NASHCRYSTAL MOTORS (PRIVATE) LIMITED v TOTAL ZIMBABWE (PRIVATE) LIMITED and OTHERS (48 of 2025) [2025] ZWMTHC 48 (8 August 2025)

1 HCMTC 27/18 REF CASE NO. HMT 46/21 SC 324/21 SC 81/24 HCMTC 52/25 HCMTCJ 45/25 HCMTCJ 48/25 NASHCRYSTAL MOTORS (PRIVATE) LIMITED versus TOTAL ZIMBABWE (PRIVATE) LIMITED and B. H DRURY and DRAWCARD ENTERPRISES (PRIVATE LIMITED HIGH COURT OF ZIMBABWE MUZENDA J MUTARE, 6 and 8 August 2025 MUZENDA J: Plaintiff and first defendant entered into a lease agreement of a filling station at No. 17 Aerodrome Road, Mutare between 17 May 1999 and 30 April 1999. Subsequent renewals of this lease were effected until 29 July 2009 when plaintiff wrote to the first defendant’s agent offering to purchase the property for a sum of USD$80 000. On 21 January 2009 first defendant’s agent wrote back to plaintiff’s director speaking of final copies of the agreement of sale being ready for signing on condition plaintiff would have effected payments of the purchase price. Plaintiff did not pay. In its letters to the first defendant, plaintiff was having financial challenges which ultimately frustrated first defendant. On 13 February 2009, first defendant gave plaintiff an ultimatum for plaintiff to pay the whole purchase price within seven (7) days so as to finish the business transaction, plaintiff could not meet the deadline. On 27 November 2009 plaintiff was advised via an email that the business arrangement had been cancelled due to non-payment and on 13 October 2010 first defendant informed plaintiff that it was holding USD$80 000 in its lawyers’ Trust Account for refund. First defendant authorised its lawyers to refund the purchase price to plaintiff’s directors. Plaintiff rejected the refund and demanded specific performance. At the same period of 2009, third defendant purchased the property and fully paid for it. In 2015, third defendant informed plaintiff about the purchase. In 2017, third defendant acquired a title deed over the property. In 2018 plaintiff approached the High Court claiming specific performance and the following alternative claims as contained in its declaration: HCMTC 27/18 REF CASE NO. HMT 46/21 SC 324/21 SC 81/24 HCMTC 52/25 HCMTCJ 45/25 HCMTCJ 48/25 “2 (a) $80 000 being reimbursement of a paid purchase price. (b) $100 000 being additional amount of money needed to purchase other premises of same value of extent. (c) $43 667 being costs of improvements done on the property in question. (d) Interest on (a) and (c) from the date of issue of summons to date of full and final payment. (e) As against first to third defendants, the one paying the other to be absolved, costs of suit.” First and third defendants filed their pleas denying liability. First defendant alluded to entering into a business arrangement with plaintiff where an agreement of sale would materialise after plaintiff had met its obligation of fully paying the purchase price of USD$80 000. According to first defendant, plaintiff defaulted and the business arrangement collapsed and to first defendant, it refunded the money paid by plaintiff well after the arrangement collapsed in 2009 and plaintiff rejected the refund but to first defendant, it is waiting for plaintiff to indicate as to when the funds could be released and into which account. On the claim for damages in the sum of $100.000, first defendant’s defence is that that claim is too remote and lacks detail. The same applied to the claim of USD 43 667 and prays that both claims be dismissed with costs. Third defendant did not see the legal basis for plaintiff to claim $43 667 for improvements and added it has no obligation towards plaintiff. To third defendant, plaintiff has been using its property from 2009 to date without paying rentals. Third defendant initially claimed US$104 000 arrear rentals but subsequently abandoned that claim. However, after having purchased the property third defendant prays that plaintiff and all those claiming occupation through it be evicted from No. 17 Aerodrome Road, Mutare and that plaintiff pay costs. After all pleadings were closed, the matter went to trial. I heard all parties’ submissions and granted specific performance in favour of the plaintiff. The matter scaled to the Supreme Court under Case No. SC 324/21 and under its judgment presided over by a panel of three judges a judgment under SC 81/24 over-turned my judgement and ordered me to determine plaintiff’s alternative claims and third defendant’s counter-claim. Plaintiff filed a constitutional application which it subsequently withdrew, returned to this court and under HCMTC 52/25 applied for an amendment of its pleadings which I dismissed with costs. I HCMTC 27/18 REF CASE NO. HMT 46/21 SC 324/21 SC 81/24 HCMTC 52/25 HCMTCJ 45/25 HCMTCJ 48/25 believe that I then must abide by the Supreme Court order to determine the issues contained in its judgment based on the record. The issues for determination are as follows: 1. Whether plaintiff should be refunded $80 000? 2. Whether plaintiff’s claim of $100 000 damages should succeed? 3. Whether plaintiff’s claim for $43 667 improvements should be granted? 4. Whether plaintiff should be granted an order for interest in respect of claims under (1) and (3). 5. Whether plaintiff should be evicted from No. 17 Aerodrome Road, Mutare? 6. Issue of costs. REFUND OF $80 000 Most facts adduced by all sides are common cause. First defendant in its papers conceded that plaintiff is entitled to a refund of the $80 000 paid in lieu of an arrangement which later collapsed. A perusal of documents improperly filed by counsel for defendants thought to convince the court to determine whether the refund should be affected by the currency regimes that occurred after 2019 are to me not applicable. First defendant in its pleadings filed of record and in its own closing submissions did not move this court to consider the aspect of the currency on the refund. Plaintiff transferred $80 000 United States Dollars to first defendant’s external offshore account and that same amount was deposited into first defendant’s lawyer’s trust account and that is the same amount that first defendant confirms is ready for collection by plaintiff. The court did not hear from the first defendant that that refund had been reduced to some other currency, if it had been affected then that ought to have been pleaded. First defendant must refund to the plaintiff the $80 000 Unites States paid to it and held by its lawyers. On the question of interest on the $80 000, it is not denied by plaintiff that it rejected the refund when it was paid to it. Where a party to an arrangement defaults payment of the purchase price within a stipulated time, and the innocent party tenders refund and such a defaulter rejects the refund, he or she cannot be heard to claim interest. He or she has HCMTC 27/18 REF CASE NO. HMT 46/21 SC 324/21 SC 81/24 HCMTC 52/25 HCMTCJ 45/25 HCMTCJ 48/25 forfeited his or her right to make use of the money which could have accrued a lot of both economic and financial value to the holder based on time value of money, that is a dollar today is more valued than a dollar tomorrow. The refund of US$80 000 should be paid free of interest. WHETHER PLAINTIFF’S CLAIM OF $100 000 DAMAGES SHOULD SUCCEED? This claim was annexed to plaintiff’s claim for specific performance, that is in the event that cancellation of the business arrangement was upheld by the court then first defendant and second defendant should be penalized for the unfulfilled contract and enable the plaintiff to acquire a replacement property. As is apparent from the pleadings filed of record, plaintiff breached the contract by failing to pay the proposed purchase price on the stipulated period. In other words plaintiff authored the breach and it cannot seek to benefit from its own breach. Plaintiff simply plucked a figure from nowhere and buoyed on it to claim damages. The onus is on the one who claims to prove the cause of action for such a claim as well as the substance why such a figure can be granted. How was the figure of $100 000 arrived at by the plaintiff? During its testimony nothing meaningful was laid out to justify this alternative claim, no report from property practitioners was adduced, no comparison was made and produced as to know the estimated market expectations to guide the court. No pleadings are supported by both oral and documentary evidence, it is a call from a top of mountain claiming for relief without a valid basis and root. Plaintiff failed to prove this claim and it is hereby dismissed. WHETHER PLAINTIFF’S CLAIM FOR $43 667 FOR IMPROVEMENTS SHOULD SUCCEED? Plaintiff claimed that when it thought that it had acquired No. 17 Aerodrome Road, it effected improvements to the property to make it presentable and user friendly. Plaintiff went on to discover a “schedule” of such improvements. No other documents were produced in form of procurement receipts for materials, labour invoices or contracts. It is not clear who prepared the schedule, whether it is an accountant or auditor and there is no evaluator’s report as to how much monetary value was increased by such improvements and the economic HCMTC 27/18 REF CASE NO. HMT 46/21 SC 324/21 SC 81/24 HCMTC 52/25 HCMTCJ 45/25 HCMTCJ 48/25 effect on the property’s market value and as to who benefited, second defendant or third defendant and by how much. All these details are reposed on the plaintiff to prove on a balance of probabilities to convince the court. On the other hand, it is not disputed by the plaintiff that from 2009 it has been using the building without paying rentals and even after knowing that third defendant has bought the property in 2015, further even after losing the appeal in the Supreme Court, the plaintiff did not approach third defendant to negotiate rent. For a total of more than 15 years plaintiff is the one who should be sued for unjustified enrichment by third defendant. The impacts of prolonged civil suits on the economy are but disastrous and huge and a country cannot develop. Third defendant invested its capital to make profit and not to literally camp at the courts for 15 years fighting for ownership. In any case plaintiff by this time should have recouped its investments on improvements. Besides the failure by plaintiff to prove the amount of $43 667 it has no moral basis to claim this amount. Accordingly, this claim ought to fail. The same fate visits plaintiff’s claim for interest on that sum. WHETHER PLAINTIFF SHOULD BE EVICTED FROM THIRD DEFENDANT’S PREMISES? After the decision of the Supreme Court on prescription and confirmation of the agreement of sale between second defendant and third defendant, then well spiced by the acquisition of title by third defendant, I see no legal basis for denying third defendant the relief it seeks. Third defendant acquired the property and paid cash for it, it is entitled to free entry and operate its business. The plaintiff did not manage to establish any plausible legal basis why it should not be evicted. Third defendant’s counter claim succeeds with costs. As a result, the following order is returned: (a) Plaintiff’s claim for refund of US$80 000 is granted with no order as to interest and costs as against the first and second defendants. (b) Plaintiff’s claims for $100 000 and $43 667 be and are hereby dismissed. (c) Third defendant’s counter claim against plaintiff succeeds, plaintiff and all those claiming occupation through it are ordered to vacate No. 17 Aerodrome, Mutare HCMTC 27/18 REF CASE NO. HMT 46/21 SC 324/21 SC 81/24 HCMTC 52/25 HCMTCJ 45/25 HCMTCJ 48/25 upon the service of this order on them and plaintiff to pay third defendant costs of suit.