Fortune Jani v Belinda Chitao and Minister of Local Government, Public Works and National Housing N.O

### Preamble
1
HH 93-22
HC 4377/21
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FORTUNE JANI

versus

BELINDA CHITAO

and

MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O

HIGH COURT OF ZIMBABWE

DEME J

HARARE, 18 January, & 16 February 2022

Opposed Application

Mr. E. Dondo, for the applicant

Mr. F. Chiwashira, for the 1st respondent

No appearance for the 2nd respondent

DEME J: The Applicant approached this court by way of court application seeking a declaratory order in terms of Section 14 of the High Court Act [Chapter 7:06]. The applicant’s draft order reads as follows:

“1. An application for Declaratory Order be and is hereby granted in favour of the Applicant in the following terms;

Applicant be and is hereby declared the lawful holder of rights, title  and interest in property known as stand number 6401 Retreat Waterfalls.

First respondent and all those in occupation through her at property known as No. 6412 Retreat waterfalls be and  hereby are ordered to forthwith vacate the property and give vacant possession to the Applicant within 10 days from the date of this order.

First respondent be and is hereby ordered to bear costs of this suit on a higher scale.”

I will proceed to give a summary of the facts.  According to the founding affidavit, the applicant joined Joseph Chinotimba Housing Co-operative Society some time in 2009. The applicant has annexed to the founding affidavit a card issued by the housing co-operative for such purpose. The applicant further averred that he paid subscriptions as a member of housing co-operative. The applicant also averred that the first respondent invaded his property known as number 6402. The first respondent, upon being asked by the applicant, indicated that she was allocated the same property by her co-operative namely Samora Machel Housing Co-operative. According to the applicant the first respondent constructed a temporary structure at the disputed property.

The applicant further alleged that Samora Machel Housing Co-operative acted illegally by allocating Stand No. 6402 to the first respondent as it had no authority to act in that manner. According to the applicant, the property in question was allocated to Joseph Chinotimba Housing Co-operative and not to Samora Machel Housing Co-operative. The applicant attached, to the present application, the copy of the lease agreement between himself and the second respondent. The applicant also averred that the first respondent does not have corresponding documentation proving her right to be at Stand No. 6402. It is the applicant’s case that the first respondent has further disturbed him from developing the property in question.

The first respondent disputed the applicant’s averments in a number of ways. The first respondent insisted that she did not invade the property in dispute. She alleged that she was allocated the property in question by her co-operative, namely Samora Machel Housing Co-operative. She further alleged that the property in dispute was allocated to her housing co-operative. She attached to her opposing affidavit allocation of stands made by the second respondent   in the year 2012 to her co-operative. She further alleged that Joseph Chinotimba Housing Co-operative was allocated other blocks of stands which do not include the disputed property.

The first respondent averred that the present application lacks merits as there is no basis for it. She further averred that Harare South Union was not in existence when it is deemed to have allocated the property in dispute to Joseph Chinotimba Housing Co-operative. She further alleged that the allocation was an illegality as the allocation of the land could not have been done before the existence of the entity. The first respondent made reference to the judgment by Chikowero J.  Where the existence of Harare South Union was put under spotlight. In his answering affidavit, the applicant highlighted that the property in question together with other stands were allocated to Joseph Chinotimba Housing Co-operative by the Resident Minister in 2008.

The first respondent raised point in limine to the effect that the answering affidavit and the founding affidavit contain conflicting versions of the same story. She alleged that the applicant, in the founding affidavit, stated that the block of stands ranging from 6392 up to 6414 was allocated to Joseph Chinotimba Housing Co-operative by Harare South Union in 2012. It is the first respondent’s case that in the answering affidavit, the applicant was now alleging that the same stands were allocated by the Resident Minister to Joseph Chinotimba Housing Co-operative in 2008.  The first respondent urged the court to draw adverse inferences against the Applicant for such inconsistences. The first respondent further alleged that the new evidence introduced by the Applicant in his answering affidavit must be expunged by the court as such new evidence puts the first respondent in a disadvantaged position as she will have no opportunity to respond to the new evidence.

At the hearing, Mr. Dondo, on behalf of the applicant, submitted that the applicant was withdrawing all the reference to new evidence introduced in the answering affidavit relating to the Resident Minister. Thus, he urged the court to expunge all such new evidence.  With respect to merits of the present application, the applicant’s counsel submitted that the court must be guided by the decision of the Supreme Court which declared that the block of stands in question belongs to Joseph Chinotimba Housing Co-operative. He drew the court’s attention to the case of Dube v Murehwa and Another. He further submitted that the judgment of Chikowero J., in the case of Matema v Mahachi, can be distinguished from the present application as the parties in the two cases are different.

On the other hand, Mr. Chiwashira, on behalf of the first respondent, submitted that the Matema v Mahachi, has been appealed against. Thus, he further submitted that there is a possibility that the decision made by the Supreme Court in the case of Dube v Murehwa (supra) will be corrected. Mr. Chiwashira also submitted that the expunging of the new evidence will leave the applicant with no leg to stand on as the allocation of stands by Harare South Union has been nullified by Chikowero J. In the case of Matema v Mahachi (supra).

The applicant sought to amend his draft order at the hearing of the present application. The Property stated in the draft order is different from the property specified in the applicant’s founding affidavit. The applicant is    claiming stand numbers 6401 and 6412 in the draft order which is an error according to the applicant’s counsel. Mr. Dondo Orally applied for the amendment of the draft order so that the property claimed should be 6402 and not 6401 nor 6412. He further submitted that the court has discretion to correct the order sought.

The present application is founded upon Section 14 of the High Court Act, [Chapter 7:06] which provides as follows:

“The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

Manzunzu J., in the case of Robbert Samaya v Commissioner General of Police N.O and Others quoted with approval   the case of Johnson v Afc, where Gubbay CJ commented as follows:

“The condition precedent to the grant of a declaratory order under s 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an “interested person”, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto… At the second stage of the enquiry, the court is obliged to decide whether the case before it is a proper one for the exercise of its discretion under s 14 of the Act. It must take account of all the circumstances of the matter.”

In the present matter, the applicant is claiming to be declared the lawful holder of rights, title and interest in property known as stand number 6402, Retreat Waterfalls. The applicant has attached the lease agreement in support of his application. He further referred the court to the case of Dube v Murehwa (supra) which declared that the same block of stands belong to Joseph Chinotimba Housing Co-operative. That decision is still extant.  I am of the opinion that the Applicant has demonstrated that he is an interested person with direct and substantial interest in the matter. The interest claimed by the applicant concerns existing and future rights to occupy the disputed property. The applicant has produced a valid lease agreement between himself and the second respondent which has not been cancelled.

The first respondent has not demonstrated her rights, title and interest in the disputed property. The first respondent has failed to challenge the validity of the lease agreement between the applicant and the second respondent.  Rather, the first respondent sought to rely upon the case of Matema v Mahachi (supra). However, I find it difficult to nullify the rights of the Applicant using the case of Matema v Mahachi (supra) since the parties in the Matema case and the present application are different. Further, the allocation of stands to Joseph Chinotimba Housing Co-operative was not discussed in the Matema case. In light of the Supreme Court’s decision of Dube v Murehwa, I am forced to rely upon the decision of the superior court, guided by the stare decisis principle. That decision declared that Samora Machel Housing Co-operative is not the legitimate owner of the block of stands ranging from 6392 up to 6414. In the circumstances, the applicant is the lawful holder of rights, title and interests in the disputed property.

With respect to costs, costs on an ordinary scale are reasonably sufficient. The applicant had claimed costs on a higher scale. I disagree with the Applicant’s view. I am of the opinion that costs on an ordinary scale are just and fair between the parties.

Accordingly, it is ordered as follows:

Applicant be and is hereby declared the lawful holder of rights, title  and interest in property known as stand number 6402 Retreat Waterfalls.

First respondent and all those  claiming occupation through her at property known as No. 6402 Retreat waterfalls be and  are hereby ordered to forthwith vacate the property and give vacant possession to the applicant within 10 days from the date of this order.

First respondent be and is hereby ordered to bear costs of this suit on an ordinary scale.

Messrs Saunyama, Dondo, applicant’s legal practitioners.

Macharaga Law Chambers, 1st respondent’s legal practitioners.