Fadzi Musoko v Ford Musoko

### Preamble
1
HCMTJ 46/24
HCMTC 152/24
3
HCMTJ 46/24
HCMTC 152/24
1
---------




FADZI MUSOKO

Versus

FORD MUSOKO

HIGH COURT OF ZIMBABWE

SIZIBA J

MUTARE, 7 OCTOBER 2024

CHAMBER APPLICATION

Mr C. Mukwena, for the applicant

Ms H. Sithole, for the respondent

SIZIBA J: This is an opposed chamber application for condonation of late noting of an appeal and for extension of time to appeal. The requirements of this application are trite in this jurisdiction. The court considers the extent of the delay, whether there is a reasonable explanation for the delay and finally whether there are prospects of success in the envisaged appeal. See National Employment Council for Engineering and Iron and Steel Industry v General Engineers, Engineering Maintenance and Civil Engineering Workers Union SC – 60 – 23.

In the matter at hand, the judgment which the applicant seeks to appeal against was pronounced on 4 March 2024. The initial Notice of Appeal was filed on 28 March 2024. When the appeal was scheduled to be heard by this court on 29 May 2024, the court found that the grounds of appeal were not properly done and hence the matter was struck off the roll with costs. This application was filed on 6 June 2024. At the commencement of the hearing, Mr Sithole made a concession that the applicant had fulfilled the requirements relating to the extent of the delay and the explanation for the delay and he indicated that he would take issue with the prospects of success. This concession was properly made. Both Counsel therefore addressed me on the prospects of success.

What is apparent in this matter is that the applicant’s appeal seeks to attack the court a quo’s factual finding that the disputed portion of the land belonged to the respondent rather than the applicant. The court a quo was dealing with an appeal from the Chief‘s decision wherein the Chief had ruled that the disputed piece of land belonged to the applicant. The court a quo conducted a fresh trial in terms of section 24 (2) of the Customary Law and Local Courts Act [Chapter 7:05]. The basis for an appellate court to interfere with a trial court’s findings on facts was well articulated in the locus classicus case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 at 670 as follows:

“The general rule of the law as regards irrationally, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such conclusion.”

The court proceeded again in the above case at p 670 as follows:

“I wish to draw particular attention to the following remarks by Lord Diplock in the CCSU case supra that-

"Whether a decision falls within the category of irrationality is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.”

In Samson v Windmill (Pvt) Ltd SC 07/15 at p 2 to 3 of the cyclostyled judgment, the Supreme Court of Zimbabwe spelt out the criteria for interference with findings of fact by a lower court as follows:

“The position is now settled that an appellate court has no power to interfere with the findings of fact made by a lower court unless it is persuaded that the findings complained of are so outrageous in their defiance of logic that no sensible person properly applying his mind to the question to be decided would arrive at such a conclusion.  Barros and Another v Chimponda 1999(1) ZLR 58 SC; Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, 670D.

The reason for this approach is obvious.  Faced with the same facts, reasonable people might reach different conclusions without any of them properly being labelled as unreasonable.  Computicket v Marcus N O & Others (1999) 20 ILJ 342 LC, 346.”

In the case at hand, I am not persuaded that there would be any basis for the appeal court to interfere with the trial court’s decision for the reasons that shall be outlined hereunder. The respondent’s testimony before the court a quo was very clear and convincing. He told the court that the applicant was his late brother’s son. The piece of land that the applicant had wrestled from him was part of a portion of land that had been allocated to him by his late father who was applicant’s grandfather. It was common cause that the respondent’s father allocated or divided his piece of land to four of his sons being the respondent, Freddy Musoko (applicant’s father), Elliot Musoko and Sekai Musoko. The respondent’s case was that the applicant was now using a portion which had been allocated to him. The respondent is an old man aged 86 years of age. His testimony was backed up or supported by his two siblings being Elliot Musoko and Monica Musoko aged 82 years and 76 years respectively. On the other hand, the trial magistrate observed that the applicant conceded that his grandfather had done these allocations. He was not yet there when these allocations were made and he does not know who was allocated what items or portions of the land. He was just claiming the disputed portion of the land on the basis of the fact that the respondent had not claimed such piece of land when his father was still alive. In light of such evidence, it cannot therefore be said that the learned magistrate’s conclusions of facts were irrational.

The attack on the inspection in loco that was done by the trial magistrate is on the basis that no observations were made after such inspection. Since the applicant is not challenging the proceedings as being irregular, nothing turns on this point. The inspection in loco which the Chief carried out and whatever was said by the Village Head cannot affect the factual findings of the learned magistrate who heard fresh evidence from the parties before he made his decision.

Mr Mukwena also took issue with the lack of particularity on the demarcations for the disputed portion of the land. His submission was that he would amend the relief sought on his draft Notice of Appeal so that this court on appeal can order that the case be heard afresh. To me, Mr Mukwena seemed to be advancing an argument or case that was not before the court a quo. The matter at hand involves communal land which cannot be described with exact particularity like urban land which has stand numbers. When the parties initiated the dispute, they knew which portion of land was in dispute and which one was not and hence the court a quo never said that the whole portion of what the applicant inherited from his father belongs to the respondent. It is only the disputed portion which the parties know very well which was in issue and which is subject of the court a quo’s judgment.

It is therefore my view that the contemplated appeal is without merit and that therefore this application ought to fail. The costs shall follow the cause. The application is therefore dismissed with costs.

Chibaya & Partners, applicant’s legal practitioners

Legal Aid Directorate, respondent’s legal practitioners