Judgment record
Phillip Tsamwa v Thomas Kobo Munemo and Ndoda Hondo
HH 67-12HH 67-122012
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HH 67-12
HC 420/09
PHILLIP TSAMWA
versus
THOMAS KOBO MUNEMO
and
NDODA HONDO
HIGH COURT OF ZIMBABWE
CHATUKUTA J
HARARE, 21, 22 & 23 October, 17 November 2009 & 1 February 2012
Civil Trial,
F. M. Katsande, for the plaintiff
J. Zuze, for the defendants
CHATUKUTA J: The background to this action is that on 14 May 2004, the 1st
defendant, purporting to be the 2 nd defendant, entered into an agreement with the plaintiff
for the sale of a subdivision of lot 1 of 310 Block B, Hatfield (the property). The
plaintiff paid a sum of ZW$50 million towards the purchase price of ZW$100 million.
He moved onto the property upon execution of the agreement and effected various
improvements on the property. He was given the title deeds to the property as security
for the 1st defendant’s performance of his obligations under the agreement.
The 1st defendant refused to transfer the property into the plaintiff’s name. The
plaintiff sued the 1st defendant for transfer of the property in Phillip Tsamwa v Ndoda
Hondo & Ors HH 53-2008. It became apparent, during the determination of that matter,
that the property was in fact registered in the name of the 2 nd defendant. However, the
claim was dismissed on the ground that the agreement of sale was illegal in that the
property had not been subdivided when the agreement was concluded as is required in
terms of the Regional, Town and Country Planning Act [Cap 29:12].
Armed with this order, the 1st defendant obtained on 14 November 2008 an order for
the ejectment of the plaintiff from the property. The plaintiff was finally evicted on 12
January 2009. On 30 January 2009, he instituted these proceedings claiming damages
for:
“(a) Unjust enrichment for forfeiture of the price plaintiff bargained for
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(b) Emotional distress, hurt, humiliation loss of legitimate expectations
(c) Efforts and labour acquiring materials loss of earnings attending to
project travelling expenses
(d) cost of replacing forfeited materials and goods damaged in ejectment
(e) interest on the total amount at the prescribed rate per annum from date of
summons to date of payment.”
It is necessary at this stage to highlight the lack of attention exhibited in the
preparation of the plaintiff’s pleadings. The legal nature of the plaintiff’s pleas was not
clear from the above. Legal practitioners are reminded of the need to craft pleadings with
care and precision so that they are clear and concise, clearly bringing out the legal nature
of the claim so that prejudice is not accessioned to their clients and the other party. It is
not the responsibility of the court to ascertain the nature of the plaintiff’s claim. It is my
view that the pleadings in this case are such that the defendants would have been entitled
to except.
What I have deciphered from the evidence led during the trial is that the plaintiff’s
claim is for damages for:
(a) unjust enrichment in the sum of US$155 000,(this amount consists of US$135
000 being damages arising from the fact that the plaintiff paid the 1 st defendant a
deposit of ZW$50 million and the amount was not refunded and US$20 000
being damages for improvements effected to the property)
(b) injuria in the sum of US$100 000;
(c) property damaged or destroyed during his eviction in the sum of US$20 000;
(d) interest on the above amounts at the prescribed rate with effect from the date of
summons to the date of payment; and
(e) costs of suit.
The defendants defended the claim and filed a counter-claim claiming the return
of the original title deeds (Number 3144/81) in the plaintiff’s possession. They further
claimed holding over damages in the sum of US7 400 and interest thereon.
The following issues were referred to trial:-
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“(1) whether the improvements effected by the plaintiff on the property before the
judgment in case No HC 6551/05 (Phillip Tsamwa v Ndoda Hondo & Ors HH 53-
2008) unjustly enriched 2nd defendant;
(2) whether the defendants should compensate plaintiff for the improvements and the
amount of such compensation;
(3) whether plaintiff suffered damages for injuria as a result of being ejected by the
defendants from the property and the quantum of the damages; and
(4) Whether plaintiff should surrender the Deed of Transfer for the property to the
defendants.”
The parties threw in everything they had when they testified. Some of the evidence
was not relevant to the determination of the issues before me. I have therefore relied in
my determination only on that evidence that I considered necessary to arrive at my
determination.
The plaintiff testified that when he entered into the sale agreement for the purchase of
the property, the 1st defendant held out that the property belonged to him although it was
registered in the 2nd defendant’s name. As a result he requested the original deeds as
security for the 1st defendant’s discharge of his obligations under the agreement of sale.
The 1st defendant advised him that there was a subdivision permit and title deeds. The
purchase price for the property was ZW$100 million and he paid a total of ZW$50
million. He took occupation of the property upon payment of the deposit. This is the
amount that he converted to US$135 000.
The property was substandard and upon taking occupation he renovated the property.
He installed security/burglar bars. After some time the 1 st defendant disconnected water
and electricity supply. The plaintiff approached the relevant authorities, that is the City
of Harare and ZESA and had both the water and electricity reconnected. He bought the
meters for both water and electricity. The water meter was valued at ZW$6 500 000. He
effected the necessary electrical works and water piping. The toilet system was not
functioning properly. He attended to the plumbing. He plastered the inside walls of the
house and worked on the floor which was full of holes. He estimated the cost of the
improvements to be US$20 000. This amount included the amount paid towards the
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subdivision of the property in the sum of ZW10 000 000, cost of the material that he
purchased for the renovations, the labour expended and the transport costs incurred
during the renovations. Also included in the amount was the loss of earnings that he
suffered during the period that he was attending to the renovations. The defendant did
not refund him these expenses and hence his claim.
The plaintiff testified that on eviction by the defendants in November 2008 and on
16 January 2009, his reputation was adversely affected following the eviction he
considered unlawful as he alleged he had appealed against the eviction order. His
business colleagues considered him an irresponsible person who was being evicted for
failing to honour his obligations. His standing in his church was also adversely affected
by the eviction. As a result he suffered mental trauma requiring spiritual counselling
from other church members. The above is the basis of his claim for the sum of US$100
000 for injuria.
He further testified that during the eviction he lost various items of property and
some was damaged during eviction. The eviction was at the instance of the defendants
hence the claim against the defendants in the sum of US$20 000 for this loss.
The 1st defendant testified that the plaintiff was not entitled to his refund because
the agreement of sale was illegal. He further contended that the plaintiff was precluded
from claiming any damages for the improvements as he had forfeited his right to
compensation in a consent order granted in the Magistrates Court on 12 March 2006. He
had been precluded from effecting any improvements to the property in that order and in
an earlier consent order dated 2 May 2006 again by the Magistrates Court in case No.
5374/06. Both orders had been obtained after plaintiff had started altering the property.
The defendants further testified that the reason why the 1 st defendant sought the interdicts
was because the purported improvements were not with his consent. They were
substandard and were not necessary and useful. The defendants’ evidence was that any
improvements after the court orders were in defiance of the orders.
The 1st defendant also testified that on 14 November 2008, he obtained an order
for the eviction of the plaintiff. The plaintiff was duly evicted but he returned onto the
property. On 12 January 2009 the defendant obtained an order for contempt of court in
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the Magistrates Court against the plaintiff. The messenger of court again evicted the
plaintiff on the very day that the order for contempt of court was granted. It was the
defendant’s evidence that the eviction was in compliance with a lawful order. Therefore
there was no basis for the plaintiff’s claim for injuria. Further, he testified that he was
present when the eviction on 12 January 2009 was effected but he did not witness
destruction of the plaintiff’s property during the eviction process.
It appears from the issues referred to trial that the plaintiff may have abandoned
his claim for unjust enrichment in relation to the deposit that he paid to the 1 st defendant.
However, it became clear during oral evidence that this was not to be so. The defendants
also persisted with their claim for holding over damages in the sum of US$7 400, which
claim was not referred to in the Joint Pretrial Conference Minute. I am of the view that it
is necessary to determine the issues arising from the claim and counter claim as they were
fully ventilated during the trial.
Plaintiff’s Entitlement to US$135 000
The plaintiff testified that the defendants had been unjustly enriched. He stated that
he was entitled to damages in foreign currency on two grounds. The first ground was that
following the dollarization of the economy, he was now entitled to payment in US
dollars. Secondly, he stated that given the then prevailing inflationary environment, he
could purchase a property similar to the property in issue in the sum of US$135 000.
It is not in issue that the defendants did not refund the plaintiff the deposit that he paid
to the 1st defendant in the sum of ZW$50 million. Following the nullification of the
agreement of sale in case No. HH 53/08, the plaintiff lost out on not only the property but
also the deposit.
The doctrine of unjustified enrichment applies when a person is enriched through
the acquisition of a benefit without adequate justification, for example the existence of a
valid contact. The requirements for unjust enrichment were well captured in the parties’
closing submissions that:
(a) the defendant must be enriched;
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(b) the plaintiff must have been impoverished by the enrichment of the
defendant;
(c) the enrichment must be unjustified;
(d) the enrichment must not come within the scope of one of the classical
enrichment actions; and
(e) There must be no positive rule of law which refused an action to the
impoverished person. (see Goncalves v Rodrigues HH-197-03, Reza v
Nyangani 2001 (1) ZLR 203, Jongwe v Jongwe 1999 (2) ZLR 121 (H),
Absa Bank Ltd t/a Bankfin v Stander t/a Caw Peneelkoppers 1998
(1) SA 939, Industrial Equity v Walker 1996(1) ZLR 269(H) and Wille’s
Principles of South African Law 8th edition at pp 633-5.
The 1st defendant, if not both defendants benefitted from the ZW$50 million paid by the
plaintiff. At the same time, they retained ownership of the property in issue. It is
therefore my view that the defendants were enriched at the expense of the plaintiff.
It appears to me that what is in issue is whether or not the plaintiff is entitled to be
compensated following the cancellation of the agreement for illegality and whether or not
they are entitled to damages in foreign currency.
I will address the issue relating to the illegality of the agreement first. In Dube v
Khumalo, 1986(2) ZLR 103 (SC) at 109D to 110C GUBBAY JA, as he then was, had
this to say:
"There are two rules which are of general application: The first is that an illegal
agreement which has not yet been performed, either in whole or in part, will never
be enforced. This rule is absolute and admits no exception. See Mathews v
Rabinowitz 1948(2) SA 876(W) at 878; York Estates Ltd v Wareham 1950(1) SA
125 (SR) at 128. It is expressed in the maxim ex turpi causa non oritur actio.
The second is expressed in another maxim in pari delicto potior est conditio
possidentis, which may be translated as meaning "where the parties are equally in
the wrong, he who is in possession will prevail." The effect of this rule is that
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where something has been delivered pursuant to an illegal agreement the loss lies
where it falls. The objective of the rule is to discourage illegality by denying
judicial assistance to persons who part with money, goods or incorporeal rights, in
furtherance of an illegal transaction. But in suitable cases the courts will relax the
par delictum rule and order restitution to be made. They will do so in order to
prevent injustice, on the basis that public policy "should properly take into
account the doing of simple justice between man and man." As was pointed out
by STRATFORD CJ in Jajbhay v Cassim 1939 AD 537 at 544-545:
"Courts of law are free to reject or grant a prayer for restoration of
something given under an illegal contract, being guided in each case by
the principle which underlies and inspired the maxim. And in this last
connection I think a court should not disregard the various degrees of
turpitude in delictual contracts. And when the delict falls within the
category of crimes, a civil court can reasonably suppose that the criminal
law has provided an adequate deterring punishment and therefore,
ordinarily speaking, should not by its order increase the punishment of the
one delinquent and lessen it of the other by enriching one to the detriment
of the other. And it follows from what I have said above, in cases where
public policy is not foreseeably affected by a grant or a refusal of the relief
claimed, that a court of law might well decide in favour of doing justice
between the individuals concerned and so prevent unjust enrichment. (see
at 191.)"
It is therefore trite from the above authorities that where an agreement is illegal, a
court has the discretion to relax the par delicto rule in order achieve justice between man
and man. In the process the court will assist parties to an “invalid” contract where
justified by considerations of equity and justice - Wakefield v A S A Seeds (Pvt) Ltd
1976(2) RLR 63’ Ntini v Masuba, HB 69-03 and Muringaniza v Munyikwa HB 102-03,
Havman v Nortje 1914 AD 293.
The agreement of sale between the respondent and the 1 st defendant was declared
illegal in case No. HH 53/08. The parties had originally believed that the agreement as
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binding. However, it became clear that the 1 st defendant had held out to be the seller
when he did not have any rights and interest in the property and could therefore not effect
transfer of the property to the plaintiff. The property had not also been subdivided as is
required in terms of section 39(1) the Regional, Town and Country Planning Act [Cap
29:12]. The defendants are in possession of the deposit paid by the plaintiff and have
retained ownership and possession of the property. The facts before the court, therefore
calls for a relaxation of the par delictum rule more particularly since plaintiff did not seek
to enforce the agreement. A refusal to grant the action would unjustly enrich the
defendants at the expense of the plaintiff.
The next question for determination is in what currency the plaintiff should be
compensated. As alluded to earlier, the plaintiff claim in foreign currency is based on the
fact that his ZW$50 million could purchase a property similar to the property in issue at a
cost in the sum of US$135 000.
The introduction of the dual currency regime in 2009 indeed posed a lot of problems
for the court. The Zimbabwean currency has become valueless as the economy has
adopted the US dollar as legal tender. An award of damages in Zimbabwean dollars
would be meaningless. However, in Makwindi Oil Procurement (Pvt) Ltd v National Oil
Company of Zimbabwe 1988 (2) ZLR 482, it was accepted that a party should recover
damages in that currency that will express his loss. This principle was restated in
Kwindima v Mvundura 2007 (2 ) ZLR 168. However, the principle is subject to the party
claiming damages in foreign currency to his claim. Thus in principle the plaintiff may
recover damages in foreign currency.
The question which arises is whether or not the plaintiff has been able to prove the
claim for US$135 000. The plaintiff appears to have failed in this regard. It was the
plaintiff evidence that he could have purchased a similar property to the one in issue for
the sum of US$135 000. It therefore seems from his evidence that he was seeking the
value of the entire property in foreign currency yet he had only paid half the purchase
price. In the event that the court were to find that a similar property would indeed be
valued at US$135 000, the plaintiff would have been entitled to US$67 500 being half of
the purchase price.
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I have difficulties in awarding him that amount on the basis that apart from his mere
say so, the plaintiff did not lead any evidence to support his assertions on the value of the
property in issue and the value of comparable properties and where such properties are
situated. It is my view that the case of Kwindima v Mvundura (2 ) ZLR 168, though the
facts are similar is distinguishable from the present case. In that case, the plaintiff had, as
in the present case, entered into an agreement of sale of immovable property. At the time
the agreement was concluded, Mvundura had already sold the property. The property
was no longer available and the agreement of sale could not be enforced. Initially
Kwindima claimed damages in Zimbabwean dollars. She later amended her claim to
reflect her claim in US dollars. However, the distinguishing factor is that during the
hearing of the matter, Kwindima led evidence from a City of Harare Chief Valuations
Officer on the value of the property in question. The plaintiff in the present case did not
lead any professional evidence on the value of the property in foreign currency. It was
essential to have done so. The court is at a loss as to how the applicant arrived at the sum
of US$135 000 without any valuation of the property in issue and proof of comparable
properties.
In Venture Capital Co of Zimbabwe Ltd v Chirovero Investments (Pvt) Ltd 2000 (2)
ZLR 30 (HC) 39D-E, the court observed that -
“Finally, if there were some prima facie merit in any of the wrongful acts alleged,
there is no proof of loss. This is a case where one would expect a mathematical
projection of profits based upon actual figures and performance. It is said that:
"where damages can be assessed with exact mathematical precision, a plaintiff is
expected to adduce sufficient evidence to meet this requirement. Where, as in the case
here, this cannot be done, the plaintiff must lead such evidence as is available to it
(but of adequate sufficiency) so as to enable the court to quantify his damages and to
make an appropriate award in his favour. The court must not be faced with an
exercise in guesswork; what is required of a plaintiff is that he should put before the
court enough evidence from which it can, albeit with difficulty, compensate him by
an award of money as a fair approximation of his mathematically unquantifiable
loss." (See also Hersman v Shapiro & Co 1926 TPD 367, 379-80).
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The plaintiff did not place before me the best evidence available to assist me in
quantifying the damages that he was entitled to.
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Claim for improvements and incidental costs incurred in effecting the
improvements
The plaintiff testified that he effected the various improvements to the property which
have been noted earlier in this judgment. He claimed US$20 000 for the improvements
and incidental costs such as transport cost incurred in sourcing for material and labour
and loss of earnings during the period he was effecting the improvements. The plaintiff
testified that the improvements were useful and necessary and enhanced the value of the
property. The defendants disputed this and testified that the improvements were in any
event effected in contempt of two orders issued in the Magistrates Court. In one of the
orders it is alleged he had waived his right to compensation.
The plaintiff contended that the orders were issued against the 1st defendant and yet it
is the 2nd defendant who has benefitted from the improvements and his claim for
compensation lies against the 2nd defendant. The defendants submitted that the identity of
the defendant in the order was irrelevant. What was relevant was that the plaintiff had
forfeited his right to compensation.
It is clear from the order that the 2 nd defendant was not a party to the proceedings.
The order cannot therefore apply to him. In any event it is noted that the order was
obtained on the assumption that the 1st defendant was the owner of the property when in
fact he was very aware that that property was not registered in his name. It is therefore
my view that it is competent for the plaintiff to claim compensation for the improvements
against the 2nd defendant.
The next issue for determination is whether or not the plaintiff is entitled to the
amount claimed. I am constrained to award the plaintiff the amount that he claimed as
improvements and incidentals thereto. He did not provide any proof of the amounts that
he expended in effecting the improvements other that proof of a water meter to the tune
of ZW$6 500 000. He did not place before the court evidence to establish the cost of the
labour expended in improving the property neither did he explain what “effort” he
exerted and what value he placed on the “effort”. He did not establish how much he was
earning at the time and how much time he lost in effecting the improvements. Whilst a
court can rely on the evidence before it to award some measure of damages, this is only
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possible where adequate and reasonable evidence is placed before it. (Hershman v
Shapiro (supra). The plaintiff failed in this regard.
Further, it was not adequate for the plaintiff to simply say that he paid so much
towards the improvements and therefore he was entitled to the amount so paid out. The
issue was not whether or not he had proved the quantum. It is my view that the issue was
whether or not the plaintiff had established the enhancement value in order for the court
to determine the lesser value between the actual expenses incurred and the enhancement
value. Silberberg, at p 152 states that:
“ As far as the measure of compensation is concerned, necessary expenses may be
recovered in full, provided the possessor’s efforts to protect or preserve the
property were successful. In respect of useful improvements either an amount
equal to the value by which the property has been enhanced or the actual
expenditure incurred- whichever is the lesser-may be recovered.” (own
emphasis. See also Reza v Nyangani, supra at 206A-B.).
In order for him to prove his claim the plaintiff was required to establish the
enhancement value. The enhancement value is the difference between the value of the
property before the improvements and the resultant value after the improvements. The
value of the property before the improvements is not known more particularly in foreign
currency. The cost of the improvements was not established. The value of the property
after the improvements is also not known. There is no evidence as to what extent the
improvements effected by the plaintiff enhanced the value of that property. I am unable
to establish the enhancement value of the property and compare it with the actual
expenditure incurred to determine the lesser amount.
Loss associated with the eviction
The plaintiff identified various items of property that he alleges were either
damaged or destroyed during the eviction. This included a wardrobe, chairs and a stove.
The alleged damage and destruction of the property gave rise to a claim for US$20 000.
The defendant disputed that any property was damaged or destroyed. The plaintiff did
not satisfy the court that there was such damage to the property. He even failed to place
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before the court the value of the property damaged and the cost of repairing the property.
He did not lead evidence on the value of the property destroyed and the replacement
value thereof. I wonder at the nature and quality of the property that would cost a
princely sum of US$20 000. The plaintiff cannot succeed with his claim.
Injuria
The plaintiff testified that he was embarrassed by the eviction. His business
colleagues and fellow church members were going around saying that he had been lying
that he had purchased property when he had not. As a result of embarrassment lost
weight and suffered mental anguish and hence his claim of damages in the sum of
US$100 000.
In order for the plaintiff to succeed in his claim, he must satisfy the court that
when they initiated the eviction process:
(a) The defendants intended to embarrass the plaintiff;
(b) The eviction was wrongful and unjustified; and
(c) The eviction impaired the dignity of the plaintiff.
The plaintiff did not satisfy the court that the defendants intended to injure the
plaintiff. The eviction followed the pronouncement by the court in case No. HH 53/08
that the agreement of sale between the plaintiff and the 1 st defendant was null and void.
The defendant applied for an eviction order which was duly granted on 14 November
2008 for the eviction of the plaintiff by 30 November 2008. The plaintiff filed an appeal
in the High Court on 20 November 2008 in case no. CIV “A” 430/08. The eviction had
been completed on 16 November 2008. It appears common cause that the eviction was
done on the very day that the order was obtained and before 30 November specified in
the order. The plaintiff did not approach the court for recourse. He moved back onto the
property soon after the eviction but before the noting of appeal presumably on the advice
of his erstwhile legal practitioner. The plaintiff could only move back on the property
after following due process of the law. The second eviction of 12 January 2008 followed
an order of the Magistrates Court in favour of the defendants for contempt of court. The
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1st defendant alleged that he obtained an order for leave to execute although it was not
produced in court. However, the plaintiff did not challenge the existence of the order.
Therefore the actions of the defendants cannot be said to have been wrongful as they
were carried out by an officer of the court in pursuance of lawful court orders. Lastly, the
plaintiff did not call any witness to show that his reputation had been impaired. He did
not call any of his business colleagues and clients, neither did he call any of his church
members. It is my view that the plaintiff failed to satisfy the requirements for the injuria.
Defendant’s Counter Claim
The 1st defendant testified that at the conclusion of the agreement of sale he
surrendered the original title deeds to the plaintiff as proof of his intention to transfer the
property into the plaintiff’s name. The payment of the purchase price by the plaintiff was
erratic and in breach of the agreement. He proceeded to cancel agreement and wrote a
letter to the plaintiff dated 3 October 2005 confirming the cancellation. He invited the
plaintiff to enter into lease agreement in a subsequent letter dated 23 November 2005.
The plaintiff refused to vacate the property after the nullification of the agreement of sale
in case No HH 53/08. The defendant had to obtain an eviction order and the plaintiff was
finally evicted on 12 January 2009. The plaintiff had been in occupation of the property
for 37 months before eviction without paying rent. The defendant therefore claimed
damages in the sum of US$ 7 400 and interest thereon at the rate of 5.5% per annum from
1 March 2009 to date of payment in full. He further claimed the return of the title deeds
which the plaintiff had refused to relinquish
What is evident from the evidence of the parties is that the plaintiff was in
occupation of the property for the greater part of the alleged 37 months in terms of an
agreement of sale. He thought that he had purchased the property until the decision in
case No HH53/08. He was technically the owner of the property and not a lessee. The
parties did not agree on any rentals. The letter from the defendant dated 23 November
2005 was firstly from the 1 st defendant who was not the owner of the property. Secondly,
the letter was written at the height of litigation between the parties and when the parties
were fighting for the ownership of the property. The agreement of sale had not been
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terminated and the parties had not agreed on a lease agreement. It is therefore my view
that the plaintiff has not established a basis for the holding over damages.
Assuming I am wrong in my finding, I am of the view that the 2 nd defendant has
not proved his claim for holding over damages. The amount claimed is a global amount.
There is no indication as to the monthly rental for the property in US dollars or rentals for
similar properties.
I am of the view that there is no basis for the plaintiff to hold onto the 2 nd
defendant’s title deeds in view of the decision in case no HH 53/08.
In the result it is ordered that:
A. Plaintiff’s Claim
1. The defendants be and are hereby granted absolution from the instance with
respect to the claim for unjust enrichment.
2. The plaintiff’s claim for damages for injuria be and is hereby dismissed.
3. The plaintiff’s claim for damages for the destruction and damage of the plaintiff’s
property be and is hereby dismissed.
B Defendant’s Counter Claim
1. The plaintiff be and is hereby ordered to return to the 2 nd defendant title deed
Number 3144/81within seven days of the service of this order.
2. The defendant’s claim for holding over damages and interest thereon be and is
hereby dismissed.
C. Each party shall bear its own costs.
Messrs Katsande & Partners, plaintiff’s legal practitioners
Mtombeni, Mkwesha, Muzawazi & Ass, 1st and 2nd defendants’ legal practitioners