Nyarai Hwaire v Machona Francis Mugandani and Others

This is a judgment correcting a patent omission in a previous judgment handed down on 23 November 2005. The original judgment failed to dispose of the second and third defendants' counterclaim. The second and third defendants had counterclaimed for eviction of the plaintiff and all those occupying through her from stand no 9771 Glen View Harare, and for holding over damages of $10,413,000 from the date of transfer of the property into their names up to August 2004, plus further holding over damages at $1 million per month from September 2004 to date of eviction. The property had been transferred into the second and third defendants' names.

• Whether the second and third defendants were entitled to an eviction order against the plaintiff
• Whether the second and third defendants were entitled to holding over damages and in what quantum

1. The plaintiff's claim is dismissed. 2. The plaintiff shall vacate the property commonly known as stand no 9771 Glen View Harare within 30 days of service of this order failing which the Deputy Sheriff is hereby authorised to evict the plaintiff and all those occupying through her. 3. Each party shall bear its own costs.

A court has power under rule 449(1)(b) to correct patent omissions in its judgments. Where a counterclaim for holding over damages is made but no evidence is led on the quantum of such damages, the claim for damages must be dismissed even if the substantive right to eviction is established.

The court noted that it called both parties to give them notice before amending the order to include disposition of the counterclaim, demonstrating procedural fairness in the exercise of the correction power under rule 449(1)(b).

This case demonstrates the court's use of rule 449(1)(b) to correct patent omissions in judgments, ensuring that all claims and counterclaims are properly disposed of. It also illustrates the principle that claims for damages require proper evidential foundation as to quantum, and that the mere assertion of a claim without supporting evidence will result in dismissal of that aspect of the claim.