EUNIGOD PRIVATE SCHOOL (PVT) LTD t/a EUNIGOD PRIMARY SCHOOL v CHRISTBRANDS INVESTMENTS (PVT) LTD and OTHERS (410 of 2025) [2025] ZWHHC 410 (10 July 2025)

6 HH 410/25 HCH 5732/24 EUNIGOD PRIVATE SCHOOL (PVT) LTD t/a EUNIGOD PRIMARY SCHOOL Versus CHRISTBRANDS INVESTMENTS (PVT) LTD and PHILLIP MASHAAH and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING HIGH COURT OF ZIMBABWE MUSHURE J HARARE, 6 March & 10 July 2025 Application for a Declaratur T. Biti, for the applicant D. Tandiri, for the first and second respondents L. Muradzikwa, for the third respondent MUSHURE J: INTRODUCTION This is an opposed application for a declaratur in which the applicant seeks the following relief: “IT IS HEREBY DECLARED THAT: The Applicant is the rightful owner of Stand 2178 Westlea, Mutare. The lease agreement entered into between the 3rd Respondent and the 1st Respondent is null and void. CONSEQUENTLY, IT IS HEREBY ORDERED THAT: The 1st and 2nd Respondents are hereby interdicted from constructing on Stand 2178 Westlea, Mutare. The 3rd Respondent shall cancel the lease agreement executed in favour of the 1st Respondent over Stand 2178 Westlea, Mutare. The 1st and 2nd Respondents shall demolish any structure it (sic) constructed on the said stand within 48 hours of this order. The Respondents shall pay costs of suit” APPLICANT’S CASE The applicant is a company duly registered according to the laws of Zimbabwe. It avers that it is the owner and holder of exclusive rights of a certain piece of land situate in the District of Mutare called stand 2178 of Mutare Township measuring 7, 4131 hectares (‘the property’) by virtue of an oral agreement of sale between it and the third respondent. It avers, further, that in terms of the said agreement, the purchase price was set at two hundred and sixty-two thousand six hundred and forty United States dollars (US$262 640.00), payable in instalments, with an initial deposit of US$26 640.00, representing 10% of the purchase price. It asserts that it made payments towards the deposit from 2010 to 2012 and that it took vacant possession of the property in 2010. It asserts, further, that it has been enjoying peaceful and undisturbed possession of the property since then until 10 November 2024, when the first and second respondents deposited over 30 000 bricks, tons of river sand, pit sand and concrete stones on the property. It is the applicant’s submission that on 12 November 2024, the first and second respondents commenced construction works at the property and the applicant sought to interdict them on an urgent basis. The applicant submits, further, that the application was struck off the roll on the basis that there was no proper applicant before the court. According to the applicant, it is from the interdict proceedings that it gathered that the third respondent had leased over the same property to the first respondent sometime in March 2024. The applicant alleges that this was done despite having paid the full purchase price for the property in 2020 and awaiting title deeds to be issued and processed. It further alleges that on 30 November 2020, the third respondent even wrote a letter to Lafarge Cement (Pvt) Ltd (‘Lafarge’) confirming its ownership of the property, that the full purchase price had been paid and that it was in the process of issuing the applicant with a title deed. The applicant alleges that, to date, no such title deed has been issued. It is the applicant’s contention that the third respondent purports to have withdrawn the lease sometime in 2021, but that withdrawal was never served on the applicant. An averment is made by the applicant that at the time the lease agreement was executed, the lessee was named as Eunigold Primary School (‘the primary school’) which is a non-existent entity at law with no capacity to contract and the applicant’s representative made an oversight and signed the lease without paying attention to the name entered. Monies paid to the third respondent from 2010 to 2012 were receipted under the primary school’s name instead of the applicant herein because the representative was acting on behalf of the applicant. The applicant asserts that the name had never been an issue until the interdict proceedings, and the third respondent itself had used the two names interchangeably to refer to the applicant. The applicant asserts, further, that it has since assumed the name of the unregistered entity as its trade name and ratified the acts of the primary school as its own acts. FIRST AND SECOND RESPONDENTS’ OPPOSITION The first and second respondents argue, in limine, that the second respondent has been misjoined to the proceedings because he does not have a personal, direct and substantial interest in the matter.They argue, further, that the applicant has no locus standi to sue on the basis of the lease agreement, which was entered into between the primary school and the third respondent. They contend that the applicant’s assumption of the name Eunigod Primary School as its trade name was only done on 13 December 2024 and has no retrospective effect. They further contend that at the time the lease agreement was entered into, the primary school and the applicant had no relationship and that the applicant was already in existence. Additionally, at the time of contracting, the primary school was an unregistered entity with no capacity to enter into contracts; hence, the lease agreement was a nullity. In any event, they submit, the applicant did not inherit any rights from the lease agreement and the fact that the applicant assumed the primary school’s name does not mean that it is now entitled to exercise all the rights and bear all the primary school’s liabilities. They suggest that the proper course of action would have been for the primary school to cede its rights and liabilities to the applicant. On the merits, the first and second respondents dispute the applicant’s ownership of the property and state that the entity which entered into the lease agreement was the primary school. The lease agreement expired by effluxion of time in 2014 and was never renewed. The primary school also failed to comply with all material terms and conditions of the lease agreement, including failure to pay rentals annually and failure to construct structures prior to the expiration of the lease agreement. The first and second respondents doubt that the primary school exercised the right of option to purchase the property. They contend that the applicant never took occupation of the property but sublet a portion thereafter to someone else who was involved in horticulture and poultry projects. They confirm that the third respondent entered into a lease agreement with the first respondent on 1 February 2024 and took vacant possession of the stand on 6 March 2024. It is submitted on behalf of the first and second respondents that the lease agreement between the first respondent and the third respondent was only entered into after the termination of the lease agreement between the third respondent and the primary school. The respondents make reference to two case numbers, HCH5335/24 and HCH5343/25, in which they allege that the primary school was furnished with copies of the notice of intention to withdraw the lease and the notice of the termination of the lease agreement, yet the applicant did not challenge the withdrawal. Further, the primary school was never charged the purchase price by the third respondent, and the assumption should be that the payments were for rentals. Even if that be the case, the first and second respondents contend that there is no evidence that the primary school paid rentals between 2010 and 2020; there is no evidence that the payments made in the first year were for the purchase price because the receipts speak to rentals; and there is also no evidence that an initial deposit was paid. The first and second respondents challenge the applicant’s submission that the third respondent confirmed the primary school’s ownership of the land. The letter written to Lafarge confirms a lease agreement, not an agreement of sale. They also question the basis upon which the applicant is seeking a declaratur as the lease agreement no longer exists. Further, they state that if the primary school were a non-existent entity, it follows that the lease agreement was entered into by an entity which had no legal capacity to enter into it. To them, the assumption by the applicant of the primary school’s name as its trade name is of no legal consequence. They argue that the board resolution does not substitute the applicant as the new lessee and that the board could not ratify the acts done by the primary school because they were not done on behalf of the applicant. Finally, the first and second respondents pray for the dismissal of the application with costs. THIRD RESPONDENT’S OPPOSITION The third respondent has been improperly cited as the Minister of Local Government, Public Works and National Housing instead of the Minister of Local Government and Public Works. However, at the hearing of the matter, Mr Muradzikwa, appearing for the third respondent, submitted that he was not taking issue with the mis-citation as it was not dispositive of the matter. On the merits of the matter, the third respondent denies that the applicant is the owner and holder of exclusive rights in the property on the basis that its allocation was canceled in 2021 by the third respondent after the applicant failed to fulfil the conditions under the lease agreement. The third respondent acknowledges entering into a lease agreement with the first respondent subsequent to the cancellation. The third respondent avers that it is arguable that the applicant paid the full purchase price for the property because the applicant approached the third respondent seeking confirmation of ownership of the property but it never came back after being advised to renew the lease agreement. The third respondent avers, further, that the issuance of a title deed was to be considered after some obligations and processes were fulfilled. It is the third respondent’s argument that the applicant ought to prove that it paid the full purchase price in 2020. The third respondent does not dispute the factual background to the matter as narrated by the applicant, including the fact that the parties entered into an oral agreement of sale, and that in order to recognise that the applicant had some rights over the property, the third respondent and the applicant executed a lease agreement under the primary school’s name. The third respondent however submits that it is not true that a letter written by the third respondent’s officers to the applicant is a confirmation that despite the existence of the lease agreement, an agreement of sale existed between the parties. The third respondent further submits that the applicant is misleading the court into believing that a simple letter could serve as confirmation of an existing agreement and that the contents of the letter are very clear. The third respondent challenges the applicant to provide sufficient evidence to prove its claims. The third respondent submits, further, that it is not arguable that the applicant paid the balance of the purchase price in local currency owing to currency changes in Zimbabwe, that it wrote a letter to Lafarge confirming ownership of the property by the applicant, and that the third respondent was in the process of issuing the applicant with a title deed. The third respondent contends that in 2020, he advised the applicant to renew its lease agreement. In 2021, he advised the applicant to fulfil the conditions of its lease through payment of lease fees and development of the property but the applicant did not respond, following which the lease agreement was canceled through a letter. Despite this, the applicant, the third respondent further contends, never bothered to present itself leading to the re-allocation of the property to the first respondent. The third respondent challenges the applicant to prove that it was not served with the letter withdrawing the lease agreement. In response to the applicant’s averment that the full purchase price was paid in 2020, which the third respondent acknowledged and indicated that he was processing the title deed so there was no lease to withdraw or terminate at that stage, the third respondent states that this is not in argument. The third respondent however argues that failure to fulfil the conditions of the lease agreement can lead to cancellation of the lease agreement. To the applicant’s submission that the third respondent totally ignored the monies paid by the applicant, the correspondences exchanged between the parties and sought to hide behind a technicality that the lease agreement had been executed in the name of the primary school and not the applicant, the third respondent comments that this is common cause but the declaratory relief should not be granted because the applicant has no rights over the property. The third respondent comments, further, that no issues arise from the submissions made by the applicant in relation to the interchange of the applicant’s names. The third respondent also prays that the application be dismissed. APPLICANT’S ANSWERING AFFIDAVIT The salient issues which the applicant motivates in the answering affidavit are as follows. It moves for the withdrawal of the second respondent’s citation as a party. It submits that the point being missed by the respondents is that it does not derive its rights on the property from the lease agreement but from the contract of sale. It further submits that the lease agreement was only entered into to give the applicant the right of continued possession of the property pending payment of the full purchase price. It asserts that receipts were issued under the name of the primary school instead of the applicant’s name, and this was way before the lease was signed. The same error was repeated at the time the lease was signed. It makes the point that both names have been used interchangeably in correspondences between the applicant and the third respondent. It states that this is a common mistake where one party enters into a contract with another party but mistakes its name to be another, but such does not invalidate the contract because it does not go to the root of same. It contends that the third respondent has not even questioned its standing because the third respondent is well aware that the applicant is the party with whom the contract of sale was entered into. It asserts that it has approached the court seeking to protect the rights it obtained from the agreement of sale, and it therefore has locus standi to institute the proceedings. It argues that there was no need to renew the lease agreement because the purchase price was paid in full. It argues, further, that the first respondent is not in a position to dispute the sale between the applicant and the third respondent when the third respondent does not dispute it. It accepts that it has not constructed the school but insists it has a caretaker staying on the property. It is the applicant’s position that the third respondent did not even follow the legally laid down procedure for canceling a contract, and that the allocation of the property to the first respondent was unlawful on the basis that the applicant paid for the stand in full. The applicant maintains that it did not receive the letters canceling the lease and questions the third respondent’s failure to attach those letters. It also points out that the applicant and third respondent continued to correspond over the sale of the property beyond the expiration of the lease agreement. The applicant submits that it has laid a basis for the relief it seeks more so in the face of the confirmations made by the third respondent in his opposing affidavit. ISSUES FOR DETERMINATION From the pleadings filed of record, two preliminary points had been raised. These relate to the misjoinder of the second respondent and the applicant’s locus standi. After the issue of misjoinder was raised in the first and second respondents’ opposing papers, the applicant indicated in its answering affidavit that it would apply for the withdrawal of the second respondent’s joinder to the current proceedings. This was duly done, and I granted the withdrawal with costs. This preliminary point having been successfully withdrawn, it becomes unnecessary for me to determine it. In my view, there are two broad issues that fall for determination in this matter. The two broad questions are: Whether or not the applicant has locus standi?If so, whether or not the applicant is entitled to the relief sought? I turn now to deal with these issues seriatim. WHETHER OR NOT THE APPLICANT HAS LOCUS STANDI? The factors to take into account in considering whether or not a person has locus standi have been traversed in various authorities in this jurisdiction and beyond. It is now settled that to establish locus standi, a party must show that they have a direct and substantial interest in the matter. See Sibanda & Ors v Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc 2018 (2) ZLR 80 (S).As to what constitutes a direct and substantial interest, it was held in the case of Zimbabwe Teachers Association & Ors v Minister of Education 1990 (2) ZLR 48 (HC) that it connotes an interest in the right which is the subject-matter of the litigation. A financial interest which is only an indirect interest in such litigation does not meet the threshold of what constitutes a direct and substantial interest. In Allied Bank Ltd v Dengu & Anor 2016 (2) ZLR 373 (S), Malaba DCJ (as he then was) elaborated on the principle further in the following manner:- “The principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Once a party establishes that there is a cause of action and that he/she is entitled to the relief sought, he or she has locus standi. The plaintiff or applicant only has to show that he or she has direct and substantial interest in the right which is the subject-matter of the cause of action. In the case of Ndlovu v Marufu HH-480-15, the court had the following to say concerning the concept of locus standi.” “It is trite that locus standi exists when there is direct and substantial interest in the right which is the subject matter of the litigation and the outcome thereof. A person who has locus standi has a right to sue which is derived from the legal interest recognised by the law. In the case of Stevenson v Minister of Local Government and National Housing and Ors SC 38-02, the court in outlining locus standi in judicio stated that in many cases the requisite interest or special reason entitling a party to bring legal proceedings has been described as “a real and substantial interest” or as a direct and substantial interest.” In casu, it is common cause that a lease agreement was entered into between the primary school and the third respondent. It is on the basis of the lease agreement that the first and second respondents argue that the applicant is different from the primary school, hence it has no standing in these proceedings. However, the applicant makes two critical submissions. Firstly, that the basis of the current application is not the lease agreement but an oral agreement of sale which it entered into with the third respondent. Secondly, that both the applicant and the third respondent were using the names of the primary school and the applicant interchangeably. At the hearing of this matter, Mr Muradzikwa submitted that it was not the applicant who had a contract with the third respondent hence there is no privity of contract between the applicant and the third respondent, a submission which Mr Biti, for the applicant, dismissed as being opportunistic because in the third respondent’s opposing affidavit, he deposes in paragraph 10 that paragraphs 18 – 28 of the applicant’s founding affidavit are not in dispute. It is in these paragraphs that the applicant makes very critical averments relating to the conclusion of the oral agreement of sale between it (not the primary school) and the third respondent; the purchase price being set at US$262 640. 00; the payment by the applicant of a 10% deposit per the terms of the oral agreement of sale; the payments being received in the name of the primary school, and the conclusion of a lease agreement to recognise the applicant’s rights over the property. In paragraph 17 of the third respondent’s opposing affidavit, the third respondent deposes that no issues arise from the applicant’s averments in paragraphs 39-48 of its founding affidavit. These paragraphs give a background to the interchange of names between the applicant and the primary school and detail how the performance of the contract panned out. It is pertinent to note that going by the third respondent’s deposition, he does not take any issue with the submission that when the lease was executed, the lessee was written as Eunigold Primary School and the deponent to the applicant’s affidavit, one Eunice Tambudzai Mangwende made an oversight without paying attention to the name entered. The third respondent does not take issue that the monies paid to the third respondent from 2010 to 2012 were receipted under the primary school’s name, which is non-existent, instead of the applicant’s name. The third respondent also takes no issue with the submission that monies paid in 2020 were then made and receipted in the applicant’s name. Further, the third respondent does not take any issue with the applicant’s submission that the third respondent has been using the names interchangeably to refer to the applicant. In his oral submissions, Mr Muradzikwa sought to qualify the third respondent’s depositions by stating that what the third respondent could not dispute was that there were certain amounts paid by the applicant, as alleged in the founding affidavit. He contended that what was not in dispute was that there was some form of agreement between the parties, whether orally or by way of a lease. He contended, further, that the third respondent could not dispute something which was not done. He then submitted that it was mischievous for the applicant to argue that the third respondent’s depositions form the crux of the matter. However, Mr Muradzikwa missed the point. The effect of the third respondent’s submission that the facts as outlined by the applicant are either not in dispute or that no issues arise from those averments is steeped in judicial precedent. Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise & Ors 1993 (2) ZLR 121 (S) and Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S) are authorities for the legal position that that which is not denied in affidavits must be taken to be admitted. Therefore, Mr Muradzikwa had no business qualifying the scope of the third respondent’s clear depositions. In my judgment, without a formal withdrawal of those averments, it was not Mr Muradzikwa’s place to try and limit their scope or add colour to their meaning. In my further view, once the applicant outlined its case as it did in the founding affidavit, it fell upon the third respondent, as the party to the agreement at the centre of the current controversy, to rebut those averments if he wished to. Instead, by stating that the version of events as told by the applicant was not in dispute and that no issues arose therefrom, the applicant’s version must be taken as admitted. In my analysis, it therefore stands on record as fact that the applicant and the third respondent entered into an oral agreement of sale. It also stands as a fact that the lease agreement was entered into by the parties as a way of recognising that the applicant had some rights over the property. Further, it stands as fact that the applicant and the third respondent laboured under the same incorrect perception that the use of the primary school’s and the applicant’s names interchangeably was not an issue and referred to one entity. On the basis of the third respondent’s averments, I have been invited by the applicant to find that there was a common mistake between the applicant and the third respondent. In Golden Beams Development (Pvt) Ltd v Mabhena HH 296-21 at p7 of the cyclostyled judgment, the court makes the following remarks regarding the principle of common mistake in contract law: “Common law recognises three types of mistake being common mistake, mutual mistake and a unilateral mistake. A mistake is either one of fact or law. In Contract General Principles, by van Der Merwe, 4 ed, 2012, at p 25 the authors describe a common mistake as follows, ‘A common mistake is said to be present where both parties to an agreement labour under the same incorrect perception of a fact external to the minds of the parties. Such a mistake, of course, does not lead to dissensus; the parties are in complete agreement although their consensus is based on an incorrect assumption or supposition’”. From the papers before me, I note that a case has been made for me to hold that indeed, there was a mistake common to both parties in this matter. My reasons are as follows. In addition to the fact that the third respondent does not dispute the applicant’s averments that the names were being used interchangeably, the erroneous assumption or supposition is also manifest in the correspondences filed of record. For instance, by a letter of 13 February 2008, the third respondent’s Secretary authored a letter to the applicant, responding to an application that had been made by the applicant for the property and advising it that the application for land for primary school purposes had been finally approved. In the same letter, the applicant was advised that the third respondent was still finalising the issue of the final subdivision plan, which would enable the third respondent’s office to process the relevant paperwork for the applicant. In that letter, the applicant was identified as Eunigod Private School. The lease agreement that followed and several payments made in respect of the property, which were receipted, were done in the name of the primary school. On 11 February 2013, a letter was written by the third respondent responding to the applicant’s request for additional land to construct teachers’ houses. The addressee in that letter was Eunigod Private School. A further letter was addressed to the third respondent on 9 November 2013 and referred to the applicant as Eunigod Private School. That letter requested a waiver of the lease agreement. This letter was captioned ‘Request for a waiver of Eunigod Private School Stand 2178 Umtali Township Lease from 2014 to indefinite’. It identified the lessee as Eunigod Private School, yet it was common cause that the parties to the lease agreement were Eunigod Primary School and the third respondent. This letter was responded to on 18 December 2013, referring to the applicant Eunigod Private School and not Eunigod Primary School. Yet another letter was written to Lafarge on 19 November 2020, indicating that the third respondent’s ministry was in the process of issuing a new lease agreement in the primary school’s name. From the above, it is clear to me that the applicant and the third respondent were using the names Eunigod Private School and Eunigod Primary School interchangeably without any issue. It occurs to me that even though the parties were using the names interchangeably, there was no dissensus between them. The parties laboured under the common mistake that the names Eunigod Private School and Eunigod Primary School referred to the same entity, and the interchange of names was a non-issue. From the submissions on record, the parties were in complete agreement as to the terms and conditions of their agreement, although their consensus was based on the incorrect assumption or supposition that by interchanging the names Eunigod Private School and Eunigod Primary School in their engagements, they were referring to the same entity.Given the above background and accepting as I must that there was a common mistake between the parties, then I have no reason to doubt that the applicant has a real and substantial interest in the property under discussion. The applicant is seeking to enforce an agreement of sale which was entered into between it and the third respondent. It can therefore be hardly disputed that the applicant is an interested party. To the extent that it stands to be affected by any decision made over the property by the third respondent, the applicant has an interest thereto. The first respondent, in motivating the preliminary point that the applicant does not have locus standi in this dispute, has argued at length on the exact nature and precise terms of the agreement between the applicant and the third respondent. However, I am inclined to reject, as I hereby do, the merit of the stance taken by the first respondent. The starting point is to observe that the first respondent was not party to the agreement between the applicant and the third respondent. The stern challenge the first respondent faces is that the parties privy to the contract accept those same facts as true. On this basis, I find that the applicant has been able to establish that it has a real and substantial interest in this matter, and I accordingly dismiss the preliminary point that the applicant has no locus standi. WHETHER OR NOT THE APPLICANT IS ENTITLED TO THE RELIEF SOUGHT? It is trite that a party seeking a declaratory order approaches the High Court in terms of section 14 of the High Court Act [Chapter 7:06]. The said section provides that:- “14 High Court may determine future or contingent rights The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.” There is a respectable body of authority enunciating the circumstances under which the High Court can issue declaratory orders. The court’s approach involves a two-stage inquiry. In the first stage, the court inquires into whether or not 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 involves an inquiry into whether, notwithstanding a finding in the first stage that the applicant has a direct interest, the particular case is a proper case for the court to exercise its discretion under s14: See Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 (1) ZLR 337 (S) at 343F-344A; and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (H). It is also a settled position 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 Nyashanu v Netone Cellular (Pvt) Ltd 2019 (1) ZLR 248 (H) at 252G-H.Earlier on in this judgment, I already found that the applicant has a direct and substantial interest in the matter, and the reasons stated therein in relation to the applicant’s interest settle the first stage of the inquiry herein. Additionally, the applicant’s interest relates to a real and not an imagined interest. It cannot be said to be too remote to be capable of being genuinely protected by the law (See Kaseplan Grand Industries (Pvt) Ltd v Teviot Trust (Pvt) Ltd HH221-24 at p5 of the cyclostyled judgment). On this basis, I am satisfied that the first requirement has been adequately met. This brings me to the second stage of the inquiry. The applicant is seeking to enforce an oral agreement of sale which it entered into with the third respondent. The second stage of the inquiry would therefore enjoin me to further examine the law of contract and its application to the facts of this case. According to the learned authors SWJ van der Merwe, LF van Huyssteen, MF B Reinecke and GF Lubbe in their book, Contract General Principles, 4 ed, Juta at p 46: “In its simplest form, a contract consists of an invitation to consent to the creation of obligations between two or more parties (called an ‘offer’) and an affirmative response (called and ‘acceptance’). The rules regarding offer and acceptance must accordingly be understood in the light of the underlying premise, namely that a contract entails the formation of a common intention by the contractants through an exchange of declarations which express their respective intentions. Since a contract is a juridical act, the agreement of the parties must of course be declared outwardly in order to be legally relevant.” In casu, we are dealing with an oral contract. In Delta Beverages (Pvt) Ltd v Pyvate Investments (Pvt) Ltd and Anor HH135-18, Dube J (as she then was) noted that: “Generally, oral contracts are enforceable and do give rise to valid contractual relationships. The oral contract, sometimes referred to as the invisible contract, is one of the most difficult to prove. What makes this so is the lack of hard evidence of the existence of the contract. The essentials of a verbal contract are the same as those of a written contract. There must be offer and acceptance of the contract, existence of consideration, the parties must have the capacity to enter into the contract and the parties must intent to enter into the contract and create a binding legal relationship. The courts will not endorse an oral agreement were any of the essential elements of a valid contract have not been proved. The terms of the oral contract must be proved and there must be agreement and understanding of the terms of the contract by the parties. An oral contract that meets all the requirements of a contract is binding on the parties and gives rise to a legally enforceable relationship…..” (at p 4-5 of the cyclostyled judgment) It is my view that in the present case, by dint of the third respondent’s acceptance of the facts on record, there can really be no debate that there was indeed a valid oral agreement between the applicant and the third respondent. Be that as it may, besides stating the purchase price for the property, the full terms of that oral agreement have not been disclosed. Yet, on the authority of Delta Beverages supra, it is necessary for the terms of the oral agreement to be proved. For instance, we are not told whether the contract had a duration. We are not told of the repayment period, or whether it was open ended or specific, more so in light of the fact that in fulfillment of the purchase price, the applicant made part payments towards the property from 2010 to 2012. It then paid off the rest of the purchase price about eight years later in 2020. The facts on record are not clear as to whether or not the applicant performed its obligations in terms of the oral agreement. I make these observations alive to the fact that to support its application for a declaratory order, the applicant argues that its ownership was confirmed by a letter dated 19 November 2020 addressed to Lafarge and authored by the third respondent. It further argues that the said letter acknowledges that the applicant had paid the full purchase price for the property and that the third respondent was now in the process of issuing the applicant with a title deed. It is clear from the contents of the letter that it does not speak to any of the applicant’s averments. While it is titled ‘Confirmation of Ownership of Stand 2178 Mutare Township’, the letter does not in any way confirm that the applicant is the owner of the property. Neither does it speak to the payment of the full purchase price as the applicant alleges, nor does it state that the Ministry is now in the process of issuing the applicant a title deed. The letter only goes as far as confirming that the third respondent’s Ministry is in the process of issuing a new lease agreement for the property in the name of the primary school. That letter cannot, by any stretch of imagination, be relied on to support the applicant’s ownership of the stand or the status of the agreement between the parties. I note that no evidence has been placed before me to suggest that the agreement between the applicant and the third respondent was such that once the full purchase price was paid, the applicant would become the owner of the property. On the contrary, it appears to me from the correspondences on record that, in addition to paying the full purchase price, there were other conditions which had to be fulfilled in the performance of the contract. My conclusions are based on the following observations. I have already alluded to the letter by the third respondent dated 18 December 2013 in response to the applicant’s request for early title. The applicant relies on this letter to prove the existence of the oral agreement of sale between itself and the third respondent. The contents of this letter warrant comment. The letter speaks to what I am of the view, were critical conditions to ‘perfect’ the applicant’s ownership of the property. Firstly, the applicant had to provide a letter from a financial institution. Secondly, the applicant had to pay the balance of the purchase price, which stood at US$236 376.00, and thirdly, the property had to be title surveyed. I find further support in my conclusions that there were other additional conditions aside from the payment of the purchase price in the letter by the applicant dated 15 April 2020. The letter is another request for an early title to be given to the applicant. The letter speaks to the fulfillment of the requirements stated in the 18 December 2013 letter, namely the payment of the full purchase price and identification of a local bank. It also speaks to the identification of an interested international investor to sponsor the applicant. On the basis of the payment, the applicant requests the third respondent to process an ‘early’ title.This leads me to conclude that the payment of the full purchase price was not the ‘be all and end all’ in this transaction. There was more. It seems to me that despite the letters placed on record by the applicant pointing towards the need for the applicant to meet other obligations in addition to paying the full purchase price for the title to pass from the third respondent to it, the applicant has not fully disclosed those conditions. It also occurs to me that the applicant has not provided evidence to support that it has fully met the conditions agreed on with the third respondent. In my view, to the extent that the applicant has not sufficiently shown this court that it has fully performed its obligations, the court cannot issue a declaratory order. Without being furnished with adequate information, the court cannot grope in the dark and blindly conclude that the applicant fulfilled its side of the bargain in accordance with the contract entitling it to the relief it seeks. There is the potential to assist the applicant to sidestep the obligations of the contract that it concluded with the third respondent. On the basis of the foregoing, I am constrained to issue the declaratory relief as prayed for by the applicant. I am not satisfied, on the circumstances of this case, that it is an appropriate case in which the court should exercise its discretion in terms of s14 of the High Court Act [Chapter 7:06]. In relation to costs, it is trite that costs follow the outcome. DISPOSITION Consequently, it is ordered that: The application for a declaratory order be and is hereby dismissed with costs. Mushure J: .......................................................................... Tendai Biti Law, applicant’s legal practitioners Tandiri Law Chambers, first and second respondents’ legal practitioners Civil Division of The Attorney General, third respondent’s legal practitioners 6 HH 410/25 HCH 5732/24 6 HH 410/25 HCH 5732/24 EUNIGOD PRIVATE SCHOOL (PVT) LTD t/a EUNIGOD PRIMARY SCHOOL Versus CHRISTBRANDS INVESTMENTS (PVT) LTD and PHILLIP MASHAAH and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING HIGH COURT OF ZIMBABWE MUSHURE J HARARE, 6 March & 10 July 2025 Application for a Declaratur T. Biti, for the applicant D. Tandiri, for the first and second respondents L. Muradzikwa, for the third respondent MUSHURE J: INTRODUCTION This is an opposed application for a declaratur in which the applicant seeks the following relief: “IT IS HEREBY DECLARED THAT: The Applicant is the rightful owner of Stand 2178 Westlea, Mutare. The lease agreement entered into between the 3rd Respondent and the 1st Respondent is null and void. CONSEQUENTLY, IT IS HEREBY ORDERED THAT: The 1st and 2nd Respondents are hereby interdicted from constructing on Stand 2178 Westlea, Mutare. The 3rd Respondent shall cancel the lease agreement executed in favour of the 1st Respondent over Stand 2178 Westlea, Mutare. The 1st and 2nd Respondents shall demolish any structure it (sic) constructed on the said stand within 48 hours of this order. The Respondents shall pay costs of suit” APPLICANT’S CASE The applicant is a company duly registered according to the laws of Zimbabwe. It avers that it is the owner and holder of exclusive rights of a certain piece of land situate in the District of Mutare called stand 2178 of Mutare Township measuring 7, 4131 hectares (‘the property’) by virtue of an oral agreement of sale between it and the third respondent. It avers, further, that in terms of the said agreement, the purchase price was set at two hundred and sixty-two thousand six hundred and forty United States dollars (US$262 640.00), payable in instalments, with an initial deposit of US$26 640.00, representing 10% of the purchase price. It asserts that it made payments towards the deposit from 2010 to 2012 and that it took vacant possession of the property in 2010. It asserts, further, that it has been enjoying peaceful and undisturbed possession of the property since then until 10 November 2024, when the first and second respondents deposited over 30 000 bricks, tons of river sand, pit sand and concrete stones on the property. It is the applicant’s submission that on 12 November 2024, the first and second respondents commenced construction works at the property and the applicant sought to interdict them on an urgent basis. The applicant submits, further, that the application was struck off the roll on the basis that there was no proper applicant before the court. According to the applicant, it is from the interdict proceedings that it gathered that the third respondent had leased over the same property to the first respondent sometime in March 2024. The applicant alleges that this was done despite having paid the full purchase price for the property in 2020 and awaiting title deeds to be issued and processed. It further alleges that on 30 November 2020, the third respondent even wrote a letter to Lafarge Cement (Pvt) Ltd (‘Lafarge’) confirming its ownership of the property, that the full purchase price had been paid and that it was in the process of issuing the applicant with a title deed. The applicant alleges that, to date, no such title deed has been issued. It is the applicant’s contention that the third respondent purports to have withdrawn the lease sometime in 2021, but that withdrawal was never served on the applicant. An averment is made by the applicant that at the time the lease agreement was executed, the lessee was named as Eunigold Primary School (‘the primary school’) which is a non-existent entity at law with no capacity to contract and the applicant’s representative made an oversight and signed the lease without paying attention to the name entered. Monies paid to the third respondent from 2010 to 2012 were receipted under the primary school’s name instead of the applicant herein because the representative was acting on behalf of the applicant. The applicant asserts that the name had never been an issue until the interdict proceedings, and the third respondent itself had used the two names interchangeably to refer to the applicant. The applicant asserts, further, that it has since assumed the name of the unregistered entity as its trade name and ratified the acts of the primary school as its own acts. FIRST AND SECOND RESPONDENTS’ OPPOSITION The first and second respondents argue, in limine, that the second respondent has been misjoined to the proceedings because he does not have a personal, direct and substantial interest in the matter. They argue, further, that the applicant has no locus standi to sue on the basis of the lease agreement, which was entered into between the primary school and the third respondent. They contend that the applicant’s assumption of the name Eunigod Primary School as its trade name was only done on 13 December 2024 and has no retrospective effect. They further contend that at the time the lease agreement was entered into, the primary school and the applicant had no relationship and that the applicant was already in existence. Additionally, at the time of contracting, the primary school was an unregistered entity with no capacity to enter into contracts; hence, the lease agreement was a nullity. In any event, they submit, the applicant did not inherit any rights from the lease agreement and the fact that the applicant assumed the primary school’s name does not mean that it is now entitled to exercise all the rights and bear all the primary school’s liabilities. They suggest that the proper course of action would have been for the primary school to cede its rights and liabilities to the applicant. On the merits, the first and second respondents dispute the applicant’s ownership of the property and state that the entity which entered into the lease agreement was the primary school. The lease agreement expired by effluxion of time in 2014 and was never renewed. The primary school also failed to comply with all material terms and conditions of the lease agreement, including failure to pay rentals annually and failure to construct structures prior to the expiration of the lease agreement. The first and second respondents doubt that the primary school exercised the right of option to purchase the property. They contend that the applicant never took occupation of the property but sublet a portion thereafter to someone else who was involved in horticulture and poultry projects. They confirm that the third respondent entered into a lease agreement with the first respondent on 1 February 2024 and took vacant possession of the stand on 6 March 2024. It is submitted on behalf of the first and second respondents that the lease agreement between the first respondent and the third respondent was only entered into after the termination of the lease agreement between the third respondent and the primary school. The respondents make reference to two case numbers, HCH5335/24 and HCH5343/25, in which they allege that the primary school was furnished with copies of the notice of intention to withdraw the lease and the notice of the termination of the lease agreement, yet the applicant did not challenge the withdrawal. Further, the primary school was never charged the purchase price by the third respondent, and the assumption should be that the payments were for rentals. Even if that be the case, the first and second respondents contend that there is no evidence that the primary school paid rentals between 2010 and 2020; there is no evidence that the payments made in the first year were for the purchase price because the receipts speak to rentals; and there is also no evidence that an initial deposit was paid. The first and second respondents challenge the applicant’s submission that the third respondent confirmed the primary school’s ownership of the land. The letter written to Lafarge confirms a lease agreement, not an agreement of sale. They also question the basis upon which the applicant is seeking a declaratur as the lease agreement no longer exists. Further, they state that if the primary school were a non-existent entity, it follows that the lease agreement was entered into by an entity which had no legal capacity to enter into it. To them, the assumption by the applicant of the primary school’s name as its trade name is of no legal consequence. They argue that the board resolution does not substitute the applicant as the new lessee and that the board could not ratify the acts done by the primary school because they were not done on behalf of the applicant. Finally, the first and second respondents pray for the dismissal of the application with costs. THIRD RESPONDENT’S OPPOSITION The third respondent has been improperly cited as the Minister of Local Government, Public Works and National Housing instead of the Minister of Local Government and Public Works. However, at the hearing of the matter, Mr Muradzikwa, appearing for the third respondent, submitted that he was not taking issue with the mis-citation as it was not dispositive of the matter. On the merits of the matter, the third respondent denies that the applicant is the owner and holder of exclusive rights in the property on the basis that its allocation was canceled in 2021 by the third respondent after the applicant failed to fulfil the conditions under the lease agreement. The third respondent acknowledges entering into a lease agreement with the first respondent subsequent to the cancellation. The third respondent avers that it is arguable that the applicant paid the full purchase price for the property because the applicant approached the third respondent seeking confirmation of ownership of the property but it never came back after being advised to renew the lease agreement. The third respondent avers, further, that the issuance of a title deed was to be considered after some obligations and processes were fulfilled. It is the third respondent’s argument that the applicant ought to prove that it paid the full purchase price in 2020. The third respondent does not dispute the factual background to the matter as narrated by the applicant, including the fact that the parties entered into an oral agreement of sale, and that in order to recognise that the applicant had some rights over the property, the third respondent and the applicant executed a lease agreement under the primary school’s name. The third respondent however submits that it is not true that a letter written by the third respondent’s officers to the applicant is a confirmation that despite the existence of the lease agreement, an agreement of sale existed between the parties. The third respondent further submits that the applicant is misleading the court into believing that a simple letter could serve as confirmation of an existing agreement and that the contents of the letter are very clear. The third respondent challenges the applicant to provide sufficient evidence to prove its claims. The third respondent submits, further, that it is not arguable that the applicant paid the balance of the purchase price in local currency owing to currency changes in Zimbabwe, that it wrote a letter to Lafarge confirming ownership of the property by the applicant, and that the third respondent was in the process of issuing the applicant with a title deed. The third respondent contends that in 2020, he advised the applicant to renew its lease agreement. In 2021, he advised the applicant to fulfil the conditions of its lease through payment of lease fees and development of the property but the applicant did not respond, following which the lease agreement was canceled through a letter. Despite this, the applicant, the third respondent further contends, never bothered to present itself leading to the re-allocation of the property to the first respondent. The third respondent challenges the applicant to prove that it was not served with the letter withdrawing the lease agreement. In response to the applicant’s averment that the full purchase price was paid in 2020, which the third respondent acknowledged and indicated that he was processing the title deed so there was no lease to withdraw or terminate at that stage, the third respondent states that this is not in argument. The third respondent however argues that failure to fulfil the conditions of the lease agreement can lead to cancellation of the lease agreement. To the applicant’s submission that the third respondent totally ignored the monies paid by the applicant, the correspondences exchanged between the parties and sought to hide behind a technicality that the lease agreement had been executed in the name of the primary school and not the applicant, the third respondent comments that this is common cause but the declaratory relief should not be granted because the applicant has no rights over the property. The third respondent comments, further, that no issues arise from the submissions made by the applicant in relation to the interchange of the applicant’s names. The third respondent also prays that the application be dismissed. APPLICANT’S ANSWERING AFFIDAVIT The salient issues which the applicant motivates in the answering affidavit are as follows. It moves for the withdrawal of the second respondent’s citation as a party. It submits that the point being missed by the respondents is that it does not derive its rights on the property from the lease agreement but from the contract of sale. It further submits that the lease agreement was only entered into to give the applicant the right of continued possession of the property pending payment of the full purchase price. It asserts that receipts were issued under the name of the primary school instead of the applicant’s name, and this was way before the lease was signed. The same error was repeated at the time the lease was signed. It makes the point that both names have been used interchangeably in correspondences between the applicant and the third respondent. It states that this is a common mistake where one party enters into a contract with another party but mistakes its name to be another, but such does not invalidate the contract because it does not go to the root of same. It contends that the third respondent has not even questioned its standing because the third respondent is well aware that the applicant is the party with whom the contract of sale was entered into. It asserts that it has approached the court seeking to protect the rights it obtained from the agreement of sale, and it therefore has locus standi to institute the proceedings. It argues that there was no need to renew the lease agreement because the purchase price was paid in full. It argues, further, that the first respondent is not in a position to dispute the sale between the applicant and the third respondent when the third respondent does not dispute it. It accepts that it has not constructed the school but insists it has a caretaker staying on the property. It is the applicant’s position that the third respondent did not even follow the legally laid down procedure for canceling a contract, and that the allocation of the property to the first respondent was unlawful on the basis that the applicant paid for the stand in full. The applicant maintains that it did not receive the letters canceling the lease and questions the third respondent’s failure to attach those letters. It also points out that the applicant and third respondent continued to correspond over the sale of the property beyond the expiration of the lease agreement. The applicant submits that it has laid a basis for the relief it seeks more so in the face of the confirmations made by the third respondent in his opposing affidavit. ISSUES FOR DETERMINATION From the pleadings filed of record, two preliminary points had been raised. These relate to the misjoinder of the second respondent and the applicant’s locus standi. After the issue of misjoinder was raised in the first and second respondents’ opposing papers, the applicant indicated in its answering affidavit that it would apply for the withdrawal of the second respondent’s joinder to the current proceedings. This was duly done, and I granted the withdrawal with costs. This preliminary point having been successfully withdrawn, it becomes unnecessary for me to determine it. In my view, there are two broad issues that fall for determination in this matter. The two broad questions are: Whether or not the applicant has locus standi? If so, whether or not the applicant is entitled to the relief sought? I turn now to deal with these issues seriatim. WHETHER OR NOT THE APPLICANT HAS LOCUS STANDI? The factors to take into account in considering whether or not a person has locus standi have been traversed in various authorities in this jurisdiction and beyond. It is now settled that to establish locus standi, a party must show that they have a direct and substantial interest in the matter. See Sibanda & Ors v Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc 2018 (2) ZLR 80 (S). As to what constitutes a direct and substantial interest, it was held in the case of Zimbabwe Teachers Association & Ors v Minister of Education 1990 (2) ZLR 48 (HC) that it connotes an interest in the right which is the subject-matter of the litigation. A financial interest which is only an indirect interest in such litigation does not meet the threshold of what constitutes a direct and substantial interest. In Allied Bank Ltd v Dengu & Anor 2016 (2) ZLR 373 (S), Malaba DCJ (as he then was) elaborated on the principle further in the following manner:- “The principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Once a party establishes that there is a cause of action and that he/she is entitled to the relief sought, he or she has locus standi. The plaintiff or applicant only has to show that he or she has direct and substantial interest in the right which is the subject-matter of the cause of action. In the case of Ndlovu v Marufu HH-480-15, the court had the following to say concerning the concept of locus standi.” “It is trite that locus standi exists when there is direct and substantial interest in the right which is the subject matter of the litigation and the outcome thereof. A person who has locus standi has a right to sue which is derived from the legal interest recognised by the law. In the case of Stevenson v Minister of Local Government and National Housing and Ors SC 38-02, the court in outlining locus standi in judicio stated that in many cases the requisite interest or special reason entitling a party to bring legal proceedings has been described as “a real and substantial interest” or as a direct and substantial interest.” In casu, it is common cause that a lease agreement was entered into between the primary school and the third respondent. It is on the basis of the lease agreement that the first and second respondents argue that the applicant is different from the primary school, hence it has no standing in these proceedings. However, the applicant makes two critical submissions. Firstly, that the basis of the current application is not the lease agreement but an oral agreement of sale which it entered into with the third respondent. Secondly, that both the applicant and the third respondent were using the names of the primary school and the applicant interchangeably. At the hearing of this matter, Mr Muradzikwa submitted that it was not the applicant who had a contract with the third respondent hence there is no privity of contract between the applicant and the third respondent, a submission which Mr Biti, for the applicant, dismissed as being opportunistic because in the third respondent’s opposing affidavit, he deposes in paragraph 10 that paragraphs 18 – 28 of the applicant’s founding affidavit are not in dispute. It is in these paragraphs that the applicant makes very critical averments relating to the conclusion of the oral agreement of sale between it (not the primary school) and the third respondent; the purchase price being set at US$262 640. 00; the payment by the applicant of a 10% deposit per the terms of the oral agreement of sale; the payments being received in the name of the primary school, and the conclusion of a lease agreement to recognise the applicant’s rights over the property. In paragraph 17 of the third respondent’s opposing affidavit, the third respondent deposes that no issues arise from the applicant’s averments in paragraphs 39-48 of its founding affidavit. These paragraphs give a background to the interchange of names between the applicant and the primary school and detail how the performance of the contract panned out. It is pertinent to note that going by the third respondent’s deposition, he does not take any issue with the submission that when the lease was executed, the lessee was written as Eunigold Primary School and the deponent to the applicant’s affidavit, one Eunice Tambudzai Mangwende made an oversight without paying attention to the name entered. The third respondent does not take issue that the monies paid to the third respondent from 2010 to 2012 were receipted under the primary school’s name, which is non-existent, instead of the applicant’s name. The third respondent also takes no issue with the submission that monies paid in 2020 were then made and receipted in the applicant’s name. Further, the third respondent does not take any issue with the applicant’s submission that the third respondent has been using the names interchangeably to refer to the applicant. In his oral submissions, Mr Muradzikwa sought to qualify the third respondent’s depositions by stating that what the third respondent could not dispute was that there were certain amounts paid by the applicant, as alleged in the founding affidavit. He contended that what was not in dispute was that there was some form of agreement between the parties, whether orally or by way of a lease. He contended, further, that the third respondent could not dispute something which was not done. He then submitted that it was mischievous for the applicant to argue that the third respondent’s depositions form the crux of the matter. However, Mr Muradzikwa missed the point. The effect of the third respondent’s submission that the facts as outlined by the applicant are either not in dispute or that no issues arise from those averments is steeped in judicial precedent. Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise & Ors 1993 (2) ZLR 121 (S) and Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S) are authorities for the legal position that that which is not denied in affidavits must be taken to be admitted. Therefore, Mr Muradzikwa had no business qualifying the scope of the third respondent’s clear depositions. In my judgment, without a formal withdrawal of those averments, it was not Mr Muradzikwa’s place to try and limit their scope or add colour to their meaning. In my further view, once the applicant outlined its case as it did in the founding affidavit, it fell upon the third respondent, as the party to the agreement at the centre of the current controversy, to rebut those averments if he wished to. Instead, by stating that the version of events as told by the applicant was not in dispute and that no issues arose therefrom, the applicant’s version must be taken as admitted. In my analysis, it therefore stands on record as fact that the applicant and the third respondent entered into an oral agreement of sale. It also stands as a fact that the lease agreement was entered into by the parties as a way of recognising that the applicant had some rights over the property. Further, it stands as fact that the applicant and the third respondent laboured under the same incorrect perception that the use of the primary school’s and the applicant’s names interchangeably was not an issue and referred to one entity. On the basis of the third respondent’s averments, I have been invited by the applicant to find that there was a common mistake between the applicant and the third respondent. In Golden Beams Development (Pvt) Ltd v Mabhena HH 296-21 at p7 of the cyclostyled judgment, the court makes the following remarks regarding the principle of common mistake in contract law: “Common law recognises three types of mistake being common mistake, mutual mistake and a unilateral mistake. A mistake is either one of fact or law. In Contract General Principles, by van Der Merwe, 4 ed, 2012, at p 25 the authors describe a common mistake as follows, ‘A common mistake is said to be present where both parties to an agreement labour under the same incorrect perception of a fact external to the minds of the parties. Such a mistake, of course, does not lead to dissensus; the parties are in complete agreement although their consensus is based on an incorrect assumption or supposition’”. From the papers before me, I note that a case has been made for me to hold that indeed, there was a mistake common to both parties in this matter. My reasons are as follows. In addition to the fact that the third respondent does not dispute the applicant’s averments that the names were being used interchangeably, the erroneous assumption or supposition is also manifest in the correspondences filed of record. For instance, by a letter of 13 February 2008, the third respondent’s Secretary authored a letter to the applicant, responding to an application that had been made by the applicant for the property and advising it that the application for land for primary school purposes had been finally approved. In the same letter, the applicant was advised that the third respondent was still finalising the issue of the final subdivision plan, which would enable the third respondent’s office to process the relevant paperwork for the applicant. In that letter, the applicant was identified as Eunigod Private School. The lease agreement that followed and several payments made in respect of the property, which were receipted, were done in the name of the primary school. On 11 February 2013, a letter was written by the third respondent responding to the applicant’s request for additional land to construct teachers’ houses. The addressee in that letter was Eunigod Private School. A further letter was addressed to the third respondent on 9 November 2013 and referred to the applicant as Eunigod Private School. That letter requested a waiver of the lease agreement. This letter was captioned ‘Request for a waiver of Eunigod Private School Stand 2178 Umtali Township Lease from 2014 to indefinite’. It identified the lessee as Eunigod Private School, yet it was common cause that the parties to the lease agreement were Eunigod Primary School and the third respondent. This letter was responded to on 18 December 2013, referring to the applicant Eunigod Private School and not Eunigod Primary School. Yet another letter was written to Lafarge on 19 November 2020, indicating that the third respondent’s ministry was in the process of issuing a new lease agreement in the primary school’s name. From the above, it is clear to me that the applicant and the third respondent were using the names Eunigod Private School and Eunigod Primary School interchangeably without any issue. It occurs to me that even though the parties were using the names interchangeably, there was no dissensus between them. The parties laboured under the common mistake that the names Eunigod Private School and Eunigod Primary School referred to the same entity, and the interchange of names was a non-issue. From the submissions on record, the parties were in complete agreement as to the terms and conditions of their agreement, although their consensus was based on the incorrect assumption or supposition that by interchanging the names Eunigod Private School and Eunigod Primary School in their engagements, they were referring to the same entity. Given the above background and accepting as I must that there was a common mistake between the parties, then I have no reason to doubt that the applicant has a real and substantial interest in the property under discussion. The applicant is seeking to enforce an agreement of sale which was entered into between it and the third respondent. It can therefore be hardly disputed that the applicant is an interested party. To the extent that it stands to be affected by any decision made over the property by the third respondent, the applicant has an interest thereto. The first respondent, in motivating the preliminary point that the applicant does not have locus standi in this dispute, has argued at length on the exact nature and precise terms of the agreement between the applicant and the third respondent. However, I am inclined to reject, as I hereby do, the merit of the stance taken by the first respondent. The starting point is to observe that the first respondent was not party to the agreement between the applicant and the third respondent. The stern challenge the first respondent faces is that the parties privy to the contract accept those same facts as true. On this basis, I find that the applicant has been able to establish that it has a real and substantial interest in this matter, and I accordingly dismiss the preliminary point that the applicant has no locus standi. WHETHER OR NOT THE APPLICANT IS ENTITLED TO THE RELIEF SOUGHT? It is trite that a party seeking a declaratory order approaches the High Court in terms of section 14 of the High Court Act [Chapter 7:06]. The said section provides that:- “14 High Court may determine future or contingent rights The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.” There is a respectable body of authority enunciating the circumstances under which the High Court can issue declaratory orders. The court’s approach involves a two-stage inquiry. In the first stage, the court inquires into whether or not 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 involves an inquiry into whether, notwithstanding a finding in the first stage that the applicant has a direct interest, the particular case is a proper case for the court to exercise its discretion under s14: See Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 (1) ZLR 337 (S) at 343F-344A; and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (H). It is also a settled position 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 Nyashanu v Netone Cellular (Pvt) Ltd 2019 (1) ZLR 248 (H) at 252G-H. Earlier on in this judgment, I already found that the applicant has a direct and substantial interest in the matter, and the reasons stated therein in relation to the applicant’s interest settle the first stage of the inquiry herein. Additionally, the applicant’s interest relates to a real and not an imagined interest. It cannot be said to be too remote to be capable of being genuinely protected by the law (See Kaseplan Grand Industries (Pvt) Ltd v Teviot Trust (Pvt) Ltd HH221-24 at p5 of the cyclostyled judgment). On this basis, I am satisfied that the first requirement has been adequately met. This brings me to the second stage of the inquiry. The applicant is seeking to enforce an oral agreement of sale which it entered into with the third respondent. The second stage of the inquiry would therefore enjoin me to further examine the law of contract and its application to the facts of this case. According to the learned authors SWJ van der Merwe, LF van Huyssteen, MF B Reinecke and GF Lubbe in their book, Contract General Principles, 4 ed, Juta at p 46: “In its simplest form, a contract consists of an invitation to consent to the creation of obligations between two or more parties (called an ‘offer’) and an affirmative response (called and ‘acceptance’). The rules regarding offer and acceptance must accordingly be understood in the light of the underlying premise, namely that a contract entails the formation of a common intention by the contractants through an exchange of declarations which express their respective intentions. Since a contract is a juridical act, the agreement of the parties must of course be declared outwardly in order to be legally relevant.” In casu, we are dealing with an oral contract. In Delta Beverages (Pvt) Ltd v Pyvate Investments (Pvt) Ltd and Anor HH135-18, Dube J (as she then was) noted that: “Generally, oral contracts are enforceable and do give rise to valid contractual relationships. The oral contract, sometimes referred to as the invisible contract, is one of the most difficult to prove. What makes this so is the lack of hard evidence of the existence of the contract. The essentials of a verbal contract are the same as those of a written contract. There must be offer and acceptance of the contract, existence of consideration, the parties must have the capacity to enter into the contract and the parties must intent to enter into the contract and create a binding legal relationship. The courts will not endorse an oral agreement were any of the essential elements of a valid contract have not been proved. The terms of the oral contract must be proved and there must be agreement and understanding of the terms of the contract by the parties. An oral contract that meets all the requirements of a contract is binding on the parties and gives rise to a legally enforceable relationship…..” (at p 4-5 of the cyclostyled judgment) It is my view that in the present case, by dint of the third respondent’s acceptance of the facts on record, there can really be no debate that there was indeed a valid oral agreement between the applicant and the third respondent. Be that as it may, besides stating the purchase price for the property, the full terms of that oral agreement have not been disclosed. Yet, on the authority of Delta Beverages supra, it is necessary for the terms of the oral agreement to be proved. For instance, we are not told whether the contract had a duration. We are not told of the repayment period, or whether it was open ended or specific, more so in light of the fact that in fulfillment of the purchase price, the applicant made part payments towards the property from 2010 to 2012. It then paid off the rest of the purchase price about eight years later in 2020. The facts on record are not clear as to whether or not the applicant performed its obligations in terms of the oral agreement. I make these observations alive to the fact that to support its application for a declaratory order, the applicant argues that its ownership was confirmed by a letter dated 19 November 2020 addressed to Lafarge and authored by the third respondent. It further argues that the said letter acknowledges that the applicant had paid the full purchase price for the property and that the third respondent was now in the process of issuing the applicant with a title deed. It is clear from the contents of the letter that it does not speak to any of the applicant’s averments. While it is titled ‘Confirmation of Ownership of Stand 2178 Mutare Township’, the letter does not in any way confirm that the applicant is the owner of the property. Neither does it speak to the payment of the full purchase price as the applicant alleges, nor does it state that the Ministry is now in the process of issuing the applicant a title deed. The letter only goes as far as confirming that the third respondent’s Ministry is in the process of issuing a new lease agreement for the property in the name of the primary school. That letter cannot, by any stretch of imagination, be relied on to support the applicant’s ownership of the stand or the status of the agreement between the parties. I note that no evidence has been placed before me to suggest that the agreement between the applicant and the third respondent was such that once the full purchase price was paid, the applicant would become the owner of the property. On the contrary, it appears to me from the correspondences on record that, in addition to paying the full purchase price, there were other conditions which had to be fulfilled in the performance of the contract. My conclusions are based on the following observations. I have already alluded to the letter by the third respondent dated 18 December 2013 in response to the applicant’s request for early title. The applicant relies on this letter to prove the existence of the oral agreement of sale between itself and the third respondent. The contents of this letter warrant comment. The letter speaks to what I am of the view, were critical conditions to ‘perfect’ the applicant’s ownership of the property. Firstly, the applicant had to provide a letter from a financial institution. Secondly, the applicant had to pay the balance of the purchase price, which stood at US$236 376.00, and thirdly, the property had to be title surveyed. I find further support in my conclusions that there were other additional conditions aside from the payment of the purchase price in the letter by the applicant dated 15 April 2020. The letter is another request for an early title to be given to the applicant. The letter speaks to the fulfillment of the requirements stated in the 18 December 2013 letter, namely the payment of the full purchase price and identification of a local bank. It also speaks to the identification of an interested international investor to sponsor the applicant. On the basis of the payment, the applicant requests the third respondent to process an ‘early’ title. This leads me to conclude that the payment of the full purchase price was not the ‘be all and end all’ in this transaction. There was more. It seems to me that despite the letters placed on record by the applicant pointing towards the need for the applicant to meet other obligations in addition to paying the full purchase price for the title to pass from the third respondent to it, the applicant has not fully disclosed those conditions. It also occurs to me that the applicant has not provided evidence to support that it has fully met the conditions agreed on with the third respondent. In my view, to the extent that the applicant has not sufficiently shown this court that it has fully performed its obligations, the court cannot issue a declaratory order. Without being furnished with adequate information, the court cannot grope in the dark and blindly conclude that the applicant fulfilled its side of the bargain in accordance with the contract entitling it to the relief it seeks. There is the potential to assist the applicant to sidestep the obligations of the contract that it concluded with the third respondent. On the basis of the foregoing, I am constrained to issue the declaratory relief as prayed for by the applicant. I am not satisfied, on the circumstances of this case, that it is an appropriate case in which the court should exercise its discretion in terms of s14 of the High Court Act [Chapter 7:06]. In relation to costs, it is trite that costs follow the outcome. DISPOSITION Consequently, it is ordered that: The application for a declaratory order be and is hereby dismissed with costs. Mushure J: .......................................................................... Tendai Biti Law, applicant’s legal practitioners Tandiri Law Chambers, first and second respondents’ legal practitioners Civil Division of The Attorney General, third respondent’s legal practitioners