MUBAIWA (In his capacity as the Trustee of Kudendaishe Trust) v DAVID KATOMBO and OTHERS (31 of 2025) [2025] ZWMTHC 31 (13 June 2025)

1 HCMTJ 31-25 HCMTC 109/24 PERCIVAL MUBAIWA (In his capacity as the Trustee of Kudendaishe Trust) versus DAVID KATOMBO And SIMBARASHE KATOMBO And TSITSI ROSEMARY KATOMBO And CLARA KATOMBO And PETER MAKOMBE And TINOTENDA T. MATSIKIRA (In his capacity as the Executor of the Estate Late Moud Katombo) And MASTER OF HIGH COURT N. O HIGH COURT OF ZIMBABWE SIZIBA J MUTARE, 12th and 13th June 2025 CIVIL TRIAL Mr C Ndlovu, for the plaintiff First defendant in default Mr J. T. Fusire, for the second defendant Third defendant in person Mr J. Zviuya for the fourth and sixth defendants Fifth defendant in person No appearance for the seventh defendant SIZIBA J: 1. The bogus selling of residential stands by fraudsters in this country continues to be a thorn in the flesh to our criminal and civil justice system. Time and again, our courts continue to be inundated with cases involving litigants who have been duped of their hard - earned cash in an attempt to secure homes for their families. Greater caution is always required when one is buying property that is owned by a deceased estate and in HCMTJ 31-25 HCMTC 109/24 particular there is need for the purchaser to ensure that he or she is paying money to a person or institution which is well vested with the authority to sell such property. The recently promulgated Administration of Estates Amendment Act No.3 of 2024 which repealed the previous provisions of section 120, among other things and introduced new safeguards under the new section 120 of the Act to ensure more checks and balances before a property that is owned by an estate can be sold was a timely intervention. The plaintiff in this case is one of those unfortunate victims who was defrauded a sum of US$37 000 in an attempt to purchase a residential stand. THE FACTS 2. The plaintiff is a Trustee in Kudendaishe Trust and he filed a resolution as testimony that he has the authority to represent the said Trust. When the summons were issued on 11 April 2024, he sought damages of US$37 000 against the first to the fourth defendants whom he accused to have connived to misrepresent to him that the first defendant had authority as an Executor of the estate late Moud Katombo (hereinafter called the deceased) to sell him stand 5507 Chaminuka Road, Greenside, Mutare measuring 1,583 square meters (hereinafter called the stand) when such was false and fraudulent. His case against the fifth respondent was that he had been grossly negligent in failing to pick out such fraud as he represented him to facilitate the sale. None of the defendants admitted the allegations. 3. Most facts are common cause. All the lawyers involved in this case must be commended for being quick to pick out relevant issues and uncontested facts. This was not all. The lawyers also weighed up the evidence and this led to plaintiff withdrawing his case against the third, fourth and fifth defendants and the claim was withdrawn against these defendants by consent with no order as to costs. This is exactly what legal practitioners should do in all cases when preparing for a hearing and even at the earliest stages from the inception of the case to save costs and time. As a result of this attitude by the lawyers, this trial which would have needlessly occupied this court for more than three days was just completed within four hours and this includes closing submissions by counsel which were brief and to the point. HCMTJ 31-25 HCMTC 109/24 4. Save for the fifth and seventh defendants, the rest of the defendants are related. The fourth defendant is the mother of the deceased. She is also the mother of the first and third defendants. The sixth defendant is one of the surviving children of the deceased who is the Executor of the estate. The second defendant is a child of the third defendant. The first defendant did not defend the action and he was still in default even at the trial. A default judgment is being sought against him as it had not been sought prior to the trial. This is the proper procedure because granting a default judgment against one defendant at an earlier stage when the other defendants have entered appearance to defend the action may present practical difficulties at the later stage especially in a case where damages are being sought as it may lead to an embarrassing situation at the conclusion of the trial if, for example, the damages are assessed to be lesser or more than what has already been awarded by the court against such defaulting litigant especially when the defendants are being sued jointly and severally one paying the other to be absolved. This may lead to unequal awards and contradictory findings on assessment because it may not follow that the same judicial officer who granted the default judgment will be the trial judge or magistrate at the subsequent stage of the case. 5. The evidence that was uncontested in terms of the minutes of the pre – trial conference held by all the parties on the 2nd of October 2024 was read into the record as follows: (a) Moud Katombo passed on the 7th of April 2010 and she was survived by two children who were then minors being Tinotenda Tendekai Michael Matsikira (born 23 May 1992) and Shamiso Mitchell Matsikira (born 13 December 1993). (b) The deceased purchased and registered the undeveloped stand in her names. (c) In November 2010, the deceased’s estate was registered with the Additional Assistant Master at Mutare Magistrates’ Court under DRMT253/10. HCMTJ 31-25 HCMTC 109/24 (d) The estate was not properly wound up, however, the first and fourth defendants participated in the registration of such estate and the 6th defendant was appointed Executor of the estate. (e) In September 2021, the first defendant registered the deceased’s estate with the Master of High Court in Mutare under DRMRE 651/21. (f) The registration of the deceased’s estate was calculated and designed to misrepresent and mislead the Master of High Court and the ordinary public. (g) Subsequently, the deceased’s estate being represented by the first defendant entered into an agreement of sale of the stand with the plaintiff and the full purchase price of US$37 000 was paid to the first defendant representing the deceased’s estate. (h) Subsequent to occupation of the stand by the plaintiff, he was informed that the purported agreement of sale that the Trust had entered into with the plaintiff was fraudulent. (i) The plaintiff was evicted from the stand by the sixth defendant and he lost US$37 000. ANALYSIS OF THE CONTESTED EVIDENCE 6. The plaintiff testified in his case and also called Mr Makombe to corroborate his evidence. The second defendant gave his testimony as well but he did not call any witnesses. The plaintiff’s sworn testimony was clear, straight forward and easy to follow. He was unlucky to come across the stand being advertised for sale by some agents. He made an appointment to meet those agents at the very stand in question. Having taken interest in the stand, he requested to see the owner of the stand. The agents phoned and the first defendant pitched up accompanied by the second defendant. The negotiations went ahead between the plaintiff and the first defendant in HCMTJ 31-25 HCMTC 109/24 the presence of the second defendant. The sale transaction was perfected at Mr Makombe’s office where the paperwork was done and the purchase price being also paid up by the plaintiff to the first defendant in the presence of the second defendant. Mr Makombe did his best to verify the authenticity of the documents at the Master’s office but the fraud was too deep to unravel by both Mr Makombe and the Master’s office as it could not be detected by the Master’s office that the estate had been registered prior in 2010 with the Additional Assistant Master. It was even much harder for Mr Makombe to have suspected anything since the documents which emanated from the Master’s office were authentic and that office even confirmed such when he made a phone call. Surely no legal practitioner could have detected this fraud or done better than what Mr Makombe did. In any event, lawyers are not generally trained or equipped to detect crime even though they are smart enough and well equipped to interpret and analyse legal documents. 7. The plaintiff then narrated the sad account of how he was evicted and told that he should never again set foot at the stand by the rightful representative of the estate despite having paid such a huge amount of the purchase price. All the documents in the plaintiff’s bundle as well as in the fourth and sixth defendants’ bundles which were tendered by consent as exhibits into the record were supportive of the plaintiff’s case. 8. On the other hand, the second defendant’s case was a failure. Under cross examination, he failed to explain why he had attended at the Master’s office and seconded the appointment of first defendant as the purported Executor of the estate. He could not account why his grandmother the fourth defendant as well as his own mother the third defendant and the children of the deceased who are the rightful heirs to that estate were excluded from that edict meeting. His attempt to deny the fact that it was himself and the first defendant who had misled the Master and misrepresented to her that the deceased was single with no children was a demonstration of his dishonesty before this court. Most strikingly, the second defendant proved to be a liar when he denied that he had attended along with the first defendant both at the stand to meet the plaintiff and at Mr Makombe’s office. This was surprising as the testimony of the HCMTJ 31-25 HCMTC 109/24 plaintiff and Mr Makombe in this regard had not been contested. Such misleading account by the second defendant must be rejected. 9. I am persuaded by Mr Ndlovu’s submission that the participation of the second defendant and his accompaniment of the first defendant to the Master’s office, at the stand and at Mr Makombe’s office was an endorsement of the first defendant’s fraudulent conduct. The irresistible conclusion is that their intentions and motives were the same. By his presence and participation, the second defendant gave credence to the first defendant’s fraudulent conduct and some appearance of legitimacy to the transaction as if it was a family decision to sell the deceased estate’s stand and this enticed and induced the plaintiff to lose the sum of US$37 000 unsuspectingly. 10. At no stage during these fraudulent transactions did the second defendant make a protest or disclose the truth to the relevant offices where they were attended to at that time. He deliberately and conveniently withheld crucial and decisive information even to his own mother and his grandmother. Whether he gained any benefit from the fraud or not, he was an accomplice to it in aiding the first defendant to misrepresent facts to the plaintiff’s financial detriment. At the material time, he had already completed both his ordinary level as well as a National Certificate in Boiler Making at the Polytechnic. Such an educated and smart person cannot be said to have been unaware of the exigencies of any of his actions. 11. The only issue for trial was whether the defendants connived with the first defendant to defraud the plaintiff in the sum claimed. What has been proven on a balance of probabilities is that indeed the second defendant connived with the first defendant to defraud and cause prejudice to the plaintiff in the claimed sum. This is a proper case for punitive costs to be awarded against these defendants who have further put the plaintiff out of pocket in having to sue them without owning up and reimbursing him his money. 12. In view of the above considerations, it is ordered as follows: HCMTJ 31-25 HCMTC 109/24 (a) The first and second defendants be and are hereby ordered to pay plaintiff the sum of US$37 000 or its Zig equivalent at the applicable bank rate as at the date of payment jointly and severally one paying the other to be absolved. (b) The first and second defendants shall pay interest to the plaintiff on the above sum of money from the date of judgment to the date of full payment at the prescribed rate jointly and severally one paying the other to be absolved. (c) The first and second defendants shall bear the plaintiff’s costs of suit at attorney and client scale jointly and severally one paying the other to be absolved. Gonese & Ndlovu, plaintiff’s legal practitioners Mupindu Legal Practitioners, second defendant’s legal practitioners Bere Brothers, fourth and sixth defendants’ legal practitioners Makombe & Associates, fifth defendant’s legal practitioners