CHAMBER
APPLICATION
BHUNU
JA:
[1]
This
is an opposed chamber application for reinstatement of an appeal
under case number SC 166/22. The application is brought consequent to
the applicant's failure to file his heads of argument within the
prescribed time limits.
THE
LAW
[2] The
legal requirements for the application to succeed are well known. In
Apostolic
Faith Mission & Two Ors v Murefu
SC28–03 the court held that the applicant must satisfy the court
that:
(a)
He has a reasonable explanation for the delay.
(b)
He has reasonable prospects of success on appeal.
[3] A
Judge sitting in chambers is duty bound to interrogate the
application and be satisfied that one or other of the essential
requirements stipulated by law have been met before the application
can succeed. I now proceed to determine whether the two requirements
for the application to succeed have been met.
WHETHER
THE APPLICANT HAS A REASONABLE EXPLANATION FOR THE DELAY
[4] The
Registrar's letter calling for the appellant's heads of argument
was served on the applicant on 26 July 2022. The applicant was
obliged to file his heads of argument within 15 days from the date of
the letter calling upon him to file heads of argument. He failed to
file his heads of argument within the prescribed time limit.
[5] His
undisputed explanation for the delay is that the letter was sent to
the personal IECMS account of his erstwhile legal practitioner Mr.
Gama's
personal IECMS account who was no longer representing the applicant
on appeal. The letter ought to have been sent to the law firms IECMS
account. Upon learning of the error he filed the application for
condonation and reinstatement of the appeal on 25 August 2022.
[6]
The period of delay is not inordinate and the explanation for the
delay is satisfactory and beyond reproach. This finding disposes of
the first requirement in the applicant's favour which brings me to
the second part of the enquiry.
WHETHER
THE APPLICANT HAS REASONABLE PROSPECTS OF SUCCESS ON APPEAL
[7] In
disposing of the above issue it is necessary to give a brief resume
of the facts so as to gain an insight into the applicant's
prospects of success on appeal.
[8]
The brief facts as outlined in the court
a
quo's
judgment are by and large common cause. The
respondent issued summons in the Magistrates Court for the eviction
of the applicant and all those claiming occupation through him from
Stand Number l, Village 5, Central Estates, Mvuma. The respondent's
case was that he had been allocated the stand in 2000 and was later
granted an offer letter on 20 February 2004. He claimed that the
applicant unlawfully occupied part of his stand in 2002.
[9]
The applicant opposed the claim on the basis that he was not
occupying any portion of Stand Number l, but was actually occupying
Stand Number 2 of which he is the owner. The respondent could not
therefore, evict him from his own stand.
[10] Upon
consideration of the evidence before him, the Magistrate made a
factual finding that stand number 1 was allocated to the respondent
whereas stand number 2 was allocated to the applicant. The applicant
had however encroached onto the respondent's land thereby
triggering the dispute. On the basis of such finding he granted the
respondent's claim and ordered the applicant's eviction from the
disputed piece of land adjudged to be part of stand number 1.
[11] The
Magistrate's judgment was premised on a map adduced in evidence and
an inspection in
loco
the court carried out. Upon consideration of the totality of the
evidence before him, the Magistrate concluded that the applicant was
occupying Stand Number l, not Stand Number 2 that was allocated to
him. He found that the applicant was occupying a piece of land that
is between water ways when stand Number 2 is beyond the second water
way. The court observed that the District Administrator who had
testified in favour of the applicant was not a credible witness.
[12]
Aggrieved, the applicant appealed to the High Court (the court a
quo)
without success. On appeal he challenged the authenticity of the map
produced by the respondent in evidence. He contended that the
provisions of the Land Survey Act [Chapter
20:12]
should have been followed. He stated that the undisputed facts are
that the land in question was surveyed and beacons installed, the
beacons should therefore have been located to resolve the dispute. He
argued that the beacons had to be located by a land surveyor.
[13] He
further challenged the jurisdiction of the presiding Magistrate to
hear and determine the matter on the basis that the dispute ought to
have been resolved by the Land Commission since it involved the
extent of boundaries. He further challenged the Magistrates Court
jurisdiction on the basis that the amount involved exceeded the
Magistrates Court jurisdiction.
[14]
In the court a
quo
he
accordingly sought an order setting aside the judgment of the
Magistrates Court and that the matter be referred for a fresh trial
in the Magistrates Court. His quest in this respect found no favour
with the court a
quo.
[15] On
the other hand counsel for the respondent countered that the
applicant had failed to place before the court a
quo
evidence
tending to show on a balance of probabilities that the right of
occupation in issue exceeded $2,000.00 so as to oust the trial
magistrate's jurisdiction. He further submitted that both the trial
Magistrate and the court a
quo
had
the necessary jurisdiction to hear and determine the matter. It was
contended on his behalf that both courts properly assessed the
evidence before them and came up with the correct decision.
[16] On
the question of jurisdiction, the court a
quo
found that the issue of jurisdiction had never been raised before the
trial Magistrate. It thus held that it was improper for the applicant
to raise the issue of jurisdiction for the first time on appeal. The
court however went on to hold that the Magistrates Court had
jurisdiction to preside over the dispute as it was not being called
upon to determine boundaries between the two pieces of land in
dispute. It further found that the issue of the map was not relevant
for the resolution of the dispute. Consequently the Land Survey Act
was not relevant. The court a
quo
also found that the argument that the District Administrator was not
aware of the inspection in loco
was unmeritorious since the court does not need permission from
anyone to carry out an inspection in loco.
[17] The
applicant was dissatisfied by the decision of the court a
quo.
He noted an appeal to this Court. He however failed to file heads of
argument timeously. As a result, the appeal was deemed abandoned and
was accordingly dismissed. The applicant therefore turned to this
Court in chambers for the reinstatement of the appeal.
ANALYSIS
AND DETERMINATION
[18] It
is trite that the issue of jurisdiction remains alive between the
parties at every stage of the proceedings. It may therefore be raised
at any stage of the matter including at the appeal stage though in
appropriate cases a litigant may be held to have abandoned,
acquiesced in or submitted to the court's jurisdiction. In any
proceedings it is convenient that the issue of jurisdiction be raised
right at the commencement of proceedings to avoid wasting time and
money. It is pointless to proceed with a trial in which the court has
no jurisdiction. In Commercial
Union Assurance Co. Ltd v Waymark N.O.
1995 (2) SA 73 (TR) at p80D–E, it was held that:
“An
objection to the jurisdiction of the court should be taken in
limine,
a party who fails to object to the jurisdiction of the court before
litis
contestation
may
be assumed to have acquiesced to the court's jurisdiction”.
It
is however up to the appeal court to finally determine the issue of
jurisdiction.
[19]
Given the circumstances of this case, it is difficult to discern the
basis on which the court a
quo
determined
that the dispute did not concern the issue of boundaries considering
that the cardinal issue for determination was whether or not the
applicant had encroached onto the respondent's land. In that light,
it is difficult to say off hand the question of using the relevant
maps and pegs if any was irrelevant. The question as to whether the
Land Survey Act [Chapter
20:12]
is applicable to this case is a mater to be interrogated and
determined by the appellate court.
[20] Initially
I had misgivings about the veracity of the merits of the applicant's
case. After a further scrutiny of the matter I am left with no doubt
that there is an arguable case on appeal. On that score, I take the
view that the applicant has an arguable case on appeal. The
applicant's submission to the effect that he has reasonable
prospects of success on appeal has merit. It is accordingly ordered
that:
1.
The application for reinstatement of an appeal and for extension of
time to file heads of argument be and is hereby granted.
2.
The appeal noted by applicant in Case Number SC 166/22 be and is
hereby reinstated.
3.
Applicant shall file heads of argument in Case Number SC 166/22
within ten days from the date of this order.
4.
Each party shall bear his own costs.
Gama
and Partners Legal Practitioners, applicant's legal practitioners
Dondo
and Partners Legal practitioners, respondent's legal practitioners
