MAVANGIRA
JA:
1.
This
is an appeal against the entire judgment of the High Court sitting
at Harare, in which the court granted a declaratur
in favour of the first respondent asserting that he was the lawful
holder of rights and interests in the property known as stand 6401
Retreat Waterfalls. The court also ordered that the appellant and
all those in occupation through her should vacate the property.
FACTUAL
BACKGROUND
2.
The
first respondent made an application before the court a
quo
seeking to be declared the bona
fide
holder of rights and interests in the property known as stand number
6401 Retreat, Waterfalls (hereafter referred to as “the
property”). The first respondent also sought to have all those in
occupation of the property declared unlawful occupiers and to vacate
the property. The appellant opposed the application.
3.
The
first respondent submitted that he had joined the Joseph Chinotimba
Housing Co-operative Society sometime in 2009 and had, as a member,
been allocated the property. He had proceeded to dig a well on the
property and to buy the necessary building materials. According to
the first respondent, the appellant invaded the property sometime in
2014 claiming that it was her own and proceeded to construct a
temporary structure using some of the material that he kept and
stored on the property.
4.
With
regard to the appellant's claim that the property was hers, as it
had been allocated to her by her own co-operative known as Samora
Machel Housing Co-operative, the first respondent submitted that her
co-operative had no authority to do the alleged allocation. He
submitted that this was so because the second respondent (the
managing authority), had written to the appellant's cooperative
reiterating its consistent position that stands numbers 6392 to 6414
(under which the property falls) had been allocated to the Joseph
Chinotimba Housing Co-operative.
5.
The
first respondent further submitted that consistent with its
position, the second respondent had entered into a lease agreement
with him over the said property thereby giving him rights, interests
and title to the property. The first respondent averred that
neither the appellant nor her cooperative had any recognisable
interests and rights whatsoever over the said property. He argued
that the purported allocation of the property to the appellant had
no legal basis as the second respondent had confirmed that he was
the only recognised holder of rights in the property.
6.
The
appellant, on the other hand, averred that she was allocated the
same property by her co-operative, namely the Samora Machel
Co-operative as a vacant stand and she had proceeded to make lawful
developments thereon. She argued that there was no basis for the
first respondent's application since there had already been a full
trial pertaining to the same matter in the magistrates' court
wherein the first respondent had failed to prove his ownership of
the property. The appellant also submitted that there were material
disputes of facts which could not be resolved on the papers and that
the first respondent had therefore used the wrong procedure in
filing the application.
7.
It
was the appellant's case that the allocation of the property to her
found favour with the Apex Board which was the authority responsible
for allocating land to its members, including co-operatives.
According to her the second respondent had allocated the property to
the Apex Board which in turn allocated the property to her. She
averred that the property had therefore been lawfully allocated to
her and the first respondent was accordingly in unlawful occupation
of the same.
8.
The
appellant therefore argued that as the allocation to her was done by
her co-operative with the blessings of the Apex Board, the
allocation was above board and remained valid. She averred that the
first respondent's lease agreement was not conclusive proof of
ownership and his allocation was based on an illegality. She
therefore sought to have the first respondent's application
dismissed with costs.
9.
The
second respondent's then Acting Permanent Secretary deposed to an
affidavit confirming that the property had been allocated to the
first respondent under the Joseph Chinotimba Housing Co-operative.
He confirmed that the first respondent had been issued with a lease
agreement over the said property. The second respondent further
confirmed that the appellant did not have a lease agreement with the
ministry and as such she was an invader on the property. His stance
was therefore that the order that was sought by the first respondent
ought to be granted.
THE
DECISION OF THE COURT A
QUO
10.
The
court a
quo
noted that the cause of action in the magistrates' court had been
for eviction whilst the application before it was for a declaratur.
The court found that the second respondent had made it clear that
the property in issue had been allocated to the Joseph Chinotimba
Housing Co-operative and had also confirmed that the first
respondent had a valid lease agreement for the stand. The court
found that the first respondent had managed to establish that he had
rights over the said property emanating from the lease agreement as
well as correspondence and a sworn statement from the second
respondent and the relevant Ministry's official.
11.
The
court a
quo
also noted that the appellant sought to rely on an allocation form
from her co-operative, which form did not have the Ministry's
letter-head or logo but only bore a stamp. The court further took
into consideration the fact that the said allocation form was a 2012
document, whereas on record, there were documents from 2014, 2016,
2017 and 2018 indicating the Ministry's position pertaining to the
first respondent's co-operative and lending support to the first
respondent's claim.
12.
In
the result, the court a
quo
declared the first respondent to be the lawful holder of rights and
interests in the property. It further ordered the appellant to
vacate the property and give vacant possession to the first
respondent. Aggrieved by the decision of the court a
quo,
the appellant noted the present appeal on the following grounds;
GROUNDS
OF APPEAL
“1.
The court a
quo
grossly erred and misdirected itself in making a finding that there
were no material disputes of fact when it was apparent from the
papers filed of record that there were issues which could not be
resolved without hearing oral evidence.
2.
The
court
a
quo
erred and grossly misdirected itself in granting the declaratur
in circumstances where the first respondent had failed to prove that
he had rights and disregarded overwhelming evidence which proved
that the appellant had rights in the property.
3.
The
court a
quo
grossly erred and misdirected itself on relying (sic)
on evidence whose authenticity and origins had been challenged given
that same had not been availed at an earlier stage and whose
authenticity was only going to be tested through viva
voce
evidence.
4.
The
court a
quo
grossly erred and misdirected itself at law in completely
disregarding the decision of the Magistrates Court on the similar
facts of the dispute under Case Number 101166/18 and thereby
effectively overruling the factual findings of the extant judgment
which is already a subject of an appeal in the High Court under Case
Number CIV 25/19.
5.
The
court a
quo
grossly erred and seriously misdirected itself in failing to apply
the principles of estoppel in view of the evidence placed before the
court and given that the application was based on the similar set of
facts and documents used in an initial litigation between the
appellant and first respondent.
6.
The
court a
quo
seriously erred and misdirected itself in dismissing appellant's
preliminary point to the effect that the matter and dispute between
the parties was pending in the High Court under case number CIV
25/19 and further erred in granting eviction that is a subject
matter of the pending appeal.”
13.
In
her prayer the appellant prays for the appeal to be allowed with
costs and for the order of the court a
quo
to be set aside so as to dismiss the application for a declaratur
with costs on an attorney-client scale.
SUBMISSIONS
BEFORE THIS COURT
14.
At
the hearing of this appeal, Mr Dondo,
for the first respondent, raised a preliminary objection to the
appellant's grounds of appeal one, two, three and five. He
submitted that they were defective on the basis that they were not
clear and concise. He therefore moved the court to strike them out.
Ms Chinwawadzimba,
for the appellant, conceded that some of the grounds were defective
and abandoned grounds two, three, five and six. She therefore
motivated the appeal only in terms of grounds of appeal one and four.
15.
On
the merits, Ms Chinwawadzimba
argued that, in the court a
quo,
the first respondent sought to overturn the decision of the
magistrates' court but had disguised the proceedings as stet a
declaratory order. She averred that the first respondent applied
for a declaratur
based on the same facts and evidence as had been placed before the
magistrates' court, which court found that the first respondent
had not proved that he had title to the property and thus had no
basis to evict the appellant. She further averred that the court a
quo
erred in failing to take into account the fact that there was a
pending appeal in the High Court dealing with the rights of the
parties, thereby running the risk of having two conflicting
judgments from the same court.
16.
Ms
Chinwawadzimba
submitted that, by hearing the matter, the court a
quo
in essence reviewed factual findings made by the magistrates'
court which findings were the subject of an appeal before the same
court. She argued that the court a
quo
ought to have stopped the first respondent from litigating this
matter in view of the pending appeal. Thus, the court a
quo
erred in granting consequential relief which was the subject of an
appeal.
17.
Counsel
for the appellant also argued that the first respondent failed to
provide sufficient evidence to prove that he had rights in the
property. She averred that the first respondent relied on a lease
agreement whose validity was challenged and was rejected by the
magistrates' court. She argued that due process was not followed
in the issuing of the first respondent's lease agreement as it did
not go through the Apex Board. Counsel therefore submitted that
there were material disputes of fact in relation to the allocation
of the stand which could not be resolved a
quo
without leading oral evidence and thus prayed for the appeal to be
allowed.
18.
Mr
Dondo,
for the first respondent, submitted that there were no material
disputes of fact in this matter as most of the relevant facts were
clear. He submitted that the first respondent has a valid lease
agreement which has not been cancelled or revoked and thus remains
extant. He further averred that it was an established fact that the
second respondent does not recognize the appellant as the legitimate
holder of rights over the property. He argued that the appellant's
housing co-operative did not challenge or dispute that the first
respondent's co-operative had been duly issued with the necessary
authority over the property. The appellant, therefore, had no basis
to challenge what her own co-operative had accepted. It was Mr
Dondo's
argument that there were no material disputes of fact at all in the
circumstances.
19.
Counsel
for the first respondent further argued that the present matter had
not been argued in the magistrate's court as claimed by the
appellant. He averred that the parties in the magistrates' court
matter were materially different from the parties in the present
matter and that the causes of action and relief sought in the
respective matters were different. In the light of these differences
Mr Dondo
submitted that the court a
quo's
finding that the matter before it and the one that was before the
magistrate's court were different, cannot be faulted. He therefore
sought the dismissal of the appeal with costs on the legal
practitioner and client scale.
APPLICATION
OF THE LAW TO THE FACTS
Whether
or not the court a
quo
erred by finding that there were no material disputes of fact which
warranted the matter to be referred to trial
20.
The
appellant contends that the court a
quo
erred in making a finding that there were no material disputes of
fact in this matter. She avers that the issues pertaining to the
validity of the lease agreement, the competing legitimate rights
over the property and the allocation of the property were disputed
and as such they could not be resolved through the evidence placed
on record without hearing viva
voce
evidence.
21.
With
regard to this issue the first enquiry is to ascertain whether or
not there is a real dispute of fact which could not be resolved
without hearing evidence. In Supa
Plant Investments (Pvt) Ltd v Chidavaenzi
2009 (2) ZLR 132 (H) at 136F-G, Makarau JP (as she then was)
expressed the following sentiments:
“It
is my view that it is not the number of times a denial is made or the
vehemence with which a denial is made that will create a conflict of
fact such as was referred to by MCNALLY J (as he then was) in
Masukusa
v National Foods Ltd and Another
1983 (1) ZLR 232 (H) and in all the other cases that have followed. A
material dispute of fact arises when material facts alleged by the
applicant are disputed and traversed by the respondent in such a
manner as to leave the court with no ready answer to the dispute
between the parties in the absence of further evidence.”
22.
In
the case of Eddies
Pfugari (Pvt) Ltd v Knowe Residents Association & Anor
SC37/09, in assessing whether the court a
quo
erred in resolving the disputes raised on the papers without hearing
evidence, this Court stated the following:
“The
position is now well established that: in motion proceedings a court
should endeavour to resolve the dispute raised in affidavits without
the hearing of evidence. It must take a robust and common sense
approach and not an over fastidious one; always provided that it is
convinced that there is no real possibility of any resolution doing
an injustice to the other party concerned.”
23.
In
Muzanenhamo
v Officer in Charge CID Law and Order & Ors
CCZ3/13, PATEL JA (as he then was) stated as follows:
“As
a general rule in motion proceedings, the courts are enjoined to take
a robust and common sense approach to disputes of fact and to resolve
the issues at hand despite the apparent conflict. The prime
consideration is the possibility of deciding the matter on the papers
without causing injustice to either party.”
24.
In
casu,
I am in no doubt that the court a
quo
was correct in resolving the matter on the papers. The position is
now well established, as reflected by the case authorities that not
every dispute of fact in motion proceedings must be sent for trial.
A material dispute of fact, it has been stated, “arises when
material facts alleged by the applicant are disputed and traversed
by the respondent in such a manner as to leave the court with no
ready answer to the dispute between the parties in the absence of
further evidence.”
25.
The
court a
quo
found that there were no material disputes of fact in this matter
because the facts that the appellant sought to rely on were based on
the findings of the magistrates' court where the cause of action
before the court had been for eviction whilst the application before
it was for a declaratur.
The
learned Judge in the court a
quo
noted that:
“The
first respondent sought very much to rely on what had transpired in
the Magistrates' Court where a claim for eviction had been raised
by the applicant. The first respondent seeks to say that the
allocation of stands should have been done through the Apex Board
hence the lease was not properly issued. What is before me is a valid
lease, it has not been indicated that the lease itself is not valid.
The complaints raised by the first respondent emanate from agreements
between the Apex Board and the other entity where the parties had
agreed on the modus operandi pertaining to the allocation of those
particular stands.”
26.
I
am also of the view that sufficient facts were established by way of
affidavits and relevant documentary evidence to establish, on a
balance of probabilities, that the first respondent was the
legitimate holder of real rights in the property. A valid lease
agreement was furnished. The lease agreement had not been cancelled
and it remains operative. Furthermore, the first respondent also
produced affidavits from the second respondent, who is the authority
responsible for the management of state land. The said documents
verified and confirmed that the first respondent was the legitimate
and recognised holder of rights to the property. His entitlement to
the property was thereby established.
27.
The
appellant's contentions that there were material disputes of fact,
based as they were on bare denials that were not supported by any
documents, were thus of no avail to her case. The law is clear that
bald and unsubstantiated allegations do not establish a litigant's
purported or announced position. The
court a
quo's
decision cannot therefore be faulted because the evidence placed
before it established on a balance of probabilities that the first
respondent had rights emanating from the lease agreement with the
second respondent whilst the appellant only made bare allegations
which were not sufficient to prove the existence of any material
disputes of facts. In the circumstances, the
appellant's
first ground of appeal lacks merit and is hereby dismissed.
Whether
or not the court a
quo
erred in granting the declaratur
28.
It
is the appellant's case that the matter before the magistrates'
court was based on the same evidence placed before the court a
quo.
She avers that the court a
quo
erred in granting the declaratur
in a situation where that matter was subject to an appeal in the same
court. She avers that there is therefore a possibility of having two
conflicting decisions in the same matter emanating from the same
court.
The
appellant further averred that the lease relied on by the first
respondent was not valid and for that reason the court misdirected
itself when it declared the first respondent as the lawful holder of
rights over the property when in fact it was the appellant who had an
agreement with the Apex Board which was the allocating authority of
the said property.
29.
The
court a
quo
found that the first respondent's case was more probable than the
appellant's. It
is settled in our jurisdiction that the standard of proof in civil
matters is “a balance of probabilities.” In ZESA
v Dera
1998
(1) ZLR 500 the court held that
in a civil case the standard of proof is never anything other than
proof on the balance of probabilities. It stated that the reason for
the difference in onus between civil and criminal cases is that in
the former the dispute is between individuals, where both sides are
equally interested parties. The primary concern is to do justice to
each party, and the test for that justice is to balance their
competing claims. McNALLY JA stated at 504B:
“So
in a criminal case one is primarily concerned with doing justice to
the accused. In a civil case one is concerned to do justice to each
party. Each party has a right to justice, and so the test for that
justice has to balance their competing claims. Hence the 'balance
of probability' test.”
30.
In
Bruce
N.O. v Josiah Parkers and Sons Ltd
1972 (1) SA 68 (R) at 70C-E. Proof on a balance of probabilities was
interpreted in the following manner:
“It
must carry a reasonable degree of probability but not so high as
required in a criminal case. If the evidence is such that the
tribunal can say 'we think it more probable than not' the burden
is discharged, but if the probabilities are equal it is not.”
See
also Milner
v Minister of Pensions
1947 2 All ER 372 @ 374, and Thulisani
Dube
Nyamambi v Bongani Ncube
HB82/15.
31.
In
casu,
the first respondent produced as Annexure C a valid lease agreement
between him and the second respondent. It was signed by the first
respondent on 16 June 2016 and by the second respondent's
representative on 27 September 2016. It is significant that the
second respondent, through its then Acting Permanent Secretary, filed
an affidavit. He indicated therein that according to the second
respondent's records, in 2008 the Ministry, through the office of
the resident Minister, allocated blocks of stands to about 28 housing
co-operatives at Retreat Farm. Stand 6401 is within the range of the
block of stands 6392-6414 which was allocated to the Joseph
Chinotimba
Co-operative
Society. The said block of stands was never allocated to the Samora
Machel Housing Co-operative.
32.
He
further stated that there was an agreement between the second
respondent and the Housing Co-operatives that each respective
co-operative would recommend to the second respondent beneficiaries
who were paid up in terms of land servicing fees so that lease
agreements could be issued to them. The Joseph Chinotimba Housing
Co-operative being the co-operative to which the above mentioned
block of stands was legitimately issued, recommended on 15 August
2013, that a lease be issued to the first respondent. The Samora
Machel Housing Co-operative never had the right to, neither did it
recommend a beneficiary to the property, as the stand had never been
allocated to it.
33.
The
Acting Permanent Secretary further categorically stated that the
appellant does not have a lease agreement with the second respondent
and is in fact an invader on the property.
34.
The
said allocation of the property on 15 August 2013 is backed by
Annexure A1, a document of even date on the letterhead of the Joseph
Chinotimba Housing Co-operative Society. Payments made by the first
respondent are reflected on Annexure A2, a membership card on which
are reflected monthly payments for the period spanning between
January 2009 and December 2014.
35.
In
addition and in further support of the first respondent's case, is
a letter from the second respondent dated 27 may 2014 and addressed
to the chairman of the Samora Machel Housing Co-operative advising of
complaints that had been received from the Joseph Chinotimba Housing
Co-operative Society in connection with stands 6392- 6414 Retreat
Township. The letter states inter
alia:
“Please
be advised that according to our records submitted by the Harare
South Housing Union, stands 6392–6414 Retreat Township belong to
Joseph Chinotimba Housing Co-operative and as such your co-operative
should leave those stands for occupation by the rightful owners from
Joseph Chinotimba Housing Co-operative.”
36.
In
another letter dated 19 December 2017 from the second respondent
addressed to “To Whom It May Concern” the second respondent
categorically stated the following:
“This
letter serves to confirm that PAUL MUREHWA 27-127113-l-27 has a valid
lease agreement for stand 6401 Retreat Township with the Ministry of
Local Government, Public Works and National Housing. The lease
agreement number is A/3823/16. Please note that he is the only
recognized legal owner of the residential stand in question.”
37.
Yet
another letter from the second respondent dated 21 June 2018 and
addressed to the chairman of the Joseph Chinotimba Housing
Co-operative pertinently states as follows:
“RE:
REQUEST FOR OFFICIAL POSITION OF LEASE AGREEMENT: JOSEPH CHINOTIMBA
HOUSING CO-OPERATIVE SOCIETY: RETREAT TOWNSHIP …
Please
be advised that according to the land management policy for
Stateland, when a co-operative is offered a piece of land, the
co-operative in turn recommends its members to the Stateland office
for lease processing on individual stands once the member has
fulfilled the co-operative's requirements. The Lease document is
thus a legal document which is entered into between Government and
the co-operative beneficiary who should enjoy vacant possession of
the stand upon being allocated.
The
Lease Agreement is the one which will eventually be used to process
the title deed for the stand in favour of the lessee. In addition,
the Lease Agreement is also required when building plans are being
submitted for approval to the relevant Local Authority.
For
all the lessees who have paid the full purchase price, the Government
is now awaiting completion of construction of buildings so that we
can process title in favour of the beneficiaries. Please note that no
other person is allowed on the stand except the one who has a Lease
Agreement with the Ministry.”
(the underlining is added)
38.
On
the other hand, the appellant sought to rely on an allocation form
issued by her co-operative but this was not sufficient evidence to
prove her entitlement to the property and particularly so in the face
of all the evidence furnished by the first respondent in support of
his case. The documents that the appellant sought to rely on did not
bear the second respondent's logo and these documents could not
further the appellant's case.
39.
The
court a
quo
rightly noted that the appellant sought to rely on what had happened
in the magistrates' court, where the proceedings had been for
eviction, yet the application before it was for a declaratur.
On the evidence that was placed before it, with particular reference
to the valid lease agreement between the first and second
respondents, the court could not have arrived at any other conclusion
other than that the first respondent had real rights to the property
in question.
40.
The
court a
quo
further
noted that the second respondent had made it clear that the property
in question had been allocated to the Joseph Chinotimba Housing
Co-operative, which was the co-operative that the first respondent
belonged to. In fact, the second respondent, through the Resident
Minister had allocated the block of stands 6392 to 6414 to the Joseph
Chinotimba Housing Co-operative. The stand that was allocated to the
first respondent fell within the said block. The property in
question, being the stand that was allocated to the first respondent
by his co-operative, had not been allocated to the Samora Machel
Housing Co-operative to which the appellant belonged. Furthermore,
the Apex Board which the appellant sought to rely on as the
allocating authority did not have the power to supersede the
authority of the second respondent, which was the ultimate authority
over the land.
41.
It
is settled that this Court will not easily interfere with factual
findings made by a lower court unless there has been such a gross
misdirection by that court on the facts so as to amount to a
misdirection in law, in the sense that no reasonable tribunal
applying its mind to the same facts would have arrived at the
conclusion reached by the lower court. 2
42.
In
assessing whether the court a
quo
misdirected itself in finding that the first respondent had rights to
the property, regard may be had to the case of Reserve
Bank of Zimbabwe v Granger & Anor
SC34/01,
wherein this Court stated the following:
“An
appeal to this Court is based on the record. If it is to be related
to the facts there must be an allegation that there has been a
misdirection on the facts which is so unreasonable that no sensible
person who applied his mind to the facts would have arrived at such a
decision. And a misdirection of facts is either a failure to
appreciate a fact at all or a finding of fact that is contrary to the
evidence actually presented.”
In
Barros
& Anor v Chimphonda
1999 (1) ZLR 58 (S) at 62G-63A the court stated the following:
“These
grounds are firmly entrenched. It is not enough that the appellate
court considers that if it had been in the position of the primary
court it would have taken a different course. It must appear that
some error has been made in exercising the discretion. If the
primary court acts upon a wrong principle, if it allows extraneous or
irrelevant matters to guide or affect it, if it mistakes the facts,
if it does not take into account some relevant consideration, then
its determination should be reviewed and the appellate court may
exercise its own discretion in substitution provided always it has
the materials for so doing. In short, this Court is not imbued with
the same broad discretion as was enjoyed by the trial court.”
DISPOSITION
43.
In
casu,
the question therefore relates to whether or not the court
misdirected itself in granting a declaratur
in favour of the first respondent. In the circumstances of this
case, the decision of the court a
quo
to declare, on a balance of probabilities, that the first respondent
was the legitimate holder of rights in the property, cannot be
impugned. This Court has therefore found no basis on which to
interfere with the decision of the court a
quo.
This
appeal is without merit. On the question of costs I see no reason
for departing from the rule that costs follow the cause.
It
is accordingly dismissed with costs.
GUVAVA
JA:
I agree
KUDYA
AJA: I
agree
Bere
Brothers,
appellant's legal practitioners
Messrs
Saunyama, Dondo,
1st
respondent's legal practitioners
1. Akhtar
v Min of Public Commission
SC173/97
2.
Chioza
v Siziba
SC16/11
