BHUNU
JA:
[1]
This is an appeal against the whole judgment of the High Court (the
court a
quo)
which granted an eviction order to the respondent against the
appellant and all those claiming occupation through him with costs.
BACKGROUND
FACTS
[2]
The first respondent is a church organization whereas the appellant
is a member of a housing cooperative known as Joseph Musika Housing
Cooperative. Although the Housing Cooperative was a party to the
proceedings in the court a
quo,
it has not appealed against the court's
judgment
against it. The second respondent is a government Minister and owner
of the State land in dispute. The disputed piece of land is commonly
known as Stand Number 16549 Hatcliff Harare (the Stand).
[3] On
25 April 2014 the first respondent successfully applied for a lease
of the stand from the second respondent for use as a church site. The
second respondent granted the first respondent a lease agreement on
15 April 2019 in respect of stand Number 16549 Hatcliff Harare. A
copy of the lease agreement was adduced in evidence as annexure C.
[4] Notwithstanding
the issuance of the lease agreement to the first respondent, the
appellant took occupation of the same land under the auspices of his
Housing cooperative. He thereafter denied the first respondent access
to the stand.
[5] The
appellant claims lawful occupation of the stand through his
membership of the Housing Cooperative which made an application to
the second respondent for land for residential stands in
collaboration with the appellant. The Minister acknowledged the
application for land by the cooperative. On 14 September 2017 he
wrote to the appellants requesting them to furnish a properly drawn
diagram showing the existing development and pay the requisite fees.
There was no compliance with the minister's request. The Minister
then turned to the respondent and accepted its application for a
lease. The appellant however argued that he had a legitimate
expectation to be allocated the stand following the Minister's
acknowledgment of receipt of their application and his request for
diagrams and payment of the necessary fees.
FINDINGS
BY THE COURT A
QUO
[6]
The court a
quo
found that the first respondent had a real and substantial interest
in the matter as lease holder to the disputed property. It further
found that there was no material dispute of fact hindering the court
from determining the application on the papers before it.
[7]
It found no merit in the appellant's assertion that the first
respondent's lease agreement was fraudulent. The learned judge a
quo
determined that apart from a bald assertion there was no evidence to
support the applicant's averment that the lease agreement was
fraudulent. Placing reliance on the presumption of validity of
government documents he held that the first respondent's lease
agreement is authentic and valid.
[8] The
court a
quo
found no merit in the appellant's plea of legitimate expectation.
It held that the appellant had only occupied the stand in 2020 and
not 2012 as he claims.
[9]
On the basis of such findings of fact and law, the court a
quo
upheld the first respondent's application for eviction and issued
the following order:
“IT
IS ORDERED THAT:
1.
The first and second respondents and all those claiming occupation
through them be and are hereby ordered to vacate stand number 16549
Hatcliff Harare within seven (7) days from the date of this order.
2.
Should the first and second respondents and all those claiming
occupation through them fail to comply with paragraph 1 above, the
Sheriff of the High Court be and is hereby ordered to evict them
forthwith and demolish any structures erected at no.16549 Hatcliff
Harare.
3.
The first respondent be and is hereby ordered to pay costs of suit on
an ordinary scale.”
[10] Aggrieved,
the appellant appealed to this Court on the following 3 grounds of
appeal:
“1.
The court a
quo
erred and misdirected itself in holding that, the appellants took
occupation of the land in question in 2020 instead of 2012 resulting
in the court granting the order of eviction under the mistaken belief
that the appellants took occupation of the land when the respondent
had already been granted a lease by the second respondent.
2.
The court a
quo
erred and misdirected itself in holding that no dispute of facts
existed in the matter, when it was clear that the parties were not in
agreement as to when the appellants took occupation of the land and
which exact piece of land the appellants were in occupation of.
[3]
The court a
quo
erred and misdirected itself in failing to uphold the appellant's
argument that a legitimate expectation had been created hence the
third respondent could not have proceeded to issue a lease to a third
party in respect of the same piece of land in clear breach of the
legitimate expectation it had created.”
[11] On
the basis of the above grounds of appeal the appellant prayed for the
setting aside of the court a
quo's
judgment and its substitution with an order dismissing the
applicant's application.
ANALYSIS
AND DETERMINATION OF THE APPEAL
[12]
The grounds of appeal raise one issue for determination as to
whether the court a
quo
correctly ordered the eviction of the appellant from the stand.
[13] The
facts clearly establish that the appellant did not apply for land to
the Minister in his own right. It is the cooperative which applied
for land for distribution to its members. There was therefore no
contractual link between him and the Minister. He looked forward to
be allocated his portion of the land not by the Minister but by the
cooperative by virtue of his membership of the association. In the
absence of a contractual relationship between the Minister and the
appellant no rights or obligations arose between them in relation to
the cooperative's application for land. In legal parlance there was
no privity of contract between them.
[14] In
the absence of a contractual relationship between the appellant and
the Minister the appellant could not hold the Minister to account for
the lease agreement he concluded with the first respondent in respect
of the stand. No legitimate expectation could arise in the absence of
any contractual relationship between them. It is only the cooperative
which had applied for land to the Minister which could raise the
issue of legitimate expectation. The cooperative swept the rug from
underneath the appellant by failing to appeal against the judgment of
the court a
quo.
This is because the appellant claims to occupy the disputed stand
through the cooperative. Its failure to appeal means that it has
capitulated and that leaves the appellant with no leg to stand on as
he was riding on the back of the cooperative in his claim for
legitimate occupation of the stand.
[15] The
learned judge a
quo
was
undoubtedly correct in holding that the first respondent is the
rightful lessee of the stand by virtue of its valid lease agreement
with the owner of the stand. The appellant's futile attempt to
impugn the respondent's lease agreement on the basis of fraud was
correctly dismissed. Considering that the appellant had no lease
agreement with the owner of the stand or legitimate expectation to
lawfully occupy the stand, it was an exercise in futility to
challenge a lawful contract to which he is not a privy on the basis
of a mere application to occupy the same land. To make matters worse,
he admitted that he was in unlawful occupation of the land but sought
to sugar the pill by saying that he was in the process of
regularizing his unlawful occupation of the stand. The learned trial
judge drives the point home when he says in conclusion:
“The
issue of regularization as per annexure A, B and C does not prove
anything other than a process meant to acquire a stand. There is
nowhere in the record which shows the respondents (appellant) were
ever given any right of occupation by the third respondent (the
Minister). This Court wonders why the two respondents decided to
oppose this application. They were supposed to pursue their
application to the third respondent to its logical conclusion than
interfering with the applicant's undisturbed peaceful possession of
the said property.”
[16]
There is merit in the learned judge's sentiments. A mere
application for land does not strip the owner of the land of the
rights of ownership of the land. Thus a mere application until such
time it succeeds is no bar to the land owner from leasing the land
before the application has succeeded.
[17] In
the circumstances of this case, this was a matter eminently suited
for disposal on the papers. The points in
limine
raised,
were red herrings meant to throw spanners into the works. The first
respondent clearly had an interest to protect its lease agreement and
the rights flowing from the lease. The appellant having admitted that
there was no binding contract between him and the owner of the stand
he raised no further argument that could have rendered the matter
incapable of resolution on the papers.
[18]
In the result I hold that there is absolutely no merit in this
appeal. It is accordingly ordered that the appeal be and is hereby
dismissed with costs.
MAVANGIRA
JA: I
agree
CHIWESHE
JA: I
agree
Farai
Nyamayaro Law Chambers,
the
appellant's legal practitioners
Mugiya
& Muvhami Law Chambers,
the
respondent's legal practitioners
