BARIADE INVESTMENTS UNIVERSITY OF ZIMBABWE v MASHAMHANDA (313 of 2025) [2025] ZWHHC 313 (21 May 2025)

7 HH 313 - 25 HCH 2461/23 BARIADE INVESTMENTS versus TENDAI MASHAMHANDA HIGH COURT OF ZIMBABWE MUSHURE J HARARE, 26 February, 14 March & 21 May 2025 T. L. Mapuranga for the plaintiff K. Rangarirai for the defendant Civil trial MUSHURE J: INTRODUCTION The plaintiff is the registered owner of a certain piece of land called the remainder of Subdivision C of Lot 6 of Lot 190,191,193, 194 and 195 Highland Estates of Welmoed, measuring 4377sqm, also known as number 41 Ridgeway North, Highlands, Harare (‘the property’). The plaintiff took ownership of the property on 7 May 2022 pursuant to a tortuous legal battle which culminated in a Supreme Court judgment under SC24-22 involving both the plaintiff and the defendant as well as one Puwayi Chiutsi, one Elliot Rodgers, the Registrar of Deeds and the Sheriff of the High Court as parties. At the time judgment was given in the Supreme Court, the defendant was in occupation of the property. He continued to occupy the property until his eviction on 25 June 2024. According to the plaintiff, the defendant neither has any lawful right nor its leave to occupy the property. The suit before me is for damages arising out of the alleged unlawful occupation of the property. The summons were issued on 12 April 2023, a little over a year before the defendant was evicted by the Sheriff. The plaintiff claims US$28 000 as damages calculated from the date of acquisition of ownership to the date of issue of summons. The plaintiff also claims the sum of US$2 800 per month calculated from 1 April 2023 to the date the defendant would vacate the property. Additionally, the plaintiff claims interest at the prescribed rate of 5% per annum calculated from 8 May 2022 to the date of payment in full, both dates inclusive, as well as costs of suit. The defendant is resisting the plaintiff’s claim. He pleads that the question of ownership of the property is in dispute and is pending before the courts, under CCZ 12/22 and HCH 3124/22. It is the defendant’s plea that under CCZ 12/22, he has petitioned the Constitutional Court for direct access to enable him to challenge the Supreme Court judgment under SC 24-22; and that HCH 3124/22 is a case filed by the plaintiff for the defendant’s eviction. In that matter, eviction was initially granted but the defendant appealed to the Supreme Court. The Supreme Court remitted the matter to the High Court for a re-hearing. The defendant prays in his plea that the plaintiff’s claim be dismissed because until such a time the issue of ownership is resolved by the courts, the plaintiff ought not to claim damages. He confirms that he has refused to vacate the property and his reason is that there is no eviction order. He pleads that there is no eviction order because the issue of ownership is yet to be resolved by the courts. After the closure of pleadings, the matter proceeded to pre-trial conference in terms of the rules of this Court, whereafter the matter was referred for trial. The issues for trial, as determined by the parties at the pre-trial conference held before a Judge and set out in the joint pre-trial conference minute they signed are as follows:- What is the effect, if any, of the proceedings filed by the Defendant under case number SC 666/23, HCH 1725/24 and HCH 1845/24 on plaintiff’s claim for unlawful occupation?Whether or not Plaintiff is entitled to claim damages for unlawful occupation from the Defendant?If Plaintiff is entitled to claim holding over damages from the Defendant, what is the quantum of the unlawful occupation damages? Six witnesses testified at the trial. The plaintiff led evidence from its representative, Kingston Hamutendi Munyawarara and Timothy Mazibuye, an estate agent. The defendant led evidence from himself as well as Wonder Mwango from the City of Harare (‘Council’), Ellen Runyararo Mawire from the Deeds Registry and Maxwell Chiwundidza from the Zimbabwe Revenue Authority (‘ZIMRA’). THE PLAINTIFF’S EVIDENCE The evidence of Kingston Hamutendi Munyawarara in support of the plaintiff’s claim was that the plaintiff purchased the property through an auction in September 2017, together with three other properties. Transfer of the other three properties had been done without much ado, but the sale of the property forming the subject matter of this suit was challenged through litigation. The challenges were unsuccessful. An attempt to process the transfer of the property hit a brick wall because the property had been fraudulently sold and transferred to the defendant. The plaintiff sought a reversal of that transaction in the courts and in February 2022, the Supreme Court cancelled the defendant’s deed of transfer. Title was subsequently transferred to the plaintiff on 7 May 2022, following which the defendant was duly advised. The plaintiff consequently instituted eviction proceedings which led to the defendant’s eviction on 25 June 2024. It was the plaintiff’s evidence that the defendant had taken possession of the property in 2019 but after 7 May 2022, there was no reason for the defendant’s continued occupation of the property. The defendant’s continued occupation had derailed its plans to convert the property to a commercial property. This was exacerbated by the fact that the defendant had, despite a court order prohibiting same, gone ahead and did some construction on the property. He pegged the rentals at US$3 000 per month, but was quick to point out that this amount was on the conservative side. He testified that the plaintiff had engaged two estate agents from Rawson Properties and Panavest Properties to value the property. One had valued the rentals at US$3 000, while the other had valued it at US$2 800. The claim before the court was based on the lower figure. Both valuation reports were accepted and incorporated into evidence by consent of both parties. Mr Munyawarara stated that although the figure was conservative, the plaintiff was happy with it. He testified, further, that the Constitutional Court case was dismissed and that attempts to have the deed of transfer in plaintiff’s favour cancelled were futile as they were dismissed by the High Court. It was his evidence that all the matters referred to in the joint pre-trial conference minute had been disposed of. He clarified that SC 666/24 was an appeal by the defendant challenging an order for his eviction. The appeal was dismissed in July 2024. HCH 1725/24 was a claim filed by the defendant for compensation for improvements on the property. The matter had been withdrawn. Under HCH 1845/24, the defendant was seeking that the plaintiff’s title be declared invalid because of defective documents. That matter was dismissed. The witness was cross-examined on the legality of the Deeds Registry transferring the property and the capital gains tax being calculated in local currency instead of United States dollars. He was also questioned on a note on the letter applying for the rates clearance certificate to the effect that a wrong deed of transfer had been used. The witness stated that the defendant had for three years made vain attempts to reverse the transfer on the same bases. He had been unsuccessful. The second witness to testify on behalf of the plaintiff, Timothy Mazibuye, is a qualified valuer and estate agent. He testified that he had been engaged to do a rental valuation of the property and he had established US$3 000 to be a fair market rental of the property. In coming up with this figure, he had been guided by the location of the property, surrounding properties within the area and the state of the building. He also considered comparable properties within the same vicinity and engaged other valuation practitioners to compare notes on achievable rentals in the area at any given time. He testified that at the time he did the valuation, he had been denied access inside the property but had managed to get into the perimeter wall and was able to inspect the exterior of the property. He noted that the property is situated in a prime location commonly known as the Golden Triangle in property parlance and that it had been recently renovated. It was his testimony that the Golden Triangle incorporates Ridgeway North, on which this property is situated, Colne Valley and Rolf Valley. He added that when he eventually gained access into the interior of the property, he concluded, judging by the modern renovations, that had he had access at the time he did the valuation, he would have pegged rentals for the property at US$3 500. THE DEFENDANT’S EVIDENCE It was the defendant’s evidence that he purchased the property from Puwayi Chiutsi and that he did not know that the property was encumbered. He testified that the plaintiff’s title was invalid because certain procedural steps had not been followed. He justified his continued stay at the property on the basis of the ongoing court cases. He argued that he had demolished the whole house three months after moving in and rebuilt a new house altogether, but he had not been compensated for those improvements to the tune of US$1 200 000. It was his testimony that the damages claimed by the plaintiff were not plausible because of the court cases and that the proper rental value was US$1 500, despite him having undertaken high value improvements on the property. He admitted that he had not sought a professional valuer to value the property. To him, there had been no need to do so as he was legally occupying the property. He also admitted that a Supreme Court decision pronouncing that he was not an innocent purchaser was extant. He stated that there were several cases before the magistrates’ court in which evidence of a criminal nature had been found that ‘could lead to a change’. He admitted, further, that the Supreme Court decision under SC 666/23 had not been challenged and that he had withdrawn his claim for compensation under HCH 1725/24. He reasoned that more evidence was gathered and the matter had been taken to the magistrates’ court which move he hoped would lead to a quicker solution. He conceded that the decision against him under HCH 1845/24 had not been challenged. He was questioned on the cases he had previously filed challenging the rates clearance certificate, the capital gains tax certificate and the deed of transfer, and he stated that all those cases had been dismissed on technicalities. He was also questioned on judgment under SC 17-24 by Bhunu JA, in which the learned Judge of Appeal remarked that the defendant had been in unlawful and mala fide occupation of the plaintiff’s property for more than five years. His response was that the Supreme Court had contradicted a High Court judgment deeming him an innocent purchaser. He argued that the issue of title had not been fully argued before the courts. He also elaborated that the magistrates’ court cases were reported in 2022 and at the time this matter was instituted, those cases were ongoing. The second defendant’s witness, Mr. Wonder Mwango, is responsible for handling correspondence and attending to queries that come through letters at Council. He noted that there was a letter dated 2 March 2022 which had been written by Tendai Biti Law requesting for a rates clearance certificate for the property. The letter was referenced ‘TRANSFER REGISTRATION PUWAYI CHIUTSI TO BARIADE INVESTMENTS (1) A CERTAIN 4 377 SQUARE METRES OF LAND CALLED THE REMAINDER OF SUBDIVISION C OF LOT 6 OF LOTS 190, 191, 193, 194 AND 195 HIGHLANDS ESTATE OF WELMOED SITUATE IN THE DISTRICT OF SALISBURY ALSO KNOWN AS STAND 41 RIDGEWAY NORTH, HIGHLANDS, HARARE’. Against that reference was an entry in long hand saying ‘update names’. Mr Mwango explained that when an application for rates clearance is being processed, a comparison between the names in the application letter and those in the billing system is done. In this case, that comparison yielded a difference between the name in the application letter and the name in the billing system. The expectation was that the billing system would reflect Puwayi Chiutsi but it reflected the defendant’s name. The conclusion then was that Council had not updated its records and there was need for verification. Mr Mwango admitted that it was the Council’s responsibility to update names and that the problem of not updating records lay with Council. He admitted, further, that he did not know that the letter dated 2 March 2022 was written pursuant to the Supreme Court judgment cancelling the deed in favour of the defendant’s title to the property and reinstating Puwayi Chiutsi’s deed. He conceded that the Council was behind on the developments and that a letter he drafted for the Council’s Acting Finance Director on 7 June 2024, implying that the rates clearance certificate issued by Council was invalid was based on erroneous information and therefore wrong. It emerged that the 7 June 2024 letter was written way after the issuance of the rates clearance certificate and it was written in the context of Puwayi Chiutsi querying why the rates clearance certificate had been issued in his name yet he had long sold the property. Mr Mwango also conceded that the rates clearance certificate was valid because they must have had time to request for the correct deed of transfer, which they then used to verify the contents of the letter dated 2 March 2022. The third witness, Ellen Runyararo Mawire, testified that she is a principal examiner of thirty years’ experience with signing powers in the Deeds Registry. Her job entails examining and registering property documents, supervising staff and performing any other duties as may be assigned from time to time by the Chief Registrar. It was her evidence that transfer of title is done by conveyancers and that her duties are strictly restricted to registration of properties. However, she admitted that in terms of s5(d) of the Deeds Registries Act [Chapter 20:05], their duties involved attesting or executing and registering deeds of transfer of land and executing and registering certificates of title to land. She also admitted that if a court order directed them to do anything, they could not disobey. She said that one of their officers, R Magwere, had signed the deed of transfer in question but same had been prepared by Tendai Biti as the conveyancer. She confirmed that the process they had done in respect of this deed is the same process that they always do in respect of other deeds. An officer responsible for raising assessments at ZIMRA, Maxwell Chiwundidza, led evidence on the capital gains tax certificate issued in respect of the property. It was his evidence that while the property was sold for US$270 000, they were guided by the Finance Act [Chapter 23:04] wherein all balances prior to 22 February 2019 were converted to local currency and valued the property at ZWL$270 000. The witness testified that the assessment for capital gains tax is not a self-assessment but it is done by the Commissioner General. He conceded that the determination of the capital gains tax amount and currency is not the responsibility of the taxpayer but of the Commissioner General. He stated that the taxpayer submitted what it thought was the correct currency of trade but the correct currency of trade was ZWL. To him, there was nothing wrong with the taxpayer paying the capital gains tax in ZWL. In accordance with r56 (26) of the High Court Rules, 2021, it was agreed at the conclusion of evidence that both parties would submit written closing addresses which was duly done. ISSUES FOR DETERMINATION I have already outlined the issues that were placed before me for determination at the trial. I now proceed to examine the issues in turn. WHAT IS THE EFFECT, IF ANY, OF THE PROCEEDINGS FILED BY THE DEFENDANT UNDER CASE NUMBER SC 666/23, HCH 1725/24 AND HCH 1845/24 ON PLAINTIFF’S CLAIM FOR UNLAWFUL OCCUPATION? Before I make a determination on this issue, I digress momentarily to comment on a development relating to this issue which is a cause for concern. The record will show that the onus to prove this issue lay on the defendant. The defendant’s counsel, Mr Rangarirai, after cross-examining the plaintiff’s representative on the above cited cases and re-examining the defendant on the same, brazenly submitted in his closing address that two pre-trial conferences had been held and at the final pre-trial conference, the parties only had two issues for trial as this issue had been overtaken by events. I note from the record that on 4 July 2024, the matter was referred to trial on the basis of a joint pre-trial minute signed by both parties and filed on 3 July 2024. The joint pre-trial minute contained the three issues. There is nothing to show that only two issues were referred for trial. The trial proceeded on the basis of the three issues and it was never an issue during trial that only two issues had been referred for ventilation. I find it curious that it is only arising in the defendant’s closing address. What I find even more strange is that besides Mr Rangarirai’s cursory remark about there being only two issues for trial, he did not even have the courtesy to submit fuller details on this ‘final’ pre-trial conference, which, it would appear, is only known to him. His offhanded submission in the closing address did not assist the court at all. This court has often remarked that legal practitioners are officers of the court and should conduct themselves as such. In Sadiqi v Muteswa & Ors HH-281-20 Mafusire J noted that: “Litigants should not play hide-and-seek with the courts. Lawyers should not behave like hired guns. They are officers of the court. Litigation is not a game of wits. It is a serious and scientific process to resolve disputes amongst individuals and to settle problems in the society. The search for truth is paramount. It is a duty thrust upon everyone. A party that conceals material information from the court must be unworthy of its protection or assistance. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter.” (at p.5-6) [Emphasis added]. I fully associate myself with the comments of the learned Judge. If indeed the issue was no longer before the court, I wonder what Mr Rangarirai intended to achieve by cross-examining Mr Munyawarara on a non-issue and even re-examining his own witness on that issue. I cannot fathom why Mr Rangarirai saw it prudent not only to remain mum on this issue but also to go on a wild goose chase, expending his efforts on pursuing what could well be a non-issue and in the process, wasting valuable judicial time. The only reasonable conclusion that I have reached is that if the issue was not before the court but Mr Rangarirai let it slide, his and his client’s intentions were far from sincere. It could only have been a move meant to slow the wheels of justice in this matter. Surely, such conduct on the part of Mr Rangarirai deserves censure. It is not congruent with conduct expected of a member of the noble profession. Having made these observations, I note that the papers before me and the plaintiff’s closing address point to this issue being one of the issues falling for determination. Besides Mr Rangarirai’s mere say so late in the day, there is nothing to show that this issue is not before me. I will therefore proceed to determine this issue. It is not in dispute that the above cited cases have been dealt with and disposed of. It is common cause that under SC 666/23, the defendant lost his appeal against a judgment of this court for his eviction. It is also common cause that the defendant has since been evicted from the property. By the defendant’s own evidence, he withdrew his claim for compensation under HCH 1725/24, to enable him to pursue matters of a criminal nature pending before the magistrates’ court. Further, a case under HCH 1845/24 seeking the setting aside of the defendant’s title was dismissed by this court. The decision of the court has not been appealed against. I find that the defendant’s argument that these matters were decided on technicalities is not merited. The point is that there are extant orders of both this court and the Supreme Court which are not in favour of the defendant’s claims. He has not managed to place any evidence before the court to show the effect of these cases to the current claim, opting instead to bring into the fray other cases which are before the magistrates’ court. This is not the issue before the court. In any event, by the defendant’s own testimony, some of these cases were known to the defendant at the time the current proceedings were instituted and therefore I find no reason why, if the defendant had been genuine, those matters were not specifically pleaded and he only waited to reveal them when he was on the witness stand. In my view, the defendant was just attempting to create an impression that ongoing litigation had a negative effect on the present claim. I do not think it does. The cases, having been disposed of and the decisions not being in favour of the defendant, I do not see any reason why those terminated proceedings should affect the current claim. I therefore find that the proceedings do not have any effect on the plaintiff’s claim for damages for unlawful occupation. WHETHER OR NOT PLAINTIFF IS ENTITLED TO CLAIM DAMAGES FOR UNLAWFUL OCCUPATION FROM THE DEFENDANT? It is the defendant’s argument that the capital gains tax was paid in local currency instead of United States dollars. The defendant argues that the plaintiff violated the capital gains tax regime and therefore the capital gains certificate is invalid, null and void. The defendant’s own witness testified that assessment for capital gains tax is done by the Commissioner General and not a taxpayer. His own witness stood his ground that it was the decision of the Commissioner General to peg the capital gains tax payable in local currency, and this was on the basis of the currency changes brought about by the Finance Act, 2019. Despite spirited re-examination by Mr Rangarirai to cow him to testify otherwise, this witness did not cower and was adamant on the office position regarding such transactions. For completeness, I relate to the provisions cited by the defendant to resist the plaintiff’s claim. Section 39A (9) of the Finance Act provides that:- “(9) Despite section 23 (“Zimbabwean dollar to be the sole currency for legal tender purpose from second effective date”) of the Finance (No. 2) Act, 2019, it shall not be deemed for the purpose of the Capital Gains Tax Act [Chapter 23:01] that all transactions involving the sale or other disposal of a specified asset are in Zimbabwean currency, rather— where any such transaction results in a capital gain being received by or accruing to or in favour of a person in whole or in part in Zimbabwean currency, capital gains tax at the rate specified in section 38(a) shall be paid in Zimbabwean currency on the capital gain or on such portion of it that is equivalent to the portion of the total transaction denominated in Zimbabwean currency; where any such transaction results in a capital gain being received by or accruing to or in favour of a person in whole or in part in a foreign currency, capital gains tax at the rate specified in section 38(b) shall be paid in foreign currency on the capital gain or on such portion of it that is equivalent to the portion of the total transaction denominated in foreign currency…” From my reading of the above section, the provision acknowledges the position that the Zimbabwean dollar shall be the sole currency for legal tender purposes with effect from the second effective date. The second effective date is defined in the Finance Act, 2019 as the 24th of June 2019. My understanding of this provision is that with effect from the 24th of June 2019, despite the legal position that the Zimbabwean currency is deemed as the sole legal tender, it is not a rule of thumb, for the purposes of calculating capital gains tax, that all transactions involving the sale or other disposal of a specified asset are in the local currency. I am of the view that the section gives the Commissioner General the latitude to consider each and every case on a case by case basis and to interrogate the currency of the particular transaction. Where the Commissioner General is satisfied that the transaction results in a capital gain being received by or accruing to or in favour of a person in local currency either wholly or partly, capital gains tax shall be paid in Zimbabwean currency, either in whole or in part at a rate proportional to the portion received in local currency. Similarly, where the transaction results in a capital gain being received by or accruing to or in favour of a person in foreign currency either in whole or in part, capital gains tax shall also be calculated and paid in the foreign currency on a pro-rata basis. In casu, nothing has been placed before me to demonstrate that s39A (9) which became effective on the 24th of June 2019, would be applicable to this transaction which, it is common cause, took place before the second effective date. The defendant has not demonstrated that the section has retrospective effect, neither has he demonstrated that in accordance with this section, this transaction, done prior to the second effective date, is deemed to have been made in United States dollars for the purposes of calculating capital gains tax. Further, the defendant has not demonstrated that the Commissioner General’s decision to treat the transaction as a local currency transaction was wrong both in fact and in law. Instead, the defendant, for some unexplained reason, seeks to impute the Commissioner General’s decision on the plaintiff, yet the defendant did not even dispute that the plaintiff made the correct declaration. There is no evidence to show that the plaintiff misled the Commissioner General on the currency of transaction. I find no basis upon which the defendant seeks to malign the plaintiff for the decision of the Commissioner General. I also find no basis to hold that the Commissioner General made an erroneous assessment in casu. For this reason, I find the defendant’s argument without merit. I must also state that the defendant’s witnesses from the Deeds Registry and Council did not take his matter further. The witness from Council only served to confirm that there was nothing untoward about the Council not having updated its records in tandem with extraneous developments which it would be unaware of. Naturally, if up to date information is not brought to the attention of Council, and Council does not have the up to date record, chances of having outdated information are definite. If Council produces information based on the up to date record, it does not automatically translate to fraudulent activity. Mr Mwango already explained that there must have been an opportunity to verify the information that had been supplied by Tendai Biti Law and the subsequent rates clearance certificate issued on the strength of updated information. I have not been given any reason to doubt Mr Mwango’s evidence to that effect. The official from the Deeds Registry made it clear that the registry is obliged to comply with court orders. Additionally, there was nothing out of the usual that was done in processing the plaintiff’s deed of transfer. My conclusion from the witness’s testimony is that what the Deeds Registry did in this case was the routine processing of the deed. The allegation that transfer was improperly effected is therefore without merit. The plaintiff obtained title of the property in terms of the Supreme Court judgment under SC24-22. It is the registered owner of that property. The defendant has made numerous attempts to challenge the status quo. He has failed. Regrettably, he remains bent on challenging the plaintiff’s title to the point of flogging a dead horse. There is no use in doing so. I conclude that there is no merit in the arguments made by the defendant in this regard. The extant position is that the plaintiff holds title to the property. From a reading of the record, what the defendant is in reality seeking to do in the current proceedings is to challenge the decision of the Supreme Court under judgment SC24-22. The defendant argues that the Supreme Court order is defective, incompetent and unenforceable because the Registrar of Deeds does not transfer properties but only registers them. The defendant submits that the Court cannot create a duty outside what the law permits. In a roundabout way, the defendant is motivating this court to review the decision of a court superior to it. Not only is such a procedure untenable and alien, but it also smacks of contempt of the courts of the land. The Supreme Court has made a decision in the matter. The defendant approached the Constitutional Court seeking to challenge the Supreme Court decision. He was not successful. In utter disregard for the rule of law and in a display of absolute disrespect for the judicial system, the defendant has decided to throw a tantrum in the High Court through these proceedings. This cannot be allowed. What is most unfortunate is that in the midst of this unnecessary raising of dust is Mr Rangarirai, who is practising law in the very same halls of justice. He must know very well the hierarchy of the courts and the procedure to follow if he is aggrieved by a decision of a court. He does not need to be reminded that he must properly advise his client. Turning back to the issue at hand, it is the plaintiff’s position that the defendant was in unlawful occupation of the property until his eviction on 25 June 2024. The claim for holding over damages in casu would arise ex delicto, on the basis that the continued occupation by the defendant of the property without lawful right to do so is per se wrongful. The damages awardable to the plaintiff, relate to, but are not necessarily limited to, the loss of foreseeable market related rentals. These damages arise by reason of the plaintiff being deprived of the use and enjoyment of its property because the defendant has remained in occupation unlawfully: See generally Patel t/a Reliable Hardware v C. A. Angelos (Private) Limited HMA44-20. In casu, in addition to my findings above, I also take note of the pertinent remarks made by Bhunu JA under judgment SC 17-24 to the effect that:- “17. During the course of the hearing, Mr. Madhuku made the vital concession that the applicant’s alleged developments were made against an extant court order prohibiting such developments. 18. The concession has the effect of defining and narrowing the issues on the applicant’s prospects of success on appeal. The concession resolves the dispute as to whether the applicant is a bona fide possessor or occupier of the property. On the basis of the concession made by Mr. Madhuku, I hold that the applicant is a mala fide possessor or occupier of the property. That finding is consistent with the Supreme Court’s finding in SC 24/22 in which it came to the same conclusion that the applicant was not a bona fide buyer of the disputed property.” The learned Judge of Appeal proceeded to comment that: “29. With respect, Mr. Madhuku’s stance that a mala fide let alone an unlawful occupier in defiance of a court order may have a right of retention or compensation is based on an untested flimsy speculative opinion of the authors which does not set any precedent. As such the opinion is only fit for the moot court, not a real court of justice.” He then concluded that:- “49. The applicant has been in unlawful and mala fide occupation of the respondent’s property for close to 5 years in circumstances where the law is heavily weighed against him as demonstrated elsewhere in this judgment. I therefore hold that his prospects of success on appeal are pretty dim indeed. The equities and balance of convenience favour the respondent who in legal parlance should ordinarily be in possession and occupation of its property. The applicant’s conduct in unlawfully occupying the respondent’s property in bad faith, to his exclusion for a period spanning 5 years without its consent is manifestly unjust and unconscionable.” The findings of the honourable Judge of Appeal apply with equal force to this matter. I see no reason to depart from the findings of the Supreme Court. The defendant was in unlawful occupation of the property from 8 May 2022 to 25 June 2024. In my judgment, the plaintiff is entitled to claim damages for the unlawful occupation. To determine otherwise would, in my view, be manifestly unjust and unconscionable. IF PLAINTIFF IS ENTITLED TO CLAIM HOLDING OVER DAMAGES FROM THE DEFENDANT, WHAT IS THE QUANTUM OF THE UNLAWFUL OCCUPATION DAMAGES? In ZIMASCO (Private) Limited v Tsvangirai & Ors 2020 (1) ZLR 176 (S) at p.184 H, the court commented that with respect to holding over damages and arrear rentals, a plaintiff has to lead evidence to prove the amounts claimed. These damages cannot be accepted on a plaintiff’s mere say so. In casu, the plaintiff produced a report by Rawson Properties and another one by Panavest Properties. It also led evidence from an estate agent, Timothy Mazibuye. The defendant attacks the plaintiff’s claim as being fatally defective because it is only sounding in United States Dollars. Typical of Mr Rangarirai’s cat and mouse approach in these proceedings, this issue only arose in the defendant’s closing address. It could well be argued that this is a point of law which can be raised at any time, but a point of law is not raised anyhow. On the authority of Allied Bank Ltd v Dengu & Anor 2016 (2) ZLR 373 (S) at 376D-E, in order for one to raise a point of law validly at any stage, notice must be given to the other party of the intention to raise it. I did not see any proof that the issue was properly raised by the defendant. The defendant has submitted that the valuation reports cannot withstand the court’s scrutiny. It is submitted, further, that one of the authors of the valuation report was removed from the witness box by the plaintiff because the plaintiff had no confidence in his report. He argues that his valuation report has no value. Nothing can be farther from the truth. The valuation report was prepared by a Richard Matengambiri. On the date of trial, it turned out that Rawson Properties sent another official who is not Richard Matengambiri to testify. The plaintiff decided not to lead his oral testimony solely because he was not the author of the report. There was never reference to this allegation that the plaintiff had no confidence in his report. Mr Rangarirayi is clearly misleading this court. The record can and should speak for itself. The defendant further argues that the author of the second report gave conflicting evidence. Again, nothing can be farther from the truth. Timothy Mazibuye’s testimony was lucid and consistent. He valued the property at US$3 000 because he was denied access inside the house. He could only inspect the exterior of the house but was able to make conclusions after considering several relevant factors and consulting colleagues in the same industry. It was his further evidence that when he eventually managed to get inside the house, he formed the view that the property could fetch monthly rentals of US$ 3500, given the status of the property. He was expressing his opinion based on different observations he made on two different occasions. I do not find that the report was unreliable. Contrary to the defendant’s allegation that this witness failed to produce his identity card, he testified that in their industry, they are not given identity cards but they have certificates which he had left at his office. I have not been given any reason to doubt his testimony on the basis of a bald and unsubstantiated accusation by the defendant. The defendant argues that rental figures should not be plucked from the air. I agree. I however do not agree that the plaintiff has plucked figures from the air. Two reports from estate agents and an oral testimony have been placed before the court to prove the fair market rentals. If anyone is plucking figures from the air, then it is the defendant who wants this court to find that US$1 500 would be a fair market rentals on the basis of the defendant’s hunch. The court cannot embark on conjecture in assessing the damages, moreso in the face of both written and oral evidence placed before it proving what would be the fair market rentals. It would not be competent for the court to award an arbitrary approximation of damages as claimed by the defendant: See Kaplin v Naison & Ors HCC 37-24. DISPOSITION In the final analysis, I find that the proceedings under SC666/23; HCH 1725/24 and HCH 1825/24 do not have any effect to the plaintiff’s claim for damages for unlawful occupation. I also find that the plaintiff is entitled to claim damages for unlawful occupation from the defendant. Finally, I find that the plaintiff is entitled to the quantum of damages it has prayed for in its summons and declaration as proved by the evidence before the court. I note that the defendant has taken issue with the cumulative figure prayed for by the plaintiff in its closing address and accuses the plaintiff of attempting to amend the summons. It is clear from the closing address that the plaintiff’s prayer is for judgment to be entered as claimed. Having already determined that the plaintiff is entitled to the quantum of damages prayed for in its summons and declaration, I will proceed to issue an order in terms of the plaintiff’s claim, taking into account the date on which summons in this matter was issued and the date on which the defendant was evicted from the property.In concluding this matter, I find it necessary to comment that even though I have found that the objection to the claim sounding in foreign currency is belated, on the authority of Shah v Nherera SC 55-24, while this court is not precluded from making an order sounding in foreign currency, such amount may be paid in local currency at the interbank rate prevailing on the date of payment. With regards costs, it is trite that costs follow the outcome. In this matter, the plaintiff has prayed for costs on an ordinary scale. Had costs on a more punitive scale been prayed for, I would have been inclined to award same due to the manner in which the defendant’s counsel has conducted himself in this trial. In the result, I make the following order: The defendant shall pay to the plaintiff a sum of US$28 000, being unlawful occupation damages for the defendant’s illegal occupation of a certain piece of land called Remainder of Subdivision C of Lot 6 of Lot 190, 191, 193, 194 and 195 Highlands Estate of Welmoed, measuring 4377 Square metres between 8 May 2022 and 31 March 2023, with interest thereon at the rate of 5% per annum from 8 May 2022 to the date of payment in full, both dates inclusive. a sum of US$2 800.00 per month from the 1st of April 2023 to the 25th of June 2024, being damages for unlawful occupation of the property described in sub paragraph i. above, together with interest thereon at the prescribed rate of 5% per annum as from the due date to date of payment in full, both dates inclusive. The defendant shall pay the plaintiff’s costs of suit. Mushure J: ................................................................. Gill, Godlonton & Gerrans, plaintiff’s legal practitioners Rangarirai & Co. Legal Practitioners, defendant’s legal practitioners 7 HH 313 - 25 HCH 2461/23 7 HH 313 - 25 HCH 2461/23 BARIADE INVESTMENTS versus TENDAI MASHAMHANDA HIGH COURT OF ZIMBABWE MUSHURE J HARARE, 26 February, 14 March & 21 May 2025 T. L. Mapuranga for the plaintiff K. Rangarirai for the defendant Civil trial MUSHURE J: INTRODUCTION The plaintiff is the registered owner of a certain piece of land called the remainder of Subdivision C of Lot 6 of Lot 190,191,193, 194 and 195 Highland Estates of Welmoed, measuring 4377sqm, also known as number 41 Ridgeway North, Highlands, Harare (‘the property’). The plaintiff took ownership of the property on 7 May 2022 pursuant to a tortuous legal battle which culminated in a Supreme Court judgment under SC24-22 involving both the plaintiff and the defendant as well as one Puwayi Chiutsi, one Elliot Rodgers, the Registrar of Deeds and the Sheriff of the High Court as parties. At the time judgment was given in the Supreme Court, the defendant was in occupation of the property. He continued to occupy the property until his eviction on 25 June 2024. According to the plaintiff, the defendant neither has any lawful right nor its leave to occupy the property. The suit before me is for damages arising out of the alleged unlawful occupation of the property. The summons were issued on 12 April 2023, a little over a year before the defendant was evicted by the Sheriff. The plaintiff claims US$28 000 as damages calculated from the date of acquisition of ownership to the date of issue of summons. The plaintiff also claims the sum of US$2 800 per month calculated from 1 April 2023 to the date the defendant would vacate the property. Additionally, the plaintiff claims interest at the prescribed rate of 5% per annum calculated from 8 May 2022 to the date of payment in full, both dates inclusive, as well as costs of suit. The defendant is resisting the plaintiff’s claim. He pleads that the question of ownership of the property is in dispute and is pending before the courts, under CCZ 12/22 and HCH 3124/22. It is the defendant’s plea that under CCZ 12/22, he has petitioned the Constitutional Court for direct access to enable him to challenge the Supreme Court judgment under SC 24-22; and that HCH 3124/22 is a case filed by the plaintiff for the defendant’s eviction. In that matter, eviction was initially granted but the defendant appealed to the Supreme Court. The Supreme Court remitted the matter to the High Court for a re-hearing. The defendant prays in his plea that the plaintiff’s claim be dismissed because until such a time the issue of ownership is resolved by the courts, the plaintiff ought not to claim damages. He confirms that he has refused to vacate the property and his reason is that there is no eviction order. He pleads that there is no eviction order because the issue of ownership is yet to be resolved by the courts. After the closure of pleadings, the matter proceeded to pre-trial conference in terms of the rules of this Court, whereafter the matter was referred for trial. The issues for trial, as determined by the parties at the pre-trial conference held before a Judge and set out in the joint pre-trial conference minute they signed are as follows:- What is the effect, if any, of the proceedings filed by the Defendant under case number SC 666/23, HCH 1725/24 and HCH 1845/24 on plaintiff’s claim for unlawful occupation? Whether or not Plaintiff is entitled to claim damages for unlawful occupation from the Defendant? If Plaintiff is entitled to claim holding over damages from the Defendant, what is the quantum of the unlawful occupation damages? Six witnesses testified at the trial. The plaintiff led evidence from its representative, Kingston Hamutendi Munyawarara and Timothy Mazibuye, an estate agent. The defendant led evidence from himself as well as Wonder Mwango from the City of Harare (‘Council’), Ellen Runyararo Mawire from the Deeds Registry and Maxwell Chiwundidza from the Zimbabwe Revenue Authority (‘ZIMRA’). THE PLAINTIFF’S EVIDENCE The evidence of Kingston Hamutendi Munyawarara in support of the plaintiff’s claim was that the plaintiff purchased the property through an auction in September 2017, together with three other properties. Transfer of the other three properties had been done without much ado, but the sale of the property forming the subject matter of this suit was challenged through litigation. The challenges were unsuccessful. An attempt to process the transfer of the property hit a brick wall because the property had been fraudulently sold and transferred to the defendant. The plaintiff sought a reversal of that transaction in the courts and in February 2022, the Supreme Court cancelled the defendant’s deed of transfer. Title was subsequently transferred to the plaintiff on 7 May 2022, following which the defendant was duly advised. The plaintiff consequently instituted eviction proceedings which led to the defendant’s eviction on 25 June 2024. It was the plaintiff’s evidence that the defendant had taken possession of the property in 2019 but after 7 May 2022, there was no reason for the defendant’s continued occupation of the property. The defendant’s continued occupation had derailed its plans to convert the property to a commercial property. This was exacerbated by the fact that the defendant had, despite a court order prohibiting same, gone ahead and did some construction on the property. He pegged the rentals at US$3 000 per month, but was quick to point out that this amount was on the conservative side. He testified that the plaintiff had engaged two estate agents from Rawson Properties and Panavest Properties to value the property. One had valued the rentals at US$3 000, while the other had valued it at US$2 800. The claim before the court was based on the lower figure. Both valuation reports were accepted and incorporated into evidence by consent of both parties. Mr Munyawarara stated that although the figure was conservative, the plaintiff was happy with it. He testified, further, that the Constitutional Court case was dismissed and that attempts to have the deed of transfer in plaintiff’s favour cancelled were futile as they were dismissed by the High Court. It was his evidence that all the matters referred to in the joint pre-trial conference minute had been disposed of. He clarified that SC 666/24 was an appeal by the defendant challenging an order for his eviction. The appeal was dismissed in July 2024. HCH 1725/24 was a claim filed by the defendant for compensation for improvements on the property. The matter had been withdrawn. Under HCH 1845/24, the defendant was seeking that the plaintiff’s title be declared invalid because of defective documents. That matter was dismissed. The witness was cross-examined on the legality of the Deeds Registry transferring the property and the capital gains tax being calculated in local currency instead of United States dollars. He was also questioned on a note on the letter applying for the rates clearance certificate to the effect that a wrong deed of transfer had been used. The witness stated that the defendant had for three years made vain attempts to reverse the transfer on the same bases. He had been unsuccessful. The second witness to testify on behalf of the plaintiff, Timothy Mazibuye, is a qualified valuer and estate agent. He testified that he had been engaged to do a rental valuation of the property and he had established US$3 000 to be a fair market rental of the property. In coming up with this figure, he had been guided by the location of the property, surrounding properties within the area and the state of the building. He also considered comparable properties within the same vicinity and engaged other valuation practitioners to compare notes on achievable rentals in the area at any given time. He testified that at the time he did the valuation, he had been denied access inside the property but had managed to get into the perimeter wall and was able to inspect the exterior of the property. He noted that the property is situated in a prime location commonly known as the Golden Triangle in property parlance and that it had been recently renovated. It was his testimony that the Golden Triangle incorporates Ridgeway North, on which this property is situated, Colne Valley and Rolf Valley. He added that when he eventually gained access into the interior of the property, he concluded, judging by the modern renovations, that had he had access at the time he did the valuation, he would have pegged rentals for the property at US$3 500. THE DEFENDANT’S EVIDENCE It was the defendant’s evidence that he purchased the property from Puwayi Chiutsi and that he did not know that the property was encumbered. He testified that the plaintiff’s title was invalid because certain procedural steps had not been followed. He justified his continued stay at the property on the basis of the ongoing court cases. He argued that he had demolished the whole house three months after moving in and rebuilt a new house altogether, but he had not been compensated for those improvements to the tune of US$1 200 000. It was his testimony that the damages claimed by the plaintiff were not plausible because of the court cases and that the proper rental value was US$1 500, despite him having undertaken high value improvements on the property. He admitted that he had not sought a professional valuer to value the property. To him, there had been no need to do so as he was legally occupying the property. He also admitted that a Supreme Court decision pronouncing that he was not an innocent purchaser was extant. He stated that there were several cases before the magistrates’ court in which evidence of a criminal nature had been found that ‘could lead to a change’. He admitted, further, that the Supreme Court decision under SC 666/23 had not been challenged and that he had withdrawn his claim for compensation under HCH 1725/24. He reasoned that more evidence was gathered and the matter had been taken to the magistrates’ court which move he hoped would lead to a quicker solution. He conceded that the decision against him under HCH 1845/24 had not been challenged. He was questioned on the cases he had previously filed challenging the rates clearance certificate, the capital gains tax certificate and the deed of transfer, and he stated that all those cases had been dismissed on technicalities. He was also questioned on judgment under SC 17-24 by Bhunu JA, in which the learned Judge of Appeal remarked that the defendant had been in unlawful and mala fide occupation of the plaintiff’s property for more than five years. His response was that the Supreme Court had contradicted a High Court judgment deeming him an innocent purchaser. He argued that the issue of title had not been fully argued before the courts. He also elaborated that the magistrates’ court cases were reported in 2022 and at the time this matter was instituted, those cases were ongoing. The second defendant’s witness, Mr. Wonder Mwango, is responsible for handling correspondence and attending to queries that come through letters at Council. He noted that there was a letter dated 2 March 2022 which had been written by Tendai Biti Law requesting for a rates clearance certificate for the property. The letter was referenced ‘TRANSFER REGISTRATION PUWAYI CHIUTSI TO BARIADE INVESTMENTS (1) A CERTAIN 4 377 SQUARE METRES OF LAND CALLED THE REMAINDER OF SUBDIVISION C OF LOT 6 OF LOTS 190, 191, 193, 194 AND 195 HIGHLANDS ESTATE OF WELMOED SITUATE IN THE DISTRICT OF SALISBURY ALSO KNOWN AS STAND 41 RIDGEWAY NORTH, HIGHLANDS, HARARE’. Against that reference was an entry in long hand saying ‘update names’. Mr Mwango explained that when an application for rates clearance is being processed, a comparison between the names in the application letter and those in the billing system is done. In this case, that comparison yielded a difference between the name in the application letter and the name in the billing system. The expectation was that the billing system would reflect Puwayi Chiutsi but it reflected the defendant’s name. The conclusion then was that Council had not updated its records and there was need for verification. Mr Mwango admitted that it was the Council’s responsibility to update names and that the problem of not updating records lay with Council. He admitted, further, that he did not know that the letter dated 2 March 2022 was written pursuant to the Supreme Court judgment cancelling the deed in favour of the defendant’s title to the property and reinstating Puwayi Chiutsi’s deed. He conceded that the Council was behind on the developments and that a letter he drafted for the Council’s Acting Finance Director on 7 June 2024, implying that the rates clearance certificate issued by Council was invalid was based on erroneous information and therefore wrong. It emerged that the 7 June 2024 letter was written way after the issuance of the rates clearance certificate and it was written in the context of Puwayi Chiutsi querying why the rates clearance certificate had been issued in his name yet he had long sold the property. Mr Mwango also conceded that the rates clearance certificate was valid because they must have had time to request for the correct deed of transfer, which they then used to verify the contents of the letter dated 2 March 2022. The third witness, Ellen Runyararo Mawire, testified that she is a principal examiner of thirty years’ experience with signing powers in the Deeds Registry. Her job entails examining and registering property documents, supervising staff and performing any other duties as may be assigned from time to time by the Chief Registrar. It was her evidence that transfer of title is done by conveyancers and that her duties are strictly restricted to registration of properties. However, she admitted that in terms of s5(d) of the Deeds Registries Act [Chapter 20:05], their duties involved attesting or executing and registering deeds of transfer of land and executing and registering certificates of title to land. She also admitted that if a court order directed them to do anything, they could not disobey. She said that one of their officers, R Magwere, had signed the deed of transfer in question but same had been prepared by Tendai Biti as the conveyancer. She confirmed that the process they had done in respect of this deed is the same process that they always do in respect of other deeds. An officer responsible for raising assessments at ZIMRA, Maxwell Chiwundidza, led evidence on the capital gains tax certificate issued in respect of the property. It was his evidence that while the property was sold for US$270 000, they were guided by the Finance Act [Chapter 23:04] wherein all balances prior to 22 February 2019 were converted to local currency and valued the property at ZWL$270 000. The witness testified that the assessment for capital gains tax is not a self-assessment but it is done by the Commissioner General. He conceded that the determination of the capital gains tax amount and currency is not the responsibility of the taxpayer but of the Commissioner General. He stated that the taxpayer submitted what it thought was the correct currency of trade but the correct currency of trade was ZWL. To him, there was nothing wrong with the taxpayer paying the capital gains tax in ZWL. In accordance with r56 (26) of the High Court Rules, 2021, it was agreed at the conclusion of evidence that both parties would submit written closing addresses which was duly done. ISSUES FOR DETERMINATION I have already outlined the issues that were placed before me for determination at the trial. I now proceed to examine the issues in turn. WHAT IS THE EFFECT, IF ANY, OF THE PROCEEDINGS FILED BY THE DEFENDANT UNDER CASE NUMBER SC 666/23, HCH 1725/24 AND HCH 1845/24 ON PLAINTIFF’S CLAIM FOR UNLAWFUL OCCUPATION? Before I make a determination on this issue, I digress momentarily to comment on a development relating to this issue which is a cause for concern. The record will show that the onus to prove this issue lay on the defendant. The defendant’s counsel, Mr Rangarirai, after cross-examining the plaintiff’s representative on the above cited cases and re-examining the defendant on the same, brazenly submitted in his closing address that two pre-trial conferences had been held and at the final pre-trial conference, the parties only had two issues for trial as this issue had been overtaken by events. I note from the record that on 4 July 2024, the matter was referred to trial on the basis of a joint pre-trial minute signed by both parties and filed on 3 July 2024. The joint pre-trial minute contained the three issues. There is nothing to show that only two issues were referred for trial. The trial proceeded on the basis of the three issues and it was never an issue during trial that only two issues had been referred for ventilation. I find it curious that it is only arising in the defendant’s closing address. What I find even more strange is that besides Mr Rangarirai’s cursory remark about there being only two issues for trial, he did not even have the courtesy to submit fuller details on this ‘final’ pre-trial conference, which, it would appear, is only known to him. His offhanded submission in the closing address did not assist the court at all. This court has often remarked that legal practitioners are officers of the court and should conduct themselves as such. In Sadiqi v Muteswa & Ors HH-281-20 Mafusire J noted that: “Litigants should not play hide-and-seek with the courts. Lawyers should not behave like hired guns. They are officers of the court. Litigation is not a game of wits. It is a serious and scientific process to resolve disputes amongst individuals and to settle problems in the society. The search for truth is paramount. It is a duty thrust upon everyone. A party that conceals material information from the court must be unworthy of its protection or assistance. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter.” (at p.5-6) [Emphasis added]. I fully associate myself with the comments of the learned Judge. If indeed the issue was no longer before the court, I wonder what Mr Rangarirai intended to achieve by cross-examining Mr Munyawarara on a non-issue and even re-examining his own witness on that issue. I cannot fathom why Mr Rangarirai saw it prudent not only to remain mum on this issue but also to go on a wild goose chase, expending his efforts on pursuing what could well be a non-issue and in the process, wasting valuable judicial time. The only reasonable conclusion that I have reached is that if the issue was not before the court but Mr Rangarirai let it slide, his and his client’s intentions were far from sincere. It could only have been a move meant to slow the wheels of justice in this matter. Surely, such conduct on the part of Mr Rangarirai deserves censure. It is not congruent with conduct expected of a member of the noble profession. Having made these observations, I note that the papers before me and the plaintiff’s closing address point to this issue being one of the issues falling for determination. Besides Mr Rangarirai’s mere say so late in the day, there is nothing to show that this issue is not before me. I will therefore proceed to determine this issue. It is not in dispute that the above cited cases have been dealt with and disposed of. It is common cause that under SC 666/23, the defendant lost his appeal against a judgment of this court for his eviction. It is also common cause that the defendant has since been evicted from the property. By the defendant’s own evidence, he withdrew his claim for compensation under HCH 1725/24, to enable him to pursue matters of a criminal nature pending before the magistrates’ court. Further, a case under HCH 1845/24 seeking the setting aside of the defendant’s title was dismissed by this court. The decision of the court has not been appealed against. I find that the defendant’s argument that these matters were decided on technicalities is not merited. The point is that there are extant orders of both this court and the Supreme Court which are not in favour of the defendant’s claims. He has not managed to place any evidence before the court to show the effect of these cases to the current claim, opting instead to bring into the fray other cases which are before the magistrates’ court. This is not the issue before the court. In any event, by the defendant’s own testimony, some of these cases were known to the defendant at the time the current proceedings were instituted and therefore I find no reason why, if the defendant had been genuine, those matters were not specifically pleaded and he only waited to reveal them when he was on the witness stand. In my view, the defendant was just attempting to create an impression that ongoing litigation had a negative effect on the present claim. I do not think it does. The cases, having been disposed of and the decisions not being in favour of the defendant, I do not see any reason why those terminated proceedings should affect the current claim. I therefore find that the proceedings do not have any effect on the plaintiff’s claim for damages for unlawful occupation. WHETHER OR NOT PLAINTIFF IS ENTITLED TO CLAIM DAMAGES FOR UNLAWFUL OCCUPATION FROM THE DEFENDANT? It is the defendant’s argument that the capital gains tax was paid in local currency instead of United States dollars. The defendant argues that the plaintiff violated the capital gains tax regime and therefore the capital gains certificate is invalid, null and void. The defendant’s own witness testified that assessment for capital gains tax is done by the Commissioner General and not a taxpayer. His own witness stood his ground that it was the decision of the Commissioner General to peg the capital gains tax payable in local currency, and this was on the basis of the currency changes brought about by the Finance Act, 2019. Despite spirited re-examination by Mr Rangarirai to cow him to testify otherwise, this witness did not cower and was adamant on the office position regarding such transactions. For completeness, I relate to the provisions cited by the defendant to resist the plaintiff’s claim. Section 39A (9) of the Finance Act provides that:- “(9) Despite section 23 (“Zimbabwean dollar to be the sole currency for legal tender purpose from second effective date”) of the Finance (No. 2) Act, 2019, it shall not be deemed for the purpose of the Capital Gains Tax Act [Chapter 23:01] that all transactions involving the sale or other disposal of a specified asset are in Zimbabwean currency, rather— where any such transaction results in a capital gain being received by or accruing to or in favour of a person in whole or in part in Zimbabwean currency, capital gains tax at the rate specified in section 38(a) shall be paid in Zimbabwean currency on the capital gain or on such portion of it that is equivalent to the portion of the total transaction denominated in Zimbabwean currency; where any such transaction results in a capital gain being received by or accruing to or in favour of a person in whole or in part in a foreign currency, capital gains tax at the rate specified in section 38(b) shall be paid in foreign currency on the capital gain or on such portion of it that is equivalent to the portion of the total transaction denominated in foreign currency…” From my reading of the above section, the provision acknowledges the position that the Zimbabwean dollar shall be the sole currency for legal tender purposes with effect from the second effective date. The second effective date is defined in the Finance Act, 2019 as the 24th of June 2019. My understanding of this provision is that with effect from the 24th of June 2019, despite the legal position that the Zimbabwean currency is deemed as the sole legal tender, it is not a rule of thumb, for the purposes of calculating capital gains tax, that all transactions involving the sale or other disposal of a specified asset are in the local currency. I am of the view that the section gives the Commissioner General the latitude to consider each and every case on a case by case basis and to interrogate the currency of the particular transaction. Where the Commissioner General is satisfied that the transaction results in a capital gain being received by or accruing to or in favour of a person in local currency either wholly or partly, capital gains tax shall be paid in Zimbabwean currency, either in whole or in part at a rate proportional to the portion received in local currency. Similarly, where the transaction results in a capital gain being received by or accruing to or in favour of a person in foreign currency either in whole or in part, capital gains tax shall also be calculated and paid in the foreign currency on a pro-rata basis. In casu, nothing has been placed before me to demonstrate that s39A (9) which became effective on the 24th of June 2019, would be applicable to this transaction which, it is common cause, took place before the second effective date. The defendant has not demonstrated that the section has retrospective effect, neither has he demonstrated that in accordance with this section, this transaction, done prior to the second effective date, is deemed to have been made in United States dollars for the purposes of calculating capital gains tax. Further, the defendant has not demonstrated that the Commissioner General’s decision to treat the transaction as a local currency transaction was wrong both in fact and in law. Instead, the defendant, for some unexplained reason, seeks to impute the Commissioner General’s decision on the plaintiff, yet the defendant did not even dispute that the plaintiff made the correct declaration. There is no evidence to show that the plaintiff misled the Commissioner General on the currency of transaction. I find no basis upon which the defendant seeks to malign the plaintiff for the decision of the Commissioner General. I also find no basis to hold that the Commissioner General made an erroneous assessment in casu. For this reason, I find the defendant’s argument without merit. I must also state that the defendant’s witnesses from the Deeds Registry and Council did not take his matter further. The witness from Council only served to confirm that there was nothing untoward about the Council not having updated its records in tandem with extraneous developments which it would be unaware of. Naturally, if up to date information is not brought to the attention of Council, and Council does not have the up to date record, chances of having outdated information are definite. If Council produces information based on the up to date record, it does not automatically translate to fraudulent activity. Mr Mwango already explained that there must have been an opportunity to verify the information that had been supplied by Tendai Biti Law and the subsequent rates clearance certificate issued on the strength of updated information. I have not been given any reason to doubt Mr Mwango’s evidence to that effect. The official from the Deeds Registry made it clear that the registry is obliged to comply with court orders. Additionally, there was nothing out of the usual that was done in processing the plaintiff’s deed of transfer. My conclusion from the witness’s testimony is that what the Deeds Registry did in this case was the routine processing of the deed. The allegation that transfer was improperly effected is therefore without merit. The plaintiff obtained title of the property in terms of the Supreme Court judgment under SC24-22. It is the registered owner of that property. The defendant has made numerous attempts to challenge the status quo. He has failed. Regrettably, he remains bent on challenging the plaintiff’s title to the point of flogging a dead horse. There is no use in doing so. I conclude that there is no merit in the arguments made by the defendant in this regard. The extant position is that the plaintiff holds title to the property. From a reading of the record, what the defendant is in reality seeking to do in the current proceedings is to challenge the decision of the Supreme Court under judgment SC24-22. The defendant argues that the Supreme Court order is defective, incompetent and unenforceable because the Registrar of Deeds does not transfer properties but only registers them. The defendant submits that the Court cannot create a duty outside what the law permits. In a roundabout way, the defendant is motivating this court to review the decision of a court superior to it. Not only is such a procedure untenable and alien, but it also smacks of contempt of the courts of the land. The Supreme Court has made a decision in the matter. The defendant approached the Constitutional Court seeking to challenge the Supreme Court decision. He was not successful. In utter disregard for the rule of law and in a display of absolute disrespect for the judicial system, the defendant has decided to throw a tantrum in the High Court through these proceedings. This cannot be allowed. What is most unfortunate is that in the midst of this unnecessary raising of dust is Mr Rangarirai, who is practising law in the very same halls of justice. He must know very well the hierarchy of the courts and the procedure to follow if he is aggrieved by a decision of a court. He does not need to be reminded that he must properly advise his client. Turning back to the issue at hand, it is the plaintiff’s position that the defendant was in unlawful occupation of the property until his eviction on 25 June 2024. The claim for holding over damages in casu would arise ex delicto, on the basis that the continued occupation by the defendant of the property without lawful right to do so is per se wrongful. The damages awardable to the plaintiff, relate to, but are not necessarily limited to, the loss of foreseeable market related rentals. These damages arise by reason of the plaintiff being deprived of the use and enjoyment of its property because the defendant has remained in occupation unlawfully: See generally Patel t/a Reliable Hardware v C. A. Angelos (Private) Limited HMA44-20. In casu, in addition to my findings above, I also take note of the pertinent remarks made by Bhunu JA under judgment SC 17-24 to the effect that:- “17. During the course of the hearing, Mr. Madhuku made the vital concession that the applicant’s alleged developments were made against an extant court order prohibiting such developments. 18. The concession has the effect of defining and narrowing the issues on the applicant’s prospects of success on appeal. The concession resolves the dispute as to whether the applicant is a bona fide possessor or occupier of the property. On the basis of the concession made by Mr. Madhuku, I hold that the applicant is a mala fide possessor or occupier of the property. That finding is consistent with the Supreme Court’s finding in SC 24/22 in which it came to the same conclusion that the applicant was not a bona fide buyer of the disputed property.” The learned Judge of Appeal proceeded to comment that: “29. With respect, Mr. Madhuku’s stance that a mala fide let alone an unlawful occupier in defiance of a court order may have a right of retention or compensation is based on an untested flimsy speculative opinion of the authors which does not set any precedent. As such the opinion is only fit for the moot court, not a real court of justice.” He then concluded that:- “49. The applicant has been in unlawful and mala fide occupation of the respondent’s property for close to 5 years in circumstances where the law is heavily weighed against him as demonstrated elsewhere in this judgment. I therefore hold that his prospects of success on appeal are pretty dim indeed. The equities and balance of convenience favour the respondent who in legal parlance should ordinarily be in possession and occupation of its property. The applicant’s conduct in unlawfully occupying the respondent’s property in bad faith, to his exclusion for a period spanning 5 years without its consent is manifestly unjust and unconscionable.” The findings of the honourable Judge of Appeal apply with equal force to this matter. I see no reason to depart from the findings of the Supreme Court. The defendant was in unlawful occupation of the property from 8 May 2022 to 25 June 2024. In my judgment, the plaintiff is entitled to claim damages for the unlawful occupation. To determine otherwise would, in my view, be manifestly unjust and unconscionable. IF PLAINTIFF IS ENTITLED TO CLAIM HOLDING OVER DAMAGES FROM THE DEFENDANT, WHAT IS THE QUANTUM OF THE UNLAWFUL OCCUPATION DAMAGES? In ZIMASCO (Private) Limited v Tsvangirai & Ors 2020 (1) ZLR 176 (S) at p.184 H, the court commented that with respect to holding over damages and arrear rentals, a plaintiff has to lead evidence to prove the amounts claimed. These damages cannot be accepted on a plaintiff’s mere say so. In casu, the plaintiff produced a report by Rawson Properties and another one by Panavest Properties. It also led evidence from an estate agent, Timothy Mazibuye. The defendant attacks the plaintiff’s claim as being fatally defective because it is only sounding in United States Dollars. Typical of Mr Rangarirai’s cat and mouse approach in these proceedings, this issue only arose in the defendant’s closing address. It could well be argued that this is a point of law which can be raised at any time, but a point of law is not raised anyhow. On the authority of Allied Bank Ltd v Dengu & Anor 2016 (2) ZLR 373 (S) at 376D-E, in order for one to raise a point of law validly at any stage, notice must be given to the other party of the intention to raise it. I did not see any proof that the issue was properly raised by the defendant. The defendant has submitted that the valuation reports cannot withstand the court’s scrutiny. It is submitted, further, that one of the authors of the valuation report was removed from the witness box by the plaintiff because the plaintiff had no confidence in his report. He argues that his valuation report has no value. Nothing can be farther from the truth. The valuation report was prepared by a Richard Matengambiri. On the date of trial, it turned out that Rawson Properties sent another official who is not Richard Matengambiri to testify. The plaintiff decided not to lead his oral testimony solely because he was not the author of the report. There was never reference to this allegation that the plaintiff had no confidence in his report. Mr Rangarirayi is clearly misleading this court. The record can and should speak for itself. The defendant further argues that the author of the second report gave conflicting evidence. Again, nothing can be farther from the truth. Timothy Mazibuye’s testimony was lucid and consistent. He valued the property at US$3 000 because he was denied access inside the house. He could only inspect the exterior of the house but was able to make conclusions after considering several relevant factors and consulting colleagues in the same industry. It was his further evidence that when he eventually managed to get inside the house, he formed the view that the property could fetch monthly rentals of US$ 3500, given the status of the property. He was expressing his opinion based on different observations he made on two different occasions. I do not find that the report was unreliable. Contrary to the defendant’s allegation that this witness failed to produce his identity card, he testified that in their industry, they are not given identity cards but they have certificates which he had left at his office. I have not been given any reason to doubt his testimony on the basis of a bald and unsubstantiated accusation by the defendant. The defendant argues that rental figures should not be plucked from the air. I agree. I however do not agree that the plaintiff has plucked figures from the air. Two reports from estate agents and an oral testimony have been placed before the court to prove the fair market rentals. If anyone is plucking figures from the air, then it is the defendant who wants this court to find that US$1 500 would be a fair market rentals on the basis of the defendant’s hunch. The court cannot embark on conjecture in assessing the damages, moreso in the face of both written and oral evidence placed before it proving what would be the fair market rentals. It would not be competent for the court to award an arbitrary approximation of damages as claimed by the defendant: See Kaplin v Naison & Ors HCC 37-24. DISPOSITION In the final analysis, I find that the proceedings under SC666/23; HCH 1725/24 and HCH 1825/24 do not have any effect to the plaintiff’s claim for damages for unlawful occupation. I also find that the plaintiff is entitled to claim damages for unlawful occupation from the defendant. Finally, I find that the plaintiff is entitled to the quantum of damages it has prayed for in its summons and declaration as proved by the evidence before the court. I note that the defendant has taken issue with the cumulative figure prayed for by the plaintiff in its closing address and accuses the plaintiff of attempting to amend the summons. It is clear from the closing address that the plaintiff’s prayer is for judgment to be entered as claimed. Having already determined that the plaintiff is entitled to the quantum of damages prayed for in its summons and declaration, I will proceed to issue an order in terms of the plaintiff’s claim, taking into account the date on which summons in this matter was issued and the date on which the defendant was evicted from the property. In concluding this matter, I find it necessary to comment that even though I have found that the objection to the claim sounding in foreign currency is belated, on the authority of Shah v Nherera SC 55-24, while this court is not precluded from making an order sounding in foreign currency, such amount may be paid in local currency at the interbank rate prevailing on the date of payment. With regards costs, it is trite that costs follow the outcome. In this matter, the plaintiff has prayed for costs on an ordinary scale. Had costs on a more punitive scale been prayed for, I would have been inclined to award same due to the manner in which the defendant’s counsel has conducted himself in this trial. In the result, I make the following order: The defendant shall pay to the plaintiff a sum of US$28 000, being unlawful occupation damages for the defendant’s illegal occupation of a certain piece of land called Remainder of Subdivision C of Lot 6 of Lot 190, 191, 193, 194 and 195 Highlands Estate of Welmoed, measuring 4377 Square metres between 8 May 2022 and 31 March 2023, with interest thereon at the rate of 5% per annum from 8 May 2022 to the date of payment in full, both dates inclusive. a sum of US$2 800.00 per month from the 1st of April 2023 to the 25th of June 2024, being damages for unlawful occupation of the property described in sub paragraph i. above, together with interest thereon at the prescribed rate of 5% per annum as from the due date to date of payment in full, both dates inclusive. The defendant shall pay the plaintiff’s costs of suit. Mushure J: ................................................................. Gill, Godlonton & Gerrans, plaintiff’s legal practitioners Rangarirai & Co. Legal Practitioners, defendant’s legal practitioners