The appellant and the respondent had a dispute over land
which they took to Headman Ganje for determination.
Headman Ganje presided over the same dispute twice giving
two different judgments. He initially found in favour of the appellant, but,
subsequently, found in favour of the respondent.
The respondent was aggrieved by Headman Ganje's second
judgment, and appealed against it to Chief Saunyama's Court. Chief Saunyama
found in favour of the appellant. The respondent then appealed to the
Magistrates Court, which set aside Chief Saunyama's decision.
The appellant then appealed to this court.
The appellant raised several grounds of appeal, which will
be considered if the point of law raised on appeal does not resolve the appeal.
The appellant's counsel raised the issue of functus officio in her heads of argument.
It is trite that a point of law can be raised at any stage
- even on appeal.
See the cases of Trustees, Leonard Cheshire Homes Zimbabwe
Central Trust v Chite & Ors 2010 (1) ZLR 631; Muchakata v Nertherburn Mine
1996 (1) ZLR 153 (S)…,; Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1997 (1)
ZLR 569 (S); Zesa v Bopoto 1997 (1) ZLR 126 (S).
It has therefore been properly raised and should be
determined before the other grounds of appeal can be considered. If it succeeds
it has the effect of resolving the appeal without considering the other grounds
of appeal.
Counsel for the appellant submitted that the first judgment
of Headman Ganje remains extant, so the Headman was functus officio when he
presided over the same dispute for the second time.
It is common cause that the Headman presided over the same
dispute twice.
The law does not ordinarily allow a judicial officer to
preside over the same case more than once. The functus officio principle simply
means after hearing a case for the first time, the judicial officer will have
completed his functions over that case and cannot hear it again. This rule is
of universal application and ensures that justice is seen to be done. Allowing
a judicial officer to preside over the same case more than once opens him to
giving conflicting decisions - as happened in this case.
Counsel for the respondent submitted that section 20(1) of
the Customary Law and Local Courts Act [Chapter 7:05] provides against applying
common law principles in customary law cases. It provides as follows;
“20(1) Subject to this Act, the procedure and law of evidence
in local courts shall be regulated by customary law and not by the general law
of Zimbabwe, and the proceedings in such courts shall be conducted in as simple
and informal a manner as is reasonably possible and as, in the opinion of the
person presiding over the court, seems best fitted to do substantial justice.”
The intention of the Legislature is clearly to
bar the application of general law principles of procedure and evidence from
customary law proceedings.
Counsel for the appellant, while not disputing
the clear meaning of section 20 of the Customary Law and Local Courts Act [Chapter
7:05], took the court back into the provisions of the
Customary Law and Local Courts Act, in section 23(1) and 24(1), which
she submitted introduced the principle of functus officio into customary law
proceedings. Sections 23(1) and 24(1) of the Customary Law and Local Courts Act
[Chapter 7:05] provide as follows;
“23(1) Any person who is dissatisfied with any
decision of a primary court may, in the time and manner prescribed, appeal
against such decision to the Community Court within whose area of jurisdiction
the primary court is situated.
24(1) Any person who is dissatisfied with any
decision of a Community Court may, in the time and manner prescribed, appeal
against such decision to a magistrate for the province within which the Community
Court is situated.”
Sections 23(1) and
24(1) of
the Customary Law and Local Courts Act [Chapter 7:05] clearly provides for an appeal to the next higher
court if a party is dissatisfied by a decision of the trial court, at primary court
and Community Court levels. This means these courts are not allowed to hear the
same case again after determining it for the first time. They, to use the
general law principle, become functus officio after determining a customary law
case.
The facts of this case establish that the appeal against
the primary court's second decision has scaled the hierarchy of the courts
right up to this court without being shot down for being a nullity. Each court labored,
in vain, on this nullity on which nothing can depend. It remains a nullity and
must now be correctly defined. It should never have been given a status while
the real judgment of the primary court remained unnoticed. A nullity does not
gain status because it has erroneously been worked on by esteemed courts. It
has never been, and will never, be a valid decision of the primary court. If
any party is aggrieved by the first and valid decision of the primary court it
must start from there and not this nullity.
In view of the above,
I find that the appellant's appeal is against a nullity and must therefore be
upheld. The respondent shall pay the appellants costs of suit.
