MUZENDA
J:
The
applicant has made an application seeking the following order:
“IT
IS HEREBY ORDERED THAT:
1.
THE Respondent and all those who claim possession or occupation
through him, be and is hereby evicted from Plot No. 15B, Bomhani
Farm, Cashel as soon as this order has been granted.
In
the event that the Respondent fails or refuses to comply with the
above order, the Sheriff of the Court, with the assistance of the
ZRP, be and is hereby directed and ordered to procure vacant
possession by ejecting the Respondent and all those claiming
occupation through him.
2.
To pay costs.”
Facts
From
the facts extracted from the applicant's founding affidavit filed
of record, applicant was allocated Plot 15B Bomhani, Cashel in terms
of the land resettlement programme. Respondent was also allocated the
identical plot and moved in to practice farming activities on the
plot.
The
applicant filed an application at the Mutare Magistrate Court for an
interdict barring Respondent from practising farming on the plot.
The
application was granted.
The
respondent appealed against the order. The appeal with the High Court
was struck off the roll.
The
respondent made an application to the Administrative Court which is
still pending and also made an application for the reinstatement of
the appeal with the High Court.
Whilst
the applicant acknowledges all the developments, his guarded view is
that the offer letter granted to the respondent is fraudulent, the
application to the Administrative Court is futile and hopeless and
the application for reinstatement of the appeal has no prospect of
success and is only meant to buy time.
He
is praying that the application for respondent's eviction be
granted.
The
question for decision by this court is whether the application for
respondent's eviction is properly before this court?
The
applicant admits in his answering and founding affidavit that the
respondent possesses occupation documents relating to the same
disputed plot.
There
is no document from the issuing authority which disqualifies the
offer letter, or showing that it was either withdrawn or cancelled
moreso when such document was given to the respondent well after the
applicant had allegedly been settled on the plot.
In
my view this conflict can best be answered by the issuing authority,
not for the applicant to make conclusion on who the owner is.
Where
there are two competent documents originating from the issuing
authority the quintessence issue for determination lies in the
Administrative Court which is well qualified to make determination
first obviously after having considered all relevant facts and
evidence before it, only then would a court decide on the aspect of
eviction.
In
any case, since the respondent is pursuing both the appeal and the
Administrative Court action, it will be premature for this court to
resolve on the aspect of ejectment, the application for ejectment has
to wait for due process to be completed, regardless of whether
respondent's prospects of success are high or not but to afford
respondent opposing to be heard.
It
is also apparent that on 2 August 2019 a Magistrate's Court also
granted an order to the following effect:
“The
respondents are hereby interdicted from executing order granted under
case No.4471/18 pertaining the outcome of the application made to the
Administrative Court under case No. ACC86/18.”
Although
the applicant in his answering affidavit contends that he had applied
for the above order to be rescinded, he did not attach any proof to
that effect, otherwise this court infers that the above is still
extant and must be allowed to remain operational.
Applicant
is permitted at law to equally expedite the proceedings in the
Administrative Court in his pursuance to attain finality in
litigation.
As
a result the application is dismissed with costs of suit.
Mvere
Chikamhi Mareanadzo,
respondent's legal practitioners
