Musemwa and Ors v Estate, Misheck Tapomwa & Ors (HC 5247 of 2015; HC 5248 of 2015; HC 5626 of 2015; HC 6031 of 2015; HH 136 of 2016) [2016] ZWHHC 136 (14 January 2016)

Musemwa and Ors v Estate, Misheck Tapomwa & Ors (HC 5247 of 2015; HC 5248 of 2015; HC 5626 of 2015; HC 6031 of 2015; HH 136 of 2016) [2016] ZWHHC 136 (14 January 2016)

The third and fourth defendants acted solely as agents for a disclosed principal and were not parties to the contract of sale. No cause of action lies against them for specific performance or reimbursement. Trusts may sue in their own name under the rules, but no valid claim is disclosed against the estate agents.

Citation
[2016] ZWHHC 136
Parties
Plaintiff: Ignatious Musemwa; Plaintiff: The Muvuri Investment Trust; Plaintiff: Bismarck C Mupundu; Plaintiff: Farai Musarurwa; Plaintiff: Adaarewa Henry Mandibaya; Plaintiff: Susan Netsai Matura; Plaintiff: Madenya Family Trust; Plaintiff: William H Samanyandwe; Plaintiff: Gwinya Family Trust; Defendant: Estate Late Mischeck Tapomwa; Defendant: Shingirayi Tapomwa; Defendant: CB Richard Ellis (Pvt) Limited; Defendant: Dawn Properties Limited
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
14 January 2016
Case Number
HC 5247 of 2015 ; HC 5248 of 2015 ; HC 5626 of 2015 ; HC 6031 of 2015 ; HH 136 of 2016
Procedural Posture
Civil / Ruling on Exception
Outcome
exception upheld, claims dismissed against third and fourth defendants
Legal Topics
Locus Standi of Trusts, Liability of Agents, Joinder of Parties, Specific Performance, Restitution
Source Language
English
Contract Law Agency Law Civil Procedure Locus Standi of Trusts Liability of Agents Joinder of Parties Specific Performance Restitution

Case Brief

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Parties

Ignatious Musemwa

Plaintiff

The Muvuri Investment Trust

Plaintiff

Bismarck C Mupundu

Plaintiff

Farai Musarurwa

Plaintiff

Adaarewa Henry Mandibaya

Plaintiff

Susan Netsai Matura

Plaintiff

Madenya Family Trust

Plaintiff

William H Samanyandwe

Plaintiff

Gwinya Family Trust

Plaintiff

Estate Late Mischeck Tapomwa

Defendant

Shingirayi Tapomwa

Defendant

CB Richard Ellis (Pvt) Limited

Defendant

Dawn Properties Limited

Defendant

Procedural Posture

Civil / Ruling on Exception

Legal Issues

  1. 1 Whether a trust has locus standi to sue in its own name under Zimbabwean law
  2. 2 Whether estate agents (third and fourth defendants) can be held liable in contract for acts done as agents
  3. 3 Whether specific performance or reimbursement can be ordered against agents not party to the contract

Ratio Decidendi

The third and fourth defendants acted solely as agents for a disclosed principal and were not parties to the contract of sale. No cause of action lies against them for specific performance or reimbursement. Trusts may sue in their own name under the rules, but no valid claim is disclosed against the estate agents.

Court Disposition

exception upheld, claims dismissed against third and fourth defendants

Orders

  • The third and fourth defendants' exception is upheld.
  • The plaintiffs’ claims against the third and fourth defendants are dismissed.