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Fidelis Munyoro-Chief Court Reporter
Harare businessman Mr Tendai Mashamhanda has been granted another chance to seek compensation for improvements made to a Highlands mansion, valued at $1.5 million, which he lost to Bariade Investments (Private) Limited.
The Supreme Court had previously ruled that Mr Mashamhanda acquired the property fraudulently while it was under judicial attachment in September 2017 but while he has lost the house he now wants to be paid out for the improvements he made when he had control.
Bariade objects, but has been told that the court will need to examine the contested facts, rather than just rule the improvements illegal, and so Mr Mashamhanda does get another day in court.
Justice Joel Mambara threw out Bariade’s special plea and exception to Mr Mashamhanda’s claim for compensation, stating that their arguments would be better addressed during the trial. While Bariade had raised valid concerns regarding the legality of Mr Mashamhanda’s improvements, those issues touched on the merits of the case and could not be resolved through a special plea.
Mr Mashamhanda, son of the business mogul Mr Alex Mashamhanda of Mashwede Holdings, bought the Highlands property for US$230 000 from Harare lawyer Puwai Chiutsi and went on to make improvements costing, he says, US$1.5 million. Bariade subsequently bought the property at a valid Sheriff’s sale in circumstances where it had already obtained defective title.
Before his eviction recently, Mr Mashamhanda had been in occupation of the property since 2020.
This time, the parties were back in the High Court in the case involving a special plea and an exception raised by Bariade Investments (Private) Limited, against Mr Mashamhanda, to the claim for compensation for improvements made on a property.
Through its lawyer, Advocate Tafadzwa Mapuranga, Bariade argued that Mr Mashamhanda’s claim was legally incompetent because it arose from improvements made in violation of a court order, thus contravening the doctrine of “dirty hands.”
In his counter-argument, Mr Mashamhanda represented by Professor Lovemore Madhuku contended that Bariade’s special plea and exception were improper and that the matter should proceed to trial.
Bariade’s special plea was based on the illegality of Mr Mashamhanda’s actions, that he made improvements to the property in defiance of a court order under HC 7751/19, which prohibited any further construction on the property.
However, an exception does not contest the facts but asserts that the plaintiff has failed to provide the necessary legal grounds to support their claim.
In this case, Bariade’s exception was premised on the assertion that Mashamhanda, as a mala fide occupier, had no right to claim compensation for improvements made to the property.
It was also the judge’s finding that Bariade’s exception also raised substantive issues that should be determined at trial.
In his ruling, Justice Mambara also agreed with Prof Madhuku that the question of whether Mashamhanda is entitled to compensation under the doctrine of unjust enrichment requires a factual inquiry, which cannot be adequately addressed through an exception.
Mashamhanda is arguing that he made massive developments on the property to the tune of US$1,5 million in a period spanning five years. He unsuccessfully fought the eviction claiming an improvement lien over the developments he effected on the property.
Online Reporter