Tashinga Housing Cooperative Society Limited v Takura Omiro Chigogo

The plaintiff, a housing cooperative registered in 1992, purchased 225 stands from the City of Harare in 1994, including Stand No. 4356, Tongogara Avenue, Dzivarasekwa 2. The stand was allocated to Salijeni Likukula, a cooperative member, until he resigned in September 2003 due to inability to pay contributions. Upon resignation, Likukula was refunded his contributions and returned the stand to the plaintiff. The defendant, who is not a member of the cooperative, occupied the stand claiming he purchased it from Likukula. The defendant entered into an agreement with Margaret Likukula (Salijeni's daughter, who was not a cooperative member) in September 2000 to pay arrear contributions. He made payments in Likukula's name and constructed buildings on the stand without approval from the plaintiff or the City. The plaintiff gave the defendant written notice to vacate on 17 August 2003, which he acknowledged but ignored. The defendant resisted eviction claiming ownership based on his alleged purchase and construction of buildings on the property.

• Whether the plaintiff is the lawful owner of Stand No. 4356, Tongogara Avenue, Dzivarasekwa 2
• Whether the defendant has any lawful right, claim or counterclaim over the property
• Whether Likukula had authority to sell or dispose of the stand to the defendant
• Whether the defendant's construction of buildings on the stand conferred any rights of occupation or compensation
• Whether the pendency of previous litigation (HC 9734/03) precluded the plaintiff from instituting the present action

1. The defendant and all those claiming rights of occupation through him shall vacate Stand No. 4356, Tongogara Avenue, Dzivarasekwa 2, Harare, within 10 days of service of the order, failing which the Deputy Sheriff is directed and authorized to evict them. 2. The defendant shall pay costs of suit on a legal practitioner and client scale.

A member of a housing cooperative who does not hold individual title to a stand has no authority to sell or dispose of that stand to a third party in contravention of the cooperative's constitution. Where a cooperative purchases stands collectively and will only acquire title deeds upon full development, the cooperative remains the owner with rights to possession and use. Unauthorized occupation of cooperative property, even where accompanied by construction of buildings without proper approval, does not confer any rights of occupation or compensation against the cooperative. A power of attorney authorizing an agent to deal with a member's cooperative affairs does not confer personal rights of occupation on the agent. Payment of contributions in a member's name does not establish independent rights of ownership or occupation for the payer.

The court noted that the defendant's rights, if any, are confined to a possible claim for restitution from Likukula and his family in respect of the buildings constructed and payments made. The court observed that the authenticity and validity of the power of attorney dated 17 August 2005 were questionable as it purported to have been executed well after Likukula's resignation from the cooperative on 14 September 2003. The court also commented on the defendant's conduct as "plainly perverse" in justifying the award of punitive costs on a legal practitioner and client scale.

This case clarifies important principles regarding cooperative housing societies in Zimbabwe, particularly: (1) the limitations on individual members' rights to dispose of cooperative property before title deeds are issued; (2) the protection of cooperative ownership against unauthorized occupation and purported sales by members; (3) that unauthorized construction on cooperative property does not confer rights of occupation or compensation against the cooperative; and (4) that agents acting under power of attorney do not acquire personal rights of occupation merely by virtue of their agency. The case also demonstrates the court's willingness to award punitive costs where a defendant's conduct in resisting eviction is found to be perverse or unreasonable.