Allen Kutsawa v Kenisia Nyakuchena and Anna Kutsawa

### Preamble
1
HMT 31-21
CIV ‘A’ 35/20
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ALLEN KUTSAWA

versus

KENISIA NYAKUCHENA

and

ANNA KUTSAWA

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 26 May 2021 and 3 June 2021

Civil Appeal

S. Chikamhi, for the Appellant

S. Musapatika, for the 1st Respondent

MUZENDA J: this is an appeal against the whole judgment of the Magistrate sitting at Nyanga on 2 December 2020 where the court dismissed appellant’s application for rescission of judgement with costs on a legal practitioner client scale.

The appeal is opposed.

Facts

On 18 September 2013 first respondent brought an against second respondent seeking second respondent’s eviction from a piece of land situated at Sereko Village, Ward 25, Tombo 2, Nyanga. The basis for such eviction was that she was the owner of that land having inherited it from her late father-in-law in 2007. Second respondent had at one time been leasing the same piece of land from first respondent’s father in law.

Second respondent defended the action arguing that first respondent had no locus standi to sue her for she did not own the land. Second respondent claimed that she was settled on that piece of land by the village head.

On 6 January 2014, the trial court concluded after trial that the first respondent herein has proved on a balance of probability that the piece of land in dispute previously belonged to her late father in law and granted her an order evicting second respondent from the piece of land and all those claiming occupation through her. The last portion of the order included the current appellant.

On 5 October 2020, six years after the matter was decided, first respondent applied for the revival of the judgment which was granted on 9 November 2020 in default of second respondent. On the same date of this default judgement, a warrant of ejectment was simultaneously issued by the clerk of court.

On 6 October 2020 appellant applied for rescission of judgement granted in favour of first respondent on 6 January 2020 under Order 30 rule 4 of the Magistrate’s Court Rules as amended. The basis of appellant’s application was principally that he was affected by the judgment and that he was in occupation of the piece of land. Further he stated that he inherited the subject land and the village head sanctioned and approved the succession. The first respondent opposed the application for rescission of judgment raising preliminarily points to the effect that applicant had filed the application belatedly, since he has always known that first respondent was suing second respondent and also that appellant did not have locus standi to make the application.

On 6 December 2020 the court a quo came to a conclusion that applicant appellant was applying for rescission of judgment after seven (7) years preceding its granting. It further concluded that appellant had no locus standi to approach the courts. He cannot claim a right through a person who does not have a right to the homestead. The court a quo went on to make a finding that appellant had used a wrong procedure in applying for rescission of judgment, he should have applied for review of the proceedings. The court went on further to dismiss the application with costs on a punitive scale. Appellant was not happy with the judgement and appealed against the whole of it.

Ground of Appeal

The Magistrate erred on points of law when she decided that the appellant who was seeking a rescission of default judgement on the basis that it affects him when he was not a party to the proceedings had adopted a wrong procedure since the judgment was not granted in error.

The Magistrate erred both on points of fact and law when she decided that the appellant has no locus standi to bring an application for rescission of judgment which affects him because the appellant was claiming his rights through the second respondent, which finding is not supported by facts of the matter which clearly shows that the appellant never claimed his right to the piece of land was derived from the second respondent. The appellant clearly indicated that he inherited the piece of land from his deceased father and it has nothing to do with the second respondent.

The learned Magistrate erred on points of law when she failed to proceed to determine the matter on merits on the basis that the procedure adopted by the appellant was wrong, which finding is correct as the application is clearly provided for in terms of the rules.

The court a quo erred on points of law and facts when it decided that the conduct of the appellant’s legal practitioners was wrong in the circumstances when clearly the application which was before the court was a proper application in terms of the law and no particular conduct of the appellant’s legal practitioners could said to be wrong. The Magistrate erred on points of law and facts when she decided that the application by the appellant was vexatious and his conduct was malicious meant only to disturb the process of execution which finding is not supported by the facts of the matter which clearly shows that the appellant regards the piece of land as his home, inherited it and would be affected by the judgement if it is executed.

The Magistrate erred on points of law when she decided that the circumstances of the case warranted costs to be awarded at an attorney client scale.

WHEREFORE the appellant prays for the following relief.

That the appeal succeeds with costs

That the judgment of the court a quo be set aside and in its place the following be ordered

“That the application be and is hereby granted with costs.”

On the date of hearing first respondent’s legal practitioners raised a point in limine to the effect that there was no valid appeal before the court because the Notice of Appeal was not served on the first respondent as per the rules. Appellant conceded and applied for condonation. By consent of the first respondent condonation was granted purely because the first respondent had received the Notice of Appeal and was able to prepare heads of argument and attended the hearing. Hence there was no prejudice to the first respondent. However the court’s view is that the appellant and all other litigants should and ought to abide by mandatory provisions of the rules relating to procedural etiquette both in preparing and serving the other parties. Where such compliance is not done by an appellant courts do not hesitate to have the appeal struck off the role.

Mr Chikamhi also indicated during the course of his oral submission that during the course of his oral submission he was abandoning the third ground of appeal. After that indication there are four grounds of appeal left. It is necessary to point out that the grounds of appeal are unnecessarily long, repetitive and imprecise. The essence of first, second and fourth ground of appeal is basically that the court a quo erred at law to dismiss the application for rescission of judgment. The fifth ground of appeal is whether court a quo the improperly exercised its discretion in ordering costs on legal practitioner-client scale?

The Law

Order 30 of Magistrate Court (Civil) Rules, 2018’ SI 11of 2019. Rescission, Variation or correction of Judgment and Orders.

Order 30 rule 4 (1) provides as follows:

“Any judgement of the court may, on the application of  any person affected thereby who was not a part to the action or matter, made within seven days after he or she has knowledge thereof, be so rescinded, varied or corrected by the court

4(2) Rules 1 and 2 shall, with such changes as may be needed apply to any application referred to in subrule (1)” (my emphasis)

Analysis

From the papers filed of record, the application for revival of judgment was issued by court at Nyanga on 5 October 2020 (p 44 of the record). On 6 October 2020 the court application for rescission of judgment was issued by the court (see p41 of the record). It can be inferred from the sets of these documents that the appellant learnt about the application for revival of the judgment on 5 October 2020 and sprang to action immediately by instructing his legal practitioners to lodge the application. I am thus satisfied that the application by appellant was made within seven (7) days after he had knowledge of the judgment.

The appellant resides at the place where first respondent seeks to evict the occupants. He in my view qualifies to be “any person affected thereby” and the appellant “was not a party to action or matter.” Appellant on the face of the foregoing met all the requirements of order 30 (4) of the Rules. All the criticism raised by the court a quo on the case involving second respondent and her witnesses were irrelevant. The critical question was whether appellant was properly before the court with the application and in my view he had brought before the court a quo an appropriate application. He had the requisite locus standi by virtue of being a person affected by the judgement. Whether he was going to succeed in the main matter was not the task for the court which was going to deal with the matter after appellant had filed all his pleadings. I am contented that the court a quo erred and misdirected itself in not hearing the application. The application was properly brought by the appellant and ought to have been entertained. The grounds of appeal one, two, and four therefore succeed.

The fifth ground of appeal becomes academic in view of this court upholding the above three grounds. If the application for rescission of judgement was properly before the court a quo, there was nothing done by the appellant’s legal practitioners to justify an order of costs on a punitive scale. The fifth ground of appeal also succeeds and is upheld.

Costs of Appeal

The manner the applicant’s legal practitioners prepared its pleadings in this appeal left a lot to be desired. The grounds of appeal were pedantic and meandering, the notice of appeal was not properly served on the first respondent, the oral submissions were in coherent contradictory and to some extent confused. Although the appeal succeeds appellant will not be entitled to costs.

Wherefore the following order is given:

The appeal be and is hereby upheld with no order as to costs.

The judgment of the court a quo is set aside and in its place substituted by the following:

“the application for rescission of judgment be and is hereby granted with costs”

MUZENDA J		 ______________________________

MWAYERA J Agrees ____________________________

Mvere Chikamhi, appellant’s legal practitioners

Danziger & Partners, 1st respondent legal practitioners