Luke Mberi v Nicholas Mkundwa

This was a dispute over Stand 5326, 101 Street, Warren Park D, Harare. Mberi was the original purchaser of the stand under a written agreement with the Municipality of Harare effective from 1 April 1984, to be paid over 30 years. In August 1984, Mberi was transferred by his employer to Masvingo and left Mkundwa in possession of the stand, which had a small shack. Mkundwa claimed he bought Mberi's rights for $500, while Mberi denied this. Mkundwa built a house on the stand between 1984-1989. When Mberi was transferred back to Harare in 1989, he lived in rented accommodation in Warren Park 1. In 1993, Mberi returned to live in three rooms in the disputed premises. Mkundwa claimed he rented the rooms to Mberi, but Mberi asserted he was the owner. The City of Harare was joined as a party but took no part in proceedings.

• Whether Mberi ceded his rights in the stand to Mkundwa in August 1984
• Whether a written agreement of sale dated 22 August 1984 was genuine or a forgery
• The weight to be given to handwriting expert evidence
• Whether Mkundwa was entitled to ejectment of Mberi from the property
• Whether Mkundwa was entitled to rental payments or damages for holding over

1. The appeal is dismissed with no order as to costs. 2. The cross-appeal is allowed, with paragraph 4 of the court a quo order amended to: (4) The plaintiff's claim for rental is dismissed. (4a) The plaintiff's claim for ejectment is allowed. An order is made that the 1st defendant and all persons claiming through him be ejected from the property known as Stand 5326, 101 Street, Warren Park D, Harare. 3. There will be no order as to the costs of the cross-appeal.

The binding legal principles established are: (1) Two signatures by the same person that are identical (as opposed to similar) are overwhelmingly improbable unless forged by tracing, and expert evidence to this effect should be accepted. (2) Even where key documentary evidence is found to be forged, a claim can still succeed if there is sufficient independent corroborating evidence. (3) Where a person claims occupation rights based on ownership and that claim fails, their right of occupation ceases automatically without requiring formal termination procedures applicable to tenancies. (4) Courts can decide disputes between competing purchasers/tenants where the actual owner (municipal council) signals acceptance of the court's decision by not objecting. (5) The conduct of parties, including substantial improvements to property and payment of instalments over many years, can constitute strong evidence of transfer of rights even in the absence of valid documentary proof.

McNally JA expressed astonishment that the handwriting expert was called as a witness by the plaintiff (Mkundwa) rather than being left for the defendant (Mberi) to call, given that the expert's evidence undermined the authenticity of the written agreement upon which the plaintiff relied. The Court also noted, as a mark of disapproval regarding the forged agreement issue, it would not alter the trial court's costs order (which awarded only 80% costs to Mkundwa) and made no order as to costs in the Supreme Court, despite Mkundwa succeeding on the cross-appeal. The Court observed that the absence of objection by the Council, which is the actual owner of the premises, is an important factor in allowing courts to decide the rights of competing tenants with a right to purchase, citing Mukarati v Mkumbu 1996 (1) ZLR 212 (S) at 215B.

This case is significant in Zimbabwean property law for establishing principles regarding: (1) the evaluation of handwriting expert evidence, particularly regarding forged signatures created by tracing; (2) the ability of courts to determine competing rights of tenants with rights to purchase where the council (actual owner) does not object; (3) the principle that corroborating evidence can support a claim even where the primary documentary evidence is forged; (4) the consequences for occupation rights when a claim based on ownership fails; and (5) the application of evidence rules regarding expert testimony and the assessment of identical versus similar signatures.