UCHENA
JA: On 7 November 2016 we, after reading
documents filed of record and hearing counsel's submissions upheld the appellant's
appeal and granted the following order:
“1.
The appeal be and is hereby allowed with costs.
2. The judgment of the court a quo is set aside and substituted with
the following:
“The application is dismissed with
costs”.
We
indicated that detailed reasons for granting that order would follow. These are they.
The
appellant (Lifort Toro) is a beneficiary of the Land Reform programme. He was allocated an A2 Farm Subdivision 1 of
Beatrice Central.
The
first respondent Vodage Investments (Pvt) Ltd, is a company registered in terms
of the laws of Zimbabwe. Despite several
suspicious details in the agreement on which it relies, it claims to be a
holder of a lease to buy agreement entered into between it and Manyame Rural
District Council (the second respondent), in respect of the same piece of land
allocated to the appellant.
The
third respondent is the Minister of Lands and Rural Resettlement. He allocated the land in dispute to the
appellant.
The
land in dispute was by Proclamation 3 of 2012 S.I. 115 of 2012 incorporated
into Beatrice Urban area which is administered by the second respondent. By letter dated 10 June 2013, the
third respondent handed over the land in dispute to the Minister of Local
Government, Rural and Urban Development. It is now urban land which cannot be allocated
for agricultural purposes.
It
is common cause that the third respondent conceded that he no longer has
authority over the disputed land. It is obvious
that the appellant will eventually have to leave that piece of land. The third respondent has, in view of the
changed circumstances, offered him another piece of land.
The first respondent issued
summons in the Magistrate's Court for the eviction of the appellant. The appellant entered appearance to defend. The first respondent applied for summary
judgment which the appellant opposed. The appellant's opposition was premised
on the first respondent's lack of locus standi to evict him. He argued that the
first respondent being a lessee who had not taken occupation had no locus
standi to evict him. In determining the
application for summary judgment the magistrate at pp 4 to 5 of his judgment said:
“Based
on that authority, I agree that the applicant does not have the locus standi to evict the second respondent but that it is the acquiring
authority who (sic) does. I therefore feel that the application, for Summary judgment, should not be granted, as
applicant does not have the locus standi
to institute these proceedings”. (emphasis added)
After the tag of incapacity to institute
eviction proceedings had been placed on it, the first respondent made a
subsequent application to the High Court for the eviction of the appellant. The appellant opposed the application on the
basis that the dispute between them was res
judicata, that there were material disputes of fact which could not be
resolved through the application procedure and that the applicant did not have locus standi to institute eviction
proceedings against him.
The
High Court held that the issue of the appellant's eviction by the first
respondent was not res judicata and
that the first respondent had locus
standi to evict the appellant. It granted the first respondent's
application for eviction without determining whether or not there were material
disputes of fact which could not be resolved through the application procedure.
The appellant appealed
against that decision to this court. He
in his grounds of appeal submitted that the court a quo erred in the following respects:
1.
In holding that the issue of his eviction
by the first respondent was not res
judicata.
2.
In holding that the first respondent had locus standi to evict him.
3.
By not determining the issue of there
being material disputes of fact which cannot be resolved through the
application procedure.
I
deal with each ground in turn.
1.
RES JUDICATA
Mrs Mabwe for the appellant submitted, that the Magistrate's decision
that the first respondent did not have locus
standi to evict the appellant extinguished the first respondent's claim to
evict the appellant. She relied on the cases of Nyaguwa v Gwinyayi 1981 ZLR 25 and Chimponda & Anor v Muvami 2007 ZLR (2) 326. Miss Makamure for the first respondent supported
the court a quo's decision that the
Magistrate's decision was “founded purely on adjectival law, regulating the
manner in which the court is to be approached for the determination of the merits
of the matter”. I do not agree.
The tag of incompetence
placed on the first respondent by the Magistrate is definitive and final until
set aside by a competent court. The High
Court had no authority to set it aside as it was not sitting as a review or an
appellate court. In the Nyaguwa case (supra) PITMAN J at p 27 A to C said:
“I
was of the opinion that in this country, each court is a creature of Statute,
and its powers are created and defined by statute. The function of every civil
court is to recognize what it believes to be the rights of the parties before
it. Once a civil court has given such recognition, that recognition must be
accepted by each of the other courts, whatever its relative position in the
hierarchy of courts may be, unless authority to overrule such recognition has
been conferred upon it by statute. If one court were to claim that it has some
inherent power to overrule another court, instead of a power specifically
created by statute, in effect it will be claiming the power to nullify the body
of statute law which specifically relates to the establishment and powers of
each of the civil courts in the country. As no power to overrule the decisions
of magistrate's courts has been vested in the General Division of the High Court,
I considered that this court could not grant the order sought by the petitioner”.
The
High Court, sitting as a court of first instance does not have authority to
disregard or overrule extant decisions of the Magistrate's court. The court a quo should therefore have declined to determine
the already determined issue of the first respondent's locus standi to evict the appellant, while the decision of the
Magistrate remained extant.
The court a quo failed to appreciate that the
first respondent's application was aimed at seeking a re determination of the
first respondent's locus standi to
evict the appellant or the avoidance of the magistrate's determination of that
issue. The failure to appreciate the
nature of the application led to its failure to realise that it had no
authority to overrule the Magistrate's definitive finding that the first
respondent had no locus standi to
evict the appellant. In the case of
Chimponda (supra) MAKARAU JP (as she
then was) at pp 329G to 330 C said:
“The
requirements for the plea of res judicata
are settled. Our law recognizes that once a dispute between the same parties
has been exhausted by a competent court it cannot be brought up for
adjudication again as there is need for finality in litigation. To allow
litigants to plough over the same ground hoping for a different result will
have the effect of introducing uncertainty into court decisions and will bring
the administration of justice into disrepute.
For
the plea to be upheld, the matter must have been finally and definitively dealt
with in the prior proceedings. In other words, the judgment raised in the plea as having determined the matter must
have put to rest the dispute between the parties, by making a finding in law
and / or in fact against one of the parties on the substantive issues before
the court or on the competence of the parties to bring or to defend the
proceedings. The cause of action as between the parties must have been
extinguished by the judgment.
A judgment founded purely in adjectival
law, regulating the manner in which the court is to be approached for the
determination of the merits of the matter does not in my view constitute a
final and definitive judgment in the matter. It appears to me that such a
judgment is merely a simple interlocutory judgment directing the parties on how
to approach the court if they wish to have their dispute resolved.” (emphasis
added)
A determination by the Magistrate
on the competence of the first respondent to institute eviction proceedings
against the appellant is not a finding in adjectival law regulating the manner
in which the court is to be approached for the determination of the merits of
the matter. It is a final and definitive determination barring the first
respondent from instituting proceedings on the same cause of action against the
appellant. Such a finding finally and definitively determines the capacity of a
litigant to institute or defend the same cause of action before the courts.
The court a quo failed to distinguish between the
Magistrate's dismissal of the application for summary judgment, which could be interlocutory,
from the reason for the dismissal which is definitive and finally closes the
door to the first respondent due to legal incompetence to litigate over the
appellant's eviction. The Magistrate's judgment remains extant. The first
respondent could not therefore be entertained by any court on this issue except
on appeal or review against the Magistrate's decision that it had no locus standi to evict the appellant.
2. Whether the first respondent has locus standi to evict the appellant?
The
issue of locus standi was improperly
before the court a quo because it was
res judicata. It had been finally and definitively
determined by the Magistrate's court, and remains so determined until that
decision is upset by a properly constituted review or appellate court. The court a
quo should not have made a determination on that issue. This Court sitting
as an appellate court over the High Court's decision cannot pronounce itself
over a matter which is not properly before it and over which there is an extant
judgment which has not been appealed against. The court a
quo therefore erred when it determined an issue which was res judicata.
3. Whether or not the court a quo erred by not determining whether
or not there were disputes of fact which could not be resolved through the
application procedure?
The purpose of litigation
is for the court to determine disputes placed before it by the parties. The court must therefore give reasons stating
how it resolved all the disputes placed before it, unless the determination of
one or some of the issues clearly renders the determination of one or other
issues unnecessary. The issue of whether or not there were disputes of fact was
critical as to whether or not the respondent had used the correct procedure. It could have established that the application
procedure was inappropriate. That in turn would have left the court a quo with the option of either
dismissing the application or referring it to trial. There would in either of
the two options have been no need to determine the other issues. Therefore the issue of whether or not there
were material disputes of fact should have been determined before the court
could determine other issues. The court a quo therefore erred when it failed to
determine this critical issue. In the
case of Gwaradzimba v C. J. Petron and
Company (Pvt) Ltd SC 12/16 GARWE JA said:
“The
position is well settled that a court must not make a determination on only one
of the issues raised by the parties and say nothing about other equally
important issues raised, “unless the issue so determined can put the whole
matter to rest” - Longman Zimbabwe (Pvt)
Ltd v Midzi & Ors 2008 (1) 198, 203 D (S)
The
position is also settled that where there is a dispute on some question of law
or fact, there must be a judicial decision or determination on the issue in
dispute. Indeed the failure to resolve the dispute or give reasons for a determination
is a misdirection one that vitiates the order given at the end of the trial. Charles Kazingizi v Revesai Dzinoruma HH
106/2006; Muchapondwa v Madake & Ors
2006 (1) ZLR 196 …… D—G 201A (H); GMB v
Muchero 2008 (1) ZLR 216 at 221 C-D (S)”.
I
therefore agree that the court a quo
misdirected itself when it failed to determine the issue of whether or not there
were material disputes of fact.
It
was in view of these findings, that we upheld the appeal and granted the order
set out on page 1 of this judgment.
ZIYAMBI JA: I
agree
BHUNU JA: I
agree
Messers Koto and
Company,
appellant's legal practitioners.
Messers Kantor & Immaman, respondent's legal
practitioners
