It
would not be stretching the imagination too far to point out that land is a
basic necessity for both human beings and animals. It is on land that food and
water are derived and shelter is constructed.
The
action before the court is centered on Plot 8, Village 62, Hoyuyu, Mutoko. The
plaintiff brought a claim for eviction of the defendant from the said Plot. The
basis of the eviction claim being that the plaintiff claims to be the owner of
the plot. It is the plaintiff's contention that the Plot was ceded to him in
2007 by his late father, Enerst Chakanetsa Mazarura. He had by way of evidence
an affidavit and general power of attorney. Further, the plaintiff's evidence
was that after getting the cession affidavits he paid subscription fees to the
Rural District Council which culminated in him getting a confirmation Certificate
of Ownership of Plot 8.
The
defendant, on the other hand, presented argument that Plot 8, Village 62,
Hoyuyu, Mutoko, was her piece of land and that at the time of death of the late
Enerst Chakanetsa Mazarura, she was the surviving spouse and that Plot 8,
Village 62, Hoyuyu, Mutoko was the matrimonial home. She got married to the
plaintiff's father when the latter was staying at Plot 5. The plot was acquired
through the Government Land Acquisition Programme and that a directive was
issued that they move to bigger plots leaving the old plot as grazing land and
this was done in respect of all the other resettled villagers. She thus moved
with her husband to Plot 8, Village 62, Hoyuyu, Mutoko - the Plot in issue. She
subsequently acquired a confirmation letter of ownership of the piece of land
from the relevant authority.
Given
this background, the court had to grapple with;
(a)
Whether or not the plaintiff has cession to Plot 8, Village 62, Hoyuyu, Mutoko.
(b)
Whether or not the Plot belonged to the plaintiff thus having a legal basis to
evict the defendant.
c) Whether
or not the non-citing of the allocating authority is fatal to the proceedings.
(d) Whether
or not the eviction case was dismissed on merit by Mutoko Magistrate Court.
The
plaintiff testified on his own behalf and also adduced evidence from three witnesses,
namely, Josiah Nyamhure the Village Head, Lazarus Musara, his uncle, and Nevson
Jemwa a Lands Officer with the Ministry of Lands.
It
will not be necessary to recount word for word what the witness told to court
but it is important to comment on the witnesses' evidence and seek to relate it
to the issues at stake in a bid to come up with a disposition.
Josiah
Nyamhute's evidence was basically to confirm that, as a Village Head, he was
aware the late Enerst Mazarura was allocated Plot 5 under the land resettlement
and that when other villages were moved in line with the scheme he was moved to
Plot 8, and, by then, he was married to the defendant. He indicated that the
late Enerst Mazarura always wanted to have the plot in his son, the plaintiff's,
name although it was not registered in the plaintiff's name.
The
witness' evidence was not of assistance insofar as the central issues for
determination are concerned. He did not know and did not testify on whether or
not the plaintiff had the plot in question ceded. Even his evidence on the
alleged divorce token was not concrete; he only heard the parties wanted the
matter resolved amicably but could not say with certainty there was passing or
exchange of divorce token. It was clear from his evidence he was the Village Head
of the village wherein the Plot in issue is situated.
Lazarus
Musara, an uncle of the plaintiff, confirmed that the late Enerst Chakanetsa
Mazarura moved to Plot 8 together with the defendant after marriage to the
defendant. He recalled in the year 2012 he was sent to deliver “gupuro” token
of 2 rand and some affidavits to the defendant. He left these with Prudence, a
daughter to the defendant.
The
witness's story was not of any assistance in the determination of the issues at
hand. It is not that the witness was not being candid with the court but that
the evidence did not take the matter anywhere. He testified on common cause
aspects that the plaintiff's father was married and staying with Rhoda at the
village. Rhoda, the defendant, claims she did not receive any divorce token and
the witness said he left it with a third party, a child, one Prudence. One
only wonders what custom that is aligned to….,.
After
all that evidence was adduced, the court is still to grapple with the issues
central to the matter. What is at stake is whether or not the plaintiff's
father ceded his Plot 8, Village 62, Hoyuyu, Mutoko to the plaintiff.
The
evidence from the plaintiff and witnesses does not point to the cession as
having been effected. In 2007, the plaintiff instituted proceedings for
eviction of the defendant from the plot; which application was dismissed on
merit and/or for want of jurisdiction since the magistrate's ruling is not
clear cut. Effectively, however, the defendant went back to the matrimonial
home.
In
casu, the plaintiff presented affidavits signed by his
father for purported cession. Clearly, such affidavits tended in court are not
due process of cession, and, in any event, they were not originated from the
relevant authority, Mutoko Rural District Council. The exhibit, annexure A and
B, simply outline but do not prove that indeed the cession was effected. Even
the payment of cession fees as shown in exhibit 2A and 2B do not suffice as
proof that the cession was effected. The last witness in the plaintiff's case,
Mr Nevson Jemwa, clearly pointed out that the cession was not finalised and
that the meeting held on 22 May 2012, exhibit 3 on the plaintiff's bundle, was
a process to commence the cession process. The meeting resolved the Plot should
be ceded to the plaintiff but that does not change the complexion of the status
of the plot in the absence of the cession. It is clear there is no cession
which was effected in 2007 because if that was so the meeting of 22 May 2012
recommending such cession would not have been necessary….,.
Upon
consideration the totality of the evidence before the court it is sticking out
that due process of cession was not effected and that there is no evidence to
show the cedent ceded rights to the cessionary who then signed to confirm
transfer. There is no evidence to show that the relevant authorities, Mutoko
Rural District Council, were engaged in due process of cession to pass title
rights and interest in the land to the plaintiff.
Having
said that due process of cession was not shown to have been effected, it
logically follows that the plaintiff has not been shown to be the owner of Plot
8, Village 62, Hoyuyu, Mutoko.
