LEATHOUT Investment has successfully challenged the eviction of businessman Future Chirango Muvirimi and his wife Petronella from a posh Waterfalls property in a legal dispute which started a decade ago.
Leathout had issued summons against Muvirimi and his wife on April 2, 2014 seeking their ejectment from a certain Piece of land measuring 1,3797 hectares.
Leathout Investment are the registered owners of the property after it was transferred from Muvirimi and his wife who were the previous owners of the property.
According to the court documents Leathout Investment had pleaded that as the owner of the property it was entitled to recover possession thereof from Muvirimis who are in possession of its property without its consent.
The Muvirimis who are defendants filed their appearance to defend and subsequently an exception, the exception was later withdrawn on 16 May 2014.
On 27 June 2024 the defendants filed their plea and they denied that Leathout Investment is the valid owner of the property.
They further stated that Leathout Investment ownership in question has been challenged by the defendants in case number HC 5960/13, and that the ownership dispute is pending. It was also contended that Leathout, together with the other defendants cited under HC 5960/13, unlawfully and fraudulently transferred ownership of the property into the Leathout’s name without the consent.
The Muvirimis alleged the property was fraudulently transferred from their names into Leathout Investment name by businessman Simon Rudland.
However, Advocate Thabani Mpofu who is representing Leathout Investment argued that the allegations that the special power of attorney given to Rudland was undated and subsequently dated, that the special power of attorney was given as security and that the Muvirimis did not appear before ZIMRA officials personally to obtain the tax certificate used to transfer the title do not establish fraud as alleged.
Mpofu submitted that the requirements for fraud were not addressed and the special power of attorney empowered Simon Rudland to sell the property, to conclude an agreement of sale of the property and receive payment and to appear before the Registrar of Deeds and pass transfer saying the defendants gave him those powers.
The lawyer said the Muvirimis could not give him those powers, then turn around and claim they did not intend to transfer the property saying that it was undated was not proved.
Mpofu said once the defendants conceded the extstence of a special power of attorney, as they did, the grounds of Fraud alleged collapsed.
He submitted that the court cannot ignore the relationship between the parties as recorded from the written and signed acknowledgement of debt whose identity was not put in issue.
He said the Muvirimis accepted that they still owe, and the evidence shows that they could not allege fraud.
Mpofu said the Muvirimis has no right to remain in occupation of the property without the Leathout’s authority.
High Court judge Justice Regis Dembure who heard the matter said the Muvirimis failed to prove the essential elements of their case or the defence of fraud.
“The law is settled on the requirements or essential elements which must be pleaded and proved in a claim for fraud for the plaintiff’s title to be considered tainted with fraud or illegality and therefore void ab initio. The defendants, as the ones asserting fraud, had the onus of proving the facts so asserted. It is trite that he who alleges must prove. In other words, he who makes an affirmative assertion, whether the plaintiff or defendant, bears the onus to establish the allegation.
“The defendants’ cursory attempt to plead fraud was manifestly fatal in any event, the claim of fraud was not established at all Their evidence failed to establish any of the elements of fraud or that the deed of transfer registered in Leathout’s name was tainted with fraud even in their submissions, there was no attempt to relate the requirements to the facts or the evidence they led in fact, the defendants’ response was full of references to documents and matters which were never part of the evidence adduced by the defendants and the witness from ZIMRA.
“The court can only rely on the evidence adduced to determine whether a prima facie case was established,” the judge said.
The judge further ruled that there was no evidence of any fraudulent documents allegedly tendered to ZIMRA as well as Registrar of Deeds for the registration of the title in Leathout’s name.
“There was no confirmation from ZIMRA that any fraudulent documents were used to obtain the CGT certificate. The witness from ZIMRA did not confirm the extstence of any fraudulent documents allegedly used, nor did she comment on the actual documents used, as she had no file for the transaction.
“The evidence of the second defendant (Muvirimi’s wife) was also poor and insufficient to establish a valid defence to the remedy of ret vindicatio. She repeated the allegation that the special power of attomey they gave to Simon Rudland was undated Again, as with the first defendant, no evidence was adduced to substantiate this assertion” the judge said.
Justice Dembure said the defendants conduct amounts to an abuse of court process and ought to be penalised In the premises.
“People must learn to live with the consequences of their own conscious decisions and actions. Allegations of fraud are serious and are not merely assumed They must be strictly proved. The defendants’ case stood on nothing after the matter in which they challenged the plaintiff’s title was withdrawn by the consent of the parties under HC 5960/13. The withdrawal of the matter was fatal to their case.
“Without a proper pleading to base the defence, their fate was sealed.
“The court accordingly enters judgment for the ejectment of the defendant from the plaintiff’s property in this case.
“Accordingly, it is hereby ordered that the defendant and all those claiming occupation through it shall vacate certain piece of land situated in the district of Salisbury called stand 8 Malvern Township of Waterfall Villa of Waterfall, measuring 1,3797 hectares, held under Deed of Transfer number 6022/2010,” the judge ruled.