The
applicant, who is a holder of an offer letter dated 31 October 2008 conferring
on her possession of subdivision of Lot 1A Nil Desperandum Twentydales,
Goromonzi in the district of Mashonaland East Province, has sought the
following interim relief by way of an urgent application against the first
respondent –
“That
pending confirmation, or discharge, of this provisional order herein, it is
ordered as follows:
1.
That the first respondent, or anyone acting on his behalf, be and is hereby
ordered to immediately stop all farming activities on Lot 1A of Nil Desperandum
of Twentydale Farm.
2.
That the Deputy Sheriff, or his lawful attorney, be and is hereby ordered to
give effect to this order...,.”
The
first respondent, though not in possession of an offer letter, brought in two
official letters from his Province, one signed by the Governor and Resident
Minister of the Province, the Acting Chief Land Officer and the Provincial
Administrator. This letter was written on 8 September 2009.
The
other official letter, dated 22 October 2007, was signed by the Provincial
Chief Land Officer for the same Province, confirming that the first respondent
had been recommended for allocation of land at Lot 1A of Nil Desperandum Farm
subdivision 2 measuring 152,50 hectares, and in the district of Goromonzi.
It
is clear that in both letters, the first respondent was recommended for
allocation of the land defined in those two letters.
Apart
from the two letters, the first respondent tendered in a map of the land in
question, and that map seems to suggest that the land in question is divided into
subdivisions 1 and 2, with him having been allocated subdivision 2 thereof.
The
applicant's position was that the first respondent had, by the 18th
and 19th of November, unlawfully ploughed ten hectares of her land,
hence her being prompted to file the instant urgent application.
The
applicant further argued that because she is armed with an offer letter, she
has a greater claim of possession of the land in question than the first
respondent who only has letters of recommendation from his Province.
In
my view, both parties appear to have a legitimate claim to the disputed
property, and, on the face of it, the dispute now raging between the parties
cannot be resolved by way of an urgent chamber application.
It
would be a clear miscarriage of justice if the applicant were to be granted the
relief she seeks without both parties being given an opportunity to lead
evidence in order to assist the court
determine the specific rights of the parties over the disputed land.
These
issues cannot be determined by way of an urgent chamber application.
I
do not accept that the applicant's offer letter, per se, when looked at in
light of the two letters brought, and tendered, by the first respondent, should
be read to confer greater rights over the land in question than the competing
right claimed by the first respondent.
As
a matter of practice, where it is clear that parties have potentially competing
rights over the same property, courts must not feel inclined to determine such
rights by way of urgent chamber application.
For this reason, I decline to treat this matter
as urgent, and, consequently, decline to grant the interim remedy sought.
