REPORTABLE ZLR (34)

Judgment No. SC 36/07

Civil Appeal 199/06

LAZARUS JAMES v (1) TONDERAI MALVERN KATSIGA (2) WILLIAM SIKARIYOTI (3) ROSE SABUNETI (4) MUNICIPALITY OF HARARE

SUPREME COURT OF ZIMBABWE

SANDURA JA, CHEDA JA & GARWE JA

HARARE, MAY 21 & NOVEMBER 12, 2007

F M Katsande for the appellant

M Kamuderfewe for the first and third respondents

No appearance for the second respondent

No appearance for the fourth respondent

CHEDA JA: The appellant and the second respondents are brothers. They lived with their father at stand number 4076, New Tafara (“the house”). When their father died he left the house as part of his deceased estate.

After some time the appellant discovered that the second respondent was registered as the tenant for the house.

He says he kept monitoring the situation but did not take any action. Their mother died in August 2002.

After that he discovered that the second respondent had entered into an agreement of sale with the first respondent. He took the matter to the High Court in an attempt to nullify the sale but failed in case No HH 84/03.

He appealed against the dismissal of his application but failed again in case No SC 29/05. He returned to the High Court and instituted case No HC 2335/03, seeking that he be declared heir to the deceased estate. His application was dismissed.

He now appeals against that decision.

In his first application to the High Court which resulted in judgment No 84/03, the appellant had sought an order restraining his brother William Sikariyoti (“Sikariyoti”) from ceding his rights, title and interest to the house.

This is the application that resulted in judgment No. HH 84/03.

He claimed that Sikariyoti was not entitled to the stand as he, the appellant, was the rightful heir to the deceased estate of their father. His affidavit revealed that he became aware that Sikariyoti had been declared heir but he did not take any action to correct this situation while their mother was alive.

After their mother died he discovered that Sikariyoti had entered into an agreement to sell the stand to Katsiga.

The High Court dismissed the application after establishing that Sikariyoti was declared heir on 13 May 1986, and registered as the lawful tenant but the appellant had done nothing about this. In all he had failed to take any action from 1986 to 2002, a period of sixteen years, despite the fact that he was aware of this position.

In fact Katsiga, when he purchased the stand, went and established from the offices of the local authority, that Sikariyoti was in fact the registered owner of the stand and house. The stand was eventually transferred to Katsiga.

The appellant appealed against the decision of the High Court, and his appeal was dismissed in judgment No SC 28/05.

The appellant was still not satisfied. He launched yet another case before the High Court by way of summons. In its judgment in case No HC 12160/04 the High Court found that it had before it the same parties, on the same issue.

The appellant was alleging that Sikariyoti had obtained the certificate of heirship fraudently and that Katsiga colluded with Sikariyoti and was not an innocent purchaser.

The appellant wanted the sale to be declared a nullity.

Once more the High Court rejected his claim and pointed out that if the appellant knew about what he alleged was a fraud and did nothing for such a long time until the stand was sold, he could not now claim it from the purchaser.

The High Court pointed out that the cause of action was the same as that decided on by both the High Court in the previous case and the Supreme Court.

In this appeal the appellant now claims that he has new evidence to support his claim since the magistrate’s court has now set aside the certificate of heirship issued to Sikariyoti and declared the appellant to be the rightful heir.

This new development does not assist the appellant.

The High Court pointed out that, having known that Sikariyoti had been declared heir, he did nothing for a long time, and he could not now claim the stand to the prejudice of an innocent purchaser. The appellant also submitted that Katsiga had come to court with dirty hands as he had proceeded with the cession after the appellant had noted an appeal.

This argument does not make sense. Katsiga did not approach the Court for anything. Katsiga was dragged to court by the appellant and he came to court to defend his rights.

After all, he had acted diligently by checking with the fourth respondent who confirmed that Sikariyoti was the rightful owner of the stand.

The respondent argued that the court a quo correctly held that the matter was res judicata.

The appellant referred to a very relevant case of African Farms & Townships v Cape Town Municipality 1963 (2) SA 555 (AD).

The decision in that case is very clear and does not support the appellant’s case although he sought to give it his own wrong interpretation. The court made it clear that:

“The rule appears to be that where a court has come to a decision on the merits of a question in issue, that question, at any rate as a causa petendi of the same thing between the parties, cannot be resuscitated in subsequent proceedings. Where, for instance, the causa or quaestio is ownership, the claimant, if his case is that he has the ownership through inheritance, would not, according to Dig.44.2.11 para 5, be instituting a new claim by alleging a donation, for no matter in what way he may have acquired the ownership, his right to it would be finally disposed of in the first action. According to Dig.44.2.27, regard must be had to the immediate cause of action, and the reason why a claimant may think it is a good cause, is of no consequence.”

In the appeal before us the appellant is clearly trying once more to assert his right to the stand, the same right that he has been claiming in the previous cases.

The question of that right has already been decided. He cannot be allowed to re-agitate the same cause of action against the same parties for the same solution.

It is clear that this is an attempt to reverse all previous decisions on this matter by suggesting that there is fresh evidence following the issuance of a certificate of heirship in his favour.

Having failed previously on the reasons which included that he sat on his right for too long without taking any action, the issuance of the certificate of heirship does not change that situation. He remains estopped from claiming any right after such a long time in view of his own failure to act timeously.

The very issue of his right to the stand is what the court determined. It does not matter that the magistrate’s court does not set aside the decisions of the High Court and the Supreme Court. In other words, assuming he had been issued with the certificate of heirship, and when it came to his knowledge that Sikariyoti claimed to be heir and obtained another certificate making himself heir and the appellant did nothing about it for sixteen years, as he did in this case, would it assist him to argue that he is the rightful heir after Sikariyoti sold the stand. In my view, this would not assist the appellant to recover the stand from an innocent purchaser, as long as it is shown that the appellant knew what was happening but did nothing to assert his right.

In his Heads of Argument the appellant states:

“The appeal in SC 150/03 concerned the dismissal by the trial Judge’s ruling on the cession of the disputed property. The cause of action in SC 199/06 was a declarator that the appellant was the appropriate heir at customary law.”

The unreasonableness of this submission overlooks the three pre requisites quoted by the appellant himself which are:

1. That the cause of action is between the same parties or their successors in title;

2. concerning the same subject matter; and

3. founded on the same cause of complaint.

The appellant has not shown which of the above pre- requisites is absent in his appeal. The respondent has asked for costs as between legal practitioner and client.

I am satisfied that the appellant, having had three judgments which made the position very clear to him, has persisted with this case on no reasonable grounds at all.

There is no good reason why he should not be ordered to pay costs at a higher scale.

I am satisfied that the appeal has no merit and I therefore make the following order –

1. The appeal is dismissed.

2.  The appellant is to pay the first and third respondents’ costs on the legal practitioner and client scale.

SANDURA JA: I agree

GARWE JA: I agree

F M Katsande & Partners, appellant’s legal practitioners

Musunga & Assocaites, first and third respondents’ legal practitioners