Tapfumaneyi Bosha V Richman Ncube

### Preamble
1
HMA 51/22
CIVA 14/21
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TAPFUMANEYI BOSHA

versus

RICHMAN NCUBE

HIGH COURT OF ZIMBABWE

WAMAMBO J & ZISENGWE J

MASVINGO, 22 September 2021 & 13 July 2022

Civil Appeal

T. Militao for appellant

N. T. Jumo for respondent

WAMAMBO J: This is a civil appeal against a decision of the Magistrates Court sitting at Gweru.

The matter came before the Learned Magistrate as an urgent chamber application for eviction. In the court a quo the respondent herein was the applicant while the appellant herein was the respondent.

The respondent was the landlord while appellant was his tenant.   A lease agreement was entered unto between the parties.  The lease agreement provides for termination upon three months’ notice.  Respondent gave the, three months’ notice for termination of the lease agreement which period was extended by a further one month at the request of appellant. It was agreed between the parties that appellant would vacate the leased premises on 31 March 2021. Appellant however did not vacate the premises on 31 March 2021. In response thereto respondent on 1 April 2021 filed an urgent chamber application in the court a quo for the eviction of appellant. The Court a quo ordered the eviction of appellant. In the instant case he is appealing against that decision.

The appellant opposed the application. He raised a number of issues in limine namely lack   of urgency, that there was no basis for the application and that applicants’ legal practitioners were conflicted.

On the merit’s appellant submitted that he never refused to vacate the premises in question. He further submitted that he failed to vacate the premises on time because the premises he had secured were yet   to be vacated.  The premises he moved to   were only availed to him on 6 April 2021 and that is the date, he vacated respondent’s premises. He further submitted that by the time he received the urgent application he had already complied with the order sought. He is of the firm view that these was no point in pursuing the matter further. He sought costs on a higher scale.  The learned Magistrate found the points in limine  “vague and  sketchy’’ and that it was  not demonstrated on the papers how the conflict of  interest arose and  what the specific  conflict was. On urgency the court stated that it did not “look at the requirements of an urgent application as appellant had conceded that he had vacated the premises already”.

The Court in its analysis found that the date appellant was supposed to vacate respondent’s premises was 31 March 2021 and that appellant vacated the premises six days after he was meant to. I find no misdirection in the reasoning of the court a quo.

It was agreed between the parties that the order granted was not by consent although the record erroneously records the order as having been granted by consent. The grounds of appeal are unmeritorious. There was no or cogency or clarity on the said grounds.  On conflict of interest there was no basis laid by appellant. Simply put respondent retained the services of his usual legal practitioner. They were the ones who drafted the lease agreement.  There is no conflict of interest. The basis of the application was clearly that appellant had not vacated the premises on the date as agreed and respondent was legally within this right, to apply for appellant ‘s eviction.

The issue of urgency is not appealable. This much was conceded by appellant’s counsel in oral argument. The issue that remains is on costs.  The Learned Magistrate granted an order of costs against appellant on a higher scale.

In Chisese v Garamukanwa 2002 (2) ZLR   392 (s) GWAUNZA AJA (as she   then was said at p 405 A to B:

“It is correct that costs on a higher scale can only be awarded in exceptional cases lack of bona fides on the part of the party against whom such costs are sought may justify an award of costs on the higher scale See Davidson v Standard Finance supra at 178 D – E where the following passage is cited with approval: Absence of bona fides in conducting litigation may constitute a ground for awarding costs on an attorney client scale.”

In the circumstances of this case the following is common cause Appellant did not vacate respondent’s premises on the agreed date Respondent acted within his rights to launch an application for eviction in the circumstances Appellant wants to have his cake and eat it. He delayed to vacate respondent’s premises after having been granted a one-month extension to reside at the respondent’s premises after the effluxion of the original lease agreement.  I am mindful that costs are within the discretion of the Trial Court.  The Trial Court justified the costs granted in the circumstances.  I can find no fault in the reasoning and uphold the costs granted on a higher scale.

To that end   the appeal is unmeritorious and stands to be dismissed. I order as follows:

The appeal be and is hereby dismissed with costs.

ZISENGWE J agrees…………………………….

Militao Law Inc applicant’s legal practitioner

Jumo Mashoko   and Parties respondent’s legal practitioner