MAKONI
JA: This
is an appeal against the whole judgment of the High Court sitting at
Harare in which the court granted a provisional order in favour of
the respondent. The essence of the order was to interdict the
appellant and his agents and all those occupying the farm through
him, from interfering with farming activities at Plot 1 of Alpha of
Sandringham in Mazowe District of Mashonaland Central Province. The
matter was brought on a certificate of urgency.
The
background to the matter is that the 1st
respondent is a holder of an offer letter in respect of land
described as subdivision 1 of the Remaining Extent of Sandringham in
Mazowe measuring 162.40 hectares in extent (the farm). The offer
letter is dated 6 April 2017, and was produced as evidence by the
respondent. Despite the date on the offer letter, the first
respondent avers that she took occupation of the farm in 2000. She
produced documents which establish her interactions with various
service providers which date back to 2005.
The
appellant occupies the same farm. He avers that he was offered the
farm in 2013 and took occupancy. At the time, the farm was bush and
he developed it to where it is today. He attached evidence of what he
said were substantial improvements that he made at the farm. He avers
that his offer letter was processed and at one point reflected in the
second respondent's system but was later lost.
As
they were co-existing on the farm, the first respondent averred that
the appellant had on 15 July 2017 started tilling on first
respondent's winter ploughed field where she intended to plant a
cabbage crop on 1 August 2017. Despite warnings to stop such conduct,
the appellant persisted.
The
first respondent then approached the court a
quo
on a certificate of urgency seeking an interdict. She contended that
she would suffer irreparable losses if she were unable to plant her
cabbage seedlings which were ready.
The
application was opposed by the appellant. He did not file opposing
papers but made oral submissions before the court a
quo.
Having found merit in the respondent's case, the court a
quo
granted the provisional order. Aggrieved by the decision, the
appellant filed the present appeal.
His
Grounds of Appeal are as follows:
1.
The High Court erred in dismissing an objection to the validity of a
special power of attorney given by the first respondent to Davie
Fukwa Mutingwende authorizing him to institute the legal proceedings
which was not notarized, it having been issued in the United Kingdom.
2.
The High Court further grossly erred in finding that the matter
before it was urgent when it was apparent that the appellant had been
in occupation of subdivision 1 of the Constancia of Sandringham Farm
for a long period of time carrying on activities known to the first
respondent and any other persons.
3.
The High Court further erred in granting an interdict without first
determining whether subdivision 1 of the Constancia of Sandringham
Farm occupied by the appellant was the same property as Lot 1 of
Alpha of Sandringham Farm claimed by the first respondent.
4.
The High Court further consequently erred in finding that the first
respondent had established a final right entitling her to the grant
of an interdict in the circumstances.
At
the hearing of the matter, Mr
Mudambanuki
sought to argue that the appeal was not properly before the court for
the reason that the appellant sought to appeal against an
interlocutory order. He contended that the order did not have a final
and definitive effect as the appellant had not fully exhausted the
remedies in the court a
quo
namely filing its opposing papers to the final order sought.
He
was directed by the court to s43 (2) (d) (iii) of the High Court Act
[Chapter
7:06]
which reads as follows: -
“(2).
No appeal shall lie
a………………
b………………
c………………
(d)
from the interlocutory order or interlocutory judgment made or given
by a judge of the High Court, without the leave of that judge or, if
that has been refused, without the leave of a judge of the Supreme
Court, except in the following cases—
(i)……………………
(ii).
where an interdict is granted or refused
(iii)…………………”
After
examining the section he correctly conceded that the appeal was
properly before the court. The general rule is that a provisional
order granted under r246 (2) of the High Court Rules 1971 is always
subject to confirmation or discharge before it becomes final and
therefore appealable.
This does not apply to an interlocutory order granting the relief of
an interdict as is provided for in s43(2)(iii).
I
will now consider the grounds of appeal in turn.
GROUND
NO. 1
Mr
Magwaliba
contended that the application before the High Court was improperly
authorized and was therefore invalid. Accordingly, he contended there
was no basis upon which the court a
quo
could relate to it. He submits this was because the power of attorney
purporting to authorize the deponent to the founding affidavit, Davie
Fukwa Mutingwende, to act on behalf of the first respondent, was
executed by her in the United Kingdom. It was not authenticated in
terms of r 3 of the High Court (Authentication of Documents) Rules,
1971.
From
the above submission, it seems the appellant is seeking to raise a
new issue before this Court, relating to the validity or otherwise of
the power of attorney. In the absence of any other evidence to the
contrary,
it would appear from the judgment of the court a
quo,
that the only issue raised before the court a
quo
related to whether or not the power of attorney was granted to an
entity called ZIMMART Trust or to the deponent to the founding
affidavit. I can do no better than to quote how the court a
quo
dealt with the issue. At p 3 of the cyclostyled judgment the court
had this to say;
“Further,
the 1st respondent sought to raise issue with the power of attorney
that applicant had granted to her brother. It was argued on his
behalf that it was not clear whether the power of attorney was
granted to an entity called ZIMMART or to the deponent Davie Fukwa
Mutingwende the Group Executive Officer. I dismissed this point as
the special power of attorney clearly stated as follows:-
Therefore
I hereby appoint Davie Fukwa Mutingwende ZIMMART Trust residing at
39-38 Crescent Warren Park 2…to be my special attorney and agent.”
The
court a
quo
could not have “erred in dismissing an objection to the validity of
a special power of attorney…” when there is no record that the
issue was placed and ventilated before it. The ground of appeal
therefore lacks merit.
GROUND
2
Mr
Magwaliba
contended that the finding by the court a
quo
that the matter was urgent “boggles the mind”. The first
respondent had on 28 April 2017 filed a Court Application in
HC3759/17 seeking to interdict the appellant from conducting any
activities on the farm and his eviction from the farm. The urgent
application was filed on 17 July 2017, some two and a half months
later. He further argued that the first respondent abused court
processes by instituting the urgent chamber application when she had
sought the same relief in an earlier application. According to the
evidence in the Court Application the first respondent had been aware
of the appellant's occupation of the farm since 2016. The need for
the first respondents to act arose then.
The
circumstances that prompted the 1st
respondent to file the urgent chamber application were clearly set
out in the judgment of the court a
quo.
The appellant had started tilling through the 1st
respondent's winter ploughed field where she intended to transplant
cabbage seedlings which were ready to be transplanted. She tried to
stop the appellant without any success. She then approached the High
Court. The fact that there was a pending court application wherein
the 1st
respondent sought inter
alia
an interdict was no bar for the 1st
respondent to have brought the present application before the High
Court. The court a
quo
was correct in its observation that the thrust in the Court
Application was different from the present matter and that the relief
being sought in the present matter was interim in nature and that no
eviction was being sought.
In
my view, there was no misdirection on the part of the court a
quo
on this point.
GROUND
3 AND 4
Mr
Magwaliba
argued that the primary question which the court a
quo
needed to resolve, but however failed to do, was whether the first
respondent's offer letter related to the land which was occupied by
the appellant. He contended that the High Court simply did not
address its mind to this issue.
Contrary
to this view, the court a
quo
addressed the issue and correctly so, at pages 3-4 where it made the
following findings: -
“From
the submission made on the matter the 1st
respondent did not deny that he is occupying the
same land allocated to the applicant.
Neither did he deny locking the applicant's employees nor retilling
the applicant's land. He has no offer letter, permit nor a lease to
show viz the land he occupies”. (my own underlining).
I
find no fault in the above reasoning by the court a
quo.
The appellant conceded that he was on the same land as that allocated
to the first respondent. The court then found and properly so that
the first respondent had a clear right in the land in question and
proceeded to grant the interdict. The above reasoning cannot be
faulted.
In
conclusion, I find that the appeal lacks merit and must be dismissed.
I
therefore make the following order.
1.
The appeal be and is hereby dismissed.
2.
The appellant is to pay the first respondent's costs.
GWAUNZA,
DCJ: I
agree
GOWORA,
JA: I
agree
Chinawa
Law Chambers,
appellant's legal practitioners.
Jarvis
Palframan,
respondent's legal practitioners
1.
Nyikadzino
v Asher & Others 2009 (1) ZLR 174(H) at 177E.
2.
Oral submissions made for the Appellant are not part of the record
before this court.
