HARARE – The High Court has reopened a property battle involving incacerated businessman Frank Buyanga’s Hamilton Property Holdings, ruling that the company should be allowed to challenge a default judgement that stripped it of ownership of a disputed Hurungwe property, saying the case raises serious allegations of fraud that can only be resolved through a full trial.

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Property Holdings Limited and conveyancing clerk Martin Murimambeva condonation for filing their application late, rescinded a default judgment granted in October 2024, and lifted the bar preventing them from defending the lawsuit brought by Monoliser Investments (Pvt) Ltd.

The ruling effectively restores Hamilton’s opportunity to defend its ownership of the property after an earlier judgment had cancelled its title deed and ordered the land to 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 stressed that the dispute involved “irreconcilable disputes of fact” which could not be resolved on court papers alone.

“There are irreconcilable disputes of fact which cannot be resolved on the papers,” the judge 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 centres on Lot 1 of Mvagazi in Hurungwe, which Hamilton says it bought from Monoliser Investments in June 2009 for US$30,000.

According to Hamilton, the purchase price was paid in full on the day the sale agreement was signed before transfer was completed later that year. However, the company says Monoliser never surrendered vacant possession of the land, prompting eviction proceedings in 2022.

While those proceedings were still pending, Monoliser successfully obtained a default judgment in October 2024 cancelling Hamilton’s title deed after the company failed to enter an appearance to defend.

Hamilton argued that it had not been properly served with the summons because Buyanga, who signed the original sale agreement on the company’s behalf, has been imprisoned in South Africa since November 2022. The company said that delayed instructions to its lawyers, resulting in its rescission application being filed about two months outside the prescribed period.

Musithu accepted that explanation.

“The explanation was plausible and bona fide,” the judge said.

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

The court also found the delay was “not too inordinate” and said the applicants acted once they became aware of the default judgment.

Monoliser insists no genuine sale ever took place, arguing the US$30,000 advanced by Hamilton was a loan rather than payment for the property.

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

The company also argued that Hamilton’s application lacked merit because the purported agreement referred to an US$80,000 purchase price while Hamilton’s court papers cited US$30,000.

But Musithu said those contradictions reinforced the need for a full trial rather than 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,” the judge said.

The court further noted that allegations of fraud are serious and cannot simply be accepted without testing evidence through oral testimony.

“Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property,” Justice Musithu said, quoting established legal authority.

He added that refusing rescission would permanently deny Hamilton 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 judge found 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,” he ruled.

Musithu consequently set aside the October 2024 default judgment, lifted the bar against Hamilton and Murimambeva, and ordered them to file their appearance to defend within five days.

The substantive ownership dispute over the Hurungwe property will now proceed to a full hearing before the High Court, where evidence relating to the alleged sale, loan agreement and fraud allegations will be tested. Costs of the rescission application will be determined together with the outcome of the main case.