Agson Mafuta Chioza v The Minister of Lands, Agriculture, Water and Rural Resettlement and Josiah Chikowore

### Preamble
1
HH 569-22
HC 1583/21
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AGSON MAFUTA CHIOZA

versus

THE MINISTER OF LANDS, AGRICULTURE, WATER

AND RURAL RESETTLEMENT

and

JOSIAH CHIKOWORE

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 7 March & 29 August 2022

Opposed Matter

Applicant in person

Mr N Chikowore, for the 2nd respondent

MANGOTA J: I heard this application on 7 March 2022. I delivered an ex tempore judgment in which I dismissed it with costs.

On 4 April, 2022 the second respondent wrote requesting written reasons for my decision. My reasons are these:

The applicant, one Agson Mafuta Chioza (“Chioza”) sued the Minister of Lands, Agriculture, Water & Rural Resettlement (“the Minister”) and one Josiah Chikowore (“Chikowore”) who are respectively the first and second respondents in this application.  He moved me to, among other relief, direct that:

the agreement of a farm for a farm exchange between the Minister and him is binding;

the Minister issue to him a deed of grant of the entire Game Park situated West of Voospoed Farm, Darwendale, Nyabira within 90 working days from the date of service of this court order to him by the Sheriff of Zimbabwe – and

the three of them- Choiza, the Minister and Chikowore- finalise outstanding issues.

Chioza’s claim is that he is the lawful owner of Rothbury Farm (“the farm) which is in the District of Mazowe, under Mashonaland Central Province. The Minister, he complains, settled new farmers, amongst them Chikowore, on the farm.  He asserts that, in settling new farmers on the farm, the Minister erroneously believed that the same was owned by a white farmer.  He claims that, following representations which he made, the Minister discovered that the farm was not owned by the white farmer but by him.  He states that his farm had illegally been transferred into the name of the white person who, fearing prosecution, ran away from the jurisdiction of the court. He asserts that he made an effort to have the Minister remove the settlers from his farm. The Minister, he claims, entered into an agreement with him of a farm for a farm exchange instead of removing the new farmers from the farm. The agreement, according to him, was that the new farmers would remain on the farm and the Minister would give him another farm as compensation for his farm.  He alleges that, pursuant to his agreement with the Minister, he opted to be given the entire game park which is situated on the West of Voospoed Farm, Darwendale, Nyabira under Mashonaland West Province. He claims that the Committee which the Minister constituted, following the promulgation of Statutory Instrument 62 of 2020, wrote informing him of the recommendations which it made to the Minister. The Committee, according to him, recommended that the Minister approve the issue of a deed of grant to him in respect of the entire game park.  He, accordingly, prays for the remedy of specific performance.  He, in short, moves me to compel the Minister to transfer the entire game park which is located in Zvimba District under Mashonaland West Province to him in exchange with the farm which he claims belongs to him.

Both the Minister and Chikowore filed their respective notices of opposition to the application. The Minister denies Chioza’s allegation which is to the effect that he owns the farm. He asserts that the farm was acquired by Government and is, therefore, State land.  He insists that Chioza’s previous ownership of the farm does not nullify the acquisition of the farm. Chioza, according to him, had been negotiating with him for alternative land. He states that the Committee’s obligation is to recommend and not to allocate land.  He avers that he is still to decide Chioza’s case in consultation with the Land Commission. He insists that the farm is State land following his acquisition of the same.  He opposes the eviction of the new farmers whom he settled on the farm.  He claims that Chioza has no right to evict the farmers who, according to him, have documents of tenure on the farm.  He moves me to dismiss the application with costs.

Chikowore challenges Chioza’s title to the farm onto which the Minister settled other new farmers and him. He chronicles the events which he alleges led to the acquisition of the farm by the Minister and their subsequent settlement on the same. The events, according to him, are that:

Chioza was the owner of the farm which he sold to one John Lewis Sawyer (“Sawyer”) in 1998;

Transfer of title of the farm from Chioza to Sawyer was contested in multiple suits;

In one suit, Case Number HC 6582/2000, Chioza was, on 23 August 2000, granted a default judgment returning title of the farm to him;

The default order was, however, rescinded by the court;

Chioza appealed the decision of the court to the Supreme Court in Agson Mafuta Chioza v John Lewis Sawyer & Anor, SC 35/03;

The Supreme Court dismissed Chioza’s appeal and affirmed that Sawyer was the owner of the farm;

On 21 November, 2003 and when ownership of the farm vested in Sawyer, an acquisition order in terms of Section 8 of the Land Acquisition Act [Chapter 20:10] was issued in respect of the farm;

Thereafter, and on divers dates, the Minister issued offer letters to the farmers whom he settled on the farm;

In 2005 and in terms of Constitutional Amendment (No. 17) the farm was itemized in Schedule 7 of the former constitution;

On 14 November, 2007 Chioza, using a non-existent order which had been rescinded

(HC 6582/2000) fraudulently caused a revival of the deed of transfer number 2901/88;

The farm is gazetted land and has not been delisted from compulsory acquisition.

He challenges Chioza’s locus to evict other settlers and him from the farm.  He moves me to dismiss the application with costs which are at attorney and client scale.

Chioza moves me to compel the Minister to transfer to him the entire game park which is in Mashonaland West Province, Zvimba District, in exchange for the farm which he claims he owns.  He, in the alternative, moves me to evict from the farm the settlers, Chikowore included, whom the Minister settled on the farm.  He, in short, prays for the remedy of specific performance and that of rei vindicatio, in the alternative.

Specific performance is a remedy which is available to the plaintiff or applicant who entered into a binding contract with the defendant or the respondent.  It is available to him on the ground that he performed, or is ready to perform, his own side of the contract.  It is predicated upon the parties having entered into a valid contract between them.  A contract is, in short, an agreement which is intended to be enforceable at law.  It creates legal obligations. The parties to it must intend to create the obligation.  It must comply with all the requirements which the law sets for the creation of obligations by agreement. The requirements, in the main, relate to contractual capacity of the parties, possibility of performance, legality of the agreement and prescribed formalities. It is defined as an agreement which is made with the intention of creating an obligation: Van der Merwe, Van Huyssteen, Reinecke, Lubbe, Contract General Principles, 4th edition, Juta, page 7. It is different from such agreements as social contracts.

For the applicant to succeed in respect of the remedy of specific performance, he must show that he entered into a farm-for-a farm exchange with the Minister.  He must also show that he has performed, or is ready to perform, his own side of the agreement.  He cannot succeed where he has not proved the existence of the contract between the Minister and him. He will also not succeed where he has neither performed nor expressed the intention to perform his own side of the contract.

On the issue of rei vindicatio which Chioza is moving me to grant to him vis-a-vis Chikowore and other settlers whom the Minister settled on the farm, Chioza should prove, on a preponderance of probabilities, that he owns the farm. Where such proof is made, that entitles him to assert his rights to the farm against the whole world.  An owner, it is trite, cannot be deprived of his property against his will.  He is entitled to recover it from any person who retains possession of it against his consent: Silberberg & Schoeman, Law of Property, 3rd edition, page 272; Stanbic Finance Zimbabwe v Chivhungwa 1999 (1) ZLR 262 (H).

It follows, from a reading of the foregoing authorities, therefore, that the remedy of rei vindicatio is available to an owner of a thing to recover it from the possession of another person: African Sun Zimbabwe (Pvt) Ltd v Mlongoni HH 332/15.  It is only where the possessor has some enforceable right against the owner that the remedy cannot succeed: Oakland Nominees Ltd v Gelria Mining & Investment Co. Ltd 1976 (1) SA 441 at 452 (A).

Chioza’s claim is that he entered into a contract with the Minister.  He alleges that he agreed with the Minister that he exchanges the farm which he claims he owns with Government’s game park which is in Zvimba District, under the Province of Mashonaland West. He, for some unexplained reason, does not mention the name of the game park.  A game park which he alleges is the subject of his discussion as well as agreement with the Minister cannot, in my view, simply be referred to as ‘the entire game park situated West of Voospoed Farm, Darwendale, Nyabira’. The game park must have some means by which it is identified, if what Chioza alleges is to be believed.  It is inconceivable to imagine that the Minister and him entered into, and concluded, a discussion in respect of an immovable property which remains unidentified by name.  Nor is it conceivable that the two of them concluded such a far-reaching agreement without them reducing the same into writing. He is not having me believe that the Minister and him entered into a verbal contract on a matter of such a serious magnitude as to involve two immovable properties. His claim, as stated by him, remains in the realms of conjecture more than it remains in that of the real world. He produced no agreement as a way of substantiating his claim.

Annexure “G” which Chioza attached to his application does not assist his case at all. It appears at p 29 of the record.  It does not, in any way, refer to the agreement which he claims he concluded with the Minister.  Its Heading refers to nothing else but the farm.  It reads ‘Application for Removal of Endorsement on Your Title and/or Return of Your Farm in terms of S.I. 62 of 2020’. 	The annexure is deafeningly silent about the agreement which he claims he concluded with the Minister. Its contents are a response to the application which he wrote to the Minister’s Committee on 5 May, 2020. The application requested the Minister to remove the endorsement which he placed on the farm following the latter’s acquisition of the farm.  His further request to the Minister was for the latter to return to him title of the farm. He premised his application on Statutory Instrument 62 of 2020.

In response to his letter, the Minister’s Committee advised him of its meeting and of his request among other requests which were of a similar nature to his own. It advised him of the recommendations which it made to the Minister. That is as far as that matter went. It showed no contract having been entered into by the Minister and him.

The motion which Chioza presented to me to direct the Minister to transfer the entire game park to him in exchange for the farm is misplaced. It is tantamount to moving me to compel the Minister to enter into a contract with him.  That is not the function of the court. Its function is to compel parties who entered into a valid contract to stand by, and implement, their respective sides of the agreement. It does not make contracts for parties. Nor does it compel one of the parties to an intended contract to enter into such with the other.

Chioza, it is evident, did not enter into any contract with the Minister.  The statement which he made during submission confirms the observed view.  He stated that there was no agreement between the Minister and him to the effect that he would take occupation of the game park in exchange for the farm.  His application for the main relief cannot succeed. He failed to prove his main claim on a preponderance of probabilities.  It is therefore dismissed.

Chioza almost obtained his relief in the main claim on a platter. On a platter because the Minister who filed his notice of opposition as well as Heads chose not to attend court on the day that the application was heard.  But for Chikowore, Chioza would have obtained default judgment against the Minister if issues which related to his alleged contract with the latter had not been consciously considered. The presence of Chikowore into the equation of the application placed many hurdles in the way of Chioza’s case. The hurdles which Chikowore raised are not only very pertinent. They also throw Chioza’s application off the balance, so to speak.

Of importance in the mentioned regard is the chronology of events which Chikowore narrated in his challenge to Chioza’s title to the farm. He claimed, and his claims were not controverted, that Chioza fraudulently ‘revived’ his title to the farm which he sold to Sawyer in 1998. The unchallenged allegation places the case of Chioza into complete disarray. It leaves one with no clear answer as to the correct position of the matter which relates to ownership of the farm between the State, on the one hand and Chioza, on the other. The matter becomes more complicated than otherwise when regard is had to the claims of Chioza who alleges that Sawyer fraudulently wrestled the farm from him vis-à-vis Chikowore’s statement which is to the effect that Chioza acted fraudulently when he ‘revived’ title of the farm into his (Chioza’s) name.

The abovementioned two diametrically opposed views leave me with no clear answer on who between the State and Chioza has ownership of the farm. The matter presents a very serious dispute of fact which cannot be resolved on the papers which the parties placed before me. The application cannot, on the observed matter, be allowed to stand.  It cannot because it stands on no leg. Chioza embarked on motion proceedings at his own peril.  He should have realized that his claim of title to the farm would be seriously disputed.  He should, therefore, have remained wise.  He should have instituted an action and not an application.  Because his ownership of the farm is challenged, his locus to apply as he did remains questionable.  Chikowore’s statement is to an equal effect. He challenges Chioza’s locus to sue for the eviction of other settlers and him from the farm.

Chioza, it is observed, sued Chikowore and nine others on 20 July, 2017. He sued them under HC 4188/13.  He moves the court for a declaratur. He moves it to declare that the offer letters which the Minister issued to Chikowore and other settlers at the farm are null, void and of no force or effect. He also moves for their eviction from the farm which he claims belongs to him. Chioza’s motion for the alternative relief in casu is therefore lis pendens. He cannot have a second bite of the cherry without violating the principles of fairness and justice.

The in limine matters – lack of locus on the part of Chioza and lis pendens – are therefore not without merit. They destroy Chioza’s application for the alternative relief in a manner which requires no debate.

Chioza failed to prove his application on a balance of probabilities. The application is, in the result, dismissed with costs.

Applicant in person

Gwaunza and Mapota, second respondent’s legal practitioners