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Double Sales or Competing Claims and the Assessment of Bona Fides and Dominant Rights

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring ...
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HB15-09 : STANLEY SIBANDA vs MAXWELL SININI SIBANDA AND THREE OTHERS
Ruled By: NDOU J

The policy of the law will best be served in the ordinary run of cases by giving effect to the first contract and leaving the second purchaser to pursue his claim for damages for breach of contract. I do not suggest that this should be an invaluable rule, but I agree with the view ...
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HH176-12 : HENRY MUSHAMBI vs EXECUTOR, ESTATE MIRIAM MUNEMO (nee MADENGA) and EXECUTOR, ESTATE FAINA MUNEMO (nee MARUMURE) and ELIZABETH NZIRAMASANGA and DIRECTOR OF HOUSING, CITY OF HARARE
Ruled By: HUNGWE J

The plaintiff issued summons against the first, second, third and fourth defendants claiming the following relief: 1. An order that the fourth defendant takes all the necessary steps to pass possession of Stand Number 9314, Budiriro Township, Harare, within 48 hours of the order of court. 2. An order that if the fourth defendant fails, within 48 hours ...
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HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

On 17 April 2007 the plaintiff issued summons against the defendants claiming the following: “(a) An order that the plaintiff be declared the owner of Stand Number 14826 Unit 'O', Seke, Chitungwiza; (b) An order that the third defendant be ordered to cede rights, title and interests in House Number 14826 Unit 'O', Seke, Chitungwiza to the plaintiff; and (c) Costs ...
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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

It was further contended, on behalf of Gomo, that what was before the court was a situation which was akin to a double sale and that therefore the principles applicable to a double sale should be applied in determining this dispute. I do not see how the situation I am dealing with can be akin to ...
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HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

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 ...
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HB43-09 : THULANI NDLOVU vs SHEPERD MUKURUVA and GRACE MUGWAGWA and REGISTRAR OF DEEDS
Ruled By: NDOU J

This is a classic case of multiple sale of immovable property, being Stand Number 2689, Cowdray Park, Bulawayo. The second respondent sold this property to the first respondent on 11 April 2002 in terms of a written Agreement of Sale. When the second respondent exhibited some reluctance to honour the said Agreement, the first respondent approached this ...
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HB67-08 : PROMISE NCUBE vs SHENZIRA NCUBE and JEREMIAH TENHESE N.O.
Ruled By: KAMOCHA J

This is a double sale of House Number 2105 Nkulumane Township, Bulawayo. The applicant claims to have bought the house from one Jotham Magudu, who later passed away, and the second respondent was appointed executor dative of the estate of Jotham Magudu. The house was bought through an estate agent known as Likwa Ndlovu. He bought the property for ...
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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 denied suggestions made in cross-examination that he bought the property in the full knowledge that it had been bought by the first and second defendants. He stressed that he was only told that the people occupying the property were tenants. Tendai Musemburi told the court that he knew, for the first time, that the plaintiff had ...
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HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of ...
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HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

In or about January 2006, the applicant and the first respondent entered into an Agreement of Sale in respect of certain immovable property called Stand Number 584 Greystone Park Township of Greystone. In terms of the written agreement, the purchase price for the property was the sum of $400,000,000= and this was to be paid in ...
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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

The applicant and the first respondent entered into an agreement of sale in respect of a 4.2% undivided share, being share number E8 and 90.15% undivided share being share number J4 of a certain piece of land situate in the District of Salisbury called the Remaining Extent of Stand 759A ...
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HH169-10 : EDITH GARAKARA vs FARAI NGORIMA
Ruled By: KARWI J and BHUNU J

It is common cause that after the respondent had purchased and obtained title of the said property on 17 April 2007, the appellant subsequently purchased the same property from Monica Dzinamarira and obtained cession of the same property at the Municipality of Kadoma's offices on 13 July 2007. Clause 3 of the Cession Agreement between ...
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HH241-10 : MARY NYAMUTATA vs JOHN CHIKOMO and ARIMANDO BREAD and EPWORTH LOCAL BOARD
Ruled By: BHUNU J

The dispute in this case is essentially between the plaintiff and the first defendant who both claim to have purchased Stand Number 2110 Solani Epworth from the second defendant. The plaintiff claims to have bought the property on 12 March 2000 but did not take cession of the purchased property. The second defendant, however, later purchased ...
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HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA
Ruled By: CHITAKUNYE J

Another dimension was the contention by the plaintiff's counsel that this was a case of a double sale. In the event of a double sale then the first sale ought to be preferred. Counsel for the third defendant argued that the plaintiff can still not succeed as the first sale has not been proved - even ...
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HH283-10 : TAWANDA CHIPATO vs MARKO MUSA MASEKO and RICHARD MASEKO and BERN-WIN DEVELOPMENT COMPANY (PRIVATE) LIMITED
Ruled By: MAKONI J

The law regarding double sales is well settled in our jurisdiction. In Choruma Blasting Earth Mowing Services (Pvt) Ltd v Njainjai Ors 2000 (1) ZLR 85 (S) it was held that when dealing with the sale of the same property to two buyers, a factor that the court takes into account ...
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HB02-10 : MAHLULELI NIXON DUBE vs N & S PROPERTIES and NICHOLAS MASUKU and JONAH DUMAH and POLINA DUMAH and CITY OF BULAWAYO
Ruled By: KAMOCHA J

Despite the stipulation in the Agreement that the balance of $130,000,000= would only be paid to the Sellers on transfer, the Sellers, on two occasions, requested for part payment of the balance. On 23 January 2006 they asked for $20,000,000= and two days later, on 25 January 2006, they asked for $10,000,000=. They were advanced ...
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HB06-10 : BUSI MAPHOSA vs DYLAN KAWARA and MAREVERWA MASHAYAMOMBE (as Executor Dative in the Estate of Richard Mashayamombe) and MASTER OF THE HIGH COURT and OTHERS
Ruled By: KAMOCHA J

The next issue to be determined is that of the double sale since the same property was later sold to Getrude Siwela, the 4th respondent. The law relating to double sales was long settled and is repeated almost daily in this court. The property has not yet been transferred to any of the buyers. In a ...
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HB15-10 : TIMOTHY SIJIYE vs MFANUKHONA PHIRI and DAVID MPOFU and TAKATSO MPOFU
Ruled By: KAMOCHA J

The basis for claiming the order was that he had allegedly purchased the said property much earlier than Mfanukhona Phiri, in 1998, and had already taken occupation of the property. That, ipso facto, made him an interested party. He further alleged he had instituted proceedings in this court in case number HC1552/08 seeking to have ...
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HB123-10 : EDGAR HOWERA vs HERBERT MUDZINGWA and NAOMI MUDZINGWA and DEPUTY SHERIF, KWEKWE and DIRECTOR OF HOUSING, MBIZO, KWEKWE and THE REGISTRAR OF DEEDS, BULAWAYO
Ruled By: MATHONSI J

Regarding the issue of the double sale, Stephen Nyamutuma having sold to the applicant and the first and second respondents, the position is as clear as daylight.In Crundall Brothers (Pvt) Ltd v Lazarus NO and Another 1991 (2) ZLR 125 (S)…., the full bench of the Supreme Court stated the law as follows -“This ...
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HH37-11 : STANSILOUS K MTIZIRA vs EPWORTH LOCAL BOARD and MAPANZURE and ELPHAS UTETE and ZACHARIOUS GODI
Ruled By: CHATUKUTA J

This brings me to the second issue for determination which is whether or not the third respondent is an innocent purchaser. The third respondent pleaded that he is an innocent purchaser and is therefore entitled to remain on the property. The applicant submitted that the respondent was not an innocent purchaser. He alleged that the third ...
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HB89-11 : SEHLUKENE SIBANDA vs SIFISO THEBE and ALPHA CONSTRUCTION PROPERTY DEVELOPERS and REGISTRAR OF DEEDS and CITY OF BULAWAYO
Ruled By: MATHONSI J

The first respondent appeared in person and submitted Deed of Transfer No.4570/99 as proof of ownership. He stated that he was given the Deed by the second respondent after he had paid for the Stand and the construction in full, otherwise the second respondent would not have given him the Deed. His attention was ...
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HH124-11 : DR BOZENA DUDKA and ALLAN RUSSELL and FAIR COAT INVESTMENTS (PVT) LIMITED and JOHN MUKONO vs CHENI INVESTMENTS (PVT) LIMITED and IAN HAWTHORNE and PERVAZ KHAN and OTHERS
Ruled By: MAKONI J

The background to the matters is that the applicants bought residential units from the first respondent in a Cluster Housing Scheme being developed by the second respondent on land owned by the first respondent. They also entered into building contracts with the second respondent. The first applicant (Dr Dudka) bought Share Number 9. She paid ...
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HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

This case was a double sale situation. At this stage, I use the phrase “double sale” in a non-legal sense, simply to denote that the immovable property in question was sold twice by the same person to two different parties. Whether or not there was a double sale in the legal sense is one of the ...
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HH203-15 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and and SANDRA MUIR and REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

This is an application for a joinder. The draft order attached to the application reads as follows:- “1. The 6th Respondent be and is hereby joined as the 6th Respondent in Case No. HC1393/08. 2. The 6th Respondent shall, if he wishes to defend the 1st and 2nd Applicants' claim, file a Notice of Opposition within (10) ten days of service ...
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HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15. The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot ...
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HMT09-18 : MUBUSO CHINGUNO vs MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT and PROVINCIAL LANDS OFFICER MANICALAND and DISTRICT LANDS OFFICER CHIPINGE and COLONEL MAKUYANA
Ruled By: MWAYERA J

The applicant approached the court through the Urgent Chamber Book seeking for an interdict pendente lite.The order sought seeks to restrain the respondents, in particular the fourth respondent, from evicting and or disrupting the applicant's farming activities at Subdivision 11 of Chipinge West Annex pending the finalisation of proceedings under ...
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SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and ...
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Appealed
HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: MAVANGIRA J

In 1999, the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate.The immovable property, described as Stand 382 Good Hope Township of Subdivision ...
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SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

This is an appeal against the entire judgment of the High Court sitting at Harare, in which the court granted a declaratur in favour of the first respondent; asserting that he was the lawful holder of rights and interests in the property known as Stand 6401 Retreat, Waterfalls.The court also ...
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SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

The appellant brought an urgent chamber application in the High Court for a stay of the execution of a judgment obtained by the first respondent against the second and third respondents on 12 February 2018 in the sum of US$352,851=30 together with interest and costs of suit.By judgment delivered on ...
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HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

MTSHIYA J relies on SILBERBERG and SCHOEMAN, The Law of Property (Lexis Nexis-Butterworths) 5th ed for the requisites of transfer...., as follows:“The seller of a thing which does not belong to him or her must first acquire it for him or herself to then transfer it to the buyer…,.: in ...
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HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

This is an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicant's mineral claims described in the papers as Contrica 9 Registered Number 23331BM; Contrica 21 Registered Number 24482BM; Contrica 45 Registered Number 24866BM; and Contrica 46 Registered Number 24867BM.The order also ...
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HB59-15 : NOMUSA NCUBE (as Executrix Dative of Estate Late Alice Nkala) vs GOODWILL NKALA
Ruled By: MOYO J

This is an opposed application for summary judgement wherein the applicant seeks the following relief:“(1) That summary judgment be and is hereby granted in favour of applicant against respondent in the following terms:(a) Respondent and all those claiming occupation through him be and are hereby ordered to vacate House Number ...
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HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O.
Ruled By: MAFUSIRE J

The property situate, Stand 2468 Mkoba 7 Township in Gweru (“the property”) was at all relevant times owned by the fifth respondent, Gweru City Council.However, one Honest Pepolo was apparently buying it from Gweru City Council in terms of one of those standard term lease to buy agreements.Apparently, in June ...
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CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

This is an application for leave for direct access to the Constitutional Court brought in terms of section 167(5)(a) of the Constitution as read with Rule 21 of the Rules of the Constitutional Court 2016.The applicants are a group of persons residing on a piece of land over which the ...
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HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

The dispute between the parties centred on a property described as Stand 238 Phase 1 Checheche (“the property”). It is one of those council-owned township properties that local authorities sell on a rent-to-buy basis. It is under the Chipinge Rural District Council.In the court a quo, the respondent (“Chengetai”) sued ...
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HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

This was an opposed application. The original and main dispute was between the applicant and the third respondent. But, in this particular application, the applicant sought a remedy against the first and second respondents.I guess the third respondent was cited merely as a nominal respondent being so much of an ...
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HH535-15 : BLESSMORE CHANAKIRA vs SHEPHERD MALCOM N.O. and REGISTRAR OF DEEDS and PHIL RUSCH
Ruled By: NDEWERE J

The background facts are that the plaintiff expressed interest in Stand 5233 Salisbury Township Lands measuring 3,309 square metres which is the property in dispute.The property belongs to the estate of the late Robert Eric Rae.An agreement of sale was concluded, on 22 October 2009, between the plaintiff and the ...
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HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.The purported urgent chamber application was not only bad in many respects, it was incurably bad.What I was particularly concerned ...
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