Henry Mataruka v Precious Gwarinda and Aaron Rugoho

### Preamble
1
HMT 93-20
CASE NO. CIV ‘A’ 12/20
---------


HENRY MATARUKA

versus

PRECIOUS GWARINDA

and

AARON RUGOHO

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 7 October 2020

Civil Appeal: Reasons for Judgment

H. Sithole, for the Appellant

M. Mareanadzo, for the Respondents

MUZENDA J: This is an appeal against the whole judgment by the Provincial Magistrate sitting at Mutare on 23 March 2020 where he granted an absolution from the instance in favour of the respondents where the appellant was seeking an order for eviction against them.

The appellant outlined his grounds of appeal covering three pages which need no repetition. Serve to mention that the grounds of appeal are all repetitive, argumentative and vague. As a result the respondents justifiably raised three points in limine as follows:

the appeal is fatally defective in that it does not comply with the mandatory provisions of the Rules governing appeals.

the relief sought by the appellant is defective since the appellant does not pray for the upholding of his appeal.

the appellant did not identify the Court that dealt with the matter, he proceeded only to name the presiding officer, hence the appeal is defective.

On the date of hearing the appellant’s legal practitioner conceded unreservedly that the entire notice and grounds of appeal was fatally defective and consented to the order given that the appeal be struck off the roll with no order as to costs.

Whether the Appeal is fatally defective?

Order 31 r (1) (4) of the Magistrate’s Court (Civil) Rules, S.I. 11 of 2019 provides as follows:

“(4) A notice of appeal or cross-appeal shall state

(a)…….

(b) in the grounds of appeal concisely and clearly the finding of fact or rulings of law appealed against and;

(c) the nature of the relief sought and;

(d) the date of judgment and name of the Court against whose judgment the appeal is noted.”

The Notice of Appeal by the appellant in casu reads “BE PLEASED TO TAKE NOTICE THAT Appellant hereby appeals against the whole judgment by the Honourable Magistrate Mr L. MURENDO sitting at Mutare on the 23rd of March 2020.”

We agree with the respondents that the Notice of Appeal offends r (1) (4) of Order 31. It is defective and incurably bad. The Notice of Appeal states the name of the presiding Magistrate and not the Court. It is not proper to name the judicial officer, the appellant must name the court. The relief being sought by the appellant reads as follows:

“(a) An order setting the judgment entered on the 23rd of March 2020 against the Appellant.

(b) An order for eviction of the respondents and all those claiming occupation through them form appellant’s place of residence.

(c) An order that the respondents pay costs of this appeal.”

It is clear that the appellant is not praying for the upholding of the appeal. He is praying for an order which the lower Court could not grant at the close of the appellant’s case below. Appellant is urging this Court to grant an eviction order against the respondents in an incomplete trial.

Grounds of appeal not clearly and concisely stating the findings of fact and rulings of law appealed against.

The long meandering grounds of appeal by the appellant are virtually meaningless. It is not clear what the appellant is attacking on the findings of the lower Court. This fatal defect applies to all the eight (8) grounds of appeal. All the grounds are repetitive, argumentative and deal with the alleged issues the court did not rule on. The grounds of appeal are poorly drafted. The grounds of appeal are unnecessarily confusing and packed to such an extent that they do not make sense to the trial Magistrate and the respondents for them to meaningfully respond.

As clearly forewarned by malaba ja (as he then was)

“… this judgment has been written for purposes of drawing the attention of legal practitioners to the fact that all matters required by the rules of Court to be stated in a valid notice of appeal are of equal importance so that failure to state one of them renders the notice of appeal invalid.”

The preliminary points raised by the respondents find favour with this Court and they are all upheld. It is ordered that:

The appeal be and is hereby struck off the roll with no order as to costs.

MWAYERA J agrees_____________________

Legal Aid Directorate, Appellant’s legal practitioners

Mvere Chikamhi Mareanadzo, Respondent’s legal practitioners