The applicant and the first respondent were before this court on 18 February 2009. Then, their roles were reversed. The first respondent was the applicant in a matter in which, on 26 February 2009, this court issued a provisional order in his favour, restoring occupation of certain farming land to ...
The applicant and the first respondent were before this court on 18 February 2009. Then, their roles were reversed. The first respondent was the applicant in a matter in which, on 26 February 2009, this court issued a provisional order in his favour, restoring occupation of certain farming land to him; occupation of which had been forcefully taken by the applicant.
The facts giving rise to the dispute between the parties are common cause. I set them out as follows:
The first respondent carries on farming on 8 Welston Farm in Mashonaland East. The farm was gazetted by the Government under the land acquisition programme. In due course, occupation of the farm was granted to the applicant under an offer letter. Despite the gazetting of the farm, the first respondent did not vacate the farm after the expiry of the periods set out in the law.
On 5 February 2009, the applicant approached the farm in the company of others and took occupation of the farm during the absence of the first respondent.
It was on this basis that the first respondent approached this court, claiming that he was in peaceful possession of the farm prior to the applicant's occupation and had thus been despoiled.
This court, having heard argument in the matter, issued an order as follows:
“Pending the determination of this matter, the applicant is granted the following relief, that:
1. The applicant's possession, use, and occupation of 8 Welston Farm in the District of Mashonaland East Province be and is hereby restored, so that that status quo ante is achieved.
2. The 2nd respondent and all persons claiming occupation and possession through him be and are hereby ejected from 8 Welston Farm in the District of Mashonaland East Province.”
Unhappy with the order of the court, the applicant filed an appeal with the Supreme Court challenging the correctness of the provisional order issued on certain grounds that are not material to this decision.
In noting the appeal, the applicant formed the very firm view that the provisional order issued by this court was in the nature of a final order and thus the provisions of the law requiring leave before an appeal can be noted against an interlocutory order did not apply.
Notwithstanding the noting of the appeal, the first respondent instructed the Deputy Sheriff to enforce the provisional order restoring possession of the farm to him.
He was advised that the appeal noted in the Supreme Court was a nullity as no leave of this court had been obtained prior and in view of the fact that the provisional order issued is indeed a simple interlocutory order.
Again, unhappy with the turn of events, the applicant approached this court, on a certificate of urgency, seeking an order staying execution of the provisional order pending determination of the appeal.
The application was opposed by the first to third respondents, with the fourth respondent maintaining a watching brief in the matter.
