MZILIKAZI v MUTERO (110 of 2025) [2025] ZWHHC 110 (16 July 2025)

3 HH 110-25 HCH 1996/24 GIFT MZILIKAZI versus FRANCIS MUTERO HIGH COURT OF ZIMBABWE MHURI & MAXWELL JJ HARARE, 16 JULY 2024 T Mpofu for the applicant K Chamisa for the respondent MAXWELL J: This is an appeal against the judgment of the Magistrates Court sitting at Norton handed down on the 19 of April 2024. The Respondent had approached the court a quo seeking a mandement van spolie on an ex parte basis. In the founding affidavit, the deponent stated that he has authority to depose to the affidavit on behalf of the Plaintiff (sic) by virtue of a General Power of Attorney. Further that he was allocated plot number 4 Stanhope Farm, Chegutu for resettlement in 1998. For the past 26 years he had occupied and used the plot peacefully without disturbance from anyone. During the week extending from 24 to 30 March 2024 the appellant forcibly took possession of the plot. He sought legal advice and was advised to approach the court for relief. He sought a possessory remedy that plot 4 Stanhope Farm be restored to him. The record of proceeding shows that the Respondent therein filed a notice of opposition and anticipation of the return date. The lower court was satisfied that the requirements for spoliation were met and confirmed the rule nisi. Appellant was aggrieved and noted an appeal on the following grounds. The court a quo erred in assuming jurisdiction in a spoliation matter in which the value to the occupier was not pleaded, proved or otherwise ascertained and that was in breach of statutory provisions bearing on the issue.The court a quo erred and misdirected itself in confirming a rule nisi for the spoliatory relief issued ex parte as an interim order and thus upon that could only have been the establishment of a prima facie case. The State of Zimbabwe having found by formal process that applicant had lost occupation of the property in issue and such findings having been contained in an official record, the court a quo erred in making factual findings to the contrary and without hearing the State of Zimbabwe. Alternatively, the court a quo erred is not holding that the question of applicant’s occupation at best created a dispute of that which could not be resolved on affidavit evidence in his favour and so erred in finding that he was in peaceful and undisturbed possession. The Court a quo erred in relating to the hearsay evidence of the deponent to the founding affidavit unsupported in any manner by the evidence of the litigant and which was irregularly and falsely given in the first-person narrative. A fortiori, the court a quo erred in not concluding that the standing of the person who sought to make a case before it was in issue. Appellant prayed for the setting aside of the judgment of the court a quo and its substitution with an order for the dismissal of the application with costs. SUBMISSIONS BY THE PARTIES The Appellant submitted that the lower court does not have unlimited jurisdiction over all spoliatory causes and disputes falling within its geographical area of jurisdiction. He referred to section 12 (1) of the Magistrates Court Act [Chapter 7:10] and the cases of Mutangiri and Others v Mutema t/a Leonard Trading and Anor HMA-6-18 and Madzawawa v Vambe HH 65-12. The Appellant further submitted that a spoliation order cannot be granted on the establishment of a prima facie case as stated in Blue Rangers Estate (Pvt) Ltd v Muduviri and Anor SC 29/09. The Appellant pointed out that the founding affidavit tells the deponent’s story, not the Respondent’s story. Further that the Respondent never claimed to have been in occupation. The Appellant also submitted that the court made a finding which is at variance with the position of the Government of Zimbabwe and further did not see the need to hear it. Appellant argued in the alternative that there was a dispute of fact on the question of the respondent’s occupation which could not be resolved in the absence of viva voce evidence. Appellant pointed out that the court a quo received hearsay evidence as the deponent in the founding affidavit stated that he was given a power of attorney in 2020 yet he purported to speak on events he said occurred between 1998 and 2020. He also did not lay a basis for speaking to events that occurred post 2020 as he did not say he took occupation. In response Respondent argued that the issues of monetary jurisdiction and material dispute of fact were never pleaded by the Appellant in the court below. Further that Order 23 Rule 1 and 2 of the Magistrates Court (Civil) Rules 2019 allows the lower court to make a spoliation order in the form of an ex parte application with a rule nisi being issued as stated in the case of Mhondoro Ngezi Rural District Council v Chihuri and Anor HH 101/24. Respondent submitted that there was no need to join the Minister of Lands, Agriculture, Fisheries, Water and Rural Development in spoliation proceedings as the remedy sought was simply restoration of the status quo ante pending the determination of the dispute of right between the parties. He referred to Nyamande v Mahachi and Others SC45/23 and JC Connoly and Sons (Pvt) Ltd v RC Ndhlukula and Anor SC 22/2018. Respondent argued that there was no issue regarding the respondent in the court below as the deponent to the founding affidavit positively swore to the facts which were necessary for the spoliation application. To obtain a spoliation order, a litigant must prove two things That he was in peaceful and undisturbed possession of the property, and The Respondent dispossessed him forcibly or wrongfully against his consent See Botha and Anor v Barret 1996 (2) ZLR 73 Now turning to the grounds of appeal, the first one faults the lower Court for dealing with a matter in which the value to the occupier was not pleaded, proved or ascertained to confirm jurisdiction. This issue was not raised in the lower court. Whilst it is trite that a point of law can be raised at any stage we are not convinced that the failure by the lower court to deal with the issue is fatal. Firstly, there was no proof that the value of the right of occupation exceeded the jurisdiction of the court. Appellant referred to the case of Mutangiri and Ors v Mutema (supra). We are of the view that the case is distinguishable. In that case the question of jurisdiction was raised in supplementary heads of argument after judgment was reserved, but before it was pronounced. The lower court therein gave the other party the opportunity to respond to the supplementary heads of argument and made a judgment after both parties had made submissions on the value of the right of occupation. In the Mutangiri case (supra) the dispute was over business premises with trading stock. In casu the dispute is over farm land. The lower court cannot be faulted for not enquiring on jurisdiction where there is no indication that the right of occupation exceeds its jurisdiction. In Madzwawawa v Vambe HH 65/12 there the value of occupation was not stated or established, the court took judicial notice of the fact that the property was in an area where the value of houses exceeded the monetary threshold of the jurisdiction of the Magistrates Court. There is no basis for finding that the value of occupying an undeveloped farm exceeds the monetary threshold of the jurisdiction of the Magistrates Court. The first ground of appeal therefore fails. In the second ground of appeal, Appellant criticizes the lower Court for confirming a rule nisi for spoliatory relief issued ex parte as an interim order upon what could only have been the establishment of a prima facie case. We are persuaded by the submissions for the Respondent that there was nothing abnormal in the procedure followed. Tsanga J stated in Mhondoro Ngezi Rural District Council v Chihuri and Anor (supra) that: “Furthermore, there is nothing unusual in permitting a spoliation to be by way of an ex- parte application.” In any event, the Appellant had opportunity to argue the matter after he was served with the ex parte order. It would have been a different issue if the Appellant had not been served and given an opportunity to argue against confirmation of the rule nisi. There is no merit in this ground of appeal. The appellant criticizes the lower Court for not hearing the State of Zimbabwe before making a decision on the matter. The State of Zimbabwe’s views are necessary where the right of occupation is in issue. It is trite that in spoliation proceedings the rights of the parties are not considered. What is sought is the restoration of the status quo ante. As stated above, all the applicant has to establish is that he was in peaceful and undisturbed possession. It is trite that the lawfulness or otherwise of the possession is not an issue in spoliation proceedings. See Nyamande v Mahachi SC 45/23. The third and fourth grounds of appeal have no merit and cannot succeed. In the fifth ground of appeal, Appellant faults the lower Court for relying on hearsay evidence of the litigant. The lower Court relied on the fact that Appellant admitted to occupying the farm and attached a letter from the Chegutu authority recommending his occupation. It went on to state that: “A recommendation is not a lawful authority at Law there is nothing called Chegutu District Lands Committee it has no legal standing. In light of the admission which was done by the Respondent that he came and occupied the farm the Supreme Court had one occasion to consider the admissions in respect of 36 (sic). Mining Industry and Pension Fund v DAB Market (Pvt) Ltd 293 ZLR @ 560 SC I will quote “A formal admission made in pleadings cannot be argued by(sic) the court before which it is made unless withdrawn. It prevents the leading of any further evidence to prove or disprove the admitted facts it becomes conclusive of the issue or facts admitted.” The admission by the Respondent that he occupied the farm is conclusive of the spoliation act by the Respondent. The court should not crack its head on whether he admitted he went and occupied the farm with his belongings.” The Appellant’s attack on the evidence relied upon by the Court hinges on his challenge as to whether or not Respondent was in occupation. The lower Court found that the inquiry was not necessary as the Appellant stated that he went to occupy the farm from 15 March 2024. It is trite that each case is dealt with on its own facts. For purposes of spoliation, the confirmation by the Appellant that he went on to the property in March 2024 cures the defect of the hearsay evidence. We find no merit in the fifth ground of appeal. The standing of the person who sought to make a case before the lower Court was never challenged in the Court a quo. What the Appellant concentrated on was the commissioning of the affidavit by a person who appeared seeking a postponement of the matter and also the issue of the date of commissioning. The court held that the commissioning lawyer was not from the same law firm as Respondent’s counsel. It dismissed the objection that the Appellant had raised. That the deponent of the Founding Affidavit had no standing before the court was not argued in the court a quo. It is trite that a court cannot be faulted for not dealing with an issue that was not raised before it. We find no merit in this ground of appeal as well. Overally, the appeal being devoid of any merit, the following order is appropriate. The Appeal be and is hereby dismissed with costs. Maxwell J ……… Mhuri J………………………………………………………. 3 HH 110-25 HCH 1996/24 3 HH 110-25 HCH 1996/24 GIFT MZILIKAZI versus FRANCIS MUTERO HIGH COURT OF ZIMBABWE MHURI & MAXWELL JJ HARARE, 16 JULY 2024 T Mpofu for the applicant K Chamisa for the respondent MAXWELL J: This is an appeal against the judgment of the Magistrates Court sitting at Norton handed down on the 19 of April 2024. The Respondent had approached the court a quo seeking a mandement van spolie on an ex parte basis. In the founding affidavit, the deponent stated that he has authority to depose to the affidavit on behalf of the Plaintiff (sic) by virtue of a General Power of Attorney. Further that he was allocated plot number 4 Stanhope Farm, Chegutu for resettlement in 1998. For the past 26 years he had occupied and used the plot peacefully without disturbance from anyone. During the week extending from 24 to 30 March 2024 the appellant forcibly took possession of the plot. He sought legal advice and was advised to approach the court for relief. He sought a possessory remedy that plot 4 Stanhope Farm be restored to him. The record of proceeding shows that the Respondent therein filed a notice of opposition and anticipation of the return date. The lower court was satisfied that the requirements for spoliation were met and confirmed the rule nisi. Appellant was aggrieved and noted an appeal on the following grounds. The court a quo erred in assuming jurisdiction in a spoliation matter in which the value to the occupier was not pleaded, proved or otherwise ascertained and that was in breach of statutory provisions bearing on the issue. The court a quo erred and misdirected itself in confirming a rule nisi for the spoliatory relief issued ex parte as an interim order and thus upon that could only have been the establishment of a prima facie case. The State of Zimbabwe having found by formal process that applicant had lost occupation of the property in issue and such findings having been contained in an official record, the court a quo erred in making factual findings to the contrary and without hearing the State of Zimbabwe. Alternatively, the court a quo erred is not holding that the question of applicant’s occupation at best created a dispute of that which could not be resolved on affidavit evidence in his favour and so erred in finding that he was in peaceful and undisturbed possession. The Court a quo erred in relating to the hearsay evidence of the deponent to the founding affidavit unsupported in any manner by the evidence of the litigant and which was irregularly and falsely given in the first-person narrative. A fortiori, the court a quo erred in not concluding that the standing of the person who sought to make a case before it was in issue. Appellant prayed for the setting aside of the judgment of the court a quo and its substitution with an order for the dismissal of the application with costs. SUBMISSIONS BY THE PARTIES The Appellant submitted that the lower court does not have unlimited jurisdiction over all spoliatory causes and disputes falling within its geographical area of jurisdiction. He referred to section 12 (1) of the Magistrates Court Act [Chapter 7:10] and the cases of Mutangiri and Others v Mutema t/a Leonard Trading and Anor HMA-6-18 and Madzawawa v Vambe HH 65-12. The Appellant further submitted that a spoliation order cannot be granted on the establishment of a prima facie case as stated in Blue Rangers Estate (Pvt) Ltd v Muduviri and Anor SC 29/09. The Appellant pointed out that the founding affidavit tells the deponent’s story, not the Respondent’s story. Further that the Respondent never claimed to have been in occupation. The Appellant also submitted that the court made a finding which is at variance with the position of the Government of Zimbabwe and further did not see the need to hear it. Appellant argued in the alternative that there was a dispute of fact on the question of the respondent’s occupation which could not be resolved in the absence of viva voce evidence. Appellant pointed out that the court a quo received hearsay evidence as the deponent in the founding affidavit stated that he was given a power of attorney in 2020 yet he purported to speak on events he said occurred between 1998 and 2020. He also did not lay a basis for speaking to events that occurred post 2020 as he did not say he took occupation. In response Respondent argued that the issues of monetary jurisdiction and material dispute of fact were never pleaded by the Appellant in the court below. Further that Order 23 Rule 1 and 2 of the Magistrates Court (Civil) Rules 2019 allows the lower court to make a spoliation order in the form of an ex parte application with a rule nisi being issued as stated in the case of Mhondoro Ngezi Rural District Council v Chihuri and Anor HH 101/24. Respondent submitted that there was no need to join the Minister of Lands, Agriculture, Fisheries, Water and Rural Development in spoliation proceedings as the remedy sought was simply restoration of the status quo ante pending the determination of the dispute of right between the parties. He referred to Nyamande v Mahachi and Others SC45/23 and JC Connoly and Sons (Pvt) Ltd v RC Ndhlukula and Anor SC 22/2018. Respondent argued that there was no issue regarding the respondent in the court below as the deponent to the founding affidavit positively swore to the facts which were necessary for the spoliation application. To obtain a spoliation order, a litigant must prove two things That he was in peaceful and undisturbed possession of the property, and The Respondent dispossessed him forcibly or wrongfully against his consent See Botha and Anor v Barret 1996 (2) ZLR 73 Now turning to the grounds of appeal, the first one faults the lower Court for dealing with a matter in which the value to the occupier was not pleaded, proved or ascertained to confirm jurisdiction. This issue was not raised in the lower court. Whilst it is trite that a point of law can be raised at any stage we are not convinced that the failure by the lower court to deal with the issue is fatal. Firstly, there was no proof that the value of the right of occupation exceeded the jurisdiction of the court. Appellant referred to the case of Mutangiri and Ors v Mutema (supra). We are of the view that the case is distinguishable. In that case the question of jurisdiction was raised in supplementary heads of argument after judgment was reserved, but before it was pronounced. The lower court therein gave the other party the opportunity to respond to the supplementary heads of argument and made a judgment after both parties had made submissions on the value of the right of occupation. In the Mutangiri case (supra) the dispute was over business premises with trading stock. In casu the dispute is over farm land. The lower court cannot be faulted for not enquiring on jurisdiction where there is no indication that the right of occupation exceeds its jurisdiction. In Madzwawawa v Vambe HH 65/12 there the value of occupation was not stated or established, the court took judicial notice of the fact that the property was in an area where the value of houses exceeded the monetary threshold of the jurisdiction of the Magistrates Court. There is no basis for finding that the value of occupying an undeveloped farm exceeds the monetary threshold of the jurisdiction of the Magistrates Court. The first ground of appeal therefore fails. In the second ground of appeal, Appellant criticizes the lower Court for confirming a rule nisi for spoliatory relief issued ex parte as an interim order upon what could only have been the establishment of a prima facie case. We are persuaded by the submissions for the Respondent that there was nothing abnormal in the procedure followed. Tsanga J stated in Mhondoro Ngezi Rural District Council v Chihuri and Anor (supra) that: “Furthermore, there is nothing unusual in permitting a spoliation to be by way of an ex- parte application.” In any event, the Appellant had opportunity to argue the matter after he was served with the ex parte order. It would have been a different issue if the Appellant had not been served and given an opportunity to argue against confirmation of the rule nisi. There is no merit in this ground of appeal. The appellant criticizes the lower Court for not hearing the State of Zimbabwe before making a decision on the matter. The State of Zimbabwe’s views are necessary where the right of occupation is in issue. It is trite that in spoliation proceedings the rights of the parties are not considered. What is sought is the restoration of the status quo ante. As stated above, all the applicant has to establish is that he was in peaceful and undisturbed possession. It is trite that the lawfulness or otherwise of the possession is not an issue in spoliation proceedings. See Nyamande v Mahachi SC 45/23. The third and fourth grounds of appeal have no merit and cannot succeed. In the fifth ground of appeal, Appellant faults the lower Court for relying on hearsay evidence of the litigant. The lower Court relied on the fact that Appellant admitted to occupying the farm and attached a letter from the Chegutu authority recommending his occupation. It went on to state that: “A recommendation is not a lawful authority at Law there is nothing called Chegutu District Lands Committee it has no legal standing. In light of the admission which was done by the Respondent that he came and occupied the farm the Supreme Court had one occasion to consider the admissions in respect of 36 (sic). Mining Industry and Pension Fund v DAB Market (Pvt) Ltd 293 ZLR @ 560 SC I will quote “A formal admission made in pleadings cannot be argued by(sic) the court before which it is made unless withdrawn. It prevents the leading of any further evidence to prove or disprove the admitted facts it becomes conclusive of the issue or facts admitted.” The admission by the Respondent that he occupied the farm is conclusive of the spoliation act by the Respondent. The court should not crack its head on whether he admitted he went and occupied the farm with his belongings.” The Appellant’s attack on the evidence relied upon by the Court hinges on his challenge as to whether or not Respondent was in occupation. The lower Court found that the inquiry was not necessary as the Appellant stated that he went to occupy the farm from 15 March 2024. It is trite that each case is dealt with on its own facts. For purposes of spoliation, the confirmation by the Appellant that he went on to the property in March 2024 cures the defect of the hearsay evidence. We find no merit in the fifth ground of appeal. The standing of the person who sought to make a case before the lower Court was never challenged in the Court a quo. What the Appellant concentrated on was the commissioning of the affidavit by a person who appeared seeking a postponement of the matter and also the issue of the date of commissioning. The court held that the commissioning lawyer was not from the same law firm as Respondent’s counsel. It dismissed the objection that the Appellant had raised. That the deponent of the Founding Affidavit had no standing before the court was not argued in the court a quo. It is trite that a court cannot be faulted for not dealing with an issue that was not raised before it. We find no merit in this ground of appeal as well. Overally, the appeal being devoid of any merit, the following order is appropriate. The Appeal be and is hereby dismissed with costs. Maxwell J ……… Mhuri J……………………………………………………….