A Harare man is battling to regain control of his property in Harare’s plush suburb of Borrowdale after it was sold to a different person by two sisters that had sold the land to him.
Richard Mudhanda bought the four hectare of piece of land in Borrowdale from Jennifer Nan Brooker and Adriane Staley Pearce Emmerson.
The sisters sold the same property to a third party claiming that Mudhanda took too long to change the title deeds.
Mudhanda bought two stands in Colne Valley, Borrowdale from Brooker and two more from Emmerson in 2002 which he registered in the name of his company, Humworthy Investments and Prototel Enterprises in 2009.
He was, however, shocked when his title to the land was cancelled in 2014 after Brooker and Emmerson claimed Mudhanda’a claim to the land had expired because he had failed follow the prescribed procedures.
They claimed that Mudhanda did not change the title within three years, according to the law and was also supposed to have transferred it to his name first before registering it in his company’s name.
Mudhanda then instituted summons to compel them to register the title in his name, but instead, the sisters filed special pleas about prescription.
They insisted that Mudhanda’s claim to the land expired between 2002 and 2009 and that there were some pleas they wanted to make before consenting to such an order.
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The matter was heard by Hugh Court judge Justice Esther Muremba in 2015 who declared that that the issue of prescriptions was not applicable because the agreement of sale did not give a time limit regarding the change of the title.
“The special plea of prescription raised by the first defended (Brooker) is dismissed and the first defended is to pay costs,” Muremba rule on July 22, 2015.
The two appealed to the Supreme Court, but the case was sent back to the High Court to be determined on merits.
The case was then handled by former judge Justice Webster Chinamora and Justice Mary Zimba-Dube who referred the matter back to Muremba. Muremba dismissed the application for special pleas.
Top lawyer Nick March Wilsmer from Wintertons Legal Practitiors, who represented Brooker and Emmerson, has since been reported to the Law Society of Zimbabwe by Mudhanda.
The two sisters withdrew the case after Muremba heard the matter as the said they wanted the matter to be decided on merit in cases 10410/14 and 10411/14, where Mudhanda was seeking the transfer of the titles to his name.
The matter was supposed to go to pre-trial conference and Justice Tawanda Chitapi had asked Mudhanda to submit some documents, but his lawyer, Nicholas Chikono, did not advise his client about the order to file prerequisite documents for the matter to be heard on merits.
This forced Brooker and Emmerson to file an application for dismissal for want of prosecution, which was heard by Justice Siyabona Musithu on September 12, 2021.
Musithu dismissed Mudhanda’s case for failing to follow procedure, but not on merit.
“The factors to be considered are therefore different to the extent that if I am to consider for instance, the prospects of success on the merits, and I am convinced that the respondent’s claims are meritorious, then it allows that I cannot dismiss the claims as directed in the order by Chitapi. J,” Justice Musithu’s order dated 19 September 2022 read.
“Yet the gravamen of the application before me is the failure to comply with the order.”
Wilsmer facilitated the sale of the properties to Bendigo Investment through Patrick Paul Kennan’s real estate company, Kennan Properties.
Bendigo bought stand 296 on March 7, 2023 for US$290 000 and property transferred on April 13 2023.
Stand 285 was bought on May 2, 2023, by Godwin Nhamachena for US$300 000 on May 2, 2023 but was finally transferred on December 1, 2023 after Mudhanda filed an application for condonation and deed cancellation.
This forced Mudhanda to apply for the cancellation of Bendigo’s deed and registration into his name in November 2023.
He also filed for condonation for late filing of documents for the pre-trial conference to have the matter heard on merit.
Before filing, Mudhanda met Bendigo directors Ian Kevin Horsley and Daniel Steve Capsopulous on May 4, 2023, who in the company of former Zanu PF youth leader Tendai Chirau, who also claimed to be one of the directors.
Mudhanda told them that the property belongs to him, but Bendigo proceeded to put up structures.
The application for deeds cancellation was heard before Wamambo on March 20, 2024 and judgment was reserved.
Mudhanda’s condonation application was dismissed for approaching the wrong court.
In July this year, Mudhanda filed declarators to enforce his agreements.
Brooker and Emmerson are resident in Australia and have never returned home for the raging court cases.
