Beesons Importers Distributors And Confirmers Pvt Ltd v Regis Nazare

### Preamble
1
HH 331-12
HC 6216/11
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BEESONS IMPORTERS DISTRIBUTORS

AND CONFIRMERS PVT LTD

versus

REGIS NAZARE

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 30 August 2012

Mr J Samkange, for the applicant

Mrs Jera, for the respondent

DUBE J:  This is an application for eviction. The applicant prays for an order in the following terms;

“1. That the respondent, its agents and anyone claiming rights through him are hereby

immediately and forthwith evicted from stand No 17024 of stand 16969, Harare

Township, situate in the district of Salisbury.

2.   That the Deputy Sheriff is hereby authorised to evict the respondent and anyone

claiming rights through him from the said premises.

3.   That the respondent pays costs on the Law Society Tariff.”

This dispute arises out of contracts entered into between the parties and City of Harare.  The applicant purchased stand number 17024, Harare Township, hereinafter referred to as the stand, from the City of Harare on 13 February 1997.  The applicant required the stand for purposes of erecting commercial buildings which would include shops and offices. On 7 October 1997 the City of Harare transferred the stand into the applicant’s name.  Ownership of the stand was registered in the Deeds Registry and the applicant obtained title deeds. The applicant discovered in June 2009 that the respondent had put up structures on the stand without his approval or knowledge.  The applicant avers that it did not authorise the respondent to take possession and occupation of the stand and the respondent has no title over the stand.  The applicant states that it is receiving and paying rates and water bills for the stand to the City authorities every month.  The applicant failed to develop the property within the time specified in the agreement of sale and the City of Harare purportedly cancelled the agreement of sale and repossessed the stand.  The applicant seeks the eviction of the respondent and those claiming occupation through the respondent, from the stand.

The respondent opposes the eviction. He acknowledges that the applicant purchased the stand from the City of Harare. He however claims that the City of Harare subsequently cancelled the sale and repossessed the stand after the applicant had breached Clause 12 of the agreement of sale by failing to develop the stand within 12 months of the sale as stipulated. He further avers that after the dispossession, the stand was leased out to Broncos Panel Beaters and Spray Painters his company or a company in which he holds shares, in 2007. That the stand was repossessed by the City authority. He maintains that the property was subsequently allocated to him and that he is leasing the stand from the City of Harare. He attached to his opposing affidavit, a certificate authorising his company to put up structures at the stand, some bills pertaining to rates and water charges from the authority which are in the name of his company. The respondent asserts that the real owner of the stand is the city as the respondent’s company is simply leasing the stand from it after the cancellation of the agreement of sale to the applicant.

At the beginning of the hearing, the respondent initially raised points in limine which he later abandoned.  The first point raised was that there is another matter filed under HC5008/09 in respect of the same subject matter and that this matter is therefore lis pendens. The applicant consequently withdrew the matter under HC5008/09 on the day of hearing. The point was withdrawn. The second point was that the applicant would be unjustly enriched if he was allowed to evict the respondent from his developed stand.  This point was also abandoned.  The respondent contended that the applicant should have cited the City of Harare which is the seller of the property. The City of Harare has no title to the stand in issue which it was entitled to pass to the respondent. The applicant was therefore not required to cite it. The Registrar of Deeds is the appropriate authority that may be cited in cases involving claims to title. That is not the case here. This is a simple matter of eviction and there is no need to cite the Registrar as the applicant has title to the stand .In any event, non joinder of a party who has an interest in the cause shall not defeat the cause. The court is empowered in terms of rule 87(1) to determine the issue or questions in dispute in so far as they affect the rights and interests of the persons who are parties to the cause.

The respondent further avers in his papers that the applicant has cited the wrong party as the occupant of the premises is a registered company. Regis Nazare is the owner of Broncos Panel Beaters and Spray Painters. He states that he is a shareholder and Managing Director of the company. The extent of his shareholding was not established. He seems to be a one man company. He has been cited in his personal capacity. It would appear that the applicant cited the wrong party.

The application is fatally defective.  I will not proceed and deal with the merits of this matter.

I am unable to grant the relief sought.

The application is dismissed.

Costs follow the event.

Venturas and Samkange, applicant’s legal practitioners

C Mpame and Associates, respondent’s legal practitioners