A HARARE businessman Marvellous Shumba has been ordered to urgently transfer the title of a Kadoma farm into Nathan Madanhi’s name after he lost a High Court ownership battle which started in October last year.
Shumba was directed to transfer title of plot 243 of Halfway Farm in Kadoma immediately.
Madanhi had sued Shumba over the cancellation of an agreement of sale and repossession of the farm which he resold to a third party.
In his founding affidavit, Madanhi submitted that the two parties got into an agreement by virtue of a signed deed of settlement.
“The plaintiff paid in full the purchase price and was ready for transfer, levy paid in full and all the requisite transfer fees.
“The defendant later on and before transferring title, purportedly cancelled the agreement of sale and repossessed the plot,” submitted Madanhi.
“The plaintiff and other litigants sued defendants…for the setting aside of the letters of cancellation and repossession and asked for specific performance. Parties entered into a deed of settlement and consent order which set aside the letters of cancellation and repossession of the plots. In addition, plaintiff was asked to pay arrears by defendant amounting to US$7 809 which he already paid half of the same for plot 202.
“The defendant knowingly asked the plaintiff to pay the arrears for plot 202 when he already sold the plot to a third party and now asking plaintiff to get another plot. Plaintiff is abiding by the deed of settlement and consent order…and wants title to be transferred to him. Despite several calls, the defendant has refused, denied and delayed to do so and has asked the plaintiff to select another plot.”
Shumba, however, averred that Madanhi was in breach of contract leading to the cancellation of the agreement culminating in him repossessing the plot.
“The property in question was properly repossessed after the plaintiff breached the contract that was entered into by the parties.
“In particular, there was the failure to pay levies on time such that the defendant terminated the contract by cancelling. This was done after the plaintiff had been given ample time to rectify the breach on time to no avail. It is thus denied that the property was due for transfer as alleged by the plaintiff,” Shumba said.
“The deed of settlement signed by the parties…stipulates what has to be done in such a case as this. This is why an offer was made with regards to another stand. The claim is thus contrary to the deed of settlement signed by the parties. It cannot be allowed to stand.
“In light of the number of plots in question, the defendant was not aware of this order. Transfer is no longer possible for the defendant to abide by the consent order. Transfer is no longer tenable in the circumstances. This is more so considering the fact that the interests of the third part have to be considered.”
But Madanhi argued that he had paid the purchase price in full and the transfer of the title was now due.
“There is no breach in respect of levies whatsoever since they are supposed to be paid in sixty months that is five years from the date of purchase and the said sixty months are yet to be over. Defendant was supposed to transfer title upon full purchase price being paid and not on levies being paid in full.
“Despite numerous requests by the plaintiff for another plot, the defendant is denying the same. The defendant gave an offer and the plaintiff chose the one he wanted but the defendant is refusing to give him. This is clearly defying a court order,” Madanhi submitted.
