africa.law — Free African Legal Information

Judgment

4 HH 449 - 25 R - HCH 3261/23 ARROLA TAKUDZWA TENDAI IDEHEN and OMOSOGIE RUDO IDEHEN and OSARETIN TANAKA FEMI IDEHEN and MAVIS SHORAYI NZARA versus CLAUDIOUS NHEMWA N.O and PLOTMART TRADING and PEDDY HILLAIUS CHIGUNDURU and THE REGISTRAR OF DEED and THE MASTER OF THE HIGH COURT and THE SHERIFF OF ZIMBABWE HIGH COURT OF ZIMBABWE KATIYO J HARARE; 16 July & 29 July 2025 Opposed Matter Adv. T. Magwaliba with Ms R. Maphosa, for the applicants No appearance for the first respondent Adv. K. Kachambwa, for the second respondent Adv. G. Madzoka with T.J Madotsa, for the third respondent KATIYO J: This is an application in which the four applicants seek a declaratory order and related relief confirming their ownership of an immovable property known as the Remainder of Subdivision A of Subdivision F of Quinnington of Borrowdale Estate, Harare (“the property”). The applicants allege that the property was fraudulently transferred through a chain of transactions stemming from the late Wilson Madziva’s unlawful conduct, and they now seek to vindicate their rights. The matter comes before this Court as an opposed motion. The second and third respondents oppose the application and have raised several points in limine, which must first be determined before the merits of the claim can be addressed. Background Facts The background to this matter is largely common cause. The first applicant, Mavis Shorayi Nzara, was the former spouse of one Peter Dominic Idehen. Pursuant to a High Court order in 1996 (Case HC 5476/92) dissolving that marriage, Mavis was given a right of pre-emption over the property (then known simply as Subdivision A of Subdivision F of Quinnington, Borrowdale Estate) as part of the settlement. She did not immediately assume title, but retained the first right to purchase or take transfer of the property. In 1998, she obtained a subdivision permit to carve the land into two portions (Stands 552 and 553 Quinnington Township) and a remainder. Although she made inquiries that year with an estate agency (Deltec Properties (Pvt) Ltd) about possibly disposing of one subdivided stand, she ultimately took no further steps to sell. Unbeknown to her at the time, the managing director of Deltec – the late Wilson Madziva – took advantage of access to her property documents and hatched a fraudulent scheme. Using falsified information and documents, Madziva later caused the property to be transferred into his own name without the applicants’ knowledge or consent. In January 2003, Mavis decided to secure the property for her family. She donated the entire property to her children, who are the second, third, and fourth applicants, and transfer was duly registered on 31 January 2003 under Deed of Transfer No. 351/2003 in their names. From that point, the second – fourth applicants – Arrola Takudzwa Tendai Idehen, Omosogie Rudo Idehen, and Osaretin Tanaka Femi Idehen – became the lawful titleholders. It is worth noting that all the applicants have been resident in the United Kingdom since 1999, and thus were absent from Zimbabwe during the events that followed. In 2008, after the property had been donated and transferred to the children, the late Wilson Madziva executed his fraudulent plan to wrest ownership of the property. He produced a forged agreement of sale dated 10 May 1999 purporting to show that Mavis (first applicant) had sold him the property years earlier. On the strength of this false document, Madziva obtained a default judgment in the Magistrates’ Court (Chitungwiza) under Case No. 58/2008 compelling transfer of the property to himself. Critically, Madziva did not disclose that the property had since 2003 been registered in the names of the Idehen children. When he discovered that fact, he launched a second application (Magistrates’ Court Case No. 74/2008) to nullify the Deed of Donation (No. 351/2003) and the transfer to the second – fourth applicants. By misrepresentation and in the absence of the applicants, he succeeded in having the donation transfer cancelled in 2008 on spurious grounds. Armed with these court orders – obtained in default and founded on perjury and forged documents – Madziva procured a Deed of Transfer (No. 6519/2008) transferring the property into his own name. Madziva’s possession of title was short-lived. On the very same day that he acquired transfer, he immediately transferred the property to the second respondent, Plotmart Trading (Pvt) Ltd, by a further deed of transfer. The second respondent’s role appears to have been that of a conduit or intermediate transferee; indeed, the evidence suggests that this transfer was made in an effort by Madziva to launder the title and put it out of reach of the applicants. Not long thereafter, Plotmart Trading sold and transferred the property to the third respondent, Peddy Hillarious Chigunduru, who is the current registered owner of record. The deed of transfer in third respondent’s name was executed in 2011 (after the fraudulent chain of title had passed through Madziva and Plotmart). The third respondent claims to have been an innocent purchaser for value with no knowledge of the prior fraud. The fourth respondent is the Registrar of Deeds (cited in his official capacity as custodian of the deeds registry), the fifth respondent is the Master of the High Court (cited because the matter touches on the estate of the late Madziva), and the sixth respondent is the Sheriff of Zimbabwe (cited for any enforcement ancillary to the relief). These latter respondents have not actively opposed the application. It is also part of the background that criminal proceedings were commenced against Wilson Madziva for fraud and related charges arising from this and other property scams. Madziva was indeed arrested and tried; however, he died on 14 August 2010 while awaiting judgment in his criminal trial. Thus, he was never convicted, but the allegations against him remained essentially undisputed – he had perpetrated a brazen fraud to obtain the property. Upon his death, the first respondent (Joel Mambara N.O.) was appointed as executor dative of Madziva’s estate. The estate of the late Madziva does not claim any substantive right to the property at this stage – appropriately so, since any rights he had were obtained by fraud. The estate’s role is formal, and the executor has not opposed the relief sought. The applicants, having learned of the fraudulent transfers, promptly took both legal and preventive action. First, they moved to rescind the Chitungwiza Magistrates’ Court default judgments that had been granted in Madziva’s favor. Indeed, by December 2009 the Magistrates’ Court orders (which had compelled transfer to Madziva and cancelled the applicants’ deed) were rescinded and set aside. This meant that at law the foundation for Madziva’s title was removed (albeit after the transfers had already been registered – a matter to be dealt with on the civil side). In October 2011, the applicants also obtained interdictory relief in the High Court (Case No. HC 10218/11) to protect their interests pending a final resolution. That interim order, granted on 20 October 2011, interdicted any further transfers or encumbrances of the property and preserved the status quo. The third respondent was present at the hearing of that urgent application and gave undertakings (for example, that he would not make improvements on the land pending the outcome). Subsequently, the applicants pursued the present substantive proceedings to declare the transfers null and void and to restore their ownership. This application was instituted in 2023 as a court application in terms of s. 14 of the High Court Act [Chapter 7:06]. In their founding papers, the applicants seek a declaratory order that the purported agreements and transfers involving the late Madziva, Plotmart Trading, and Peddy Chigunduru are invalid ab initio, and that the second – fifth applicants are the true and lawful owners of the property. They also seek consequential relief directing the Registrar of Deeds to cancel the fraudulent titles and reinstate the applicants’ title, as well as an order for the eviction of the third respondent and any persons claiming occupation through him. A draft order was filed together with the application setting out the specific relief sought. The second respondent (Plotmart Trading) and third respondent (Chigunduru) opposed the application. They filed opposing affidavits and heads of argument. A number of preliminary points in limine were raised on their behalf. These points in limine are as follows: (1) prescription – that the applicants’ claim is prescribed; (2) material disputes of fact – that the matter cannot be decided on paper and should have proceeded by action; (3) security for costs – that the foreign-resident applicants ought to have furnished security before instituting the claim; (4) lack of locus standi – in particular that certain applicants (notably the first and fourth applicants) have no direct interest or capacity to seek relief; (5) misjoinder – that there is an improper joinder of some parties; and (6) the propriety of proceeding by way of a declaratory order – essentially arguing that the applicants chose the wrong procedure to vindicate their rights. These points in limine were argued at the hearing and will be dealt with in turn. If none of the preliminary objections is upheld, the court will then consider the merits of the application. Prescription The second and third respondents contended that the applicants’ claim has prescribed by the effluxion of time. They pointed out that the property was transferred to the late Madziva in 2008 and subsequently to the third respondent by 2011, yet the applicants only launched this application in 2023 – well over a decade later. They argue that any cause of action the applicants may have had arose at the time of the impugned transfers and thus became prescribed under the applicable prescription laws, assuming a three-year prescriptive period for a civil claim. In response, the applicants averred that their claim is not barred by prescription. They advanced several arguments. First, they contend that the remedy they seek is essentially the vindication of ownership (rei vindicatio), which is a property claim and not a “debt” in the sense contemplated by the Prescription Act. In our law, prescription generally runs against actionable debts or obligations. A claim by an owner to recover her property is sui generis and not readily classified as a debt susceptible to the short prescription period. Second, even if prescription were applicable, the applicants submit that prescription could not begin to run until they became aware of the cause of action and, crucially until the fraudulent court orders were rescinded. It was argued that as long as the Magistrates’ Court orders of 2008 remained extant, the applicants were legally constrained from successfully vindicating their title – a concept sometimes expressed by the maxim that a court order, even if wrongly granted, remains valid until set aside. Only once those orders were set aside in December 2009 and once the true state of affairs was discovered by the applicants could they effectively pursue their claim. They further point out that they did take action by 2011, securing an interdict, and the matter has been in continuous contestation through various proceedings, which would interrupt prescription in any event. Having considered the arguments and the evidence, I am satisfied that prescription does not operate to defeat the applicants’ claim. In the first place, the underlying right asserted by the applicants is ownership of immovable property. The applicants seek declaratory and vindicatory relief to enforce their real right in the property. Such a claim is distinct from a personal debt. Superior courts have emphasized that for prescription to begin to run, there must be a “debt” due – i.e. an obligation owed by one party to another, and that the creditor must have knowledge of the debtor and the facts giving rise to the debt. In Syfin Holdings Ltd v Pickering 1982 (1) ZLR 10 (SC), it was made clear that prescription cannot begin to run against a creditor until the cause of action is complete and actionable, and known (or reasonably knowable) to the creditor. In the present case, the applicants could not have acted earlier than they did, because the fraudulent transfers were carried out clandestinely and under colour of court orders. The applicants only discovered the transfer to Madziva in late 2009, and they moved swiftly to challenge it. Furthermore, even after discovery, they faced the hurdle of existing court orders which had to be nullified before approaching this Court. It is settled law that once a default judgment is rescinded, the consequences thereof fall away. Until the magistrates’ default judgments were set aside, the applicants were effectively unable to assert their title, since any High Court action would have collided with an extant court order. They acted prudently by first rescinding those orders. Even calculating from the rescission in late 2009 or the interdict in 2011, this application (filed in 2023) comes after a lengthy delay. However, I accept that much of that delay is explained by ongoing litigation (including a protracted fight over related subdivided stands in the same Quinnington property, which was only concluded by the Supreme Court in 2018, as will be noted later) and by the practical challenges of the applicants being abroad. In any event, the respondents bear the onus to establish prescription (both the date of the cause of action’s accrual and the lapse of the full prescriptive period). They have not discharged that onus on the facts of this case. Moreover, given the nature of the relief (declaratory of rights in property), I am not convinced that the Prescription Act’s limitation provisions even squarely apply. The Supreme Court has sanctioned a “ruthless vindication” of ownership rights even after considerable passage of time, especially where an owner did not through their own inactivity enable the loss of the property. I therefore find that the claim is not prescribed. The point in limine is dismissed. Material Disputes of Fact The respondents next contended that there are material disputes of fact incapable of resolution on the papers, rendering the application procedurally improper. They argue that the matter involves allegations of fraud and questions of the third respondent’s knowledge or bona fides, which would require oral evidence and cross-examination to resolve. In their view, the applicants ought to have proceeded by action (summons) so that these factual issues could be tried in the ordinary way. The respondents did not, however, identify any specific factual assertion by the applicants that they meaningfully dispute; rather, their point is a general one that any fraud case is too complex for motion proceedings. It is trite that not every factual dispute will preclude a court from deciding a matter on affidavit. A respondent who alleges that a real, material dispute exists must clearly identify the disputed facts and show their materiality. Vague or unsubstantiated claims of “dispute” are insufficient. The courts have often emphasized that a party seeking to rely on a material dispute of fact must demonstrate a bona fide dispute of substance – a real conflict of evidence on a fact essential for the determination of the case. In Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S), it was held that a respondent must allege facts which, if proved at trial, would entitle it to judgment in its favor, in order to defeat a motion on this ground. Similarly, in Supa Plant Invest (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H), a “material dispute of fact” was described as one where the court is unable to resolve the conflict on the affidavits without vivâ voce evidence. In casu, the core facts underpinning the applicants’ case are not in genuine dispute. The chain of title and the sequence of events are a matter of record, supported by documentary evidence (copies of court orders, deeds, agreements, etc.) that the respondents themselves have not seriously gainsaid. The second and third respondents do not deny that Madziva obtained a default judgment and had the property transferred to himself and then to Plotmart and eventually to Chigunduru. They do not deny that the initial court orders were rescinded for fraud. They do not assert, for example, that Mavis actually signed the 1999 agreement of sale, or that the applicants somehow authorized these transactions. In fact, the third respondent’s defense is largely a legal one – he claims to be an innocent purchaser who acquired title lawfully from Plotmart. That is a question of law (whether an innocent purchaser is protected in these circumstances), not a factual dispute. There is accordingly no material dispute of fact requiring the hearing of oral evidence. To the extent that certain facts could be considered in dispute, they are either not genuine or not material. For instance, whether the third respondent was subjectively aware of the fraud is not decisive of the applicants’ vindicatory claim (as will be discussed on the merits), because even an innocent purchaser’s title may be invalidated if it was derived from a void transaction. The resolution of this matter hinges on legal principles applied to largely common cause facts. It is also noteworthy that the respondents themselves did not move for a referral to trial or for cross-examination on any affidavit. They seemed content to have the court decide the matter on the affidavits (should their limine points fail), which undermines the suggestion that live evidence was truly needed. In sum, I find that this application is properly capable of determination on the papers. There is no genuine material dispute of fact that would warrant dismissal of the application or conversion to action. This point in limine is therefore without merit and is dismissed. Security for Costs The second respondent also raised, as a preliminary issue, that the applicants should have furnished security for costs before instituting these proceedings. It was alleged that all the applicants are foreigners permanently resident in the United Kingdom, with no assets in Zimbabwe, and thus in terms of Rule 75 of the High Court Rules, 2021, they ought to give security to cover any adverse costs order. Indeed, the second respondent served a Notice of Demand for Security for Costs requiring the applicants to post security in the sum of US$80,000 (being US$20,000 for each applicant). The applicants opposed that demand, and no security was tendered. In their opposing papers, the applicants disputed the factual premise of this point. They averred that they are not foreigners at all, but citizens of Zimbabwe, even if they are presently resident abroad. They attached evidence of their national identity numbers to confirm they are Zimbabwean by citizenship. Moreover, they pointed out that the fourth applicant (Tanaka Femi Idehen) owns unencumbered immovable property in Harare, which could satisfy any costs order. Thus, the applicants argued that the rationale for security (to ensure a resident defendant is not left without recourse to costs) does not apply here. Finally, they contended that a failure to tender security ab initio is not a bar to filing proceedings – rather, the Rules provide a mechanism for the Registrar or Court to determine security if demanded. Since the applicants formally opposed the demand for security on valid grounds, they took the position that the matter was properly set down notwithstanding the unresolved security dispute. I agree with the applicants that this point cannot succeed. The purpose of Rule 75(1) is to protect a defendant (or respondent) from the risk of a non-resident plaintiff who might leave the jurisdiction without paying costs if ordered. The rule is not meant to be used oppressively to shut the door on bona fide litigants. In the present case, the applicants have shown that they are citizens of Zimbabwe, even if living abroad. Citizenship is a strong indication of lasting connection to the jurisdiction. Additionally, the uncontroverted evidence is that the applicants (through the fourth applicant) own a house in Harare, which stands as tangible security for any costs that might be awarded against them. In such circumstances, our courts have held that an order for security is not warranted. Moreover, the second respondent’s demand was properly contested by the applicants through correspondence, and the second respondent did not pursue a formal application to compel security. Instead, they rolled the issue into this point in limine. Given the information provided, I am satisfied that the applicants have sufficient connection and assets in Zimbabwe such that security for costs is unnecessary. It would not be just to require four individuals – asserting their rights in a family property allegedly taken by fraud – to post a prohibitive sum of $80,000 as a condition to be heard. The High Court Rules vest the court with a discretion in this matter, and in my view the discretion should be exercised in the applicants’ favour on the facts of this case. The point in limine is therefore resolved against the respondents. Locus Standi of the Applicants The respondents initially took issue with whether all of the applicants have the requisite locus standi to bring this application. In particular, it was argued that the first applicant, Mavis, having donated the property to her children in 2003, no longer has a direct interest in the property and thus “seeks relief on behalf of others.” Conversely, it was also suggested that the fourth applicant, Osaretin, had no direct interest at the time of the fraud (possibly because she was not yet a registered co-owner in 2008, or was a minor) and therefore her presence as an applicant was questioned. The contention was that the first applicant is non-suited (lacks standing) since the real owners are the second – fourth applicants, and that the fourth applicant in turn was not an owner when the cause of action arose. However, it must be noted that counsel for the respondents did not press this point strongly at the hearing. In the second respondent’s heads of argument, it was candidly admitted that, in light of the joinder of the children as co-applicants, any issue about the first applicant’s standing is largely academic. Similarly, the respondents did not squarely raise a locus objection to the fourth applicant in their pleadings, aside from a procedural quibble about her having deposed to the founding affidavit from abroad. In any event, I am satisfied that all four applicants have a direct and substantial interest in the subject matter and thus have standing. The first applicant, although she transferred her title to her children, is the person who originally held the right of pre-emption and who was defrauded by Madziva’s machinations. She certainly has an interest in seeing the property restored to her family and in the undoing of the fraud perpetrated upon her. Our law recognizes that a person with a legal interest in the validity of a transaction or in the outcome of litigation has standing, even if that interest is shared with others. The second, third, and fourth applicants, for their part, are the grantees in the 2003 Deed of Transfer – the very parties whose title was nullified by Madziva’s fraudulent court orders. They unquestionably have locus standi as the prima facie rightful owners of the property. The slight confusion regarding the fourth applicant likely arises from the chronology – perhaps at the time of donation in 2003, the fourth applicant was an infant and title may have been held on her behalf. Regardless, she is a member of the class of beneficiaries (the Idehen children) for whom the property was intended, and she has since attained majority. No prejudice arises from her being cited as an applicant. In fact, to avoid multiplicity of suits, it is preferable that all persons who claim an interest in the property are before the Court. That is the case here. The technical objections on locus standi are thus devoid of merit. Misjoinder or Nonjoinder The respondents raised a related point of misjoinder, suggesting that certain parties have been improperly or unnecessarily joined. It was not entirely clear whether this argument was directed at the applicants (as discussed above) or at some of the cited respondents (such as the Master or Sheriff). To the extent the joinder of official respondents was criticized, I find no irregularity. The fourth, fifth, and sixth respondents (Registrar of Deeds, Master, and Sheriff) are cited in their official capacities to ensure that effective relief can be granted. The Registrar of Deeds is a necessary party in any litigation seeking cancellation or amendment of title deeds; similarly, the Sheriff may be needed to execute transfer or eviction orders, and the Master oversees any implications for the deceased estate. Their joinder is prudent and indeed common practice in matters of this nature. There is no prejudice to any party by their inclusion – the official respondents have largely chosen to abide the court’s decision. Moreover, Rule 32 of the High Court Rules (formerly Order 13 r 87) explicitly provides that no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party, and the court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Even if one were to conclude that any particular respondent was not a necessary party, that would not be a ground to dismiss the application. The appropriate course would simply be to not grant any relief against that party, or to formally strike out or excuse their citation. In this case, I see no need to do so. All the parties who might have an interest (even peripherally) are before the Court, and that will facilitate a holistic resolution. I therefore find no misjoinder that prejudices the respondents. This point in limine is also dismissed. Propriety of Declaratory Relief Procedure Finally, the respondents argued that the applicants adopted an improper procedure by proceeding via a declaratory application. They contend that the applicants are in substance seeking a rei vindicatio (recovery of property) and other consequential relief, and that this should have been done by way of a direct application for vindication or an action, rather than a declaratory order. The second respondent complained that because title is formally registered in the third respondent’s name, it is “improper” for the applicants to seek a declaration that they (the applicants) are the true owners. The argument went so far as to suggest that granting a declaratory order in these circumstances would result in conflicting judgments – the Magistrates’ Court order (before it was rescinded) had allowed transfer to Madziva, whereas the High Court would be declaring the transfer invalid. The respondents also asserted that the applicants should have first obtained rescission of the default judgment (which in fact they did, in 2009) and that a declaratory is only appropriate if no other remedy exists. In essence, the respondents maintained that the applicants’ use of a declaratory application under s 14 of the High Court Act was irregular and that the court should refuse to entertain it, directing the applicants to some other form of proceeding. This Court finds no merit in the objection to the chosen procedure. Section 14 of the High Court Act [Chapter 7:06] explicitly empowers this Court, “in its discretion, at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any consequential relief upon such determination.” The applicants are unquestionably “interested persons” asserting an existing right – namely the right of ownership of immovable property. The relief they seek (a declaration of rights in the property and cancellation of certain title deeds) is relief that this Court is competent to grant on a declaratory application. There is nothing “improper” or irregular about proceeding in this manner. On the contrary, where the facts are largely common cause and the dispute turns on legal questions, a motion for declaratory relief is an efficient and appropriate vehicle. The respondents’ contention that the applicants should have “simply made an application for vindication” is semantic – the applicants are in effect vindicating the property, and they have coupled the declaratory relief with the necessary consequential orders (cancellation of deeds, eviction, etc.). This is entirely in line with the court’s powers. The spectre of “two conflicting judgments” raised by the respondents is misplaced. The Magistrates’ Court judgments from 2008 were rescinded and are of no force. There is therefore no risk of an extant judgment contradicting a declaration of rights by this Court. Even if those orders were still standing, this Court, as a superior court, would be entitled to examine the underlying rights of the parties and to set aside any transfer that was procured via fraud. In any event, that conflict does not arise here because the fraudulent orders have been nullified. It is also noteworthy that declaratory orders have been granted in numerous cases in this jurisdiction to resolve disputes of title or other rights – even by way of motion proceedings – where such disputes can be determined on the papers. The respondents’ own heads of argument acknowledge that the High Court is the correct forum to declare rights in property. Thus, there is no procedural impropriety. I am fortified in this view by the principle that this Court has full original jurisdiction over all civil matters (High Court Act s 13). So long as the applicants demonstrate a clear right and a legitimate interest in the relief, the Court may grant a declaratory order to resolve the controversy. That is indeed the case here. Consequently, the point in limine regarding the propriety of declaratory relief is also dismissed. Having disposed of all the points in limine against the respondents, I turn now to consider the substantive merits of the application. On the merits, the essential issue is who is the true owner of the property and whether the applicants are entitled to recover it given the history of fraudulent transfers and an innocent purchaser in possession. The applicants’ case is straightforward: they contend that the various transactions by which the property left their hands were void ab initio due to fraud, and therefore no real rights ever passed to Madziva, Plotmart, or Chigunduru. Consequently – so the argument goes – the applicants (particularly the second – fourth applicants, in whose names Deed 351/2003 was registered) remained the lawful owners throughout, and they are entitled to vindicate the property from whoever holds it. The relief sought is effectively the rei vindicatio, which our law accords to an owner to recover her property from any person in possession or holding title without the owner’s consent. It is important to recall some fundamental principles of property law that govern this case. Firstly, ownership is sacrosanct: an owner cannot be deprived of her property without her consent or due process of law. This is captured in the maxim nemo plus iuris transferre potest quam ipse habet – one cannot transfer more rights than one has. If a transferor has no title or defective title, he cannot confer good title on a transferee. Secondly, where a transfer of property is procured by fraud (such as by forged documents or perjured court orders), the transfer is a nullity. No valid real right passes to the fraudulent transferee or to subsequent transferees who derive title through that fraud. In Shana & Ors v Abdul & Ors 1990 (2) ZLR 129 (HC), the court noted that a person who obtains property through fraud never acquires lawful title, and hence anyone claiming through him also never acquires valid title – the property remains owned by the original owner, who is entitled to vindicate it. Our Supreme Court has emphatically endorsed what it termed the “ruthless vindication” of an owner’s rights in such circumstances. In Nzara & Ors v Kashumba N.O. & Ors SC 18/2018, a case with strikingly similar facts involving the same property, the Supreme Court held that once it was found that the appellants were the true owners, the court was bound by law to vindicate their title. It was observed that “the law calls for ruthless vindication and protection of the right of ownership”, and that there are no equities to override the owner’s rights. The court in that case further noted that it has no equitable jurisdiction to refuse vindication or to prefer an innocent purchaser over the defrauded owner. Applying those principles to the present case, it is abundantly clear that the applicants’ vindicatory claim must succeed. The late Wilson Madziva acquired the property through fraud and perjury; as such, he never obtained any valid title. The Magistrates’ Court orders he misused have been set aside, meaning there is not even a veneer of legality to his deed. Even before rescission, the orders were obtained by fraud, which means they were voidable and indeed void ab initio once nullified. Accordingly, when Madziva purported to transfer the property to Plotmart Trading (second respondent), he transferred nothing of lawful substance – nemo dat quod non habet. Plotmart Trading, in turn, could not transfer valid title to the 3rd respondent, Mr. Chigunduru. The net result is that the property remained vested in the applicants by operation of law. In truth, the real rights of ownership never left the sphere of the applicants, because all intermediate transactions were nullities. The fraudster Madziva never validly acquired title in the property in question, and hence [the subsequent purchaser] never validly acquired title. The property, therefore, still belongs to the applicants. Effect of Prior Fraudulent Transfers The respondents have argued that the third respondent is an innocent purchaser for value, and that it would be inequitable to dispossess him of the property after all these years. There is no reason to doubt that the third respondent was not complicit in Madziva’s fraud. He appears to have bought the land from Plotmart Trading in good faith, paying the purchase price, and obtained transfer in the ordinary course. One may indeed empathize with his position – through no fault of his own, he stands to lose the property (and whatever money he paid for it) due to Madziva’s scheme. However, the law is not on the third respondent’s side in this scenario. Our law jealously guards the rights of the true owner. It permits an owner to recover her property even from a good-faith purchaser. In the oft-cited South African case of Chetty v Naidoo 1974 (3) SA 13 (A) (approved in many Zimbabwean decisions, including Mashave v Standard Bank of SA Ltd 1998 (1) ZLR 436 (S), it was affirmed that an innocent purchaser’s only possible defence to a rei vindicatio is estoppel – i.e. if the owner by his own conduct or representations misled the purchaser into believing the transferor had authority. Estoppel in this context requires that the true owner has done something to create an appearance of consent or true title in the fraudulent seller. In the present case, there is no basis for an estoppel against the applicants. The fraud was perpetrated entirely without the applicants’ involvement. They did absolutely nothing to represent to anyone that Madziva (or Plotmart) was the owner or had authority to sell the property – indeed, at all material times the applicants were unaware of the machinations. The 3rd respondent did not rely on any representation by the applicants; he relied on the Land Registry records, which were themselves tainted by fraud. In short, the applicants were victims and made no misrepresentation that could deprive them of their rights. Therefore, even though the 3rd respondent may have been a bona fide purchaser and even if he paid fair value, he has no legal answer to the owner’s vindicatory claim. The Supreme Court in Nzara v Kashumba (supra) confronted a similar plea by an innocent buyer who had developed the land and paid value, and nonetheless ruled that the harsh outcome – the loss of the property by the innocent party – is sanctioned by law, given the greater imperative of protecting lawful ownership. The Court expressly stated that there is no equitable power to allow the innocent purchaser to keep property belonging to someone else, absent an estoppel scenario. To sum up, the fraudulent transfers in 2008–2011 have no legal effect against the applicants. Those transfers are null and void ab initio. It follows that the Deed of Transfer No. 351/2003 (by which the property was vested in the second – fourth applicants) remains the operative title. Although that deed was cancelled of record pursuant to Madziva’s fraud, this Court will by order direct that it be reinstated. The estate of the late Madziva (first respondent) has no rights in the property – the late Madziva never lawfully owned it, and upon his death it was not an asset transmissible to his estate. The second respondent, Plotmart Trading, likewise obtained nothing except perhaps potential personal rights against Madziva (if, for instance, it paid him for the property – though it appears to have been a creature of Madziva himself). Plotmart’s title must be cancelled. The third respondent’s registered title is the final link in the poisoned chain and must also be cancelled. The innocent third respondent is not without any remedy: he may have a personal claim for reimbursement against those who sold him the property (perhaps against Plotmart or the estate of Madziva). But that is a separate matter. As far as real rights in the land are concerned, the law is clear that the applicants’ rights prevail over all others. I therefore conclude that the applicants (specifically the second, third and fourth applicants, being the successors in title under Deed 351/2003) are the rightful owners of the property. The effect of this finding is that the applicants are entitled to all the incidents of ownership, including the right to exclusive possession of the property and the right to have the deeds registry reflect their title. Relief to be Granted Given the above conclusions, the appropriate relief is a declaratory order confirming the applicants’ ownership and orders nullifying the fraudulent transfers and restoring the status quo ante. The applicants’ draft order seeks a comprehensive suite of remedies, and the Court is satisfied that these are warranted. In particular, it is necessary to order the cancellation of the successive title deeds: the deed in the late Madziva’s name (Transfer No. 6519/2008), the deed in Plotmart Trading’s name, and the deed in Peddy Chigunduru’s name. The Registrar of Deeds will be directed to cancel those deeds and to reinstate Deed No. 351/2003 (or otherwise register the property in the names of the second – fourth applicants). As a practical measure, the Sheriff of the High Court will be authorized to sign any documents that may be required to give effect to the order (for example, if Plotmart or the third respondent fail to sign consent papers for cancellation of title, the Sheriff may sign in their stead). The applicants also seek an order for the eviction of the third respondent (or anyone claiming occupation through him) from the property, to ensure vacant possession. The third respondent has not indicated that he is presently residing on the land – indeed, it was stated that the property is undeveloped land – but to avoid doubt an eviction order will be granted, enforceable if he or his agents are on the property. The order will allow a reasonable period (30 days) for voluntary vacation before forcible eviction by the Sheriff. Finally, on the issue of costs: the general rule is that costs follow the result. The applicants have substantially succeeded and are entitled to their costs. The second and third respondents, having actively opposed the application, shall bear the costs. In view of the reprehensible nature of the fraud that gave rise to this case, one might have considered a punitive order against those responsible. However, the true culprit (Madziva) is deceased, and there is no evidence that the third respondent acted in bad faith in litigating – he raised legal defenses (albeit unsuccessful) to protect what he thought was his property. The second respondent’s conduct is more opaque (we do not know its level of complicity or otherwise), but no specific prayer for punitive costs was made against it. I will therefore award costs on the ordinary scale, jointly and severally between the opposing respondents. The first, fourth, fifth, and sixth respondents did not meaningfully participate in the opposition, and no costs are sought against them. Before setting out the order, I observe that this outcome, while legally correct, is undoubtedly harsh on the third respondent. He stands to lose the property he paid for, illustrating the cruel effect of fraud on innocent parties. However, as the Supreme Court noted, “the law calls for ruthless vindication” of ownership in such cases. The courts cannot validate a fraud or allow the interests of an innocent purchaser to override the rights of an owner who was blameless. The only solace for the third respondent is that he may pursue remedies against those who misled him. This judgment, hopefully, also serves as a cautionary tale underscoring the need for due diligence in property transactions and perhaps for systemic measures to prevent fraudulent property transfers. Accordingly, it is ordered as follows: The second, third and fourth applicants (Arrola Takudzwa Tendai Idehen, Omosogie Rudo Idehen, and Osaretin Tanaka Femi Idehen) are hereby declared the lawful owners of the immovable property known as the Remainder of Subdivision A of Subdivision F of Quinnington of Borrowdale Estate, Harare.The following transfers and title deeds are declared null and void ab initio and are hereby set aside: The deed of transfer in the name of the late Wilson Madziva (Deed No. 6519/2008) purporting to transfer the property to himself.The deed of transfer in favour of Plotmart Trading (Private) Limited by which the property was transferred from the late Wilson Madziva to the second respondent.The deed of transfer in favour of Peddy Hillarious Chigunduru by which the property was transferred from the second respondent to the third respondent (Deed No. .../2011). The Registrar of Deeds, Harare is directed to reinstate Deed of Transfer No. 351/2003, dated 31 January 2003, into the names of Arrola Takudzwa Tendai Idehen, Omosogie Rudo Idehen, and Osaretin Tanaka Femi Idehen or to otherwise register the property in their names as the lawful titleholders. The Registrar of Deeds shall make all necessary endorsements in the registers to give effect to paragraph 2 above and to restore the applicants’ title.In the event that any person or entity currently reflected as holding title to the property (or any other necessary party) fails or refuses to sign the documents required to effect the cancellations and transfers ordered above, the Sheriff of the High Court is hereby authorized to sign such documents in that person’s stead. The Registrar of Deeds shall accept and act upon any documents so signed by the Sheriff as if they were signed by the person properly concerned.The third respondent, Peddy Hillarious Chigunduru, and all persons claiming occupation through him, are hereby ordered to vacate the property and surrender vacant possession to the applicants within 30 days of the date of this order. Failing compliance with this paragraph, the Sheriff of the High Court or his lawful deputy is authorized and directed to evict the third respondent and any such persons from the property and to give the applicants peaceful and vacant possession thereof.The second and third respondents shall jointly and severally pay the applicants’ costs of suit, the one paying the other to be absolved. Katiyo J: ………………………………………………… Messrs Machingura Legal Practice, applicant’s legal practitioners Mawere & Sibanda, second respondent’s legal practitioners Madotsa & Partners, third respondent’s legal practitioners 4 HH 449 - 25 R - HCH 3261/23 4 HH 449 - 25 R - HCH 3261/23 ARROLA TAKUDZWA TENDAI IDEHEN and OMOSOGIE RUDO IDEHEN and OSARETIN TANAKA FEMI IDEHEN and MAVIS SHORAYI NZARA versus CLAUDIOUS NHEMWA N.O and PLOTMART TRADING and PEDDY HILLAIUS CHIGUNDURU and THE REGISTRAR OF DEED and THE MASTER OF THE HIGH COURT and THE SHERIFF OF ZIMBABWE HIGH COURT OF ZIMBABWE KATIYO J HARARE; 16 July & 29 July 2025 Opposed Matter Adv. T. Magwaliba with Ms R. Maphosa, for the applicants No appearance for the first respondent Adv. K. Kachambwa, for the second respondent Adv. G. Madzoka with T.J Madotsa, for the third respondent KATIYO J: This is an application in which the four applicants seek a declaratory order and related relief confirming their ownership of an immovable property known as the Remainder of Subdivision A of Subdivision F of Quinnington of Borrowdale Estate, Harare (“the property”). The applicants allege that the property was fraudulently transferred through a chain of transactions stemming from the late Wilson Madziva’s unlawful conduct, and they now seek to vindicate their rights. The matter comes before this Court as an opposed motion. The second and third respondents oppose the application and have raised several points in limine, which must first be determined before the merits of the claim can be addressed. Background Facts The background to this matter is largely common cause. The first applicant, Mavis Shorayi Nzara, was the former spouse of one Peter Dominic Idehen. Pursuant to a High Court order in 1996 (Case HC 5476/92) dissolving that marriage, Mavis was given a right of pre-emption over the property (then known simply as Subdivision A of Subdivision F of Quinnington, Borrowdale Estate) as part of the settlement. She did not immediately assume title, but retained the first right to purchase or take transfer of the property. In 1998, she obtained a subdivision permit to carve the land into two portions (Stands 552 and 553 Quinnington Township) and a remainder. Although she made inquiries that year with an estate agency (Deltec Properties (Pvt) Ltd) about possibly disposing of one subdivided stand, she ultimately took no further steps to sell. Unbeknown to her at the time, the managing director of Deltec – the late Wilson Madziva – took advantage of access to her property documents and hatched a fraudulent scheme. Using falsified information and documents, Madziva later caused the property to be transferred into his own name without the applicants’ knowledge or consent. In January 2003, Mavis decided to secure the property for her family. She donated the entire property to her children, who are the second, third, and fourth applicants, and transfer was duly registered on 31 January 2003 under Deed of Transfer No. 351/2003 in their names. From that point, the second – fourth applicants – Arrola Takudzwa Tendai Idehen, Omosogie Rudo Idehen, and Osaretin Tanaka Femi Idehen – became the lawful titleholders. It is worth noting that all the applicants have been resident in the United Kingdom since 1999, and thus were absent from Zimbabwe during the events that followed. In 2008, after the property had been donated and transferred to the children, the late Wilson Madziva executed his fraudulent plan to wrest ownership of the property. He produced a forged agreement of sale dated 10 May 1999 purporting to show that Mavis (first applicant) had sold him the property years earlier. On the strength of this false document, Madziva obtained a default judgment in the Magistrates’ Court (Chitungwiza) under Case No. 58/2008 compelling transfer of the property to himself. Critically, Madziva did not disclose that the property had since 2003 been registered in the names of the Idehen children. When he discovered that fact, he launched a second application (Magistrates’ Court Case No. 74/2008) to nullify the Deed of Donation (No. 351/2003) and the transfer to the second – fourth applicants. By misrepresentation and in the absence of the applicants, he succeeded in having the donation transfer cancelled in 2008 on spurious grounds. Armed with these court orders – obtained in default and founded on perjury and forged documents – Madziva procured a Deed of Transfer (No. 6519/2008) transferring the property into his own name. Madziva’s possession of title was short-lived. On the very same day that he acquired transfer, he immediately transferred the property to the second respondent, Plotmart Trading (Pvt) Ltd, by a further deed of transfer. The second respondent’s role appears to have been that of a conduit or intermediate transferee; indeed, the evidence suggests that this transfer was made in an effort by Madziva to launder the title and put it out of reach of the applicants. Not long thereafter, Plotmart Trading sold and transferred the property to the third respondent, Peddy Hillarious Chigunduru, who is the current registered owner of record. The deed of transfer in third respondent’s name was executed in 2011 (after the fraudulent chain of title had passed through Madziva and Plotmart). The third respondent claims to have been an innocent purchaser for value with no knowledge of the prior fraud. The fourth respondent is the Registrar of Deeds (cited in his official capacity as custodian of the deeds registry), the fifth respondent is the Master of the High Court (cited because the matter touches on the estate of the late Madziva), and the sixth respondent is the Sheriff of Zimbabwe (cited for any enforcement ancillary to the relief). These latter respondents have not actively opposed the application. It is also part of the background that criminal proceedings were commenced against Wilson Madziva for fraud and related charges arising from this and other property scams. Madziva was indeed arrested and tried; however, he died on 14 August 2010 while awaiting judgment in his criminal trial. Thus, he was never convicted, but the allegations against him remained essentially undisputed – he had perpetrated a brazen fraud to obtain the property. Upon his death, the first respondent (Joel Mambara N.O.) was appointed as executor dative of Madziva’s estate. The estate of the late Madziva does not claim any substantive right to the property at this stage – appropriately so, since any rights he had were obtained by fraud. The estate’s role is formal, and the executor has not opposed the relief sought. The applicants, having learned of the fraudulent transfers, promptly took both legal and preventive action. First, they moved to rescind the Chitungwiza Magistrates’ Court default judgments that had been granted in Madziva’s favor. Indeed, by December 2009 the Magistrates’ Court orders (which had compelled transfer to Madziva and cancelled the applicants’ deed) were rescinded and set aside. This meant that at law the foundation for Madziva’s title was removed (albeit after the transfers had already been registered – a matter to be dealt with on the civil side). In October 2011, the applicants also obtained interdictory relief in the High Court (Case No. HC 10218/11) to protect their interests pending a final resolution. That interim order, granted on 20 October 2011, interdicted any further transfers or encumbrances of the property and preserved the status quo. The third respondent was present at the hearing of that urgent application and gave undertakings (for example, that he would not make improvements on the land pending the outcome). Subsequently, the applicants pursued the present substantive proceedings to declare the transfers null and void and to restore their ownership. This application was instituted in 2023 as a court application in terms of s. 14 of the High Court Act [Chapter 7:06]. In their founding papers, the applicants seek a declaratory order that the purported agreements and transfers involving the late Madziva, Plotmart Trading, and Peddy Chigunduru are invalid ab initio, and that the second – fifth applicants are the true and lawful owners of the property. They also seek consequential relief directing the Registrar of Deeds to cancel the fraudulent titles and reinstate the applicants’ title, as well as an order for the eviction of the third respondent and any persons claiming occupation through him. A draft order was filed together with the application setting out the specific relief sought. The second respondent (Plotmart Trading) and third respondent (Chigunduru) opposed the application. They filed opposing affidavits and heads of argument. A number of preliminary points in limine were raised on their behalf. These points in limine are as follows: (1) prescription – that the applicants’ claim is prescribed; (2) material disputes of fact – that the matter cannot be decided on paper and should have proceeded by action; (3) security for costs – that the foreign-resident applicants ought to have furnished security before instituting the claim; (4) lack of locus standi – in particular that certain applicants (notably the first and fourth applicants) have no direct interest or capacity to seek relief; (5) misjoinder – that there is an improper joinder of some parties; and (6) the propriety of proceeding by way of a declaratory order – essentially arguing that the applicants chose the wrong procedure to vindicate their rights. These points in limine were argued at the hearing and will be dealt with in turn. If none of the preliminary objections is upheld, the court will then consider the merits of the application. Prescription The second and third respondents contended that the applicants’ claim has prescribed by the effluxion of time. They pointed out that the property was transferred to the late Madziva in 2008 and subsequently to the third respondent by 2011, yet the applicants only launched this application in 2023 – well over a decade later. They argue that any cause of action the applicants may have had arose at the time of the impugned transfers and thus became prescribed under the applicable prescription laws, assuming a three-year prescriptive period for a civil claim. In response, the applicants averred that their claim is not barred by prescription. They advanced several arguments. First, they contend that the remedy they seek is essentially the vindication of ownership (rei vindicatio), which is a property claim and not a “debt” in the sense contemplated by the Prescription Act. In our law, prescription generally runs against actionable debts or obligations. A claim by an owner to recover her property is sui generis and not readily classified as a debt susceptible to the short prescription period. Second, even if prescription were applicable, the applicants submit that prescription could not begin to run until they became aware of the cause of action and, crucially until the fraudulent court orders were rescinded. It was argued that as long as the Magistrates’ Court orders of 2008 remained extant, the applicants were legally constrained from successfully vindicating their title – a concept sometimes expressed by the maxim that a court order, even if wrongly granted, remains valid until set aside. Only once those orders were set aside in December 2009 and once the true state of affairs was discovered by the applicants could they effectively pursue their claim. They further point out that they did take action by 2011, securing an interdict, and the matter has been in continuous contestation through various proceedings, which would interrupt prescription in any event. Having considered the arguments and the evidence, I am satisfied that prescription does not operate to defeat the applicants’ claim. In the first place, the underlying right asserted by the applicants is ownership of immovable property. The applicants seek declaratory and vindicatory relief to enforce their real right in the property. Such a claim is distinct from a personal debt. Superior courts have emphasized that for prescription to begin to run, there must be a “debt” due – i.e. an obligation owed by one party to another, and that the creditor must have knowledge of the debtor and the facts giving rise to the debt. In Syfin Holdings Ltd v Pickering 1982 (1) ZLR 10 (SC), it was made clear that prescription cannot begin to run against a creditor until the cause of action is complete and actionable, and known (or reasonably knowable) to the creditor. In the present case, the applicants could not have acted earlier than they did, because the fraudulent transfers were carried out clandestinely and under colour of court orders. The applicants only discovered the transfer to Madziva in late 2009, and they moved swiftly to challenge it. Furthermore, even after discovery, they faced the hurdle of existing court orders which had to be nullified before approaching this Court. It is settled law that once a default judgment is rescinded, the consequences thereof fall away. Until the magistrates’ default judgments were set aside, the applicants were effectively unable to assert their title, since any High Court action would have collided with an extant court order. They acted prudently by first rescinding those orders. Even calculating from the rescission in late 2009 or the interdict in 2011, this application (filed in 2023) comes after a lengthy delay. However, I accept that much of that delay is explained by ongoing litigation (including a protracted fight over related subdivided stands in the same Quinnington property, which was only concluded by the Supreme Court in 2018, as will be noted later) and by the practical challenges of the applicants being abroad. In any event, the respondents bear the onus to establish prescription (both the date of the cause of action’s accrual and the lapse of the full prescriptive period). They have not discharged that onus on the facts of this case. Moreover, given the nature of the relief (declaratory of rights in property), I am not convinced that the Prescription Act’s limitation provisions even squarely apply. The Supreme Court has sanctioned a “ruthless vindication” of ownership rights even after considerable passage of time, especially where an owner did not through their own inactivity enable the loss of the property. I therefore find that the claim is not prescribed. The point in limine is dismissed. Material Disputes of Fact The respondents next contended that there are material disputes of fact incapable of resolution on the papers, rendering the application procedurally improper. They argue that the matter involves allegations of fraud and questions of the third respondent’s knowledge or bona fides, which would require oral evidence and cross-examination to resolve. In their view, the applicants ought to have proceeded by action (summons) so that these factual issues could be tried in the ordinary way. The respondents did not, however, identify any specific factual assertion by the applicants that they meaningfully dispute; rather, their point is a general one that any fraud case is too complex for motion proceedings. It is trite that not every factual dispute will preclude a court from deciding a matter on affidavit. A respondent who alleges that a real, material dispute exists must clearly identify the disputed facts and show their materiality. Vague or unsubstantiated claims of “dispute” are insufficient. The courts have often emphasized that a party seeking to rely on a material dispute of fact must demonstrate a bona fide dispute of substance – a real conflict of evidence on a fact essential for the determination of the case. In Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S), it was held that a respondent must allege facts which, if proved at trial, would entitle it to judgment in its favor, in order to defeat a motion on this ground. Similarly, in Supa Plant Invest (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H), a “material dispute of fact” was described as one where the court is unable to resolve the conflict on the affidavits without vivâ voce evidence. In casu, the core facts underpinning the applicants’ case are not in genuine dispute. The chain of title and the sequence of events are a matter of record, supported by documentary evidence (copies of court orders, deeds, agreements, etc.) that the respondents themselves have not seriously gainsaid. The second and third respondents do not deny that Madziva obtained a default judgment and had the property transferred to himself and then to Plotmart and eventually to Chigunduru. They do not deny that the initial court orders were rescinded for fraud. They do not assert, for example, that Mavis actually signed the 1999 agreement of sale, or that the applicants somehow authorized these transactions. In fact, the third respondent’s defense is largely a legal one – he claims to be an innocent purchaser who acquired title lawfully from Plotmart. That is a question of law (whether an innocent purchaser is protected in these circumstances), not a factual dispute. There is accordingly no material dispute of fact requiring the hearing of oral evidence. To the extent that certain facts could be considered in dispute, they are either not genuine or not material. For instance, whether the third respondent was subjectively aware of the fraud is not decisive of the applicants’ vindicatory claim (as will be discussed on the merits), because even an innocent purchaser’s title may be invalidated if it was derived from a void transaction. The resolution of this matter hinges on legal principles applied to largely common cause facts. It is also noteworthy that the respondents themselves did not move for a referral to trial or for cross-examination on any affidavit. They seemed content to have the court decide the matter on the affidavits (should their limine points fail), which undermines the suggestion that live evidence was truly needed. In sum, I find that this application is properly capable of determination on the papers. There is no genuine material dispute of fact that would warrant dismissal of the application or conversion to action. This point in limine is therefore without merit and is dismissed. Security for Costs The second respondent also raised, as a preliminary issue, that the applicants should have furnished security for costs before instituting these proceedings. It was alleged that all the applicants are foreigners permanently resident in the United Kingdom, with no assets in Zimbabwe, and thus in terms of Rule 75 of the High Court Rules, 2021, they ought to give security to cover any adverse costs order. Indeed, the second respondent served a Notice of Demand for Security for Costs requiring the applicants to post security in the sum of US$80,000 (being US$20,000 for each applicant). The applicants opposed that demand, and no security was tendered. In their opposing papers, the applicants disputed the factual premise of this point. They averred that they are not foreigners at all, but citizens of Zimbabwe, even if they are presently resident abroad. They attached evidence of their national identity numbers to confirm they are Zimbabwean by citizenship. Moreover, they pointed out that the fourth applicant (Tanaka Femi Idehen) owns unencumbered immovable property in Harare, which could satisfy any costs order. Thus, the applicants argued that the rationale for security (to ensure a resident defendant is not left without recourse to costs) does not apply here. Finally, they contended that a failure to tender security ab initio is not a bar to filing proceedings – rather, the Rules provide a mechanism for the Registrar or Court to determine security if demanded. Since the applicants formally opposed the demand for security on valid grounds, they took the position that the matter was properly set down notwithstanding the unresolved security dispute. I agree with the applicants that this point cannot succeed. The purpose of Rule 75(1) is to protect a defendant (or respondent) from the risk of a non-resident plaintiff who might leave the jurisdiction without paying costs if ordered. The rule is not meant to be used oppressively to shut the door on bona fide litigants. In the present case, the applicants have shown that they are citizens of Zimbabwe, even if living abroad. Citizenship is a strong indication of lasting connection to the jurisdiction. Additionally, the uncontroverted evidence is that the applicants (through the fourth applicant) own a house in Harare, which stands as tangible security for any costs that might be awarded against them. In such circumstances, our courts have held that an order for security is not warranted. Moreover, the second respondent’s demand was properly contested by the applicants through correspondence, and the second respondent did not pursue a formal application to compel security. Instead, they rolled the issue into this point in limine. Given the information provided, I am satisfied that the applicants have sufficient connection and assets in Zimbabwe such that security for costs is unnecessary. It would not be just to require four individuals – asserting their rights in a family property allegedly taken by fraud – to post a prohibitive sum of $80,000 as a condition to be heard. The High Court Rules vest the court with a discretion in this matter, and in my view the discretion should be exercised in the applicants’ favour on the facts of this case. The point in limine is therefore resolved against the respondents. Locus Standi of the Applicants The respondents initially took issue with whether all of the applicants have the requisite locus standi to bring this application. In particular, it was argued that the first applicant, Mavis, having donated the property to her children in 2003, no longer has a direct interest in the property and thus “seeks relief on behalf of others.” Conversely, it was also suggested that the fourth applicant, Osaretin, had no direct interest at the time of the fraud (possibly because she was not yet a registered co-owner in 2008, or was a minor) and therefore her presence as an applicant was questioned. The contention was that the first applicant is non-suited (lacks standing) since the real owners are the second – fourth applicants, and that the fourth applicant in turn was not an owner when the cause of action arose. However, it must be noted that counsel for the respondents did not press this point strongly at the hearing. In the second respondent’s heads of argument, it was candidly admitted that, in light of the joinder of the children as co-applicants, any issue about the first applicant’s standing is largely academic. Similarly, the respondents did not squarely raise a locus objection to the fourth applicant in their pleadings, aside from a procedural quibble about her having deposed to the founding affidavit from abroad. In any event, I am satisfied that all four applicants have a direct and substantial interest in the subject matter and thus have standing. The first applicant, although she transferred her title to her children, is the person who originally held the right of pre-emption and who was defrauded by Madziva’s machinations. She certainly has an interest in seeing the property restored to her family and in the undoing of the fraud perpetrated upon her. Our law recognizes that a person with a legal interest in the validity of a transaction or in the outcome of litigation has standing, even if that interest is shared with others. The second, third, and fourth applicants, for their part, are the grantees in the 2003 Deed of Transfer – the very parties whose title was nullified by Madziva’s fraudulent court orders. They unquestionably have locus standi as the prima facie rightful owners of the property. The slight confusion regarding the fourth applicant likely arises from the chronology – perhaps at the time of donation in 2003, the fourth applicant was an infant and title may have been held on her behalf. Regardless, she is a member of the class of beneficiaries (the Idehen children) for whom the property was intended, and she has since attained majority. No prejudice arises from her being cited as an applicant. In fact, to avoid multiplicity of suits, it is preferable that all persons who claim an interest in the property are before the Court. That is the case here. The technical objections on locus standi are thus devoid of merit. Misjoinder or Nonjoinder The respondents raised a related point of misjoinder, suggesting that certain parties have been improperly or unnecessarily joined. It was not entirely clear whether this argument was directed at the applicants (as discussed above) or at some of the cited respondents (such as the Master or Sheriff). To the extent the joinder of official respondents was criticized, I find no irregularity. The fourth, fifth, and sixth respondents (Registrar of Deeds, Master, and Sheriff) are cited in their official capacities to ensure that effective relief can be granted. The Registrar of Deeds is a necessary party in any litigation seeking cancellation or amendment of title deeds; similarly, the Sheriff may be needed to execute transfer or eviction orders, and the Master oversees any implications for the deceased estate. Their joinder is prudent and indeed common practice in matters of this nature. There is no prejudice to any party by their inclusion – the official respondents have largely chosen to abide the court’s decision. Moreover, Rule 32 of the High Court Rules (formerly Order 13 r 87) explicitly provides that no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party, and the court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Even if one were to conclude that any particular respondent was not a necessary party, that would not be a ground to dismiss the application. The appropriate course would simply be to not grant any relief against that party, or to formally strike out or excuse their citation. In this case, I see no need to do so. All the parties who might have an interest (even peripherally) are before the Court, and that will facilitate a holistic resolution. I therefore find no misjoinder that prejudices the respondents. This point in limine is also dismissed. Propriety of Declaratory Relief Procedure Finally, the respondents argued that the applicants adopted an improper procedure by proceeding via a declaratory application. They contend that the applicants are in substance seeking a rei vindicatio (recovery of property) and other consequential relief, and that this should have been done by way of a direct application for vindication or an action, rather than a declaratory order. The second respondent complained that because title is formally registered in the third respondent’s name, it is “improper” for the applicants to seek a declaration that they (the applicants) are the true owners. The argument went so far as to suggest that granting a declaratory order in these circumstances would result in conflicting judgments – the Magistrates’ Court order (before it was rescinded) had allowed transfer to Madziva, whereas the High Court would be declaring the transfer invalid. The respondents also asserted that the applicants should have first obtained rescission of the default judgment (which in fact they did, in 2009) and that a declaratory is only appropriate if no other remedy exists. In essence, the respondents maintained that the applicants’ use of a declaratory application under s 14 of the High Court Act was irregular and that the court should refuse to entertain it, directing the applicants to some other form of proceeding. This Court finds no merit in the objection to the chosen procedure. Section 14 of the High Court Act [Chapter 7:06] explicitly empowers this Court, “in its discretion, at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any consequential relief upon such determination.” The applicants are unquestionably “interested persons” asserting an existing right – namely the right of ownership of immovable property. The relief they seek (a declaration of rights in the property and cancellation of certain title deeds) is relief that this Court is competent to grant on a declaratory application. There is nothing “improper” or irregular about proceeding in this manner. On the contrary, where the facts are largely common cause and the dispute turns on legal questions, a motion for declaratory relief is an efficient and appropriate vehicle. The respondents’ contention that the applicants should have “simply made an application for vindication” is semantic – the applicants are in effect vindicating the property, and they have coupled the declaratory relief with the necessary consequential orders (cancellation of deeds, eviction, etc.). This is entirely in line with the court’s powers. The spectre of “two conflicting judgments” raised by the respondents is misplaced. The Magistrates’ Court judgments from 2008 were rescinded and are of no force. There is therefore no risk of an extant judgment contradicting a declaration of rights by this Court. Even if those orders were still standing, this Court, as a superior court, would be entitled to examine the underlying rights of the parties and to set aside any transfer that was procured via fraud. In any event, that conflict does not arise here because the fraudulent orders have been nullified. It is also noteworthy that declaratory orders have been granted in numerous cases in this jurisdiction to resolve disputes of title or other rights – even by way of motion proceedings – where such disputes can be determined on the papers. The respondents’ own heads of argument acknowledge that the High Court is the correct forum to declare rights in property. Thus, there is no procedural impropriety. I am fortified in this view by the principle that this Court has full original jurisdiction over all civil matters (High Court Act s 13). So long as the applicants demonstrate a clear right and a legitimate interest in the relief, the Court may grant a declaratory order to resolve the controversy. That is indeed the case here. Consequently, the point in limine regarding the propriety of declaratory relief is also dismissed. Having disposed of all the points in limine against the respondents, I turn now to consider the substantive merits of the application. On the merits, the essential issue is who is the true owner of the property and whether the applicants are entitled to recover it given the history of fraudulent transfers and an innocent purchaser in possession. The applicants’ case is straightforward: they contend that the various transactions by which the property left their hands were void ab initio due to fraud, and therefore no real rights ever passed to Madziva, Plotmart, or Chigunduru. Consequently – so the argument goes – the applicants (particularly the second – fourth applicants, in whose names Deed 351/2003 was registered) remained the lawful owners throughout, and they are entitled to vindicate the property from whoever holds it. The relief sought is effectively the rei vindicatio, which our law accords to an owner to recover her property from any person in possession or holding title without the owner’s consent. It is important to recall some fundamental principles of property law that govern this case. Firstly, ownership is sacrosanct: an owner cannot be deprived of her property without her consent or due process of law. This is captured in the maxim nemo plus iuris transferre potest quam ipse habet – one cannot transfer more rights than one has. If a transferor has no title or defective title, he cannot confer good title on a transferee. Secondly, where a transfer of property is procured by fraud (such as by forged documents or perjured court orders), the transfer is a nullity. No valid real right passes to the fraudulent transferee or to subsequent transferees who derive title through that fraud. In Shana & Ors v Abdul & Ors 1990 (2) ZLR 129 (HC), the court noted that a person who obtains property through fraud never acquires lawful title, and hence anyone claiming through him also never acquires valid title – the property remains owned by the original owner, who is entitled to vindicate it. Our Supreme Court has emphatically endorsed what it termed the “ruthless vindication” of an owner’s rights in such circumstances. In Nzara & Ors v Kashumba N.O. & Ors SC 18/2018, a case with strikingly similar facts involving the same property, the Supreme Court held that once it was found that the appellants were the true owners, the court was bound by law to vindicate their title. It was observed that “the law calls for ruthless vindication and protection of the right of ownership”, and that there are no equities to override the owner’s rights. The court in that case further noted that it has no equitable jurisdiction to refuse vindication or to prefer an innocent purchaser over the defrauded owner. Applying those principles to the present case, it is abundantly clear that the applicants’ vindicatory claim must succeed. The late Wilson Madziva acquired the property through fraud and perjury; as such, he never obtained any valid title. The Magistrates’ Court orders he misused have been set aside, meaning there is not even a veneer of legality to his deed. Even before rescission, the orders were obtained by fraud, which means they were voidable and indeed void ab initio once nullified. Accordingly, when Madziva purported to transfer the property to Plotmart Trading (second respondent), he transferred nothing of lawful substance – nemo dat quod non habet. Plotmart Trading, in turn, could not transfer valid title to the 3rd respondent, Mr. Chigunduru. The net result is that the property remained vested in the applicants by operation of law. In truth, the real rights of ownership never left the sphere of the applicants, because all intermediate transactions were nullities. The fraudster Madziva never validly acquired title in the property in question, and hence [the subsequent purchaser] never validly acquired title. The property, therefore, still belongs to the applicants. Effect of Prior Fraudulent Transfers The respondents have argued that the third respondent is an innocent purchaser for value, and that it would be inequitable to dispossess him of the property after all these years. There is no reason to doubt that the third respondent was not complicit in Madziva’s fraud. He appears to have bought the land from Plotmart Trading in good faith, paying the purchase price, and obtained transfer in the ordinary course. One may indeed empathize with his position – through no fault of his own, he stands to lose the property (and whatever money he paid for it) due to Madziva’s scheme. However, the law is not on the third respondent’s side in this scenario. Our law jealously guards the rights of the true owner. It permits an owner to recover her property even from a good-faith purchaser. In the oft-cited South African case of Chetty v Naidoo 1974 (3) SA 13 (A) (approved in many Zimbabwean decisions, including Mashave v Standard Bank of SA Ltd 1998 (1) ZLR 436 (S), it was affirmed that an innocent purchaser’s only possible defence to a rei vindicatio is estoppel – i.e. if the owner by his own conduct or representations misled the purchaser into believing the transferor had authority. Estoppel in this context requires that the true owner has done something to create an appearance of consent or true title in the fraudulent seller. In the present case, there is no basis for an estoppel against the applicants. The fraud was perpetrated entirely without the applicants’ involvement. They did absolutely nothing to represent to anyone that Madziva (or Plotmart) was the owner or had authority to sell the property – indeed, at all material times the applicants were unaware of the machinations. The 3rd respondent did not rely on any representation by the applicants; he relied on the Land Registry records, which were themselves tainted by fraud. In short, the applicants were victims and made no misrepresentation that could deprive them of their rights. Therefore, even though the 3rd respondent may have been a bona fide purchaser and even if he paid fair value, he has no legal answer to the owner’s vindicatory claim. The Supreme Court in Nzara v Kashumba (supra) confronted a similar plea by an innocent buyer who had developed the land and paid value, and nonetheless ruled that the harsh outcome – the loss of the property by the innocent party – is sanctioned by law, given the greater imperative of protecting lawful ownership. The Court expressly stated that there is no equitable power to allow the innocent purchaser to keep property belonging to someone else, absent an estoppel scenario. To sum up, the fraudulent transfers in 2008–2011 have no legal effect against the applicants. Those transfers are null and void ab initio. It follows that the Deed of Transfer No. 351/2003 (by which the property was vested in the second – fourth applicants) remains the operative title. Although that deed was cancelled of record pursuant to Madziva’s fraud, this Court will by order direct that it be reinstated. The estate of the late Madziva (first respondent) has no rights in the property – the late Madziva never lawfully owned it, and upon his death it was not an asset transmissible to his estate. The second respondent, Plotmart Trading, likewise obtained nothing except perhaps potential personal rights against Madziva (if, for instance, it paid him for the property – though it appears to have been a creature of Madziva himself). Plotmart’s title must be cancelled. The third respondent’s registered title is the final link in the poisoned chain and must also be cancelled. The innocent third respondent is not without any remedy: he may have a personal claim for reimbursement against those who sold him the property (perhaps against Plotmart or the estate of Madziva). But that is a separate matter. As far as real rights in the land are concerned, the law is clear that the applicants’ rights prevail over all others. I therefore conclude that the applicants (specifically the second, third and fourth applicants, being the successors in title under Deed 351/2003) are the rightful owners of the property. The effect of this finding is that the applicants are entitled to all the incidents of ownership, including the right to exclusive possession of the property and the right to have the deeds registry reflect their title. Relief to be Granted Given the above conclusions, the appropriate relief is a declaratory order confirming the applicants’ ownership and orders nullifying the fraudulent transfers and restoring the status quo ante. The applicants’ draft order seeks a comprehensive suite of remedies, and the Court is satisfied that these are warranted. In particular, it is necessary to order the cancellation of the successive title deeds: the deed in the late Madziva’s name (Transfer No. 6519/2008), the deed in Plotmart Trading’s name, and the deed in Peddy Chigunduru’s name. The Registrar of Deeds will be directed to cancel those deeds and to reinstate Deed No. 351/2003 (or otherwise register the property in the names of the second – fourth applicants). As a practical measure, the Sheriff of the High Court will be authorized to sign any documents that may be required to give effect to the order (for example, if Plotmart or the third respondent fail to sign consent papers for cancellation of title, the Sheriff may sign in their stead). The applicants also seek an order for the eviction of the third respondent (or anyone claiming occupation through him) from the property, to ensure vacant possession. The third respondent has not indicated that he is presently residing on the land – indeed, it was stated that the property is undeveloped land – but to avoid doubt an eviction order will be granted, enforceable if he or his agents are on the property. The order will allow a reasonable period (30 days) for voluntary vacation before forcible eviction by the Sheriff. Finally, on the issue of costs: the general rule is that costs follow the result. The applicants have substantially succeeded and are entitled to their costs. The second and third respondents, having actively opposed the application, shall bear the costs. In view of the reprehensible nature of the fraud that gave rise to this case, one might have considered a punitive order against those responsible. However, the true culprit (Madziva) is deceased, and there is no evidence that the third respondent acted in bad faith in litigating – he raised legal defenses (albeit unsuccessful) to protect what he thought was his property. The second respondent’s conduct is more opaque (we do not know its level of complicity or otherwise), but no specific prayer for punitive costs was made against it. I will therefore award costs on the ordinary scale, jointly and severally between the opposing respondents. The first, fourth, fifth, and sixth respondents did not meaningfully participate in the opposition, and no costs are sought against them. Before setting out the order, I observe that this outcome, while legally correct, is undoubtedly harsh on the third respondent. He stands to lose the property he paid for, illustrating the cruel effect of fraud on innocent parties. However, as the Supreme Court noted, “the law calls for ruthless vindication” of ownership in such cases. The courts cannot validate a fraud or allow the interests of an innocent purchaser to override the rights of an owner who was blameless. The only solace for the third respondent is that he may pursue remedies against those who misled him. This judgment, hopefully, also serves as a cautionary tale underscoring the need for due diligence in property transactions and perhaps for systemic measures to prevent fraudulent property transfers. Accordingly, it is ordered as follows: The second, third and fourth applicants (Arrola Takudzwa Tendai Idehen, Omosogie Rudo Idehen, and Osaretin Tanaka Femi Idehen) are hereby declared the lawful owners of the immovable property known as the Remainder of Subdivision A of Subdivision F of Quinnington of Borrowdale Estate, Harare. The following transfers and title deeds are declared null and void ab initio and are hereby set aside: The deed of transfer in the name of the late Wilson Madziva (Deed No. 6519/2008) purporting to transfer the property to himself. The deed of transfer in favour of Plotmart Trading (Private) Limited by which the property was transferred from the late Wilson Madziva to the second respondent. The deed of transfer in favour of Peddy Hillarious Chigunduru by which the property was transferred from the second respondent to the third respondent (Deed No. .../2011). The Registrar of Deeds, Harare is directed to reinstate Deed of Transfer No. 351/2003, dated 31 January 2003, into the names of Arrola Takudzwa Tendai Idehen, Omosogie Rudo Idehen, and Osaretin Tanaka Femi Idehen or to otherwise register the property in their names as the lawful titleholders. The Registrar of Deeds shall make all necessary endorsements in the registers to give effect to paragraph 2 above and to restore the applicants’ title. In the event that any person or entity currently reflected as holding title to the property (or any other necessary party) fails or refuses to sign the documents required to effect the cancellations and transfers ordered above, the Sheriff of the High Court is hereby authorized to sign such documents in that person’s stead. The Registrar of Deeds shall accept and act upon any documents so signed by the Sheriff as if they were signed by the person properly concerned. The third respondent, Peddy Hillarious Chigunduru, and all persons claiming occupation through him, are hereby ordered to vacate the property and surrender vacant possession to the applicants within 30 days of the date of this order. Failing compliance with this paragraph, the Sheriff of the High Court or his lawful deputy is authorized and directed to evict the third respondent and any such persons from the property and to give the applicants peaceful and vacant possession thereof. The second and third respondents shall jointly and severally pay the applicants’ costs of suit, the one paying the other to be absolved. Katiyo J: ………………………………………………… Messrs Machingura Legal Practice, applicant’s legal practitioners Mawere & Sibanda, second respondent’s legal practitioners Madotsa & Partners, third respondent’s legal practitioners

Judgment

IDEHEN and OTHERS v NHEMWA N.O and OTHERS (449 of 2025) [2025] ZWHHC 449 (29 July 2025)

Headnotes

Judgment

Similar Cases

Discussion

IDEHEN and OTHERS v NHEMWA N.O and OTHERS (449 of 2025) [2025] ZWHHC 449 (29 July 2025)

Headnotes

Judgment

Similar Cases

Discussion