Civil
Appeal
MUZENDA
J:
This
is an appeal filed by the appellants against the judgment of the
magistrate sitting at Mutasa on 30 April 2019 and the appellants
outlined the grounds of appeal as follows:
“GROUNDS
OF APPEAL
1.
The Learned Magistrate grossly erred and misdirected himself on facts
and law in concluding that the appellants had been properly cited and
that the Notice of Intention to sue was properly served in this
matter and in purporting to condone the improper citation and the
purported service
mero motu.
2.
The Learned Magistrate grossly erred and misdirected himself on facts
and law in concluding that the respondents had exhausted domestic
remedies prior to approaching the Magistrates Court for relief.
3.
The Learned Magistrate grossly erred and misdirected himself on facts
and law in concluding that there were no material disputes of facts
in the matter.
4.
The Learned Magistrate grossly erred and misdirected himself on facts
and the law in concluding that respondents did not smuggle the
goods/sugar when there was overwhelming evidence which proved that
the goods/sugar were smuggled.
5.
The Learned Magistrate grossly erred and misdirected himself on facts
and the law in ordering the release of the seized sugar in
circumstances where the notice of seizure was never challenged in
terms of the requisite tax legislation and the respondents failed to
discharge the onus upon them by the law to the satisfaction of the
appellants.
6.
The Learned Magistrate grossly erred and misdirected himself on the
law in failing to appreciate that he is at law not empowered to
determine the validity or review of the Notice of Seizure.”
BACKGROUND
FACTS
The
first respondent, Ezekiel Masamvu, had his sugar packaged in
Portuguese inscribed satchels seized by first appellant's officers.
Both
respondents appeared at Mutasa Magistrates Court for criminal charges
of being found with goods not duly accounted for, the State had
abandoned the original charge of smuggling in respect of first
respondent, the State also charged first respondent herein with
section 4(1)(b)(ii) as read with section 5 of the Food and Food
Standards Act [Chapter
15:04],
for false description of goods.
The
respondents were acquitted on the charge in terms of the Act, however
first respondent pleaded guilty to the charge involving false
description of goods.
The
criminal court at Mutasa ordered the State to immediately release the
sugar to the respondents, on condition that the sugar would not be
sold in the offensive Portuguese packaging.
The
appellants refused to release the sugar.
Having
been acquitted of violating the Act, the respondents approached the
court a
quo
for the release of the sugar in terms of section 193(9) of the
Customs and Excise Act.
The
magistrates court made a finding that the appellants release the
sugar to the respondents. It is that order which the appellants seek
to be set aside on appeal. The appeal is opposed.
Mr
HBRT
Tanaya
for
the respondents raised points in
limine
relating to the defective grounds of appeal and submitted that if
these points are upheld by us the unavoidable consequence will be to
strike off the appeal from the roll.
The
first ground of appeal requires quoting verbatim:
“The
Learned Magistrate grossly erred and misdirected himself on facts and
law in concluding that the appellants had been properly cited and
that the Notice of Intention to sue was properly served in this
matter and in purporting to condone the improper citation and the
purported service mero motu.”
The
respondents submitted that this is not a valid ground of appeal as it
is not precise nor concise but comes across as a rumbling statement
of several complaints bundled into one statement purporting to be a
ground of appeal. The ground of appeal is so crude that it raises
several arguments or points of arguments in one sentence.
The
respondents further contended that the so called ground alleges that
the magistrate erred and misdirected himself “on
facts and
law”
without stating any single finding of fact by the magistrate nor does
it indicate why each finding of fact or ruling of law that is to be
criticised as wrong is said to be wrong.
The
ground attacks the magistrate's conclusions and his exercise of
discretion without showing why such deserve to be attacked or
impugned.
The
statement of complaints does not comply with the rules, it was
submitted.
The
respondents condemn same as not being a ground of appeal and moved
that it be abandoned or struck off.
The
second ground of appeal reads:
“The
Learned Magistrate grossly erred and misdirected himself on facts and
law in concluding that the respondents had exhausted domestic
remedies prior to approaching the Magistrates Court for relief.”
The
respondents counsel, submitted that the second ground of appeal is
bereft of specificity just as the first one.
It
is not concise nor is it clear.
It
also attacks the Honourable Magistrate's decision without stating
why that conclusion is wrong. The ground of appeal does not disclose
whether there were any available domestic remedies that were not
exhausted. It also does not originate from the judgment that is being
appealed against but from a distinct judgment.
Respondents
further submitted that the court a
quo
ruled that the proviso to section 193 of Act gave it jurisdiction to
entertain the application and that the respondents had a
constitutional right to approach the Magistrates Court if aggrieved.
The
court a
quo
never decided that the respondents had exhausted local remedies or
that there were local remedies to be exhausted.
In
any case the respondents added that the second ground of appeal was
frivolous, the course of action open to the respondents was to
institute civil proceedings against the appellants once the goods
were not released.
The
third grounds of appeal reads:
“The
Learned Magistrate grossly erred and misdirected himself on facts and
law in concluding that there were no material disputes of facts in
the matter.”
The
respondents contend that this ground of appeal is equally fatally
defective for the reasons advanced already whilst addressing grounds
one and two above.
The
alleged material disputes of facts were not itemised even up to the
time the appellants prepared their heads.
The
fourth ground of appeal was crafted by the appellants as follows:
“The
Learned Magistrate grossly erred and misdirected himself on facts and
the law in concluding that respondents did not smuggle the goods
sugar when there was overwhelming evidence which proved that the
goods/sugar were smuggled.”
It
is the contention of the respondents that the fourth ground of appeal
is not valid. It is equally not succinct concise or clear. It does
not specify why the appellant says there was overwhelming evidence
which the court below did not see. Such evidence is not identified
within the body of the ground of appeal.
The
fifth ground of appeal was presented by the appellants as follows:
“The
Learned Magistrate grossly erred and misdirected himself on facts and
the law in ordering the release of the seized sugar in circumstances
where the notice of seizure was never challenged in terms of the
requisite tax legislation and the respondents failed to discharge the
onus upon them by the law to the satisfaction of the appellants.”
The
respondents submitted that the fifth ground is similarly imprecise
and unclear as the first to fourth grounds of appeal. The fifth
ground lacked particularity that could enable the magistrate to
meaningfully respond.
The
last ground of appeal by the appellants reads:
“The
Learned Magistrate grossly erred and misdirected himself on the law
in failing to appreciate that he is at law not empowered to determine
the validity or review of the Notice of Seizure.”
The
respondents argue that this is not a valid ground of appeal. An
alleged failure to appreciate the law cannot be a ground of appeal as
it does not amount to an attack of the court's judgment.
Respondents
added that it will be infeasible for one to fail to appreciate an
aspect of law and not still deliver a legally sound judgment on the
matter before that court.
In
any case the respondents, submitted the validity of the notice of
seizure was never an issue before the court a
quo,
no court application for review was ever brought before the court a
quo.
Finally
the respondents submitted that the whole set of grounds of appeal
filed by the appellants is a complete nullity and must be struck off
the roll with costs on legal practitioner–client scale.
The
preliminary points relating to the grounds of appeal were raised in
respondent's heads of argument, the appellants did not apply to
this court to file supplementary heads addressing the quality or
appropriateness of the grounds of appeal.
Having
closely examined and analysed the six grounds of appeal filed on
behalf of the appellants the preliminary points raised by the
respondents have a basis.
In
terms of Order 31(i)(4)(b) of the Magistrates Court (Civil) Rules,
2019, 2019, a valid ground of appeal shall state:
“(b)
In the grounds of appeal concisely and clearly the findings of fact
or ruling of law appealed against.”
For
a ground of appeal to be acceptably valid, it must be specific and
hence if it is impressive that ground is not a valid one at law.
In
the matter of Kodzwa
v Yambuka Holdings and Others
the court remarked dealing with the Old Magistrates Court Rules:
“At
the hearing of the matter I asked the appellant's legal
practitioner whether the notice of appeal complied with Order 31 Rule
2(4). Mr
Muchineripi
vigorously defended the notice of appeal. He states that the grounds
of appeal are clearly set out in the Notice of Appeal. Rule 2(4)
provides:
'(4)
A notice of appeal or cross-appeal shall state -
(a)…..
(b)
the grounds of appeal specifying the findings of fact or rulings of
law appealed against.
The
word 'specify' was defined in the Oxford
English Dictionary
as
“to state explicitly”.
In
other words the appellant is expected to clearly define and outline
his or her grounds of appeal.
The
above issue was dealt in S v McNab.
The
above decision was followed in S v Jack
where it was held that Rule 22 contained in SI 504 of 1979, requires
a notice 'setting out clearly and specifically the grounds of
appeal.'
Although
this was a criminal matter, the same can be said of a notice of
appeal in civil matters
In
casu,
the appellant's grounds of appeal are far from being concise and
specific.
The
notice of appeal is four typed pages in a simple matter of rescission
of judgement. They are long, winding and rumbling. From a mere
reading of the grounds of appeal, it is difficult to decipher what
the appellant is attacking in the judgement of the court a
quo.
The court is left in a situation where it has to attempt to make out
the grounds of appeal. This the court cannot do, as it amounts to
drafting grounds of appeal on behalf of the appellant”.
In
the case of Kunonga
v The Church of the Province of Central Africa
the Supreme Court dealing with the issue relating to the fact that
“grounds must be clear and concise” stated:
“[21]
In S v McNab
the only ground of appeal before this court was that: ' The learned
Trial Magistrate erred in fact and law in holding that the State has
proved the appellant was so drunk as to be incapable of having proper
control of his motor vehicle. This court held that the above ground
did not comply with the rules of court and more specifically that the
notice of appeal did not set out clearly and specifically the grounds
of appeal. The court remarked at page 282F-G:
'… there
must be stated in the Notice of Appeal a precise statement of the
points on which the applicant relies.
A
statement that 'the magistrate erred in fact and in law in holding
that the State had proved appellant was so drunk to be incapable of
having proper control of his motor vehicle' is not precise enough…
It
does not tell the respondent or the magistrate what is it that is
being attacked.
The
respondent is required to prepare his answer to the allegations made
in the Notice of Appeal….'
In
Songono v Minister of Law and Order it was held:
“It
has been held that grounds of appeal are bad if they are so widely
expressed that it leaves the appellant free to canvass every finding
of fact and every ruling of the law by the court a quo, or if they
specify the findings of facts or ruling of law appealed against so
vaguely as to be of no value either to the court or to the
respondents, or if they, in general fail to specify clearly and in
unambiguous terms exactly what case the respondent must be prepared
to meet…
The
lengthy and rambling notice of appeal filed in case falls woefully
short of what was required. Mr Bursey suggested that grounds of
appeal could be gleaned from the notice but that is not for the court
to have to analyse a lengthy document in an attempt to establish what
grounds the applicant intended to rely upon but did not clearly set
out…”
It
is not adequate for the appellant to prepare documents and inscribe
on it that it is a notice of appeal and then write a list of
complaints against a judicial officer's ruling or decision or
conclusion and take it to a court of appeal for that court to
randomly rummage what it can discern to be the complaint of the
appellant against the lower court.
Dealing
with the similar provision of the Magistrates
Court Rules of South Africa,
STEGMANN J
spelt out distinct requirements, both of which have to be satisfied
for a proper notice of appeal for it to qualify as a valid one:
(i)
The notice must specify details of what is appealed against (i.e. the
particular findings of facts and ruling of law that are to be
criticised on appeal as being wrong or misdirection); and (ii)
Secondly, the grounds of appeal (that is; it must indicate why each
finding of fact or ruling of law that is to be criticised as wrong is
said to be wrong).
For
example that the finding of fact appealed against is inconsistent
with some documentary evidence that shows to the contrary or because
it is inconsistent with the oral evidence of one or more witnesses,
or because it was against the probabilities peculiar to the matter
under consideration.
Such
comparative analysis would then be ratified in detail in the heads of
argument by referring to particular pages of the record of
proceedings and evidence adduced by the parties during the hearing.
The
trial officer and the respondent will be availed with enough and
clear grounds for them to respond meaningfully.
Such
grounds of appeal however have to be concise and brief but albeit
comprehensive in expression
In
Dzinoreva
v The State
the court defined the nullity of the defectiveness of grounds of
appeal:
“The
third ground of appeal attacks conviction on the vague averments that
the State failed to prove its case beyond a reasonable doubt. It is
trite that such a ground is too vague a ground to constitute a ground
of appeal. It is the same as saying the appellant is not guilty
because he is not guilty. The magistrate who is seized with such a
notice and grounds of appeal is entitled not to respond to it at all.
He cannot possibly know what it is which is being attacked in his
judgement. A notice of appeal without meaningful grounds is not a
notice of appeal. As such it is a nullity which cannot be amended.”
In
the matter of Kunonga
(supra)
the Supreme Court summarised almost all the previously decided cases
relating to the grounds of appeal, such as that;
(i)
“the
judgement was against the weight of evidence”;
(ii)
that a court's finding is wrong because of “the
fact that the charge was not substantiated”;
or
(iii)
that “the
learned magistrate erred in accepting the complainant's evidence”;
(iv)“the
conviction is against the weight of the evidence”;
(v)
“the
evidence does not support the conviction”;
(vi)
“the
conviction is wrong in law”;
or
(vii)
that “the
learned magistrate erred in convicting the accused person in the
absence of any concrete evidence showing beyond a reasonable
doubt…that he committed the offence”;
were held to be all incurably bad.
They
do not tell anyone what is it that is being attacked. Such grounds
were held to be “meaningless”.
In
casu
the appellants grounds of appeal aver that “the
learned magistrate grossly erred and misdirected himself on facts and
law 'in
concluding'
or 'in
ordering'
or 'in
putting to appropriate';
The
use of all the words attacks the judgement of court or order granted
as a result of a judgement or a ruling.
All
the grounds spelt by the appellants do not disclose what is it the
appellants are complaining about.
No
wonder why the trial magistrate in his response to the grounds of
appeal, properly in our view wrote that he stood by the reasons for
his judgement filed of record, because he failed to appreciate what
it was that he had failed or erred in his judgement.
The
points in
lemine
filed by the respondents are upheld.
There
is need for this court to express its displeasure towards this
business as usual by legal practitioners in the drafting of the
grounds of appeal; before a legal practitioner embarks to draft his
or her client's notice of appeal in order at least to comply with
the rules of the court. Failure to do so would lead to an order of
costs de
bonis propriis
on
attorney client scale.
The
appellants having received the respondents heads did not take any
steps at least to apply for the amendment of the notice of appeal nor
did the appellants engage the respondents and withdraw the defective
notice from the court.
Appellants
nonchalantly proceeded to indicate and agree with the respondents to
have the matter be decided on paper. That was not the proper attitude
by the appellants.
Accordingly
it is ordered as follows:
The
appeal is struck of the roll with costs on attorney and client scale.
MWAYERA
J agrees ___________
1.
Qingsham Investments (Private) Limited v Zimbabwe Revenue Authority
HH207/17
2.
See Dzinoreva v The State HH780/15
3.
Kodzwa v Yambuka & Ors HH389/16
4.
(supra)
5.
1986 (2) 280 (SC) at 282B-E
6.
1990 (2) ZLR 166 (SC)
7.
S v Sibanda 2001 (2) ZLR 514 (H)
8.
See also the matter of Jonga v Minister of Lands HH243/17
9.
SC25/17
10.
Supra
11.
In Van de Walt v Abreu 1994 (4) SA 85 (W)
12.
Chikura N.O. & Another v AL Sham Global BVI Ltd SC17/2017
13.
HH780/15
