Kudzanai Chimedza v Petromoc Exor (Private) Limited & Others

The first respondent (Petromoc Exor) entered into a 25-year lease agreement in May 2001 with Duncombe Farm (Pvt) Limited for a fuel filling station located on Duncombe Farm in Concession, Mashonaland Central Province. The first respondent effected improvements including fuel tanks, pumps and a canopy. In September 2013, the first respondent entered into a franchise agreement with the appellant to operate the fuel station. However, Duncombe Farm had been acquired by the State and gazetted for acquisition in January 2002 under the Land Acquisition Act. The appellant took occupation under the franchise agreement but later refused to pay franchise fees, claiming he had a lease agreement with Mazowe Rural District Council from July 2013. In 2016, the first respondent applied to the third respondent (Minister of Lands) for a lease of the fuel station. A written lease agreement was signed in July 2019, to run from 1 July 2019 to 30 June 2024. However, the appellant refused to vacate despite efforts by the third respondent to evict him. The first respondent filed an application for declaratory relief in July 2020.

• Whether the court a quo erred in exercising jurisdiction over the dispute given alleged mootness due to expiry of the lease agreement
• Whether the lease agreement between the first and third respondents was valid
• Whether the court a quo erred in granting declaratory relief under section 14 of the High Court Act
• Whether a party not privy to a contract can rely on its terms to mount a defence
• Whether a party can raise contradictory positions in the same proceedings (approbation and reprobation)

The appeal was dismissed with costs. The judgment of the High Court declaring the first respondent as the lawful lessee and ordering eviction of the appellant and second respondent was upheld.

The binding legal principles established are: (1) Where land has been acquired by the State under the Land Acquisition Act, the responsible Minister has exclusive power and authority over the land and property situated on it, including the power to lease such property; (2) A lessee appointed by the Minister acquires exclusive rights enforceable against illegal occupiers; (3) An illegal occupier who is not privy to a lease agreement has no legal standing to rely on the terms of that agreement (including its expiry date) to mount a defence or claim; (4) A party cannot approbate and reprobate by taking contradictory positions in the same proceedings - having argued a lease was valid but expired, a party cannot later argue it was invalid; (5) An appellate court will not interfere with the exercise of judicial discretion by a lower court under section 14 of the High Court Act unless it is shown the discretion was exercised capriciously, erroneously, on a wrong principle, or with disregard of relevant considerations; (6) While mootness may deprive a court of jurisdiction, courts retain discretion to hear moot matters where it is in the interests of justice to do so.

The Court made strong observations about the appellant's conduct, noting it was "unbelievable" that the appellant thought he could occupy and run a business on State land without authority and without payment. The Court noted the papers were "replete with falsehoods" including the appellant's denial of the franchise agreement despite documentary evidence. The Court observed it was "unfortunate that, for several years, the appellant has succeeded in circumventing legal process by mounting an extremely dubious, doomed and contradictory defence" and that "his case is all over the place without any meaningful or lawful basis for holding over at the fuel station." The Court also made obiter comments on the legislative intention behind section 65(3) of the Land Commission Act to legalize acts done under the repealed Rural Land Act, though this was not determinative given the privity issue.

This case is significant for establishing important principles regarding: (1) the rights of the State over acquired land and the Minister's unfettered authority to lease property on State land; (2) the doctrine of privity of contract - that third parties cannot rely on terms of contracts to which they are not party; (3) the discretionary nature of declaratory relief under section 14 of the High Court Act and the limited basis for appellate interference with such discretion; (4) the principle against approbation and reprobation - parties cannot adopt contradictory positions in the same proceedings; (5) that illegal occupiers of State land have no enforceable rights against lawful lessees appointed by the responsible Minister; and (6) the court's discretion to hear matters that may be moot where it is in the interests of justice.