Henry Tsopotsa v City of Mutare

### Preamble
1
HCMTJ 40/24
HCMTC 470/23
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HENRY TSOPOTSA

And

CITY OF MUTARE

HIGH COURT OF ZMBABWE

CHAREWA AND MUZENDA JJ

MUTARE

Reasons for judgment

MUZENDA J: On 24 July 2024 we dismissed an appeal brought up by the appellant with an order of costs. Appellant then asked for our reasons for such a decision. We now avail the reasons.

FACTS

On 8 March 2016, the respondent, City of Mutare made a court application at Mutare Magistrate’s Court suing Manicaland Theatre Association of Performing Arts as first respondent, Henry Tsopotsa as second and Caroline Mapungwana as third for eviction. The application for the trio’s eviction was premised on the fact that first respondent also known as Courtauld Players had dissolved and formally returned the property to City of Mutare as provided for in the title deed as well as first respondent’s constitution. Hence on 11 May 2015 the first respondent’s then Secretary Mr. Sean Smith handed over the property to the City fathers. When the city council took over control, they found second respondent unlawfully occupying the building, paying no rentals, paying no utility bills hence it decided to apply for eviction.

All the three respondents opposed the application. Second respondent, (current appellant) purported to represent first respondent and third respondent, (appellant’s wife) filed an opposing affidavit. Appellant raised points in limine challenging the city council to prove ownership of building. He also claimed a fatal misjoinder by leaving the association outside the matter and also that respondent herein should have cited the Trustees of first respondent before the trial court. Appellant alleged that there was no need to cite third respondent for at that time she was not in occupation. In any case, it was appellant’s contention there was no cause of action when no lease agreement was in force.

On merits, appellant repeated the issues he had highlighted as preliminary points to form his defence. He challenged the locus standi in judicio of the City Council. Appellant also added that he was occupying the premises as a member of the association not in his personal capacity, and further that third respondent was not in occupation of the building. Appellant added that there was no need for him to pay rentals to the city council. Coincidentally, can be gleaned from the appellant’s papers no one from first respondent in the court a quo, nor from Courtauld Theatre gave appellant a supporting affidavit, appellant was and remains at the center of litigation, its not clear whether he does so as first respondent, the association or that he is the association or simply because City Council cited him as the one in occupation.

City of Mutare filed a replying affidavit explaining all points and areas raised by the appellant and insisted with its prayer. The matter eventually proceeded to a full trial. The court a quo then granted an order of eviction against the appellant. The appellant dissatisfied appealed to this court.

Trial Magistrate’s reasons for judgment.

The trial court made a finding that dismissed appellant’s argument that the dissolution of Courtauld Theatre was illegal and irregular. In its view appellant did not challenge dissolution through the courts to have the Secretary, Sean Smith joined in the proceeding for eviction. The court a quo added that appellant did not challenge Sean Smith in a court of law challenging the dissolution of the Theatre Association, what appellant did was to cross- examine Sean Smith during trial. As at the date of hearing before the court no legal route to challenge the dissolution was done by the appellant, the court a quo ruled further. It was then the decision of the court a quo that the dissolution of the Association was above board and further that the letter written by Sean Smith and given to the City Council was in order. It was also the court’s finding that appellant had no proven authority to challenge Sean Smith’s decision to have the association dissolved and that respondent herein takes back control of the immovable property. Hence according to the court a quo, the City Council exercised its rights clearly spelt out in clause 3 of the title deed’s condition.

The judgment of the court a quo has dealt with appellant’s, membership in Courtauld Players and came to a conclusion that the failure by appellant to pay subscriptions automatically stripped him of membership in terms of the Association’s own constitution and once that is accepted then appellant had no right to claim occupation of the building on the basis of membership. The only qualified person to write to the City Council about the building was therefore Sean Smith and not appellant nor a body of trustees spoken of by the appellant. Sean Smith’s tenure of office for the association ended in 2014, the very date appellant states that his membership was approved. The trial court also rejected appellant’s argument that what was returned to the respondent City Council was only land and not the building. It was also the trial court’s ruling that it is not its role to rewrite contracts for litigants and explain clause 3 of the title deed speaking of the fact that if the title holder dissolves, it has to return the property to the City Council. The court a quo then granted City Council’s prayer.

Grounds of appeal

The court a quo grossly misdirected itself in terms of the law when it granted respondent’s claim for eviction of appellant despite that the respondent was not having ownership of the property in question.

The court a quo grossly misdirected itself in terms of the law when it made a finding that Courtauld Players had been dissolved and the building had been handed back to respondent despite that there was no evidence proving that on a balance of probabilities.

Appellant’s submissions.

Appellant submitted that the matter taken to court by the respondent was that of a remedy of rei vindicatio and is centralized on the aspect of ownership through a title deed and added that in casu respondent failed to prove that critical requirement and referred the court to the case of The Sheriff and 2 others vs ZB. Bank Ltd HH 616/17. The absence of title by respondent, it was further submitted means that respondent had no locus standi.

Appellant further averred that the dissolution of the Manicaland Theatre Association of Performing Arts did not follow the provisions of the constitution. The dissolution required a 75% majority of those attending the meeting, the document handed over to respondent by Sean Smith did not have signatures of any of the board of Trustees and supporting minutes, it was simply a letter and cited the case of Dynamos Football Club (Pvt) Ltd and Another vs Zifa and Others 2006 (1) ZLR 365. Appellant concluded its submissions by stating that the court misdirected itself by granting an order for eviction given these circumstances.

On the other hand, the respondent’s counsel submitted that respondent had locus standi and proceeded to direct the court to the case of Sibanda and Others vs The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc. SC 49/18. “Where a party must show a direct and substantive interest in the matter.” It added that locus standi is concerned with the relationship between the cause of action and the relief sought and respondent went on to refer to the matter of Liziwe Museredzera and Others vs Minister of Agriculture, Lands, Water and Rural Settlement and Others CCZ 1/22. Respondent also prayed that the court make a finding that the City of Mutare had met the requisites of locus standi as per clause 3 of the title deed.

As to whether the respondent acted above board in accepting the letter from Sean Smith, respondent submitted that the respondent needed nothing more to prove that and to satisfy itself that the letter originated from the official of the association. As a result, it was further submitted on behalf of the respondent, respondent had no business to delve into the politics of the association and cited the case of Prince Dubeko Sibanda and Others vs Gideon Shoko and Others, HH 601/23. The letter by Sean Smith brought respondent to the management of the building, it was argued. Not only did Sean Smith wrote a letter but that he gave evidence under oath on behalf of the respondent so at the time when the application for eviction was commenced respondent was the holder of the rights it was further submitted. Council went on to further cite the case of Tsiko vs Shamu HH62/22 where it was held that “in a long line of decided cases that a lessee can lawfully evict a subtenant” as well as the case of Masimba Charity Hum Fuels (Pvt) Ltd vs Nathan Amos Kadurira SC39/22 where the Supreme Court acknowledged that a holder of a stand who had no title deeds had established a clear right to interdict an intruder over occupation by any third party.

The respondent went on to add that during trial appellant professed ignorance of Manicaland Theatre Association of Performing Arts and it would be naive by the appellant to claim membership of an association he does not know and respondent urged this court not to believe appellant for he is not candid with the court. To respondent, the court a quo did not commit any misdirection of law and urged us to declare that the dissolution of the association was in order. Once it is so declared then the surrendering of the building to respondent deserves no criticism and ought to be in order and as such further the respondent had a legal right to seek appellant’s eviction.

Applying law to the facts.

Clause 3 of the title deed states as follows:

“In case such building is not erected within the period stated or in the event of the land ceasing to be used for Theatre purposes, then that land shall revert to the council without payment for any buildings or improvements existing thereon.”

My interpretation of this pivotal clause is that there are two set conditions. First one relates to the usual prescription relating to development or construction when a local authority has a right to repossess the stand after due process. Secondly if the purpose of use of that property ceases to exist then the title holders return the property to the city council, the local authority not being expected at law to compensate for the improvements effected at the land bought. This is the condition agreed upon by the founders of the Theatre Association and the City Council. In my view the initiative to hand over the building back to City Council is reposed on the association’s executive officials and no conditions are given to be met by the City Council. It’s a windfall to the local authority not brought by demand but at the voluntary initiative of the members of the association. For one really to impugn the manner Mr Sean Smith wrote to the City Council is to enter into the domestic domain of the association which the City Council has no business in so doing. Whether appellant accepted the role of Sean Smith or the decision he made, that is something to be reserved for an appropriate fora and opportunity, that is to be initiated by the appellant.

The aspect of credibility of witness is the domain of a trial court and this court is rarely expected to interfere with the lower court’s finding on that expect in extreme instances where findings on facts are not supported by the record or where the facts are not supported on any legal basis or vice versa. It is my considered view the decision of the court a quo does not reflect nor manifest that it misdirected itself at law. I am unable to faulter its findings based on the two grounds of appeal. Appellant’s link to the association or his membership was not fully proved to make him a legitimate occupier of the building. In any case assuming that he was a member, the association had in its wisdom returned the property to the respondent and the later had the exclusive right to see to it that proper tenants occupy the building meeting all terms of occupation and appellant was not one of such.

The appeal has no merit and it is therefore dismissed with costs.

CHAREWA J agrees

Chibaya and Partners, Appellant’s Legal Practitioners.

Bere Brothers, Respondent’s Legal Practitioners.