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HH 727-22
CIV ‘A’ 163/22

MONICA GONDO
versus
RAYMOND TAFADZWA NHOWE

HIGH COURT OF ZIMBABWE

WAMAMBO & MUCHAWA JJ
HARARE, 22 September & 19 October 2022

Civil Appeal

Mr K Gama, for appellant

Mr S T Mutema, for respondent

MUCHAWA J: The appellant issued summons out of the Magistrates Court in which
she sought the eviction of the respondent from a subdivision of No. 9 Vickers Road, Belvedere, a
property which she allegedly bought from one Shingirai Fabion Nhowe on 30 October 2017, and
for which she held title deeds after having paid the purchase price. She also sought payment of
rental arrears in the sum of US $ 3 000.00 for the period December 2018 to February 2019.
Holding over damages at the rate of 35RTGS Bond per day from date of service of summons up
to date of vacation or eviction, which ever occurred first, were also prayed for. The basis of the
claim was that after getting title deeds on 28 November 2018, the appellant had given the
defendant three months‘ notice to vacate but this had not been heeded. The claim was
vehemently defended. The issues referred to trial were the following;
i. Whether the plaintiff is entitled to occupy part of subdivision of 9 Vickers Road held
under title deed number 0007167/2018
ii. Whether or not the defendant has any right to refuse vacating the same.
The court a quo properly sums up the issue by saying, in its ruling, that the dispute before
it involves an ownership wrangle between the appellant and respondent’s mother, one
Ntombizodwa Nhowe wherein the appellant claims ownership on the basis of her title deed to the
property whilst the respondent’s claim is that he has rights through his mother who was granted
rights over the property through a High Court order of 20 May 2021 which gave her rights over
the property.
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After a full trial, the court a quo found that in order to resolve the dispute, there was need
to make a decision which has a declaratory effect, which powers, it found, it did not have as it
involved deciding on who had the legal right to be on the stand between appellant and
Ntombizodwa Nhowe. Such powers were said to lie with the superior courts. The matter was
then dismissed for want of jurisdiction.
Disgruntled, the appellant has lodged this appeal on the following grounds:
i. The court a quo erred in finding, after a full trial, that it had no jurisdiction to order
eviction of, and to award holding over damages against, the respondent.
ii. The court a quo further erred in finding that it was required to issue a declaratory order
when it was clearly not required to do so and had not been called upon to do so.
iii. The court a quo erred in dismissing the claims before it when appellant had proved all the
requirements for the rei vindicatio and for holding over damages on a balance of
probabilities.
iv. Having erroneously and irregularly found that it had no jurisdiction to order the eviction
of, and award holding over damages against the respondent, the court a quo further erred
and misdirected itself in dismissing the claims instead of striking the matter off the roll.
v. The court a quo erred in finding that there was an ownership dispute between appellant
and Ntombizodwa Nhowe before it when in fact there was none as Ntombizodwa Nhowe
was not a party to the dispute before the court.
vi. Furthermore, the court a quo erred in resolving the dispute on the basis of a point of law,
namely lack of jurisdiction, which it had not asked the parties to address at any stage of
the proceedings.
The relief sought on appeal is set out as follows:
a. That the appeal be allowed with costs on the higher scale.
b. That the judgment of the court a quo be set aside and in its place the following order be
made:
i. The plaintiff’s claims for an eviction order and for holding over damages be and
is hereby granted.
ii. The defendant and all those claiming occupation through him be and are hereby
ordered to vacate stand 40715 Harare Township of stand 13687 Salisbury
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Township measuring 1000 square meters, otherwise known as number 9 Vickers

Road, Belvedere, Harare, forthwith, failing which the Messenger of Court shall
evict them.
iii. Defendant shall pay Plaintiff holding over damages at the rate of USD$15 (or the
Zimbabwe dollars equivalent thereto per day from 1 March 2019 to the date on
which the defendant vacates the property.
iv. Defendant shall pay interest on the holding over damages at the prescribed rate of
5% per annum from the date on which the damages became due to the date of full
and final payment; and
v. Defendant shall pay costs on a legal practitioner and client scale
Mr Mutema for the respondent took some points in limine and we heard the parties on
these and reserved our ruling. This is it.
Whether the relief sought by the appellant is incompetent
Mr Mutema submitted that it is incompetent for the appellant to seek a substitution of the
order of the court a quo in the manner she has done as the order of the court a quo simply stated
it had no jurisdiction meaning that it did not entertain the matter. It was averred that the
appropriate substitution would be to remit the matter back to the magistrates’ court so that it
entertains the matter first.
Furthermore, Mr Mutema explained that if this appellate court was to grant the order
sought and grant eviction and holding over damages, this would have the effect of the appellate
court usurping the right to hear the matter and decide on the merits as a court of first instance.
Grounds of appeal 1, 2 and 3, it was argued, should have resulted in a prayer for remittal of the
matter. It was contended that the grounds of appeal and the relief sought are irreconcilably
contradictory on the strength of the case of Tamanikwa & Anor v Zimbabwe Manpower
Development Fund & Anor SC 73/17.
In relation to ground 4 of appeal, it is argued that since the complaint is that the court a
quo should not have dismissed the claim after finding that it has no jurisdiction but should have
struck the matter off the roll, the appellant should have alternatively prayed for the striking off of
the matter from the roll. The substitution with an order for eviction and granting of holding over
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damages, in the circumstances, is alleged to be incompetent. We were referred to the case of

Sambaza v Al Shams Global Limited SC 03/18.
Mr Mutema prayed for the upholding of the point in limine as he argued that due to the
incompetent relief sought, the appeal is fatally defective and ought to be struck off the roll with
costs on a higher scale.
Mr Gama submitted that the point taken is a red herring, frivolous and vexatious and the
respondent is merely resorting to technicalities without citing the Rules he is relying on but
seeking recourse in Supreme Court judgments that interpret r 29 of the repealed Supreme Court
Rules which are not applicable here. He further averred that there is a proviso to r 95 of the High
Court Rules, 2021 which provides that any failure to strictly comply with r 95 does not render
the notice of appeal null and void as the appellant may seek condonation.
Furthermore, Mr Gama contended that it is false that the court a quo did not entertain the
matter as it presided over a full trial after dismissing the application for absolution from the
instance. We were referred to page 7 of the record and it was pointed out that the court a quo
made five critical findings which include that Mr Shingirai Fabian sold the stand to the appellant.
Regarding ground of appeal 3, it was argued that the court a quo ought to have granted
the relief sought and if the matter were to be remitted, what would be the directions given as the
court a quo already had a full trial and disposed of the matter on the merits.
Reference was made to s 31 (1) (a) of the High Court Act in contending that the section
sets out the powers of the High Court in an appeal and such powers are wide. What the appellant
was said to be seeking is a substitution of this court’s decision for that of the court a quo as all
the information the court requires is before it. The grounds of appeal were alleged to therefore
speak to the relief sought. Mr Gama submitted that he was ready to apply for condonation
depending on the finding of the court, in relation to ground 4 of appeal.
In his reply, Mr Mutema contended that it is a basic principle that an appeal is an attack
against the operative part of the decision and not the reasons for it. The operative part of the
court a quo’s decision was pointed to and on p 5 of record it says:
“IT IS HEREBY ORDERED THAT:
1. Matter be and is hereby dismissed for want of jurisdiction.
2. Remedy of parties lies in the superior courts as this court has no powers to give decisions which
have a declaratory effect.
3. Each party to bear own costs.”
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It was pointed out too that though Mr Gama had said he stands ready to apply for
condonation, there was no such application before the court. In any event, it was argued that a
fatally defective notice of appeal cannot be amended. Mr Mutema persisted with the prayer that
the matter be struck off with costs on the higher scale.
In the event that this court were to uphold the appeal, the relief sought by the appellant
would be incompetent. The matter, in the operative part of the judgment was clearly disposed of
on account of a lack of jurisdiction. At no point did the court a quo pronounce itself on the two
issues referred to trial, being
i. Whether the plaintiff is entitled to occupy part of subdivision of 9 Vickers Road held
under title deed number 0007167/2018
ii. Whether or not the defendant has any right to refuse vacating the same.
In fact, the court did not go into the merits of the matter and refrained to make a finding
either way on these issues. All it did was to give a brief factual background and then proceeded
to say it was called upon to resolve who the legal owner of the stand in issue was and doing so
would result in an order with a declaratory effect. In ground 3 of appeal, the applicant avers that
he proved all the requirements of rei vindication and for holding over damages on a balance of
probabilities. The court a quo did not make such findings as to whether the requirements of rei
vindicatio and holding over damages had either been proved or not.
It would be incompetent for this court to be invited through an appeal to impugn findings
which were never made by the court a quo and substitute the court a quo’s findings on lack of
jurisdiction with those which go to the merits of the case. That would be grossly improper.
Furthermore, the grounds of appeal, particularly grounds 1, and 2 are irreconcilably
contradictory to the relief sought. In ground 1 the appellant impugns that the court found it had
no jurisdiction after a full trial. In ground 2 the complaint is that the court a court should not have
found that it was required to issue a declaratory order and then proceed to decline jurisdiction.
Where the finding is one of a lack of jurisdiction, it is inconceivable to then seek that that
decision be substituted with one granting eviction and holding over damages, among other
things. As stated, by Mr Mutema, competent relief would be to remit the matter back to the court
a quo, if the appeal were to succeed so that the matter may be determined on the merits.
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Regarding ground 4 of appeal, Mr Mutema correctly conceded that after finding that it
had no jurisdiction, the court a quo should have struck the matter off the roll instead of
dismissing it. Curiously, the appellant does not pray for substitution of the court a quo’s order of
dismissal with one of striking off the roll. She wants an order of eviction and holding over
damages.
Mr Gama sought to rely on s 31 (1) (a) of the High Court Act which provides as follows:
“Powers of High Court on appeal in civil cases
(1) On the hearing of a civil appeal the High Court—
(a) shall have power to confirm, vary, amend or set aside the judgment appealed against or give
such judgment as the case may require.”

Such powers can however, only be exercised where there is a valid notice of appeal
before the court, not as in casu, where the relief sought is incompetent.
In Freezewell Refrigeration Services (Private) Limited v Bard Real Estate (Private)
Limited SC 61/03, it was held that a fatally defective appeal cannot be condoned or amended. It
can only be struck off. The notice of appeal in this case is therefore fatally defective and a nullity
at law. For that reason it is incurably bad and beyond repair.
It is my finding that the relief sought is incompetent and this renders the notice of appeal
incompetent and incurable. Nothing turns on the remaining grounds of appeal which could
salvage this notice of appeal.
Costs
Mr Mutema prayed for costs on a higher scale for the reason that the appellant was
alerted of the fatal defect in the notice of appeal but she did not withdraw the appeal causing the
respondent to be put out of pocket and the court was inconvenienced by having to go through a
406 page record, unnecessarily.
Mr Gama made no submissions on the issue of costs. It is trite however that costs on a
higher scale should be awarded only in exceptional circumstances where a party’s conduct is
mischievous and objectionable and the cause of all the costs. Factors such as dishonesty, absence
of bona fides in conducting litigation or mere harassment of the defendant/ respondent are good
grounds for awarding costs on a higher scale. The mere fact that the appeal was ill conceived and
doomed to failure is not a justifiable basis for costs on an attorney and client scale. See Faust
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Products (Pvt) Ltd v Continental Fashions (Pvt) Ltd 1987 (1) ZLR 45 (HC), Davidson v
Standard Finance Ltd 1985 (1) ZLR 173 (HC) and Chioza v Sawyer 1997 (2) ZLR 178 (SC).
Mr Mutema has not complained of any opprobrious conduct on the part of the appellant, a
lack of bonafides or dishonesty. He has merely said that the appeal was doomed to fail and ill
conceived. Costs on a higher scale have not been justified.
There is however no reason why costs on an ordinary scale should not follow the cause.
Accordingly, the point in limine is upheld and I order as follows:
The appeal be and is hereby struck off the roll with costs

MUCHAWA J ……………………………………………………..

WAMAMBO J, agrees ……………………………………………..

Gama & Partners, appellant’s legal practitioners

Stansilous & Associates Law Firm, respondent’s legal practitioners