Tendai Muza v Christina Muwirimi and Fatima Murwisi and Municipality of Chitungwiza

On 18 July 2005, the plaintiff and the first defendant entered into an agreement of sale whereby the plaintiff purchased stand number 14826 Unit 'O' Seke, Chitungwiza for $80 million. The full purchase price was paid in installments by 27 November 2005. The plaintiff took vacant possession on 1 February 2006 and remained in possession. Transfer of the property remained outstanding. On 16 March 2006, the first defendant sold the same property to the second defendant for $500 million through a separate agreement of sale. The property was immediately transferred to the second defendant without the plaintiff's knowledge. The first defendant claimed she cancelled the first sale because her family objected to it being a 'family house', though she also alleged breach by the plaintiff. The plaintiff only discovered the second sale through water bills bearing the second defendant's name. The negotiations for the second sale were hurried and conducted at a third party's house only 300 metres from the property, yet the second defendant never viewed the property before purchasing it and having it transferred within five days.

• Whether the plaintiff was in breach of the contract between him and the first defendant
• Whether the agreement of sale between the plaintiff and the first defendant was validly cancelled
• Whether the second defendant was an innocent third party purchaser without knowledge of the first sale
• In a double sale situation, which purchaser has the superior claim to the property
• What special circumstances, if any, would displace the first purchaser's right to specific performance

1. The plaintiff was declared the lawful owner of stand number 14826 Unit 'O' Seke, Chitungwiza. 2. The third defendant (Municipality of Chitungwiza) was ordered to cancel the cession of rights, title and interest made in favour of the second defendant. 3. The third defendant was ordered to cede rights, title and interest in the property to the plaintiff. 4. The first and second defendants were ordered to pay costs of suit jointly and severally.

In a double sale of immovable property, the first purchaser who has paid the full purchase price and taken possession has the primary right to specific performance in the absence of special circumstances. A second purchaser cannot be considered an innocent third party where, on a balance of probabilities, they had knowledge (actual or constructive) of the prior sale. Knowledge may be inferred from suspicious circumstances including: hurried negotiations avoiding normal inspection; failure to view the property; unusually quick completion and transfer; and subsequent conduct inconsistent with innocent purchase. The fact that the second purchaser paid more money and obtained transfer first does not constitute special circumstances sufficient to displace the first purchaser's right to specific performance where the second purchaser had knowledge of the first sale. A purported cancellation of an agreement of sale is of no effect where the cancelling party alleges breaches that were never communicated to the other party and where the purchaser had in fact fulfilled all obligations under the contract.

The court observed that the second defendant, if she so wished, could proceed to claim damages from the estate of the first defendant. The court noted that the plaintiff had acted reasonably in protecting his interests by taking possession of the property and persistently requesting transfer, and that he was 'duped' by the defendants. The court commented on the suspicious nature of confining negotiations to a third party's house only 300 metres from the property, stating this was the only reasonable way to explain the failure to view the property and indicated that the parties 'knew they were doing something wrong, something whose results the plaintiff would only know when it was too late.' The court also observed that evidence of a purported reimbursement through legal practitioners was 'suspect' particularly as these practitioners were never mentioned in pleadings and took no action to evict the allegedly non-rent paying plaintiff.

This case is significant in Zimbabwean property law as it reinforces the principle that in double sale situations, the first purchaser who has paid the purchase price and taken possession has the superior claim to specific performance, unless special circumstances exist. The case establishes that a second purchaser who has knowledge (actual or constructive) of a prior sale cannot be considered an innocent third party, even if they paid a higher price and obtained transfer first. The judgment emphasizes that courts will examine the conduct and circumstances surrounding the second sale to determine whether the second purchaser had knowledge of the first sale. It also confirms that mere failure to effect immediate transfer does not deprive the first purchaser of their rights where they have fulfilled their contractual obligations and taken possession. The case serves as a warning against collusive conduct in property transactions designed to deprive legitimate purchasers of their rights.