Edward Kachepa v George Jameson and Gukuraivhu Housing Cooperative

### Preamble
1
HH 392-25
HCH 7691/22
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EDWARD KACHEPA

versus

GEORGE JAMESON (1)

and

GUKURAIVHU HOUSING COOPERATIVE (2)

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE: 20, 23 May & 2 July 2025

Application for Absolution from the Instance

F Siyawareva, for the plaintiff

B Hwachi, for the first defendant

Second defendant in default

DEMBURE J:

1.	This is an application for absolution from the instance. The application was made in terms of rule 56(6) of the High Court Rules, 2021, at the close of the plaintiff’s case. The plaintiff testified in his own case and also called as his witnesses, Chriswell Gomo (“Mr Gomo”) and Oliver Chimbangu (“Mr Chimbangu”).

BACKGROUND

2.	The plaintiff is Edward Kachepa, a male adult. The first defendant is George Jameson, also a male adult. The second defendant is Gukuraivhu Housing Cooperative, cited as an entity with rights and interests in land in Newcen Park, Harare.

3.	On 11 November 2022, the plaintiff instituted an action in this court against the defendants. The claim is for a declaratory order and consequential relief formulated as follows:

“1.	An order declaring the Plaintiff to be the rightful owner of stand 1084 Newcen Park, Harare at the exclusion of anyone else.

2.	An order for eviction of the 1st Defendant and all those claiming right of occupation through him in property in (1) above.

3. 	Costs of suit on a legal practitioner and client scale.”

4.	The plaintiff’s claim is founded on the ground that he is the rightful owner of an immovable property or piece of land called stand 1084 Newcen Park, Harare, measuring 2,000 square metres (“the property or stand”). He further pleaded that he joined the second defendant around 2006 and made contributions towards the acquisition and development fees for the property, which is a residential stand. Sometime in 2012, he was allocated and, as a result, acquired the property. It was averred that he started developing the property sometime in 2021 and built a five-roomed structure up to window level.

5.	It was further asserted that the first defendant, without his authority, unlawfully occupied the stand and constructed a two-roomed cottage and erected a perimeter fence, thereby barring him from accessing his property. It was also pleaded that in the records kept by the second defendant, the plaintiff is the rightful owner of the property as the first defendant was allocated stand 2993 Newcen Township, Harare. It was also stated that the second defendant convened a meeting on 11 June 2022 and confirmed that the property belongs to him. He further contended that the first defendant’s occupation of his property is illegal. The plaintiff sought a declaratur that he is the rightful owner of the property and an order for the eviction of the first defendant and all those claiming occupation through him from the said property.

6.	The claim was defended by the first defendant. The second defendant did not enter an appearance to defend, nor did it participate in these proceedings despite its joinder. The first defendant, in his plea, denied the plaintiff’s claim that he is the owner of the property. He contended that he joined the second defendant’s housing scheme in 2004 and started making contributions towards the acquisition of the property. He was allocated the property in 2008. He moved onto the property when it was vacant and erected a cottage, and has been residing there with his family since 2018. He further denied that the plaintiff erected any structure on the property, but only appeared in the picture in 2021. It was also his case that the plaintiff threatened to erect a structure on the property, alleging that the same was allocated to him.

7.	It was also pleaded that the allocating authority, the second defendant, confirmed that the first defendant is the rightful owner of the property. He further averred that there was no meeting held nor was there any communication from the second defendant that he had been dispossessed of the stand and that it had been allocated to the plaintiff. It was also pleaded that the plaintiff had failed to satisfy the requirements of the declaratory order that he is the rightful owner of the property because it was allocated to the first defendant. The first defendant contended that he cannot be evicted from the property that he lawfully obtained from the relevant authority, the second defendant. He prayed for the dismissal of the claim with costs.

8.	After the close of pleadings, the parties filed their pre-trial conference documents. On 24 February 2025, before Manyangadze J, the matter was referred to trial on the issues set out in the parties’ joint pre-trial minute. The record was placed before me for trial. On 22 May 2025, the trial commenced. While the second defendant was in default and failed to participate in this matter, it was the central figure in the dispute. However, its Chairperson and Secretary, Mr Gomo and Mr Chimbangu, respectively, decided to stand as the plaintiff’s witnesses. I must mention, however, that the validity of their continued stay in office within the second defendant was challenged under cross-examination on the ground that their tenure of office expired after three years from the last elections in 2013. It was argued, therefore, that they could not make any valid decisions for the second defendant.

9.	On 23 May 2025, the first defendant notified the court of his intended application for absolution from the instance at the close of the plaintiff’s case. The court issued a case management order directing the parties to file their submissions in writing. The parties agreed that the court would proceed to determine the application on the basis of the written submissions. On 30 May 2025, the first defendant filed this application through his legal practitioners, while the plaintiff likewise filed his response on 6 June 2025.

SUBMISSIONS MADE BY THE PARTIES

10.	It was submitted for the first defendant that the plaintiff failed to establish a prima facie case against the first defendant. That the plaintiff failed to produce documentation to prove that he was a member of the cooperative. This was fatal to his claim. There is no evidence that he was a member of the cooperative. There was need to place primary evidence instead of making bald and unsubstantiated allegations. See Chamisa v Mnangagwa & Ors CCZ 42/18. The stands in question were only allocated to members.

11.	Mr Hwachi further argued that the plaintiff’s evidence was fraught with a lot of inconsistencies. The plaintiff was shaken under cross-examination. He told the court the requirements for joining the cooperative were the payment of a joining fee, completing the allocation form and paying subscriptions to the cooperative. But when challenged to produce documents that he was a member, he failed. The plaintiff conceded that he did not have the receipt as proof of payment that he joined the cooperative, and that he does not have the allocation form from the cooperative. He further conceded that he does not have receipts which show that he has been paying subscriptions to the cooperative. The witness could not justify the distortion of the order of stands 1084 and 2993. The witness further conceded that he does not have an approved house plan of the five-roomed house he told the court he built on the stand and the stage forms thereof.

12.	Counsel also submitted that Mr Gomo conceded under cross-examination that, in terms of the constitution, their tenure of office is three years, and their tenure of office expired in 2016 as elections were last held in 2013. That rendered any purported resolution made on 11 June null and void. The witness also failed to produce documentary evidence that shows that the plaintiff was a member of the cooperative and that he paid any subscriptions. As for Mr Chimbangu, it was submitted that under cross-examination, he also conceded that his term of office expired. The witness failed to produce any documentation that links the plaintiff and the cooperative, despite being the custodian of the documents. He also failed to prove that the plaintiff is a member of the cooperative.

13.	It was further argued that the first defendant cannot be put to his defence to fill the glaring gaps left in the plaintiff’s case. The first defendant has no obligation to provide the missing link in the plaintiff’s case by being put to his defence. The first defendant prayed for absolution from the instance to be granted.

14.	Per contra, it was submitted for the plaintiff that he has satisfied all the essential elements required to sustain his claim. It was submitted that it is common cause that the first defendant claims allocation of the property, but it is common cause that the 2,000 square metres subdivisions only came into existence in 2015. It was further argued that the allocating authority testified in favour of the plaintiff.

15.	Mr Siyawareva submitted that the plaintiff constructed a house on the stand, which is at window level. The first respondent ought to be put to his defence and an inspection in loco conducted to ascertain whether two structures exist on the disputed property and whether the first defendant has indeed been in occupation since 2008. The plaintiff’s witnesses confirmed his version and disowned the first defendant’s documentary evidence. There is no sound basis for granting absolution at this stage. It is incorrect and legally unsound for the defendant to argue that the plaintiff’s entire case stands or falls on the production of documentary proof of membership to the second defendant. The plaintiff’s membership was corroborated by both the Chairperson and the Secretary of the second defendant. They both confirmed that the plaintiff was allocated the stand, and he made contributions to the cooperative. The issue of documentary proof is not determinative at this stage. What is required is not proof beyond a reasonable doubt but evidence upon which a reasonable court might find for the plaintiff. See Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A).

16.	It also submitted that the first defendant placed undue weight on the plaintiff’s failure to produce receipts and allocation forms. It overlooked the facts from the plaintiff that he was allocated the stand in 2012 and began developing it in 2021. It was not unusual for documents to be misplaced over time. His testimony was not inherently implausible. He explained the basis for his allocation and the development of a five-roomed house. The argument that the resolutions passed were void because elections were last held in 2013 is legally hollow. There is no evidence that the cooperative replaced them or that their authority was challenged internally. De facto authority would apply. There are factual disputes that require further interrogation, such as whether there are two structures on the stand and whether the first defendant’s alleged occupation since 2008 is credible, given the timing of the layout's existence.

17.	Counsel also argued that the defendant must be put to his defence for the full ventilation of the issues. The credibility of the plaintiff and his witnesses, the legality of the first defendant’s occupation and conflicting versions require a full trial. It was finally submitted that the application is premature, without merit and must be dismissed with costs being in the cause.

THE LAW

18.	The law is settled that the test when an application for absolution from the instance is made at the close of the plaintiff’s case is whether there is evidence upon which a court acting reasonably could or might find for the plaintiff. In other words, the enquiry is whether a plaintiff has made out a prima facie case by adducing evidence to prove all the essential elements of the claim entitling the court to find for him at that stage. The law applicable in an application of this nature was remarkably restated in NMB Bank Limited v Formscaff (Pvt) Ltd & Ors SC 31/22 at pp 14-15, where GUVAVA JA said:

“The law to be applied in an application for absolution from the instance is well settled. In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) at pg 343 the Court held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.” (see also Oesthuizen v Standard General Versekeringsmaa & Kappy BPK 1981 (A) 1035 (H)).

In Gordon Lloyd Page & Associates and Rireira & Another 2001 (1) SA 88 (SCA) at 92 E-93 A it was held that:

“The test for absolution to be applied by a trial court at the end of plaintiff’s case was formulated in Claude neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409 G-H in these terms‘… when absolution from the instance at the close of plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established but whether there is evidence upon which a court applying its mind reasonably to such evidence could or might (not should or ought) find for the plaintiff…’This implies that the plaintiff has to make out a prima facie case in the sense that there is evidence relating to all elements of the claim…”

32. Absolution from the instance is thus granted by the court when an application has been made by a defendant at the close of a plaintiff’s case who fails to prove a prima facie case.

A prima facie case was noted in Fillieks and Others v S [2014] ZAWHC 34 as follows:

“Prima facie evidence in its more usual sense, is used to mean prima facie proof of an issue the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive and the party giving it discharges his onus…”

See also ZIMSCO (Pvt) Ltd v Tsvangirai & Ors SC 12/20.

ANALYSIS AND DETERMINATION

19.	The question that this court has to determine is whether the plaintiff has proved a prima facie case against the first defendant. In other words, is there evidence establishing the essential elements of his claim entitling the court to find for him at this stage? The plaintiff’s pleaded cause of action is founded on ownership of the property. In para 1 of his declaration, he pleaded that he is the rightful owner of the property. He then set out how he acquired ownership of the property from the second defendant. In para 7, he further pleaded that:

“In the records of the 2nd respondent’s office, Plaintiff is the rightful owner of stand 1084 Newcen Township which forms subject of dispute…”

He also pleaded in para 6 that the first defendant unlawfully occupied his property without his authority. In para 11, the relief sought is then set out as follows:

“Consequently, Plaintiff seeks an order declaring him to be the rightful owner of stand 1084 Newcen Township, together with an order evicting the 1st Defendant and all those enjoying right of occupation through him from the said property with costs on a higher scale.”

This is the exact relief he seeks in the summons – a declaratory order that he is the rightful owner of the property or stand and the consequential relief for eviction and costs of suit.

20.	It is a settled principle of the law that a party is bound by what he has pleaded. If a party pays little regard to what he has pleaded, he will find that he will not be able to prove his own case. The position was enunciated in Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd SC 24/18. At pp 10-13, in particular from para 25-26, GARWE JA (as he then was) considered the importance of pleadings extensively and further said:

“In Jowell v Bramwell-Jones 1998 (1) SA 836 at 898 the court cited Jacob and Goldrein, Pleadings: Principles and Practice at p 8-9 where it was stated:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings … For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves.”

And after examining several authorities on the important purpose of pleadings, the court concluded in para 26:

“I associate myself entirely with the above remarks made by eminent jurists both in this jurisdiction and internationally. The position is therefore settled that pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination. Therefore a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.”

21.	There was an attempt to reconstruct the plaintiff’s case in the plaintiff’s submissions. In para 2, the submission is that;

“The Plaintiff seeks a declaratory order confirming that he is the rightful allottee of Stand Number 1084, Newcern Park, measuring approximately 2000 m², under the jurisdiction of the 2nd Defendant…”

His case is simply that he is the owner of the property, and that is what had been pleaded. Without having amended his summons and declaration, his case stood or fell on the cause of action that is pleaded in those pleadings, which found the action. The question that arises from his pleadings is whether he has established a prima facie case of ownership of the property, not merely an allotee as alleged. In other words, is there prima facie evidence of ownership or that he owns the property in question?

22.	The plaintiff had to prove ownership or real rights in the property, as he had formulated his case. There is no dispute that the property in question is an immovable property. It is trite that ownership rights or real rights in an immovable property are conferred by transfer and registration of title with the office of the Registrar of Deeds.  This position was confirmed in Takafuma v Takafuma 1994 (2) ZLR 103 (5) 105 H, 106 A, where the court stated:

“The registration of rights in immovable property in terms of the Deeds Registries Act [Chapter 139] is not a mere matter of form. Nor is it simply a device to confound creditors or 	the tax 	authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered. See the definition of ‘real right’ in s 20 of the Act. The real right of ownership, or jus inre propria, is the sum total of all possible rights in a thing – see Willies Principles of South African Law 8 ed p 255.”

Further, in Moyo v Fraser & Ors SC 5/06, the Supreme Court quoted with approval the dicta in Harris v Trustee of Buissinne (1850) 2 Menzie and where giving judgment for the trustee of the insolvent estate, the court said at pp 107 – 108 said:

“By the law of Holland, the dominium or jus in re of immovable property can only be conveyed by transfer made coram lege loci and this species of transfer is as essential to divest the seller of and invest the buyer with the dominium or jus in re of immovable property as actual tradition is to convey the dominium of movables and that the delivery of the actual possession of immovable property has no force or legal effect whatever in transferring its dominium. Consequently, the agreement of sale between Harris and Buissinne and the delivery of the possession of the house by Buissinne to Harris, gave Harris nothing more than a jus ad rem and a personal claim against Buissinne to convey the jus in re to him by transfer coram lege loci. The position of a purchaser of land who paid the purchase price but had not received transfer of the property at the date of sequestration of the seller’s estate is that he had no right at common law to the transfer of the land. The purchaser is not entitled to prevent the trustee in an insolvent estate from transferring the property to a third party if that is in the best interests of creditors. Ex parte Singleton 1963 R & N 1.”

23.	It is also settled law that a deed of transfer is a prima facie proof of ownership of an immovable property. See CBZ Bank Ltd v Moyo & Anor SC 17/18 at p 7, UCHENA JA said:

“I must state that a deed of transfer or registration of cession is not conclusive proof of ownership or the rights of a cessionary. See the cases of Young v Van Rensburg 1991 (2) ZLR 149 (S) at 156 D-G and Kassim v Kassim 1989 (3) ZLR 234 (H) at 237 B-D.  It simply raises a presumption in favour of the holder of the title deed or the rights of a cessionary until the claimant proves on a balance of probabilities that he innocently bought the property or cessionary rights from the owner of the property or cedent. See the case of Cunning v Cunning 1984 (4) SA 585 (T). In any event, the registration of transfer in the Deeds Registry or registration of cession at the offices of a local authority or Deeds Registry does not always reflect the true state of affairs. A title deed or registered cession is therefore prima facie proof of ownership or cessionary rights which can be successfully challenged.”

24.	In this case, it was common cause that the plaintiff did not have any deed of transfer for the property in question. He did not produce it. His case turned out to be that he claims to have been allocated the property by the second defendant, a housing cooperative. He placed nothing before the court, establishing that, in the first place, the cooperative itself had any real rights or ownership rights to pass to him. As confirmed in TIBIC (Pvt) Ltd & Anor v Mangenje & Ors SC 13/18, it is trite that a party who has no real rights in a property cannot competently transfer it. The court relied on the case of Agro Chem Dealers (Pvt) Ltd v Gomo & Ors 2009 ZLR 255, where GOWORA J (as she then was) asserted that:

“No person who is not the owner can transfer ownership in anything whether or not such transferor was acting in good faith or mala fide”.

See also Moyo v Nyamukonda & Anor HB 41/18 where MATHONSI J (as he then was) had this to say:

“Indeed our law protects the right of an owner to vindicate his or her property as a matter of policy against even an innocent purchaser, whose only defence against a vindicatory action is estoppel.  See Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S) at 438 C; Chetty v Naidoo 1974 (3) SA 13 (A) at 20A-C.  That position of our law stems from the well-established principle expressed in the maxims: nemo dat quod non habet which is allied to: ne mo plus juris ad alium transferre potest quam ipse habet, that is, no one can give what he or she does not have and no one can transfer any right greater than he himself possesses.  It means that where a person who is not the owner and possesses no mandate to do so purports to sell or transfer property, such sale or transfer is a nullity. See H Silberberg and J Schoeman, Silberberg and Schoeman’s The Law of Property, 2nd edition, Butterworths, Durban, 1983 at p72.”

25.	There was no proof of ownership placed or presented before me. Whether the cooperative itself had any lawful real rights to pass to anyone remained a mystery. The plaintiff placed no facts establishing ownership of an immovable property. The court takes judicial notice of the proliferation of illegal settlements in Harare. The court had to be satisfied that the plaintiff lawfully acquired real rights or ownership rights in the property as he had pleaded. He failed to establish that ownership in the stand. The plaintiff’s counsel in their submissions missed the critical elements to be proved in this case. The first defendant denied that the plaintiff is the rightful owner of the property. His alleged ownership was put in issue. He, therefore, had the onus to prove his case, as the settled principle of the law is that he who alleges must prove. Guvava JA in ZIMASCO (Pvt) Ltd v Tsvangirai & Ors SC 12/20 at p 12, remarked that:

“It is trite that “he who alleges must prove”. The maxim was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA). In the absence of such evidence, the court as the adjudicating authority cannot make its determination. I share the sentiments expressed in Delta Beverages (Pvt) Ltd v Murandu SC 38/15, where it was stated that:

“I take the time to point out that parties are expected to argue their cases so as to persuade the court to see the merit, if any, in the arguments advanced for them. They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.””

26.	The plaintiff alleged that he acquired the property through joining a cooperative and making subscriptions. When challenged under cross-examination to establish his membership of the said cooperative, he could not produce the essential documents he confirmed establish that, such as the payment of the joining fee and subscriptions and the allocation form. He did not have any receipts to show for the payments he made towards the scheme to obtain the stand legitimately. He claimed to have the duplicate receipts with him, but he did not produce anything. To establish an entitlement to ownership, one must prove that he has paid what he was required to pay to obtain any rights in the land. The allocation letter itself from the cooperative was not produced. The letters at pp 67 to 68 on their own are insufficient to legally establish ownership even on a prima facie basis.  Special circumstances have also not been proved, showing that the plaintiff is entitled to such ownership and that there are no legal impediments to such transfer of title.

27.	The fact that the plaintiff holds real rights in the property has not been proved. Bald assertions that one is the owner are not enough. Thus, in the CBZ Bank Ltd case, supra, the court further held that:

“Ownership of immovable property is proved by producing a deed of transfer. On the other hand, in the Muwandi case, rights acquired thorugh cession of rights in immovable property are proved through registration of a cession at a local authoritiy. In that case the cedent had done all he was expected to do to transfer to the cessionary his rights in the property which belonged to a third party. In the Muwandi judgment this court dealt with cession of rights at the offices of a local authority, which does not confer real rights. The first respondent holds personal rights against the sellers but will on transfer get real rights over the property in dispute…”

28.	The second witness, Mr Gomo, did not help matters; he confirmed that he testified as a plaintiff’s witness and not as a representative of the second defendant. The cooperative itself did not place any document before the court establishing the plaintiff’s real rights in the land. When questioned on the records establishing the plaintiff’s membership and contributions to the cooperative, he said that all documents were with the Secretary. The third witness, Mr Chimbangu, the Secretary, despite alleging that he was the custodian of documents, did not produce such documents establishing ownership in the plaintiff’s name. He did not produce any allocation letter and proof of the cooperative’s own real rights in the property, which would enable it to pass ownership rights to the plaintiff. In the absence of any such critical documents, it cannot be said that a prima facie case was established.

29.	There was a bald averment that the stands measuring 2,000 square metres did not exist before 2012. Again, no evidence of such an allegation was provided. It is trite that subdivisions of land are created in terms of the Regional, Town and Country Planning Act [Chapter 29:12]. The creation of subdivisions and the approval of layout plans are official processes involving public offices such as the City of Harare and the Ministry of Local Government. If at all, the stand did not exist, proof of such an official position would have been easily obtainable and produced in court. The proof of the authority of the cooperative itself to allocate the land was not there, or its real rights to the land in question. The proof that the plaintiff acquired ownership rights was not provided.

30.	Mr Chimbangu, the alleged custodian of all records of the cooperative, did not produce any such records which establish plaintiff’s ownership or real rights in respect of the land in question. It is trite that bald and unsubstantiated assertions do not establish even a prima facie case. They cannot sustain a case for the plaintiff to establish the essential elements of his claim for ownership of the property in question. Even the alleged minutes at p 43 of the record do not establish any ownership rights at all. In any case, while the witnesses claimed the handwritten minutes at p 43 are the same as the typed minutes at p 40, a closer look at these two tells a different story. It is apparent that the two documents do not show the same contents verbatim.

31.	I am aware of the position of the law that the court must exercise caution at this stage. Thus, Herbstein & Van Winsen, The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa, 5th Edition, Vol 1 at p 923 implore courts to tread carefully in applications of this nature, stating as follows:

“In view of the principles set out above, it is clear that a trial court should be extremely chary of granting absolution at the close of the plaintiff’s case. In deciding whether or not absolution should be granted, the court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject the plaintiff’s evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. When the plaintiff relies on an inference the court will refuse the application for absolution unless it is satisfied that no reasonable court can draw the inference for which the plaintiff contends. A court may grant absolution from the instance at the close of a plaintiff’s case if the plaintiff has failed to establish an essential element of the claim even though the defendant could have succeeded on exception or by way of special plea had the issue been raised by either procedure…”

See also Katerere v Standard Chartered Bank Zimbabwe Ltd HB 51-08.

32.	In casu, there was clearly no evidence establishing prima facie ownership of the property from the plaintiff. There was a document titled “GUKURAIVHU HOUSING COOPERATIVE LIST OF MEMBERS” at p 45 and fully shown from pp 71 -73, which the plaintiff failed to show is an authentic document that the court ought to rely on.  When one looks at the document as a whole, one notices that the stand numbers stated thereon follow a proper order or sequence. For example, from numbers 1-2, it reads stand 1082 followed by stand 1083. Then, instead of there being 1084 on the first defendant’s name, there is 2993, which is clearly inscribed in a faint and different font size from the other numbers. Then next is 1085, followed by 1086 as the order goes on. If one goes to p 73, it starts at number 55, where there is stand 2959, and the numbers also follow their proper sequence in ascending order up to number 47, where there is stand 2992. Then enter number 48 where the plaintiff’s name and stand number 1084 are inserted, again recorded in a font size clearly different from the other names around it. The stand number 1084, the stand in dispute, is inserted against the plaintiff’s name. After it, the stand numbers again follow a proper sequence from 2994 up to 2999. This cannot be a coincidence.

33.	The plaintiff failed to explain these glaring anomalies in the said document. He simply said he is not the one who prepared the document. He accepted that the stand numbers follow a sequence. When asked, “Can you see that the stand is only distorted on number 3?” He answered, “Yes, I can see that”. He claimed he collected the document from the cooperative after being sent by his lawyers. He professed ignorance on how the document was compiled. Mr Chimbangu was also at pains to explain this clear attempt to distort evidence. He ended up giving an incoherent explanation. When questioned what criterion was used to allocate the stands after being asked from stand 1082, 1083 and 2993, allegedly for the first defendant between 1083 and 1085, he claimed that they considered payments of subscriptions and preference was given to those who were paid up. Yet in one instance, he had also said they simply wrote the name of the member as against the stand number and that the numbers were random.

34.	In my view, the document did not assist the applicant’s case at all. The above glaring anomalies create special circumstances that led this court not to rely upon the said evidence. As confirmed in the Katerere case, supra, the court must only assume that the plaintiff’s evidence is true unless it is inherently unacceptable given the special circumstances of the case. In any case, that document does establish an essential element of his claim that he is the rightful owner of the property. It does not establish a prima facie case that he owns the property. From the totality of the evidence placed before me, I am not satisfied that a prima facie case of ownership or real rights in the property has been established by the plaintiff. In other words, there is no evidence upon which the court, acting carefully or reasonably, might find for the plaintiff. He failed to prove the case he pleaded.

35.	Having failed to establish ownership of the property, it follows that the plaintiff’s claim for eviction anchored on rei vindicatio cannot stand. He had pleaded that the first defendant was in possession of his property and was developing it without his authority or consent as the owner. See para 6 of the declaration. It is trite that the remedy of rei vindicatio is available to an owner who is entitled to claim his property from anyone in its possession without his consent. The Supreme Court restated the legal position in Chenga v Chikadaya & Ors SC 7/13 at p.7 when it stated that:

“The rei vindicatio is a common law remedy that is available to the owner of property for its recovery from the possession of any other person. In such an action there are two essential elements of the remedy that require to be proved. These are firstly, proof of ownership and secondly, possession of property by another person. Once the two requirements are met, the onus shifts to the respondent to justify his occupation.

36.	There is no doubt that the actio rei vindicatio was not available to the plaintiff as he is not the owner of the property. This was clearly expounded by MAKARAU JP, (as she then was) in Masudi v Jera HH  67/07 at p 2 where it was held that:

“In my view, the trial court fell into a grave error by finding that the respondent is the owner of the property and is thus entitled to vindicate it from the appellant. It is this error on the part of the trial court that in my view, led to a muddling of the legal principles applicable to resolve an otherwise simple dispute between the parties. Based on the authorities, it appears to me settled at law that the rei vindicatio, being an action in rem, is only available to owners of the property in issue, which at the time of the commencement of the action, is in the possession of the defendant and the defendant fails to prove a right to retain the property as against the owner.”

37.	It is that right of ownership which is enforceable against the whole world. The plaintiff’s position is different from that of one who has a lease-to-purchase agreement with the land owner. He did not plead such a case nor led any evidence to that effect. His case was that he is the owner of the property, and that is what he had to prove. As for leases to buy agreements, the position was outlined in the Masudi case, supra, that:

“The rights that a party acquires in property owned by a local authority and leased to a tenant on a rent to buy basis were adequately detailed in Pedzisa v Chikonyora 1992 (2) ZLR 445 (S).  In that case, the Supreme Court opined that what the purchaser-lessee acquires from a suspensive agreement of sale in respect of ‘township’ houses is a personal right against the local authority and not a real right that he can enforce against the world at large. The court went on further to opine that after being given occupation, the lessee can evict from the premises anyone who wrongfully assumes occupation of the property, for instance, a trespasser.

While the Supreme Court recognized the rights that a lessee- purchaser acquires in the property against persons in wrongful occupation of the property, it did not equate these rights to ownership of the land.”

In this case, the plaintiff having failed to prove ownership of the property, it follows that he could not satisfy the essential elements of his claim for eviction. The remedy of rei vindicatio sought could not be proved. The plaintiff failed to establish a prima facie case of ownership and his entitlement to the rei vindicatio.

Consequently, there is nothing for the defendant to rebut or be put to his defence. It would simply be improper for the defendant to be put to his defence.

DISPOSITION

38.	In the premises, the court is not satisfied that the plaintiff established a prima facie case against the first defendant. The application for absolution from the instance is merited. The plaintiff failed to appreciate the case he had pleaded in the summons and declaration. Having paid little regard to his own pleadings, he found himself unable to prove his stated cause of action against the first defendant. He could not seek to reconstruct his case at the trial and in the submissions in opposition to the application.

39.	I am also of the view that possibly the formulation of issue number one for trial in the parties’ joint pre-trial conference could have misled the plaintiff to divert from the essential elements of his main claim which was founded on the averments that he was the owner of the property and the court ought to declare him as such rightful owner at the exclusion of anyone else. The consequential relief for an eviction order was anchored on the rei vindicatio.

40.	As regards costs, there is no reason to depart from the general rule that costs shall follow the event.

41.	In the result, it is ordered as follows:

The first defendant’s application for absolution from the instance be and is hereby granted with costs.

DEMBURE J:   ………………………………………………

James Majatame Attorneys at Law, plaintiff’s legal practitioners

Nyikadzino Simango & Associates, 1st defendant’s legal practitioners