CHIWESHE
JA:
This is an appeal against the whole judgment of the High Court (the
court a
quo)
sitting at Harare, handed down on 16 June 2021, dismissing the
appellant's claim for an order ejecting the respondent and all
those claiming occupation through him from plot 16340 Chinhoyi (the
plot), payment of holding over damages in the sum of $300 per month
for illegal occupation of the appellant's plot from 13 December
2013 to date of ejectment or vacation and interest at the prescribed
rate and costs of suit.
Aggrieved
by the decision of the court a
quo,
the
appellant has noted this appeal to this court.
THE
PARTIES
The
appellant is a local authority established in terms of the Urban
Councils Act [Chapter
29:15].
The
respondent resides within the area under the jurisdiction of the
appellant. He is a former councillor of the appellant.
THE
FACTS
Between
2008 and 2013 the respondent was a councillor of the appellant. The
appellant alleges that at some point during his tenure as councillor
the respondent created a false rates account in his name with the
help of an unknown council employee and took occupation of the plot.
It
further alleges that the respondent never acquired the plot in
question as it was reserved for a motor cross course which could not
be reduced to a residential stand.
The
appellant states that the respondent had occupied the plot in the
name of Leengate Investments (Pvt) Ltd and that the respondent never
purchased the plot.
On
the other hand, the respondent argues that he was entitled to the
plot as he had purchased it from the appellant.
After
a full trial, the court a
quo
dismissed
the appellant's claim with costs. The appellant appeals against
that decision on the following grounds.
“GROUNDS
OF APPEAL
1.
The court a
quo
erred in concluding that there existed an agreement of sale between
the defendant and Mr Maregere verbally and that such agreement was
binding on the plaintiff contrary to the clear provisions of section
152 of the Urban Councils Act [Chapter
29:15].
2.
The court a
quo
erred by ignoring a claim of rei
vindication and instead placed onus on the plaintiff where onus was
to be on the defendant to prove acquisition.
3.
The court a
quo
erred grossly in requiring the plaintiff to prove the narrative that
the defendant had no valid agreement of sale and that he did not pay
for the land.
4.
The court a
quo
erred by ruling that the plaintiff ought to have pleaded the law on
sale of public land owned by plaintiff, which sales are all governed
by section 152 of the Urban Councils Act [Chapter
29:15].
5.
The court a
quo
exhibited
bias by believing the defendant and holding him to be a credible
witness contrary to the evidence placed on record.
6.
The court a
quo
erred
grossly by relying on plan approval process to authenticate an
alleged sale where there existed no single evidence of the sale
itself or the proper allocation and agreement of sale of public land.
7.
The learned Judge grossly erred in arriving at a conclusion which was
not in any manner supported by the facts or evidence and law that
were placed before her.”
RELIEF
SOUGHT
The
appellant seeks the following relief:
“1.
That the appeal succeeds with costs.
2.
That the judgment of the court a
quo
be and is hereby set aside and in its place the following is
substituted:
'(a)
Judgment be and is hereby entered for the plaintiff.
(b)
The defendant be and is hereby ordered to vacate plot 16340 Chinhoyi
within 7 days of this order, failing which the sheriff be and is
hereby ordered to evict him and all those claiming occupation through
him from the said property.
(c)
The defendant is ordered to pay holding over damages to the plaintiff
in the sum of US$300-00 per month for illegal occupation with effect
from the 13th
December to the date of ejectment or vacation of the property by the
respondent.
(d)
The defendant shall pay interest thereon at the prescribed rate.
(e)
The defendant shall pay the appellant's costs of suit.'”
THE
ISSUES
The
grounds of appeal raise three issues:
(a)
Whether the respondent purchased the plot in question.
(b)
Whether the appellant is entitled to evict the respondent.
(c)
Whether the respondent should pay holding over damages.
PROCEEDINGS
IN THE COURT A
QUO
The
matter was referred to trial on two issues,
vis:
“(i)
whether the defendant lawfully acquired the property called plot
16340, Chinhoyi.
(ii)
whether the defendant is liable to pay holding over damages for the
unlawful occupation of plaintiff's land.”
During
the trial each party called only one witness.
The
appellant called one Marshal Johanne who was employed by it as a
revenue accountant. He told the court that he had been in the
appellant's employ for 4 years, 2 years of which he was employed as
a credit controller.
His
evidence was that the plot was owned by the appellant and that it was
used for motorbike sports until 2009. The plot was then offered to a
Mr Chayne. He did not take the plot citing lack of title.
In
June 2010, an entity called Leengate Investments applied to lease or
acquire the plot.
An
offer to lease was extended to that company but nothing materialised
as the company failed to meet the conditions stipulated by the
appellant.
The
witness accused the respondent of having been in cahoots with
Leengate.
He
averred that the respondent sat in the committee that had recommended
leasing the plot to Leengate, without declaring his interest.
The
witness stated that no agreement of sale was ever entered into
between the respondent and the appellant concerning this plot. In
fact, according to this witness, there are no council records
confirming the alleged sale of the plot to the respondent or any
other purchaser.
He
explained that whenever appellant intended to sell land to anyone, a
resolution to that effect must first be made.
When
the offer is not being made to an individual, an advertisement is
placed in the newspaper inviting prospective buyers to apply.
Thereafter, an offer is made to the successful applicant. This is
then followed by an agreement of sale or lease agreement.
He
denied that the respondent paid the sum of $36,080 as there are no
records to that effect.
He
explained that estate accounts have a unique serial number and same
is created from an agreement of sale. Thus when payment is made it
goes into that estate account.
The
witness conceded that the respondent's plans had been approved but
he was unable to identify the persons who did so.
He
insisted that the respondent had neither the agreement of sale nor
lease despite the approval of his building plans.
The
witness maintained that all other payments or subsequent approvals by
various departments cannot stand in the absence of the source
documents, that is, the agreement of sale or lease.
The
witness stated that his department was the custodian of all council
records and his search did not yield any source documents in favour
of the respondent.
The
court a
quo
found
this witness evasive in that he denied, for example, a document
clearly marked “arrear rentals” as being what it is - a paper
outlining arrear rentals. The same was observed with a document
showing payment of rates. He kept referring to the relationship
between Leengate and the respondent until it was pointed out to him
that, in its papers, the appellant had indicated that it later found
out that there was no link between the respondent and Leengate.
The
court a
quo
assessed
the credibility of this witness as follows:
“Rather
than give his evidence in a truthful manner acknowledging where
necessary that he had no knowledge of the facts, the witness struck
the court as a hired gun who was bent on ensuring that the plaintiff
wins at all costs.”
ANALYSIS
1.
Whether the respondent purchased the plot in question
It
appears that the court a
quo
based
its assessment of the credibility of this witness on peripheral
matters. It however lost sight of the crux of the witness evidence,
namely that his department is the custodian of the appellant's
records and that he had established that there was no record of any
agreement of sale or lease of the plot to the respondent. For that
reason, the plot remained the property of the appellant.
In
this regard the witness was not shaken nor did the respondent adduce
evidence to contradict that position.
The
respondent has not produced any documents purporting to be the
agreement of sale entered into by the parties.
What
he relies on are various inputs to do with the respondent's
departments, for example, the assessment of rates and the approval of
building plans pertaining to the plot.
However,
it is common cause that all these processes and activities could only
be embarked upon once there was a council resolution and an agreement
of sale.
In
devoting its assessment of the witness's credibility on peripheral
issues, some of which occurred before the witness was employed by the
respondent, the court a
quo
lost the essence of the inquiry that it should have embarked upon.
The
respondent has alleged a verbal agreement of sale entered into
between him and the appellant's employee, namely the Director of
Housing. That is confirmation of the witness's evidence that there
are no records of the sale.
The
appellant's position is unassailable. It did not sell the property
to the respondent - there are no records to that effect.
The
respondent's argument is that the plot was allocated to him
verbally by the appellant's director of housing.
It
is trite that immovable property of a municipal authority cannot be
disposed of verbally without any documents.
The
appellant further contended that if indeed it had sold this plot to
the respondent, it would have been required to comply with the
mandatory provisions of section 152(1) and (2) of the Urban Councils
Act [Chapter
29:15]
(the Act).
The
court a
quo
ruled that the above section did not apply because it had not been
pleaded and as such the appellant was raising it as an afterthought!
Firstly,
litigants are generally not required to plead the law.
Secondly,
the contention is not an afterthought. It is the Law! In any event,
it is trite that a point of law can be raised at any stage of the
proceedings.
The
appellant is a creature of the Urban Councils Act. Its land sales are
strictly controlled by that Act.
Section
152 of the Act provides as follows:
“Subject
to any rights which have been acquired by a miner, a council may
subject to section one hundred and fifty-three, sell, exchange,
lease, donate or otherwise dispose of or permit the use of any land
owned by the council after compliance has been made with the section.
Before
selling, exchanging, leasing or donating or otherwise disposing of or
permitting the use of any land owned by it, the council shall by
notice published in two issues of the newspaper and at the office of
the council give notice:
(a)
of its intention to do so, describing the land concerned and stating
the object, terms and conditions of the proposed sale, exchange,
lease, donations, disposition or grant of permission of use; and
(b)
that copy of the proposal is open for inspection during office hours
at the office for a period of twenty–one days from the date of the
last publication of the notice in a newspaper; and
(c)
that any person who objects to the proposal may lodge his objection
with the town clerk within the period of twenty-one days referred to
in para (b).”
Section
152 of the Act sets out the procedure to be followed by the appellant
when disposing of land belonging to council. These provisions are
mandatory. As long as same are not complied with no valid sale or
transfer of council land can occur.
Thus,
even assuming that the respondent had a valid agreement of sale, such
would not prevail in the absence of proof that the provisions of
section 152 were complied with.
Failure
to comply with the mandatory provisions of section 152 renders the
agreement null and void.
In
casu
the
court a
quo
sanctioned a nullity. Its order cannot stand. See
Mcfoy v United Africa Co
1961 (3) ALL ER 1169 (PC) at 1172.
2.
Whether the appellant is entitled to evict the respondent
There
was no valid agreement of sale between the parties.
Accordingly,
no rights accrue to the respondent with regards the plot. The
appellant has the right to vindicate its property. It may evict the
respondent therefrom.
3.
Whether the respondent should pay holding over damages
The
appellant did not, in the court a
quo,
seek
to prove the quantum
of
the holding over damages it seeks.
The
claim for arrear rentals is defective in that the figure of US$300
per month seems to have been plucked from the air. No evidence was
led to prove that the figure sought is in line with rentals generally
charged and paid in the relevant locality for similar properties.
The
claim cannot be granted.
DISPOSITION
The
court
a
quo
grossly
misdirected itself in accepting, as it did, that the respondent had
proved that he had bought the plot from the appellant, in the absence
of any document proving such sale. It surprisingly came to the
conclusion that council land could be alienated on the basis of a
verbal agreement as alleged by the respondent. The facts as presented
clearly show that there were no records at the appellant's offices
to prove the alleged sale. More importantly, the respondent did not
produce such documentary evidence. In any event, he was not in a
position to do so, having alleged that a verbal agreement between him
and appellant's Director of Housing was all that had happened.
It
is doubtful if a mere employee of the appellant, such as the Director
of Housing, had the authority to sell council land in the absence of
council resolution to that effect.
The
respondent, being a councillor at the time, would have been aware of
the need to obtain council resolution and to invoke the provisions of
section 152 of the Act. He did not subject this verbal agreement to
these procedures.
Further,
the respondent did not produce evidence to show that he had paid for
the plot.
It
is for these reasons that the appellant alleges dishonest conduct on
the part of the respondent.
The
court a
quo
grossly
misdirected itself by ignoring the clear provisions of section 152 of
the Act. These provisions are mandatory. Failure to comply with these
provisions nullifies the alleged sale of the plot.
In
the circumstances the respondent has no leg to stand on. He cannot
resist the claim to evict him from the appellant's property.
The
appellant did not prove its claim for holding over damages.
Accordingly,
the appeal must succeed only in part. Costs shall follow the result.
In
the result it is ordered as follows:
1.
The appeal succeeds in part.
2.
The respondent shall pay the costs of the appeal.
3.
The order of the court a
quo
be and is hereby set aside and in its place substituted the
following:
“(a)
The application succeeds in part.
(b)
The respondent be and is hereby ordered to vacate plot 16340,
Chinhoyi within 7 days of service of this order upon him, failing
which, the sheriff be and is hereby ordered to evict him and all
those claiming occupation through him from the said property.
(c)
The claim for holding over damages is dismissed.
(d)
The respondent shall pay the costs of suit.”
MAVANGIRA
JA:
I agree
MUSAKWA
JA:
I agree
Warara
& Associates,
appellant's legal practitioners
Nelson
Mashizha Legal Practitioners,
respondent's legal practitioners
