Mutigwa v Mathias and Another (419 of 2025) [2025] ZWHHC 419 (14 July 2025)

14 HH 419-25 Ref: HCH 1685/19 GETRUDE MUTIGWA Versus KENNEDY MATHIAS And THE MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS HIGH COURT OF ZIMBABWE CHIRAWU MUGOMBA J Harare, 1, 2, 9, 11, 14 July 2025. T. CHAKABVA, for the plaintiff P. KUFAZVINEI, for the 1st defendant No appearance for the 2nd defendant TRIAL CAUSE INTRODUCTION CHIRAWU MUGOMBA J: This matter epitomises the challenges bedevilling housing cooperatives in the acquisition of land and allocation of stands. The administrator of state land, being the 2nd defendant opted not to participate in the matter thus leaving the court to chart the maze and arrive at a decision. Pertinent to note is that the 2nd defendant was not a party initially but was joined through HCH 2235/21 on the 7th of July 2021. The two protagonists, that is the plaintiff and the first defendant are backed by two cooperatives respectively namely, Nyikavanhu Housing Cooperative, hereinafter, ‘ Nyikavanhu’, and Tongoville Park Housing Cooperative, hereinafter, ‘ Tongoville’, respectively. BACKGROUND The plaintiff issued summons against the 1st defendant seeking an order for eviction against him and all those claiming title through him from a property called stand number 13855, Eastview Park, Phase three, ‘ the stand’, and costs of suit. In her declaration she amplified her claim as follows. She is the registered owner of the stand having acquired it by virtue of being a member of Nyikavanhu. The stand was allocated to her in 2009 and she constructed a two bedroomed permanent structure. Sometime in 2015, the first defendant illegally took occupation of the same stand without authorization or the plaintiff’s consent. He proceeded to construct an illegal temporary structure without an approved plan. He purported to be a member of a cooperative that was allocated the stand by the City of Harare. Investigations carried out by the Ministry responsible for small and medium enterprises revealed that the defendant is not a registered member of any cooperative and he had enlisted his name for allocation of a stand through fraud. The plaintiff’s claim was later amended as follows after the joinder of the second defendant. She sought an additional order that the lease agreement entered into between the first and the second defendant in respect of the stand be declared null and void and therefore set aside. She also supplemented her declaration as follows. That the second defendant erroneously issued the first defendant with a lease for the property to which he was not entitled; that the City of Harare which was the allocating authority of the stands admitted the error and recommended that the first defendant’s lease be cancelled and that the Ministry of Women Affairs, Community Development and Medium Enterprises had in terms of s115 of the Cooperatives Societies Act [Chapter 24:05] had resolved the dispute. The first defendant pleaded to the original summons and declaration as follows. That the plaintiff is not the owner of the property. Instead it was owned by him by virtue of a lease agreement with the Ministry of Local Government Public Works and National Housing entered into in April 2016. Contrary to the plaintiff’s assertion, he was not an illegal occupier. He thus had no obligation to seek the consent of the plaintiff to occupy the property. He professed ignorance of the investigations conducted by the statutory bodies as claimed by the plaintiff. He further averred that the relief sought by the plaintiff was incompetent since he still held a lease and it had not yet been cancelled. The first defendant also supplemented his plea to answer the amended summons and declaration. He averred that the plaintiff had no locus standi to seek an order declaring the contract between himself and the Ministry null and void. She was not privy to the contract. The lease agreement was lawful and he had fulfilled the terms and conditions of the lease. There was no court cancelling the lease. Further that the Registrar of Cooperatives does not have jurisdiction to determine the matter since the plaintiff and the first defendant belong to different cooperatives. He discounted the issue of a double allocation by the second defendant since there is no relationship between the plaintiff and the second defendant. The plaintiff filed a replication to the following effect. That the first defendant’s lease is tainted as confirmed by an officer from the City of Harare Tafara district and that the Ministry responsible for Cooperatives had resolved the dispute in plaintiff’s favour. In a joint pre-trial conference minute, the parties identified the issues for trial as follows:- Does the plaintiff have the right to the relief sought in the summons?Does the first defendant have any right in the stand in issue?Does the plaintiff have any right to seek the relief of a declaratory against the first defendant’s lease agreement, is for is (sic) is the lease agreement valid? Who has better rights in the stand in issue, plaintiff or defendant? Plaintiff’s case The plaintiff testified that she joined Nyikavanhu as a member on the 9th of July 2009. She joined by completing a form and paying the sum of $1500. This money was for the stand. The form was completed in 2009 and payments commenced in 2012. She took occupation in 2015. She made payments through the Chairperson of Nyikavanhu. The money included a development fee to Urban Development Corporation( UDCORP). When she occupied the property, it was an open ground. She effected developments by constructing a two roomed permanent structure after being authorised by the City of Harare. Sometime in 2015, the first defendant also came to the property and built a two roomed structure. She took steps of protecting her rights through reporting the incursion by the first defendant to Nyikavanhu who came to the ground to ascertain what was going on. The first defendant failed to produce receipts to back his claim. The next port of was to the Cooperatives Society in Marondera. The first defendant refused to attend the meeting called to resolved the issue. The plaintiff thereafter went to the City Of Harare District office for Mabvuku/Tafara and made a report. Meetings were held with three officials who all concluded that the property belonged to the plaintiff and that the lease agreement given to the first defendant had been issued in error and was supposed to be cancelled. In support of her claim the plaintiff produced the following exhibits. Exhibit 0ne page record 43 is a beacon agreement form which shows the name of the plaintiff and the stand number of the property as being 13855. Exhibits 2.1-2.7-page record 54 -56 are receipts of payments to Nyikadzino in various amounts and 57-60 to UDCORP. Exhibit 3, page record 64 is a letter from the Ministry of Women Affairs, Community and SMEs Development Mashonaland East, captioned , ‘ Resolution over ownership of stand 13855 of Nyikavanhu Housing Cooperative in Caledonia between Getrude Mutigwa and Kennedy Mathias’. The gist of the letter is to the effect that the owner of the property is the plaintiff and instructing the first defendant in terms of s114 of the Cooperative Societies Act to vacate. Sanyika gave the following evidence. That he knows the plaintiff as a member of Nyikavanhu and this is because he is the Chairperson of that cooperative. It was registered on the 13th of September 2004 as supported by the registration certificate. The plaintiff was one of the first members to join and that was in the year 2012. As a member she was allocated the stand in dispute. The plaintiff also paid all the monies due for the stand. The stand was allocated to her from the Ministry of Local government through the Chairperson. He clarified that Nyikavanhu was found to be in good standing with the Ministry and hence it was given stands for allocation to its members. A document was availed to Nyikavanhu showing the stands and stand numbers. He made reference to a letter being exhibit number 5 appearing on pages 61-63. The letter is from the Harare Metropolitan Province (Ministry of Local Government, Rural and Urban Development). Page 62 of the letter shows that Nyikavanhu was allocated 308 stands being block 13623 to 13931. Stand 13855, falls in that block. He stated that he has no knowledge of the defendant. He is aware of the challenges in the area. He attributed this to the fact that the first defendant and his accomplices had invaded the area claiming to be members of a certain political party. Steps were taken by approaching the City of Harare and the Ministry. A letter was authored confirming that the stand belonged to the plaintiff. The role of the City Council of Harare is to administer the stands. When the plaintiff visited City of Harare Offices to have a lease done, she discovered that the first defendant had already been given a lease. This was a fraudulent act because the first defendant once he became aware that leases were being given, took it upon himself to get one but he knew very well that he was not entitled. After the City of Harare became seized with the dispute, they invited all parties to their offices. He made reference to a letter appearing on page 71 as exhibit number 6. The letter is addressed to a Mr Bare of the Tafara District office and it states that the plaintiff is a member of Nyikavanhu and the first defendant is not a member but is an intruder. City of Harare stated that the lease had been given to the first defendant in error. He referred to a letter from Mr Bare appearing on page 67 as exhibit number 7. The letter states that after a thorough investigation, cancellation of the lease agreement between the Ministry and the first defendant was recommended. Munetsi testified to the following effect. He is the acting District Officer for the City of Harare in the Tafara area. He is aware of the dispute over the stand. The role of City of Harare was to administer the stands in the area. Disputes of double allocation were dealt with by a committee that would sit and make recommendations. In casu, it was recommended that the lease agreement between the Ministry and the first defendant be cancelled as it was given in error. This he gleaned from the file and based on what had already been done by Mr Bare and Mrs Chikomo, previous City of Harare officers. He referred to a letter appearing on pages 65-66 of the record as exhibit number 8. The letter gives a detailed history of the dispute and concludes that the lease to the first defendant was given in error. Munetsi authored a letter again recommending cancellation of the lease as appears in exhibit number 9 on page 68 of the record. The first defendant’s case The first defendant led evidence on his own behalf. He stated that he was allocated the stand in 2011 by the Chairperson of Tongoville Housing Cooperative. This is confirmed by a letter appearing on page 88 of the record as exhibit number 10. The letter is from Tongoville and confirms that he was allocated the stand in 2011 and he is the rightful owner. This was after he had paid the sum of $200. In June 2011, he managed to put up a slab and build to window level. He briefly went away and when he returned in 2012, he noted that the plaintiff had erected a shack and a certain young man was residing at the stand. He then put up two rooms including roofing. He commenced staying at the stand in December 2012. In 2014, he observed the plaintiff’s husband coming to the stand to put up two rooms. In 2015, he was given a card by UDCORP, who had called upon residents to get cards. This is confirmed by exhibit number 11 appearing on page 94. After paying $300, he visited the City of Harare offices for purposes of applying for a lease. On applying, they would request for the stand number to ascertain whether or not there had been double allocation. Problems started when the plaintiff went to apply for a lease and she was informed that the first defendant had already been given a lease for the property. In addition to the card from UDCORP, he was also given a lease by the Ministry of Local government as appears on page 83-87 of the record as exhibit number 12. The lease is still extant. He was once called by officers from the Ministry for purposes of signing for a lease cancellation but he refused to sign the document. He told the officers that he would wait the outcome of the court case. He was surprised to see letter from Mr Bare recommending cancellation of the lease. Hamandishe testified as follows. He is the Chairperson of Tongoville. He described it as a cooperative that allocates houses to members in all of Caledonia. This place is located under Goromonzi Rural District Council. It currently has four wards these being 9, 21, 21 and 23. This land was allocated to Tongoville by the Ministry of Local Government for purposes of developing it in 2004. He referred to page 9 which is exhibit 13. The letter is From the Ministry and its captioned, ‘ confirmation of housing development at Caledonia Farm by Tongoville Housing Co0operative’. He professed knowledge of Nyikavanhu and stated that he received a letter from the Ministry, directing Tongoville to allocate Nyikavanhu some stands. The latter had 400 members. He referred to a letter appearing on page 95 dated the 16th of February 2005, which is addressed to the Chairperson of Tongoville. The letter is to the effect that Nyikavanhu had been allocated 400 stands. Therefore Nyikavanhu was allocated 400 stands in Caledonia. He explained that the letter was addressed to the Tongoville Chairperson because that cooperative was the one that occupied Caledonia farm first. Its members were initially scattered throughout the farm and Tongoville was given the mandate to identify persons for purposes of allocation to avoid double allocations. He referred to a letter dated the 18th of November 2004 appearing on page 91 as exhibit number 15. The letter was a request to Tongoville to allocate stands to a group of teachers. The first defendant is a member of Tongoville. He joined in March 2011. The letter that the first defendant produced as exhibit 10 is genuine and it confirms that the stand was allocated to the first defendant who is also a fully paid-up member. The plaintiff was allocated the stand after the first defendant had already been allocated . She was not supposed to be allocated a stand in that area. The plaintiff had been erroneously allocated an open space next to the stand . Regarding the block of stands that were allocated to Nyikavanhu, he testified that this was the second cooperative to be formed and to occupy Caledonia after Tongoville. Therefore Tongoville was already in the area and had allocated the stands. In 2019, Tongoville sued the Ministry after noting some corrupt activities in the allocation of stands. This resulted in an order under HC 10141/19, interdicting the Ministry from allocating stands in the area. After noting the dispute over the stand, a letter was addressed to Sanyika dated the 4th of February 2020 exhibit 17. The gist of the letter was that both cooperatives had allocated the same stand to two different people, these being the plaintiff and the first defendant. It proposed that the matter be resolved through discussions . He disputed the assertion that the matter was resolved by the Registrar of Cooperatives. The letter produced by the plaintiff shows that it was signed by a field officer based in Mashonaland East. The legal issues From the pleadings filed of record and evidence at trial as supported by the various exhibits, a clear picture emerges. It is common cause that the stand is part of the farm called Caledonia. This farm is state land administered by the second respondent. It was in the early 2000 era invaded by a group of persons before any formalisation process. The second defendant subsequently formalised the process by allocating stands to various cooperatives who would in turn allocate to their members. It also appears to me that whilst Tongoville may have been the initial cooperative in the area, many more were formed among which is Nyikavanhu. Although the stands were occupied from around 2004, it seems that the formalisation took place much later. The cooperatives seemingly allocated stand or stand numbers before formalities were commenced with the second defendant. It also appears to me that UDCORP at one stage was also involved in the development of the area. It appears as well that the City of Harare was given the responsibility of playing an administrative role over the area in question as a whole through the Mabvuku/Tafara district offices. It also appears to me that the City of Harare was involved in the granting of leases in the sense that the process would be initiated through them but the lease would be awarded by the second defendant. The first defendant entered into a lease agreement with the second defendant. The plaintiff only discovered this when she went to the City of Harare to initiate the lease process. As already alluded to, the plaintiff and the first defendant both claim to have been allocated the stand through their respective cooperatives. While I appreciate the issues identified for trial by the parties, it appears to me that the real dispute lies in the contested allocations by separate cooperatives. I am referring here to Nyikavanhu and Tongoville. Which one of the two was authorised to allocate the stand in question. The one who was allocated the stand through the legal means in my view has real rights and is entitled to peaceful and undisturbed occupation and possession. They are entitled to an order for eviction. The first line of inquiry must of necessity relate to the status of each cooperative. The second line of inquiry is a paper trail of how the stand moved from the state to the cooperatives and to the two protagonists. Lastly, the rights of the lawful owner will be interrogated. The law The law on registration of cooperatives is clearly set out in the Cooperatives Societies Act in section 17 as follows, “Registration of Societies” If the Registrar is satisfied that a Society which has applied for registration complies with the requirements for registration and that its proposed by-laws are in accordance with this Act, he shall register the society and its by –laws.Where the Registrar registers a society he shall- enter in the Registrar- the name of the society and …………………………………………….. and Forward to the society a certificate of registration……………………………….……………………………. and cause notice of the registration to be published in the gazette.” Section 19 further provides that the certificate constitutes proof of registration. A member of a cooperative who is allocated a stand acquires personal rights. These include rights of occupation and also a right to construct approved buildings- see Mapisa vs Mubvongodzi, HH-104-23 and Karonga vs Desha and anor, HH-290-23. Such a member has locus standi to evict anyone who illegally occupies the stand. The member has to show that they are in good standing with the cooperative and have paid their dues. Application of the law to the facts In casu, the following facts weigh heavily in favour of the plaintiff. Sanyika produced proof of registration of Nyikavanhu. That means the requirements for registration and proof of registration was met. On the other hand, no such proof was produced in respect of Tongoville. Exhibit 13, being a letter of confirmation of allocation of stands in Caledonia to Tongoville does not equate to proof of registration. The plaintiff produced proof of payments not only to Nyikavanhu but also to UDCORP. No such evidence was produced by the first defendant. He relied on a card from UDCORP as proof of ownership. In my view, UDCORP had no mandate from the second defendant to allocate stands. The first defendant and Hamandishe testified that the evidence of registration and payments was available but it was not discovered and not brought to court. This is strange given that this is a 2019 matter. The plaintiff produced a beacon card clearly depicting that she is a member of Nyikavanhu and the allocation of the stand to her. Perhaps the most significant evidence in favour of the plaintiff lies in exhibit 5 being the letter from the Ministry recommending allocation of stands. On page 62 of the record, the name of Nyikavanhu appears. The block numbers are 13623 to 13931. The disputed stand falls squarely within those numbers. There is no evidence that the first defendant was ever a member of Nyikavanhu that would entitle him to be allocated the stand. As a matter of fact, on exhibit 5, Tongoville does not appear as a cooperative having been allocated stands by the second defendant. There is no document showing that Tongoville was mandated allocate the stand in dispute. If Tongoville did not have a right to allocate the stand, the only logical conclusion is that they could not allocate rights that they never had as a cooperative. This is what I term, the paper trail. That of the plaintiff is compelling whilst that of the first defendant can be termed, ‘silent’ in material respects. There is no clear trajectory of how the stand supposedly moved from the second to the first defendant. The steps taken by the plaintiff and the first defendant are telling. Despite having a lease agreement, the first defendant did not act. Whilst the first defendant was content to leave the status quo as is, the plaintiff sprang into action. She informed Sanyika of the intrusion and the matter was reported to the City of Harare. Whilst the latter was not the allocating authority, I have concluded that they were administering the stands in Caledonia. The letter from City of Harare dated the 8th of December 2016 is particularly compelling. It reads, CITY OF HARARE DATE: 08 December 2016 TO WHOM IT MAY CONCERN RE: CONFIRMATION OF OWNERSHIP OF STAND NUMBER 13855 PHASE 3: The above matter refers; According to our records Kennedy Mathias of Tiritose cooperative registered on stand number 13855 and Getrude Mutigwa of Nyikavanhu cooperative registered on stand 13855A Phase 3 Eastview Caledonia. As a result it was perceived that they were two (2) separate stands.As such both parties acquired provisional cards and constructed houses on the same stand anticipating that they were two (2) stands.It was against this background that Kennedy Mathias went on to apply for Lease agreement for the stand and successfully acquired a Lease Agreement.Later on the issue of double allocation was brought to my attention, when Getrude approached my office citing that when she wanted to apply for her Lease Agreement for stand number 13855A, she was surprised to find out that Kennedy had already applied for a Lease Agreement for the stand.Getrude went on to consult Nyikavanhu Cooperative executive on the issue. The executive took the two to the stand and only to find out that they had built houses on the same stand. Nyikavanhu chairman checked his records and found out that Kennedy Mathias was not appearing on cooperative register and had no proof of ownership of stand number 1385S and that he was not a member of Nyikavanhu Cooperative.Kennedy was requested to produce documents that reveals ownership of the stand number 13855, but could not produce any relevant documentation.The issue was brought to my attention and I invited both parties and Nyikavanhu executive for further deliberations in my office (District Officer). examination on both parties, I discovered that Kennedy Mathias was not the legitimate owner of Stand number 1385S Phase 3.Eventually I (district officer) found it necessary to cancel Kennedy's lease Agreement. I verbally instructed my officer at Caledonia Office to stop processing the lease agreement until the issue could be resolved. Unfortunately the lease was processed erroneously.Nevertheless, I (District Officer) referred the case to court for eviction order as I had no legal powers to evict Kennedy from the stand DISTRICT OFFICER (TAFARA/ CALEDONIA) The letter identifies the cooperative that the first defendant belongs to as, ‘Tiritose’ and not Tongoville. This was never challenged. In my view, whilst the City of Harare has no authority to cancel the lease agreement, nonetheless, the conclusions reached support the plaintiff’s contention that the first defendant is an intruder. The letter unequivocally states in paragraph 6, that the first defendant was requested to produce documents that reveal his ownership but he could not produce any relevant documentation. It cannot be a coincidence that even at the trial, under cross examination, when requested to produce relevant documents, his response was that they were available but he had not brought any of them to court. The specific documents are membership of Tongoville, payment of subscriptions, payment of allocation fee , payment for the stand and payments to UDCORP. The letter states that both sides were ‘cross-examined’, meaning that each were asked to present their side of the story. The conclusion reached was that the first defendant was not the owner of the stand. The attempt by the first defendant’s legal practitioner to cast aspersions on the person of Munetsi fell flat to the ground. He (Munetsi) was adamant that when producing his own letter, he had relied on information that was in the file already. He did not reinvent the wheel. The first defendant unwittingly supported the plaintiff’s contention that the lease between himself and the second defendant was a product of fraud. He stated that he was actually summoned to the offices of the second defendant for purposes of signing for the cancellation of the lease but he refused to do so citing the on-going legal proceedings. In my view, the trajectory presented by the plaintiff clearly points to her as the lawful owner of the stand. It supports her contention that the first defendant came onto the stand much later using force. The evidence points to the fact that when the first defendant occupied the premises, he had no documentation and he came after the plaintiff was already in occupation. The plaintiff’s legal practitioner located the dispute in a double -sale or double-allocation one. This is not so. The law on double sales is now settled. The Supreme Court in Guga v Moyo and others 2000 (2) ZLR 458 (SC) which both parties relied on unpacked it as follows, “The basic rule in double sales where transfer has not been passed to either party is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages against the seller, which is usually small comfort. But the rule applies only in the absence of special circumstances affecting the balance of equities”. In casu, there was no double allocation. There was no claim that the allocating cooperatives were the same. I also discount reliance on the letter from the office of the Cooperatives Society, particularly with reference to ss114 and 115 which reads, “115 Settlement of disputes (1) If any dispute concerning the business of a registered society arises— (a) within the society, whether between the society and any member, past member or representative of a deceased member, or between members of the society or the management or any supervisory committee; or (b) between registered societies; and no settlement is reached within the society or between the societies, as the case may be, the dispute shall be referred to the Registrar for decision.” This dispute was never between Tongoville and Nyikavanhu but between the plaintiff and the first defendant who cast their masts on belonging to the two different cooperatives. The matter is purely a contest between the plaintiff and the first defendant on who is the lawful owner. Nonetheless, my finding does not take away from the plaintiff’s case. In my view, for reasons already stated, the plaintiff has discharged the onus on her to prove that she is the lawful owner. She is thus entitled to an order for eviction. The plaintiff apart from seeking eviction, is also seeking a declaratur to have the lease agreement between the second and first defendant declared null and void and also its cancellation. In Chitiga v NSSA 2019 (2) ZLR 414 (H) at 417 - 418 the court held that: “In the first stage, the court inquiries into whether the applicant is an interested person in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. ………. The second stage requires the court to decide, notwithstanding the finding in the first stage that the applicant has a direct interest, whether or not the case in question is a proper one for the exercise of the court’s discretion under s 14 of the Act. Williamson J in Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T) at 285B-C (quoted with approval by Gubbay CJ in Mann Publishing (Pvt) Ltd, supra, described what constitutes a proper case for the exercise of the court’s discretion under s 14 in the following terms: ‘I think that a proper case for a purely declaratory order is not made out if the result is merely academic interest to the applicant. I feel that some tangible and justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.”’ See also, Johnsen v Agricultural Finance Corp 1995, (1) ZLR 65 (S). In the closing submission as supported by the pleadings and the evidence, Mr Kufazvinei, for the first defendant submitted that the plaintiff could not seek cancellation or a declaration of nullity to a contract that she is not party to. He cited the doctrine of privity of contract. Despite the evidence under cross examination of the first defendant that the six -year period in the lease had expired, the legal issue still remains whether or not the plaintiff can seek the relief of a declaratur to a contract to which she is not party to. It is trite that a party cannot seek cancellation of a contract that they are not a party to. See generally, Dongo vs Naik, SC-52-20. Additionally, the right sought to be protected must be clearly articulated. See, Electrical Contractors' Association (South Africa) and Another v Building Industries Federation (South Africa) (2) 1980 (2) SA 516 (T)at 519H-520B in the following words: “A person seeking a declaration of rights must set forth his contention as to what the alleged right is. (See O’Neill v Kruger’s Executrix and Others) 1906 TS 342at 344-5; Smit v Roussow and Ors 1913 CPD 436 at 441.).” The plaintiff is not a party to the lease agreement. The only entity that can cancel the lease agreement is the second defendant and as appears from the first defendant’s testimony, they intended to do so but are awaiting the outcome of this matter. I will therefore decline the prayer for cancellation of the lease and a declaration that it is null and void. On costs, it is clear that land means everything to most people. Upon it they can build for themselves, families and future generations. I find nothing untoward about the first defendant defending this matter. I will therefore award costs on the ordinary scale. DISPOSITION The first defendant and all those claiming title through him shall vacate the premises called Stand 13855, Phase 3, Eastview, within seven (7) days from the date of service of this order.Should the first defendant and all those claiming title through him, fail, refuse or neglect to vacate as aforesaid in paragraph 1, the Sheriff of the High Court be and is hereby authorised to evict them from the said premises without further notice. The first defendant shall pay costs of suit on the ordinary scale. Kwenda and Chagwiza, plaintiff’s attorneys Prichard Attorneys, first defendant’s legal practitioners 14 HH 419-25 Ref: HCH 1685/19 14 HH 419-25 Ref: HCH 1685/19 GETRUDE MUTIGWA Versus KENNEDY MATHIAS And THE MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS HIGH COURT OF ZIMBABWE CHIRAWU MUGOMBA J Harare, 1, 2, 9, 11, 14 July 2025. T. CHAKABVA, for the plaintiff P. KUFAZVINEI, for the 1st defendant No appearance for the 2nd defendant TRIAL CAUSE INTRODUCTION CHIRAWU MUGOMBA J: This matter epitomises the challenges bedevilling housing cooperatives in the acquisition of land and allocation of stands. The administrator of state land, being the 2nd defendant opted not to participate in the matter thus leaving the court to chart the maze and arrive at a decision. Pertinent to note is that the 2nd defendant was not a party initially but was joined through HCH 2235/21 on the 7th of July 2021. The two protagonists, that is the plaintiff and the first defendant are backed by two cooperatives respectively namely, Nyikavanhu Housing Cooperative, hereinafter, ‘ Nyikavanhu’, and Tongoville Park Housing Cooperative, hereinafter, ‘ Tongoville’, respectively. BACKGROUND The plaintiff issued summons against the 1st defendant seeking an order for eviction against him and all those claiming title through him from a property called stand number 13855, Eastview Park, Phase three, ‘ the stand’, and costs of suit. In her declaration she amplified her claim as follows. She is the registered owner of the stand having acquired it by virtue of being a member of Nyikavanhu. The stand was allocated to her in 2009 and she constructed a two bedroomed permanent structure. Sometime in 2015, the first defendant illegally took occupation of the same stand without authorization or the plaintiff’s consent. He proceeded to construct an illegal temporary structure without an approved plan. He purported to be a member of a cooperative that was allocated the stand by the City of Harare. Investigations carried out by the Ministry responsible for small and medium enterprises revealed that the defendant is not a registered member of any cooperative and he had enlisted his name for allocation of a stand through fraud. The plaintiff’s claim was later amended as follows after the joinder of the second defendant. She sought an additional order that the lease agreement entered into between the first and the second defendant in respect of the stand be declared null and void and therefore set aside. She also supplemented her declaration as follows. That the second defendant erroneously issued the first defendant with a lease for the property to which he was not entitled; that the City of Harare which was the allocating authority of the stands admitted the error and recommended that the first defendant’s lease be cancelled and that the Ministry of Women Affairs, Community Development and Medium Enterprises had in terms of s115 of the Cooperatives Societies Act [Chapter 24:05] had resolved the dispute. The first defendant pleaded to the original summons and declaration as follows. That the plaintiff is not the owner of the property. Instead it was owned by him by virtue of a lease agreement with the Ministry of Local Government Public Works and National Housing entered into in April 2016. Contrary to the plaintiff’s assertion, he was not an illegal occupier. He thus had no obligation to seek the consent of the plaintiff to occupy the property. He professed ignorance of the investigations conducted by the statutory bodies as claimed by the plaintiff. He further averred that the relief sought by the plaintiff was incompetent since he still held a lease and it had not yet been cancelled. The first defendant also supplemented his plea to answer the amended summons and declaration. He averred that the plaintiff had no locus standi to seek an order declaring the contract between himself and the Ministry null and void. She was not privy to the contract. The lease agreement was lawful and he had fulfilled the terms and conditions of the lease. There was no court cancelling the lease. Further that the Registrar of Cooperatives does not have jurisdiction to determine the matter since the plaintiff and the first defendant belong to different cooperatives. He discounted the issue of a double allocation by the second defendant since there is no relationship between the plaintiff and the second defendant. The plaintiff filed a replication to the following effect. That the first defendant’s lease is tainted as confirmed by an officer from the City of Harare Tafara district and that the Ministry responsible for Cooperatives had resolved the dispute in plaintiff’s favour. In a joint pre-trial conference minute, the parties identified the issues for trial as follows:- Does the plaintiff have the right to the relief sought in the summons? Does the first defendant have any right in the stand in issue? Does the plaintiff have any right to seek the relief of a declaratory against the first defendant’s lease agreement, is for is (sic) is the lease agreement valid? Who has better rights in the stand in issue, plaintiff or defendant? Plaintiff’s case The plaintiff testified that she joined Nyikavanhu as a member on the 9th of July 2009. She joined by completing a form and paying the sum of $1500. This money was for the stand. The form was completed in 2009 and payments commenced in 2012. She took occupation in 2015. She made payments through the Chairperson of Nyikavanhu. The money included a development fee to Urban Development Corporation( UDCORP). When she occupied the property, it was an open ground. She effected developments by constructing a two roomed permanent structure after being authorised by the City of Harare. Sometime in 2015, the first defendant also came to the property and built a two roomed structure. She took steps of protecting her rights through reporting the incursion by the first defendant to Nyikavanhu who came to the ground to ascertain what was going on. The first defendant failed to produce receipts to back his claim. The next port of was to the Cooperatives Society in Marondera. The first defendant refused to attend the meeting called to resolved the issue. The plaintiff thereafter went to the City Of Harare District office for Mabvuku/Tafara and made a report. Meetings were held with three officials who all concluded that the property belonged to the plaintiff and that the lease agreement given to the first defendant had been issued in error and was supposed to be cancelled. In support of her claim the plaintiff produced the following exhibits. Exhibit 0ne page record 43 is a beacon agreement form which shows the name of the plaintiff and the stand number of the property as being 13855. Exhibits 2.1-2.7-page record 54 -56 are receipts of payments to Nyikadzino in various amounts and 57-60 to UDCORP. Exhibit 3, page record 64 is a letter from the Ministry of Women Affairs, Community and SMEs Development Mashonaland East, captioned , ‘ Resolution over ownership of stand 13855 of Nyikavanhu Housing Cooperative in Caledonia between Getrude Mutigwa and Kennedy Mathias’. The gist of the letter is to the effect that the owner of the property is the plaintiff and instructing the first defendant in terms of s114 of the Cooperative Societies Act to vacate. Sanyika gave the following evidence. That he knows the plaintiff as a member of Nyikavanhu and this is because he is the Chairperson of that cooperative. It was registered on the 13th of September 2004 as supported by the registration certificate. The plaintiff was one of the first members to join and that was in the year 2012. As a member she was allocated the stand in dispute. The plaintiff also paid all the monies due for the stand. The stand was allocated to her from the Ministry of Local government through the Chairperson. He clarified that Nyikavanhu was found to be in good standing with the Ministry and hence it was given stands for allocation to its members. A document was availed to Nyikavanhu showing the stands and stand numbers. He made reference to a letter being exhibit number 5 appearing on pages 61-63. The letter is from the Harare Metropolitan Province (Ministry of Local Government, Rural and Urban Development). Page 62 of the letter shows that Nyikavanhu was allocated 308 stands being block 13623 to 13931. Stand 13855, falls in that block. He stated that he has no knowledge of the defendant. He is aware of the challenges in the area. He attributed this to the fact that the first defendant and his accomplices had invaded the area claiming to be members of a certain political party. Steps were taken by approaching the City of Harare and the Ministry. A letter was authored confirming that the stand belonged to the plaintiff. The role of the City Council of Harare is to administer the stands. When the plaintiff visited City of Harare Offices to have a lease done, she discovered that the first defendant had already been given a lease. This was a fraudulent act because the first defendant once he became aware that leases were being given, took it upon himself to get one but he knew very well that he was not entitled. After the City of Harare became seized with the dispute, they invited all parties to their offices. He made reference to a letter appearing on page 71 as exhibit number 6. The letter is addressed to a Mr Bare of the Tafara District office and it states that the plaintiff is a member of Nyikavanhu and the first defendant is not a member but is an intruder. City of Harare stated that the lease had been given to the first defendant in error. He referred to a letter from Mr Bare appearing on page 67 as exhibit number 7. The letter states that after a thorough investigation, cancellation of the lease agreement between the Ministry and the first defendant was recommended. Munetsi testified to the following effect. He is the acting District Officer for the City of Harare in the Tafara area. He is aware of the dispute over the stand. The role of City of Harare was to administer the stands in the area. Disputes of double allocation were dealt with by a committee that would sit and make recommendations. In casu, it was recommended that the lease agreement between the Ministry and the first defendant be cancelled as it was given in error. This he gleaned from the file and based on what had already been done by Mr Bare and Mrs Chikomo, previous City of Harare officers. He referred to a letter appearing on pages 65-66 of the record as exhibit number 8. The letter gives a detailed history of the dispute and concludes that the lease to the first defendant was given in error. Munetsi authored a letter again recommending cancellation of the lease as appears in exhibit number 9 on page 68 of the record. The first defendant’s case The first defendant led evidence on his own behalf. He stated that he was allocated the stand in 2011 by the Chairperson of Tongoville Housing Cooperative. This is confirmed by a letter appearing on page 88 of the record as exhibit number 10. The letter is from Tongoville and confirms that he was allocated the stand in 2011 and he is the rightful owner. This was after he had paid the sum of $200. In June 2011, he managed to put up a slab and build to window level. He briefly went away and when he returned in 2012, he noted that the plaintiff had erected a shack and a certain young man was residing at the stand. He then put up two rooms including roofing. He commenced staying at the stand in December 2012. In 2014, he observed the plaintiff’s husband coming to the stand to put up two rooms. In 2015, he was given a card by UDCORP, who had called upon residents to get cards. This is confirmed by exhibit number 11 appearing on page 94. After paying $300, he visited the City of Harare offices for purposes of applying for a lease. On applying, they would request for the stand number to ascertain whether or not there had been double allocation. Problems started when the plaintiff went to apply for a lease and she was informed that the first defendant had already been given a lease for the property. In addition to the card from UDCORP, he was also given a lease by the Ministry of Local government as appears on page 83-87 of the record as exhibit number 12. The lease is still extant. He was once called by officers from the Ministry for purposes of signing for a lease cancellation but he refused to sign the document. He told the officers that he would wait the outcome of the court case. He was surprised to see letter from Mr Bare recommending cancellation of the lease. Hamandishe testified as follows. He is the Chairperson of Tongoville. He described it as a cooperative that allocates houses to members in all of Caledonia. This place is located under Goromonzi Rural District Council. It currently has four wards these being 9, 21, 21 and 23. This land was allocated to Tongoville by the Ministry of Local Government for purposes of developing it in 2004. He referred to page 9 which is exhibit 13. The letter is From the Ministry and its captioned, ‘ confirmation of housing development at Caledonia Farm by Tongoville Housing Co0operative’. He professed knowledge of Nyikavanhu and stated that he received a letter from the Ministry, directing Tongoville to allocate Nyikavanhu some stands. The latter had 400 members. He referred to a letter appearing on page 95 dated the 16th of February 2005, which is addressed to the Chairperson of Tongoville. The letter is to the effect that Nyikavanhu had been allocated 400 stands. Therefore Nyikavanhu was allocated 400 stands in Caledonia. He explained that the letter was addressed to the Tongoville Chairperson because that cooperative was the one that occupied Caledonia farm first. Its members were initially scattered throughout the farm and Tongoville was given the mandate to identify persons for purposes of allocation to avoid double allocations. He referred to a letter dated the 18th of November 2004 appearing on page 91 as exhibit number 15. The letter was a request to Tongoville to allocate stands to a group of teachers. The first defendant is a member of Tongoville. He joined in March 2011. The letter that the first defendant produced as exhibit 10 is genuine and it confirms that the stand was allocated to the first defendant who is also a fully paid-up member. The plaintiff was allocated the stand after the first defendant had already been allocated . She was not supposed to be allocated a stand in that area. The plaintiff had been erroneously allocated an open space next to the stand . Regarding the block of stands that were allocated to Nyikavanhu, he testified that this was the second cooperative to be formed and to occupy Caledonia after Tongoville. Therefore Tongoville was already in the area and had allocated the stands. In 2019, Tongoville sued the Ministry after noting some corrupt activities in the allocation of stands. This resulted in an order under HC 10141/19, interdicting the Ministry from allocating stands in the area. After noting the dispute over the stand, a letter was addressed to Sanyika dated the 4th of February 2020 exhibit 17. The gist of the letter was that both cooperatives had allocated the same stand to two different people, these being the plaintiff and the first defendant. It proposed that the matter be resolved through discussions . He disputed the assertion that the matter was resolved by the Registrar of Cooperatives. The letter produced by the plaintiff shows that it was signed by a field officer based in Mashonaland East. The legal issues From the pleadings filed of record and evidence at trial as supported by the various exhibits, a clear picture emerges. It is common cause that the stand is part of the farm called Caledonia. This farm is state land administered by the second respondent. It was in the early 2000 era invaded by a group of persons before any formalisation process. The second defendant subsequently formalised the process by allocating stands to various cooperatives who would in turn allocate to their members. It also appears to me that whilst Tongoville may have been the initial cooperative in the area, many more were formed among which is Nyikavanhu. Although the stands were occupied from around 2004, it seems that the formalisation took place much later. The cooperatives seemingly allocated stand or stand numbers before formalities were commenced with the second defendant. It also appears to me that UDCORP at one stage was also involved in the development of the area. It appears as well that the City of Harare was given the responsibility of playing an administrative role over the area in question as a whole through the Mabvuku/Tafara district offices. It also appears to me that the City of Harare was involved in the granting of leases in the sense that the process would be initiated through them but the lease would be awarded by the second defendant. The first defendant entered into a lease agreement with the second defendant. The plaintiff only discovered this when she went to the City of Harare to initiate the lease process. As already alluded to, the plaintiff and the first defendant both claim to have been allocated the stand through their respective cooperatives. While I appreciate the issues identified for trial by the parties, it appears to me that the real dispute lies in the contested allocations by separate cooperatives. I am referring here to Nyikavanhu and Tongoville. Which one of the two was authorised to allocate the stand in question. The one who was allocated the stand through the legal means in my view has real rights and is entitled to peaceful and undisturbed occupation and possession. They are entitled to an order for eviction. The first line of inquiry must of necessity relate to the status of each cooperative. The second line of inquiry is a paper trail of how the stand moved from the state to the cooperatives and to the two protagonists. Lastly, the rights of the lawful owner will be interrogated. The law The law on registration of cooperatives is clearly set out in the Cooperatives Societies Act in section 17 as follows, “Registration of Societies” If the Registrar is satisfied that a Society which has applied for registration complies with the requirements for registration and that its proposed by-laws are in accordance with this Act, he shall register the society and its by –laws. Where the Registrar registers a society he shall- enter in the Registrar- the name of the society and ……………………… …………………….. and Forward to the society a certificate of registration ………………………………. ……………………………. and cause notice of the registration to be published in the gazette.” Section 19 further provides that the certificate constitutes proof of registration. A member of a cooperative who is allocated a stand acquires personal rights. These include rights of occupation and also a right to construct approved buildings- see Mapisa vs Mubvongodzi, HH-104-23 and Karonga vs Desha and anor, HH-290-23. Such a member has locus standi to evict anyone who illegally occupies the stand. The member has to show that they are in good standing with the cooperative and have paid their dues. Application of the law to the facts In casu, the following facts weigh heavily in favour of the plaintiff. Sanyika produced proof of registration of Nyikavanhu. That means the requirements for registration and proof of registration was met. On the other hand, no such proof was produced in respect of Tongoville. Exhibit 13, being a letter of confirmation of allocation of stands in Caledonia to Tongoville does not equate to proof of registration. The plaintiff produced proof of payments not only to Nyikavanhu but also to UDCORP. No such evidence was produced by the first defendant. He relied on a card from UDCORP as proof of ownership. In my view, UDCORP had no mandate from the second defendant to allocate stands. The first defendant and Hamandishe testified that the evidence of registration and payments was available but it was not discovered and not brought to court. This is strange given that this is a 2019 matter. The plaintiff produced a beacon card clearly depicting that she is a member of Nyikavanhu and the allocation of the stand to her. Perhaps the most significant evidence in favour of the plaintiff lies in exhibit 5 being the letter from the Ministry recommending allocation of stands. On page 62 of the record, the name of Nyikavanhu appears. The block numbers are 13623 to 13931. The disputed stand falls squarely within those numbers. There is no evidence that the first defendant was ever a member of Nyikavanhu that would entitle him to be allocated the stand. As a matter of fact, on exhibit 5, Tongoville does not appear as a cooperative having been allocated stands by the second defendant. There is no document showing that Tongoville was mandated allocate the stand in dispute. If Tongoville did not have a right to allocate the stand, the only logical conclusion is that they could not allocate rights that they never had as a cooperative. This is what I term, the paper trail. That of the plaintiff is compelling whilst that of the first defendant can be termed, ‘silent’ in material respects. There is no clear trajectory of how the stand supposedly moved from the second to the first defendant. The steps taken by the plaintiff and the first defendant are telling. Despite having a lease agreement, the first defendant did not act. Whilst the first defendant was content to leave the status quo as is, the plaintiff sprang into action. She informed Sanyika of the intrusion and the matter was reported to the City of Harare. Whilst the latter was not the allocating authority, I have concluded that they were administering the stands in Caledonia. The letter from City of Harare dated the 8th of December 2016 is particularly compelling. It reads, CITY OF HARARE DATE: 08 December 2016 TO WHOM IT MAY CONCERN RE: CONFIRMATION OF OWNERSHIP OF STAND NUMBER 13855 PHASE 3: The above matter refers; According to our records Kennedy Mathias of Tiritose cooperative registered on stand number 13855 and Getrude Mutigwa of Nyikavanhu cooperative registered on stand 13855A Phase 3 Eastview Caledonia. As a result it was perceived that they were two (2) separate stands. As such both parties acquired provisional cards and constructed houses on the same stand anticipating that they were two (2) stands. It was against this background that Kennedy Mathias went on to apply for Lease agreement for the stand and successfully acquired a Lease Agreement. Later on the issue of double allocation was brought to my attention, when Getrude approached my office citing that when she wanted to apply for her Lease Agreement for stand number 13855A, she was surprised to find out that Kennedy had already applied for a Lease Agreement for the stand. Getrude went on to consult Nyikavanhu Cooperative executive on the issue. The executive took the two to the stand and only to find out that they had built houses on the same stand. Nyikavanhu chairman checked his records and found out that Kennedy Mathias was not appearing on cooperative register and had no proof of ownership of stand number 1385S and that he was not a member of Nyikavanhu Cooperative. Kennedy was requested to produce documents that reveals ownership of the stand number 13855, but could not produce any relevant documentation. The issue was brought to my attention and I invited both parties and Nyikavanhu executive for further deliberations in my office (District Officer). examination on both parties, I discovered that Kennedy Mathias was not the legitimate owner of Stand number 1385S Phase 3. Eventually I (district officer) found it necessary to cancel Kennedy's lease Agreement. I verbally instructed my officer at Caledonia Office to stop processing the lease agreement until the issue could be resolved. Unfortunately the lease was processed erroneously. Nevertheless, I (District Officer) referred the case to court for eviction order as I had no legal powers to evict Kennedy from the stand DISTRICT OFFICER (TAFARA/ CALEDONIA) The letter identifies the cooperative that the first defendant belongs to as, ‘Tiritose’ and not Tongoville. This was never challenged. In my view, whilst the City of Harare has no authority to cancel the lease agreement, nonetheless, the conclusions reached support the plaintiff’s contention that the first defendant is an intruder. The letter unequivocally states in paragraph 6, that the first defendant was requested to produce documents that reveal his ownership but he could not produce any relevant documentation. It cannot be a coincidence that even at the trial, under cross examination, when requested to produce relevant documents, his response was that they were available but he had not brought any of them to court. The specific documents are membership of Tongoville, payment of subscriptions, payment of allocation fee , payment for the stand and payments to UDCORP. The letter states that both sides were ‘cross-examined’, meaning that each were asked to present their side of the story. The conclusion reached was that the first defendant was not the owner of the stand. The attempt by the first defendant’s legal practitioner to cast aspersions on the person of Munetsi fell flat to the ground. He (Munetsi) was adamant that when producing his own letter, he had relied on information that was in the file already. He did not reinvent the wheel. The first defendant unwittingly supported the plaintiff’s contention that the lease between himself and the second defendant was a product of fraud. He stated that he was actually summoned to the offices of the second defendant for purposes of signing for the cancellation of the lease but he refused to do so citing the on-going legal proceedings. In my view, the trajectory presented by the plaintiff clearly points to her as the lawful owner of the stand. It supports her contention that the first defendant came onto the stand much later using force. The evidence points to the fact that when the first defendant occupied the premises, he had no documentation and he came after the plaintiff was already in occupation. The plaintiff’s legal practitioner located the dispute in a double -sale or double-allocation one. This is not so. The law on double sales is now settled. The Supreme Court in Guga v Moyo and others 2000 (2) ZLR 458 (SC) which both parties relied on unpacked it as follows, “The basic rule in double sales where transfer has not been passed to either party is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages against the seller, which is usually small comfort. But the rule applies only in the absence of special circumstances affecting the balance of equities”. In casu, there was no double allocation. There was no claim that the allocating cooperatives were the same. I also discount reliance on the letter from the office of the Cooperatives Society, particularly with reference to ss114 and 115 which reads, “115 Settlement of disputes (1) If any dispute concerning the business of a registered society arises— (a) within the society, whether between the society and any member, past member or representative of a deceased member, or between members of the society or the management or any supervisory committee; or (b) between registered societies; and no settlement is reached within the society or between the societies, as the case may be, the dispute shall be referred to the Registrar for decision.” This dispute was never between Tongoville and Nyikavanhu but between the plaintiff and the first defendant who cast their masts on belonging to the two different cooperatives. The matter is purely a contest between the plaintiff and the first defendant on who is the lawful owner. Nonetheless, my finding does not take away from the plaintiff’s case. In my view, for reasons already stated, the plaintiff has discharged the onus on her to prove that she is the lawful owner. She is thus entitled to an order for eviction. The plaintiff apart from seeking eviction, is also seeking a declaratur to have the lease agreement between the second and first defendant declared null and void and also its cancellation. In Chitiga v NSSA 2019 (2) ZLR 414 (H) at 417 - 418 the court held that: “In the first stage, the court inquiries into whether the applicant is an interested person in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. ………. The second stage requires the court to decide, notwithstanding the finding in the first stage that the applicant has a direct interest, whether or not the case in question is a proper one for the exercise of the court’s discretion under s 14 of the Act. Williamson J in Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T) at 285B-C (quoted with approval by Gubbay CJ in Mann Publishing (Pvt) Ltd, supra, described what constitutes a proper case for the exercise of the court’s discretion under s 14 in the following terms: ‘I think that a proper case for a purely declaratory order is not made out if the result is merely academic interest to the applicant. I feel that some tangible and justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.”’ See also, Johnsen v Agricultural Finance Corp 1995, (1) ZLR 65 (S). In the closing submission as supported by the pleadings and the evidence, Mr Kufazvinei, for the first defendant submitted that the plaintiff could not seek cancellation or a declaration of nullity to a contract that she is not party to. He cited the doctrine of privity of contract. Despite the evidence under cross examination of the first defendant that the six -year period in the lease had expired, the legal issue still remains whether or not the plaintiff can seek the relief of a declaratur to a contract to which she is not party to. It is trite that a party cannot seek cancellation of a contract that they are not a party to. See generally, Dongo vs Naik, SC-52-20. Additionally, the right sought to be protected must be clearly articulated. See, Electrical Contractors' Association (South Africa) and Another v Building Industries Federation (South Africa) (2) 1980 (2) SA 516 (T)at 519H-520B in the following words: “A person seeking a declaration of rights must set forth his contention as to what the alleged right is. (See O’Neill v Kruger’s Executrix and Others) 1906 TS 342at 344-5; Smit v Roussow and Ors 1913 CPD 436 at 441.).” The plaintiff is not a party to the lease agreement. The only entity that can cancel the lease agreement is the second defendant and as appears from the first defendant’s testimony, they intended to do so but are awaiting the outcome of this matter. I will therefore decline the prayer for cancellation of the lease and a declaration that it is null and void. On costs, it is clear that land means everything to most people. Upon it they can build for themselves, families and future generations. I find nothing untoward about the first defendant defending this matter. I will therefore award costs on the ordinary scale. DISPOSITION The first defendant and all those claiming title through him shall vacate the premises called Stand 13855, Phase 3, Eastview, within seven (7) days from the date of service of this order. Should the first defendant and all those claiming title through him, fail, refuse or neglect to vacate as aforesaid in paragraph 1, the Sheriff of the High Court be and is hereby authorised to evict them from the said premises without further notice. The first defendant shall pay costs of suit on the ordinary scale. Kwenda and Chagwiza, plaintiff’s attorneys Prichard Attorneys, first defendant’s legal practitioners