BHUNU
JA:
[1]
The
appellant brings an appeal against the judgment of the High Court
(the court
a quo)
handed down on 21 July 2021. The reasons for judgment were delivered
on 28 September 2021 under judgment number HH533-21. The order
struck off the appellant's application to be declared the lawful
lessee and occupier of Duncombe Service Station (the service station)
situate at Duncombe Farm, Mazowe District in Mashonaland Central
Province. The appellant further sought the eviction of the first and
second respondents from the premises together with all those claiming
the right of occupation and use through them.
BRIEF
SUMMARY OF THE FACTS
[2] The
appellant and the first and second respondents are wrangling over the
right of lease and occupation of the service station. The service
station is situate at Duncombe Farm which has since been acquired by
the government under the land reform programme. The first respondent
is the current occupier of the service station. He claims lawful
occupation through a 5 year lease granted to him by the third
respondent in his capacity as the land owner through the Mazowe
District Council. He also claims legitimate expectation to lawful
occupation and use of the service station pursuant to certain verbal
promises made to him by third respondent's officers.
[3] The
second respondent did not oppose the appeal giving the impression
that it will abide by the decision of the court.
[4]
On the other hand the appellant claims the lawful right to occupy
and use the service station through a 5 year lease granted to it by
the third respondent on 17 July 2019.
[5] Before
the court a
quo, both
contesting parties made claims and counterclaims disparaging the
basis of each other's claim to legitimate lease and occupation of
the service station. The 1st
respondent in turn countered the appellant's application with an
application for review seeking to invalidate the appellant's lease
agreement with the third respondent.
[6] Having
heard both parties, the learned judge a
quo determined the
appellant's application on the merits but ended up with an order
striking off the matter from the roll. On the merits the learned
judge a
quo found that the
appellant's lease agreement was invalid because it had been signed
by an Under-Secretary who had no authority to sign. At p5 of the
cyclostyled judgment this is what the learned judge a
quo had to say:
“It
goes without saying that the lease which the Under Secretary issued
is not valid. It has no legal force or effect. It violates clear
provisions of the law. The Under-Secretary cannot issue any lease to
anyone, let alone to the applicant. The Minister has neither the
power nor authority to allow the Under Secretary to issue the lease
to the applicant. He cannot delegate the responsibility which is
reposed in him to the Under-Secretary. The mandate to issue the offer
letter or lease lies with no one else but the Minister.”
[7]
Having determined the merits of the appellant's application, the
learned judge a
quo noted that the
application was fraught with serious procedural irregularities
warranting the striking off of the matter so that it could be heard
afresh. In coming up with that conclusion the learned judge a
quo made
the following remarks at the same page of his judgment:
“It
is for the mentioned reason, if for no other, that the first
respondent was quick to cast doubt on the authenticity of the lease
which the applicant attached to its application. The fact that the
lease was not legible from pp13 to 18 did not work in the applicant's
favour at all. As the dominus
litis party, the
applicant should have availed to me a lease whose contents were/are
legible. It should not have availed to me a document the contents of
which made no sense and expected me to make sense out of them. The
lease was/is after all the backbone of its case. It should,
therefore, have allowed it to make sense to the decision maker.
I
mention in passing, that a matter which is not sustainable on a
balance of probabilities but which is not so hopeless so as to
warrant an outright dismissal is more often than not struck off the
roll. It is struck off because it is fatally defective. The fatal
defects which are inherent in it leave the court with no choice but
to treat it as such.”
[8] Having
said that, the learned judge a
quo proceeded to
strike the matter off the roll with remarks that the appellant could
approach the court again within 90 days after putting its house in
order.
ANALYSIS
AND DETERMINATION
[9]
It is plain to the Court that the learned judge a
quo's line of
reasoning is rather convoluted and littered with gross irrationality
so as to amount to fatal procedural irregularity. I am of the firm
view that once the learned judge had found on the merits that the
appellant's lease agreement was a nullity and unenforceable that
should have been the end of the matter. No rights or obligations can
flow from a nullity. It was therefore not within his discretion to
proceed beyond that finding on the basis of spurious technical
grounds.
[10]
The learned judge struck the matter off from the roll on the basis
that the appellant had tendered an illegible lease agreement. Again,
it is plain and a matter of common sense that once the learned judge
had held the lease agreement to be void and unenforceable it did not
matter whether or not it was legible. It was therefore irrational for
the learned judge to strike the matter off the roll in the vain hope
that the appellant would again approach the courts with a legible but
void lease agreement. It is unfathomable how the learned judge
thought he was going to use a lease agreement which he had held to be
void and unenforceable to determine the merits of the case which he
had already determined.
[11] Tendering
a defective exhibit in evidence in court cannot in my view amount to
a fatal procedural irregularity. It merely affects the weight and
credibility of evidence. It is not a fatal procedural irregularity
warranting the matter to be struck off the roll. The learned judge
therefore fell into error and strayed into fatal procedural
irregularity when he struck the application from the roll on the
basis that the appellant had tendered in evidence an illegible lease
agreement. Faced with a defective document or exhibit a judicial
officer should not take the easy way out by striking the matter off,
the roll. The judicial officer should first of all look at the
relevance and admissibility of the exhibit tendered. If it is
relevant and admissible then, one looks at whether the situation can
be saved by calling for rectification where possible. A brief
postponement may be allowed to effect rectification with a suitable
award of costs. Judicial officers should always bear at the back of
their minds that their primary function is to dispose of matters on
the merits and not flimsy technicalities.
This
prompted SCHREINER JA in Trans-African
Insurance Co. Ltd v Maluleka
1956 (2) SA 273 (A) at
p278F to remark that:
“No
doubt parties and their legal advisers should not be encouraged to
become slack in the observance of the Rules, which are an important
element in the machinery for the administration of justice.
But on the other hand technical objections to less than perfect
procedural steps should not be permitted, in the absence of
prejudice, to interfere with the expeditious and, if possible,
inexpensive decision of cases on their real merits.”
(My italics).
[12] As
previously stated, it was grossly irregular for the learned judge to
first determine the merits of the case and then proceed to strike off
the matter on a technicality. The court a
quo's
decision is therefore confusing in that it provides an irreconcilable
contradiction as to whether it determined the matter on the merits or
a technicality. That irregularity can only be corrected by invoking
the provisions of section 25 of the Supreme Court Act [Chapter
7:13].
The section provides as follows:
“25
Review Powers
(1)
Subject to this section, the Supreme Court and every judge of the
Supreme Court shall have the same power, jurisdiction and authority
as are vested in the High Court and judges of the High Court,
respectively, to review the proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
(2)
The power, jurisdiction and authority conferred by subsection (1) may
be exercised whenever it comes to the notice of the Supreme Court or
a judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.
(3)
Nothing in this section shall be construed as conferring upon any
person any right to institute any review in the first instance before
the Supreme Court or a judge of the Supreme Court, and provision may
be made in rules of court, and a judge of the Supreme Court may give
directions, specifying that any class of review or any particular
review shall be instituted before or shall be referred or remitted to
the High Court for determination.”
[13] The
section undoubtedly confers review jurisdiction on this Court
whenever it comes to its attention that there has been a procedural
irregularity in a lower Court as happened in this case. The gross
procedural irregularity warrants the intervention of this Court on
review by quashing the proceedings a
quo
and
ordering a trial de
novo.
As the trial judge has already taken a stance on the merits of the
case, it is necessary that the retrial be placed before a different
judge.
[14]
As neither party is to blame for the learned judge's error, each
party is to bear its own costs. It is accordingly ordered as follows:
1.
That the proceedings in the court a
quo
be and are hereby quashed and set aside.
2.
That the matter be and is hereby remitted to the court a
quo
for a trial de
novo
before
a different judge.
3.
That each party bears its own costs.
CHIWESHE
JA: I
agree
MUSAKWA
JA: I
agree
Chikwengo
Legal Practitioners, appellant's
legal practitioners
Mutamangira
and Associates, 1st respondent's legal practitioners
