Court Dismisses Claim Over Occupied Land Due to De...

Court Dismisses Claim Over Occupied Land Due to Delayed Action

Nyashadzashe Ndoro

Chief Reporter

The High Court has dismissed an application for rei vindicatio, a legal claim for the recovery of property, on the grounds of prescription.

The applicant, Banket Trading Company (Private) Limited, sought to reclaim a piece of land in the Lomagundi district, which had been occupied by the respondent, Chipo Chikwenga, and her late husband since 1995.

The court ruled that the applicant's claim had been time-barred, as it failed to act within the three-year period prescribed by law.

Justice Regis Dembure held that the applicant had been aware of the respondent's occupation of the property without its consent since 1995. This knowledge, the judge explained, constituted sufficient cause of action, which had since expired due to the statutory limitation period.

"It is trite that the defence of prescription has nothing to do with the merits. If successful, it allows a party, even at fault, to retain their ill-gotten gains," the judge stated.

Citing precedent, Justice Dembure referred to the Supreme Court’s ruling in John Conradie Trust and noted:

"Once prescription has run its course, it deprives the aggrieved party of the remedy or relief sought, regardless of whether their claim on the merits is valid. An owner forfeits the right to vindicate their property once prescription is complete, as happened in this case. The nature of the defence is such that it allows a litigant at fault to retain ill-gotten gains."

The respondent successfully argued that the applicant's claim was time-barred, prompting the court to uphold the defence of prescription and dismiss the application with costs.

"Based on the above reasons, I found the applicant’s claim for rei vindicatio to have prescribed by operation of law. It became unnecessary for me to consider the second preliminary issue that there were material disputes of fact incapable of resolution on the papers. Consequently, I upheld the point in limine raised by the respondent and dismissed this application with costs," Justice Dembure said.

The judge also addressed the issue of costs, ruling that no exceptional circumstances warranted punitive costs.

"The costs must follow the cause. During the hearing, Mr. Choga did not insist on punitive costs. While the respondent had prayed for such costs in her opposing affidavit, no exceptional circumstances were presented to justify this. I found no reason to impose costs on a legal practitioner and client scale. Costs on an ordinary scale suffice to meet the justice of this case."