MATHONSI
JA: Following
a successful appeal to this Court against a judgment of the High
Court ordering the eviction of the appellant from House Number 484
Jakaranda Drive, Victoria Falls (the house) when it had not heard the
merits of the dispute but only points in
limine,
this
Court handed down judgment which reads in part as follows:
“1.…
2.
The appeal succeeds with each party bearing its own costs.
3.
The judgment of the court a
quo
on the merits is set aside.
4.
The
matter be and is hereby remitted to the court a
quo
for determination of the merits before a different judge.”
(The underlining is for emphasis)
After
hearing the application in terms of the judgment of this Court, the
High Court (the court a
quo)
handed down judgment on 17 March 2022 directing the eviction of the
appellant and all those claiming occupation through him from the
house. The appellant was also ordered to pay the costs of suit.
This
appeal is against that judgment.
THE
FACTS
The
respondent, a local authority established in terms of the Urban
Councils Act [Chapter
24:03],
is the owner of the house which it holds in terms of a Deed of Grant.
It employed the appellant as its Director of Housing and Community
Services and allocated the house to him as an employment benefit.
The
appellant's employment was terminated on 31 March 2017 following
disciplinary proceedings instituted against him for misconduct.
When
called upon to vacate the house as a consequence of his loss of
employment, the appellant resisted.
The
respondent then brought an application for a rei
vindicatio
seeking the appellant's eviction from the house together with all
those claiming occupation through him.
The
appellant opposed the application raising certain points in
limine
namely, that the Town Clerk who had deposed to the founding affidavit
had no authority to do so.
In
addition, the appellant took the point that the matter was lis
pendens
given that the respondent had also instituted eviction proceedings in
the Magistrates Court. The latter proceedings were withdrawn.
After
dismissing these points in
limine
the court a
quo
proceeded, without hearing submissions on the merits, to determine
the merits.
As
already stated, on appeal this court upheld the appeal, set aside the
court a
quo's
judgment and remitted the matter to it for a determination of the
merits by a different judge.
Therefore
when the court a
quo
re-engaged the matter, its mandate was to determine the merits. The
issue before it was whether the appellant was entitled to remain in
occupation of the house by dint of some enforceable right he had
against the respondent.
PROCEEDINGS
BEFORE THE COURT A
QUO
Before
the court a
quo,
counsel for the appellant sought to introduce a further point in
limine
based on the citation of the respondent in the proceedings. It was
submitted that there was a mis-citation of the respondent as Victoria
Falls Municipality which was a non-existent entity. It should have
been cited, so it was argued, as Municipality of Victoria Falls.
As
a corollary to that, it was submitted on behalf of the appellant that
the respondent had failed to prove one of the requirements of a rei
vindicatio,
namely ownership of the house. This stemmed from the fact that the
Deed of Grant recorded the owner of the house as Municipality of
Victoria Falls and not City of Victoria Falls.
Per
contra,
counsel for the respondent submitted that the judgment of this court
was clear that the court a
quo
was required to engage the matter on the merits and not on
preliminary points as urged of it by the appellant. In that regard,
so it was argued, the appellant was out of order in raising fresh
preliminary points.
The
court a
quo
found that the matter had been remitted to it for a specific purpose,
namely a determination of the merits and nothing else. It refused to
be drawn to the point in
limine
as it fell outside the purview of the directions issued by this
court.
On
the merits, counsel for the respondent submitted that the
requirements for the grant of a rei
vindication,
that is, the respondent being the owner of the house which the
appellant was occupying without its consent, had been satisfied.
In
resisting the application, the appellant submitted that he had a
right of retention of the house emanating from the fact that he was
appealing the decision to dismiss him from employment and that there
existed a compromise arrangement between the parties in terms of
which the respondent agreed to let him remain in occupation until he
was paid certain sums of money owed to him.
On
that aspect, the court a
quo
found that the fact that the appellant was appealing against the
decision to dismiss him did not accord him a right to hold on to the
respondent's house. Regarding the alleged compromise the court a
quo
found that no compromise agreement existed between the parties. It
took the view that the letter of 19 April 2018 relied upon by the
appellant did not come anywhere near proving the existence of a
compromise.
In
the court a
quo's
view the letter in question only recorded the appellant's own
position in the dispute, that he would only vacate the premises upon
being paid US$10,000.00. The letter was not responded to and as such
could not tie down the respondent to something it did not agree to.
PROCEEDINGS
BEFORE THIS COURT
The
appellant was aggrieved by that outcome. He noted an appeal to this
court on four grounds the essence of which is to impugn the court a
quo's
finding that the requirement of the actio
rei vindicatio
had been satisfied.
In
addition, the appellant also challenged the court a
quo's
refusal to engage the point in
limine
he sought to motivate.
Only
two issues commend themselves for determination in this appeal. These
are:
1.
Whether the court a
quo
erred in refusing to deal with the point in
limine
relating to the citation of a non-existent entity.
2.
Whether the court a
quo
erred in granting the remedy of an actio
rei vindicatio.
At
the hearing of the appeal, Mr
Siziba
who appeared for the respondent, initially raised two preliminary
points which, in his view, were dispositive of the appeal.
(i)
The first related to the part of the notice of appeal wherein the
appellant stated that he was appealing against “part of the
judgment” of the court a
quo.
In his view this rendered the appeal fatally defective in that the
appeal was effectively against the whole judgment of the court a
quo.
(ii)
Secondly, Mr
Siziba
sought to impugn the appellant's grounds of appeal numbers 1 and 3
which he said do not meet the requirements of Rule 37(1) of this
Court's Rules because they are not clear and concise.
After
exchanges with the court, Mr
Siziba
abandoned both preliminary points.
For
his part, Mr
Phulu
for the appellant also quickly abandoned his reliance on the
challenge of the respondent's ownership of the house because it is
common cause that the respondent is the owner of the house in
question.
Mr
Phulu
motivated the appeal solely on the basis that there exists a
compromise agreement in terms of which the appellant has a right of
retention until such time that he is paid certain sums of money he
believes he is entitled to.
On
that aspect, the court a
quo
reasoned as follows at page 6 of its judgment:
“Was
there a compromise wherein the applicant receded from its position in
seeking to get its property back from the respondent?
The
respondent filed a letter written to the appellant by his legal
practitioners, in which there was mention of payment of US$10,000 for
leave claims and that respondent would move out upon payment of this
amount. In the same letter the respondent acknowledged a claim the
applicant had for water, electricity and rentals and said that such
amounts would be deducted from the US$10,000 as well as the tax
deductible component from ZIMRA. That letter also referred to a
vehicle the respondent said he was of the view he was entitled to.
There
was no response from the applicant.
If
there was, such was not attached to the respondent's opposition.
The
letter itself is what the respondent was stating as his position but
with no acknowledgment from the applicant. How can it be said the
parties agreed and therefore reached a compromise?” (The
underlining is for emphasis)
It
is this Court's view that these were factual findings made by the
court a
quo.
The
position is settled in this jurisdiction that an appeal court will
not lightly interfere with the findings of the lower court. The
appeal court will only interfere where it is shown that such finding
is irrational. In other words, this court will interfere where “the
finding complained of is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his
mind to the question could have arrived at such conclusion.”
See
Hama
v National Railways of Zimbabwe
1996 (1) ZLR 664 (S) at 670C-E.
The
appellant has not shown that the court a
quo's
findings on the letter relied upon as pointing to the existence of a
compromise was irrational.
Quite
to the contrary, the court a
quo's
reasoning
is very sound.
Mr
Phulu
also sought to argue that a compromise was proved by virtue of the
fact that, after pleading its existence in the founding affidavit and
attaching the letter referred to above, the respondent did not deny
the compromise.
In
his view what is not denied is taken as admitted.
There
is no doubt that this argument is flawed.
In
fact Mr
Siziba
drew the court's attention to para 6 of the respondent's
answering affidavit where the respondent contested the claim of a
compromise. The deponent made it clear that the appellant was free to
litigate on these claims if he was of the view that the claims were
meritable. That cannot be said to be an admission.
DISPOSITION
The
respondent is the owner of the house which the appellant occupies
without its consent he having lost his employment. The respondent is
entitled to vindicate against the appellant. The appellant has not
shown a right of retention.
The
appeal is without merit. It ought to be dismissed.
Regarding
the issue of costs, it is the view of this court that a good case has
been made for the costs to be awarded on the adverse scale. The
appellant has been persistent in his resistance and has unreasonably
held on to the respondent's property without any justification
whatsoever. In doing so, he has put the respondent unnecessarily out
of pocket.
In
the result it be and is hereby ordered as follows:
The
appeal is dismissed with costs on a legal practitioner and client
scale.
GWAUNZA
DCJ: I
agree
CHIWESHE
JA: I
agree
Ncube
& Partners,
appellant's legal practitioners
Dube,
Nkala & Company, respondent's legal practitioners
