Misheck Honamombe v Florence Chukuruwo

In 2001, the appellant purchased land from the respondent's husband described as stand 85C in the agreement of sale. The stand, a subdivision, was not properly demarcated by the seller and boundary disputes arose. In 2004, the respondent's husband built cottages on what later turned out to be part of the appellant's land. The husband died in 2012. In 2013, the Epworth Local Board using site plans and maps correctly demarcated the appellant's stand, showing the boundaries and indicating the proper description was stand 85B measuring 1680m². The structures built by the deceased were found to be on the appellant's stand. The respondent administered and collected rentals from tenants in those structures although not resident there herself. The appellant sued for eviction of the respondent and those claiming through her. The magistrates' court granted absolution from the instance at the close of the plaintiff's case on grounds that the claim had prescribed and that the estate should have been cited instead of the respondent personally.

• Whether the appellant's claim for eviction had prescribed
• Whether the proper party to be cited was the deceased's estate rather than the respondent in her personal capacity
• Whether absolution from the instance was correctly granted by the court a quo
• When does a cause of action arise for purposes of prescription in boundary dispute cases
• Whether unlawful occupation constitutes a continuing wrong for prescription purposes

1. The judgment of the court a quo is set aside. 2. The trial is to proceed to the defence case. 3. The respondent is to pay costs.

1. A cause of action for purposes of prescription arises when the plaintiff becomes aware of every material fact necessary to prove in order to succeed in the action, not when some but not all facts are known. 2. In boundary dispute cases where demarcation is unclear and disputed, the cause of action for eviction only arises when boundaries are officially and accurately determined. 3. Unlawful occupation of land constitutes a continuing wrong, and prescription does not run in favor of an unlawful occupier who remains in continuous wrongful possession of another's property. 4. Where a sale agreement has been fully consummated during the seller's lifetime by full payment and transfer of possession, and a third party (not the estate) exercises de facto control over occupants on the sold property, that third party may be sued personally for eviction without citing the deceased seller's estate. 5. The estate of a deceased person need only be cited where substantive relief is sought from the estate itself, not where claims relate to property fully alienated during the deceased's lifetime.

The court observed that it is important to put the respondent to her defence to ascertain what rights or in what capacity she seeks to control property on the appellant's land, particularly where she is benefiting from rentals collected from cottages on that land. The court noted that the respondent cannot seek to profess ignorance of the facts when she is benefiting from rentals collected from the cottages. While it would have been desirable for the appellant to have been more specific in stating the relief sought in the notice of appeal (e.g., "trial proceedings to resume" or "matter to proceed to defence case"), the court found this was not fatal as it logically follows that setting aside an absolution from the instance granted at close of plaintiff's case means resumption of proceedings.

This case is significant in Zimbabwean property and civil procedure law as it clarifies: (1) when a cause of action arises in boundary dispute cases for prescription purposes - namely when the plaintiff becomes aware of all material facts necessary to prove the claim, not merely when initial possession is taken; (2) that unlawful occupation of land constitutes a continuing wrong against which prescription cannot be raised by the wrongful occupier; (3) the proper parties to cite in eviction proceedings where a deceased person's estate may be involved - holding that where the deceased fully performed a sale during lifetime and a third party controls occupants post-death, that controlling party may be sued personally without citing the estate; (4) the application of section 25 of the Administration of Estates Act and when estate representation is necessary in litigation.