Gabriel Mandombo and Shylet Janyure v W. Katsa and V. Mavhunga and Zimbabwe Housing Company (Private) Limited

The Appellants (husband and wife) issued summons in the Magistrates Court seeking eviction of the first and second Respondents (also husband and wife) from property number 20625 Cranbrook Park Ruwa. The Appellants alleged that the second Appellant purchased the property from the third Respondent (Zimbabwe Housing Company) in 2002/2004, though it was transferred to the first Appellant after a mix-up. In 2015 the property was ceded to Kelvin Gwatidzo who failed to comply with the cession agreement and it was cancelled. The Appellants alleged the first and second Respondents took occupation without their consent. The Respondents disputed the sale, alleging it was fraudulent, and claimed they had their own agreement of sale with the third Respondent. The third Respondent denied selling the property to the second Appellant and the stand remained registered in the third Respondent's name. The third Respondent called witnesses who discredited the receipt and agreement of sale relied upon by the Appellants.

• Whether the Appellants discharged their onus of proof on a balance of probabilities to establish ownership of the property
• Whether a court order in a previous case (MC 6543/17) involving different parties created binding rights in favor of the Appellants
• Whether eviction could be granted where there were competing interests and two conflicting agreements of sale to the same property
• Whether the lower court improperly reviewed a previous court decision

The appeal was dismissed with costs. The Respondents' prayer for costs on a higher scale was refused, with the Court ordering ordinary costs instead.

Where there are two competing agreements of sale relating to the same property and both parties claim rights from the registered owner, eviction cannot be granted in a vindicatory action without a prior declaratory order establishing which agreement of sale is valid and which party has lawful ownership. A court order granted in favor of one party against a different respondent does not establish real rights enforceable against the whole world and does not bind subsequent parties who were not involved in that litigation. The principle of res judicata requires that the parties, subject matter, and cause of complaint be the same in both actions.

The Court observed that the order in MC 6543/17 appeared to have been granted on the papers without oral submissions and possibly in default, as evidenced by paragraph 3 which suggested costs on a higher scale should the suit be defended. The Court noted that the first Appellant never sought to protect his alleged right of ownership during the time constructions were being done on the property by the Respondents. The Court commented that no justification was provided for the Respondents' request for punitive costs and that ordinary costs would meet the justice of the case.

This case is significant in Zimbabwean property law as it establishes that where there are competing interests in property based on conflicting agreements of sale with the registered owner, a court cannot grant eviction in a vindicatory action without first determining which agreement is valid through a declaratory order. The case also clarifies the limits of res judicata and the principle that a court order in favor of one party against a third party does not create enforceable real rights against subsequent occupiers who were not parties to that litigation. It reinforces the requirement that a plaintiff in a rei vindicatio action must prove ownership before eviction can be granted.