Following a successful appeal to this Court against a judgment of the High Court ordering the eviction of the appellant from House Number 484 Jakaranda Drive, Victoria Falls (the house) when it had not heard the merits of the dispute, but only points in limine, this Court handed down judgment ...
Following a successful appeal to this Court against a judgment of the High Court ordering the eviction of the appellant from House Number 484 Jakaranda Drive, Victoria Falls (the house) when it had not heard the merits of the dispute, but only points in limine, this Court handed down judgment which reads in part as follows:
“1….,.
2. The appeal succeeds with each party bearing its own costs.
3. The judgment of the court a quo on the merits is set aside.
4. The matter be and is hereby remitted to the court a quo for determination of the merits before a different judge.”…,.
After hearing the application in terms of the judgment of this Court, the High Court (the court a quo) handed down judgment on 17 March 2022 directing the eviction of the appellant and all those claiming occupation through him from the house. The appellant was also ordered to pay the costs of suit.
This appeal is against that judgment.
THE FACTS
The respondent, a local authority established in terms of the Urban Councils Act [Chapter 24:03], is the owner of the house which it holds in terms of a Deed of Grant. It employed the appellant as its Director of Housing and Community Services and allocated the house to him as an employment benefit.
The appellant's employment was terminated on 31 March 2017 following disciplinary proceedings instituted against him for misconduct.
When called upon to vacate the house, as a consequence of his loss of employment, the appellant resisted.
The respondent then brought an application for a rei vindicatio seeking the appellant's eviction from the house together with all those claiming occupation through him.
The appellant opposed the application raising certain points in limine, namely, that the Town Clerk, who had deposed to the founding affidavit, had no authority to do so.
In addition, the appellant took the point that the matter was lis pendens given that the respondent had also instituted eviction proceedings in the Magistrates Court. The latter proceedings were withdrawn.
After dismissing these points in limine the court a quo proceeded, without hearing submissions on the merits, to determine the merits.
As already stated, on appeal, this court upheld the appeal, set aside the court a quo's judgment and remitted the matter to it for a determination of the merits by a different judge.
Therefore, when the court a quo re-engaged the matter, its mandate was to determine the merits.
The issue before it was whether the appellant was entitled to remain in occupation of the house by dint of some enforceable right he had against the respondent.
PROCEEDINGS BEFORE THE COURT A QUO
Before the court a quo, counsel for the appellant sought to introduce a further point in limine based on the citation of the respondent in the proceedings. It was submitted, that, there was a mis-citation of the respondent as Victoria Falls Municipality which was a non-existent entity. It should have been cited, so it was argued, as Municipality of Victoria Falls.
As a corollary to that, it was submitted, on behalf of the appellant, that, the respondent had failed to prove one of the requirements of a rei vindicatio, namely, ownership of the house. This stemmed from the fact that the Deed of Grant recorded the owner of the house as Municipality of Victoria Falls and not City of Victoria Falls.
Per contra, counsel for the respondent submitted that the judgment of this court was clear that the court a quo was required to engage the matter on the merits and not on preliminary points as urged of it by the appellant. In that regard, so it was argued, the appellant was out of order in raising fresh preliminary points.
The court a quo found, that, the matter had been remitted to it for a specific purpose, namely, a determination of the merits and nothing else. It refused to be drawn to the point in limine as it fell outside the purview of the directions issued by this court.
On the merits, counsel for the respondent submitted that the requirements for the grant of a rei vindicatio, that is, the respondent being the owner of the house which the appellant was occupying without its consent, had been satisfied.
In resisting the application, the appellant submitted that he had a right of retention of the house emanating from the fact that he was appealing the decision to dismiss him from employment and that there existed a compromise arrangement between the parties in terms of which the respondent agreed to let him remain in occupation until he was paid certain sums of money owed to him.
On that aspect, the court a quo found that the fact that the appellant was appealing against the decision to dismiss him did not accord him a right to hold on to the respondent's house.
Regarding the alleged compromise, the court a quo found that no compromise agreement existed between the parties. It took the view that the letter of 19 April 2018, relied upon by the appellant, did not come anywhere near proving the existence of a compromise.
In the court a quo's view, the letter in question only recorded the appellant's own position in the dispute, that he would only vacate the premises upon being paid US$10,000. The letter was not responded to, and, as such, could not tie down the respondent to something it did not agree to.
PROCEEDINGS BEFORE THIS COURT
The appellant was aggrieved by that outcome. He noted an appeal to this court on four grounds, the essence of which is to impugn the court a quo's finding that the requirement of the actio rei vindicatio had been satisfied.
In addition, the appellant also challenged the court a quo's refusal to engage the point in limine he sought to motivate.
Only two issues commend themselves for determination in this appeal. These are:
1. Whether the court a quo erred in refusing to deal with the point in limine relating to the citation of a non-existent entity.
2. Whether the court a quo erred in granting the remedy of an actio rei vindicatio.
At the hearing of the appeal, counsel for the respondent, initially raised two preliminary points which, in his view, were dispositive of the appeal:
(i) The first related to the part of the Notice of Appeal wherein the appellant stated, that, he was appealing against “part of the judgment” of the court a quo. In his view, this rendered the appeal fatally defective in that the appeal was effectively against the whole judgment of the court a quo.
(ii) Secondly, counsel for the respondent sought to impugn the appellant's grounds of appeal numbers 1 and 3 which he said do not meet the requirements of Rule 37(1) of this Court's Rules because they are not clear and concise.
After exchanges with the court, counsel for the respondent abandoned both preliminary points.
For his part, counsel for the appellant also quickly abandoned his reliance on the challenge of the respondent's ownership of the house because it is common cause that the respondent is the owner of the house in question.
Counsel for the appellant motivated the appeal solely on the basis that there exists a compromise agreement in terms of which the appellant has a right of retention until such time that he is paid certain sums of money he believes he is entitled to.
