PETROMOC EXOR (PRIVATE) LIMITED v CHIMEDZA and Others (258 of 2025) [2025] ZWHHC 258 (25 April 2025)

7 HH 258-25 Case No HC 3626/20 PETROMOC EXOR (PRIVATE) LIMITED versus KUDZANAI CHIMEDZA and CRANRID PETROLEUM (PRIVATE) LIMITED and THE MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE AND RURAL RESETTLMENT (N.O.) and THE SHERIFF FOR ZIMBABWE (N.O.) HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 18 November & 4 December 2024 & 25 April 2025 Opposed Application- Declaratur Ms R Mabwe, for the applicant Mr M Ndlovu and J Gwapedza, for the 1st respondent Ms A Magunde for the 3rd respondent MUSITHU J: This is an application for a declaratur in which the applicant petitioned the court to declare it the lawful lessee and occupier of a service station (excluding the bulk fuel reservoirs), situated at Duncombe Farm in the Concession area of Mazowe District of Mashonaland Central Province. As part of the consequential relief, the applicant seeks an order for the eviction of the first and second respondents and all those claiming rights of occupation through them from the service station. The application was opposed by the first respondent. The second respondent did not file opposing papers. The third respondent filed a letter dated 8 September 2020 through the Civil Division of the Attorney General’s office advising that he was not opposed to the relief sought. Background and the Applicant’s Case The applicant’s founding affidavit was deposed to by Tafadzwa Chirambadare in his capacity as the Company Secretary. The relevant factual background is set out in the papers as follows. On 17 July 2019 the applicant as lessee entered into a five-year lease agreement with the third respondent as the owner and lessor, in respect of premises known as Duncombe Fuel Filling Station (which excluded the bulk fuel reservoirs and hereinafter referred to as the service station). That lease agreement was set to expire on 31 June 2024. The service station is located at Duncombe Farm, whose legal description is Duncombe of Belle Vue of Moores Grant (the farm). Prior to 18 January 2002, the farm was owned by Duncombe Farm (Private) Limited under Deed of Transfer (Reg. No. 3148/1989) dated 4 April 1989. In May 2002, the applicant, as Exor Petromoc (Private) Limited and before changing its name to Petromoc Exor (Private) Limited, entered into a 25-year lease with Duncombe Farm (Private) Limited for the lease of the service station. That lease was set to expire in 2026. During the tenure of the lease, the applicant developed the fuel filling station and installed fuel tanks, fuel pumps and the canopy. In September 2013, the applicant entered into a franchise agreement with the first respondent in connection with the fuel filling station, oblivious of the fact that the farm had been acquired by the Government. A copy of the what the parties termed the Service Station Franchise License Agreement was attached to the applicant’s answering affidavit. First respondent moved onto site and commenced operations as a franchisee paying franchise fees to the applicant. The franchise agreement was terminated by law when the farm was acquired by the Government. When the applicant became aware that the farm was acquired by the Government on 18 January 2002 in terms of an Extraordinary Government Gazette, it commenced the process of regularising its interests in the service station in terms of the Gazetted Land (Consequential Provisions) Act1 In 2016, the applicant applied for the lease of the service station from the third respondent. The application was successful, leading to the signing of the aforementioned lease agreement. The applicant advised the first and second respondents to vacate the premises as it wished to take occupation, but they declined. The two have remained in occupation of the service station without any offer letter, permit or land settlement lease, and their continued occupation adversely affected the applicant’s business operations as it was unable to operate from the premises. The applicant also averred that the two respondents’ continued occupation contravened s 3(1) of the Gazetted Land (Consequential Provisions) Act and constituted a criminal offence in terms of s 3(3) of that law. On their part, the first and second respondents refused to vacate the service station alleging the existence of a valid oral lease between the first and third respondent. On 17 August 2019, the applicant engaged a security company called Quedec Security (Private) Limited to guard the service station in preparation for commencement of trading. The first and second respondents denied the security company access to the premises. The applicant averred that the first respondent’s allegations of the existence of an oral lease with the third respondent were inconceivable in that it suggested that Government would enter into oral leases of land without any record at all, yet Government was an institution of formality, process and record. The third respondent had also denied the existence of such oral lease and maintained that whoever was in occupation of the service station was doing so illegally. The third respondent attempted to evict the first and second respondents without success. The third respondent advised the applicant to seek the eviction of the first and second respondents through the courts. The applicant further averred that the first and second respondents and all those claiming rights of occupation and use of the fuel filling station through them had refused to vacate the property despite being served with a notice to vacate by the acquiring authority. Such resistance crippled the applicant’s operations despite it having paid up rentals a year in advance, from the date of signing the lease agreement to July 2020. The applicant contended that the first and second respondents had no rights in the service station hence its approach to the court for the relief sought. In terms of the Gazetted Land (Consequential Provisions) Act, the lease agreement was proof of the legitimacy of the rights flowing from therefrom as conferred by the Government of Zimbabwe. The applicant’s rights to the fuel filling station were therefore unquestionable. First Respondent’s Case In opposition, the first respondent argued that the applicant could not be declared to be the lawful lessee of the service station because he also had the right to occupy the premises. He averred that after the acquisition of Duncombe Farm in 2002, the third respondent recommended that he should lease the said facility. The Mazowe Rural District Council proceeded to prepare a lease agreement on behalf of the third respondent. The parties signed the memorandum of agreement of lease on 3 September 2013. The lease was for a five-year period, and it expired on 20 June 2018. The first respondent claimed to have invested a sum of US$40, 000.00 towards the upgrade of the service station. He argued that equity demanded that he should recover this amount from the third respondent or that he should be given an opportunity to run the service station until the expenses incurred were fully recovered at the rate of US$700.00 per month, which was in the initial agreement. By letter dated 14 July 2016, the third respondent confirmed that the service station was still State land, as it had not yet been handed over to the local authority, being Mazowe Rural District Council. The first respondent challenged the authenticity of the lease agreement between the applicant and the third respondent. He argued that the document did not even show the person who was representing the lessee and the capacity he/she signed the lease agreement on behalf of the lessee. The first respondent denied having entered into a franchise agreement or any other form of legal relationship with the applicant. He also denied having paid any fees to the applicant. The first respondent claimed that after the expiry of his lease agreement in 2018, the third respondent directed him to make direct rental payments into the Ministry’s bank account thereby becoming a statutory tenant. The first respondent averred that the oral agreement alluded to by the applicant only pertained to the period after 2018, when the Ministry of Lands ordered him to deposit rentals into its account pending the processing of a new lease agreement. The first respondent therefore insisted that he was lawfully leasing the service station and had made significant improvements whose cost he was entitled to recover through operating the facility. He denied being served with a notice to vacate the service station by the third respondent. The court was urged to dismiss the application with costs for lack of merit. Applicant’s Answering Affidavit The applicant denied that the first respondent was a bona fide lessee of the service station. The alleged lease agreement referred to by the first respondent was between him and Mazowe Rural District Council. The third respondent was not cited any where in the lease agreement, and neither was it mentioned in the lease that Mazowe Rural District Council was acting on behalf of the third respondent. The deponent referred to a letter of 3 March 2014 addressed to the applicant by the first respondent in which he declared that he had a lease agreement with Mazowe Rural District Council and not the third respondent. The first respondent was therefore attempting to rope in the third respondent to create a basis for his occupation of the service station. In any event, the third respondent had confirmed in the letter of 14 July 2016 that the service station was still under State land and not Council land. The applicant averred that when the first respondent signed his lease agreement on 3 September 2013, Mazowe Rural District Council, the purported landlord had no rights in the service station. It also followed that the first respondent did not derive any rights of occupation from that lease agreement. A person without title could not pass or transfer rights that he did not have. The first respondent did not receive any rights of tenancy and was therefore not a statutory tenant. He was only an unlawful occupier as defined in the Gazetted Land (Consequential Provisions) Act. It was further averred that the first respondent had failed to establish the requirements for successfully raising the defence of an improvement lien. For that reason, he had no right to claim compensation for the alleged improvements. At any rate, the first respondent was supposed to direct its queries to the Mazowe Rural District Council since there was no lease agreement between him and the third respondent. The Case Management Meetings Having gone through the papers in preparation for the hearing of the matter, I was of the view that the gravamen of the dispute was simply who between the applicant and the first respondent was the lawful holder of a lease agreement in respect of the service station. This issue could be resolved by getting the third respondent to clarify the status of the service station and who between the two was the holder of a valid lease agreement for the service station. Regrettably, the third respondent had not filed any papers seeing as no substantive relief was being sought against him. I invited counsel to a case management meeting on 18 November 2024 for a discussion of this issue. At the meeting, the applicant was represented by Ms Mabwe and the instructing counsel R Chikwengo. The first and second respondents were being represented by Mr Deme, while the third respondent was represented by Ms Magunde and Ms Banda from the third respondent’s offices. Mr Deme insisted that the dispute concerning the legitimate holder of a lease agreement as between the two contesting parties was still a live one and stood out as the main issue for determination. Mr Deme also indicated that the piece of land on which the service station was located was partly agricultural land and partly a Mazowe Rural District Council land. Ms Banda advised the court that the Ministry recognised the applicant as the lessee of the service station by virtue of a lease agreement it held with the third respondent. With the consent of counsel, I postponed the matter with directions that the third respondent, the Ministry of Local Government and Public Works and the Mazowe Rural District Council file a joint report through the Attorney General’s office clarifying the status of the service station and the farm on which the said service station was located. The matter was postponed to 4 December 2024, for arguments if the proposed route did not yield an amicable settlement of the matter. The report was filed on 4 December 2024. It was prepared by the Permanent Secretary in the third respondent’s ministry. It confirmed that the land on which the service station was located was State agricultural land, having been acquired by government on 18 January 2002. When the parties appeared before me on 4 December 2024, counsel for the first respondent was adamant that the matter should be argued. Ms Magunde advised the court that the third respondent would stand by the report filed of record. Prior Proceedings before this court and the Supreme Court For completeness of the record, I must also pause to observe that it also emerged during the case management meeting that this matter was once determined by my brother Mangota J and he handed down judgment on 28 September 2021 under HH 533/21. The learned judge determined that the lease agreement between the applicant and the third respondent was a nullity because it was issued by an Under Secretary in the third respondent’s Ministry. The Under Secretary had no powers to issue the lease agreement. The power to issue lease agreements was reposed in the Minister himself. The learned judge proceeded to strike the matter off the roll on the basis that the applicant had tendered an illegible lease agreement. The matter was taken on appeal to the Supreme Court under SC 161/22. In a judgment handed down in SC 49/23, the Supreme Court quashed the proceedings before Mangota J and set them aside. The matter was remitted to this court for a trial de novo before a different judge. In coming to that decision, the Supreme Court observed that the reasoning of the court was littered with gross irrationality so as to amount to a fatal procedural irregularity. This was because once the learned judge found on the merits that the applicant’s lease agreement was a nullity and unenforceable that should have been the end of the matter. The court had however proceeded to strike the matter off from the roll on the basis that the applicant had tendered an illegible lease agreement. The Supreme Court reasoned that once the learned judge had found that the lease agreement was void and unenforceable, it did not matter whether or not it was legible. It was therefore irrational for the court to strike the matter off the roll in the hope that the applicant would again approach the courts with a legible but void lease agreement. Having outlined the factual background, I now proceed to determine the parties’ submissions hereunder. The Preliminary Point That the relief sought was incompetent because the applicant’s lease had expired Mr Ndlovu for the first respondent submitted that the decision by the applicant to persist with the matter was an abuse of court proceedings. Section 14 of the High Court Act [Chapter 7:06] in terms of which the declaratur was being sought required one to demonstrate the existence of a right or interest in the cause. The basis of the applicant’s application was a lease agreement between the applicant and the third respondent. That agreement had since expired. The court could not be invited to make a contract for the parties. Counsel submitted that there was no longer a dispute between the applicant and the first respondent. The parties held no rights or interest but wishes. A wish did not found a cause of action. The dispute had become moot. The court was urged to dismiss the application for want of jurisdiction. In response Ms Mabwe submitted that the applicant’s rights ought to be considered in the context of events obtaining at the time that proceedings were commenced. The question was whether at the time the application was filed, there were any rights upon which the court could grant the relief sought. Ms Mabwe pointed to various correspondences from the third respondent’s office in which the status of the service station and the land on which it was located was explained. Counsel further submitted that even the first respondent’s opposition acknowledged that the land was State land, and all that he needed was to be compensated for the improvements he had made. Ms Mabwe further submitted that in terms of s 2 the Gazetted Land (Consequential Provisions) Act, a person could not occupy State land without proper documentation. What the first respondent was saying was that he should be allowed to operate the service station even if he did not have the relevant documentation. Counsel argued that s 14 of the High Court Act did not bar this court from granting the relief sought and exercising its jurisdictional powers. In reply, Mr Ndlovu submitted that the date of filing of the application was not material. What mattered was the date of the resolution of the dispute. Events could intervene in between the time of filing of the application and the resolution of the matter. This is what had happened in this matter. Counsel also dismissed the report filed by the third respondent as irrelevant and unhelpful. This was because the report did not state that the land was allocated to the applicant. Analysis of the preliminary point The preliminary point raises a critical legal question that this court must interrogate. The question is whether a declaratur is not competent where, as alleged by counsel for the first respondent, circumstances have changed at the time the court is being invited to determine the matter. Put differently, the issue is whether the doctrine of mootness applies to the present dispute. Has the dispute between the parties become academic or is there no longer a live dispute between the parties due to a change in circumstances or events? The present application was filed in terms of section 14 of the High Court Act [Chapter 7:07], which states as follows: “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.” (Underlining mine for emphasis) From a reading of the section, an applicant must establish an interest in the cause and the existence of a dispute in connection with an existing, future or contingent right or obligation. One can conceive of a right as an entitlement, privilege or power recognised and protected by the law. The law permits the holder of that right to have or to enjoy the right. It is in recognition of that a litigant is entitled to approach the court for relief in terms of s 14. In motivating the argument on mootness, Mr Ndlovu referred the court to the case of Bere v Judicial Service Commission & 6 Ors2, in which the court held as follows: “It is now trite that a matter is moot if further legal proceedings with regard to it can have no effect or events have placed it beyond the reach of the law. However, that is not the end of the matter as the fact that a matter has become moot does not automatically constitute a bar to a court to hear it. A court retains discretionary powers to hear a moot case where it is in the interest of justice for it to do so. As a general rule, courts must be wary of making a determination on a matter, which has been overtaken by events or is moot as such a determination leads to an ineffectual judgment.” (Underlining for emphasis) In the same judgment, the court also cited the earlier case of Thokozani Khuphe & Anor v Parliament of Zimbabwe & Ors3, where the court made the following pertinent remarks: “A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances the Court’s jurisdiction ceases and the case becomes moot… The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of “such a nature that the decision sought will have no practical effect or result…A matter is not moot only at the commencement of proceedings. It may be considered moot at the time the decision on the matter is to be made… The mere fact that the matter is moot does not constitute an absolute bar to a court to hear a matter. Whilst a matter may be moot as between the parties, that does not without more render it unjustifiable. The court retains a discretion to hear a moot case where it is in the interests of justice to do so. J T Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC) at 525A-B.”(underlining for emphasis)4 What is clear from the foregoing authorities is that a matter becomes moot when it has been overtaken events and the decision to be rendered becomes academic. However, the court still retains its discretion to hear the matter if it considers that it is in the interests of justice that the matter must be heard. In exercising that discretion, the court must be satisfied that there exist exceptional circumstances justifying the hearing of the matter. In driving the point on the mootness of the matter, Mr Ndlovu argued that the lease agreement that the applicant relied expired on 31 June 2024. For that reason, the applicant had no rights upon which a declaratur should be granted. Ms Mabwe on the other hand argued that the applicant’s rights to seek a declaratur were clearly vested at the time that the application was launched. The point was made in the Khupe judgment that a matter is not only moot at the commencement of proceedings. It may also become moot at the time that a decision is to be made. It is also important in my view that in exercising its discretion, the court must have regard to the special circumstances peculiar to each case. The applicant claimed rights based on a lease agreement which commenced on 17 July 2019 and terminating on 31 June 2024. The record shows that the current proceedings were instituted on 14 July 2020, just a year after the commencement of the lease agreement. This matter was once heard by Mangota J who handed down judgment on 28 September 2021. The matter was taken on appeal and the Supreme Court, and that court set aside the proceedings and ordered a trial de novo. The matter would have long been concluded had it not been for the quashing of the proceedings and an order for a trial de novo. In my view, the nature of the dispute herein militates against this court declining jurisdiction on the grounds of mootness. The lease agreement between the applicant and the third respondent provided for its renewal. Clause 2 of the agreement provided that the third respondent could, at his sole discretion, renew the agreement for such further period and upon such terms and conditions as he would determine. This was on condition that the lessee gave not less than three months’ notice in writing of its intention to renew the lease. The preliminary point on mootness was raised for the first time from the bar by the first respondent’s counsel. Heads of argument were filed as far back as October 2020, and no supplementary heads had been filed to address this point. It was therefore not clear whether the applicant had exercised its rights to renew the lease or not. The court cannot therefore proceed on the assumption that the lease actually expired on 31 June 2024, in the absence of further evidence pointing to non-renewal. The first respondent’s counsel did not submit as a matter of fact that upon its expiry, the applicant did not exercise its right to renew the lease. These proceedings were initiated just a year after the said lease agreement was signed. The court must be slow to decline jurisdiction on the grounds of mootness when there is no clear demonstration of the changed circumstances. In the court’s view, the first respondent ought to have gone a step further to demonstrate that notwithstanding the expiry of the lease on 31 June 2024, the applicant had not taken steps to have it renewed in line with the renewal clause. To merely make a bold submission from the bar, at the proverbial eleventh hour, that the matter had become moot because the lease had expired without providing further details in the face of a renewal clause was rather implausible. For this reason, the court was not persuaded to accept that the matter had become moot, and that the applicant no longer had any rights flowing from the said lease agreement. The preliminary point was accordingly dismissed for lack of merit. THE MERITS Ms Mabwe submitted that s 6 of the Rural Land Act [Chapter 20:18], permitted the third respondent to enter into lease agreements in connection with State land. The first respondent’s lease agreement was allegedly with the Mazowe Rural District Council and not the third respondent. According to counsel, that was not even the correct position. The correct position was that the first respondent was in occupation of the premises because of the franchise agreement he signed with the applicant. The franchise agreement was attached to the applicant’s answering affidavit. Counsel submitted that the first respondent was a dishonest litigant who should not get any assistance from the court. The court was urged to grant the order sought with an adverse order of costs on the punitive scale against the first respondent because of the way he conducted himself. The letters from the third respondent’s office and the report that was placed before the court all confirmed that the first respondent had no relationship with the third respondent at all. In response, Mr Ndlovu urged the court to dismiss the application with costs on the punitive scale because the applicant had no rights that it was inviting this court to enforce. The court could not be invited to grant a declaratur to confirm the existence of a lease that had expired. That was tantamount to making a contract for the parties. Analysis of the merits The dispute centres around the lawful lessee of the service station. The applicant’s claim was based on a lease agreement it had with the third respondent. The first respondent claimed to be the lawful lessee based on a lease agreement he signed with the Mazowe Rural District Council. Upon the expiry of that lease agreement, the first respondent claimed that he had a verbal agreement with the third respondent in terms of which he was directed to make rental payments into the Ministry’s bank accounts pending the processing of a new lease agreement. After analysing the parties’ pleadings and documentary evidence accompanying those pleadings, the court was left in no doubt that the premises on which the service station was located was State land. The third respondent, as the authority reposed with the management of State land, was also responsible for that service station. As early as 24 October 2019, the Valuation and Estates Officer in the third respondent’s Ministry wrote to the first respondent giving him notice to vacate the service station. Part of the letter reads as follows: “REF: NOTICE TO VACATE DUNCOMBE SERVICE STATION MAZOWE DISTRICT ……………………………….. Please be advised that the filling station is on stateland and falls under the administration of the Ministry. The Ministry is requesting you to vacate Duncombe service station, with a three months’ notice, with effect from 24 October 2019. The premises have already been leased out to Petromoc Exor. Failure to vacate by the deadline date, the matter will be referred for legal recourse.” The letter was followed up by another letter of 21 November 2019 from the Director, Land Management Department in the third respondent’s Ministry. The letter reiterated the contents of the earlier letter that the service station was on stateland which fell under the administration of the third respondent’s Ministry. It also reiterated the fact that the service station had been leased out to the applicant. The first respondent was requested to vacate the service station with immediate effect. In a letter dated 17 January 2020, the Director, Land Management Department in the third respondent’s Ministry wrote to the applicant’s legal practitioners advising them of the efforts made to evict the first respondent from the premises without success. They were advised to pursue the legal route to evict the first respondent. The first respondent does not deny that the service station was under State land. In paragraph 2 of his opposing affidavit, the first respondent admitted that in 2016, the Ministry of Lands confirmed that it had not transferred ownership of the land to the Mazowe Rural District Council. He attached to his opposing affidavit, a letter of 14 July 2016 from the District Lands Officer (Mazowe), directed to the Chief Lands Officer, Bindura, which read in part as follows:RR “……………………………………….. This note serves to confirm that the Duncombe Service Station is still under stateland. It has not yet been handed over to the local authority, Mazowe Rural District Council. Please facilitate the processing of trading permits forwarded for the above stated state premise.” The lease agreement between the first respondent and Mazowe Rural District Council was signed on 3 September 2013. It was for a period of five years commencing on 1 July 2013 and terminating on 30 June 2018. The aforementioned letter of 14 July 2016 confirmed that as at that date, the service station was still on State land as it had not been handed over to the local authority. It follows that the Mazowe Rural District Council had no authority sign a lease agreement with third parties in connection with land that was not under its jurisdiction and control. The lease agreement does not even state that it was signed on behalf of the third respondent. The lease agreement was a nullity and of no legal force. The first respondent could not claim occupation based on a lease that was a nullity. He was an unlawful occupier. The first respondent claimed that after the expiry of that lease in 2018, he verbally engaged the third respondent’s officials and was given the greenlight to pay rentals directly to the third respondent’s bank accounts. The first respondent’s explanation is inconceivable. This is because this was the same time that the third respondent’s officials were making frantic efforts to evict the first respondent from the premises. The first respondent’s claims of a subsisting verbal lease agreement with the third respondent therefore become farfetched in the absence of any supporting documentary evidence. It is in direct contradiction with the decision taken by the third respondent’s officials to have him evicted from the premises. What is however more probable is that the first respondent took occupation of the service station on the basis of the Franchise License Agreement that he signed with the applicant on 3 July 2021. Although the first respondent denied it outright, the documentary evidence placed before the court proves otherwise. On 3 March 2014, the first respondent responded as follows to the applicant’s letter of final demand for $6 605.24: “RE: Response to letter of final demand $6 605.24 in arrears at Concession Service Station. Exor Petroleum aka PetromocExor had a license agreement entered between them and myself with regards Concession Service Station. I acknowledge it is Exor petroleum that had the right of the movable property of thereof. However, with charges related the Land Acquisition Act aka Land Reform Exercise, the said property now changed to become State and Naturally all properties sited on. ……………………………………………… With that Exor cannot claim rentals from me with effective from 01 July 2013 to date. …………” The above letter all but confirmed that there was a franchise agreement between the applicant and the first respondent. For the first respondent to make an about turn and profess complete ignorance of that agreement smacks of dishonesty. In his opposing affidavit, the first respondent also claimed that he was entitled to remain in occupation because he had made a huge investment on the service station. In response the applicant averred that what the applicant was essentially seeking was an improvement lien. In its heads of argument, the applicant submitted that the defence of a lien could only be raised against a claim for the rei vindicatio by the owner of the property. The applicant was not the owner of the property, and the proceedings herein were not for the rei vindicatio. The first respondent’s defence based on the alleged improvements made to the premises is clearly misplaced. Such a claim must be made against the owner of the property, being the third respondent herein. Nothing was said about this defence in the oral submissions. At any rate, a notice of opposition is not a means of attack. It is a shield. The first respondent ought to have filed a counterclaim or a separate claim of his own in order to assert his own claims against the applicant or the third re. In his heads of argument, the first respondent averred that the applicant lacked the requisite locus standi to bring an action for eviction as it was never in possession of the premises. It was further averred that the first respondent had been in occupation of the premises since 2013, and what the applicant had acquired were merely personal rights which it could not exercise against the first respondent. As stated, the question of the applicant’s locus standi was only raised in the first respondent’s heads of argument. Ordinarily the absence of locus standi is raised as a preliminary at the commencement of oral submissions. This allows the court to determine at the outset whether a litigant is properly before the court. The first respondent’s counsel did not deal with this issue in his oral submissions. Be that as it may, in its heads of argument, the applicant submitted that it derived its interest to seek a declaratur from a valid Land Resettlement Lease as defined in s 2 of the Gazetted Land (Consequential Provisions) Act, as read with s 6 of the Rural Land Act. A Land Resettlement Lease is defined in s 2(1)(b) of the Gazetted Land (Consequential Provisions) Act as follows: ““land resettlement lease” means a lease of any Gazetted land, or a portion of Gazetted land, issued by the State to any person, whether in terms of the Rural Land Act [Chapter 20:18] or the Agricultural Land Settlement Act [Chapter 20:01] or otherwise.” The applicant submitted that the Land Resettlement Lease, which was signed in terms of s 6 of the Rural Land Act was lawful authority which gave it the right to operate the leased premises. The applicant was denied the full exercise of that right by the first respondent’s continued occupation and use of the leased premises without lawful authority. The application before the court is one for a declaratur. The right that the applicant seeks to assert is based on the lease agreement that it signed with the third respondent. The applicant therefore has an existing interest in the service station which makes it an interested person for purposes of s 14 of the High Court Act. In the final analysis, the court was satisfied that the applicant was the lawful holder of a lease agreement with the third respondent. The first respondent on its part failed to establish any legal relationship with the third respondent. The documents that he attached to his opposing affidavit proved the contrary. He entered into a lease agreement with a party that had no lawful rights over the property. The service station is located on State land and not council land. The authority responsible for State land disowned the first respondent and wanted him evicted from the premises. The first respondent has no legal right to remain in occupation of the premises. The applicant’s claim must therefore succeed. COSTS The court was urged to penalise the first respondent with an order of costs on the legal practitioner and client scale because of the way he conducted himself in these proceedings. The second respondent did not oppose the application and so there is no need to saddle it with an adverse order of costs. In the exercise of its discretion refrains from making an award of costs on the punitive scale. Resultantly it is declared and ordered that: The applicant is the lawful lessee and occupier of the Duncombe Fuel Filling Station (excluding the Bulk Fuel Service Station) situated on Duncombe of Belle Vue of Moores Grant also known as Duncombe Farm in Concession located in the Mazowe District of Mashonaland Central Province.The first and second respondents have no right, title and interest in Duncombe Fuel Filling Station and are barred from occupying or operating the Fuel Filling station.First and second respondents and all those claiming occupation through them of Duncombe Fuel Filling Station be and are hereby ordered to vacate from Duncombe Fuel Filling station within three (3) days of the date of this order.The first and second respondents and all those claiming occupation through them of the Duncombe Fuel Filling Station are restrained from vandalising and removing fixed assets from the fuel filling station including electrical installations, water pipes, fuel pumps, fuel tanks and the canopy.The Sheriff of the High Court be and is hereby authorised to evict the first and second respondents from Duncombe Fuel Filling Station should they fail to comply with paragraph 3 of this order.The Sheriff of the High Court be and is hereby authorised to call upon the assistance of the Zimbabwe Republic Police should the first and second respondents resist the eviction. The first respondent shall bear the applicant’s costs of suit. Musithu J :……………………………………………………………………….. Chikwengo Law Chambers, legal practitioners for the applicant Mutamangira & Associates, legal practitioners for the 1st respondent Civil Division of the Attorney General’s Office, legal practitioners for the 3rd respondent 1 [Chapter 20:28] 2 SC 1/22 at p12 of the judgment 3 CCZ 20/19 at p 7 4 See also Chombo v Clerk of Court, Harare Magistrates Court (Rotten Row) & Ors CCZ 12/20 at pages 7 to 8 7 HH 258-25 Case No HC 3626/20 7 HH 258-25 Case No HC 3626/20 PETROMOC EXOR (PRIVATE) LIMITED versus KUDZANAI CHIMEDZA and CRANRID PETROLEUM (PRIVATE) LIMITED and THE MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE AND RURAL RESETTLMENT (N.O.) and THE SHERIFF FOR ZIMBABWE (N.O.) HIGH COURT OF ZIMBABWE MUSITHU J HARARE: 18 November & 4 December 2024 & 25 April 2025 Opposed Application- Declaratur Ms R Mabwe, for the applicant Mr M Ndlovu and J Gwapedza, for the 1st respondent Ms A Magunde for the 3rd respondent MUSITHU J: This is an application for a declaratur in which the applicant petitioned the court to declare it the lawful lessee and occupier of a service station (excluding the bulk fuel reservoirs), situated at Duncombe Farm in the Concession area of Mazowe District of Mashonaland Central Province. As part of the consequential relief, the applicant seeks an order for the eviction of the first and second respondents and all those claiming rights of occupation through them from the service station. The application was opposed by the first respondent. The second respondent did not file opposing papers. The third respondent filed a letter dated 8 September 2020 through the Civil Division of the Attorney General’s office advising that he was not opposed to the relief sought. Background and the Applicant’s Case The applicant’s founding affidavit was deposed to by Tafadzwa Chirambadare in his capacity as the Company Secretary. The relevant factual background is set out in the papers as follows. On 17 July 2019 the applicant as lessee entered into a five-year lease agreement with the third respondent as the owner and lessor, in respect of premises known as Duncombe Fuel Filling Station (which excluded the bulk fuel reservoirs and hereinafter referred to as the service station). That lease agreement was set to expire on 31 June 2024. The service station is located at Duncombe Farm, whose legal description is Duncombe of Belle Vue of Moores Grant (the farm). Prior to 18 January 2002, the farm was owned by Duncombe Farm (Private) Limited under Deed of Transfer (Reg. No. 3148/1989) dated 4 April 1989. In May 2002, the applicant, as Exor Petromoc (Private) Limited and before changing its name to Petromoc Exor (Private) Limited, entered into a 25-year lease with Duncombe Farm (Private) Limited for the lease of the service station. That lease was set to expire in 2026. During the tenure of the lease, the applicant developed the fuel filling station and installed fuel tanks, fuel pumps and the canopy. In September 2013, the applicant entered into a franchise agreement with the first respondent in connection with the fuel filling station, oblivious of the fact that the farm had been acquired by the Government. A copy of the what the parties termed the Service Station Franchise License Agreement was attached to the applicant’s answering affidavit. First respondent moved onto site and commenced operations as a franchisee paying franchise fees to the applicant. The franchise agreement was terminated by law when the farm was acquired by the Government. When the applicant became aware that the farm was acquired by the Government on 18 January 2002 in terms of an Extraordinary Government Gazette, it commenced the process of regularising its interests in the service station in terms of the Gazetted Land (Consequential Provisions) Act1 In 2016, the applicant applied for the lease of the service station from the third respondent. The application was successful, leading to the signing of the aforementioned lease agreement. The applicant advised the first and second respondents to vacate the premises as it wished to take occupation, but they declined. The two have remained in occupation of the service station without any offer letter, permit or land settlement lease, and their continued occupation adversely affected the applicant’s business operations as it was unable to operate from the premises. The applicant also averred that the two respondents’ continued occupation contravened s 3(1) of the Gazetted Land (Consequential Provisions) Act and constituted a criminal offence in terms of s 3(3) of that law. On their part, the first and second respondents refused to vacate the service station alleging the existence of a valid oral lease between the first and third respondent. On 17 August 2019, the applicant engaged a security company called Quedec Security (Private) Limited to guard the service station in preparation for commencement of trading. The first and second respondents denied the security company access to the premises. The applicant averred that the first respondent’s allegations of the existence of an oral lease with the third respondent were inconceivable in that it suggested that Government would enter into oral leases of land without any record at all, yet Government was an institution of formality, process and record. The third respondent had also denied the existence of such oral lease and maintained that whoever was in occupation of the service station was doing so illegally. The third respondent attempted to evict the first and second respondents without success. The third respondent advised the applicant to seek the eviction of the first and second respondents through the courts. The applicant further averred that the first and second respondents and all those claiming rights of occupation and use of the fuel filling station through them had refused to vacate the property despite being served with a notice to vacate by the acquiring authority. Such resistance crippled the applicant’s operations despite it having paid up rentals a year in advance, from the date of signing the lease agreement to July 2020. The applicant contended that the first and second respondents had no rights in the service station hence its approach to the court for the relief sought. In terms of the Gazetted Land (Consequential Provisions) Act, the lease agreement was proof of the legitimacy of the rights flowing from therefrom as conferred by the Government of Zimbabwe. The applicant’s rights to the fuel filling station were therefore unquestionable. First Respondent’s Case In opposition, the first respondent argued that the applicant could not be declared to be the lawful lessee of the service station because he also had the right to occupy the premises. He averred that after the acquisition of Duncombe Farm in 2002, the third respondent recommended that he should lease the said facility. The Mazowe Rural District Council proceeded to prepare a lease agreement on behalf of the third respondent. The parties signed the memorandum of agreement of lease on 3 September 2013. The lease was for a five-year period, and it expired on 20 June 2018. The first respondent claimed to have invested a sum of US$40, 000.00 towards the upgrade of the service station. He argued that equity demanded that he should recover this amount from the third respondent or that he should be given an opportunity to run the service station until the expenses incurred were fully recovered at the rate of US$700.00 per month, which was in the initial agreement. By letter dated 14 July 2016, the third respondent confirmed that the service station was still State land, as it had not yet been handed over to the local authority, being Mazowe Rural District Council. The first respondent challenged the authenticity of the lease agreement between the applicant and the third respondent. He argued that the document did not even show the person who was representing the lessee and the capacity he/she signed the lease agreement on behalf of the lessee. The first respondent denied having entered into a franchise agreement or any other form of legal relationship with the applicant. He also denied having paid any fees to the applicant. The first respondent claimed that after the expiry of his lease agreement in 2018, the third respondent directed him to make direct rental payments into the Ministry’s bank account thereby becoming a statutory tenant. The first respondent averred that the oral agreement alluded to by the applicant only pertained to the period after 2018, when the Ministry of Lands ordered him to deposit rentals into its account pending the processing of a new lease agreement. The first respondent therefore insisted that he was lawfully leasing the service station and had made significant improvements whose cost he was entitled to recover through operating the facility. He denied being served with a notice to vacate the service station by the third respondent. The court was urged to dismiss the application with costs for lack of merit. Applicant’s Answering Affidavit The applicant denied that the first respondent was a bona fide lessee of the service station. The alleged lease agreement referred to by the first respondent was between him and Mazowe Rural District Council. The third respondent was not cited any where in the lease agreement, and neither was it mentioned in the lease that Mazowe Rural District Council was acting on behalf of the third respondent. The deponent referred to a letter of 3 March 2014 addressed to the applicant by the first respondent in which he declared that he had a lease agreement with Mazowe Rural District Council and not the third respondent. The first respondent was therefore attempting to rope in the third respondent to create a basis for his occupation of the service station. In any event, the third respondent had confirmed in the letter of 14 July 2016 that the service station was still under State land and not Council land. The applicant averred that when the first respondent signed his lease agreement on 3 September 2013, Mazowe Rural District Council, the purported landlord had no rights in the service station. It also followed that the first respondent did not derive any rights of occupation from that lease agreement. A person without title could not pass or transfer rights that he did not have. The first respondent did not receive any rights of tenancy and was therefore not a statutory tenant. He was only an unlawful occupier as defined in the Gazetted Land (Consequential Provisions) Act. It was further averred that the first respondent had failed to establish the requirements for successfully raising the defence of an improvement lien. For that reason, he had no right to claim compensation for the alleged improvements. At any rate, the first respondent was supposed to direct its queries to the Mazowe Rural District Council since there was no lease agreement between him and the third respondent. The Case Management Meetings Having gone through the papers in preparation for the hearing of the matter, I was of the view that the gravamen of the dispute was simply who between the applicant and the first respondent was the lawful holder of a lease agreement in respect of the service station. This issue could be resolved by getting the third respondent to clarify the status of the service station and who between the two was the holder of a valid lease agreement for the service station. Regrettably, the third respondent had not filed any papers seeing as no substantive relief was being sought against him. I invited counsel to a case management meeting on 18 November 2024 for a discussion of this issue. At the meeting, the applicant was represented by Ms Mabwe and the instructing counsel R Chikwengo. The first and second respondents were being represented by Mr Deme, while the third respondent was represented by Ms Magunde and Ms Banda from the third respondent’s offices. Mr Deme insisted that the dispute concerning the legitimate holder of a lease agreement as between the two contesting parties was still a live one and stood out as the main issue for determination. Mr Deme also indicated that the piece of land on which the service station was located was partly agricultural land and partly a Mazowe Rural District Council land. Ms Banda advised the court that the Ministry recognised the applicant as the lessee of the service station by virtue of a lease agreement it held with the third respondent. With the consent of counsel, I postponed the matter with directions that the third respondent, the Ministry of Local Government and Public Works and the Mazowe Rural District Council file a joint report through the Attorney General’s office clarifying the status of the service station and the farm on which the said service station was located. The matter was postponed to 4 December 2024, for arguments if the proposed route did not yield an amicable settlement of the matter. The report was filed on 4 December 2024. It was prepared by the Permanent Secretary in the third respondent’s ministry. It confirmed that the land on which the service station was located was State agricultural land, having been acquired by government on 18 January 2002. When the parties appeared before me on 4 December 2024, counsel for the first respondent was adamant that the matter should be argued. Ms Magunde advised the court that the third respondent would stand by the report filed of record. Prior Proceedings before this court and the Supreme Court For completeness of the record, I must also pause to observe that it also emerged during the case management meeting that this matter was once determined by my brother Mangota J and he handed down judgment on 28 September 2021 under HH 533/21. The learned judge determined that the lease agreement between the applicant and the third respondent was a nullity because it was issued by an Under Secretary in the third respondent’s Ministry. The Under Secretary had no powers to issue the lease agreement. The power to issue lease agreements was reposed in the Minister himself. The learned judge proceeded to strike the matter off the roll on the basis that the applicant had tendered an illegible lease agreement. The matter was taken on appeal to the Supreme Court under SC 161/22. In a judgment handed down in SC 49/23, the Supreme Court quashed the proceedings before Mangota J and set them aside. The matter was remitted to this court for a trial de novo before a different judge. In coming to that decision, the Supreme Court observed that the reasoning of the court was littered with gross irrationality so as to amount to a fatal procedural irregularity. This was because once the learned judge found on the merits that the applicant’s lease agreement was a nullity and unenforceable that should have been the end of the matter. The court had however proceeded to strike the matter off from the roll on the basis that the applicant had tendered an illegible lease agreement. The Supreme Court reasoned that once the learned judge had found that the lease agreement was void and unenforceable, it did not matter whether or not it was legible. It was therefore irrational for the court to strike the matter off the roll in the hope that the applicant would again approach the courts with a legible but void lease agreement. Having outlined the factual background, I now proceed to determine the parties’ submissions hereunder. The Preliminary Point That the relief sought was incompetent because the applicant’s lease had expired Mr Ndlovu for the first respondent submitted that the decision by the applicant to persist with the matter was an abuse of court proceedings. Section 14 of the High Court Act [Chapter 7:06] in terms of which the declaratur was being sought required one to demonstrate the existence of a right or interest in the cause. The basis of the applicant’s application was a lease agreement between the applicant and the third respondent. That agreement had since expired. The court could not be invited to make a contract for the parties. Counsel submitted that there was no longer a dispute between the applicant and the first respondent. The parties held no rights or interest but wishes. A wish did not found a cause of action. The dispute had become moot. The court was urged to dismiss the application for want of jurisdiction. In response Ms Mabwe submitted that the applicant’s rights ought to be considered in the context of events obtaining at the time that proceedings were commenced. The question was whether at the time the application was filed, there were any rights upon which the court could grant the relief sought. Ms Mabwe pointed to various correspondences from the third respondent’s office in which the status of the service station and the land on which it was located was explained. Counsel further submitted that even the first respondent’s opposition acknowledged that the land was State land, and all that he needed was to be compensated for the improvements he had made. Ms Mabwe further submitted that in terms of s 2 the Gazetted Land (Consequential Provisions) Act, a person could not occupy State land without proper documentation. What the first respondent was saying was that he should be allowed to operate the service station even if he did not have the relevant documentation. Counsel argued that s 14 of the High Court Act did not bar this court from granting the relief sought and exercising its jurisdictional powers. In reply, Mr Ndlovu submitted that the date of filing of the application was not material. What mattered was the date of the resolution of the dispute. Events could intervene in between the time of filing of the application and the resolution of the matter. This is what had happened in this matter. Counsel also dismissed the report filed by the third respondent as irrelevant and unhelpful. This was because the report did not state that the land was allocated to the applicant. Analysis of the preliminary point The preliminary point raises a critical legal question that this court must interrogate. The question is whether a declaratur is not competent where, as alleged by counsel for the first respondent, circumstances have changed at the time the court is being invited to determine the matter. Put differently, the issue is whether the doctrine of mootness applies to the present dispute. Has the dispute between the parties become academic or is there no longer a live dispute between the parties due to a change in circumstances or events? The present application was filed in terms of section 14 of the High Court Act [Chapter 7:07], which states as follows: “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.” (Underlining mine for emphasis) From a reading of the section, an applicant must establish an interest in the cause and the existence of a dispute in connection with an existing, future or contingent right or obligation. One can conceive of a right as an entitlement, privilege or power recognised and protected by the law. The law permits the holder of that right to have or to enjoy the right. It is in recognition of that a litigant is entitled to approach the court for relief in terms of s 14. In motivating the argument on mootness, Mr Ndlovu referred the court to the case of Bere v Judicial Service Commission & 6 Ors2, in which the court held as follows: “It is now trite that a matter is moot if further legal proceedings with regard to it can have no effect or events have placed it beyond the reach of the law. However, that is not the end of the matter as the fact that a matter has become moot does not automatically constitute a bar to a court to hear it. A court retains discretionary powers to hear a moot case where it is in the interest of justice for it to do so. As a general rule, courts must be wary of making a determination on a matter, which has been overtaken by events or is moot as such a determination leads to an ineffectual judgment.” (Underlining for emphasis) In the same judgment, the court also cited the earlier case of Thokozani Khuphe & Anor v Parliament of Zimbabwe & Ors3, where the court made the following pertinent remarks: “A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances the Court’s jurisdiction ceases and the case becomes moot… The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties. The question of mootness of a dispute has featured repeatedly in this and other jurisdictions. The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of “such a nature that the decision sought will have no practical effect or result…A matter is not moot only at the commencement of proceedings. It may be considered moot at the time the decision on the matter is to be made… The mere fact that the matter is moot does not constitute an absolute bar to a court to hear a matter. Whilst a matter may be moot as between the parties, that does not without more render it unjustifiable. The court retains a discretion to hear a moot case where it is in the interests of justice to do so. J T Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC) at 525A-B.”(underlining for emphasis)4 What is clear from the foregoing authorities is that a matter becomes moot when it has been overtaken events and the decision to be rendered becomes academic. However, the court still retains its discretion to hear the matter if it considers that it is in the interests of justice that the matter must be heard. In exercising that discretion, the court must be satisfied that there exist exceptional circumstances justifying the hearing of the matter. In driving the point on the mootness of the matter, Mr Ndlovu argued that the lease agreement that the applicant relied expired on 31 June 2024. For that reason, the applicant had no rights upon which a declaratur should be granted. Ms Mabwe on the other hand argued that the applicant’s rights to seek a declaratur were clearly vested at the time that the application was launched. The point was made in the Khupe judgment that a matter is not only moot at the commencement of proceedings. It may also become moot at the time that a decision is to be made. It is also important in my view that in exercising its discretion, the court must have regard to the special circumstances peculiar to each case. The applicant claimed rights based on a lease agreement which commenced on 17 July 2019 and terminating on 31 June 2024. The record shows that the current proceedings were instituted on 14 July 2020, just a year after the commencement of the lease agreement. This matter was once heard by Mangota J who handed down judgment on 28 September 2021. The matter was taken on appeal and the Supreme Court, and that court set aside the proceedings and ordered a trial de novo. The matter would have long been concluded had it not been for the quashing of the proceedings and an order for a trial de novo. In my view, the nature of the dispute herein militates against this court declining jurisdiction on the grounds of mootness. The lease agreement between the applicant and the third respondent provided for its renewal. Clause 2 of the agreement provided that the third respondent could, at his sole discretion, renew the agreement for such further period and upon such terms and conditions as he would determine. This was on condition that the lessee gave not less than three months’ notice in writing of its intention to renew the lease. The preliminary point on mootness was raised for the first time from the bar by the first respondent’s counsel. Heads of argument were filed as far back as October 2020, and no supplementary heads had been filed to address this point. It was therefore not clear whether the applicant had exercised its rights to renew the lease or not. The court cannot therefore proceed on the assumption that the lease actually expired on 31 June 2024, in the absence of further evidence pointing to non-renewal. The first respondent’s counsel did not submit as a matter of fact that upon its expiry, the applicant did not exercise its right to renew the lease. These proceedings were initiated just a year after the said lease agreement was signed. The court must be slow to decline jurisdiction on the grounds of mootness when there is no clear demonstration of the changed circumstances. In the court’s view, the first respondent ought to have gone a step further to demonstrate that notwithstanding the expiry of the lease on 31 June 2024, the applicant had not taken steps to have it renewed in line with the renewal clause. To merely make a bold submission from the bar, at the proverbial eleventh hour, that the matter had become moot because the lease had expired without providing further details in the face of a renewal clause was rather implausible. For this reason, the court was not persuaded to accept that the matter had become moot, and that the applicant no longer had any rights flowing from the said lease agreement. The preliminary point was accordingly dismissed for lack of merit. THE MERITS Ms Mabwe submitted that s 6 of the Rural Land Act [Chapter 20:18], permitted the third respondent to enter into lease agreements in connection with State land. The first respondent’s lease agreement was allegedly with the Mazowe Rural District Council and not the third respondent. According to counsel, that was not even the correct position. The correct position was that the first respondent was in occupation of the premises because of the franchise agreement he signed with the applicant. The franchise agreement was attached to the applicant’s answering affidavit. Counsel submitted that the first respondent was a dishonest litigant who should not get any assistance from the court. The court was urged to grant the order sought with an adverse order of costs on the punitive scale against the first respondent because of the way he conducted himself. The letters from the third respondent’s office and the report that was placed before the court all confirmed that the first respondent had no relationship with the third respondent at all. In response, Mr Ndlovu urged the court to dismiss the application with costs on the punitive scale because the applicant had no rights that it was inviting this court to enforce. The court could not be invited to grant a declaratur to confirm the existence of a lease that had expired. That was tantamount to making a contract for the parties. Analysis of the merits The dispute centres around the lawful lessee of the service station. The applicant’s claim was based on a lease agreement it had with the third respondent. The first respondent claimed to be the lawful lessee based on a lease agreement he signed with the Mazowe Rural District Council. Upon the expiry of that lease agreement, the first respondent claimed that he had a verbal agreement with the third respondent in terms of which he was directed to make rental payments into the Ministry’s bank accounts pending the processing of a new lease agreement. After analysing the parties’ pleadings and documentary evidence accompanying those pleadings, the court was left in no doubt that the premises on which the service station was located was State land. The third respondent, as the authority reposed with the management of State land, was also responsible for that service station. As early as 24 October 2019, the Valuation and Estates Officer in the third respondent’s Ministry wrote to the first respondent giving him notice to vacate the service station. Part of the letter reads as follows: “REF: NOTICE TO VACATE DUNCOMBE SERVICE STATION MAZOWE DISTRICT ……………………………….. Please be advised that the filling station is on stateland and falls under the administration of the Ministry. The Ministry is requesting you to vacate Duncombe service station, with a three months’ notice, with effect from 24 October 2019. The premises have already been leased out to Petromoc Exor. Failure to vacate by the deadline date, the matter will be referred for legal recourse.” The letter was followed up by another letter of 21 November 2019 from the Director, Land Management Department in the third respondent’s Ministry. The letter reiterated the contents of the earlier letter that the service station was on stateland which fell under the administration of the third respondent’s Ministry. It also reiterated the fact that the service station had been leased out to the applicant. The first respondent was requested to vacate the service station with immediate effect. In a letter dated 17 January 2020, the Director, Land Management Department in the third respondent’s Ministry wrote to the applicant’s legal practitioners advising them of the efforts made to evict the first respondent from the premises without success. They were advised to pursue the legal route to evict the first respondent. The first respondent does not deny that the service station was under State land. In paragraph 2 of his opposing affidavit, the first respondent admitted that in 2016, the Ministry of Lands confirmed that it had not transferred ownership of the land to the Mazowe Rural District Council. He attached to his opposing affidavit, a letter of 14 July 2016 from the District Lands Officer (Mazowe), directed to the Chief Lands Officer, Bindura, which read in part as follows:RR “……………………………………….. This note serves to confirm that the Duncombe Service Station is still under stateland. It has not yet been handed over to the local authority, Mazowe Rural District Council. Please facilitate the processing of trading permits forwarded for the above stated state premise.” The lease agreement between the first respondent and Mazowe Rural District Council was signed on 3 September 2013. It was for a period of five years commencing on 1 July 2013 and terminating on 30 June 2018. The aforementioned letter of 14 July 2016 confirmed that as at that date, the service station was still on State land as it had not been handed over to the local authority. It follows that the Mazowe Rural District Council had no authority sign a lease agreement with third parties in connection with land that was not under its jurisdiction and control. The lease agreement does not even state that it was signed on behalf of the third respondent. The lease agreement was a nullity and of no legal force. The first respondent could not claim occupation based on a lease that was a nullity. He was an unlawful occupier. The first respondent claimed that after the expiry of that lease in 2018, he verbally engaged the third respondent’s officials and was given the greenlight to pay rentals directly to the third respondent’s bank accounts. The first respondent’s explanation is inconceivable. This is because this was the same time that the third respondent’s officials were making frantic efforts to evict the first respondent from the premises. The first respondent’s claims of a subsisting verbal lease agreement with the third respondent therefore become farfetched in the absence of any supporting documentary evidence. It is in direct contradiction with the decision taken by the third respondent’s officials to have him evicted from the premises. What is however more probable is that the first respondent took occupation of the service station on the basis of the Franchise License Agreement that he signed with the applicant on 3 July 2021. Although the first respondent denied it outright, the documentary evidence placed before the court proves otherwise. On 3 March 2014, the first respondent responded as follows to the applicant’s letter of final demand for $6 605.24: “RE: Response to letter of final demand $6 605.24 in arrears at Concession Service Station. Exor Petroleum aka PetromocExor had a license agreement entered between them and myself with regards Concession Service Station. I acknowledge it is Exor petroleum that had the right of the movable property of thereof. However, with charges related the Land Acquisition Act aka Land Reform Exercise, the said property now changed to become State and Naturally all properties sited on. ……………………………………………… With that Exor cannot claim rentals from me with effective from 01 July 2013 to date. …………” The above letter all but confirmed that there was a franchise agreement between the applicant and the first respondent. For the first respondent to make an about turn and profess complete ignorance of that agreement smacks of dishonesty. In his opposing affidavit, the first respondent also claimed that he was entitled to remain in occupation because he had made a huge investment on the service station. In response the applicant averred that what the applicant was essentially seeking was an improvement lien. In its heads of argument, the applicant submitted that the defence of a lien could only be raised against a claim for the rei vindicatio by the owner of the property. The applicant was not the owner of the property, and the proceedings herein were not for the rei vindicatio. The first respondent’s defence based on the alleged improvements made to the premises is clearly misplaced. Such a claim must be made against the owner of the property, being the third respondent herein. Nothing was said about this defence in the oral submissions. At any rate, a notice of opposition is not a means of attack. It is a shield. The first respondent ought to have filed a counterclaim or a separate claim of his own in order to assert his own claims against the applicant or the third re. In his heads of argument, the first respondent averred that the applicant lacked the requisite locus standi to bring an action for eviction as it was never in possession of the premises. It was further averred that the first respondent had been in occupation of the premises since 2013, and what the applicant had acquired were merely personal rights which it could not exercise against the first respondent. As stated, the question of the applicant’s locus standi was only raised in the first respondent’s heads of argument. Ordinarily the absence of locus standi is raised as a preliminary at the commencement of oral submissions. This allows the court to determine at the outset whether a litigant is properly before the court. The first respondent’s counsel did not deal with this issue in his oral submissions. Be that as it may, in its heads of argument, the applicant submitted that it derived its interest to seek a declaratur from a valid Land Resettlement Lease as defined in s 2 of the Gazetted Land (Consequential Provisions) Act, as read with s 6 of the Rural Land Act. A Land Resettlement Lease is defined in s 2(1)(b) of the Gazetted Land (Consequential Provisions) Act as follows: ““land resettlement lease” means a lease of any Gazetted land, or a portion of Gazetted land, issued by the State to any person, whether in terms of the Rural Land Act [Chapter 20:18] or the Agricultural Land Settlement Act [Chapter 20:01] or otherwise.” The applicant submitted that the Land Resettlement Lease, which was signed in terms of s 6 of the Rural Land Act was lawful authority which gave it the right to operate the leased premises. The applicant was denied the full exercise of that right by the first respondent’s continued occupation and use of the leased premises without lawful authority. The application before the court is one for a declaratur. The right that the applicant seeks to assert is based on the lease agreement that it signed with the third respondent. The applicant therefore has an existing interest in the service station which makes it an interested person for purposes of s 14 of the High Court Act. In the final analysis, the court was satisfied that the applicant was the lawful holder of a lease agreement with the third respondent. The first respondent on its part failed to establish any legal relationship with the third respondent. The documents that he attached to his opposing affidavit proved the contrary. He entered into a lease agreement with a party that had no lawful rights over the property. The service station is located on State land and not council land. The authority responsible for State land disowned the first respondent and wanted him evicted from the premises. The first respondent has no legal right to remain in occupation of the premises. The applicant’s claim must therefore succeed. COSTS The court was urged to penalise the first respondent with an order of costs on the legal practitioner and client scale because of the way he conducted himself in these proceedings. The second respondent did not oppose the application and so there is no need to saddle it with an adverse order of costs. In the exercise of its discretion refrains from making an award of costs on the punitive scale. Resultantly it is declared and ordered that: The applicant is the lawful lessee and occupier of the Duncombe Fuel Filling Station (excluding the Bulk Fuel Service Station) situated on Duncombe of Belle Vue of Moores Grant also known as Duncombe Farm in Concession located in the Mazowe District of Mashonaland Central Province. The first and second respondents have no right, title and interest in Duncombe Fuel Filling Station and are barred from occupying or operating the Fuel Filling station. First and second respondents and all those claiming occupation through them of Duncombe Fuel Filling Station be and are hereby ordered to vacate from Duncombe Fuel Filling station within three (3) days of the date of this order. The first and second respondents and all those claiming occupation through them of the Duncombe Fuel Filling Station are restrained from vandalising and removing fixed assets from the fuel filling station including electrical installations, water pipes, fuel pumps, fuel tanks and the canopy. The Sheriff of the High Court be and is hereby authorised to evict the first and second respondents from Duncombe Fuel Filling Station should they fail to comply with paragraph 3 of this order. The Sheriff of the High Court be and is hereby authorised to call upon the assistance of the Zimbabwe Republic Police should the first and second respondents resist the eviction. The first respondent shall bear the applicant’s costs of suit. Musithu J :……………………………………………………………………….. Chikwengo Law Chambers, legal practitioners for the applicant Mutamangira & Associates, legal practitioners for the 1st respondent Civil Division of the Attorney General’s Office, legal practitioners for the 3rd respondent 1 [Chapter 20:28] 1 [Chapter 20:28] 2 SC 1/22 at p12 of the judgment 2 SC 1/22 at p12 of the judgment 3 CCZ 20/19 at p 7 3 CCZ 20/19 at p 7 4 See also Chombo v Clerk of Court, Harare Magistrates Court (Rotten Row) & Ors CCZ 12/20 at pages 7 to 8 4 See also Chombo v Clerk of Court, Harare Magistrates Court (Rotten Row) & Ors CCZ 12/20 at pages 7 to 8