Panashe Petroleum and Elima Fuels (Pvt) Ltd v A One Transport (Pvt) Ltd

### Preamble
1
HH 484/25
HCHC 189/25
X REF; HREC-CD112/25
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PANASHE PETROLEUM

And

ELIMA FUELS (PVT) LTD

Versus

A ONE TRANSPORT (PVT) LTD

HIGH COURT OF ZIMBABWE

COMMERCIAL DIVISION

CHILIMBE AND NDLOVU JJ

Harare, 10 July & 27 August 2025.

Civil Appeal

Mr T. C Masara, for the Appellant

Mr T. L Muringani, for the Respondent

NDLOVU J: This is an appeal against part of the judgment of the Magistrates’ Court sitting at Harare, handed down by Esquire L NCUBE in Case No. HREC-CD112/25 on the 19th  of March 2025.

BRIEF BACKGROUND

1]	Both the appellants and the respondent are companies duly registered in accordance with the laws of Zimbabwe. The respondent owns a Service Station situated in Harare. The respondent leased the property to the second appellant, who informed the respondent that it intended to operate a service station in the name of the first appellant. The first appellant did not sign the lease agreement between the respondent and the second appellant for leasing the property. The respondent then claimed that it had never given vacant possession of the property to the first appellant; therefore, the second appellant had no authority to do so. The respondent further claimed that it believed that the first appellant had signed the lease agreement and consequently proceeded to give a Notice of Termination of the lease agreement, which was non-existent.

PROCEEDINGS IN THE COURT A QUO

2]	Subsequently, the respondent issued a summons against the appellants, seeking an eviction order against the 1st appellant and damages of US$8,000 for rentals from November 1, 2024, to the date of eviction. The appellants entered an appearance to defend and proceeded to file a special plea regarding locus standi, contending that the respondent could not institute proceedings against them regarding the property because there was no legal relationship between the parties. Furthermore, they averred that the respondent did not own the property; therefore, it could not bring eviction proceedings against them. The respondent also filed an application for summary judgment in terms of Order 15 of the Magistrates’ Court (Civil) Rules 2019.

DECISION OF THE COURT A QUO

3] 	Both the special plea and the application for summary judgment were heard and determined by the court a quo at the same time, and both applications were dismissed. Aggrieved by the court a quo's decision, the appellants noted an appeal against part of the court a quo's decision, specifically the rejection of the special plea.

PROCEEDINGS BEFORE THIS COURT

Grounds of Appeal

“1. The court a quo misdirected itself in determining that the special plea of lack of locus standi on the part of the respondent was based on the fact that the respondent had not pleaded the basis upon which it sought the eviction first appellant when the special plea of lack of locus standi was based on the fact that the respondent did not own No. 11F Market Street, Eastlea, Harare (hereinafter referred to as “the property”) from which the respondent sought the eviction of the first appellant.

2. As a corollary, the court a quo grossly misdirected itself in determining that, by pleading that it was the owner of the property, the respondent had established that it had the locus standi to sue for the eviction of the first appellant from the property in the face of contrary evidence that the property is owned by City of Harare who had leased it to Messrs. Kingstone Ringisai Makarichi, George Jokonya and Washington Madzinga which lease expired on 1 April 2014.

3. The court a quo erred in failing to determine the issue of whether or not the respondent owned the service station at the property.”

RELIEF SOUGHT

1. “That the appeal succeeds with costs.

2. That judgment of the court a quo dismissing the appellants’ special plea of lack of locus standi on the part of the respondent is set aside and substituted with the following:

“(a) Plaintiff’s claim be and is hereby dismissed for lack of locus standi on the part of the plaintiff.

(b) Plaintiff shall pay costs of suit on a legal practitioner and client scale.”

PRELIMINARY POINTS RAISED BY THE RESPONDENT

4]	The respondent took three points in limine against the appeal filed by the appellants, namely;

i) Certification of inspection is invalid.

ii) Appeal on an interlocutory order is not final and definitive.

iii) Grounds of appeal relate to issues not subject to the determination of the court a quo

Certification of inspection is invalid.

5]	The respondent submitted that, in terms of the Rules of the Supreme Court, 2018 (as amended), it was not permitted to inspect and certify the record as a true and accurate reflection of the proceedings before the court a quo. On this basis, the respondent argued that the appeal should be struck off the roll, in accordance with Practice Direction 3 of 2013, because it had been enrolled without a valid certificate of inspection.

6]	The appellants did not dispute the absence of a valid certificate of inspection regarding the record before the court. Instead, they submitted that they too were “surprised” that the record had been filed with the Registrar of the appellate court without any prior invitation to the parties to inspect and confirm its accuracy. Despite this irregularity, the appellants maintained that they had no objection to the contents of the record as filed.

7]	This point lacks merit and should be dismissed. The respondent correctly cited Rule 17(11) of the Supreme Court Rules in this regard; however, we are not the Supreme Court, and this matter does not emanate from the High Court, but from the Magistrates' Court. The Magistrates Court [Civil] Rules, 2018, do not provide for the inspection of an appeal record. The practice of inspecting appeal records at the Magistrates’ Court. It is a practice adopted by the Magistrates’ Courts, for convenience, and that does not clothe it with the force of a legal rule of procedure capable of being taken as a point in limine on appeal in this court.

Accordingly, I find no merit in this point in limine, and I duly dismiss it.

An interlocutory order is not appealable.

8]	The respondent averred that this appeal is not properly before this court because it is an appeal against an interlocutory ruling of the court a quo, which is not final and definitive in nature. Per contra, the appellants submitted that the court a quo’s decision to dismiss the appellants’ special plea on the grounds of the respondent’s lack of locus standi was a final one.

9]	Section 40 (2) of The Magistrates’ Court Act [Chapter 7:10] provides as follows;

(2) Subject to subsection (1), an appeal to the High Court shall lie against

“(a) any judgment of the nature described in section eighteen or thirty-nine;

(b) any rule or order made in a suit or proceeding referred to in section eighteen or thirty-nine and having the effect of a final and definitive judgment, including any order as to costs.” [my emphasis]

In the case of Nhau v Zuze HCH 697/22, the court said the following:

“This means that allowing an appeal on an interlocutory order by the court a quo, which is not final and definitive, is bad at law. The order of the court a quo did not affect, in a final and definitive manner, the issues between the parties, which would be settled at the end of the trial. This appeal offends against the provisions of S 40 (2) (b) of the Magistrates’ Court Act.”

10]	The special plea determined by the court a quo was based on the respondent's locus standi. The ruling on locus standi was interlocutory in form and nature. The respondent pleaded ownership of the service station; the court a quo merely acknowledged the respondent’s asserted relationship with the property, without making a final determination on ownership. It remains incumbent upon the respondent to prove, through admissible evidence at trial, that it is indeed the owner of the property. The dispute between the parties, being eviction and payment of damages, was not decided by the court a quo in a definitive way.

11]	Accordingly, the dismissal of the special plea on locus standi by the court a quo cannot be construed as a final and definitive determination of the dispute between the parties. I therefore find this point in limine to be meritorious and duly uphold it.

Grounds of appeal relate to issues not subject to the determination of the court a quo.

12]	The respondent argued that the special plea by the appellants was that there was no legal relationship between the first appellant and the respondent; therefore, the court a quo’s finding could not be faulted. The appellants argued that the simple determination before the court a quo was to find if the respondent had locus standi to evict the first appellant from the premises. Further, the appellants averred that the respondent had the duty to plead or prove by way of evidence the basis on which it sought eviction of the first appellant.

13]	This court has, on numerous occasions in the past, cautioned legal practitioners and litigants against raising preliminary points for the sake of it. A point in limine must be a point of law with substance, taken because of its apparent capability to dispose of the matter. A disposal of the matter means finalising the dispute between the parties. Alternatively, it must point to a fatal defect in the matter, rendering the matter improperly before the court. It must not be a point that merely delays the adjudication of the dispute without good legal cause.

14]	This point in limine is insufficient to dispose of the dispute between the parties. Central in this matter is that the locus standi of the respondent was put in issue as a preliminary point in the court a quo. The Court, in an interlocutory ruling, found that the respondent has standing and dismissed the preliminary point raised. It is that ruling that has been appealed. Whether or not the respondent would later prove its relationship with the first appellant is a different matter altogether in the context of this appeal. This point lacks merit and is dismissed.

DISPOSITION

15]	The second point in limine raised by the respondent is meritorious. The ruling of the court a quo in respect of the special plea did not constitute a final and definitive judgment of the dispute between the parties. It is an interlocutory ruling and is unappealable. This matter is therefore not properly before this Court. In light of the above, I make the following order.

ORDER

The matter is hereby struck off the roll with costs.

NDLOVU J:

CHILIMBE J:					Agrees.

Masara Savanhu Attornies, Appellant’s legal practitioners

L. T. Muringani Law Practice, the Respondent's legal practitioners