This is an appeal brought by the appellant against the whole of the judgement issued by the Provincial Magistrate sitting at Mutare on the 3rd of January 2020.The appellant spelt out the grounds of appeal as follows:“1. The Honourable court below erred and grossly misdirected itself in law in ordering ...
This is an appeal brought by the appellant against the whole of the judgement issued by the Provincial Magistrate sitting at Mutare on the 3rd of January 2020.
The appellant spelt out the grounds of appeal as follows:
“1. The Honourable court below erred and grossly misdirected itself in law in ordering appellant's eviction from her home without considering all the relevant circumstances as contemplated in section 74 of the Constitution of Zimbabwe Amendment (No.20 Act 2013).
2. The court below erred and grossly misdirected itself in granting summary judgement over an illiquid claim for holding over damages.
3. The court a quo grossly erred and misdirected itself in law in ordering appellant to pay holding over damage in a non landlord-tenant dispute.
4. The Honourable inferior court grossly erred and misdirected itself in fact and law in ordering appellant to pay holding over damages with effect from 1 July 2019 in the sum of ZW$10,000 per month when appellant had alleged facts which, if pleaded and accepted at the trial, were sufficient to establish a defence.”
The appellant sought a relief to have the application for summary judgment to be dismissed with costs and that the appeal be upheld with costs on attorney-client scale.
The two respondents, who are husband and wife, purchased certain piece of land situated in the District of Umtali called Stand 86 Murambi Gardens of Umtali Township lands measuring 3,450 square metres for RTGS$450,000 through a Deputy Sheriff's public auction.
The property was previously owned by the now appellant.
The two were confirmed purchasers of the property on 5 March 2019. They are now title holders under Deed of Transfer No.3520/19.
The respondents then issued summons against the appellant in the Magistrate Court seeking her eviction from the property, at the same time claiming holding over damages in the sum of $10,000 per month from 1 July 2019 until her vacation, and costs of suit.
The appellant entered appearance to defend. The respondents filed an application for summary judgement, and, on 3 January 2020, the court a quo granted the application.
On 6 January 2020, the appellant filed the present appeal.
The respondents proceeded to file a further application, before the trial court a quo, for leave to vacate pending appeal and they obtained that order on 17 February 2020.
On 19 February 2020, the appellant voluntarily vacated the property and the respondents are now in possession of the property.
On the date of hearing of this appeal, the legal practitioners of the parties indicated that there was need for oral arguments; the matter had to be decided on the basis of the papers filed of record.
However, what was not clear to this court was whether the appellant was still pursuing the appeal, given the fact that she had voluntarily moved out of the property and the outcome of the matter would become purely academic.
This is now our ruling on the appeal....,.
WHETHER OR NOT THE COURT A QUO ERRED AND MISDIRECTED ITSELF IN GRANTING SUMMARY JUDGMENT OVER AN ILLIQUID CLAIM OF HOLD OVER DAMGES
The appellant contended, that, the amount of holding over damages constitute an illiquid claim; if it is an illiquid claim, then, an application for summary judgement would not be applicable.
The appellant went on, further, to submit, that, the holding over damages were not based on a liquid document as there was no acknowledgement of debt, nor a lease agreement, nor any document to show that the amounts were liquidated.
According to the appellant, holding over damages could only have been determined after leading of oral evidence in a trial.
The appellant further added, that, the court a quo erroneously concluded, that, the appellant had not challenged the holding over damages.
To the contrary, the respondents submitted, that, holding over damages cannot be confined to a landlord–tenant relationship but to situations where the occupier holds onto the owner's property.
The respondents claim was based on the value of the rental the property would earn had it been on lease, and such a value is easily ascertainable.
In any case, the respondents explained how they had come up with the amount of holding over damages.
The respondents went on to cite Hever v Van Greuning 1979 (4) SA 952…, and cases cited therein, which is of the authority that an owner of immovable property who has never been in physical occupation or possession of his property is entitled to claim damages from a person who wrongfully and unlawfully occupied that property.
The respondents further cited the matter of Dube v Sengwayo HC110-91 which held that a claim for holding over damages, in respect of ejectment proceedings, was a claim for a liquidated demand because the damages were easily ascertainable.
The argument by the respondents finds favour with this court.
The analysis of the facts by the court a quo is sound in as far as whether holding over damages were a liquid claim. There is no legal basis to critique it nor to impugn it.
The decision in Dube v Sengwayo HC110-91 has not been set aside, and, given the reasoning in that judgment, I agree, too, that a rental per month put up by an owner of property can easily be determined or ascertained without difficulties, and, in this case, the respondents explicitly explained in their affidavits how the damages were computed.
I conclude, that, the holding over damages constitute a liquid claim and dismiss that ground of appeal by the appellant.
Having reached that decision, relating to the second ground of appeal, the same conclusion is applicable to the third ground of appeal which pertains to the court ordering the appellant to pay holding over damages in a non-landlord/tenant dispute.
As already concluded herein, a property owner who had not taken occupation of the property can legally claim holding over damages as the respondents had done in this case.
The appellant's ground 3 of her appeal has no merit.
