On
23 August 2012, the plaintiff, a religious organisation with the
capacity to sue and be sued in its own name, instituted an action for
the ejectment of the defendant and all persons claiming occupation
through him from a house located at Stand 7314 Rimuka Township,
Kadoma.
The
property is owned by the plaintiff in terms of a Deed of Transfer
No.194/2012.
The
defendant contests his eviction from the premises on the ground that
he is entitled to occupy the house thereat by reason of the fact that
he is the pastor, known in his religion as the Sheikh, of the
plaintiff. According to his plea, he was authorised to occupy the
main dwelling house on the property following the death of one
Abdullah who was the pastor of the plaintiff. The authority to occupy
the house was given to him by the elders of the plaintiff. The
defendant admitted to being given three months' notice to vacate
the premises but averred that there was no resolution made on behalf
of the plaintiff for him to vacate.
The
parties led evidence from one witness each.
The
plaintiff's witness, Jabilu Phiri, joined the plaintiff in 1996. He
testified that he is the Chairman of the plaintiff elected in terms
of the latter's Constitution. He produced a copy of the
Constitution, exhibit 2. Although the Constitution refers to “Rimuka
Muslim Society” no issue was made of that fact by both parties. The
Constitution is signed on the last page, on 12 June 2011, by Jabilu
Phiri as Chairman, Magidu Janatu as Secretary, and the defendant as a
member, presumably of the executive committee referred to in section
6 of the Constitution. On the last page, bearing the signatures, the
document states the following:
“This
Constitution
was formally accepted by a special meeting.”
The
witness produced minutes of the meeting at which
the Constitution was adopted on 12 June 2011. At the same meeting the
witness was elected to be the Chairman of the plaintiff. The
defendant gave the opening prayer and closing speech at that meeting.
According to the witness, the defendant's other name, which is
recorded in the minutes, is Sheik Ahmad. The witness testified that
the dwelling house in dispute was previously occupied by one Abdullah
who was the pastor of the plaintiff. Following the death of Abdullah,
the plaintiff gave notice to his widow to vacate the house. When she
failed to vacate the property the plaintiff instituted proceedings
for her eviction. The proceedings were instituted in terms of the
Constitution of the plaintiff, exhibit
2.
The decision to evict the widow of Abdullah was taken at a meeting
which was attended by members - including the defendant. He stated
that the defendant took occupation of the house in August 2011
without the authority of the plaintiff's committee. The witness
stated that when the defendant failed to vacate the premises, after
being requested, the members convened a meeting on 2 October 2011. A
petition was prepared and signed by the members of the plaintiff.
A
copy of the petition was produced in evidence…,.
The
meeting resolved that the defendant should vacate the premises. Among
the demands listed in the petition was that the defendant and his
family must vacate the house in dispute. On 30 April 2012, the
plaintiff, through its legal practitioners, gave the defendant three
months' notice to vacate the house. The witness stated that there
is no organ bearing the name “Elders” in the Constitution of the
plaintiff. He stated that when the defendant failed to vacate the
premises, after being given three months' notice, the executive
committee of the plaintiff passed a resolution for eviction
proceedings to be instituted.
A
copy of the resolution was exhibited in evidence…,.
The
defendant gave evidence himself. He became a member of the plaintiff
in 1983. He became the Vice Pastor of the plaintiff, deputising the
late Ali Abdullah who died in 2011. He was appointed to be the Pastor
by the elders of the plaintiff after a period of forty days had
passed following the death of Abdullah. The same elders gave him the
authority to occupy the house in dispute. He stated that prior to the
adoption of the Constitution of the plaintiff, exhibit
2,
there was in existence another Constitution. He produced a copy of
that Constitution which is headed:
“Constitution
of Rimuka Islamic Centre.”
He
stated that the Constitution produced by the plaintiff's witness
came about through the efforts of Jabilu Phiri who had advised the
congregants that he had found a person who was prepared to donate to
the plaintiff in order to uplift the welfare of the children. He
signed the Constitution because he and the other members of the
plaintiff were happy with it. He confirmed that Jabilu Phiri was
elected to be the Chairman of the plaintiff by the members. According
to the defendant, the understanding was that that Constitution had to
do with the management of the plaintiff's school. He stated that
problems started when Jabilu Phiri started to claim to be the leader
of the plaintiff. Because of those problems the plaintiff's members
held a meeting on 25 September 2011 at which they repealed the
Constitution, exhibit. 2. The members resolved to revert to the old
Constitution….,.
The
dispute between the parties turns on whether the Constitution of the
plaintiff, exhibit 2, was repealed and replaced with exhibit 7. There
are mutually destructive versions in that one party asserts that
exhibit 2 is still operational while the other party states that it
was repealed.
The
onus is on the plaintiff to prove its case against the defendant on a
balance of probabilities.
The
position of the law is that where there are two versions which are
mutually destructive, before the onus is discharged, the court must
be satisfied, upon sufficient grounds, that the version advanced by
the party upon which the onus rests is true and the other is false.
National
Employers Mutual General Insurance Association v Gany
1931
AD 187…,.; cited with approval in Matiza
v Pswarayi
1999
(1) ZLR 140 (S)…,.
This
court must weigh the probabilities arising from the evidence tendered
and all the circumstances of the case in order to determine which of
the two versions regarding the applicable Constitution is more
probable. See Selamolele
v Makhado1988
(2) SA 372 (V)…,.
The
defendant admitted that he accepted exhibit 2. He appended his
signature on it. He accepted, too, that Jabilu Phiri was elected
Chairman of the plaintiff in terms of that Constitution. While
counsel
for
the defendant suggested to Jabilu Phiri that there was another
Constitution in existence a copy of it was not exhibited to that
witness when he was cross-examined.
Indeed,
all the documents which the defendant produced in evidence were not
shown to the plaintiff's witness. He therefore did not have an
opportunity to comment on them. That omission severely weakens the
defendant's case in view of the fact that the plaintiff's witness
disputed the existence of any Constitution other than exhibit 2 when
he gave his evidence.
It
is improper for a legal practitioner who is in possession of a
document which he intends to produce in evidence not to show that
document to a witness for the other side to comment thereon when that
witness disputes the existence or authenticity of the document. In
such a situation the Court is entitled to infer that the failure to
show the documents to the witness was deliberate and calculated to
avoid the discrediting of the document by that witness.
Exhibit
7 does not contain an effective date. It is not signed by any of the
members or officials of the plaintiff. There is nothing to
authenticate it. There is a list of names attached to exhibit 7.
Nothing is said either in the Constitution or in the document
containing the names as to the relevance of those names to the
Constitution. There are no signatures of the persons whose names are
listed. In fact, the names listed appear to have been written by one
person. In the absence of signatures it is difficult for the court to
accept that the persons whose names are listed attended the meeting
and made the resolutions attributed to them.
Also,
the meeting of 25 September 2011 was scheduled to commence at 1000
hours according to the defendant. Exhibit 8 shows that the meeting
started an hour earlier at 0900 hours. No sound explanation is given
as to why such a meeting, to discuss the issue of the Constitution of
the plaintiff, would start earlier than the time notified to the
members. The attendance register relating to that meeting does not
contain the signatures of the persons listed as having attended the
meeting. The names also appear to have been written by one person.
The minutes make reference to a vote in which the defendant, whose
other name is Sheikh Ahmad, won 130 votes against one Sheik Yard's
0. The minutes then record that:
“The
result of the vote was that Sheikh Ahmad was the winner.”
Nothing
is said about what was being voted for or what it is that the
defendant became the winner of. Immediately after that, it is
recorded that:
“People
resolved that: (1) Old Constitution was to be in place.”
Nothing
is said about the repeal of the Constitution, exhibit 2. The minutes
do not state who chaired the meeting. There is no signature on the
portion for the Chairman on the last page of the minutes. As pointed
out earlier, both the minutes (exhibit 8) and the so-called old
Constitution were not shown to the plaintiff's witness in
cross-examination.
The
version of Jabilu Phiri that there was no such “old Constitution”
is more probable than that of the defendant. Indeed, if that
Constitution had been in existence it would have been referred to in
exhibit 2 when the latter Constitution was adopted. The probabilities
point to the conclusion that exhibit 7 and exhibit 8 were prepared
for the purposes of the instant proceedings.
A
letter addressed to the Officer in Charge, Zimbabwe Republic Police,
Rimuka, by the defendant's legal practitioners…, states that:
“The
old committee of the Society, led by Mr Mwashuhwa, was the one which
was valid…,.”
In
other words, the defendant was claiming chairmanship of the
plaintiff. That contradicts his evidence that some other person
chaired the meeting. The statement would also contradict Article 12.2
of exhibit 7 which the defendant referred to as the old Constitution.
In terms of that Article, the Sheikh Imaam, the defendant, is not
part of the committee and has no voting powers in meetings of the
executive committee provided for in exhibit 7. Clearly, the evidence
of the defendant is contradictory and does not accord with the
probabilities in this case.
The
defendant struck me as an intelligent man who was very calculating in
the manner in which he answered the questions put to him. He is
certainly not the unsophisticated witness that he sought to present
himself as. I do not believe his evidence that he was allowed to
occupy the plaintiff's property by the elders when he knew that
there was a committee in existence.
I
am, therefore, convinced that the proper Constitution of the
plaintiff is exhibit 2 and that the committee authorised to represent
the plaintiff is that which is chaired by Jabilu Phiri.
The
plaintiff passed a resolution that the defendant must be evicted from
its premises. He has not tendered any valid defence to the claim for
eviction. The allegation that he was authorised by the elders to
occupy the house is not founded upon the provisions of the
Constitution as there is no provision for such elders to authorise
persons to occupy the plaintiff's properties.
The
defendant is therefore in occupation of the plaintiff's property
without the consent of the plaintiff. Accordingly, judgment must be
granted in favour of the plaintiff against the defendant.
In
view of the time that the defendant has been in occupation of the
property, it would seem to me to be unfair to ask him to forthwith
vacate the property. Although neither he nor the plaintiff addressed
that point, it seems to me that in all fairness he should be given a
period of fourteen days to look for alternative accommodation. In
coming up with that period, I have considered the fact that the
defendant was given three months' notice to vacate the premises
before summons was issued for his ejectment. It would therefore be
unfair to the plaintiff to give the defendant a further period of
more than two weeks to vacate the premises when he has known all
along that the plaintiff requires the premises for some other
purpose.
In
the result, IT IS ORDERED THAT:
1.
The defendant, together with all persons claiming occupation through
him, shall vacate the plaintiff's house which is situate at Stand
7314 Rimuka Township, Kadoma, within fourteen days from the date of
this order.
2.
The costs of suit shall be paid by the defendant.
