Kennedy Dewera v Douglas Nyaude and John Charamba and Beauty Charamba

On 4 February 2005, the plaintiff and first defendant entered into an agreement of sale for Stand Number 475 Glen View Township for ZW$27,360,000. The plaintiff paid the full purchase price by 5 October 2006. Prior to full payment, on 29 May 2006, the first defendant attempted to increase the purchase price to ZW$332,000,000, which the plaintiff rejected on 13 June 2006. Despite full payment, transfer was never effected. In 2007, the first defendant sold the same stand to Oscar Karimusosa, who then sold it to the third defendant (wife of second defendant) on 8 November 2010. The plaintiff only learned of this on 7 December 2010. The second and third defendants took occupation and built a 3-bedroom house with estimated cost of US$40,000. The second and third defendants were served with summons on 31 January 2011 when the house was only built to slab level, but continued building thereafter, relying on the first defendant's assurance that he would compensate the plaintiff.

• Whether the plaintiff and first defendant agreed to a variation of the agreement of sale and if so, in what terms
• Whether there was any valid termination of the agreement between plaintiff and first defendant
• Whether the plaintiff is entitled to enforce the agreement it had with first defendant
• Whether the plaintiff is entitled to any compensation and if so in what amount
• Whether there are special circumstances justifying the second and third defendants to remain on the property
• Whether the plaintiff is entitled to specific performance of the contract

a. The purported sale to the 3rd Defendant declared null and void and the rights and obligations in the agreement of sale between the plaintiff and 1st Defendant enforced; b. The Plaintiff declared the rightful owner of Stand 475 Glen View Township and the 1st Defendant ordered to pass transfer to the Plaintiff in terms of the agreement dated 4 February 2005; c. The 2nd and 3rd Defendants and all those occupying through them evicted from the property within 30 days; d. The 1st, 2nd and 3rd Defendants to pay costs on a legal practitioner and client scale.

In a double sale situation, where the second buyer has knowledge of the first sale either at the time of the sale or at the time of taking transfer, unless there are special circumstances affecting the balance of equities, the first buyer can recover the property from the second buyer and is entitled to specific performance. Special circumstances cannot be created deliberately by parties who, with knowledge of a prior sale, continue to develop property in an attempt to tilt the balance of equities in their favour. The primary remedy of a wronged buyer in a contract of sale is specific performance, which will be granted unless there are equitable reasons disqualifying the plaintiff from obtaining such relief. A void sale creates no rights and subsequent transactions based on such void sale are equally void (applying the principle that "you cannot put something on nothing").

The court noted that the first defendant attempted to elect to compensate the plaintiff rather than the second and third defendants, but observed that he was not entitled to make such an election. The court also commented that it would have been more expensive for the first defendant to compensate the second and third defendants who had built a house estimated at US$40,000 rather than the plaintiff who had only lost a stand. The court expressed that the second and third defendants could have ceased developments until the dispute was resolved but instead embarked on a calculated risk in collusion with the first defendant. The court noted its hands were tied regarding damages as the plaintiff had elected for specific performance and there was no prayer for damages before the court.

This case illustrates the application of the doctrine of specific performance in Zimbabwean contract law, particularly in double sale situations. It confirms that where a second purchaser has knowledge of a prior sale, the first purchaser's right to specific performance will generally prevail unless special circumstances affect the balance of equities. The case also demonstrates that parties cannot create artificial "special circumstances" through deliberate conduct to defeat a prior purchaser's rights. It reinforces the principle from Macfoy v Limited Africa Co. Ltd that void acts are nullities and nothing can be built upon them. The case is significant for property law as it protects the rights of purchasers who have fully performed their contractual obligations against subsequent fraudulent transactions, even where improvements have been made to the property.