Empannage Investments (Private) Limited & 2 Others v Stephen P. Kwaramba & 2 Others

On 3 November 2003, the first appellant (a property development company) entered into an agreement of sale with the first and second respondents (husband and wife) for Stand 9, formerly Stand 17, Gletwyn Township, Harare. The purchase price was ZWL$ 70,000,000.00, which the respondents paid in full. The agreement stipulated that possession would only be granted upon registration of transfer or at the seller's discretion upon obtaining a Certificate of Compliance from the City of Harare, and that the buyers were to construct a house within 18 months of taking occupation. On 25 August 2020 and 23 September 2021, the first appellant purported to cancel the agreement, alleging failure by the respondents to construct a house and pay residents' association dues. The respondents denied breach, stating the land was not habitable until 2016 and the appellant failed to effect transfer. The appellant subsequently sold the property to the third appellant (who joined the proceedings). The respondents sought a mandatory interdict to compel transfer and eviction of the third appellant. The appellants raised preliminary points including that the power of attorney filed only related to the first respondent and not the second respondent, and questioning its authenticity.

• Whether the court a quo erred in failing to determine the preliminary point regarding the validity and scope of the power of attorney authorizing proceedings on behalf of the respondents
• Whether a court must determine all issues raised by parties before making a final determination
• Whether the second respondent was properly before the court a quo without filing pleadings or a power of attorney
• Whether the requirements for a mandatory interdict were satisfied
• Whether the agreement of sale had been validly cancelled
• Whether the third appellant was entitled to remain in occupation of the property

1. The appeal is allowed with costs. 2. The judgment of the court a quo is set aside. 3. The matter is remitted to the court a quo for a determination of the preliminary point taken by the appellants and, thereafter, if need be, the substantive issues.

A court must determine all issues raised by parties, including preliminary points, before making a final determination on the merits. The failure to resolve disputes or give reasons for determination of issues properly raised before it constitutes a misdirection that vitiates the order made. Where a preliminary point regarding locus standi or authorization to institute proceedings is raised but not determined by the court a quo, the proper course for an appellate court is to set aside the judgment and remit the matter for determination of the preliminary point first.

While the Supreme Court focused on the procedural defect, it did not express views on the substantive merits of the case, including whether the cancellation of the agreement was valid, whether the requirements for a mandatory interdict were met, whether the third appellant was colluding with the first and second appellants, or whether the second respondent was properly before the court. The Court noted that counsel for the respondents conceded that letters regarding the intention to cancel and the cancellation itself were received by the respondents, and that neither party had sought eviction of the third appellant in their pleadings, though counsel argued the court had discretion to grant such relief. These matters were left for determination by the High Court on remittal.

This case reinforces the fundamental principle of civil procedure that courts must address and determine all issues raised by parties before making a final order. It emphasizes that failure to determine preliminary points, particularly those relating to locus standi and proper authorization of proceedings through powers of attorney, constitutes a material misdirection that vitiates the entire judgment. The case demonstrates the appellate court's approach to procedural irregularities - remitting matters to the court of first instance rather than determining procedural issues that should have been addressed at first instance. It serves as a reminder to judges to comprehensively address all preliminary objections before proceeding to the merits, as these may be dispositive of the entire matter.