TSHEPO PROPERTIES (PVT) LIMITED v FELIX SENGUDZWA and OTHERS (421 of 2025) [2025] ZWHHC 421 (15 July 2025)

2 HH 421-25 HCH 7463/23 TSHEPO PROPERTIES (PVT) LIMITED versus FELIX SENGUDZWA and THAMARI SENGUDZWA and CROWHILL FARM (PVT) LIMITED and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE TAKUVA J Harare, 04 July 2024 & 15 July 2025 Opposed Application for a Declarator Y M Chigodora for the applicant S Nyawo for the 1st and 3rd respondents No appearance from the 2nd and 4th respondents TAKUVA J: This is a court application for a declarator and ancillary relief. Through this application, the applicant requests the Court to declare it the lawful holder of rights to an undivided 0.0298% share, specifically share number 370, in Lot 3 of the Borrowdale Estate. FACTUAL BACKGROUND Applicant’s Case In its founding affidavit, the applicant states that it acquired title to Stand 3704, Lot J, Borrowdale Estate, in June 2010. It claims that in 2020, it discovered that the first respondent was occupying the property without authorization. Despite multiple requests to vacate the premises, the first respondent allegedly refused to comply. The applicant further states that its legal representatives issued a formal demand for the first respondent to vacate the property, but this was ignored. Consequently, the applicant initiated eviction proceedings against the 1st respondent in the Magistrates' Civil Court under case number HRE C-CG2692/22, resulting in a default judgment on 21 November 2022. Subsequently, the first respondent filed an application to rescind the default judgment, which was served on the applicant on 20 February 2023. Upon reviewing the rescission application, the applicant discovered that a Deed of Transfer exists in favor of both the first and second respondents, granting them rights over the same property. In light of the conflicting claims to ownership, the applicant argues that it is necessary for the Court to clarify the parties’ respective rights and to invalidate the title held by the first respondent. As such, the applicant seeks a declaratory order confirming its ownership of the disputed stand. In his opposing affidavit, the first respondent raises several points in limine. He argues that the applicant's application is fundamentally flawed. Specifically, he contends that there is no valid founding affidavit before the court because it lacks the necessary commissioner of oaths stamp, rendering the affidavit uncommissioned. The affidavit only bears the deponent's signature on the lines where a commissioner of oaths should have signed, but it is not stamped. The first respondent also claims that Annexure “A” which is the resolution, is defective, as it is neither signed by the chairman nor dated. He further argues that no evidence of authority for the deponent to swear the affidavit has been submitted, meaning the deponent is acting without proper authorization, effectively on a frolic of his own. Additionally, the first respondent points out that the applicant’s company address at the bottom of Annexure “A”, listed as 3703 Crowhill Estate, corresponds to a vacant stand next to the first respondent's property which is stand 3704 Crowhill Estate, which raises concerns about the accuracy of the address. The first respondent also alleges improper service of the application, stating that it was served on his 12-year-old daughter. Given her age, he argues that she was too young to properly receive or understand the significance of the court papers. He contends that this constitutes improper service and, as a result, the application is defective. Furthermore, the first respondent asserts that the applicant has used the wrong legal procedure. He argues that the case presents issues that cannot be resolved solely on the papers, as there are competing claims to ownership of the property. Both the applicant and the first together with the second respondent claim to hold valid Deeds of Transfer, and therefore both parties assert ownership of the land. In light of these objections, the first respondent submits that the applicant’s application should be dismissed, and that the applicant should be ordered to pay costs on a higher scale. On the merits of the case, the first respondent argues that the Deed of Transfer is in favor of both the first and second respondents. He claims that while the first and second respondents developed the property, the applicant failed to take any action or show interest in the property. According to the first respondent, the applicant acquired the title in 2010 but neglected the property until 2020, while the first and second respondents obtained the stand in 2011 and began developing it. The first respondent asserts that had the applicant made any efforts to develop the property, it would have become clear to the first and second respondents that the property might be part of another estate. He argues that the applicant’s ten-year abandonment of the property should be held against it, as such neglect is inconsistent with the actions of a vigilant property owner. The 1st respondent contends that the applicant cannot now seek protection of its rights after abandoning the property for over a decade. The applicant’s actions, only resurfacing in 2020 and initiating eviction proceedings in November 2022, are seen as detrimental to the applicant's claim. The 1st respondent further argues that the applicant’s failure to inspect the property during this period, especially while construction was underway, is significant. If the applicant had conducted even basic annual checks, it would have noticed that the first and second respondents were actively building a structure on the land. Such diligence, according to the first respondent, could have prevented the current dispute, as it would have made it clear that the respondents were developing the land while the applicant did nothing. The first respondent claims that while the applicant neglected the property, the third respondent sold the same piece of land to the first and second respondents, who then developed it into a home. He argues that cancelling the first and second respondents’ ownership now would cause them significant harm, as they have invested substantial time and money into developing the property. A declaration in favor of the applicant would result in severe financial prejudice for the respondents and would essentially strip them of what they have rightfully developed. The first respondent also highlights the applicant’s failure to notice the construction happening on the neighboring stand, 3704 Crowhill Estate, even though the applicant claims that Stand 3703 Crowhill Estate is its office address. He finds it inconceivable that the applicant could operate from a neighboring stand for ten years and not observe the ongoing construction on the adjacent property, especially if it claims to hold title to it. Given that the applicant has held title since 2010 and is allegedly aware of the development next door, the first respondent argues that the applicant is estopped from claiming ownership of the property now. The applicant’s inaction over the years has allowed the first and second respondents to labor under the belief that they were the rightful owners, and the applicant could have, within a reasonable time, notified them of the existence of a competing deed in its favor. Instead, the applicant chose not to intervene, allowing the respondents to invest in the property. To this end, the first respondent prays that the applicant’s application be dismissed. The second respondent in her opposing affidavit states that she has read the affidavit of the first respondent in this application and wishes to associate herself fully with the contents therein. Wherefore she prays that the application be dismissed. Points in limine Whether there is a valid founding affidavit before the court The first respondent contends that there is no founding affidavit before the court. This is because the affidavit is not stamped by a commissioner of oaths, thus it is regarded as uncommissioned. The first respondent buttresses this point by stating that in the absence of a stamp by a commissioner of oaths there is no affidavit as there remains no other way that the respondents and the court can know who exactly commissioned the affidavit and whether or not they are indeed a commissioner. This therefore renders the application fatally defective and warrants its dismissal. This is in line with the well-known principle of law that an application stands or falls on its founding affidavit. In Prosecutor General v Makarichi and 2 Others (502 of 2023) [2023] ZWHHC 588 p.6 the court noted the following; “In a nutshell, care should have been taken in composing the supporting affidavits and in ensuring that they were properly deposed to. The dates and places of such depositions should have been clearly reflected as well as the respective identities of the commissioners of oaths and the offices or capacities of the persons in terms of which they acted as commissioners of oaths. For example, if a person is a commissioner of oaths by virtue of being a duly admitted and practising notary public in Zimbabwe, the following information would be reflected on the commissioner of oaths’ stamp: his or her full name, that the person is a legal practitioner, conveyancer (if such be the case), notary public and commissioner of oaths. The description as notary public would be evidence that the person signed the affidavit as an ex officio commissioner of oaths. For certainty, such thorough commissioners of oaths would also reflect, on their stamp, the law firms under which they practice their profession and their physical address. Immediately above the designation of the commissioner of oaths, the commissioner would then append his or her signature.” From the above, the Court clearly pointed out that for an affidavit to be said to be properly deposed, there should be a stamp from the commissioner of oaths reflecting that commissioner’s full name, their capacity, their physical address as well as the entity under which they practice their profession. In casu, the applicant acknowledges to have noted this anomaly and rectified it on the same day that the initial founding affidavit was uploaded. The applicant avers that the scanner that was initially used to scan the documents was a black and white scanner which did not read any other colour except black and white. Upon realization that other colours on the application were not reflecting on the scanned application, the applicant scanned the application again with a different scanner which could scan all colours. The colour scanned application was uploaded again and stamped on the same day by the Registrar of the High Court and is now part of the record. This point in limine is therefore dismissed. Whether serving a minor with court papers constitutes improper service The first respondent contends that the application was served on his minor child who is only twelve years old and recently sat for her grade seven examinations. Rule 15 (13)(b) of the High Court Rules 2021 states that: Service of any other process of the court may be affected in one or other of the following matters – (b) by delivering a copy thereof on a responsible person at the place of residence or business or employment of that person, who shall be apparently in charge of the premises at the time of the delivery being a person apparently not less than sixteen years of age ………. From the above, it is clear that serving court papers on a child below the age of sixteen years constitutes improper service. The child is deemed to be too young to receive court papers or to properly comprehend and appreciate the effect and import of these proceedings. Proper service is a jurisdictional prerequisite for the matter to be properly before the court. Failure to serve the court process in accordance with the rules renders the application fatally defective and liable to be dismissed. The applicant cannot rely on such an irregularity to sustain proceedings against the respondents. It is trite law that where there has been no proper service, the court lacks jurisdiction over the respondents. Consequently, the application is not properly before the court and must be struck off the roll. Accordingly, the point in limine is upheld. In the result, I make the following order: (1) The application be and is hereby struck off the roll with costs. TAKUVA J……………………………….. MD Hungwe Attorneys at Law, applicant’s legal practitioners Nyawo Ruzive Attorneys, first and third respondent’s Legal Practitioners 2 HH 421-25 HCH 7463/23 2 HH 421-25 HCH 7463/23 TSHEPO PROPERTIES (PVT) LIMITED versus FELIX SENGUDZWA and THAMARI SENGUDZWA and CROWHILL FARM (PVT) LIMITED and REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE TAKUVA J Harare, 04 July 2024 & 15 July 2025 Opposed Application for a Declarator Y M Chigodora for the applicant S Nyawo for the 1st and 3rd respondents No appearance from the 2nd and 4th respondents TAKUVA J: This is a court application for a declarator and ancillary relief. Through this application, the applicant requests the Court to declare it the lawful holder of rights to an undivided 0.0298% share, specifically share number 370, in Lot 3 of the Borrowdale Estate. FACTUAL BACKGROUND Applicant’s Case In its founding affidavit, the applicant states that it acquired title to Stand 3704, Lot J, Borrowdale Estate, in June 2010. It claims that in 2020, it discovered that the first respondent was occupying the property without authorization. Despite multiple requests to vacate the premises, the first respondent allegedly refused to comply. The applicant further states that its legal representatives issued a formal demand for the first respondent to vacate the property, but this was ignored. Consequently, the applicant initiated eviction proceedings against the 1st respondent in the Magistrates' Civil Court under case number HRE C-CG2692/22, resulting in a default judgment on 21 November 2022. Subsequently, the first respondent filed an application to rescind the default judgment, which was served on the applicant on 20 February 2023. Upon reviewing the rescission application, the applicant discovered that a Deed of Transfer exists in favor of both the first and second respondents, granting them rights over the same property. In light of the conflicting claims to ownership, the applicant argues that it is necessary for the Court to clarify the parties’ respective rights and to invalidate the title held by the first respondent. As such, the applicant seeks a declaratory order confirming its ownership of the disputed stand. In his opposing affidavit, the first respondent raises several points in limine. He argues that the applicant's application is fundamentally flawed. Specifically, he contends that there is no valid founding affidavit before the court because it lacks the necessary commissioner of oaths stamp, rendering the affidavit uncommissioned. The affidavit only bears the deponent's signature on the lines where a commissioner of oaths should have signed, but it is not stamped. The first respondent also claims that Annexure “A” which is the resolution, is defective, as it is neither signed by the chairman nor dated. He further argues that no evidence of authority for the deponent to swear the affidavit has been submitted, meaning the deponent is acting without proper authorization, effectively on a frolic of his own. Additionally, the first respondent points out that the applicant’s company address at the bottom of Annexure “A”, listed as 3703 Crowhill Estate, corresponds to a vacant stand next to the first respondent's property which is stand 3704 Crowhill Estate, which raises concerns about the accuracy of the address. The first respondent also alleges improper service of the application, stating that it was served on his 12-year-old daughter. Given her age, he argues that she was too young to properly receive or understand the significance of the court papers. He contends that this constitutes improper service and, as a result, the application is defective. Furthermore, the first respondent asserts that the applicant has used the wrong legal procedure. He argues that the case presents issues that cannot be resolved solely on the papers, as there are competing claims to ownership of the property. Both the applicant and the first together with the second respondent claim to hold valid Deeds of Transfer, and therefore both parties assert ownership of the land. In light of these objections, the first respondent submits that the applicant’s application should be dismissed, and that the applicant should be ordered to pay costs on a higher scale. On the merits of the case, the first respondent argues that the Deed of Transfer is in favor of both the first and second respondents. He claims that while the first and second respondents developed the property, the applicant failed to take any action or show interest in the property. According to the first respondent, the applicant acquired the title in 2010 but neglected the property until 2020, while the first and second respondents obtained the stand in 2011 and began developing it. The first respondent asserts that had the applicant made any efforts to develop the property, it would have become clear to the first and second respondents that the property might be part of another estate. He argues that the applicant’s ten-year abandonment of the property should be held against it, as such neglect is inconsistent with the actions of a vigilant property owner. The 1st respondent contends that the applicant cannot now seek protection of its rights after abandoning the property for over a decade. The applicant’s actions, only resurfacing in 2020 and initiating eviction proceedings in November 2022, are seen as detrimental to the applicant's claim. The 1st respondent further argues that the applicant’s failure to inspect the property during this period, especially while construction was underway, is significant. If the applicant had conducted even basic annual checks, it would have noticed that the first and second respondents were actively building a structure on the land. Such diligence, according to the first respondent, could have prevented the current dispute, as it would have made it clear that the respondents were developing the land while the applicant did nothing. The first respondent claims that while the applicant neglected the property, the third respondent sold the same piece of land to the first and second respondents, who then developed it into a home. He argues that cancelling the first and second respondents’ ownership now would cause them significant harm, as they have invested substantial time and money into developing the property. A declaration in favor of the applicant would result in severe financial prejudice for the respondents and would essentially strip them of what they have rightfully developed. The first respondent also highlights the applicant’s failure to notice the construction happening on the neighboring stand, 3704 Crowhill Estate, even though the applicant claims that Stand 3703 Crowhill Estate is its office address. He finds it inconceivable that the applicant could operate from a neighboring stand for ten years and not observe the ongoing construction on the adjacent property, especially if it claims to hold title to it. Given that the applicant has held title since 2010 and is allegedly aware of the development next door, the first respondent argues that the applicant is estopped from claiming ownership of the property now. The applicant’s inaction over the years has allowed the first and second respondents to labor under the belief that they were the rightful owners, and the applicant could have, within a reasonable time, notified them of the existence of a competing deed in its favor. Instead, the applicant chose not to intervene, allowing the respondents to invest in the property. To this end, the first respondent prays that the applicant’s application be dismissed. The second respondent in her opposing affidavit states that she has read the affidavit of the first respondent in this application and wishes to associate herself fully with the contents therein. Wherefore she prays that the application be dismissed. Points in limine Whether there is a valid founding affidavit before the court The first respondent contends that there is no founding affidavit before the court. This is because the affidavit is not stamped by a commissioner of oaths, thus it is regarded as uncommissioned. The first respondent buttresses this point by stating that in the absence of a stamp by a commissioner of oaths there is no affidavit as there remains no other way that the respondents and the court can know who exactly commissioned the affidavit and whether or not they are indeed a commissioner. This therefore renders the application fatally defective and warrants its dismissal. This is in line with the well-known principle of law that an application stands or falls on its founding affidavit. In Prosecutor General v Makarichi and 2 Others (502 of 2023) [2023] ZWHHC 588 p.6 the court noted the following; “In a nutshell, care should have been taken in composing the supporting affidavits and in ensuring that they were properly deposed to. The dates and places of such depositions should have been clearly reflected as well as the respective identities of the commissioners of oaths and the offices or capacities of the persons in terms of which they acted as commissioners of oaths. For example, if a person is a commissioner of oaths by virtue of being a duly admitted and practising notary public in Zimbabwe, the following information would be reflected on the commissioner of oaths’ stamp: his or her full name, that the person is a legal practitioner, conveyancer (if such be the case), notary public and commissioner of oaths. The description as notary public would be evidence that the person signed the affidavit as an ex officio commissioner of oaths. For certainty, such thorough commissioners of oaths would also reflect, on their stamp, the law firms under which they practice their profession and their physical address. Immediately above the designation of the commissioner of oaths, the commissioner would then append his or her signature.” From the above, the Court clearly pointed out that for an affidavit to be said to be properly deposed, there should be a stamp from the commissioner of oaths reflecting that commissioner’s full name, their capacity, their physical address as well as the entity under which they practice their profession. In casu, the applicant acknowledges to have noted this anomaly and rectified it on the same day that the initial founding affidavit was uploaded. The applicant avers that the scanner that was initially used to scan the documents was a black and white scanner which did not read any other colour except black and white. Upon realization that other colours on the application were not reflecting on the scanned application, the applicant scanned the application again with a different scanner which could scan all colours. The colour scanned application was uploaded again and stamped on the same day by the Registrar of the High Court and is now part of the record. This point in limine is therefore dismissed. Whether serving a minor with court papers constitutes improper service The first respondent contends that the application was served on his minor child who is only twelve years old and recently sat for her grade seven examinations. Rule 15 (13)(b) of the High Court Rules 2021 states that: Service of any other process of the court may be affected in one or other of the following matters – (b) by delivering a copy thereof on a responsible person at the place of residence or business or employment of that person, who shall be apparently in charge of the premises at the time of the delivery being a person apparently not less than sixteen years of age ………. From the above, it is clear that serving court papers on a child below the age of sixteen years constitutes improper service. The child is deemed to be too young to receive court papers or to properly comprehend and appreciate the effect and import of these proceedings. Proper service is a jurisdictional prerequisite for the matter to be properly before the court. Failure to serve the court process in accordance with the rules renders the application fatally defective and liable to be dismissed. The applicant cannot rely on such an irregularity to sustain proceedings against the respondents. It is trite law that where there has been no proper service, the court lacks jurisdiction over the respondents. Consequently, the application is not properly before the court and must be struck off the roll. Accordingly, the point in limine is upheld. In the result, I make the following order: (1) The application be and is hereby struck off the roll with costs. TAKUVA J……………………………….. MD Hungwe Attorneys at Law, applicant’s legal practitioners Nyawo Ruzive Attorneys, first and third respondent’s Legal Practitioners