THE TN Baker (Private) Limited V Amarissa (Private) Limited

### Preamble
PAGE \* MERGEFORMAT 11
HH552/25
HCHC 720/24
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THE TN BAKER (PRIVATE) LIMITED

and

AMARISSA (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

COMMERCIAL DIVISION

CHILIMBE & MUSHURE JJ

HARARE; 24 June & 18 September 2025

Civil appeal

Ms F. Mahere, for the appellant

F. Siyawareva, for the respondent

MUSHURE J:

INTRODUCTION

On 11 September 2024, the magistrates’ court handed down a judgment upholding the respondent’s preliminary point that there were material disputes of facts and dismissing the appellant’s court application for the eviction of the respondent.

This is an appeal against that judgment.

BACKGROUND FACTS

The appellant currently holds a five-year lease for the period 1 November 2021 to 31 October 2026 in respect of a certain property in Harare, being stand number RE 1446 Salisbury Township, commonly known as number 17 Samora Machel Avenue. The respondent is a lease holder for a property adjacent to number 17 Samora Machel Avenue, being Subdivision A of Stand 1446 Salisbury Township, commonly known as number 19 Samora Machel Avenue. Both properties are owned by Glicknett Investments (Private) Limited (‘Glicknett’) and are jointly managed by Glicknett’s agent, WoodsBrand Properties.

Between 2011 and sometime in 2016, the respondent, with the written consent of Glicknett, leased part of its premises to a company called TN Harlequinn (Private)(Limited) (‘TN Harlequinn’), which is also a sister company to the appellant, until 2016 when the respondent failed to pay its rentals to Glicknett. Glicknett subsequently sued the respondent in the High Court under case number HCH4525/16 for outstanding rentals which at that time stood at US$129 572.73, holding over damages and ejectment.

At the time the cause was instituted, TN Harlequinn had, with Glicknett’s consent, made substantial improvements on the property valued over US$350 000. Resultantly, the appellant and the respondent joined forces to negotiate with Glicknett for an out of court settlement. The efforts culminated in an out of court settlement involving the respondent, TN Harlequinn and Glicknett.

According to the papers filed in the court a quo, a process followed where several meetings were convened by the parties to separate the lease agreements in order for the appellant’s related parties to have their own agreement with Glicknett, separate from the respondent’s lease agreement.  It is stated that on 27 June 2016, the respondent addressed a letter to Glicknett confirming that it was separating itself from TN Harlequinn, leaving the appellant to occupy number 17 Samora Machel Avenue. On 29 June 2016, the respondent acknowledged its indebtedness and that the appellant was negotiating for a direct lease with Glicknett. The respondent specifically stated that it would be leasing and occupying number 19 Samora Machel Avenue with effect from 29 June 2016.

It was the appellant’s contention that pursuant to these communications, another sister company of the applicant, TN Livestock Trust, signed a direct lease agreement with Glicknett in respect of number 17 Samora Machel Avenue. The appellant further contended that this ended the subtenancy between the respondent and TN Harlequinn and this settled the question of who is the lawful lessee of number 17 Samora Machel Avenue. Currently, number 17 Samora Machel Avenue is leased by the appellant.

In the papers filed in the court a quo, it was the appellant’s submission that its lease agreement with Glicknett covers 711.29 square metres. It submitted, further, that during the course of operationalising a plan to reconstruct and renovate its leased space, it emerged that a shop and a pan handle occupied by the respondent’s subtenants fell under its lease and are actually paid for by the appellant. The appellant then engaged a surveyor who surveyed the area and concluded that the appellant was only occupying 668.89 square metres of the 711.29 square metres it is supposed to occupy.

Consequently, the appellant lodged a complaint with Glicknett over the leased space and the panhandle which it contended it was entitled to use for its deliveries. A subsequent discussion between the parties’ directors did not yield positive results. Glicknett then advised the respondent that it was encroaching onto the appellant’s space and requested the respondent to vacate. The respondent did not take kindly to the request, neither did it accede thereto, leading the appellant to institute eviction proceedings in the court a quo.

The application was opposed by the respondent which argued, in limine, firstly, that the cause of action had prescribed; secondly, that the magistrates’ court did not have jurisdiction to deal with the matter; thirdly, that there were material disputes of fact; and fourthly, that there was material non-joinder of Glicknett. On the merits, the respondent argued that the appellant does not own the property in question hence had no locus standi to institute the proceedings. It also argued that it was a holder of a long lease for 17-19 Samora Machel Avenue and that there was no encroachment. It submitted that the appellant had not attached any documentation to show the extent of the area let to it; it had not managed to prove the encroachment; and that the respondent had no right of occupation. It submitted, further, that the applicant is paying for the same piece of land and the lease agreement relates to structures and not the demarcated land. Further, there was need for reports from different surveyors and also a need to cross-examine them on their compilations. The respondent also argued that eviction cases should be made by way of action and that their versions were so divergent that the dispute could not be disposed of on the papers.

After hearing arguments from the parties, the court a quo dealt with the issue of jurisdiction and material disputes of fact. The court dismissed the preliminary point on jurisdiction but found that there were material disputes of fact which were incapable of resolution on the papers. The court a quo then issued the following order: -

“WHEREUPON, after reading documents filed of record and hearing counsel:

IT IS ORDERED THAT

Application is dismissed.

The preliminary point is upheld.

There are material disputes of facts which cannot be resolved on the papers.

Matter should proceed by way of action

Each party to bear its own costs of suit.”

PROCEEDINGS BEFORE THIS COURT

Aggrieved by the court a quo’s determination, the appellant noted this appeal on the following grounds: -

The court a quo erred and misdirected itself in finding that there were material disputes of fact incapable of resolution on the papers without identifying the disputed facts and giving reasons why such disputed facts could not be resolved on the papers before it.

The court a quo erred in failing to find that, on the papers before it, the applicant had made a case for the respondent’s eviction from the property that it leases.

ALTERNATIVELY:

Having found that there were material disputes of fact, the court a quo erred in dismissing the matter instead of referring the dispute to trial. The court a quo further erred in failing to give reasons for its disposition.

APPELLANT’S SUBMISSIONS BEFORE THIS COURT

In its submissions, the appellant states that the court a quo’s error was in finding that there were material disputes of facts which could not be resolved on the papers and in finding that the application was to be dismissed. The appellant submits that the court a quo’s error was compounded by the fact that the court a quo did not articulate what the dispute of fact it was confronted with or it thought it was confronted with was, nor did it state which competing facts were before it that rendered the matter incapable of resolution. Most fundamentally, the appellant argues, the court a quo did not give reasons for its decision. The appellant has referred the court to the Supreme Court decision in GMB v Muchero 2008 (1) 216 (S) at p221C-D as authority for the proposition that the failure to resolve a dispute or to give reasons for a determination is a misdirection that vitiates the order given at the end of a matter.

The appellant submits, further, that the appeal turns on who had the legal right to occupy the property. It contends that it had the authority to occupy number 17 Samora Machel Avenue and the court a quo had stated in its judgment that it was clear that the appellant had an extant lease agreement valid from 1 November 2021 to 31 October 2026. It is its submission that the respondent did not deny the existence of the lease agreement and on the authority of Fawcett Security Operations (Pvt) Ltd v Director of Customs and Excise & Ors 1993 (2) ZLR 121 (S), the legal position is that what is not denied in affidavits must be taken to be admitted.  Bearing this in mind, the appellant further contends, the court a quo should not have faced any difficulties in finding that the appellant had a valid, extant and binding lease agreement.

The appellant asserts that the respondent previously held a lease agreement for 17 to 19 Samora Machel Avenue for the period 1 February 2012 and 31 January 2032 but its subsequent dissolution was confirmed by the respondent in a 27 June 2016 letter to the property managers. This was not denied by the respondents in the court a quo.

Further, the appellant submits, the 29 June 2016 letter was clear that the respondent was occupying number 19 Samora Machel Avenue while the appellant’s sister company, TN Harlequin, would have to negotiate its own lease agreement with Glicknett with effect from 1 July 2016. The appellant asserts that this is how the appellant’s lease agreement came about. This, the appellant submits, was not contested by the respondent in the court a quo and therefore there was no factual or legal basis on which it could be denied that the appellant was the rightful lessee of number 17 Samora Machel Avenue.

It was argued before us by the appellant’s counsel, Ms Mahere, that all these facts were common cause and there was not even a dispute of fact, but the court a quo fell into error by paying no regard to the key admissions made on the papers and the evidence of correspondences before it. Ms Mahere argued, further, that once it was established that the appellant had a right to occupy the property, the question of whether it could evict the respondent was settled in the affirmative in case of CFU v Minister of Lands SC31/10 and applied in Zuva Petroleum Ltd v Chirenje HH166/16 and Faith Ministries Church v Nhau HH178/22.

It was Ms Mahere’s submission that there was proof that the respondent was encroaching onto the appellant’s land. She submitted that an expert report by the surveyor had been produced and had not been controverted by the respondent.  She contended that court a quo had therefore made a bald finding that there were material disputes of fact.

On the invitation of the court, Ms Mahere submitted that a perusal of the trial court’s judgment and order would show that its pronouncements were contradictory in that in the ruling, the court a quo found that if there was a material dispute of fact which could not be resolved on the papers, then the matter should proceed through action procedure. The court a quo then concluded that it would proceed accordingly but then went on to dismiss the application. In the ensuing order issued by the court a quo, it purported to dismiss the application in one breath and in another, it ordered that the matter proceeds by way of action. If the court a quo had found that there were material disputes of fact capable of resolution on the papers and that the matter had to proceed by way of action proceedings, then there was no reason, and none was given, for outrightly dismissing the application.

Ms Mahere prayed for the appeal to be allowed with costs, and for the court to set aside and substitute the court a quo’s judgment with either a finding that the application for eviction be granted or alternatively, if the court found that indeed there are material disputes of fact, that the matter be referred for trial in the court a quo before a different magistrate.

RESPONDENT’S SUBMISSIONS BEFORE THIS COURT

The respondent, per contra, argues that an appellate court does not readily interfere with a court a quo’s exercise of discretion in the absence of evidence that the discretion was not exercised judiciously. Such interference is only warranted in circumstances where the exercise of discretion is so unreasonable so as to vitiate the decision made or where there is a misdirection resulting in a substantial miscarriage of justice. It submits, further, that the court a quo made a judicious decision that the parties’ versions were so divergent that it could not come up with a ready answer especially considering the nature of the parties’ relations.

The respondent contends that once the court a quo made a finding that there were material disputes of fact, it had several courses open to it. It could either convert the application into an action or dismiss the application.

At the hearing of the appeal, Mr Siyawareva, arguing on behalf of the respondent, submitted that there was no misdirection on the part of the court a quo which had outlined a number of facts, including the extent of the property and the relationship between the parties, which were in dispute which could not be resolved without leading viva voce evidence. Mr Siyawareva pointed out that the lease agreement between Glicknett and the respondent included the property which was being occupied by the appellant. He accepted that on the record, the appellant obtained its rights from the respondent which culminated in the correspondence in which the respondent was relinquishing its rights to stand number 17 Samora Machel Avenue. He submitted that from the onset, it appeared that there was no issue with the buildings occupied by the respective parties, but the issue of the encroachment only arose in 2024, and that this was a live dispute. He noted that there was a survey report but submitted that in the absence of the opportunity to ventilate the report and produce a counter report which could not be done in an application procedure, there existed a material dispute of facts which was prejudicial to the respondent.

On the issue of giving reasons, Mr Siyawareva submitted that reasons were actually given, but he accepted that those reasons were not as clear as the appellant would have expected. He however insisted that there was no misdirection on the part of the court a quo. He submitted, further, that as a matter of law and as enunciated in the cases of Matsika & Anor v Chingwena & 38 Ors SC 144-21 and Tamarillo (Pty) Ltd v B N Aitken (Pvt) Ltd 1982 (1) SA 398 (A) at p430, where there are material disputes of fact, the court has a discretion to either dismiss the matter or refer it to trial. It was his submission that such discretion cannot be lightly interfered with as it was not irrational but was competent and supported by the law. On the question of costs, he submitted that the case did not warrant an order for costs considering the circumstances of the case and that defending the case was neither vexatious nor frivolous and there was no dishonest, deplorable or fraudulent conduct on the part of the respondent. He prayed that if the court was to find in the appellant’s favour, there was no justification to make an order for costs, but rather, each party could bear its own costs.

During discourse with the court on the conflicting orders issued by the court, Mr Siyawareva noted the contradictory orders but submitted that the correct order of the court was contained in the ruling. He motivated the court to exercise its appellate powers to amend the court order so that it would be consistent with the court a quo’s ruling dismissing the application. He accepted that there were inconsistencies but submitted that the exercise of the discretion was neither irrational nor grossly unreasonable. He eventually conceded that in the absence of detailed reasons for outrightly dismissing the application instead of referring it to trial, the court a quo’s exercise of discretion was injudicious.

In response, Ms. Mahere noted that the respondent had not questioned the survey report which properly defined the extent of the encroachment. She noted that the expectation would have been the production of a counter expert report, but this was not done. The court a quo had uncontested evidence upon which it could have made a determination but it did not. She submitted that a material dispute of fact cannot be ‘manufactured’ and in light of the fact that the encroachment was demonstrated, the appellant’s legal right to occupy the property had been established and nothing had been placed before the court to justify the encroachment, the application ought to have been granted. On the issue of costs, it was her submission that it is trite that costs follow the cause and there was no reason to depart from the general rule.

ISSUES ARISING FOR DETERMINATION

From the written and oral submissions by the parties, it seems to me that the following issues arise for determination:

Whether or not the court a quo did not identify the disputed facts and did not give reasons why such disputed facts could not be resolved on the papers.

Whether or not the court a quo failed to find that the appellant had made a case for the respondent’s eviction.

Whether or not the court a quo improperly exercised its discretion by dismissing the matter instead of referring it to trial.

WHETHER OR NOT THE COURT A QUO DID NOT IDENTIFY THE DISPUTED FACTS AND DID NOT GIVE REASONS WHY SUCH DISPUTED FACTS COULD NOT BE RESOLVED ON THE PAPERS

The question of what constitutes a material dispute of fact has been traversed in a plethora of authorities in this jurisdiction. In Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at p136F-G, Makarau JP (as she then was) remarked that: -

“A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence”

The court’s approach in dealing with motion cases where a material dispute of fact arises was stated by Patel JA (as he then was) in Muzanenhamo v Officer in Charge CID Law & Order & Ors 2013 (2) ZLR 604 (S) as follows: -

“A general rule in motion proceedings, the courts are enjoined to take a robust and common-sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party. See Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (S) at 235A; Zimbabwe Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S) at 339 C-D; Ex- Combatants Security Co. v Midlands State University 2006 (1) ZLR 531 (H) at 534 E-F.

The first enquiry is to ascertain whether or not there is a real dispute of fact.” (at p 608 A-C).

The mere allegation of a possible dispute of fact is not conclusive proof that it exists. What is required is for a respondent to set out his or her defence in clear and cogent detail. A bare denial of an applicant’s material averments will not suffice.

The celebrated case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at p 1162 is authority for the proposition that it is improper for an applicant to commence proceedings by way of application with the knowledge of the probability of a protracted enquiry into material disputes of facts which are incapable of easy ascertainment.

A court has discretion to dismiss an application should it find that there indeed  is a material dispute of fact which cannot be resolved on the affidavits before it without recourse to hearing oral evidence: Tamira Overseas SA v Mohammed & Ors 2018 (2) ZLR 366 (H) at p. 370H - 317A. In the exercise of its discretion, a court can also refer a matter to trial, and if it chooses to adopt such a course, it will give appropriate directions as to pleadings to be filed so that the matter becomes an action procedure. The fundamental underpinnings of whatever course the court adopts is the judicious exercise of that discretion; regard being had to the interests of justice including prejudice to the respondent: Tamira Overseas SA case supra at p317C.

But, first things first. The question that a court must first determine is whether or not there is a material dispute of fact.

The attack on the magistrates’ court is on its alleged failure to identify the disputed facts and to give reasons why such disputed facts could not be resolved on the papers before it. Before us, Mr Siyawareva conceded that the court a quo did not give ‘detailed’ reasons for concluding that there were material disputes of fact. The import of Mr Siyawareva’s concession is that there were some reasons given, but they were not detailed.  On the other hand, Ms Mahere strenuously argued that the trial court did not give any reasons at all. In light of the diametrically different positions taken by the parties, I take the view that it is necessary to relate to the judgment of the court a quo.

In concluding that there were material disputes of fact in this matter, the court a quo reasoned as appears on p6 of the record:

“Secondly, the material disputes of fact. It is clear from page 11 of the lease it was valid from 1 November 2021 to 3 1-10-2026 and the renewal period would be agreed on.

The landlord is Glippert (sic) Investments Private Limited and the tenant is TN Baker represented by Miriam Chimutsa. The applicant’s sister company T.N. Harlequin was a subtenant and there are improvements referred to.

It is common cause that there were series of meetings relating to the companies and there are issues to do with the property, its extent, description etc and annexure ‘F’ refers to terminating of the lease agreement. This shows that the leases duration and conditions thereof are so intertwined that many stakeholders may have to be involved to bring closely (sic) to these issues.

The relationship is to (sic) as straightforward as the applicant will want it to appear and there are summons attached at High Court 4525/16.

The court will state that there are material disputes of fact which cannot even be resolved in the papers through an application of this nature even if the court decides to take a robust approach.

In Dube v Mutehwa (sic) SC68-21 it was stated that; ‘it is not the number of times a denial is made or the vehemence in which a denial is made therefore a material dispute arises where the material facts alleged by the applicant are disputed or traversed by the respondent in such a number (sic) as to leave the court with no ready answer to the dispute without calling further evidence.

In the case of Tshabangu + 13 Others HH-476-23 the court was guided to consider if such a dispute indeed exists, if it does second stage if it can be resolved on the papers.

If not then the court can call for viva voce evidence of the parties proceed through action procedure.

In casu this is the order that I will give considering the complexity of the matter and the pleadings that parties have to avail to each other.

There are material disputes of fact that cannot be resolved through action procedure (sic)

Application is dismissed with each party bearing its own costs”

From a reading of the judgment of the court a quo, the common cause facts were that there is a valid and extant lease agreement; and that the landlord is Glicknett while the appellant is the tenant. It was also common cause that there were some meetings which were held in relation to the companies, the property, its extent, its description and termination of a lease agreement.

I have already alluded to the fact that before us, Mr Siyawareva made the critical submission that the lease agreement between Glicknett and the respondent included number 17 Samora Machel Avenue but the appellant had subsequently obtained its rights to the property after the respondent relinquished its rights in number 17 Samora Machel Avenue.  Mr Siyawareva also submitted that previously, there had been no issues concerning the respective buildings occupied by the parties until 2024 when the encroachment dispute arose. This evidence was before the court a quo such that it is curious that the court concluded that there were intertwined issues in respect of the lease agreements requiring the involvement of many stakeholders which issues it had already concluded were common cause.

The court a quo went on to find that the relationship between the parties was not as straightforward as the appellant wanted to make it appear and that there was a High Court summons matter. The court a quo however did not relate to how these had an effect on the dispute at hand, moreso considering that the uncontroverted evidence before it was that the High Court matter had been settled out of court.

The court a quo then went on to pronounce that ‘This court will state that there are material disputes of fact which cannot even be resolved in the papers through an application of this nature even if the court decides to take a robust approach’. I am inclined to agree with Ms Mahere’s observation that the court did not articulate the particular material disputes of fact, neither did it articulate why those material disputes of fact were incapable of resolution on the papers. A court cannot just give a determination from out of the blue or in a manner that is akin to casting of lots. The reason for this is simple. As observed by Bhunu JA in Kereke v Maramwidze & Anor 2019 (3) ZLR 940 (S) at p942G-H,

“The giving of reasons regardless of whether they are right or wrong eliminates the scourge of arbitrary, capricious or biased judicial decisions that are an abomination to the rule of law in a democratic society. When rendering judgment, a judicial officer speaks through the written judgment……. The rendering of cogent reasons for judgment instils confidence in the due administration of justice without fear or favour and the due protection of the law.”

In casu, there is no evidence that the court’s conclusion was subjected to a properly laid out thought process, which of necessity would have lent credence to the old adage that justice must not only be done but must be seen to have been done. This constitutes an error on the part of the court a quo warranting this court’s interference on that score alone.

I will pause here to consider Mr Siyawareva’s submission that the reasons were given but they did not have the required degree of sufficiency. Even assuming that the court a quo’s preceding paragraphs were the basis of its judgment that there were material disputes of fact, I am unable to agree with its finding for the sole reason that the court could not have found material disputes of fact on common cause facts. The first issue before the court a quo related to whether the appellant had a valid lease agreement. It found that this was common cause. The second issue was whether the respondent had any right to the appellant’s property. The court a quo found that it was common cause that its earlier lease agreement had been terminated.

The third issue related to the survey report which confirmed the encroachment. An expert report was placed before the court. Section 22 (1) of the Civil Evidence Act [Chapter 8:07] is instructive. It provides that: -

“(1) The opinion of a person who is an expert on any subject, that is to say, of a person who possesses special knowledge or skill in the subject, shall be admissible in civil proceedings to prove any fact relating to that subject which is relevant to an issue in the proceedings.”

The admissibility and relevancy of the surveyor’s report were never an issue in the court a quo and before this court. Neither was its status as an expert report put in issue. The issue revolved around the need for the respondent to cross examine the surveyor. While an action procedure would have afforded the respondent the opportunity to cross-examine the surveyor, nothing of substance was placed before the court a quo to substantiate the respondent’s allegation that it would be prejudiced by its failure to cross-examine the surveyor. No factual premise was given on the basis of which the court a quo could have been persuaded to discard the expert report and refer the matter to trial. In fact, the court a quo did not even question the expert report in its ruling.

Therefore, Mr Siyawareva could not have seriously argued before us that the respondent wished to produce a counter report in the action proceedings without explaining why the respondent failed to do so in the application proceedings in the court a quo. Nothing barred the respondent from producing its own report to counter the report that was before the court a quo to enable the court a quo to make a value judgment, carefully analyse the evidence and properly ventilate whether or not there were material disputes of fact incapable of resolution on the papers.

In my judgment, this is a typical case where the court was confronted by a mere allegation of a possible dispute of fact simply because the respondent wished to cross examine the surveyor. The respondent, besides making bare denials of the appellant’s material averments in relation to the surveyor’s report in the court a quo, did not lay any clear and cogent basis for seeking to discredit the appellant’s evidence. On this basis, it is my finding that the court a quo cannot be said, by any stretch of imagination, to have been confronted with a situation whereby the material facts alleged by the appellant were disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.

WHETHER OR NOT THE COURT A QUO FAILED TO FIND THAT THE APPELLANT HAD MADE A CASE FOR THE RESPONDENT’S EVICTION

The court a quo found that the appellant has a valid lease agreement in respect of number 17 Samora Machel Avenue. The evidence of the encroachment was not controverted. It is trite that the holder of a lease has a clear right derived from the lease agreement to take occupation of the property leased to him and to sue for the eviction of any illegal occupier of that property: See CFU & Ors v Minister of Lands & Ors supra at p596D-E & Zuva Petroleum Limited v Chirenje supra at p5-6.

Accepting as I must that the appellant has a valid, extant and binding lease agreement and that there was undisputed evidence of the encroachment before the court a quo, then the court a quo ought to have found that the appellant, as a leaseholder, had made a case for the respondent’s eviction. In the ultimate, I find that the court a quo erred in failing to find that the appellant had made a case for the respondent’s eviction.

In relation to the third issue for determination, in the case of Gwaradzimba N.O v C J Petron and Co (Pty) Ltd 2016 (1) ZLR 28 (S), at p 32 B, the Supreme Court pronounced that a court must generally determine all the issues raised by the parties “unless the issue so determined can put the whole matter to rest.” In light of my findings that there were no material disputes of fact in this matter, this determination is dispositive of the dispute and it is not necessary that I deal with the question of whether or not the court a quo ought to have referred the matter for trial as opposed to outrightly dismissing it.

It remains for me to deal with the issue of costs. It is trite that costs follow the outcome. Although Mr Siyawareva motivated that each party bears its own costs, I note that he argued the matter as if the appellant is seeking costs on a punitive scale. I conclude that there is no justifiable basis not to award costs on an ordinary scale as prayed for by the appellant in this matter.

DISPOSITION

In light of the foregoing reasons, the appeal must succeed.

Accordingly, it is ordered that: -

The appeal is allowed with costs.

The judgment of the court a quo is set aside and substituted with the following: -

The application for eviction be and is hereby granted.

The Respondent and all those claiming occupation through it are ordered to vacate from the applicant’s leased premises number 1446 Salisbury Township, Harare, also known as number 17 Samora Machel Avenue (specifically from shop number 6 being the encroaching shop and the panhandle as shown on the picture of the site plan of Stand RE 1446, Harare) forthwith upon granting of this Order, failing which the Messenger of Court be and is hereby authorised to forthwith and immediately upon the granting of this Order, evict the respondent and all those claiming occupation through it.

The respondent shall pay costs of suit.

Mushure J:

Chilimbe J:                                                          agrees

Mtetwa & Nyambirai, appellant’s legal practitioners

James Majatame Attorneys at Law, respondent’s legal practitioners