Court revives Buyanga property fight

The High Court has reopened a property dispute involving jailed businessman Frank Buyanga's company, Hamilton Property Holdings, ruling that allegations of fraud surrounding the ownership of a disputed Hurungwe property can only be resolved through a full trial.

In a judgment delivered by Justice Siyabona Musithu, the court granted Hamilton Property Holdings Limited and conveyancing clerk Martin Murimambeva condonation for the late filing of their application, rescinded a default judgment issued in October 2024 and lifted a bar preventing them from defending legal proceedings brought by Monoliser Investments (Pvt) Ltd.

The decision restores Hamilton's right to contest ownership of the property after an earlier judgment cancelled its title deed and ordered that ownership revert to Monoliser Investments.

"The cancellation of registered title is an extraordinary remedy," Justice Musithu said.

"It affects real rights in immovable property and should ordinarily occur after all affected parties have been heard."

The judge found that the matter involved significant factual disputes that could not be resolved on affidavit evidence alone.

"There are irreconcilable disputes of fact which cannot be resolved on the papers," Justice Musithu ruled.

"The allegations are also criminal in nature and likely to attract heavy criminal sanctions if proven... Such allegations require the adducing of viva voce evidence."

The dispute concerns Lot 1 of Mvagazi in Hurungwe, which Hamilton maintains it purchased from Monoliser Investments in June 2009 for US$30,000.

According to Hamilton, the purchase price was paid in full on the day the agreement was signed and transfer of ownership was completed later that year.

The company, however, alleges that Monoliser never surrendered vacant possession of the property, prompting Hamilton to institute eviction proceedings in 2022.

While those proceedings were pending, Monoliser successfully obtained a default judgment in October 2024 after Hamilton failed to enter an appearance to defend the matter.

Hamilton argued that it had not been properly served because Buyanga, who signed the original agreement on the company's behalf, has been imprisoned in South Africa since November 2022.

The company said this delayed its ability to instruct lawyers, resulting in its rescission application being filed approximately two months outside the prescribed time limit.

Justice Musithu accepted the explanation.

"The explanation was plausible and bona fide," he said.

"It was not disputed that Frank Buyanga... was in prison at the time that proceedings were initiated."

The court also found that the delay was not excessive and that the applicants acted promptly once they became aware of the default judgment.

Monoliser Investments disputes Hamilton's version of events, arguing that no genuine sale ever took place.

Instead, the company contends that the US$30,000 advanced by Hamilton was a loan rather than payment for the property.

It further alleges that Hamilton fraudulently transferred ownership of the property using a fabricated agreement of sale and an unauthorised representative.

Monoliser also challenged Hamilton's application by pointing to inconsistencies in the purchase price, arguing that the purported sale agreement referred to US$80,000 while Hamilton's court papers cited US$30,000.

Justice Musithu ruled that these conflicting versions strengthened the case for a full trial rather than a summary determination.

"The nature of the agreement between the parties in the context of the loan that the first respondent admitted having received from the first applicant requires further interrogation," he said.

The judge further emphasised that allegations of fraud could not simply be accepted without being tested through oral evidence.

"Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property," Justice Musithu said, citing established legal principles.

He found that refusing rescission would unfairly deprive Hamilton of an opportunity to defend a judgment that cancelled its registered title without hearing its case.

"Such an outcome is grievous," the judge said.

"If condonation and rescission are refused, the applicants will suffer substantial prejudice."

By contrast, the court found that Monoliser would suffer no comparable prejudice if the matter proceeded to trial.

"The dispute will be fully ventilated at the trial... The interests of justice weigh heavily in favour of granting the relief sought," Justice Musithu ruled.

The court consequently set aside the October 2024 default judgment, lifted the bar against Hamilton Property Holdings and Murimambeva, and directed them to file their appearance to defend within five days.

The substantive dispute over ownership of the Hurungwe property will now proceed to a full High Court trial, where evidence relating to the alleged sale, the disputed loan arrangement and the fraud allegations will be tested through oral testimony.