Ntombizodwa Nhowe v Monica Gondo and Others

The applicant was married to the second respondent from 1986 to 2012. Following their divorce in 2012, the applicant was granted certain immovable property Stand No.13687 Harare Township. The second respondent subsequently sold a subdivision of this property (Stand 40715 Harare Township) to the first respondent, and Deed of Transfer No.7167/18 was registered in the first respondent's favor. The applicant previously approached the High Court in case HC3715/19 seeking a declaratory order regarding the sale, which was granted by Msithu J. However, the first respondent successfully appealed to the Supreme Court, which set aside Msithu J's judgment. The applicant then brought the current application under Section 8 of the Deeds Registries Act seeking cancellation of the deed of transfer to the first respondent. The first respondent raised a special plea of res judicata, arguing that the matter had already been adjudicated.

• Whether the doctrine of res judicata applied to bar the current application
• Whether the requirements for res judicata were satisfied (same parties, same cause of action, same relief sought)
• Whether the applicant was attempting to relitigate a matter already finally determined by the Supreme Court

The court ordered: (1) The point in limine on res judicata was upheld; (2) Each party to bear its own costs.

The doctrine of res judicata bars relitigation of a matter where: (1) the parties are the same, (2) the cause of action is the same, and (3) the relief sought is the same in substance, even if differently worded. A matter that has been finally adjudicated by a superior court on appeal cannot be brought back before the High Court in a different guise. The court will examine the substantive effect of the relief sought rather than merely the form or wording of the application. Once the Supreme Court has set aside a judgment on appeal, the applicant cannot relitigate the same issues by bringing a fresh application seeking relief with the same practical effect.

The court made general observations about the purpose of the res judicata doctrine, stating that it is meant to prevent continued litigation of a case on same or similar issues between the same parties, and prevents litigants from multiplying judgments and causing confusion. Katiyo J emphasized the policy consideration that "litigation should always come to a finality and there is no use in clogging the courts with stale issues that have already been dealt with." The court also noted that res judicata is a declinatory plea meant to quash or put an end to proceedings, distinguishing it from other types of pleas.

This case reinforces the application of the doctrine of res judicata in Zimbabwean civil procedure, emphasizing the principle that matters finally determined by courts (particularly on appeal by the Supreme Court) cannot be relitigated. It demonstrates that courts will look beyond the mere wording of relief sought to the substantive effect of orders to determine whether the same relief is being pursued. The case serves as an important reminder that litigants cannot circumvent unfavorable judgments by reformulating their claims in different terms when the substance remains the same. It upholds the policy of finality in litigation and prevents abuse of court process through repetitive litigation.