The parties herein are engaged in various wrangles in the Magistrates Court and the High Court. The wrangles have seen the parties file complaints of alleged criminal activities against each other.In this appeal, the dispute relates to immovable property.On 2 April 2014, the appellant caused summons to be issued out ...
The parties herein are engaged in various wrangles in the Magistrates Court and the High Court. The wrangles have seen the parties file complaints of alleged criminal activities against each other.
In this appeal, the dispute relates to immovable property.
On 2 April 2014, the appellant caused summons to be issued out of the High Court wherein it sought the eviction of the respondents, who are husband and wife, from the immovable property described as 69 Glenara Avenue, Highlands, Harare. The appellant averred therein that it was the registered owner to the property and that the respondents were in occupation of the same. The appellant alleged that their occupation was without its consent.
The respondents opposed the claim for their eviction.
They filed an exception on 14 May 2014. This was followed up with a special plea filed on 16 May 20104.
In the exception, the respondents challenged the appellant's claim of ownership in the immovable property described above. The same defence was raised in the special plea.
On 27 June 2014, the respondents filed a plea on the merits.
The substance of their defence was to challenge the appellant's claim to ownership of the property in question. They alleged that the registration of title was marred by fraud. They denied that the appellant had a legal and enforceable right to claim their eviction from the property in question.
On 20 November 2015, the parties jointly filed a special case with the registrar of the High Court.
A hearing for the determination of the Special Case was convened before a judge on 3 February 2017.
The Special Case was not heard or determined.
The respondents filed a chamber application for directions, which was heard on 22 February 2017.
On 29 November 2017, the court issued a judgment in which it ordered as follows:
“1. Case Number HC2741/14 shall proceed to hearing as a stated case, subject to the directions given in paras 2 to 7 of this order.
2. The applicants be and are hereby granted leave to lead evidence at the hearing of the stated case to deal with facts relevant to the central issue of the existence or otherwise of valid title for the purposes of the action of rei vindicatio.
3. The applicants shall have the duty to begin.
4. The respondent shall, if it so wishes, be entitled to lead evidence in rebuttal.
5. The respondent shall, if it elects to lead evidence in rebuttal, file a detailed statement of the evidence intended to be led, the witnesses to be called, and a bound and paginated bundle of documents, if any, upon which reliance will be placed. This paragraph shall be complied with at least five clear court days prior to the set down date of the special case.
6. The parties shall address the court on the factual and legal issues involved as provided for by the rules and practice of this court relating to closing submissions at the close of an action.
7. No order as to costs.”
The appellant was aggrieved by the grant of the order aforementioned, and, with the leave of the High Court, has noted an appeal on the following grounds:
“1. The court a quo erred in not coming to the conclusion that the only application for directions made was one made orally and a fortiori invalidly made and stood to be dismissed on that basis.
2. The court a quo erred in coming to the conclusion that a stated case could have its character changed pursuant to the application for directions, however made, and so erred in failing to consider the true nature of the written application belatedly placed before it.
3. The court a quo erred further in coming to the conclusion that any cause existed for respondents to depart from the stated case and so erred in concluding that it had a discretion over the matter.
4. The court a quo erred in directing that the trial proceeds in terms of a course which is unavailable at law and is inconsistent with the nature of a stated case.
5. The court a quo erred at any rate in concluding that there was a dispute of fact and that the respondents had raised a defence worth interrogating in a trial cause.”
ISSUES FOR DETERMINATION
Although the appellant has set out five grounds, only three issues arise;
(i) First, whether or not an oral application for directions was made and considered by the court;
(ii) Secondly, whether or not the court ought to have declined to hear the chamber application as not being properly before it; and
(iii) Last, whether the court a quo misdirected itself in granting the order for directions which was in direct contradiction of the Stated Case.
I will proceed to consider each of the issues ad seriatim.
DID THE COURT A QUO HAVE BEFORE IT AN ORAL APPLICATION FOR DIRECTIONS?
Both in his written and oral submissions, Mr Mpofu, for the appellant, argued that Mr Uriri, for the respondents, had, before the court a quo, moved an oral application for directions on the challenges on the Stated Case, as framed, and the need to call evidence.
He referred us to the record of proceedings on what transpired.
Mr Uriri does not argue that an oral application was not made. He suggested that there was no such application as the court a quo was dis-inclined to hear an oral application.
In her judgment, written prior to the noting of this appeal, the learned judge remarked as follows:
“At the trial, Mr. Mpofu commenced making submissions on the merits of the matter when Mr. Uriri interjected arguing that there is no agreement over the matter proceeding as a stated case. He submitted that the plea and special case places the title in issue and that the court cannot turn a blind eye to the fact that one of the essential elements of the rei vindicatio is in issue. He urged the court to disregard the stated case and allow the parties to call witnesses to clarify the issue of ownership of the property in issue. Mr. Mpofu vigorously opposed the proposal to lead evidence arguing that the parties are bound by the stated case which constitutes pleadings. Mr. Uriri requested the court to give directions on how the matter should proceed. The court declined to entertain an oral application for directions and later acceded to another request by applicants counsel to file a formal written application seeking directions on the manner the matter was to proceed. The chamber application is opposed.”
I have carefully perused the record of proceedings.
Mr Uriri did address the court on what he referred to as “an application for directions.” It was made orally but did not seem to have much by way of form. It sought the leading of evidence from witnesses on the issue of the title to the property. The court pointed to the Rules and indicated that an application for directions must be made in writing. The court declined to make a ruling on what was purported to be an application.
Mr Mpofu was not asked to respond to the oral application.
In our jurisdiction, litigation is adversarial, meaning that each party must prove his or her case.
The system requires that every person be heard in the protection of the party's rights or interests.
This is a common law right that has seen expression in our Constitution, both as it pertains to civil litigation and criminal trials.
The record does not show that the appellant was called upon to address the court on the so-called oral application.
Instead of calling on the appellant's counsel to respond, the court referred to the Rules and indicated that the Rules required that an application for directions be made in writing. It enquired of the respondents counsel if he was inclined to do so. The rest is history.
Undoubtedly, the court was correct.
The Rules require that such application be in writing. The Rules provide, in relevant part:
“151 Application for directions after pleadings closed: notice to opposite party
(1) In any action, after pleadings are closed, or by leave of a judge, after appearance has been entered, either party may make a chamber application for directions in respect of any interlocutory matter on which a decision may be required.
(2)…,.
152 Matters to be stated in the notice
(1) The party applying for directions, shall, in his affidavit, state the matters in respect of which he intends to ask for directions, and such matters shall, so far as is necessary and practicable, include, generally, the proceedings to be taken in the action and the costs of the application, and more particularly the following: pleadings, amendments of pleadings, particulars, special pleas and exceptions, admissions, removal of trial, the hearing of arguments on points of law, the hearing separately of one or more of the issues, discovery, inspection of documents, inspection of movable and immovable property, commissions, examination of witnesses, place, and date of trial.
(2)…,.
153 Opposite party may also apply for directions
(1) The party to whom notice of an application is given shall also, as far as is practicable, apply at the hearing of the application for any directions which he may desire in respect of the matters specified in Rule 152.
(2) Such party, if he intends to apply for any directions, shall, before the hearing, give notice to the other party or parties to the action of the matters in respect of which he intends to ask for directions.
(3)…,.
154 Order on hearing of application
Upon the hearing of the application, the judge shall, as far as practicable, make such order as may be just as to any matters in respect of which directions were asked.”
Given the nature of the contentious issues raised by both counsel before the court a quo as to their respective differences in the context of the Stated Case, the learned judge could not have adverted to the oral application and achieved a measure of justice.
Although the fact of title being in the appellant's name was admitted, there was an issue as to the legality of that title, with an allegation of fraud attaching to such registration.
The main issue for determination by the court was whether or not ownership of the immovable property was in dispute.
This has to be considered against a statement on the agreed facts to the effect that the defendants primary defence to the rei vindicatio was an allegation that the plaintiff's ownership of the property was tainted with fraud and irregularity, which the plaintiff disputed and believed to be irrelevant in the determination of the matter.
In addition to the above, the respondents had not placed before the learned judge a quo a draft order spelling out the nature of the relief sought.
I conclude, that, the learned judge's assertion, that she declined to hear the oral application, is borne out by the record.
WHETHER THE COURT A QUO SHOULD HAVE DECLINED TO HEAR THE WRITTEN CHAMBER APPLICATION
I have found that the court declined to hear the oral application. Indeed, Mr Mpofu did not suggest that he made any submissions before the judge concerning the purported application. The judge did not make any ruling on the substance of the application to justify a finding by this court that there was an oral application before the court which it determined on the merits.
The written chamber application was therefore properly before the court.
It is also pertinent to note that the appellant responded to the written application.
In the opposing affidavit, a statement is made to the effect that the respondents had made an incompetent application for directions and that the said application was contrary to the Rules. This was the view of the learned judge a quo and she rightly refused to hear the oral application.
The first ground of appeal is without merit and is accordingly dismissed.
