BHUNU
JA: The
appellants are appealing against the entire judgment of the High
Court delivered on 24 May 2017 under judgment number HH329/17. That
judgment granted the respondent a provisional spoliation order in the
following terms:
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:
1.
The first, second and third respondents be and are hereby interdicted
from interfering in any manner with the applicant's business
operations at the tuck shop situated at Gateway Primary School.
Including but not limited to barring her potential customers from
buying from the tuck shop.
2.
The first, second and third respondents be and are hereby ordered not
to unlawfully evict the applicant from the tuckshop at Gateway
Primary School.
3.
The first, second, and third respondents to pay costs at an attorney
and client scale, the one paying and the others to be absolved.
INTERIM
RELIEF GRANTED
Pending
confirmation or discharge of the provisional order, the applicant is
granted the following relief:
1.
The first, second and third respondents be and are hereby ordered to
remove their additional locks at the tuck shop at Gateway Primary
School upon service of this order and take all necessary steps to
ensure that the applicant's peaceful and undisturbed occupation of
the tuck shop is restored failing which the fourth respondent be and
is hereby authorised to remove the locks above said.
2.
The second applicant (sic)
be and is hereby ordered to publicly and at an assembly reverse the
order he imposed on school pupils and teachers not to buy at the
applicant's tuck shop at Gateway Primary School.
3.
The applicant's legal practitioners are hereby given leave to serve
the order on the respondents.”
The
appeal is strenuously opposed by the respondent.
The
facts giving rise to the appeal are to a large extent common cause.
It is however convenient to give a brief resume of the material facts
of this case at this juncture.
The
undisputed facts are that the first appellant is a primary school
whereas the second appellant is its headmaster and overall
administrator. The third appellant is the School's Parents
Association capable of suing and being sued in its own name. It
assists in the smooth running of the school. Among other functions it
generally manages the tuckshop.
The
third appellant leased out the school tuckshop to the first
respondent as its statutory tenant sometime in 2011. The lease
agreement was subsequently renewed from September 2016 to September
2017. On 5 February 2017 the Chairman of the Parents' Association
Committee wrote to the first respondent giving her two months'
notice of its intention to terminate the lease agreement with effect
from 6 April 2017. The letter reads:
“Dear
Marinda
Notice
of Termination of lease contract
We
refer to the tuck shop lease agreement which was renewed in September
2016 expiring on 8 September 2017. We regret to advise that after
much deliberation and thought, the parents Association Committee
hereby gives you notice of their intention to terminate the lease
agreement (without renewal) with yourself with effect from the end of
the first term. Our notice period is therefore effective from 6
February until 6 April 2017.
We
thank you for your tenancy over the many years with the Gateway
Community as well as the rent payments that have always been on time.
We
trust that this is sufficient notice for you to make the necessary
arrangements. If you have any further queries, please do not hesitate
to contact the under signed.”
Aggrieved
by the intended termination of her tenancy of the tuckshop, the first
respondent consulted her lawyers who took the view that the notice
was a legal nullity. They accordingly wrote to third appellant on 5
April 2017 challenging the lease termination on the grounds that the
notice period was inadequate and that it did not provide good and
sufficient reasons for the termination.
Unperturbed
by the threatened legal challenge to its notice to terminate the
lease agreement, the third appellant proceeded to execute its
cancellation of the lease agreement in terms of its written notice of
5 February 2017.
The
validity of the termination of the first respondent's lease and
tenancy of the disputed property is hotly contested.
It
is however common cause that schools closed on 6 April 2017 and the
parties proceeded on end of term school holidays, during which period
the tuckshop was closed.
The
point of departure is the circumstances surrounding the closure of
the tuckshop and its reopening at the end of the school holidays in
May 2017.
The
first respondent's version in her founding affidavit is that at the
end of term she locked her tuckshop and went away without any event.
During the holidays she fully restocked her tuckshop in anticipation
of the reopening of the school. Upon her return on 9 May at the end
of the school holidays, she unlocked the tuckshop only to discover
that the second respondent had issued orders banning her customers,
mainly teachers and students from buying anything from the tuckshop.
Guards were posted at the tuckshop to enforce the ban.
On
10 May 2017 she found herself locked out of the tuckshop.
Additional
locks had been placed on the entrance door by the appellants acting
in concert and common purpose.
It
was her case that by locking her out the respondents were unlawfully
violating her peaceful and undisturbed possession of the tuck shop
hence her urgent application for a provisional spoliation order for
relief.
On
the other hand, the respondents in their opposing affidavit deposed
to by third appellant's Chairman one Justice Marwisa denied ever
locking the first respondent out of the tuckshop as alleged or at
all.
He
deposed that when given notice of termination of the lease agreement
the first respondent agreed and voluntarily cleared the tuckshop and
left without any problem on 6 April 2017. Accordingly he denied that
the first respondent was in peaceful and undisturbed possession of
the tuckshop when the true owners of the tuckshop, Gateway Trust
recovered possession of the tuckshop.
In
short the appellants' case is that the first respondent voluntarily
surrendered possession of the tuckshop to the lessor.
The
learned judge in the court a
quo
believed the first respondent and disbelieved the appellants. He
found in her favour that she was in peaceful and undisturbed
possession of the tuck shop prior to the unlawful dispossession, much
to the chagrin of the appellants, hence this appeal.
The
appellants raised the following grounds of appeal:
1.
The learned judge in the court
a
quo
erred
at law and in fact in failing to find that first respondent was not
in peaceful and undisturbed possession of the tuckshop at the time of
the alleged closure of the tuckshop. This requirement of spoliation
was not established.
2.
The learned judge in the court a
quo
erred
at law in finding that the deprivation of the tuckshop amounted to
unlawful deprivation since the first appellant was given notice of
termination of the lease.
3.
In the alternative the learned judge in the court a
quo
grossly misdirected himself at law in failing to exercise his
discretion not to grant the order sought given the circumstances of
the matter that the continued operation of the tuckshop was not in
the best interest of the children.
Although
the appellants raised 3 grounds of appeal, there is in reality one
cardinal issue for determination.
The
primary issue advanced for determination is whether or not the
respondent was in peaceful and undisturbed possession of the tuckshop
prior to the alleged unlawful dispossession.
The
last two grounds of appeal are mere make weights which add no value
or cogency to the appeal.
Although
there are apparent material disputes of fact no one has complained
that they were incapable of resolution on the basis of the papers
filed of record. The learned judge in the court a
quo
was therefore correct in disposing of the matter before him on the
basis of the papers filed of record.
While
preparing this judgment it however occurred to me that a vital legal
issue upon which the resolution of this appeal revolves was omitted.
The crisp issue omitted for consideration is, “whether
an interdict having the effect of a final order can be sought through
a provisional order?”
Both
Counsel for the appellants and the first respondents have since filed
useful supplementary heads of argument at the court's special
instance and request.
They
are agreed that a spoliation order being a form of a final interdict
cannot be granted as a provisional order. It can only be granted as a
final order.
Undoubtedly
both counsels are correct in their appreciation of the law in this
respect.
The
leading case on this settled point of law is Blue
Rangers Estates (Pvt) Ltd v Muduvuri & Anor
2009 (1) ZLR 368.
That
case is authority for the proposition that a spoliation order being a
final and definitive order cannot be granted as a provisional order.
That
being the case, it follows that the respondent erred and strayed into
the realm of illegality when it sought a spoliation order in the form
of a provisional order.
Consequently,
the court a
quo
also erred and fell into grave error when it granted the first
respondent a provisional spoliation order contrary to the dictates of
the law.
While
admitting that the provisional order granted by the court a
quo
is fatally defective, the first respondent has implored this Court to
come to its rescue by resort to the court's powers under s22(1) of
the Supreme Court Act [Chapter
7:13]
in the interests of justice.
The
relevant parts of the section relied upon provide as follows:
“22
Powers of Supreme Court in appeals in civil cases
(1)
Subject to any other enactment, on the hearing of a civil appeal the
Supreme Court —
(a)
shall have power to confirm, vary, amend or set aside the judgment
appealed against or give such judgment as the case may require;
(b)
may, if it thinks it necessary or expedient in the interests of
justice —
(i)…
(ix)
take any other course which may lead to the just, speedy and
inexpensive settlement of the case;”
On
a proper reading of s22 of the Act, it is clear that it confers no
power of substitution on the court. It can only confirm, vary, amend
or set aside the judgment appealed against or give such judgment as
the case may require.
The
power, “to
give such judgment as the case may require”
is in my view not an open cheque for the court to go on a frolic of
its own giving any judgment it desires.
That
power is confined to what it is authorised to do under s22.
As
the power of substitution is not given under s22 of the Act, the
court cannot exercise such power. If it does, it acts without
jurisdiction.
That
being the case this court cannot substitute a final order for a
provisional order.
By
the same token both the court a
quo
and
this Court cannot give the respondent a relief that she did not ask
for in the court a
quo.
It
is now settled law that a court has no jurisdiction to determine
issues not placed before it because it is bound by the pleadings. It
cannot go on a frolic of its own. See Nzara
& Ors v Kashumba NO & Ors
Section
22(1)(b)(ix) is a procedural section which does not give any
substantive relief.
Reliance
on it for the granting of a final order in place of the provisional
spoliation order granted by the court a
quo
is
therefore misplaced and untenable at law.
In
the final analysis the urgent chamber application being fatally
defective, the appeal can only succeed. It is accordingly ordered
that:
1.
The appeal succeeds with costs.
2.
The whole judgment of the court a
quo
be and is hereby set aside and in its place, the following be
substituted:
“The
urgent application for a provisional spoliation order be and is
hereby dismissed with costs”.
HLATSHWAYO
JA: I
agree
GUVAVA
JA: I
agree
Mundia
& Mudhara,
appellants
legal practitioners
Magwaliba
& Kwirira,
1st
respondent's legal practitioners
1.
SC18/18 at p11
