No. SC 31/05
Civil Appeal No. 189/04
CHITSA v I M MOTSI
COURT OF ZIMBABWE
ZIYAMBI JA & GWAUNZA JA
MARCH 24 & SEPTEMBER 12, 2005
M Fitches, for the
Chiparo, for the
JA: This is an appeal against a judgment of the High Court which
upheld an order of eviction granted against the appellant
facts forming the background of this appeal are as follows:
to 17 May 1996 (the date of the agreement is not legible) the
respondent and three others whom I shall refer to as the Manzunzu
brothers agreed to form a joint venture (the partnership) to
run a bakery at Murambinda growth point in the Buhera district.
terms of that agreement each party was to contribute the sum of 10
000 dollars as working capital for the partnership and the
was to lease, to the partnership, the immovable property being Stand
168 Murambinda Growth Point (hereinafter referred
to as the
Stand) for a period of 12 months renewable subject to negotiation
with the respondent.
It is common cause that the
respondent was the lessee of the Stand having taken cession of it on
6 October, 1992.
On 17 May 1996 the respondent
resigned from the partnership and requested a dissolution thereof.
The notice of withdrawal provided
that the property would remain
leased to the Manzunzu brothers who were trading as Murambinda
bakery, at an agreed rental.
Thereafter the following events
On 30 March 1998, National Foods
Limited obtained judgment in the High Court in case number HC
1655/1997, against all the partners
(the respondent included
notwithstanding his resignation) in the sum of $266 207,61 and caused
a writ of execution to be issued
out of the High Court against the
movable goods of the partners. In pursuance of the writ, which was
issued on 13 June 1998, certain
movable goods located at Murambinda
bakery (the goods), were attached and removed on 23 October
1998. Thereafter, on 9 November
1998, the goods were advertised in
the newspaper for sale by public auction which was to be held on 13
It was the appellants claim
that he had purchased the Stand at the auction sale notwithstanding
that it was not advertised for
sale. In support of this allegation
he produced a Notice of Attachment in Execution dated 13 October 1998
and issued out of the
Magistrates Court for the province of
Mashonaland. This notice showed that Stand number 168 was attached
together with the movables
at the bakery. The notice stated that
the Messenger of Court had attached the articles mentioned therein
in pursuance of a warrant
to me directed under the hand of the
Clerk of Court. It bore the reference number of the High Court
case namely 1655/97.
It will be immediately apparent
that the notice of attachment in execution was false as it was issued
out of the wrong court. While
notices of attachment in execution
are issued by the Clerk of the Magistrates Court in respect of
judgments obtained in the Magistrates
Court, the same is not true of
judgments obtained in the High Court in respect of which only writs
of execution are issued and these
are done at the instance of the
Registrar of the High Court.
The appellant also attached to
his affidavit, two receipts from the Deputy Sheriff and Messenger of
Court, Chivhu, for the purchases
allegedly made by him at the
auction. The first one dated 26 January 1999 was for $100 000.00.
At the bottom of the receipt
the words Cheque Murambinda Bakery
Stand 168 were written. The second, dated 26 March 1999, was
for $17 000.00. The case
number appeared at the bottom of this
receipt as HC 1655/97. The appellant claimed that the first receipt
was for the purchase
of the Stand while the second was for the goods
bought at the auction.
Accordingly, so the appellant
argued, he was in lawful occupation of the Stand and the application
for eviction should fail.
Attached to the respondents
papers however was a return of service of the writ by the Deputy
Sheriff showing that only movable
property at Murambinda bakery had
been attached. The newspaper advertisement of the sale produced by
the respondent also showed
that only movables attached had been
advertised for sale.
The success of the application
for eviction depended on proof that the appellant was in unlawful
occupation of the Stand. The High
Court upheld the ruling of the
Magistrates Court upholding the application.
Before us, it was conceded by Mr
that the appellant had been in unlawful occupation of the Stand in
that the respondent held a valid lease of the Stand in his name
the Buhera District Council and had not relinquished his title to it
but had merely leased it to the partnership of which he
was a member.
In any event, he had resigned from the partnership in 1996 and the
default judgment obtained against him had been
(That judgment was in fact rescinded on 24 February, 1999). It was
conceded further, that the writ of execution
issued by the High
Court, did not authorise the Deputy Sheriff to attach or sell
immovable property and the Stand had not been advertised
How, in the above circumstances,
the Stand came to be sold can only be surmised. The Deputy
Sheriff is not a party to these
proceedings and the answer to this
question must remain with the appellant and the Deputy Sheriff.
Suffice it to say that the evidence
filed of record proves
conclusively that the respondent is the registered lessee of the
Stand and the appellant was in unlawful occupation
the above reasons we were satisfied that there was no merit in the
appeal and dismissed it with costs at the end of the hearing.
JA: I agree.
GWAUNZA JA: I
appellants legal practitioners
respondent's legal practitioners