Masimba Charity Huni Fuels Private Limited v Nathan Amos Kadurira and Makoni Rural District Council

### Preamble
1
HH 98-21
HC 7753/16
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MASIMBA CHARITY HUNI FUELS PVT LTD

versus

NATHAN AMOS KADURIRA

and

MAKONI RURAL DISTRICT COUNCIL

HIGH COURT OF ZIMBABWE
CHINAMORA J & TSANGA J 
22 October 2020 & 10 March 2021

Civil Appeal

Mr T Tabana, for Appellant
Mr J Zviuya, for 1st Respondent
Mr C Warara, for 2nd Respondent

CHINAMORA J: This appeal was against the granting of an interdict by the lower court whereby the appellant, Masimba Charity Huni Fuels Private Limited (hereinafter referred to as “the appellant”) was interdicted from occupying or effecting any form of development and constructing at stands numbers 1497, 1498 1499, 1500 and 1501, Nyazura Township, Nyazura. The stands in question had been allocated and sold to the first respondent Nathan Amos Kadurira by the second respondent Makoni Rural District Council (hereinafter referred to as “the Council”) in compensation for land that had been taken from him after reallocation to another party. The appellant was also ordered to remove all its equipment and materials.

The lower court’s reasons for granting the interdict highlighted that there was no material dispute of fact and that a robust approach could be taken without prejudice. The court a quo also reasoned that there was a need to look at special circumstances that may depart from rule of ownership being proven by title deeds, i.e. where rights can be protected without registration. The court had also looked at the allocation letter and at the history of allocation and double sales pertaining to allocation of land to the first respondent. It highlighted that the letter was not disputed by the Council and that it admitted to dealing with first respondent as applicant regarding the land in dispute. It had also noted that a purchase price had been paid by the first respondent who had then fallen victim to bad administration by Council.

Equally important is that the lower court found the requirements of an interdict to have been satisfied. The first respondent having paid for land and having been allocated the land effectively made him the owner of such land. Accordingly, the lower court found that he had established a clear right. The court also reasoned that the council was the only body that the first respondent could have approached as it administers the land in question. It also found that the Council had shown a failure to appreciate the rights of the first respondent as applicant, thus leaving him with no remedy except to seek an interdict. It concluded that the appellant on the other hand could approach the Council for any losses it may have incurred.

The grounds of appeal
Grounds of appeal in this appeal were that the court erred and misdirected itself in the following seven ways:

By making a finding that there were no material dispute of facts when it was apparent from record that there were so many dispute of facts.

In finding that the first respondent satisfied the requirement of an interdict contrary to evidence placed before it.

In finding that the first respondent had provided sufficient evidence to prove that he had a right to the property notwithstanding that this was contradicted by evidence placed on record.

In upholding the first respondent’s claim on the basis of speculative evidence despite the overwhelming evidence which showed that the appellant was a holder of a lease agreement with the second respondent.

In making a finding that there was a double sale wherein the property in issue was state land which could not have been sold.

In holding that the property had been sold to the first respondent when the property was state land which could not have been sold to the first respondent.

In making a finding that the property belonged to the first respondent in the absence of proof that he had completed the process of obtaining a lease agreement with the second respondent

The prayer sought was firstly, that the appeal succeeds with costs, and, secondly, that the judgment of the court a quo be set aside and in its place substituted the following

“Applicant’s claim be and is hereby dismissed with costs.”

At the hearing, the first respondent raised two sets of points in limine, firstly, regarding the impropriety of the standing of the Council as the second respondent when it had in fact filed papers in support of the appellant. The second set of points of in limine related to the appellant’s grounds of appeal, which were said to be unclear and inconcise. Whilst appellant abandoned grounds 3, 5 and 7 at the hearing, the first respondent argued that the remaining grounds were equally faulty and that the appeal ought to be dismissed.

The court concluded that the point in limine regarding the Council’s standing as second respondent could be upheld. However, the court reserved judgment on the points in limine pertaining to the appellant’s grounds of appeal. This was on the understanding that the merits of the appeal, though addressed in court, would only be dealt with in the judgment if the points in limine regarding any of the grounds of appeal passed the hurdle.

Point in limine on the Council’s standing as second respondent

Mr Zviuya for the first respondent highlighted that the Council was the second respondent in the court below and that it was not aggrieved by the judgment since it had not filed any appeal. He argued that had it been aggrieved, an appeal would have been filed. It was therefore his argument that it was improper for the Council to file heads of argument supporting the appellant’s case and that it could not seek a remedy through the back door.

He relied on the case of Nelson Chamisa v Emmerson Dambudzo Mnangagwa & 24 Others CCZ 21/19, where papers filed by certain respondents were deemed to be not properly before the court and expunged from the record. The rationale for so doing in that case was that the specified respondents, instead of challenging the election in their own right within the specified time frame, had sought to do so under the guise of the procedure prescribed for the opposition to the petition or application. This was deemed improper.

His argument was that similarly, in casu, the Council as an aggrieved party ought to have appealed against the decision of the magistrate if it was dissatisfied with that decision. They could have applied to be joined as an appellant but did not. He therefore maintained that it was clearly improper for the Council to file heads of argument in support of the appeal when it was in fact a respondent whose heads would have been in opposition to the appeal instead of being heads for appellant smuggled into the proceedings as respondent’s heads of argument.

Mr Warara, who appeared as the Council’s lawyer, sought to argue that the Council had a right to speak because it was part of the matter when it originated and is the implementer of any remedy that will be granted. The reason he proffered for failure to appeal was that instructions had been given much later. This court was not persuaded by Counsel’s explanation and concluded that the argument by Mr Zviuya had merit, because there was indeed nothing that precluded the Council from being joined as appellant which it had not done. In the face of the clear acknowledgment that right from the start Council could have applied to be joined as an appellant and chose not to, the court agreed with the first respondent that the Council’s heads of argument submitted as second respondent albeit in support of the appeal, ought to be expunged from the record. It was evident that their thrust and relief was not that of a respondent but an appellant. Accordingly, the papers having been expunged the appeal proceeded to be heard as between appellant and first respondent only.

Points in limine on the appellant’s grounds of appeal.

The appellant having already withdrawn three grounds of appeal, namely, grounds 3, 5 and 7, the main thrust of the objection to the remaining grounds of appeal as a whole by Mr Zviuya was that they were not clear and concise. The first ground of appeal, which was that there were material dispute of facts, did not articulate exactly where the dispute of fact lay. As such that failure to articulate where the dispute lay was said to be tantamount to having no ground of appeal.

In Dr Nobert Kunonga v The Church of the Province of Central Africa SC25/17, the court dealt extensively with court cases addressing the need for grounds of appeal in a notice of appeal to be clear and concise. The essence of what was emphasised in the analysis of cases in the Kunonga case boils down to the principle that “there must be stated in the Notice of Appeal a precise statement of the points on which the appellant relies.”

In particular the court cited the case of Hendricks v Wilcox 1962 (1) CPD 304, in which it was stated as follows regarding the need for grounds of appeal to be clear and concise:

“… it is clear that a notice of appeal which sets out as a ground of appeal merely that the judgment is against the weight of the evidence is, generally speaking, bad … The magistrate made a number of findings of fact on the evidence and then made a further finding that neither party had been negligent. It is impossible to deduce from the notice of appeal which of these findings is being challenged.

… I have come to the conclusion that the notice of appeal is bad. There is abundant authority to the effect that such a notice cannot be amended …”

This court agrees that appellant first ground of appeal ground of appeal as couched is meaningless and that it is not for the court to fish out an unarticulated dispute of fact.

Regarding the second ground of appeal, viz, that the court erred in finding that the first respondent satisfied the requirements of an interdict contrary to evidence placed before it, Mr Zviuya’s argument was that it is not the duty of the court to find out which requirement of an interdict has not been satisfied. In other words, it was contended that the couching of this ground was vague and that it was for the appellant to articulate which ground had not been satisfied. The position was succinctly stated in John Chikura NO and Anor v Al Shams’s Global BVI Ltd SC 17-17, as follows:

“It is not for the Court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of ‘grounds of appeal’ in order to determine the real issues for determination by the Court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal. That is not so in the instant matter. The grounds of appeal are multiple, attack every line of reasoning of the learned judge and do not clearly and concisely define the issues which are to be determined by this Court”.

We find the reasoning of the Supreme Court compelling and respectfully agree with it. In this respect, we are persuaded by Mr Zviuya’s argument.

Mr Tabana, on behalf of the appellant, argued that there was a typographical error in the ground in that the question of harm or injury does not arise and that the requirement that was not met was that of a clear right. The gist of the finding in the lower court having been premised on the fact that the second respondent had established a clear right, this ground can stand.

The fourth ground of appeal is that the court erred in upholding the first respondent’s claim on the basis of speculative evidence despite the overwhelming evidence which showed that the appellant was a holder of a lease agreement with the second respondent. Mr Zviuya argued that is a rambling ground of appeal for the reason that what was being called speculative evidence was not clear, nor was the nature of the overwhelming evidence alluded to. It was also argued that a lease agreement cannot be overwhelming evidence as it cannot supersede ownership rights.

The court in the Kunonga case also cited the case of Songono v Minister of Law and Order 1996(4) SA 384 (Eastern Cape Division) where it was stated at p 385 G-H that: -

“… 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 made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet …”

and further at 386 A-B that: -

“… the lengthy and rambling notice of appeal filed in casu falls woefully short of what was required. Mr Bursey suggested that grounds of appeal could be gleaned from the notice but that is not the point – the point is that the notice must clearly set out the grounds and it 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. …” [Our own emphasis]

As with the reasons for dismissing the first ground of appeal, this ground too is dismissed for its lack of clarity on what exactly is being complained about.

The sixth ground of appeal is that the court erred in holding that the property had been sold to the first respondent when the property was state land which could not have been sold to the first respondent. It was said by Mr Zviuya to be confusing for a number of reasons. Firstly, the thrust of his argument was that the aspect of the stands having been sold was common cause. Secondly, a perusal of the record does not reveal any evidence that the land that was sold is state land and, additionally, there was no rationale as to why the local authority would be receiving money for state land. He also argued that state land, in any event, can be sold. Therefore, at the nub of the objection to this ground was that the ground equally lacked clarity and precision as envisaged in the case of Kunonga case.

Quite clearly, this ground is closely linked to the issue of whether or not the second respondent managed to establish a clear right. It is equally at the heart of the magistrate’s court order in granting the interdict. We found that the objection to this ground of appeal was merited.

Analysis

In light of our findings regarding the remaining grounds of appeal, our view is that the appeal will be dealt with on the two grounds, namely:

That the court erred and misdirected itself in finding that the first respondent satisfied the requirement of an interdict contrary to evidence placed before it.

That the court erred and misdirected itself in holding that the property had been sold to the first respondent when the property was state land which could not have been sold to the first respondent.

The leading case on the requirements for a final interdict is Setlogelo v Setlogelo 1914 AD 221 at p227. (See also Minister of Local Government v Mudzuri & Anor 2004 (1) ZLR 221 at p227).  These can be summarized as follows: (a) a clear right; (b) irreparable harm actually committed or reasonably apprehended; and (c) the absence of an alternative remedy. It is clear from the grounds of appeal that we have allowed to stand that the appellant contends that a clear right was not established in the court a quo. The authorities show that what is required where a final interdict is sought is that the right must be established clearly on a balance of probabilities. Having looked at the record, we are not satisfied that any basis exists for attacking the lower court’s finding that the respondent had established the requirements for an interdict, particularly a clear right. As we have previously noted, that the stands were sold is common cause. The suggestion that the land sold was state land was not shown by any evidence led before the lower court. At any rate, the probabilities point otherwise, because the fact that the local authority sold the stand rules out the possibility of the land being state land. Even if it was state land, the appellant did not show (and has not shown) what precluded it from sale. That being the case, the finding of the court a quo cannot be faulted. This therefore disposes of the two grounds of appeal that were still remaining.

In the result, the appeal is dismissed with costs.

Rubaya & Chatambudza, applicants’ legal practitioners

Jarvis & Palferaman, 1st respondent’s legal practitioners