MAKARAU
JA:-
This
is a chamber application for condonation for the late filing of an
appeal and extension of time within which to note an appeal in terms
of r 31(3) of the Supreme Court Rules, 1964.
The
facts giving rise to this application are common cause.
On
21 June 2017, the High Court dismissed with costs an application
filed by the applicant, seeking an order declaring that the applicant
was entitled to all benefits deriving from the first respondent's
occupation of a section of a farm known as Bulfield Farm, over which
it had passed a servitude in favour of the first respondent. On 12
July 2017, the applicant duly noted an appeal against the decision.
Whilst it filed the notice of appeal within the prescribed period,
the appellant failed to serve a copy of the notice of appeal on the
Registrar of the High Court within the period, thereby rendering the
notice out of time and fatally defective. The applicant then filed
this application seeking condonation for the late filing of the
notice of appeal.
The
period of delay in serving the Registrar of the High Court with the
notice of appeal was one day. The delay between the date the
applicant became aware of the defect in the notice of appeal and the
filing of the present application is ten months.
In
the draft notice of appeal attached to this application, the
applicant raises one ground of appeal as follows:
“The
court a
quo
erred and misdirected itself at law in finding that the appellant did
not have locus
standi in judico
to institute action seeking the relief it sought against 1st
respondent
arising out of a purported compulsory acquisition of portion of
Bulfield Farm by 2nd
respondent, which portion of Bulfield Farm was the subject of a
notarial deed of servitude registered in favour of the 1st
respondent on 11th
July 1995.”
The
application for condonation and extension of time within which to
note an appeal was not opposed. At the hearing of the matter, counsel
for the first respondent indicated that he was content to have the
application granted as he was confident that he would have his day in
court when the appeal was argued.
Notwithstanding
the consent of the first respondent to the order sought, I am not
persuaded to grant this application.
Condonation
is an indulgence granted when the court is satisfied that there is
good and sufficient cause for condoning the non-compliance with the
Rules. Good and sufficient cause is established by considering
cumulatively, the extent of the delay, the explanation for that delay
and the strength of the applicant's case on appeal, or the
prospects of its success. This is trite.
In
casu,
as stated above, the delay that resulted in the notice of appeal
being out of time was negligible. It was a delay of one day. However,
the delay between the dates when the applicant realised its failure
to serve the notice of appeal on time and the date of this
application, being some ten months, was not only inordinate but was
neither adverted to nor explained in the application. In the
interests of allowing access to justice, I may have been inclined to
overlook the delay if the applicant had some prospects of success on
appeal. It is the absence of any prospect of success on appeal in
this case, that has moved me to deny this application.
The
applicant has raised the ground of appeal that I have set out in full
above. This is not a ground of appeal that can be properly raised in
this matter.
The
applicant was the owner of the land in question, holding a deed of
transfer in respect of the land. In that capacity, it passed a
servitude in favour of the respondent's predecessor in title over
part of the land in 1995 and in respect of which it was paid the sum
of $4 million. In addition to the rights granted to it under the
servitude, the respondent also concluded a lease agreement with the
applicant in respect of the property. In 2000, the farm was
compulsorily acquired under the Land Acquisition Act [Chapter
20.10].
The lease agreement between the parties expired by effluxion of time
but the respondent remained in occupation of the land. It refused to
renew the lease agreement on the basis that the land had been
acquired by the State and the applicant has lost all title to it.
Before
the court a
quo,
the applicant conceded that the land over which it had passed a
servitude in favour of the respondent's predecessor was
compulsorily acquired by the State.
It
cannot be disputed that acquisition of the land by the State
necessarily meant the extinction of rights in the land held by the
applicant as owner and the consequent loss of locus
standi
on its part to bring any action based on the extinguished rights,
which was the ratio
decidendi
of the court a
quo's
decision. The correctness of this finding is beyond reproach. To its
credit, the applicant does not seek to challenge it on appeal.
Instead and incorrectly so, the applicant seeks to challenge the
correctness or otherwise of the acquisition of the land itself by the
second respondent on behalf of the State. It argued that it intends
on appeal, to raise the constitutionality or otherwise of the
acquisition of its land by the State as the land in dispute is not
agricultural.
With
respect, this issue was not before the court a
quo
and therefore cannot be an issue on appeal. It is clearly an
incompetent ground of appeal in the matter. An incompetent ground of
appeal cannot be raised or sustained on appeal and it therefore does
not and cannot enjoy any prospects of success on appeal. A ground of
appeal that enjoys prospects of success on appeal is one that if
successfully argued on appeal will result in the setting aside of the
decision appealed against. An improperly raised ground of appeal
cannot be argued on appeal and will thus have no effect on the
judgment appealed against.
I
am fortified in my decision to deny this application by the
concession by both parties in the hearing before me that the point
sought to be raised by the sole ground of appeal was not raised a
quo.
It is therefore a novel point, calling not only for fresh arguments
but for a fresh determination on appeal. This Court is loath to
assume the jurisdiction of the lower court and pronounce at first
instance on issues that were not canvassed and fully argued before
the court a
quo.
(See ANZ
Grindlays Bank (Zim) (Private) Limited v Hungwe
1994 (2) ZLR 1 (S)).
I
have considered whether or not the applicant is entitled to raise
this point for the first time on appeal as a point of law. It is not.
Two principles stand in its way. Firstly, this is the sole ground of
appeal that it intends to raise. It is not additional to any other
valid ground of appeal. As it is an incompetent ground of appeal it
cannot be the basis of any valid appeal before this Court. Secondly,
the point that the applicant seeks to argue for the first time on
appeal does not arise from the pleadings that were before the court a
quo.
The constitutionality or otherwise of the acquisition of the land
was not challenged before the court a
quo.
(See Austerlands
(Pvt) Ltd & Anor v Trade and Investment Bank Limited
SC 92/05).
On
the basis of the foregoing, I remain of the firm view that this
application cannot succeed.
Regarding
costs, the respondent was willing to have this application granted
with no order as to costs in its favour. During the hearing, when I
expressed my reservations on the propriety of its concession, it did
not change its position regarding costs. Accordingly, I will make no
order as to costs.
In
the result, I make the following order:
The
application is dismissed with costs.
Venturas
& Samkange,
applicant's legal practitioners.
Dube,
Manikai & Hwacha,
1st
respondent's Legal Practitioners.
