Refayi Chikandiwa and Pameti Nyemba v Anderson Chikandiwa and Madzudzo Chikandiwa and Tarisayi Kapuya and Chamunorwa Kapuya and Village Head Kanengoni and Chief Negomo

### Preamble
1
HH 769-22
CIV ‘A’ 20/22
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REFAYI CHIKANDIWA

and

PAMETI NYEMBA

versus

ANDERSON CHIKANDIWA

and

MADZUDZO CHIKANDIWA

and

TARISAYI KAPUYA

and

CHAMUNORWA KAPUYA

and

VILLAGE HEAD KANENGONI

and

CHIEF NEGOMO

HIGH COURT OF ZIMBABWE

TAGU & MAXWELL JJ

HARARE, 21 June & 2 November 2022

Civil Appeal

KF Chipudya, for the appellants

S Mushonga, for the 1st and 2nd respondents

TAGU J: This is an appeal against the whole judgment of the Magistrates Court of Zimbabwe sitting at Concession under case number C 57/21 handed down on 21 December 2021.

BACKGROUND FACTS

The appellants are husband and wife.  In the court a quo the appellants filed an application for interdict seeking that the first to the fourth respondents be interdicted from interfering with their farming activities in Kakora village. The basis of the application being that the first appellant was the only child born of his parents.  He was gifted with land approximately one hectare in extent by his late father Hensen Kapuya and he assumed occupation immediately.  From 2002 to date he and his wife exercised farming rights over the piece of land including cultivation of maize, cotton and sunflower. Disputes over the land started in the year 2020 when the respondents started to allege that first appellant was not a biological son of Hensen Kapuya and that he should surrender the land to them.  Respondents started to interfere with his farming activities.  The dispute escalated and was referred to the fifth respondent (village head Kanengoni) who further referred the matter to the sixth respondent (chief Negomo). The sixth respondent ruled that the land belonged to the Appellants by virtue of it having previously belonged to his late parents.  Despite the chief’s order the first to the fourth respondent started interfering with the appellants leading to them filing an application for an interdict against the first to the fourth respondents.

The court a quo dismissed the application.  Dissatisfied with the court a quo’s ruling, the appellants filed the present appeal.

GROUNDS OF APPEAL

“(1)	In denying appellants an interim interdict when all the essential elements thereof had been 		met, the court a quo erred at law and grossly misdirected itself.

(2) 	In holding that appellants had not established a prima facie right by reason of there being 			two contradictory judgments from sixth respondent without applying her mind on the 			aspect of the legality of the second judgment, the learned magistrate a quo misdirected 			herself.

(3) 	The court a quo grossly misdirected itself on the facts and at law by failing to observe that 		the second judgment from sixth respondent was a nullity at law by reason of sixth 			respondent’s court being functus officio and also by virtue of the absence of evidence to 			otherwise justify a redetermination of the land dispute.

(4) 	In failing to observe that first applicant had properly demonstrated a prima facie right in 			the disputed land by virtue of his inheritance of same and also from confirmation of the 			inheritance by sixth respondent, the court a quo misdirected itself.”

APPLICATION OF THE LAW TO THE FACTS

What was brought before the court a quo by the appellants was an application for an interim interdict. What the appellants were supposed to satisfy in order to be successful in their application were the following:

That the right which was the subject matter of the main action and for which they sought to protect by means of an interim relief was clear, or if not clear is prima facie established though open to some doubt.

That if the right was only prima facie established, there was a well-grounded apprehension of irreparable harm to the appellants if the interim relief was not granted.

That the balance of convenience favours the granting of the interim relief.

That the appellants had no other satisfactory remedy.

In dismissing the appellants’ application the court a quo reasoned as follows:

“In casu there are 2 contrary Chief’s judgments on the same subject matter. In the first court 	judgment dated 14 August 2021 is in favour of the applicants and second judgment dated 27th 	November 2021 is in favour of the respondents.

With such a scenario can it be said the applicants have established a prima facie right? With two 	contrary judgments from the same chief’s court it is the court’s view that applicant has not 	established a prima facie right. Which judgment should the court belief? The circumstances 	surrounding 2 contrary judgments being issued by the same court are not before the court.”

In reasoning in the manner it did, the court a quo missed the point. Firstly, all that the appellants needed to establish had been established. That the appellants had a prima facie right had been established regard being heard to the facts that the first appellant had inherited the piece of land from his late parents, and that when the dispute started the sixth respondent ruled in his favour. It appears the court a quo treated both judgments as being equal although they were contradictory. If the court a quo had applied its mind it would have realized that the second judgment was a nullity at law by reason of the sixth respondent’s court being functus officio and also by virtue of the absence of evidence to otherwise justify a redetermination of the land dispute.

The respondents argued that the initial judgment was rescinded and a trial denovo ensued. I was not persuaded because a perusal of the record does not show the sequence of events as narrated by the respondents.  In fact at p 23 of the record there is an order made at Harare Magistrate Court dated 18 October 2021 which reads as follows:

“Matter referred back to the Court a quo for Applicant to make an application for rescission 	of judgment”

Other than this there is no proof that an application for rescission was indeed made. No proof that the rescission was granted.  No proof that a rehearing was ordered. The court a quo even made the following pertinent observations – “Which judgment should the court believe? The circumstances surrounding 2 contrary judgments being issued by the same court are not before the court. Clearly, the court a quo misdirected itself, and if it had applied its mind it would not have dismissed the application on the basis it did. The respondents had failed to justify the granting of the second contradictory judgment.

IT IS ORDERED THAT:

The appeal is allowed.

The decision of the court a quo be and is hereby set aside and the operative part of the court a quo’s order be and is hereby substituted with the following:

“That the application be and is hereby granted with costs.”

TAGU J:………………………………….……...

MAXWELL J:…………………………………….Agrees

Ruth Zimvumi, appellants’ legal practitioners

Mushonga Mutsvairo & Associates, first and second respondents’ legal practitioners