The
appellant approached the court expressing disagreement with the
Chinhoyi Magistrate Court judgement wherein the court ordered the
appellants to be evicted from House Number 14317 Brundish, Chinhoyi.
It
is apparent from the record of proceedings that the appellants and
the respondent, at different times and for different purchase prices,
purchased the house in question from the seller, one Solomon
Mukwidza. The scenario envisaged by evidence is that of double sale.
The
appellant raised eight (8) grounds of appeal.
(a)
The learned magistrate erred in holding that the appellants were
aware of the dispute between Phiona Moyo and Solomon Mukwidza before
cession was effected.
(b)
The learned magistrate erred in holding that the appellants
deliberately ignored the court case that was pending before the
Chinhoyi Magistrates Court between the respondent and the seller of
the House 14317 Brundish, Chinhoyi.
(c)
The learned magistrate erred in holding that the appellants were
aware that House 14317 Brundish, Chinhoyi had been sold to a third
party before taking occupation and making improvements.
(d)
The learned magistrate erred in holding that the appellants had not
extended that house in question from four to seven rooms.
(e)
The learned magistrate erred in accepting the evidence of the Chamber
Secretary of the Municipality of Chinhoyi despite its glaring
inconsistencies.
(f)
The learned magistrate erred in holding that cession of right, title
and interest in the appellants names was improperly done, hence was
null and void.
(g)
The learned magistrate erred in holding that they were no appeal
circumstances justifying the appellants in defeating the eviction
proceeding.
At
the hearing, the applicants counsel raised a legal issue that the
judgement was a nullity, and, on that basis,
the trial court's judgement ought to be set aside. It is settled, a
legal issue may be raised at any stage in an appeal.
The
record of proceedings…, shows that the matter was heard before
magistrate Gayikayi who recorded and heard viva
voce
evidence from witnesses for the plaintiff and defendant respectively.
The magistrate left service and joined private practise before
attending to writing and delivery of judgement. The parties
subsequently agreed that another magistrate peruse the record and
come up with judgement. Indeed, a magistrate attended to judgement
and delivered a judgment which forms the subject of this appeal.
The
legal issue raised is that the judgement by a magistrate who did not
preside over the proceedings is a nullity, and, as such, it cannot
stand.
Counsel
for the respondent
whereas
conceding that ordinarily only the presiding magistrate ought to have
assessed, analysed, and come up with judgment presented argument that
in circumstances of this case the judgement was valid. He based his
argument on the fact that the appellant is the one who initiated the
request for a different magistrate to write and come up with a
judgement. The parties agreed and acceded to having the judgment
delivered, and, as such, it was not a nullity.
The
question that begs of answer is whether or not by the agreement of
parties would clothe a nullity to be legally binding
For
a concise and precise answer to this question to come out one has to
look at the rationale
or basis of the settled position that the presiding magistrate ought
to come up with judgement.
It
is not in dispute that the trial magistrate, in coming up with a
judgment, has to assess not only the evidence adduced but demeanour.
It is a holistic assessment and analysis of evidence which leads the
magistrate to choose which story carries the day. Credibility of
witnesses is best tested by the person who observes and hears
witnesses testify. A new magistrate, on simply reading the record,
may not appreciate the unwritten aspects such as demeanour
and thus might come up with a judgement prejudicial to either of the
parties.
Once
appreciative of the rationale behind the desire for the presiding
magistrate to write judgment it becomes abundantly
clear that an agreement by the parties does not have the effect of
clothing a nullity to become valid.
The fact that parties agree to an illegality does not change the
complexion of an illegality to be legal.
I
subscribe fully to the sentiments echoed by BARTLETT J in S
v Likwenga and Ors
1999 (1) ZLR 498 wherein he quoted with approval GILLESPIE J's
reasoning in S
v Tsangaiza
1997 (2) ZLR 47. Both judges where of the opinion that where a
magistrate retires or is incapacitated or recuses him/herself or
becomes functus
officio
the proceedings are a nullity. The proceedings are deemed abortive
and have to be started afresh before a different magistrate.
In
situations where a magistrate will have transferred or resigned
before completing a partly heard matter the correct and expedient
approach is to utilise administrative remedies of recalling the
magistrate to come in and complete the partly heard matters. Also, in
the case of a resigned or retired magistrate, like in
casu,
again, administrative remedies of recalling and having the individual
take the oath of office to finalise the partly head matter would cure
the anomaly of delay of proceedings starting
de
novo.
Handing
over record of proceedings for assessment of evidence and judgment
before a new magistrate, albeit by consent of the parties, does not
paint the proceedings a legality. There are obvious prejudices which
are occasioned by not having a complete assessment of the matter.
It
is my considered view that the fact that civil proceedings are
party-driven does not make them any different from criminal
proceedings. The Civil
Court,
just like the Criminal
Court,
is duty bound to appreciate full facts, evidence, and then assess.
The court is the umpire and has to come up with the judgement and
this duty is not on the parties to the proceedings.
It
is clear, therefore, that a wrong procedure was adopted to come up
with a judgement, and, as such, the judgment by a magistrate who did
not preside over the hearing is invalid and thus a nullity. Having
pointed out that there is no judgment before this court it is
therefore not necessary to look into the grounds of appeal for there
is, strictly speaking, nothing before the court since the court a
quo
judgment
is a nullity.
In
the premises the judgement of the court a
quo
must be set aside.
Accordingly
it is ordered that;
1.
The judgement of the court a
quo
be and is hereby set aside.
2.
The matter is referred to the trial court for the original presiding
magistrate to finalise the matter, or, in the event that the
magistrate is not available, for trial de
novo
before another magistrate who has not dealt with the matter.
3.
Each party is to bear its costs.
