John Masraha Mugabe v Bevis Coventry [2025] ZWMSVHC 9 (31 March 2025)

2 HCMSC 659-23 HMA 11-25 JOHN MASIRAHA MUGABE versus BEVIS COVENTRY And ZVISHAVANE TOWN COUNCIL HIGH COURT OF ZIMBABWE CHAREWA J MASVINGO, 18 February -31 March 2025 CIVIL CONTINUOUS ROLL Declaration of invalidity of a sale agreement and declaration of ownership by applicant. Ms T Chidyamakono, for the Plaintiff 1st Defendant, in default Ms P Takaendesa, for 2nd Defendant CHAREWA J: This is a matter which should never have seen the light of day in court but for the plaintiff’s obduracy in persisting with the claim and the dearth of proper legal advice. Claim Plaintiff sued the defendants seeking a declaratur that the sale agreement between 1st and 2nd defendant was invalid as there existed a prior sale to himself. Accordingly he sought a further declaratur that he be declared the rightful owner of the premises in question. And further that he should recover his costs on a legal practitioner and client scale. Background From the documents filed of record, it is common cause that the plaintiff offered to buy Stand 1232 Light Industry, Mandava, Zvishavane. He duly completed the offer and acceptance form which emphasised that he was required to pay USD15 000 for servicing costs. The form did not contain any purchase price or other terms of sale. This was because the land he wanted to buy being state land, the form he filled in stating that the offer was subject to confirmation and approval by the Ministry of Local Government which would then issue a lease to buy agreement to him containing all the terms and conditions of sale. The plaintiff never paid any purchase price because he was never advised of same. He was consequently never offered any lease agreement and never occupied the property. He claims to have paid the service charge (which he thought was the purchase) but only in the amount of $11 000, but has no receipt or any other proof of payment for such $11 000. Plaintiff’s case His testimony in court, particularly under cross examination confirmed the position that he did make an offer as stated above and with the consequences already traversed. Clearly therefore, a declaration of ownership was out of the question and such claim ought never to have been made as the basic requirements for ownership or even any right and interest to ownership were not met: he could not produce and agreement of sale, or any lease agreement consequent to a sale agreement, neither could he produce any proof of payment for the purchase price. Analysis As a consequence of the above discourse, the declaration of invalidity of the subsequent sale to 1st respondent had no legal basis, as it was predicated on plaintiff’s purported prior rights which could not be sustained. Accordingly, at the end of the plaintiff’s case the 2nd defendant sought to make an oral application for absolution from the instance. Shockingly, plaintiff’s legal practitioner insisted on the submissions thereon being made in writing. I accordingly gave timelines for written submissions and reserved judgment on that account. Fortunately, the plaintiff appears to have regained his faculties upon reading 2nd respondent’s submissions on absolution. He then filed a consent to the granting of absolution from the instance. Costs Surprisingly, given the narrative above, plaintiff believes that he should not be ordered to pay punitive costs. In my view, there is no case more deserving of punitive costs than this. The whole saga reeks of frivolous, vexatious and ill-considered litigation which wasted the court’s time and caused 2nd defendant to incur unwarranted costs. This is made starker when regard is had to the fact that for a sale allegedly entered into in 1998, plaintiff only sought to assert his purported rights only in 2023. Disposition In the premises the court makes the following order: IT IS ORDERED THAT: Absolution from the instance be and is hereby granted with costs on the Legal Practitioner and Client scale. Mutendi Mudisi Shumba, plaintiff’s legal practitioners Danziger & Partners, 2nd defendant’s legal practitioners 2 HCMSC 659-23 HMA 11-25 2 HCMSC 659-23 HMA 11-25 JOHN MASIRAHA MUGABE versus BEVIS COVENTRY And ZVISHAVANE TOWN COUNCIL HIGH COURT OF ZIMBABWE CHAREWA J MASVINGO, 18 February -31 March 2025 CIVIL CONTINUOUS ROLL Declaration of invalidity of a sale agreement and declaration of ownership by applicant. Ms T Chidyamakono, for the Plaintiff 1st Defendant, in default Ms P Takaendesa, for 2nd Defendant CHAREWA J: This is a matter which should never have seen the light of day in court but for the plaintiff’s obduracy in persisting with the claim and the dearth of proper legal advice. Claim Plaintiff sued the defendants seeking a declaratur that the sale agreement between 1st and 2nd defendant was invalid as there existed a prior sale to himself. Accordingly he sought a further declaratur that he be declared the rightful owner of the premises in question. And further that he should recover his costs on a legal practitioner and client scale. Background From the documents filed of record, it is common cause that the plaintiff offered to buy Stand 1232 Light Industry, Mandava, Zvishavane. He duly completed the offer and acceptance form which emphasised that he was required to pay USD15 000 for servicing costs. The form did not contain any purchase price or other terms of sale. This was because the land he wanted to buy being state land, the form he filled in stating that the offer was subject to confirmation and approval by the Ministry of Local Government which would then issue a lease to buy agreement to him containing all the terms and conditions of sale. The plaintiff never paid any purchase price because he was never advised of same. He was consequently never offered any lease agreement and never occupied the property. He claims to have paid the service charge (which he thought was the purchase) but only in the amount of $11 000, but has no receipt or any other proof of payment for such $11 000. Plaintiff’s case His testimony in court, particularly under cross examination confirmed the position that he did make an offer as stated above and with the consequences already traversed. Clearly therefore, a declaration of ownership was out of the question and such claim ought never to have been made as the basic requirements for ownership or even any right and interest to ownership were not met: he could not produce and agreement of sale, or any lease agreement consequent to a sale agreement, neither could he produce any proof of payment for the purchase price. Analysis As a consequence of the above discourse, the declaration of invalidity of the subsequent sale to 1st respondent had no legal basis, as it was predicated on plaintiff’s purported prior rights which could not be sustained. Accordingly, at the end of the plaintiff’s case the 2nd defendant sought to make an oral application for absolution from the instance. Shockingly, plaintiff’s legal practitioner insisted on the submissions thereon being made in writing. I accordingly gave timelines for written submissions and reserved judgment on that account. Fortunately, the plaintiff appears to have regained his faculties upon reading 2nd respondent’s submissions on absolution. He then filed a consent to the granting of absolution from the instance. Costs Surprisingly, given the narrative above, plaintiff believes that he should not be ordered to pay punitive costs. In my view, there is no case more deserving of punitive costs than this. The whole saga reeks of frivolous, vexatious and ill-considered litigation which wasted the court’s time and caused 2nd defendant to incur unwarranted costs. This is made starker when regard is had to the fact that for a sale allegedly entered into in 1998, plaintiff only sought to assert his purported rights only in 2023. Disposition In the premises the court makes the following order: IT IS ORDERED THAT: Absolution from the instance be and is hereby granted with costs on the Legal Practitioner and Client scale. Mutendi Mudisi Shumba, plaintiff’s legal practitioners Danziger & Partners, 2nd defendant’s legal practitioners