Bariade Investments v Tendai Mashamhanda

The plaintiff, Bariade Investments, is the registered owner of property situated at 41 Ridgeway North, Highlands, Harare. It acquired ownership on 7 May 2022 pursuant to a Supreme Court judgment under SC24-22 which had cancelled the defendant Mashamhanda's fraudulent title. At the time of the Supreme Court judgment, the defendant was in occupation and continued to occupy the property until his eviction on 25 June 2024. The plaintiff purchased the property at auction in September 2017. The defendant had taken possession in 2019 after purchasing from Puwayi Chiutsi. The plaintiff instituted this claim for damages for unlawful occupation on 12 April 2023, claiming US$28,000 for the period 8 May 2022 to 31 March 2023, and US$2,800 per month thereafter until the defendant vacated, plus interest and costs.

• Whether pending proceedings filed by the defendant (SC 666/23, HCH 1725/24, HCH 1845/24) had any effect on the plaintiff's claim for unlawful occupation damages
• Whether the plaintiff was entitled to claim damages for unlawful occupation from the defendant
• If entitled, what was the quantum of unlawful occupation damages
• Whether alleged irregularities in the capital gains tax certificate, rates clearance certificate, and deed of transfer affected the validity of the plaintiff's title
• Whether damages could be claimed in foreign currency (US dollars)

Judgment granted in favor of the plaintiff. The defendant was ordered to pay: (i) US$28,000 being unlawful occupation damages from 8 May 2022 to 31 March 2023, with interest at 5% per annum from 8 May 2022 to date of payment in full; (ii) US$2,800 per month from 1 April 2023 to 25 June 2024 being damages for unlawful occupation, with interest at 5% per annum from the due date to date of payment in full; and (iii) costs of suit on an ordinary scale. The court noted that while the order sounded in foreign currency, it may be paid in local currency at the interbank rate prevailing on date of payment (per Shah v Nherera SC 55-24).

The binding legal principles established are: (1) A claim for holding over damages arises ex delicto where a person remains in occupation of property without lawful right after the owner's title is established, and such occupation is per se wrongful. (2) Damages for unlawful occupation relate to loss of foreseeable market-related rentals arising from deprivation of use and enjoyment of the property. (3) A mala fide occupier who occupies property in defiance of court orders and after being found not to be a bona fide purchaser cannot resist a claim for holding over damages on the basis of pending litigation challenging title where such litigation has been unsuccessful or disposed of. (4) The quantum of holding over damages must be proved by evidence and cannot be based on mere assertion; professional valuation evidence is appropriate for this purpose. (5) A lower court cannot entertain what amounts to a collateral challenge to a final decision of a superior court (Supreme Court); such attempts constitute an improper procedure and disrespect for the judicial hierarchy. (6) The assessment of capital gains tax is the function of the Commissioner General of ZIMRA, not the taxpayer, and where the Commissioner General has made an assessment in accordance with applicable law (including the Finance Act 2019 regarding currency), that assessment is not invalidated merely because the taxpayer disagrees with the currency used.

MUSHURE J made several important observations beyond the strict legal holdings: (1) The court strongly criticized the conduct of the defendant's counsel (Mr. Rangarirai) for attempting to mislead the court by claiming late in the day that one issue was no longer before the court, despite having cross-examined witnesses on that very issue, describing this as "brazenly" submitted and not conduct congruent with membership of the noble profession. (2) The court emphasized that legal practitioners are officers of the court who should not behave like "hired guns" and that litigation is not a game of wits but a serious scientific process to resolve disputes, citing Sadiqi v Muteswa & Ors HH-281-20. (3) The court observed that raising points of law requires proper notice to the other party and cannot be raised anyhow, even though points of law may generally be raised at any stage. (4) The court stated that had the plaintiff prayed for costs on a more punitive scale, it would have been inclined to award same due to the manner in which the defendant's counsel conducted himself. (5) The court commented that the defendant's conduct in repeatedly attempting to challenge established title through various proceedings amounted to "flogging a dead horse" and was done in "utter disregard for the rule of law and in a display of absolute disrespect for the judicial system." (6) The court noted with approval the concession by the defendant's previous counsel (Mr. Madhuku) in SC 17-24 that developments were made against an extant court order, which defined the defendant as a mala fide possessor.

This case is significant in Zimbabwean law for several reasons: (1) It confirms that holding over damages arise ex delicto based on unlawful occupation without lawful right, even where the occupier claims to be challenging title. (2) It demonstrates the courts' intolerance for abusive litigation tactics designed to delay enforcement of rights, particularly where a party repeatedly attempts to challenge final Supreme Court decisions through collateral proceedings. (3) It reinforces that a mala fide occupier (one found not to be a bona fide purchaser) has no right to compensation for improvements or right of retention. (4) It provides guidance on proving quantum of holding over damages through professional valuation evidence. (5) It illustrates proper application of the Finance Act 2019 regarding capital gains tax calculations in the context of currency changes. (6) The judgment contains strong dicta censuring counsel for misleading the court and not conducting himself as an officer of the court, emphasizing professional duties. (7) It clarifies that foreign currency judgments may be paid in local currency at the prevailing interbank rate.