Zimbabwe Rubber Industries and N.T. Manyuchi v Collen Foya

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HMT 97-20
CIV “A” 11/20
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ZIMBABWE RUBBER INDUSTRIES 		1ST APPELLANT

and

N.T. MANYUCHI	2ND APPELLANT

versus

COLLEN FOYA					RESPONDENT

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 8 October 2020

Civil Appeal (Reasons for Judgment)

V Chinzamba, for the Appellants

C.N Mukwena, for the Respondent

MUZENDA J: This is an appeal against the whole judgment of Provincial Magistrate sitting at Mutare on 25 February 2020 where the appellants outlined the grounds of appeal as follows:

GROUNDS OF APPEAL

The learned Magistrate erred at law by making a finding on the facts that the lease agreement between the parties had not been properly terminated.

The learned Magistrate also erred at law by making a finding on the facts that the respondent was in peaceful occupation of the premises when the appellants came to the premises and started renovating them.

The court a quo thus misdirected itself when it concluded that the appellants took the law into their own hands and despoiled the respondents.

The appellants pray that the appeal succeeds and that the judgment of the court a quo be set aside and be substituted with one dismissing the application with costs.

The appeal is opposed by the Respondent.

BACKGROUND FACTS

On 10 January 2020 the respondent filed an exparte application for a spoliation order at Mutare Provincial Magistrate’s Court on the basis that on 6 January 2020 the current appellants had ordered their employees to invade a commercial stand housing a service station where the respondent was the tenant and operator. Respondent attached a lease agreement to his application dated 14 March 2019. When the respondent’s employees invaded the service station they disjointed fuel pump units, parked a truck in front of a diesel fuel tank blocking the current respondent’s deliveries. On 9 January appellant’s staff allegedly repossessed the service station, removed the marketing brands and started painting the rails and tanks removing respondent’s colours. The respondent claimed that he had been despoiled without due process.

On the same date, when the exparte application was filed, the Learned Provincial Magistrate at Mutare granted a provisional order returnable on 22 January 2020 virtually restoring the status quo ante granting respondent access to the premises and allowed him to operate the service station.

Appellants filed their opposing papers in the court a quo firstly raising preliminary points to the effect that the respondent had adopted a wrong procedure by filing an application than using summons. On the merits of the application appellants contended that the respondent was no longer in occupation of the property and had abandoned the site when appellants’ construction team moved onto the premises to remove the logos and repair the building. To the appellants respondent had heeded to the landlord’s notice to vacate. The appellants denied the rest of the respondent’s averments in his affidavit about the dismantling of fuel tanks. The appellants prayed for the dismissal of respondent’s application.

On 25 February 2020 the lower court dismissed appellants’ points in limine on the basis that the purposes of a spoliation is to restore the status quo ante until whatever dispute between the parties is resolved. The court a quo went on to rule that any act done without a court order is unlawful. The lower court proceeded further to confirm the provisional order of 10 January 2020 after concluding that the conduct of the appellants amounted to spoliation. It is this order by the lower court which triggered this appeal before this court.

SUBMISSIONS BY BOTH COUNSEL BEFORE THIS COURT

The submissions by the appellant are on p 52 of the record and they are labelled “Respondents Heads of Argument.” In the body of the so-called respondents’ heads, appear applicant’s averments. No amendments were sought by counsel on the date of hearing even up to this date, there is no amendment to the caption. The court proceeded to hear the appellant. The introduction of the heads speak of “Applicant” and first and second respondent in tandem with the heading of the heads of argument, where “applicant” is the respondent before us and the appellants before us are reflected on the heads as the “first and second respondents.” The appellant proceeded on p 53 of the record to adopt the submissions made before the court of first instance to constitute heads of argument before this court. The appellant urged the court to consider that the appellants repossessed the commercial stand well after the respondent had vacated it. Appellants deny taking the law into their own hands. They dispute that respondent was in peaceful occupation. Appellants also criticised the inclusion of second appellant in the proceedings and that there was no basis by the respondent to cite second appellant. This is totally a new argument absent from the grounds of appeal and the appellants’ counsel did not pursue it on the date of hearing.

The respondent submitted that the document filed by the appellant purporting to be heads of argument does not transform into heads of argument, the heads are basically defective, they fail to identify the parties in the appeal, the so-called heads of argument constitute the opinion of the appellants’ counsel. The heads of argument fail to deal with points of fact and or law that would assist the court to reach an appropriate decision in compliance with r 9A (2) of the High Court (Miscellaneous Appeals and Reviews) Rules 1975). In the final result the respondents submitted that there are no heads of argument to talk about filed by the appellants.

On the merits of the appeal the respondent’s counsel submitted that, the respondent’s prayer before the court a quo was for spoliation order, the restoration of the status quo ante. It was contended by the respondent that once it had been found that the respondent was in occupation of the premises, and that appellants had unlawfully invaded the premises and unlawfully removed the respondent’s property thereat, the court a quo did not misdirect itself by ordering spoliation.

Respondent further submitted that the existence of the lease was not material at all, the lawfulness of the lease agreement or otherwise was not at the centre of decision before the lower court, the central issue for determination by the lower court was whether the respondent was in peaceful and undisturbed possession at the time appellants repossessed the premises.

On the second ground of appeal, the respondent submitted that the existence of a lease agreement and the service of the notice do not help the appellants. For the appellants to simply assume that the respondent had vacated the premises was not enough since respondent was still meeting his rental obligations. There was thus no legal basis for the appellants to take the law into her own hands and that conduct by the appellants called for the courts sanction. The payment of rentals, branding, signage and security personnel all point at the respondent’s possession, it was argued by the respondents.

On the third ground of appeal, the respondents added that the appellants admitted moving on to the premises, admitted letting in the construction team, removing respondent’s signage and repainting the premises among other things, the respondent submitted that it will be naïve for the appellants to state that their conduct was lawful. The letter of termination of the lease is of no effect at all, it was submitted.

On the aspects of costs the respondent cited the matter of Hosea Oziah Ncube v Simbarashe Mupinga  dealing with issues of costs where the conduct of a litigant (or its legal practitioner) is to buy time or harass the other party where the appeal is not pursued in good faith and pregnant with ineptude surely court should show its disfavour via an order of costs. In such an event the respondent urged this court to dismiss the appeal with costs on legal practitioner - client scale given the nature of pleadings especially the “heads” and the nature of argument presented on behalf of the appellants.

DISPOSITION

I have closely analysed the submissions by both counsel on the colour and substance of the document filed by the appellant that is meant to be considered by this court as constituting “heads of argument”. The document is to say the least an example of a “do not care” attitude by the appellants or their legal counsel. For the appellants’ legal practitioner to refer this court to the submissions made on behalf of the lower court simply means that the appellants are saying that it is up to this court to go through the submissions and make a decision. What is apparently clear is that the three grounds of appeal spelt out by the appellants were not placed before the lower court for determination. How then can the cases cited before the lower court be equally relied on by the appellant if they are not put in context with the grounds of appeal?

The submission must be realigned to each ground of appeal and make meaningful reference to the point of argument as anticipated by r 9A of the High Court (Miscellaneous Appeals and Reviews) Rules 1975, the “heads” of argument should set out the main heads of an appellant’s argument with a list of appropriate authorities to support each head. The appellants failed to comply with this requirement and I agree with the respondents’ counsel that the manner the papers were prepared more particularly what the appellants’ coin “heads” right from the heading the appellation and the contents are totally at war with what is expected by these courts. I have no hesitation to conclude that the appellant did not file heads. The respondent did not address us as to what is to be done in the event that the court judges that the appellant failed to abide by the requirements pertaining to heads. The court had no option than to proceed to deal with the appeal on merits. Although there were three grounds of appeal, the grounds of appeal can be summarised as whether the court a quo erred and misdirected itself in confirming the provisional order, effectively resolving the status quo ante to the respondent. In other words whether the requirements of a spoliation order were met by the respondent. What is however clear is that an appeal court would interfere with the lower court’s decision, if there was a material misdirection or irregularity, or if the decision was one no reasonable tribunal could have reached.

The requirements for a spoliation are:

that the applicant was in peaceful and undisturbed possession of the thing, and,

he was unlawfully deprived of such possession .

A respondent to spoliation can raise valid defences to the claim as:

that the applicant was not in peaceful and undisturbed possession of the thing in question at the time of dispossession, and,

the dispossession was not unlawful and therefore did not constitute spoliation.

It is a well-recognised principle that in spoliation proceedings it needs only be proved that the applicant was in possession of something and that there was forcible and wrongful interference with his possession of that thing. Lawfulness of possession does not enter into it.

The lower court analysed the affidavits of the respondent and came to the conclusion that the respondent was despoiled. I have looked at the reasons for such an order and detect no misdirection on the part of the trial court. The court a quo looked at the requirements of spoliation and applied the law to the facts. The lower court also analysed the defence of the appellants and came to the conclusion that the appellants had failed to prove the defence of spoliation. I see no error in the analysis of the law and facts. The confirmation of the provisional order by the court a quo was in my view appropriate and the grounds of appeal by the appellants lack merit they are all dismissed.

As regards costs, I am persuaded by the respondents that the appeal was done to harass the respondents. The manner the heads of argument were shoddily prepared, worse by a well experienced legal practitioner calls for sanction by the courts. It should have occurred to the appellants that their heads were in disarray and made no efforts to correct such, well before the date of hearing. The request by the respondent relating to costs on legal practitioner-client scale has merit.

Accordingly the following order is returned.

1. The appeal be and is hereby dismissed with costs on legal practitioner and client scale.

MWAYERA J agrees ________________

Mugadza Chinzamba and Partners, Appellants Legal Practitioners

Chibaya and Partners, Respondent’s Legal Practitioners