Property dispute takes new twist

A local company, Bariadie Investments (Pvt) Ltd, which is still trying to gain ownership of a Mount Pleasant property despite having lost in the High Court, has now attacked the judge who heard the case in a complaint to the Judicial Service Commission.

Justice Tawanda Chitapi found that businessman Mr Tendai Mashamhanda was the legal owner of the 4 377 square metre property worth over US$230 000 having bought it in 2019 through an auction after it had been attached from Harare lawyer Mr Puwayi Chiutsi following a wrangle with his former client Mr Elliot Rodgers over US$70 000 of trust money.

Justice Chitapi accepted that Mr Mashamhanda bought it through an estate agent and took all the necessary precautions to ensure that the title was unencumbered and secure.

Bariadie has made applications through the High Court on several occasions, saying it had bought the same property in a 2017 auction through the Sheriff of the High Court and asserts that the Sheriff of Zimbabwe once instructed lawyer Mr Tendai Biti to process the transfer of the property into Bariadie Investments' name.

 The company has also approached the Supreme Court over the same matter to appeal against the High Court judgment.

According to a recent letter to the JSC from Bariadie, they now want Justice Chitapi to be investigated over the matter after raising various allegations.

In an interview, JSC secretary Mr Walter Chikwanha confirmed having received such a report.

"Yes, we have received it and it has been referred to the Chief Justice," he said.

In 2019, the High Court dismissed with costs, an application by Bariadie Investments (Pvt) Ltd, to have a deed of transfer for the Mt Pleasant property, which was purchased by Mr Mashamhanda, cancelled.

 Bariadie Investments had wanted the property to be transferred by the Registrar of Deeds into its name, arguing it had already been sold to them.

In his ruling, High Court Judge Justice Tawanda Chitapi dismissed the application, saying it had no legal merit.

Mr Mashamhanda, in a lengthy opposing affidavit, had chronicled how he came to buy the property in question.

He had not connived with Mr Chiutsi to buy the property, he said.

 Instead, he bought it through an estate agent and paid transfer fees and registration cost and all taxes like capital gains tax.

Before purchasing the property and taking transfer, Mr Mashamhanda investigated whether or not there were any encumbrances and found none.

"Indeed, the legal practitioner who conveyanced the property did not find any caveats or other encumbrances noted against (Mr Chiutsi's) title deed to the property," he said. "The second respondent (Mr Mashamhanda) averred that he was an innocent purchaser who took all reasonable steps as could be expected of any astute and reasonable would be purchaser to investigate that the property was free of impediments to purchase and transfer."

Although Bariadie in the heads of argument, had also submitted that a caveat had been registered against the title deed, Justice Chitapi noted that he who avers must of course prove.

"I have already noted that the so-called caveat existed in name only and in the words of the applicant and counsel," he said. "It was just not proved to have been noted as l have already observed."

Justice Chitapi said Mr Mashamhanda took transfer of the property in the absence of a caveat having been noted against the property and if such caveat had been noted, he would have been alerted to its existence.