ANGEL AND STAR CARE SERVICES LIMITED v BRICKWORX INTERNATIONAL (PVT) LTD and OTHERS (53 of 2025) [2025] ZWMTHC 53 (25 September 2025)

9 HCMTJ53-25 HCMTC35/24 ANGEL AND STAR CARE SERVICES LIMITED versus BRICKWORX INTERNATIONAL (PVT) LTD and KUDZASHE MWANASENI and KUDAKWASHE CARLTON LIMTED HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 12th & 25th September 2025 CIVIL TRIAL C. Ndlovu, for the plaintiff T. L. Mapuranga, for the 2nd defendant SIZIBA J: Some individuals and corporate bodies usually resort to verbal contracts to avoid the cost and delay that is perceived to be associated with written agreements. Whatever appears to be cheap and quick to them seems to be the most appealing way to conclude their business deals. However, in as much as there’s nothing wrong at law with such verbal agreements, they usually prove to be the most expensive and much time-consuming transactions when the unforeseen disputes arise in the ordinary course of business. This has always been the case, and nothing is new under the sun. What further compounds this difficulty is that these agreements by such seemingly wise laymen at a stage where they do not yet see the need of engaging lawyers for legal advice is that their agreements are entered into without reference to any law, only for the lawyers to labor belatedly thereafter in trying to categorize whatever was being done by these parties under some branch of law. It may even turnout that what these self-actors would have done may not be classifiable under any principle of law. When these parties would have fallen into their abyss of disputes and frustration and when the dead end is reached, it is only then that they tend to realize that the law is useful and that avoiding lawyers is expensive after all. This is exactly what has happened in this case. The same predicament was also noted by Tsanga J in Manyara v Muzanenhamo HH 412/15 at p 6 to 7 of the cyclostyled judgement in the following sentiments: “At the heart of misunderstandings such as these appears to be the very loose and often fluid misunderstanding, prevalent in our society, among non-legal savvy citizens, of what constitutes a business arrangement such as a partnership. Also a situation where primacy is given to friendship first and business second is one that all too often abounds amongst citizens to their detriment. It further compounds the difficulties that arise when preference for orality in associative business arrangements, rather than the written word, is mistaken for keeping the arrangement plain and simple” On 31 January 2024, the plaintiff issued summons against the defendants praying for the following relief: “a) The verbal business and partnership or agreement between the Plaintiff and 1st Defendant be and is hereby cancelled or dissolved. b) The brick making machine QT4-15 together with accessories be and is hereby declared to be lawfully owned by the Plaintiff. c) The Defendants to pay the costs of this action.” THE FACTS OF THE MATTER The facts of this matter come out clearly from the pleadings filed of record as well as from the evidence presented before this court by the parties. Most of the material facts are common cause. It is common cause that the plaintiff is a company incorporated in terms of the laws of England and Wales. It is therefore based in the United Kingdom. The Directors of the plaintiff are Bamus Limted (hereinafter referred to as Mr Limted) and Kudakwashe Carlton Limted who is cited herein as the third defendant (hereinafter referred to as third defendant). The first Defendant is a company that was incorporated in Zimbabwe on 30 March 2021 and its two Directors and shareholders with equal shares are the second defendant and the third defendant. Mr Limted is a nurse based in the United Kingdom and the third defendant is his son. The subject matter of this case is a brick molding machine and its accessories (hereinafter called the machine). The parties agreed at the Pre-Trial Conference that the only issue for determination is whether the machine belongs to the plaintiff or the first defendant. The plaintiff’s position is that the machine belongs to it while the second defendant’s case is that the machine belongs to the first defendant, the company wherein he is a shareholder with the third defendant. When the whole issue about this machine began, there were no disagreements at all. Whilst Mr Limted was going about his business abroad, he felt that he needed to empower his son the third defendant by helping him out to start a business or to invest in Zimbabwe so that he may benefit from such business when he returns to this country. This was a good idea and every father would have thought as much about his son. Whilst Mr Limted pondered on this idea, his father in-law introduced him to the second defendant whom he highly recommended as an upcoming and enterprising young man who is business oriented and industrious enough to work with. When Mr Limted spoke to the second defendant, he was persuaded that he indeed was the right man who could mentor his son in any line of business that he could help them to venture into. Mr Limted and the second defendant spoke over the issue and considered various business options which included manufacturing of IBR iron sheets but they finally settled on the molding of bricks. Mr Limted introduced the third defendant to the second defendant and the two seemed to click very well and the third defendant was thrilled about the idea. It is also common cause that the second defendant looked for the premises at number 51 Chikago Drive, Industrial Site, Marondera in Zimbabwe which were to be rented for this business enterprise. Mr Limted testified that he paid the purchase price for the machine at Dongyue Machine, a business in China, using funds which were transferred from the plaintiff’s Barclays Bank account held in the United Kingdom. He also paid for the shipping of the machine from China to Beira in Mozambique. His testimony that he also sent money for the payment of duty as well as the US$500 which went towards the registration of the first defendant company was not challenged by the second defendant. The plaintiff’s bundle reflects various sums of money that were sent by Mr Limted to the second defendant through world remit. There is documentary evidence in the plaintiff’s bundle which supported these claims by Mr Limted. When the machine was at the premises in Marondera, there was a fallout between the parties. This fallout was fueled by mistrust when Mr Limted saw that the lease agreement had been done in the names of the second defendant rather than in the names of the first defendant. This made him feel very insecure about his investment in the business. Mr Limted and third defendant started pulling the other direction with the second defendant pulling the opposite direction. The machine was taken away from the premises through an act of spoliation by one Simbarashe Muza acting in concert with Mr Limted. The second defendant obtained a spoliation order from Marondera Magistrates Court. An appeal against that order did not succeed. The criminal charges of alleged perjury in second defendant’s sworn testimony that the machine belonged to the first defendant did not succeed in the criminal court. Because of the tension between the two Directors of the first defendant, the first defendant has not managed to defend this action because no resolution to that effect can be passed. The third defendant has filed a consent to judgment in this case, siding with his father who is a co-director of the plaintiff. The second defendant’s case is that the machine was bought by the first defendant and it also belongs to the first defendant. His version is that the parties had agreed that for the first defendant to kick start its business, the second defendant as a Director would look for premises to be rented and renovate them and also ensure the running of the daily operations of the business in Zimbabwe while the third defendant was to purchase the machine and cover the shipping costs. The second defendant claims that he was to bear the local expenses. These allegations were denied by Mr Limted and the third defendant. They both viewed the second defendant as an opportunist who now wants to wrestle the machine from their hands by legal niceties. On the other hand, the second defendant laments that Mr Limted and the third defendant are laboring to divest him of his shareholding and entitlements in the first defendant company. The second defendant does not claim to have purchased the machine himself. His version is that it was the third defendant’s duty to do such. He relies on the shipping documents and in particular the bill of lading as proof that the machine was delivered to the first defendant and hence the ownership passed to it. His argument is that the proof of purchase by the plaintiff should not be taken as proof of ownership at law. He argues further that the plaintiff’s failure to prove an agreement with the first defendant disentitles it from the relief sought since there was a departure from the pleaded cause of action which was a contract. ANALYSIS OF THE DISPUTED FACTS It is common cause that the fallout between the parties occurred before the first defendant commenced business. In other words, no bricks were ever molded. The parties were clear that they can no longer work together. This is what necessitated this action by the plaintiff in a bid to recover the machine that it purchased. If the parties had just did what they did as individuals, this case would have been much simpler. The puzzle that has occurred is that the plaintiff who is now before this court is not Mr Limted but a company where he is a co-Director with the third defendant. As such, the plaintiff’s averment that it entered into a verbal agreement with the first defendant for the lease or hire of the machine by the latter cannot be accurate because the plaintiff was not clearly presented to the first and second defendant as a party to the verbal arrangements that were being made. This is why Advocate Mapuranga successfully challenged both the third defendant and Mr Limted that there was no agreement between the plaintiff and the first defendant and none could be cancelled by this court. He was correct. The agreement was between Mr Limted and the second defendant whereby the second defendant was to do business with his son the third defendant by running the first defendant company. The third defendant became part of this agreement when he agreed to work with the second defendant in the first defendant company. The second defendant’s assertion that the third defendant’s role was to purchase the machine on behalf of the first defendant and ship it to Zimbabwe as the property of the first defendant is unsupported by the evidence before this court. There is no discussion where this was ever documented. Such alleged version has the effect of removing the third defendant’s father as the main actor and main negotiator who initiated the negotiations with the second defendant. The papers before this court show that Mr Limted took it upon himself to finance the brick molding project and that the money he used for the purchasing of the machine and its accessories came from or was paid from the plaintiff’s Barclays account. He then had a fallout with the second defendant. Nothing shows that the machine was purchased by the first defendant or on its behalf. Neither the first defendant nor the second defendant contributed to the purchasing of the machine. There is no way in which the first defendant could therefore lawfully acquire ownership rights over the machine as at the time when the parties had a fallout. It will be unjust to divest the plaintiff of its rights over the machine that it purchased when the purpose for which the machine was to be used could no longer materialize. The fallout occurred before any discussions could be done regarding the terms under which the first defendant would have acquired any ownership rights over the machine. The parties had been too casual in their discussions without anticipating any future legal implications of their actions and that is why all the witnesses for the plaintiff as well as the second defendant performed very badly under cross examination by both counsel. Nonetheless the truth of the matter came out and it is simple from the material facts which are not disputed. LEGAL ARGUMENTS AND THEIR RESOLUTION Advocate Mapuranga has argued that the failure by the plaintiff’s witnesses to prove that the plaintiff had an agreement with the first defendant was a departure from the plaintiff’s pleadings warranting a dismissal of the plaintiff’s action which was based on that alleged agreement between the plaintiff and the first defendant. With great respect to counsel, this submission fails to discern that the plaintiff’s pleadings went further than simply alleging such an agreement. The plaintiff pleaded further at para 7 of its declaration that it is the legal owner of the machine which is the subject matter of this suit. Moreover, at para 8 of its declaration, it pleaded that it purchased the machine. Later on at para 16 of the declaration, the plaintiff pleaded that there is now a fallout by the Directors of the first defendant which renders the business deal impossible to consummate. In as much as the court cannot grant the plaintiff’s prayer in terms of para (a), nothing prevents this court from considering whether or not it is proper to grant the declaratory order sought in terms of para (b) of the plaintiff’s prayer in the summons which basically resolves the issue of ownership of the machine, the sole issue for determination by this court as agreed to by the parties in their joint pre – trial minute. In Dongo v Naik & Others SC 52/20 at p 6 of the cyclostyled judgment, the court set out the requirements of a declaratur. It held that for one to be entitled to a declaratur, one must have a direct and substantial interest in the subject matter of the suit that could be prejudicially affected. The right must attach to the applicant and no one else. This is a trite position which has been well traversed in this jurisdiction. Furthermore, in Debshan (Pvt) Ltd v The Provincial Mining Director and Others HB 11/17 at p 4 of the cyclostyled judgment, the requirements of a declaratur were set out as follows: “The remedy which the applicant seeks is one provided for in s14 of the High Court Act [Chapter 7:06]. The section provides that this court may, at the instance of any interested party, inquire into and determine any existing, future or contingent right or obligation. It has been stated, in interpreting that provision, that it is a condition precedent to the grant of a declaratory order that the applicant must have a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. See Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) 343G; 344 A –E; As the court will not decide abstract, academic or hypothetical questions unrelated to such an interest, the interest must relate to an existing, future or contingent right. See Anglo-Transvaal Collieries Ltd v SA Mutual Life Assurance Soc 1977 (3) SA 631 (T) 635 G-H; Munn Publishing (Pvt) Ltd v ZBC, supra. The other requirement for a declaratory order is that the court must decide whether or not the case in question is one in which it should properly exercise its discretion as provided for in s14. The court’s discretion will be exercised where, despite the fact that no consequential relief is sought, justice or convenience demands that a declaration be made as to the existence of or the nature of a legal right claimed by the applicant or the existence of a legal obligation due by the respondent. See Adbro Investment Co Ltd v Minister of the Interior and Others 1961 (3) SA 283 (T) 285 B – C; Johnsen v AFC 1995 (1) ZLR 65 (H)” The plaintiff in this case has proved that it purchased the machine using its own funds from its Barclays Bank account held in the United Kingdom. The machine was shipped to this country and delivered to the second defendant in the name of the first defendant in anticipation that the first defendant would commence its operations. The shareholders of the first defendant having reached a stalemate, the plaintiff wishes this court to declare that it is the owner of the machine that it purchased. The plaintiff has demonstrated that it has a direct and substantial interest in the subject matter of this dispute and that its interests and rights are likely to be prejudiced if such declaration of rights is not made. The plaintiff is correct. Ownership of property is a fundamental right that is now enshrined under s 71 of the Constitution of Zimbabwe and in particular subsections (2) and (3) as follows: “(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others. (3) Subject to this section and to section 72, no person may be compulsorily deprived of their property except where the following conditions are satisfied—------" The plaintiff derives ownership rights of the machine by having purchased it. It has not been proved that the plaintiff was divested of such right of ownership which is absolute at law. There is no document which was placed before me to show that the first defendant ever passed any resolution or signed any agreement divesting the plaintiff of its ownership rights in the machine. The only proper course for this court to take is to declare that the plaintiff owns the machine as per its prayer in its summons and declaration. Again, there was an argument by Advocate Mapuranga that either of the shareholders should have proceeded by way of a derivative action to advance the interests of the first defendant. I have already dismissed the argument that the first defendant ever acquired any ownership rights over the machine and hence such derivative action would have still been a failure. Neither Mr Limted nor the plaintiff is a shareholder in the first defendant and hence none of them would have had locus standi to institute a derivative action on its behalf. See Minister of Mines and Mining Development and Others v Grandwell Holdings (Private) Limited and Others SC 34/18. Lastly, the argument that the plaintiff’s witnesses are seeking to divest the second defendant of his shareholding in the first defendant is misplaced. The second defendant’s shareholding in the first defendant will still exist even if the plaintiff is declared to be the owner of the machine because the shareholding of the second defendant is not in the machine itself but in the rights that are documented in first defendant’s Articles of Association. CONCLUSION In the final analysis, I have therefore no hesitation that the plaintiff has proven before this court on a balance of probabilities that it is the owner of the machine. The argument that a purchaser is not always the owner is true in another context but not in this context where the plaintiff purchased the machine using its money and for a purpose or deal that did not materialize. It must follow that the plaintiff should retain its ownership of the machine. This finding is in accord with common sense, equity and the law. The only prayer that should fail is for the cancellation of the agreement with the first defendant which agreement I have found to be non - existent. The costs shall follow the successful party. Only the second defendant who has defended this action will pay the costs of suit. I therefore order as follows: The brick making machine QT4-15 together with accessories be and is hereby declared to be lawfully owned by the plaintiff. The second defendant shall bear the costs of suit. Gonese & Ndlovu, plaintiff’s legal practitioners Mundieta & Wagoneka – Madzivanyika Law Chambers, 2nd defendant’s legal practitioners 9 HCMTJ53-25 HCMTC35/24 9 HCMTJ53-25 HCMTC35/24 ANGEL AND STAR CARE SERVICES LIMITED versus BRICKWORX INTERNATIONAL (PVT) LTD and KUDZASHE MWANASENI and KUDAKWASHE CARLTON LIMTED HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 12th & 25th September 2025 CIVIL TRIAL C. Ndlovu, for the plaintiff T. L. Mapuranga, for the 2nd defendant SIZIBA J: Some individuals and corporate bodies usually resort to verbal contracts to avoid the cost and delay that is perceived to be associated with written agreements. Whatever appears to be cheap and quick to them seems to be the most appealing way to conclude their business deals. However, in as much as there’s nothing wrong at law with such verbal agreements, they usually prove to be the most expensive and much time-consuming transactions when the unforeseen disputes arise in the ordinary course of business. This has always been the case, and nothing is new under the sun. What further compounds this difficulty is that these agreements by such seemingly wise laymen at a stage where they do not yet see the need of engaging lawyers for legal advice is that their agreements are entered into without reference to any law, only for the lawyers to labor belatedly thereafter in trying to categorize whatever was being done by these parties under some branch of law. It may even turnout that what these self-actors would have done may not be classifiable under any principle of law. When these parties would have fallen into their abyss of disputes and frustration and when the dead end is reached, it is only then that they tend to realize that the law is useful and that avoiding lawyers is expensive after all. This is exactly what has happened in this case. The same predicament was also noted by Tsanga J in Manyara v Muzanenhamo HH 412/15 at p 6 to 7 of the cyclostyled judgement in the following sentiments: “At the heart of misunderstandings such as these appears to be the very loose and often fluid misunderstanding, prevalent in our society, among non-legal savvy citizens, of what constitutes a business arrangement such as a partnership. Also a situation where primacy is given to friendship first and business second is one that all too often abounds amongst citizens to their detriment. It further compounds the difficulties that arise when preference for orality in associative business arrangements, rather than the written word, is mistaken for keeping the arrangement plain and simple” On 31 January 2024, the plaintiff issued summons against the defendants praying for the following relief: “a) The verbal business and partnership or agreement between the Plaintiff and 1st Defendant be and is hereby cancelled or dissolved. b) The brick making machine QT4-15 together with accessories be and is hereby declared to be lawfully owned by the Plaintiff. c) The Defendants to pay the costs of this action.” THE FACTS OF THE MATTER The facts of this matter come out clearly from the pleadings filed of record as well as from the evidence presented before this court by the parties. Most of the material facts are common cause. It is common cause that the plaintiff is a company incorporated in terms of the laws of England and Wales. It is therefore based in the United Kingdom. The Directors of the plaintiff are Bamus Limted (hereinafter referred to as Mr Limted) and Kudakwashe Carlton Limted who is cited herein as the third defendant (hereinafter referred to as third defendant). The first Defendant is a company that was incorporated in Zimbabwe on 30 March 2021 and its two Directors and shareholders with equal shares are the second defendant and the third defendant. Mr Limted is a nurse based in the United Kingdom and the third defendant is his son. The subject matter of this case is a brick molding machine and its accessories (hereinafter called the machine). The parties agreed at the Pre-Trial Conference that the only issue for determination is whether the machine belongs to the plaintiff or the first defendant. The plaintiff’s position is that the machine belongs to it while the second defendant’s case is that the machine belongs to the first defendant, the company wherein he is a shareholder with the third defendant. When the whole issue about this machine began, there were no disagreements at all. Whilst Mr Limted was going about his business abroad, he felt that he needed to empower his son the third defendant by helping him out to start a business or to invest in Zimbabwe so that he may benefit from such business when he returns to this country. This was a good idea and every father would have thought as much about his son. Whilst Mr Limted pondered on this idea, his father in-law introduced him to the second defendant whom he highly recommended as an upcoming and enterprising young man who is business oriented and industrious enough to work with. When Mr Limted spoke to the second defendant, he was persuaded that he indeed was the right man who could mentor his son in any line of business that he could help them to venture into. Mr Limted and the second defendant spoke over the issue and considered various business options which included manufacturing of IBR iron sheets but they finally settled on the molding of bricks. Mr Limted introduced the third defendant to the second defendant and the two seemed to click very well and the third defendant was thrilled about the idea. It is also common cause that the second defendant looked for the premises at number 51 Chikago Drive, Industrial Site, Marondera in Zimbabwe which were to be rented for this business enterprise. Mr Limted testified that he paid the purchase price for the machine at Dongyue Machine, a business in China, using funds which were transferred from the plaintiff’s Barclays Bank account held in the United Kingdom. He also paid for the shipping of the machine from China to Beira in Mozambique. His testimony that he also sent money for the payment of duty as well as the US$500 which went towards the registration of the first defendant company was not challenged by the second defendant. The plaintiff’s bundle reflects various sums of money that were sent by Mr Limted to the second defendant through world remit. There is documentary evidence in the plaintiff’s bundle which supported these claims by Mr Limted. When the machine was at the premises in Marondera, there was a fallout between the parties. This fallout was fueled by mistrust when Mr Limted saw that the lease agreement had been done in the names of the second defendant rather than in the names of the first defendant. This made him feel very insecure about his investment in the business. Mr Limted and third defendant started pulling the other direction with the second defendant pulling the opposite direction. The machine was taken away from the premises through an act of spoliation by one Simbarashe Muza acting in concert with Mr Limted. The second defendant obtained a spoliation order from Marondera Magistrates Court. An appeal against that order did not succeed. The criminal charges of alleged perjury in second defendant’s sworn testimony that the machine belonged to the first defendant did not succeed in the criminal court. Because of the tension between the two Directors of the first defendant, the first defendant has not managed to defend this action because no resolution to that effect can be passed. The third defendant has filed a consent to judgment in this case, siding with his father who is a co-director of the plaintiff. The second defendant’s case is that the machine was bought by the first defendant and it also belongs to the first defendant. His version is that the parties had agreed that for the first defendant to kick start its business, the second defendant as a Director would look for premises to be rented and renovate them and also ensure the running of the daily operations of the business in Zimbabwe while the third defendant was to purchase the machine and cover the shipping costs. The second defendant claims that he was to bear the local expenses. These allegations were denied by Mr Limted and the third defendant. They both viewed the second defendant as an opportunist who now wants to wrestle the machine from their hands by legal niceties. On the other hand, the second defendant laments that Mr Limted and the third defendant are laboring to divest him of his shareholding and entitlements in the first defendant company. The second defendant does not claim to have purchased the machine himself. His version is that it was the third defendant’s duty to do such. He relies on the shipping documents and in particular the bill of lading as proof that the machine was delivered to the first defendant and hence the ownership passed to it. His argument is that the proof of purchase by the plaintiff should not be taken as proof of ownership at law. He argues further that the plaintiff’s failure to prove an agreement with the first defendant disentitles it from the relief sought since there was a departure from the pleaded cause of action which was a contract. ANALYSIS OF THE DISPUTED FACTS It is common cause that the fallout between the parties occurred before the first defendant commenced business. In other words, no bricks were ever molded. The parties were clear that they can no longer work together. This is what necessitated this action by the plaintiff in a bid to recover the machine that it purchased. If the parties had just did what they did as individuals, this case would have been much simpler. The puzzle that has occurred is that the plaintiff who is now before this court is not Mr Limted but a company where he is a co-Director with the third defendant. As such, the plaintiff’s averment that it entered into a verbal agreement with the first defendant for the lease or hire of the machine by the latter cannot be accurate because the plaintiff was not clearly presented to the first and second defendant as a party to the verbal arrangements that were being made. This is why Advocate Mapuranga successfully challenged both the third defendant and Mr Limted that there was no agreement between the plaintiff and the first defendant and none could be cancelled by this court. He was correct. The agreement was between Mr Limted and the second defendant whereby the second defendant was to do business with his son the third defendant by running the first defendant company. The third defendant became part of this agreement when he agreed to work with the second defendant in the first defendant company. The second defendant’s assertion that the third defendant’s role was to purchase the machine on behalf of the first defendant and ship it to Zimbabwe as the property of the first defendant is unsupported by the evidence before this court. There is no discussion where this was ever documented. Such alleged version has the effect of removing the third defendant’s father as the main actor and main negotiator who initiated the negotiations with the second defendant. The papers before this court show that Mr Limted took it upon himself to finance the brick molding project and that the money he used for the purchasing of the machine and its accessories came from or was paid from the plaintiff’s Barclays account. He then had a fallout with the second defendant. Nothing shows that the machine was purchased by the first defendant or on its behalf. Neither the first defendant nor the second defendant contributed to the purchasing of the machine. There is no way in which the first defendant could therefore lawfully acquire ownership rights over the machine as at the time when the parties had a fallout. It will be unjust to divest the plaintiff of its rights over the machine that it purchased when the purpose for which the machine was to be used could no longer materialize. The fallout occurred before any discussions could be done regarding the terms under which the first defendant would have acquired any ownership rights over the machine. The parties had been too casual in their discussions without anticipating any future legal implications of their actions and that is why all the witnesses for the plaintiff as well as the second defendant performed very badly under cross examination by both counsel. Nonetheless the truth of the matter came out and it is simple from the material facts which are not disputed. LEGAL ARGUMENTS AND THEIR RESOLUTION Advocate Mapuranga has argued that the failure by the plaintiff’s witnesses to prove that the plaintiff had an agreement with the first defendant was a departure from the plaintiff’s pleadings warranting a dismissal of the plaintiff’s action which was based on that alleged agreement between the plaintiff and the first defendant. With great respect to counsel, this submission fails to discern that the plaintiff’s pleadings went further than simply alleging such an agreement. The plaintiff pleaded further at para 7 of its declaration that it is the legal owner of the machine which is the subject matter of this suit. Moreover, at para 8 of its declaration, it pleaded that it purchased the machine. Later on at para 16 of the declaration, the plaintiff pleaded that there is now a fallout by the Directors of the first defendant which renders the business deal impossible to consummate. In as much as the court cannot grant the plaintiff’s prayer in terms of para (a), nothing prevents this court from considering whether or not it is proper to grant the declaratory order sought in terms of para (b) of the plaintiff’s prayer in the summons which basically resolves the issue of ownership of the machine, the sole issue for determination by this court as agreed to by the parties in their joint pre – trial minute. In Dongo v Naik & Others SC 52/20 at p 6 of the cyclostyled judgment, the court set out the requirements of a declaratur. It held that for one to be entitled to a declaratur, one must have a direct and substantial interest in the subject matter of the suit that could be prejudicially affected. The right must attach to the applicant and no one else. This is a trite position which has been well traversed in this jurisdiction. Furthermore, in Debshan (Pvt) Ltd v The Provincial Mining Director and Others HB 11/17 at p 4 of the cyclostyled judgment, the requirements of a declaratur were set out as follows: “The remedy which the applicant seeks is one provided for in s14 of the High Court Act [Chapter 7:06]. The section provides that this court may, at the instance of any interested party, inquire into and determine any existing, future or contingent right or obligation. It has been stated, in interpreting that provision, that it is a condition precedent to the grant of a declaratory order that the applicant must have a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. See Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) 343G; 344 A –E; As the court will not decide abstract, academic or hypothetical questions unrelated to such an interest, the interest must relate to an existing, future or contingent right. See Anglo-Transvaal Collieries Ltd v SA Mutual Life Assurance Soc 1977 (3) SA 631 (T) 635 G-H; Munn Publishing (Pvt) Ltd v ZBC, supra. The other requirement for a declaratory order is that the court must decide whether or not the case in question is one in which it should properly exercise its discretion as provided for in s14. The court’s discretion will be exercised where, despite the fact that no consequential relief is sought, justice or convenience demands that a declaration be made as to the existence of or the nature of a legal right claimed by the applicant or the existence of a legal obligation due by the respondent. See Adbro Investment Co Ltd v Minister of the Interior and Others 1961 (3) SA 283 (T) 285 B – C; Johnsen v AFC 1995 (1) ZLR 65 (H)” The plaintiff in this case has proved that it purchased the machine using its own funds from its Barclays Bank account held in the United Kingdom. The machine was shipped to this country and delivered to the second defendant in the name of the first defendant in anticipation that the first defendant would commence its operations. The shareholders of the first defendant having reached a stalemate, the plaintiff wishes this court to declare that it is the owner of the machine that it purchased. The plaintiff has demonstrated that it has a direct and substantial interest in the subject matter of this dispute and that its interests and rights are likely to be prejudiced if such declaration of rights is not made. The plaintiff is correct. Ownership of property is a fundamental right that is now enshrined under s 71 of the Constitution of Zimbabwe and in particular subsections (2) and (3) as follows: “(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others. (3) Subject to this section and to section 72, no person may be compulsorily deprived of their property except where the following conditions are satisfied—------" The plaintiff derives ownership rights of the machine by having purchased it. It has not been proved that the plaintiff was divested of such right of ownership which is absolute at law. There is no document which was placed before me to show that the first defendant ever passed any resolution or signed any agreement divesting the plaintiff of its ownership rights in the machine. The only proper course for this court to take is to declare that the plaintiff owns the machine as per its prayer in its summons and declaration. Again, there was an argument by Advocate Mapuranga that either of the shareholders should have proceeded by way of a derivative action to advance the interests of the first defendant. I have already dismissed the argument that the first defendant ever acquired any ownership rights over the machine and hence such derivative action would have still been a failure. Neither Mr Limted nor the plaintiff is a shareholder in the first defendant and hence none of them would have had locus standi to institute a derivative action on its behalf. See Minister of Mines and Mining Development and Others v Grandwell Holdings (Private) Limited and Others SC 34/18. Lastly, the argument that the plaintiff’s witnesses are seeking to divest the second defendant of his shareholding in the first defendant is misplaced. The second defendant’s shareholding in the first defendant will still exist even if the plaintiff is declared to be the owner of the machine because the shareholding of the second defendant is not in the machine itself but in the rights that are documented in first defendant’s Articles of Association. CONCLUSION In the final analysis, I have therefore no hesitation that the plaintiff has proven before this court on a balance of probabilities that it is the owner of the machine. The argument that a purchaser is not always the owner is true in another context but not in this context where the plaintiff purchased the machine using its money and for a purpose or deal that did not materialize. It must follow that the plaintiff should retain its ownership of the machine. This finding is in accord with common sense, equity and the law. The only prayer that should fail is for the cancellation of the agreement with the first defendant which agreement I have found to be non - existent. The costs shall follow the successful party. Only the second defendant who has defended this action will pay the costs of suit. I therefore order as follows: The brick making machine QT4-15 together with accessories be and is hereby declared to be lawfully owned by the plaintiff. The second defendant shall bear the costs of suit. Gonese & Ndlovu, plaintiff’s legal practitioners Mundieta & Wagoneka – Madzivanyika Law Chambers, 2nd defendant’s legal practitioners