Munyaradzi Mudiwi v Jordan Chikoo

### Preamble
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HMT 54-20
CASE NO. CIV ‘A’ 49/19
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MUNYARADZI MUDIWI

versus

JORDAN CHIKOO

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 22 July 2020 and 30 July 2020

Civil Appeal

Appellant in person

L.N Kumbula, for the respondent

MUZENDA J: This is an appeal filed by the appellant against the whole judgment by the Honourable Magistrate sitting at Chipinge on 22 November 2019. The appellant outlined his grounds as follows:

The learned Magistrate erred and misdirected himself by ordering the eviction of the appellant basing his decision entirely on the facts that the respondent was duly appointed Executor of the estate, the estate of which is silent about the property in dispute. The court a quo misdirected itself in that the estate comprises of the property in dispute yet upon perusal of the file, the property in question is never included as estate of the respondent’s late father or that the property in question does not form part of the respondent’s late father’s estate.

The learned Magistrate erred and misdirected himself by failing to take into consideration that the appellant had been in occupation and using the said land for over 10 years before the dispute arose in the court a quo and during which years the appellant’s occupation and use of the said land was never challenged by the respondent, hence he had become the owner of the said land.

The learned Magistrate erred and misdirected himself by failing to consider that the appellant stayed at the property in question since June 1979 before the death of his aunt who was the owner of the said property. As a result, the appellant is now regarding the said property as his place of residence since he had been there for over thirty years.

The learned Magistrate erred and misdirected himself by failing to give due regard and weight to a dying declaration by the appellant’s aunt that appellant be left in possession and occupation of the property in dispute.

The learned Magistrate erred and misdirected himself by failing to consider that the appellant was given keys of the said property at his aunt’s funeral to fulfil the aunt’s dying declaration.

The appeal is opposed.

BACKGROUND

On 19 October 2017 respondent issued summons against the appellant praying for the eviction of the appellant and all those acting through him from Machapuya Village, Chipangara Township, Chikore, Chipinge. He also claimed holding over damages of $200-00 per month from the date of summons to date of eviction, he also wanted the court to grant him vacant possession of the Machapuya Village and costs. Respondent brought the action against the appellant in his personal capacity as the executor of the estate late Luke Zemutsa and Julia Mwero Kudhlande who died in 2010. Respondent was appointed executor of the estate of Luke Zemutsa. Luke Zemutsa was the owner of a homestead at Machapuya Village which respondent wishes to inherit together with his siblings. Appellant is a distant relative of the respondent. According to the respondent, appellant unlawfully took occupation of the late Luke Zemutsa’s homestead and chased away respondent’s brothers and sisters. Appellant is said to be having no lawful right or authority whatsoever to reside at the estate’s homestead without respondent’s authority.

On the other hand the appellant states that he came to where he is staying now, the very place respondent wants him evicted, long back in 1979 and has now established a shrine at that place where he is now a Bishop. He is paying levies to the local authority and the homestead was bequeathed to him by Rudo Mutandani before she died. He contends that the respondent has no right to evict him from his aunt’s homestead.

The respondent admits that indeed the appellant came to Machapuya Village long back in 1979 when he was young and grew up where he is now staying. During the trial before the court a quo only respondent and appellant testified and no other witnesses were called. The traditional leaders, the councillor nor neighbours were not called. In my view their evidence is very crucial in resolving this matter especially to establish whether Rudo Mutandani left the homestead in the hands of the appellant or not.

When the parties appeared before us respondent’s legal practitioner, Mr  LN Kumbula was asked if he had any objection if the matter is remitted for the purposes of having all these issues clarified and he submitted that he had no objection. It was upon that concession that the following order by consent was granted.

IT IS ORDERED BY CONSENT OF BOTH PARTIES THAT:

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

The order of the court a quo for the eviction of the defendant and all those claiming occupation through him from Machapuya Village, Chipinge and that the defendant is to give the plaintiff vacant possession of the disputed premises be and is hereby set aside and substituted by the following:

“A trial de novo before a different Magistrate is ordered.”

MWAYERA J agrees_____________________

Mhungu and Associates, respondent’s legal practitioners