Everson Musimbira v Tendai Nyahoja

HH 166-2011
                                                                          CIV ‘A’ 436/08

EVERSON MUSIMBIRA
versus
TENDAI NYAHOJA



IN THE HIGH COURT OF ZIMBABWE
GUVAVA & CHITAKUNYE JJ
HARARE, 6, 21 July & 18 August 2011

FAMILY LAW COURT
Civil Appeal


Appellant in person
Mr Muchineripi, for the Respondent



       GUVAVA J: This matter relates to two appeals. As both records were placed
before us we decided to determine both appeals together. The first appeal is an appeal
against the magistrates Court sitting at Chinhoyi dated 26 April 2005. In this case the
court made an order for the eviction of the appellant from house 255 Kuwadzana Banket,
payment of rent in the sum of Z$20 000 per month from date 8 July 2003 and costs of
suit. Following the noting of an appeal by the appellant against this judgment, the
respondent applied for and was granted leave to execute the order pending the
determination of this appeal. The appellant promptly appealed against that order.
       At the commencement of the proceedings the respondent raised a point in limine.
It was submitted that the second appeal against the order allowing execution of the courts
judgment was bad at law as it was an appeal against an interlocutory order. The
respondent did not seriously dispute that the appeal was not properly before us. We
upheld the point in limine which had been raised and dismissed the appeal without giving
reasons. We indicated that our reasons would contained be in the main judgment. These
are they.
       Whilst cognizant of the fact that the respondent was a self actor and may not have
appreciated the point in issue we are still of the view that the concession was properly
made. Section 40 of the Magistrates Court Act [Cap 7:10] provides that an appeal shall
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lie against a final and definitive order of the court. An order for leave to execute pending
an appeal is not a final order as it is an order made pending the determination of the main
appeal. In the case of Van Leggelo v Transvaal Cellocrete (Pvt) Ltd & Anor 1953 (2) SA
287 (T) Blackwell J held that an order by a magistrate granting leave to evacuate pending
an appeal was interlocutory and consequently not appealable in that it did not have the
effect of a final judgment. Jones and Buckle in the book "The Civil Practice of the
Magistrates Court in South Africa" Volume 1 8th edition at p 330 states as follows:
       "(a) The term interlocutory refers to all orders pronounced by the court upon a
       matter incidental to the main dispute, preparatory to, or during the process of
       litigation. Orders of this kind are of two classes, (1) those which have a final or
       definitive effect on the main action, and (2) those which do not (known as simple
       or purely) interlocutory orders or interlocutory orders proper.

       (b) …
       (c )…
       (d) The question is not whether ant matter has been fully determined or whether
       the one party or the other has by the order suffered an inconvenience or
       disadvantage in the litigation which nothing but an appeal can put right but
       whether the decision bears upon, and in that way affects the decision in the main
       suit…….."

       This position is supported by the Zimbabwean case of Gillespies Monumental
Works (Pvt) Ltd v Zimbabwe Granite Quarries (Pvt) Ltd 1997 (2) 436 where it was held
that an appeal against an order of leave to execute an order of ejectment pending appeal
was invalid as the order did not have a final or definitive effect on the main appeal. The
appeal before us being an appeal against an order for execution pending appeal is clearly
an interlocutory order as defined above.
        It was for these reasons that we found that the appeal was invalid and we
dismissed the appeal with costs.
       In the first appeal it was apparent from the record that both parties had led
evidence before the court a quo. It was also apparent from the record that the facts which
gave rise to the dispute were mainly common cause. I will attempt to summarize them as
follows. The late Joseph Musimbira was employed by Banket Council under the Zvimba
Rural District Council. He was leasing stand 255 Kuwadzana Township, Banket (the
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property) from Zvimba Rural District Council until he died tragically in a car accident in
1982. He lived there with Ephraim whom he was sending to school. Although he was
married Joseph had no children of his own. On 20 July 2001, after the death of Joseph,
the Council entered into an agreement of sale with Ephraim Musimbira for the sale of the
council property. At the time the appellant and Ephraim Musimbira were residing on the
property in question. The appellant had moved from Chinhoyi where he used to reside as
he had been tasked by his elder brother to look after the late Joseph Musimbira's
property. When the offer to sell was made by Council, Ephraim went and entered into an
agreement of sale with Zvimba Rural District Council. When he acquired ownership of
the property he advised the appellant. After purchasing the property Ephraim then sold it
to the respondent on 26 November 2002. Ownership was thereafter transferred to the
respondent.
        In his grounds of appeal the appellant stated that the trial court had erred in a
number of respects. They are set out as follows:


           1. "The learned magistrate a quo erred on both fact and law when he held
              that house number 255 Kuwadzana Township Banket was legally bought
              by Ephraim Musimbira.

           2. The learned magistrate a quo erred on both law and fact when he failed to
              notice that the house was on a lease to buy contract and therefore belonged
              to the late Joseph Musimbira.

           3. The learned magistrate erred on the fact when he failed to realize that
              appellant was the sitting tenant and not Ephraim Musimbira and appellant
              who has the right to vindicate the property sold to the respondent.

           4. The learned magistrate also erred by holding that appellant should pay
              rentals in respect of a property illegally dispossessed from him.

          5. The Magistrate Court a quo erred when it failed to realize that Ephraim
              Musimbira only managed to have his name put as owner of the house
              when in actual fact all payments were made by the Appellant who was the
              sitting tenant after the death of Joseph Musimbira."
       During the hearing the respondent told the court that he was abandoning the claim
for arrear rentals in the sum of Z$20 000. This meant that the appeal with relation to the
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payment of rent would be automatically allowed. The remaining grounds are very
interrelated and one cannot deal with one without dealing with the other.
       The grounds in my view attack the magistrates finding by the trial court that
Ephraim Musimbiri had purchased the property from the Zvimba Rural District Council.
The evidence in the record was quite clear on how the property was purchased. There was
clearly no dispute with regards to the fact that at the time that Joseph was renting the
property council had not yet introduced the scheme where persons renting the house
could purchase it from the council. This scheme was only introduced in 1999 well after
the death of Joseph. It is therefore quite apparent that Joseph never accrued any rights to
the property during his lifetime other than a landlord and tenant relationship.
        The record is silent on how the appellant and Ephraim continued to reside on the
property following the death of Joseph. It was only in the appellant’s Heads of Argument
that the court hears for the first time that he stayed on the property through the invitation
of the council. The appellant was clearly introducing new evidence as it had been his
testimony during the trial that he was requested by their elder brother to stay on the
property and look after the deceaseds property. This could not have included the house as
at that stage the accommodation was on purely a lease. However no one from council was
called to testify on his behalf during the trial. In any event there is no explanation as to
why the council thereafter proceeded to sell the property to Ephraim if they had always
been aware that he was the one with the authority to reside on the property. Their records
would have clearly shown who the lawful tenant for the property was. The respondent in
my view demonstrated quite lucidly how he acquired the property from Ephraim
Musimbira after Ephraim had purchased it from council. I could find no fault in the
magistrates findings based on the evidence before him.
       Accordingly it is ordered as follows:
       1.         The appeal against the order of the Magistrate Court for the eviction of
                  the appellant under case number CIV(A) 165/05 be and is hereby
                  dismissed.
       2.         The appeal against the award of rent in the sum of Z$20 000 per month
                  with effect from 8 July 2003 is hereby allowed.

       3.         The appellant shall pay the respondents costs.
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CHITAKUNYE J: agrees, …………………………………


Mucheniripi and Associates, respondent's legal practitioners