Israel Gamuchirai Chidavaenzi (Duly represented by Norman Mlingo) v Global Electrical Manufacturing (Pvt) Ltd

The parties entered into a written agreement of sale on 16 April 2003 whereby the defendant sold an undeveloped stand (Stand 3 of Stand 1202A Kwekwe Township, measuring 3,561 square metres) to the plaintiff. The plaintiff paid the full purchase price, which was acknowledged by the defendant on 14 May 2003. Despite receiving full payment, the defendant refused to transfer the property. On 27 August 2013, the plaintiff made a court application to compel transfer. The defendant opposed, arguing that: (1) the plaintiff failed to pay for services (electricity, water connections, sewerage charges); (2) the claim had prescribed; and (3) the agreement was a nullity as it contravened section 39(1)(b) of the Regional Town and Country Planning Act Chapter 29:12 due to absence of a subdivision permit. The plaintiff withdrew the application and sued for the current value of the property based on unjust enrichment, initially claiming US$35,613.90, later amended to US$53,400.00.

• Whether the plaintiff failed to fulfill obligations under the agreement of sale and whether the defendant was justified in cancelling the agreement
• Whether the defendant was unjustly enriched by receiving the full purchase price while retaining the stand
• Whether the plaintiff was entitled to receive United States dollars when the original purchase price was paid in Zimbabwe dollars
• Whether the plaintiff was entitled to receive US$53,400.00 or any lesser amount
• What is the proper methodology for valuing the property for purposes of unjust enrichment

1. Defendant pays plaintiff the sum of US$53,400.00 being the amount by which defendant was unjustly enriched. 2. Defendant pays interest thereon at the prescribed rate of interest with effect from date of summons to date of payment in full. 3. Defendant pays plaintiff's costs of suit.

Where a defendant receives full payment for property under an agreement of sale but fails to transfer the property without justifiable cause, the defendant is unjustly enriched. The measure of restitution for unjust enrichment in such circumstances is the current market value of the property, not merely the original purchase price paid. A party cannot purport to cancel an agreement which it simultaneously claims is void ab initio - these positions are mutually destructive. In determining whether a plaintiff has fulfilled obligations under an agreement to purchase an undeveloped stand, the obligation to install infrastructure services rests on the owner/seller at the time of sale under the Regional Town and Country Planning Act, not on the purchaser. While parties may agree to be bound by an independent valuation, the court retains its duty to assess the methodology and result to ensure justice between the parties.

The court observed that when valuers are appointed by the Master of the High Court, the practice is to proceed without consulting the parties to avoid allegations of connivance or collusion. The court noted that while it accepted the independent valuer's methodology, the 10% increase in the rate per square metre (from US$15.00 to US$16.50) based on the distinction between "partially serviced" and "fully serviced" stands was not sufficiently justified where the only stated difference was tarred versus dusty roads. The court also commented on the defendant's poor performance as a witness, noting his tendency to prevaricate and avoid direct answers, and his inconsistent positions throughout the litigation (initially claiming cancellation, then illegality, then offering reimbursement, then disowning the illegality defense and blaming it on his legal practitioner).

This case is significant in Zimbabwean law for its application of unjust enrichment principles in the context of failed property transactions. It clarifies that where a seller receives full payment but refuses to transfer property, the buyer may claim the current market value of the property (not merely the original purchase price) on the basis of unjust enrichment. The case demonstrates the court's approach to valuation evidence in unjust enrichment claims and confirms that parties cannot rely on contradictory defenses (e.g., claiming both cancellation of an agreement and that the agreement was void ab initio). It also illustrates the courts' willingness to appoint independent valuers to determine property values, while retaining discretion to assess and adjust such valuations based on the evidence and methodology used.