The
applicant approached this court seeking an order in the following
terms:-
“IT
IS HEREBY ORDERED THAT:-
(a)
The 1st
and 3rd
Respondents be immediately and forthwith evicted from Lot 1 of Argyle
Park held in terms of an endorsement made in terms of section 16B of
the Constitution on Title Deed number 1038/63 dated 6 August 1963
situated in the District of Bindura in Mashonaland Central Province.
(b)
1st
to 3rd
Respondents jointly and severally with one paying and the other to be
absolved pays costs of suit on attorney and client scale.”
A
reading of the draft order will show that there is a typographical
error in respect of paragraph 1 which neither the court nor the
litigants legal practitioners picked up. It is clear from the papers
that the applicant seeks the eviction of all three (3) respondents
and not the first and third respondents. This is confirmed by
paragraph 2 where he seeks costs from all the respondents. Moreover,
the case against the second respondent was fully ventilated before
me. I will therefore proceed to make a determination in respect of
the second respondent in respect of the relief being sought by the
applicant in paragraph 1.
In
paragraph 6 of his founding affidavit, the applicant states the
following:-
“6.
This is an application for a declaratory order in respect of my
lawful right as the
person lawfully entitled to occupy and conduct farming activities at
Lot 1 of Argyle Park held in terms of an endorsement made in terms of
section 16B of the Constitution on Title Deed number 1038/63 dated 6
August 1963 situated in the District of Bindura in Mashonaland
Central Province. The consequential relief of an eviction order
against 1st
to 3rd
Respondent and all other unlawful occupiers is also being sought in
this application.”
As
can be seen from the draft order, the applicant is only seeking for
the eviction of the first to third respondents. No Declaratory Order
is being sought.
This
issue was raised by the respondents in their opposition of the
application.
The
applicant does not relate to this in his answering affidavit.
At
the hearing of the matter, counsel for the applicant
sought
to apply for the amendment of the draft order to incorporate the
issue of the decleratur. It was opposed on the basis that the issue
was raised in the first to third respondent's opposing papers. The
applicant did not deal with this in its answering papers. It was
further submitted that the amendment would seriously prejudice the
first to third respondents in their case. The first to third
respondents prepared their case on the papers which related to a
different order. The applicant did not give the respondents notice to
make the application.
Counsel
for the applicant later withdrew the application to amend the draft
order after conceding that the answering papers did not relate to
that point despite it being mentioned in the opposing papers.
The
applicant's basis for seeking the eviction of the respondents can
be seen from paragraphs 7 to 8. In paragraph 7, he outlines the
position of the law relating to occupation of State land. He states
that it can only be occupied or used by people who have been given
authority in the form of an offer letter, permit or lease. He is in
possession of lawful authority in the lease agreement in respect of
the property.
In
paragraph 8, he avers that he has explored all diplomatic efforts and
amicable ways in a bid to take over the property from the
respondents. These efforts have been abused by the respondents.
In
paragraph 9, he states:
“Respondents
have no right to be in occupation of the piece of land which they are
occupying.”
He
concludes his founding affidavit by averring that the respondents are
in open defiance of the law and cannot seek the audience of the court
to present any argument.
In
their opposition, the respondents make the point that the applicant
deliberately concealed pertinent facts known to him from the court.
These facts can be summarised as follows:
(i)
That the respondents have lawful authority in the form of offer
letters issued to then by the 4th
respondent in 2003 to occupy Subdivision 3 and 4, Subdivision 2 and
Subdivision 5 of Argyle Park.
(ii)
That they have been in occupation of their respective pieces of land
as described in their offer letters since 2003 and that they have
been co-existing with the applicant whose farm shares boundaries with
the respondents. They attached the map which confirms this position.
(iii)
That the applicant has, on numerous occasions, attempted to illegally
expropriate communal State land near the farm. The respondents have
sought administrative remedies against the applicant's patently
illegal conduct. They attached various correspondence addressed to
various administrative authorities constituting complaints by the
respondents against the applicant.
(iv)
That the applicant obtained his lease based on a forged map which
purportedly extends the boundaries of his farms into the farm of the
respondents and the communal State land.
The
respondents also make the point that there are material disputes of
fact which cannot be determined on the papers. These relate to the
boundaries of the applicant's farm. The respondents aver that this
dispute has been alive since 2003. The nature, extent and seriousness
of the dispute makes it impossible for the court to properly
discharge its functions to determine the matter without hearing oral
evidence from all the parties including a physical inspection of the
farm.
What
is emerging from the above, which the applicant had conveniently not
disclosed to the court, is that all the parties were settled through
offer letters at the same time in 2003.
They
were given maps which clearly defined each party's boundaries.
Subsequent to that, the Surveyor General came up with another map
which is different from the original one. Using that map, the
applicant applied for and was granted a 99 year lease. The new map
appropriates parts of land already allocated to the respondents.
There
are two maps. One was attached by the applicant and the other by the
respondents.
Although
the respondents are correct regarding the issues of material disputes
of facts, my view is that I can adopt a robust approach and determine
the matter on the papers based on the summation that I made in this
paragraph….,.
Going
to the merits of the matter, in my view, the issue for determination
is:-
What
happens where a party, in lawful occupation of land, is approached by
another also purporting to have lawful authority to encroach onto
land already alienated to him?
The
above issue has already been dealt with by this court in Florence
Sigudu v Minister of Lands Rural Settlement N.O. and Anor
HH11-13; Tendayi
Mberi v Simon Nyabadza and Ors
HH241-13.
In
both matters, the courts make reference to the remarks of CHIDYAUSIKU
CJ in Commercial
Farmers Union & Ors v Minister of Lands and Rural Resettlement &
Ors
SC31-10…, where he stressed on the duty of the courts to assist the
holders of offer letters, permits and leases….,.
There
was no appearance for the fourth respondent on the day of hearing.
However, their Notice of Opposition, in the last paragraph, the
fourth respondent confirms the position taken by the court in
Commercial
Farmers Union & Ors v Minister of Lands and Rural Resettlement &
Ors
SC31-10. He stated:-
“The
holder of an offer letter or 99 year lease has the right to the
undisturbed use, occupation and possession of the land and
infrastructure which falls within their boundaries as prescribed
either by a map approved by the Acquiring Authority or a survey
diagram approved by the Surveys General with the letter taking
precedence.”
In
his Heads of Arguments, the fourth respondent states that it is
common cause that the applicant and the first to third respondents
all have a right to occupy land that was issued by the fourth
respondent. However, the bone of contention is on the boundaries of
the said pieces of land.
The
fourth respondent is confirming the position adopted by the first to
third respondents.
Land
has been allocated to them through their offer letters. The fourth
respondent cannot abolish such rights without the due process of the
law or the consent of the respondent. Granting the applicant the
relief that he seeks is tantamount to alienating the rights conferred
on the first to third respondents by lawful authority without the due
process of the law being followed by the fourth respondent.
Counsel
for the applicant, in his reply to the submissions by counsel for the
first to third respondents conceded that due process of the law
should be followed if the fourth respondent intends to appropriate
parts of the first to third respondents' right to their pieces of
land.
In
my view, the concession was properly made.
The
first to third respondents right to occupy their pieces of land, as
per their offer letters, has not been lawfully terminated and still
subsists. They cannot be evicted from the land that the fourth
respondent appropriated to the applicant through the new map without
due process of the law being followed….,.
In
view of the above finding, I will make the following order;
1.
The application is dismissed.
