asked by the plaintiff to find a buyer and he connected her to the defendant. He took him to the plaintiff and handed $16,000= to Eneresi Simon who was with the plaintiff. On his suggestion exhibit 1A was executed. It was drawn up by his young brother and signed before a Commissioner of Oaths.

He built the cottage of cement blocks for her after listing the required materials. The materials cost half the amount paid by the defendant. He did not charge her for his labour. He did not supply her with free food handouts. She later approached him for the sale of the bigger portion and he referred her to the defendant. He was not involved in the latter agreement.

Under cross examination, he revealed that the defendant raised the purchase price without viewing the Stand. The price was fixed by the plaintiff and her daughter. His brother was not at the plaintiffs where the money was paid but was in town. The first agreement was signed at his town offices and taken to a commissioner for affirmation only. He denied cheating the plaintiff.

For the reasons that will become apparent when I determine the issues referred to trial, I found the defendant and his witnesses incredible witnesses.

THE ISSUES

At the pre-trial conference that was held on 1 July 2009, the matter was referred to trial on the issues set out in the defendant's minute of 20 May 2009. The issues for determination are as follows:

1. Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth.

2. Whether the plaintiff should cede or assign her rights, interests and title to the subdivision to the defendant.

3. Whether the plaintiff is entitled to evict the defendant from the property.

RESOLUTION OF THE ISSUES

1. Whether the plaintiff sold to the defendant a subdivision of Stand 1125 Makomo, Epworth

The onus to show that an agreement of sale was executed lies on he who avers that such an agreement was concluded. In the present matter the incidence of proof falls on the defendant.

He relied on exhibit 1A and 1B.

Exhibit 1A is a pro forma of an affidavit that is sold at Kingstons Booksellers and Stationers. It was common cause that the name of the deponent and her national identity number and address were handwritten by Eneresi Simon. Eneresi stated that she was the one who wrote out the plaintiff's name, national identity card, address and signature in exhibit 1A.

The plaintiff purportedly swore that she had sold a subdivision of Stand 1125 Makomo to the defendant who had paid the full amount of $16,000=. She further indicated that she was granting him change of ownership. The affidavit was purportedly executed on 23 September 1999 before R. Gode, a Commissioner of Oaths.

The defendant did not disclose where exhibit 1A was drawn. He stated that it was signed before the Commissioner of Oaths by Eneresi Simon in the presence of the plaintiff because the plaintiff could not read or write.

The defendant's witness, Tedius Kagande, disclosed that the affidavit was purchased at Kingstons when the parties were on their way to his town offices. Kagande further indicated that the contents of the affidavit were written by his young brother at his town offices and signed by Eneresi Simon before the parties proceeded to a commissioner of oaths. The commissioner of oaths simply confirmed with the plaintiff the contents of the affidavit.

The version of the plaintiff and her daughter differed from that adduced by the defendant. The plaintiff stated that Tedius Kagande brought the affidavit, in the absence of her daughter, and requested her to fill in her personal details and signature ostensibly as a record of the building materials he would purchase for her. The daughter confirmed that when she visited her mother, as she was wont to do at the end of each month, she wrote out her mother's details and signed the affidavit for her. Both mother and daughter were adamant that Eneresi Simon signed a blank document and denied the present contents in the affidavit.

The versions of the defendant and Tedius Kagande were contradictory on whether Eneresi Simon signed the document before a commissioner of oaths or prior to the visit.

A commissioner of oaths worthy his salt would have requested the plaintiff to append her mark and thumb print on the document. He would have known that it was improper for Eneresi Simon to sign as the plaintiff without indicating that she was signing as her duly authorised agent.

The defendant did not disclose why and how Tedius Kagande's young brother became involved in the matter.

It does not appear that the plaintiff was ever given a copy of the affidavit in question.

Neither Tedius Kagande's young brother nor the Commissioner of Oaths was called to confirm the versions of the defendant and Tedius Kagande.

The two defence witnesses also contradicted each other on when the money was paid. Tedius Kagande averred that it was paid at the plaintiff's home. The defendant prevaricated. In his evidence in chief he averred that it was paid at the plaintiff's home while under cross examination he alleged that it was paid after the affidavit had been compiled.

While the defendant stated that Tedius Kagande's young brother was present at the plaintiff's home when the money was paid, Tedius Kagande stated that his young brother was never at the plaintiff's home. Notwithstanding that, Kagande was of the view that the purchase price of $16,000 was too high in comparison with similar Stands in Glen View at the time. The defendant borrowed the money and paid it before he had visited the site. He did not negotiate for a lower price.

The contradictions in the defendant and Tedius Kagande's testimonies and the other shortcomings that I have highlighted show that exhibit1A is a questionable document. I am not satisfied that the defendant has discharged the onus on him to show, on a balance of probabilities, that it was executed by the plaintiff.

Exhibit 1B was purportedly executed on 28 October 1999.

The plaintiff purportedly sold her rights in the portion of the Stand where the main house was to be built for an additional payment of $7,000=. The amounts were to be paid on 30 February and 30 April 2000 in the sum of $4,000= and $3,000= respectively.

Again, the document indicates that the plaintiff signed the document. The defendant averred that it was signed by Eneresi Simon for her mother. The signature in exhibit 1B appears to be similar to the one in exhibit 1A and exhibit 3. The latter was an affidavit filed by the plaintiff for default judgment against the defendant but is different from the one in exhibit 4, an ex parte application for a peace order that she filed on 13 December 2001.

The defendant alleged that exhibit 1B was typed by Tedius Kagande. In his testimony, Tedius Kagande expressed ignorance about it. Unlike the defendant, Kagande alleged that he facilitated the purchase of the larger portion of Stand 1125. The defendant alleged that he paid the $7,000= on the due dates. He did not produce any proof of payment. The agreement records 30 February as a date for the payment of the first installment. Such a date does not exist. The application failed because the plaintiff was not then the registered holder of rights in the property, as averred by Cagewell Muzangaza and not because of the absence of a main house on the Stand, as alleged by the defendant.

The contradictions outlined above call into question the authenticity of exhibit 1B, especially in the face of the denials by the plaintiff and her daughter that they were involved in its creation and execution.

Counsel for the defendant submitted that the agreements were authentic. He predicated his submission on the basis that the plaintiff permitted the defendant to build a cottage on the Stand and allowed him to reside thereat without paying rentals.

The plaintiff stated that she fell under the influence of Tedius Kagande, whom she trusted as an elder in her church and as a philanthropist who helped her with food handouts and built a two-roomed cottage for her.

I found that her age and low intellect adequately explained her naivety, which Tedius Kagande and the defendant exploited to the latter's advantage.

In any event, notwithstanding his allegations that he had purchased a portion of the Stand, the defendant never volunteered to pay for his proportional measure of the supplementary charges due to the local Board.

I am unable to find the non-payment of rentals by the defendant indicative of the authenticity of the agreements.

Counsel for the defendant further submitted that the attempt by the plaintiff, in 2000, to register a portion of the Stand in the defendant's name was conclusive evidence that she had disposed her rights to him.

It was common cause that the plaintiff is illiterate.

Cagewell Muzangaza highlighted the elaborate paper work that is required of the registered holder in seeking a subdivision permit. The defendant did not produce the application in question. He did not adduce evidence on how the plaintiff applied for the subdivision in his favour. As she is illiterate it could very well be that someone else completed and signed the forms that are required. The plaintiff denied ever having done so. The defendant did not produce any credible evidence to show that she made the application in person. Cagewell Muzangaza's statement as to what he found in his file is insufficient to show that the plaintiff sold the Stand to the defendant.

There were unsatisfactory features in the plaintiff's version concerning her professed inability to understand Shona; her apparent ignorance that she once sued the defendant for eviction and the source of the funds she used to go to Malawi. These were, however, irrelevant to the resolution of the first issue.

Pastor Elizabeth Nyakudanga did not assist the defendant discharge the onus on him as it became clear when she was cross-examined that she was relying on what the defendant said to her in January 2009 rather than on her own recollection of events. She contradicted herself on the terms of the agreement of sale. I found her evidence unreliable.

Accordingly, I hold that the plaintiff did not sell her rights in a portion of Stand 1125 Makomo Extension to the defendant.

In any event, it was common cause that when the purported agreements of sale were executed, the rights in Stand 1125 vested in the deceased estate of the plaintiff's late husband. The only person who has control of property in a deceased estate is the executor duly appointed to that office by the Master of the High Court. The plaintiff was appointed an executrix dative on 22 August 2007. At the time she allegedly disposed of rights in the property she lacked the legal capacity to do so. She could not lawfully dispose of rights that she did not have. See Nyandoro & Anor v Nyandoro & Ors HH89-08…,.

I hold that the plaintiff did not sell a portion of Stand 1125 Makomo, Epworth to the defendant.

The resolution of the first issue in the plaintiff's favour would dispose of the matter both in the main and in reconvention. However, in the event that I am wrong on the first issue, I proceed to deal with the alternative submissions that were made by counsel.

2. Whether the plaintiff should cede or assign her rights, interests and title to the subdivision to the defendant

It was common cause that the onus lay on the defendant to show that he was entitled to take cession.

Counsel for the defendant contended that such cession was predicated on the validity of the agreement of sale. He submitted that the agreement of sale was valid.

Counsel for the plaintiff, on the other hand, submitted that even if the agreements were entered into, they were invalid ab initio for two reasons. The first reason being that no sale was concluded as the merx was not ascertainable. She correctly set out the three essential elements of a contract of sale. These are;

(i) Agreement (consensus ad idem);

(ii) A thing sold (merx); and

(iii) A price (pretium).

On the authority of Chanock v Barnard 1921 OPD 207…, she submitted that no contract of sale was executed in the absence of an agreement on the merx. She contented that the defendant had failed to describe and identify the portion of the Stand that was sold to him.

Counsel for the defendant, on the other hand, contended that the portion sold was capable of ascertainment.

We are dealing with land.

The portion of land sold can only be identified by area often expressed in square metres. The defendant was not able to use this medium to identify the portion of land sold to him. The obvious impediment being that Stand 1125 is an indivisible unit. It was not subdivided at the time or at present. Thus, had I found that the parties concluded exhibits 1A and 1B, I would have found those agreements invalid for failure to meet an essential requirement of a contract of sale. The defendant cannot rely on Exhibit 5, the letter from the Urban Development Corporation (UDCORP) whose authenticity is questionable. The letter actually confirms that Stand 1171, or if it correctly refers to Stand 1125, has not been subdivided.

The second reason advanced by counsel for the plaintiff was that the agreement of sale contravened section 39 of the Regional Town and Country Planning Act [Chapter 29:12]. She submitted, on the authority of X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S)…, that an agreement for the change of ownership of an unsubdivided portion of a Stand is prohibited by the section in question.

The contention by counsel for the defendant, that the agreement was for cession and not ownership, may legally be correct; but it runs contrary to the contents of exhibit1A wherein the plaintiff is alleged to have declared that she was granting change of ownership to the defendant in these words: “therefore, I now grant the change of ownership without delay.”

Counsel for the defendant, with reference to Chanda v Mutadzi & Anor SC74-94 and Mukarati v Mkumbu SC36-96, submitted that the Regional Town and Country Planning Act is excluded from the purview of cessions involving local Boards. That submission runs contrary to X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S).

In any event, the two cases he referred to involved the sale of rights in single units. They did not involve sales of unsubdivided portions.

I would uphold the submissions made by counsel for the plaintiff and deny the defendant cession of an unsubdivided portion of Stand 1125 of Makomo Extension, Epworth. A fortiori, the defendant's counter claim fails.

3. Whether the plaintiff is entitled to evict the defendant from the property

The corollary to my findings on the first two issues is that the plaintiff holds cession in Stand 1125. The defendant has no legal basis to be on that Stand. Accordingly, she is entitled to the order of eviction that she seeks.

DISPOSITION

It is ordered that:

1. The defendant and all those claiming occupation through him be and is hereby evicted from Stand No. 1125 Makomo Extension, Epworth, Harare.

2. The defendant's counterclaim be and is hereby dismissed.

3. The defendant shall pay the plaintiff's costs of suit for both the claim in convention and counter claim.

The applicant brings an application to compel the return of his biscuit-making equipment which is in the possession of the first and second respondents.

The applicant's case is based on the following facts.

He owns the biscuit making equipment. The applicant was in the business of biscuit-making with the third respondent. When production was shelved for a while, in February 2016, the third respondent offered to store it at an acquaintance's, namely, the second respondent. He understood that the storage was going to be free of charge.

The first respondent is the owner of the premises where the equipment is being kept.

He was unaware of the rental arrangement. When the applicant asked for his equipment, from the second respondent, he was advised that she was also renting the space the equipment was stored in from the first respondent and that he owed the first respondent rentals for the storage. She asked him to pay rentals for the storage of the equipment to the first respondent for the period the equipment was stored at the premises. The first respondent has refused to hand over the equipment. The applicant contends that he is not privy to the lease agreement entered into between the first and second respondents and no lien applies to him. The claim for arrear rentals should be made against the third respondent.

He brings a claim for vindication of the equipment.

The second respondent submitted as follows.

There is no evidence that the applicant is the owner of the property in dispute. In February 2016, the third respondent requested her to keep the equipment and he would come and collect it later. The whole complex where the equipment is stored belongs to the first respondent. The complex is divided into several bays which the first respondent leases out. She leases Bay No.2. The equipment is stored in that bay. She sub-leased part of Bay No.2, which she leased from the first respondent, to him at a rental. Storage fees were agreed to and the applicant was later made aware of the fees. The applicant gave his permission to the third respondent to store the property at her bay. She is owed arrear rentals and hence has a landlord's lien over the equipment. She has a right to possession by virtue of a verbal sublease agreement she entered into with the third respondent which agreement still subsists. She is owed arrears of $2,700=. The equipment continues to accrue holding over damages. The applicant may not remove her equipment from Bay No.2 until she pays arrear rentals owing to the first respondent. She is not using the equipment as it is ob