THE High Court in Bulawayo has dismissed a bid to force the transfer of a Kwekwe property based on a flawed 2001 sale agreement and ordered the seller to pay US$35 000 in compensation for unjust enrichment.
The case, heard before Justice Mpokiseng Dube, involved Phillip Hove, executor of the late Bernard Timothy Hove’s estate, who sued Rita Hwata, both personally and as executrix of the late Douglas Hwata’s estate, along with the Registrar of Deeds.
At the centre of the dispute was Stand No 2408 Mbizo Township, also known as House No 408 Section 12, which was allegedly sold in April 2001 to Bernard Hove.
The applicant maintained that the full purchase price was paid at the time of the agreement and that his estate and beneficiaries had occupied the property continuously for more than 20 years without effecting transfer.
He sought an order compelling Hwata to sign transfer documents or, alternatively, pay damages of US$35 000, the current value of a comparable property.
Hwata opposed the claim, arguing that the agreement was invalid from inception.
She contended that at the time of signing, she had not yet been formally appointed executrix of Douglas Hwata’s estate and that the mandatory consent of the Master of the High Court, required under section 120 of the Administration of Estates Act, was never obtained.
Justice Dube ruled that while prescription did not extinguish the claim in these circumstances, the agreement itself was void.
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Justice Dube held that equity demanded compensation despite the contract’s invalidity.
The court accordingly dismissed the claim for specific performance and declared the 2001 agreement null and void.
But it ordered Rita Hwata, in both her personal and fiduciary capacities, to pay US$35 000 as compensation for unjust enrichment within 90 days.
Failure to comply, the court ruled, would entitle the applicant’s estate to retain occupation of the property until payment is made.
Costs were awarded against the first respondent.
