Cloudio Jume v Wakie Yule and The Sheriff of Zimbabwe N.O.

In February 2010, the applicant (Jume) and first respondent (Yule) entered into an agreement of sale for Stand 9462 Budiriro 5B, Harare. The purchase price of US$30,000 was fully paid on 15 February 2010, but the first respondent did not take transfer. Three years later, on 20 February 2013, the first respondent filed HC 1495/13 seeking transfer but did not prosecute it. On 26 April 2017, he instituted fresh proceedings under HC 3647/17 while HC 1495/13 remained pending. The applicant contended he was not served with HC 3647/17, but a default judgment was granted by Muremba J on 22 November 2017. Upon discovering this judgment two years later, the applicant found a supplementary affidavit falsely claiming service. When confronted, the first respondent deposed an affidavit on 2 May 2019 cancelling the Agreement of Sale. The applicant successfully applied under HC 3872/19 to set aside the default judgment, which Zhou J granted on 29 May 2019. The first respondent was later convicted of perjury regarding the false affidavit. The first respondent applied for rescission under HC 5886/19 and condonation under HC 6834/19, which were consolidated under HC 7171/19 and struck off the roll by Chinamora J on 8 December 2021. The first respondent appealed to the Supreme Court (SC 485/21, still pending). The applicant then brought this application under s 14 of the High Court Act seeking declaratory relief and eviction.

• Whether the applicant has locus standi to bring the application for declaratory relief
• Whether the founding affidavit should be struck out for being repetitive and argumentative
• Whether an applicant can seek both declaratory relief and consequential relief in the same application under s 14 of the High Court Act
• Whether the relief sought is res judicata following the order of Zhou J
• Whether the application is lis pendens with other pending proceedings
• Whether the first respondent's claims arising from the Agreement of Sale have been extinguished by prescription
• Whether the first respondent validly cancelled the Agreement of Sale
• Whether the applicant is entitled to rei vindicatio and eviction of the first respondent
• Whether the consequential relief sought has prescribed
• Whether punitive costs are warranted

The court granted the application and ordered: (1) All points in limine dismissed; (2)(a) Declaration that the first respondent did not validly serve HC 3647/17 and the default judgment of Muremba J was obtained in error; (2)(b) The judgment under HC 3647/17 cannot be revived as it was induced by fraudulent and criminal conduct; (3)(a) Declaration that the first respondent's claims arising from the Agreement of Sale were extinguished by prescription and were already prescribed when HC 1495/13 was filed; (3)(b) Declaration that the first respondent forfeited all rights under the Agreement of Sale by cancelling it in May 2019; (3)(c) Declaration that the first respondent's claims in respect of Stand 9462 Budiriro 5B are no longer legally enforceable; (3)(d) The first respondent and all those claiming through him shall vacate the property within 10 days; (3)(e) The Sheriff is authorized to forcibly evict and deliver vacant possession to the applicant if the first respondent fails to comply; (4) Leave granted for service through the applicant's legal practitioners; (5) Costs on a legal practitioner-client scale against the first respondent.

The binding legal principles established are: (1) Section 14 of the High Court Act permits an applicant to seek declaratory relief and consequential relief in the same application; the provision merely indicates that declaratory relief can be sought whether or not consequential relief is also sought. (2) An affidavit will not be struck out for being repetitive or argumentative where the complexity and history of the matter reasonably requires such an approach, though this may attract an adverse costs order. (3) A default judgment cannot form the basis of a res judicata defense as it is not a final determination on the merits. (4) Extinctive prescription absolutely extinguishes a debt after the prescribed period unless the running of prescription was delayed or interrupted. (5) A registered owner of immovable property holds real rights by virtue of s 2 of the Deeds Registries Act, and a title deed is prima facie proof of ownership. (6) In an actio rei vindicatio, the owner need only prove ownership and that the defendant is holding the property; the onus then shifts to the defendant to establish any right to continue holding against the owner. (7) A sworn affidavit constitutes a binding statement that has legal effect and binds the deponent. (8) Cancellation of an agreement of sale returns parties to the status quo ante as if the agreement never existed.

The court made several non-binding observations: (1) The defense of lis pendens is not absolute and may be exercised in the court's discretion to stay proceedings. (2) Rule 32(11) of the High Court Rules provides that no matter shall be defeated by reason of non-joinder or misjoinder of a party. (3) The court expressed strong displeasure with the first respondent's conduct in clogging the court system with needless litigation, failing to disclose the existence of HC 1495/13 when instituting the identical HC 3647/17, obtaining a default judgment through perjury, and refusing to vacate the property after cancelling the Agreement of Sale. (4) The court found the first respondent's explanation that he signed the cancellation affidavit out of fear of being reported to police "ludicrous, if not incredible" - noting he could not have been so afraid as to give up proprietary rights in a property he purchased. (5) The court noted that finality to litigation is critical, particularly where a party has relentlessly continued to clog the court system. (6) The observations in Chetty v Naidoo regarding the nature of ownership and the right to possession were endorsed as "self-commending."

This case is significant in Zimbabwean jurisprudence for: (1) Clarifying that s 14 of the High Court Act permits an applicant to seek both declaratory relief and consequential relief simultaneously; (2) Reinforcing that registration of immovable property under the Deeds Registries Act confers real rights on the registered owner; (3) Demonstrating the court's approach to voluminous and argumentative affidavits in complex matters with long histories; (4) Confirming the absolute nature of extinctive prescription in extinguishing debts; (5) Affirming the legal effect of sworn affidavits and statements as binding on the deponent; (6) Illustrating the requirements for actio rei vindicatio - the owner need only prove ownership and possession by the defendant, with the onus on the defendant to establish any right to retain possession; (7) Establishing that default judgments obtained through fraud and perjury cannot be revived even if formally set aside; (8) Demonstrating the court's willingness to award punitive costs where a party engages in vexatious litigation and abuses court processes.