Civil
Appeal
MUZENDA
J:
On
23 July 2018 Mr Forward Kapiya (the respondent) of Stand 254
Headlands Location issued summons at Rusape Magistrate's Court
against the appellant, Stella Masunga, where he was seeking eviction
of the appellant from a commercial stand No.193, Headlands known as
Kapiya General Dealer.
In
the summons he averred that the appellant was his ex-wife and he had
since separated with her and since she was then co-habiting with
other men, she ought to move out of the property.
The
defendant filed her appearance to defend and on 3 August 2018 she
filed her plea. In her plea she contended that the respondent herein,
was not the owner of the property. She is the one who bought Stand
193 in 2004 and started constructing it alone before customarily
marrying respondent in 2006.
When
she married respondent in 2006 the shop was about to be roofed.
In
2010 she admitted changing the name from her name to that of the
respondent since respondent was going to marry her. When appellant
changed the names she did not know that the respondent wanted to grab
her shop.
On
12 September 2018 the matter proceeded to trial and both parties led
evidence to prove their cases and called witnesses.
After
hearing the court granted eviction against the appellant and ordered
her to vacate the premises by 31 December 2018. The order was granted
on 19 November 2018.
On
30 November 2018, the appellant noted an appeal against the whole
judgment of the magistrate and outlined the grounds of appeal as
follows:
“1.
The learned Magistrate erred in ordering the eviction of the
appellant by 31 December 2018 on Stand No.193 Headlands, despite the
following:
(a)
the stand in question belongs to the appellant.
(b)
that responsible authority which is in Makoni Rural District Council
through its representative Fungai Misi, having been given subpoena,
confirmed that appellant is the one who had purchased the said stand.
2.
The learned Magistrate misdirected herself by failing to appreciate
the evidence of the responsible authority to the effect that the
stand is registered in appellant's name.
3.
The learned magistrate erred and misdirected herself by failing to
consider the evidence of the responsible authority to the effect that
indeed there was an attempt to do a cession but that was not done
because there were issues which needed to be ironed out first.
4.
The court failed to appreciate that indeed appellant has a clear
right over the stand hence could not be evicted.
5.
The court failed to appreciate that respondent was lying and sought
to rely on his evidence.
6.
The court erred and misdirected itself in relying with the evidence
of a brick moulder.
7.
The judgment imposed by the trial magistrate is shocking and should
be set aside.
WHEREFORE
appellant prays that an order for eviction imposed by the trial
magistrate be set aside with costs that she be allowed to carry out
her business as the owner of Stand 193 Headlands.”
I
have cited the prayer of the appellant to show that it is defective.
However we condoned that defect in the interests of justice and
allowed the appellant to argue its appeal.
For
the record, the prayer in an appeal should be framed as follows:
“(a)
the appeal is upheld with costs.
(b)
the judgment of the court a
quo
is set aside and substituted by the following:
the
claim for eviction of the defendant from Stand 193 Headlands is
dismissed with costs.”
The
appellant's legal practitioner, Mr B
Majamanda,
on the date of hearing sought the leave of the court to consolidate
grounds of appeal 1, 2 and 3 to be represented by ground 1.
Effectively appellant chose to abandon ground 2 and 3. Appellant also
abandoned ground of appeal 7 though in counsel's submission he
smuggled it back whilst seeking an order allowing the court to take
into account the proprietary right of the appellant over Stand 193
Headlands.
We
allowed the consolidation and refinement of the grounds of appeal for
there was no prejudice on the respondent.
The
grounds of appeal to be dealt with by this court were then 1, 4, 5
and 6.
WHETHER
THE MAGISTRATE ERRED IN ORDERING EVICTION OF THE APPELLANT?
Appellant
submitted that stand No. 193 Headlands belonged to her because it is
still registered in her name on the papers held by Makoni Rural
District Council.
In
appellant's own pleadings filed of record, she unreservedly and
voluntarily contend that although she is the one who bought the stand
(a fact which is disputed by the respondent herein) she changed
ownership in 2010 when she was about to wed the respondent. To
consolidate that commitment towards change of ownership there are
copies of affidavits signed by both appellant and respondent and
submitted at Headlands District office.
Whether
those papers were forwarded to Makoni Rural District Council offices
for cession remains in our view academic.
The
evidence of Fungai Misi was of no effect because the appellant in her
own papers concedes that in 2010 she changed ownership of the stand
to that of the respondent.
The
affidavits of cession signed by the appellant were not revoked nor
set aside, they remain extant up to this date.
In
any case the court a
quo
dealt extensively on the evidence of the appellant, more particularly
on the aspect of the purchase price.
Appellant
in her pleadings contended that she bought the stand for ZW$800-00.
She later on changed the purchase price to ZW$8,000-00.
The
purchase price of ZW$800,000-00 through a cheque paid by the
respondent was the one confirmed by the Rural Council employee and
the court a
quo
justifiably impugned appellant's evidence on that aspect
questioning how and why appellant conflicted herself on the price if
she was the one who purchased the stand?
This
aspect was based on the credibility and the trial court believed the
respondent.
There
is no basis for this court to interfere with that finding of
credibility and we find no misdirection on the part of the learned
Magistrate.
That
element of the purchase price only added weight to the fact that the
issue of ownership was resolved by the appellant herself on the date
she deposed to an affidavit ceding her rights to that of the
respondent.
Ground
of appeal number 6 denigrates the evidence of the brick moulder.
We
fail to see the legal basis for criticising the learned Magistrate in
placing probactive value on that witness's evidence.
The
brick moulder Mr John Rwapungu was contracted to mould bricks
(usually called “home-made”) by the respondent. He agreed and did
the work. He also ferried the bricks to the site using an animal
drawn cart. There were no developments at the site. The moulder's
bricks were the ones which were used by the respondent's builder to
construct development at stand 193 Headlands.
The
court a
quo
accepted the moulder's evidence and also respondent's evidence to
the effect that the developments at stand 193 Headlands were effected
by the respondent and belongs to him.
We
find no misdirection by the learned Magistrate.
When
all these aspects are considered cumulatively the finding by the
court a
quo
that stand 193 Headlands was bought by the respondent and developed
by him is unimpeachable and in fact belongs to the respondent.
The
appellant had to be evicted from that stand since she is not
occupying it with the permission of the owner, hence the appellant
was an unlawful occupier.
WHETHER
THE COURT FAILED TO APPRECIATE THAT APPELLANT HAD A CLEAR RIGHT OVER
THE STAND AND HENCE COULD NOT BE EVICTED
The
appellant contends that she found a clear right and focuses her
argument on the issue of registration of that with the local
authority Makoni Rural District Council.
As
already ruled, if the appellant had not pleaded change of ownership
in her papers as well as signing affidavits ceding such rights to the
respondent, the interpretation of the situation might have been
different.
In
our view, the intention to cede those rights by the appellant was
done voluntarily and had not been reversed.
The
respondent's evidence that the property is now in his name has not
been challenged in cross examination.
The
application before the court a
quo
was that of eviction and not sharing of property.
The
appellant did not counter claim the stand ownership and does not
raise fraud preceding her cession of rights.
We
are unable to agree with appellant's submissions that the court a
quo
failed to appreciate that appellant had a clear right. On the date,
the appellant agreed to cede her rights to the respondent in 2010,
the respondent acquired real rights over the stand.
This
ground of appeal has equally no merit.
WHETHER
THE RESPONDENT WAS LYING AND WHETHER THE COURT ERRED IN RELYING ON
HIS EVIDENCE
An
examination of the record reflect that the appellant experienced
difficulties to prove her case.
She
contradicted herself on the aspect of price of the commercial stand.
Whether she bought it for ZW$800-00 or any other price. Whether she
agreed to cede her rights over stand 193 or still claims same.
Whether she developed the subject stand from the ground.
She
struggled to prove and explain all these issues.
It
is difficult to comprehend appellant's arguments as to whom between
herself and respondent could be adjudged to be misrepresenting facts.
In
any case the heads of argument filed on behalf of the appellant has
failed to highlight details of the respondent's lies.
The
pleadings of the appellant materially corroborate and substantiate
the respondent's case and the trial court found respondent's
evidence and testimony credible and held that the respondent on a
balance of probabilities had managed to prove his case and granted
the relief.
We
cannot faulter the learned Magistrate's reasoning on credibility
and the appellant has failed to lay facts to advance this ground of
appeal.
What
is clear from the papers is that the appellant was assigned to go and
pay for the stand in her name without the approval of the respondent.
Upon discovery of the situation by the respondent, the parties for
whatever reason agreed to sign papers where the appellant ceded her
rights over the stand to the respondent. Now that the appellant had
separated from the customary union with the respondent she
surreptitiously seeks to have this court redistribute the property.
There
is no misdirection on the trial Magistrate in dismissing appellant's
defence and in our view there are no merits on the grounds of appeal.
Accordingly,
the appeal is dismissed with costs.
MWAYERA
J agrees ______________________
Khupe
and Chijara Law Chambers,
applicant's legal practitioners
