Johane Marange Apostle Church v Common Vision Housing Consortium & 5 Ors

### Preamble
Judgment No. SC 80/20
1
Civil Appeal No. SC 607/18
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REPORTABLE 	(70)

JOHANE     MARANGE     APOSTLE     CHURCH

v

(1)     COMMON     VISION     HOUSING     CONSORTIUM     AND     (2)     CITY     OF      HARARE     AND     (3)     THE     DIRECTOR     OF     URBAN     PLANNING     SERVICES     CITY     OF     MUTARE     AND     (4)     THE     CITY      OF     MUTARE     TOWN     CLERK     AND     (5)     THE     DIRECTOR                  OF     URBAN       PLANNING     SERVICES      CITY     OF   MUTARE     AND     (6)     THE     MINISTER     OF     LOCAL    GOVERNMENT,     PUBLIC     WORKS     AND     NATIONAL     HOUSING

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, HLATSHWAYO JA & PATEL JA

HARARE, JULY 16, 2019 & JUNE 18, 2020

T. Zhuwarara, for the appellant

B. Sadowera, for the first respondent

No appearance for the second, third, fourth and fifth respondents

GWAUNZA DCJ

[1]	This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare, handed down on 25 July 2018. The part of the judgement appealed against is the one ordering the appellant to demolish the brick and mortar wall which it erected around a complex at Budiriro Township, Harare.

FACTUAL BACKGROUND

[2]	Sometime in November 2011, the second respondent by its council resolution, approved the allocation of 1300 un-serviced stands depicted on Plan Number TPX 1349/1 Budiriro 5, Harare to 35 Housing Cooperatives. The first respondent submitted that the 35 Housing Cooperatives were operating under its umbrella name and a consortium established in terms of the Harare City Council resolution. Its functions included inter alia to develop un-serviced stands in compliance with the local authority by-laws and regulations, to provide serviced stands to member cooperatives and to ensure that member cooperatives were allocated serviced stands on a prorata basis. The first respondent further submitted that it complied with the terms of the council resolution by surveying the land and engaging engineers who prepared the designs for the requisite roads and storm water drains.

[3]	According to the first respondent, the member cooperatives were duly allocated stands in Budiriro ranging from Stand 19751 to 19793 Budiriro Township. They took occupation of the stands immediately after allocation and compliance with the second respondent’s requirements. The first respondent averred that sometime in December 2015, the appellant started erecting a brick and mortar boundary wall encroaching ‘over’ a block of stands ranging from Stand 19750 to 19793 Budiriro Township, which stands had been allocated to the first respondent`s member cooperatives. The appellant is said to have done so with neither the consent nor the concurrence of the first and second respondents. In support of its averment, the first respondent attached a letter from the second respondent addressed to the appellant with instructions to stop the erection of the boundary wall. The first respondent averred that the appellant`s actions were depriving its members of their peaceful possession and use of stands allocated and sold to them. Accordingly, the first respondent filed an application for a declaratur in the court a quo.

[4]	Although the second to fifth respondents purported to oppose the application, their opposition was of no consequence as they had been automatically barred since their notices of opposition and opposing affidavits had been filed out of time. On the other hand, the appellant in opposing the application, did not dispute the first respondent`s factual assertions in relation to the allocation to it of the stands in question, but denied having knowledge thereof. The appellant averred that it had been at the location in question for almost four decades. It was not in dispute that the appellant had erected the disputed boundary wall. However, according to the appellant, it had not encroached onto the first respondent`s duly allocated stands, as the property belonged to it. It acknowledged receipt of the Council`s letter which was made reference to by the first respondent. The appellant further submitted that one of its church elders had approached the fifth respondent who had advised that there was no need for the boundary wall to be demolished as it did not encroach onto the first respondent`s stands. The appellant submitted in evidence a letter from the Council`s Budiriro District Office which requested it to accommodate some members of the first respondent. It is on the basis of this letter that the appellant argued that the second respondent recognised its lawful occupation of the land on which the boundary wall was located.

[5]	The court a quo found that the first respondent had produced proof of the allocation to it of the stands in question, in contrast to the appellant, who had failed to justify its alleged entitlement to the same stands. It further found that the documents that the appellant attached to its opposing affidavit did not support its claim. The second respondent had not withdrawn its offer of the stands to the first respondent`s membership cooperative. Consequently, the court a quo granted the first respondent`s application for a declaratur and consequential relief. Aggrieved by the order of the court a quo, the appellant noted the present appeal on the grounds set out below.

[6]	GROUNDS OF APPEAL

The court a quo erred in holding that the wall erected by the appellant around its complex was encroaching on the land allocated to member co-operatives of the first respondent in circumstances where there was no conclusive evidence of such encroachment.

The court a quo erred and misdirected itself in placing reliance on a survey diagram which was not approved by the Surveyor General.

The court a quo erred in failing to appreciate, from the evidence on record, that the second respondent never took issue with the lawfulness of the appellant`s occupation of Stands 19751 to 19753 Budiriro Township.

The court quo erred and misdirected itself in failing to appreciate that the claim brought by the first respondent against the appellant was one which fell to be dealt with by the Administrative Court of Zimbabwe in terms of the Regional Town and Country Planning Act [Chapter 29:12].

THE ISSUES FOR DETERMINATION

[8]	The appellant in its heads of argument did not motivate its fourth ground of appeal which challenged the jurisdiction of the High Court to hear the matter. That ground will therefore be taken as abandoned and will not be considered further in this appeal. The same applies to the appellant’s ground of appeal number three, which charged that the court a quo erred in failing to appreciate, from the evidence on record, that the second respondent never took issue with the lawfulness of the appellant`s occupation of Stand 19751 Budiriro Township. In its heads of argument, the appellant effectively abandoned this ground by stating that the relief sought by the first respondent in relation to the stand in question ‘does not concern the appellant’. The ground will similarly, not be considered further.

[9]	From the remaining two grounds of appeal, I hold the view that one issue falls for determination and that is: -

WHETHER CONCLUSIVE EVIDENCE WAS ADDUCED A QUO TO JUSTIFY THE COURT’S GRANTING OF AN ORDER FOR THE DEMOLITION OF THE APPELLANT’S BRICK AND MORTAR WALL.

It is pertinent to note that the appellant’s partial appeal against the judgment of the court a quo takes no issue with paras 1 and 2 of its order. Paragraph 1 declared legally binding the allocation to the first respondent’s member  co-operatives,  of  stands 19751 to 19793 Budiriro Township, by the second respondent. Paragraph 2 ordered the second, third, fourth and fifth respondents herein not to allocate the same stands to anyone other than the first respondent’s co-operative members. The appellant, as already indicated, challenges the part of the court a quo’s judgment requiring it to demolish the brick and mortar wall in question, as well as the orders related to what would happen in the event of the appellant not complying with the order to demolish the wall.

[10]	The appellant therefore accepts that the stands in question were properly allocated to the respondent’s co-operative members. What it disputes, factually, is that its brick and mortar wall encroached onto those stands. The appellant emphasises this point in paras 11 and 12 of its heads of argument as follows: -

“Instead, the crux of the appellant’s contention was that its perimeter wall did not encroach on territory occupied by members of the Appellant (sic). This is the defence taken by the Appellant in its Notice of Opposition, however, as submitted earlier such issues were not properly deliberated on when the court rejected (the) invaluable evidence. The court a quo did not fully appreciate the issues placed before it.”

[11]	There is merit in this submission. As indicated in the following excerpt from the judgment of the court a quo, the learned judge took the position that a determination in favour of the first respondent on the validity of the sale to its members of the stands in question, was dispositive of the dispute as to whether or not the appellant’s brick and mortar wall encroached onto those stands: -

“As is indicated hereinabove, a valid and legal allocation and sale of stands 19750-19793 to the applicant’s membership co-operatives has been established. Such finding is clearly one which negates a finding that there is a material dispute of fact as to whether or not the brick and mortar boundary wall was an encroachment on the applicant’s membership stands as legally allocated.”

[12]	This finding by the court in my view ignores the fact that the dispute before it was essentially two-pronged, namely, the legality of the allocation of the disputed stands to the first respondents’ member cooperatives and the actuality or otherwise of the alleged encroachment of the appellant’s brick and mortar wall onto those stands. The declaratur issued by the court in favour of the first respondent did not resolve the second prong of the dispute before it. The first respondent, in seeking a declaratur as to the validity of the allocation of the stands in question to its member co-operatives, wrongly assumed that such declaratur would put to rest what was essentially a boundary dispute between it and the appellant.  This was because the appellant articulated a defence that went beyond the legality or otherwise of the allocation of the stands to the first respondent’s membership. It, in simple terms, denied that its wall encroached onto the stands in question, and contended that no evidence of such encroachment had been tendered by the first respondent. The appellant argues that the court a quo improperly rejected the evidence that it sought to tender, whose effect was to disprove the alleged encroachment.

[13]	There is merit in this submission. The court a quo did reject, as hearsay, evidence attributed to the third respondent herein by the deponent to the appellant’s opposing affidavit a quo, to the effect that an inspection in loco had been undertaken and had revealed that the wall did not encroach onto the stands in question. Without going into the merits or demerits of the court a quo’s finding in this respect, it occurs to me that the court, had it properly applied its mind to the second prong of the dispute before it, was at liberty to call for further evidence, based on an inspection in loco or even coordinates of the areas in point. Such evidence would in my view have definitively settled this dispute. Coordinates are defined as follows in Google Maps: -

“ … a unique identifier of a precise geographic location on earth, usually expressed in alphanumeric characters” (my emphasis)

[14]	Without further evidence pointing to the exact location of the appellant’s wall in relation to the stands in question, I find merit in the appellant’s contention that there was no conclusive evidence placed before the court to establish, as a fact, that its brick and mortar wall encroached onto the stands allocated to the first respondent’s member co-operatives.

Against this background, the appeal has merit and ought to be allowed. The matter will be remitted to the court a quo for it to call for the further evidence alluded to above.

[15]    DISPOSITION

The appellant having proved its case before this Court, it is accordingly ordered as follows: -

“1. The appeal is allowed with costs.

Paragraphs 3, 4, 5 and 6 of the order of the court a quo be and are hereby set aside.

The matter is remitted to the court a quo for it to call further evidence establishing the exact geographical location of the appellant’s brick and mortar wall vis-à-vis stands 19750 to 19793 Budiriro Township, Harare.”

HLATSHWAYO JA:              I agree

PATEL JA:			I agree

Danziger & Partners, appellant’s legal practitioners

Tapiwa & Associates, first respondent’s legal practitioners