Middson Ndoro v Peter Nyemba

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HMT 12-19
CIV “A” 23/18
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MIDDSON NDORO

versus

PETER NYEMBA

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 23 and 30 January 2019 and 28 February 2019

Civil Appeal

Appellant in person

Ms N. S Nyamwanza, for the respondent

MUZENDA J: On 24 October 2003 the then Minister of Lands, Agriculture and Rural Resettlement, Honourable Dr J. M. Made (MP) issued an offer letter to the appellant for Subdivision 11 of Coldstream Farm, in Makoni District of Manicaland Province measuring 53 hectares in extent. Attached to the offer letter were conditions generally applying to the offer of land under the Zimbabwe Land Reform and Resettlement programme (Phase 11, Model A2 Scheme).

On 25 September 2008 appellant and respondent entered into a swap agreement where the appellant swapped Subdivision 11 of Cold Stream Headlands. It is not clear as to the identity of plot owned by the respondent herein which was being swapped to the appellant. The title of that agreement is titled “Swopping of A2 Land.” All certificates or offer letters filed of record relate to Subdivision “Cold Stream Farm” and no other piece of land. We safely conclude that the land in dispute is the one which appears on the offer letter written in the name of the appellant.

On 23 May 2018, the respondent filed an application for an interdict at Mutare Magistrates Court seeking the following relief:

“IT IS ORDERED THAT:

Respondent be and is hereby interdicted from invading and occupying applicant’s farm and or any building structures thereat.

Respondent be and is hereby ordered to immediately execute the process of legally changing the name of the Permit Holder in favour of Applicant as per agreement.

Respondent be and is hereby ordered to pay costs of suit.”

The matter/application under HC 490/18 was set for hearing on 11 June 2018 at 8.00am.

The interdict was granted in terms of the draft cited (supra) and is dated 11 June 2018. There is another final order dated 19 July 2018 granted by the Provincial Magistrate which reads as follows:

“WHEREUPON after reading papers filed of record and in default, Applicant is granted an interdict in terms of the draft:

1(a)	Respondent be and is hereby interdicted from invading and occupying applicant’s farm and or building structures thereat.

1 (b)	Respondent be and is hereby ordered to immediately execute the process of legally changing the name of Permit Holder in favour of Applicant as per agreement.

1 (c)	Respondent be and is hereby ordered to pay costs.

2. 	This Order be issued with a Warrant of Arrest alternatively this order shall operate as a warrant of arrest, empowering any member of the Zimbabwe Republic Police at Headlands Police station to arrest respondent should he break any of the conditions of the interdict. The warrant of arrest shall be suspended on condition that respondent complies with the order.

3.	That this order shall be served by any attested police officer.”

It is not clear from the record as to why there are two orders relating to the same case number but granted on two different dates. On 11 September 2018 the appellant filed an application for rescission of judgment which was granted in favour of the respondent on 19 July 2018. The fulcrum of the reasons advanced by the appellant was that from April 2018 up to 11 September 2018 he had been ill and attached the medical documents to support his contentions. He denies refusing to sign the copy of the application for an interdict. He also argues that the swap agreement is illegal and that the respondent does not have any land to swap with the appellant and he was not in wilful default. On 6 November 2018 the learned Provincial Magistrate concluded that the appellant was in wilful default and that the appellant deliberately refused to receive the papers and decided not to attend court. Accordingly he dismissed the appellant’s application for rescission of default judgment.

On 16 November 2018, the appellant, dissatisfied by the dismissal of the application noted an appeal against the whole judgment outlining the following as the grounds of appeal:

“GROUNDS OF APPEAL

The learned Magistrate erred in:

Failing to understand the Doctor’s letter.

Concluding without basis that appellant submitted two medical reports showing that appellant was ill only on 24 April 2018 and 11 September 2018 yet appellant submitted only one medical certificate letter showing the whole period over which appellant was ill.

Accepting a dubious return of service from Constable Chitingirofa without any official stamp or letter head.

Failing to accept that the agreement for the alleged swop was illegal.

Failing to notice that there were two judgments on the same case with different contents and in opting to use the judgment issued in June and not the one issued in July which in itself clearly shows bias.

Accepting that the application for rescission of judgment was out of time.

Failing to observe that the whole case had been changed by respondent from case number 490/18 to case number 671/18 which is still pending before him.

Accepting Constable Malala’s affidavit when it contained so many questionable and unexplained issues disputed by irrefutable specialist evidence on record.

Considering irrelevant case laws to the case before him.

Failing to keep an accurate record which left out many of my facts as revealed by the tone of written judgment.

Failing to observe that respondent’s original application was about interdicting appellant from getting to the said farm.

Failing to observe that respondent has nothing in form of any farm swop with appellant at all.

That the court a quo did not listen to appellant when the appellant said he got to know about the default judgment on the day he filed an appearance to defend for case number 671/18 filed by the respondent on the very same case which the respondent had “won” in default.

Wherefore the appellant prayed for the setting aside of the whole default judgment imposed by the court a quo”.

The grounds of appeal are admittedly and unnecessarily vague and several. In our view though the appellant appeared before us unrepresented by a lawyer, it was obvious that he got assistance from the ever sprouting bush lawyers or from a qualified legal practitioner who chose to operate behind the scenes and went on to prepare heads of argument for the appellant. Having perused the record of proceedings our considered view was unanimous that the appellant raised valid grounds of appeal which can be summarised as follows.

Whether the court a quo misdirected itself in holding that appellant was in wilful default.

Whether the court a quo erred in holding that the return of service by a police detail was proper service.

Whether the court a quo misdirected itself in holding that the appellant had no defence to respondent’s application.

Finally whether the application for rescission of judgment granted in favour of the respondent should be rescinded.

WHETHER APPELLANT WAS IN WILFUL DEFAULT AND WHETHER A RETURN OF SERVICE BY A POLICEMAN OR POLICE CONSTABLARY IS VALID.

I combined ground of appeal 1 and 2 above as summarised because these two grounds are closely inter-related. The appellant castigates Constable Chitingirofa return of service as well as affidavit of Malala submits that the court a quo ought not to have accepted their evidence as that of proving that the appellant wilfully absented himself from the court  on the return date of hearing. Order 2 of the Magistrate Court Rules SI 290, 1980 provides that except as otherwise provided the process of the court shall be served or executed, as the case may be through the messenger, the same official is required to do so through prescribed form and show the date service was effected as well as the manner of service and return a copy of such process to the party who issued it out. Such a copy as prescribed by the rules is filed in the record of proceedings. Where the messenger experiences difficulties, he solicits help from the police for protection. Nowhere in the rules of the Magistrate’s Court is it provided that a police detail can serve court process. Section 2 of the Magistrate’s Court Act [Chapter 27:10], the interpretation section defines “messenger” to include “deputy messenger”. Section 10 of the same Act provides that the Minister may appoint messengers of court and a messenger may with the approval of the magistrate appoint one or more deputy messengers for whom he shall be responsible. The magistrate, in terms of s 10 (3) of the Act, may appoint a person to act as messenger when, by reason of the illness, absence or interest of the messenger. Constable Chitingirofa is not a messenger as required by law and the respondent did not serve a copy of the application on the appellant as required by law. In our view we agree with the appellant that the trial magistrate misdirected himself in relying on the form of service done by a non-messenger, constable Chitingirofa and hence the default judgment was erroneously granted because the respondent’s papers were not in order.

Further the appellant submitted that he was not in wilful default and went on to produce medical evidence which the court a quo dismissed. In our view the trial court went into error in rejecting appellant’s evidence. Appellant explained his absence and went on to support that by attaching valid documents compiled by a medical practitioner. The approach by the magistrate was premised upon the strength of the affidavit of constable Malala. That was inappropriate. The appellant managed to explain the reason for his nonattendance and we accept the appellant was not in wilful default.

2. WHETHER THE APPELLANT HAD A DEFENCE TO THE RESPONDENT’S APPLICATION?

The learned Provincial Magistrate’s judgment to a large extent dwelt on the aspect of wilful default and not on whether the appellant had a defence to the respondent’s application as per the order. The appellant contends that the alleged swap was in reality nothing to talk about on the basis that the respondent had no piece of land to talk about. The subject piece of land was not subject of swap nor cession nor sale and the appellant cited paragraph 1 (c) (i) of the conditions applying to the offer of land under the Zimbabwe Land Reform And Resettlement Programme (Phase II, Model A2 Scheme) annexed to offer letters which reads as follows:

“(c) (i) that you shall not cede assign or make over any right or obligation or subject or part with possession or grant any form of right of occupation in respect of this farm or part thereof without the prior written consent of the Minister, and …”

Thus the subject piece of land bears an offer letter and not a certificate of occupation and comes directly under the control and administration of the Minister and not a local authority. The appellant’s version is the correct one at law and he should be given an opportunity to pursue his defence at a full hearing. In our view if he manages to prove it, respondent’s application would be dismissed.

Paragraph 1 (b) of the final order granted by the court a quo reads as follows:

“1(b)	Respondent be and is hereby ordered to immediately execute the process of legally changing the name of permit holder in favour of applicant as per agreement”

Ms N. S Nyamwanza who appeared for the respondent conceded during hearing that paragraph 1 (b) of the order was in contravention of s 14 (i) (d) of the Magistrate’s Court Act, cited (supra) which provides as follows:

“14.	When court has no jurisdiction

No court shall have jurisdiction in or cognizance of any action or suit wherein.

(d) 	the specific performance of an act is sought without an alternative of payment of damages.”

In our view the respondent’s counsel’s concession was properly made and that part of judgment or order can be interfered with on that basis. In any event the order sought in para (1) (a) is incompetent as the appellant has no authority to transfer the state land in his possession.The appellant has manged to prove his grounds of appeal on a balance of probabilities and he ought to succeed.

WHETHER THE APPLICATION FOR RESCISION OF JUDGMENT SHOULD HAVE BEEN GRANTED:

There are three factors which are normally taken into account when considering an application for rescission of judgment. The explanation for the default, the bona fides of the applicant and the prima facie strength of the case. The Magistrate’s Court Rules use specifically the words “wilful default” and in the matter of Maujean t/a Audio Video Agennes v Standard Bank of South Africa Ltd 1994 (3) SA 801 (C)at 803 H-I King J defined wilful default thus:

“More specifically in the context of a default judgment, “wilful” connotes deliberateness in the sense of knowledge of the action and of its consequences, i.e. its legal consequences and a conscious and freely taken decision to refrain from giving notice of intention for this conduct might be.”

(See also Morkel v Absa Bank Ltd and Anor 1996 (1) SA 899 (c).

Deveras Farm (Pvt) Ltd and Ors v Zimbabwe Banking Corp Ltd 1998 (1) ZLR 368 (S)).

It cannot be said that the appellant deliberately refused to attend court on the date of hearing 11 June 2018. The respondent failed to prove that and the court a quo misdirected itself in arriving at that conclusion. The appeal is upheld and the judgment of the court a quo is set aside and substituted by the following:

the appeal is upheld with costs

the application for rescission of the default judgment granted on 11 June 2018 be and is hereby granted

that the costs of the application be in the cause

that the respondent is to file his opposing papers to the applicant’s application within ten (10) days from the date this order is received by the clerk of court, Mutare Magistrate’s Court.

Mwayera J agrees ____________________

Nyamwanza & Partners, respondent’s legal practitioners