Local firm, church drag NRZ to Supreme Court

A LOCAL firm Ojei Ventures (Private) Limited and church, Redeemed House of God, have appealed a High Court ruling that dismissed their application for spoliation order against the National Railways of Zimbabwe (NRZ), which sought to evict them from the land the rail operator had leased to the entities.

In a notice of appeal to the Supreme Court, the appellants, Ojei Ventures and Redeemed House of God, who are the first and second applicants respectively, appealed against the whole judgment of the High Court of Zimbabwe held at Harare under judgment HH-54-24 and case HCH 84/24.

The High Court judgment was handed down by Honourable Justice Tsanga on February 2, 2024.

As required by rule 37 (1) (d) as read with rule 44 (1) of the Supreme Court rules, 2018, the appellant’s grounds of appeal were that “The court a quo erred in dismissing the appellants’ application for spoliation order in circumstances where the two essential requirements for spoliation relief had been established by the appellants.

“The court a quo erred and grossly misdirected itself in finding that the appellants’ had consented to the deprivation of the possession of the property contrary to the evidence placed before it particularly;

a) the video recording that was direct evidence of spoliation acts. b. The common cause fact that the High Court had granted a spoliation order sought on the basis of the same facts and circumstances by one Nixon Chibuzor Ohizu who was a co-applicant in HCH8048/23 where the appellants were found to be non-suited for want of resolutions authorising the deponent to represent appellants.”

The appellants further stated that the appellant’s grounds of appeal were that the court a quo erred and grossly misdirected itself in not granting a spoliation order in circumstances; peaceful and undisturbed possession had been shown by appellants who had occupied the premises peacefully since 2003.

“Respondent’s defence that deprivation was not forceful was clearly unsubstantiated and could not be based on a mere notice of eviction.

“The court a quo erred and grossly misdirected itself in not granting a spoliation order in circumstances where the respondent’s defence, in effect, merely related to the lawfulness or otherwise of the possession which is irrelevant in spoliation proceedings.”

The appellants further cited in the appeal that the court a quo erred in dismissing an application for a spoliation order and effectively condoning forceful and unlawful deprivation of possession in the absence of a Court Order but in the presence of a mere notice of eviction contrary to settled law.

“Wherefore, the appellants pray that the appeal succeeds with costs and the judgment of the Court a quo under HCH 84/24 be set aside and substituted with the following; a) The application for spoliation order be and is hereby granted.

b) The respondent, its agents, proxies and assignees be and is hereby ordered to restore forthwith to the Applicants possession of Stand No. 14432 Seke Road Graniteside Harare.

c) In the event that the respondent fails to comply with paragraphs 2 above, the Sheriff of High Court, Harare, or his lawful deputy, be and is hereby authorised and directed to enlist the services of any number of duly attested members of the Zimbabwe Republic Police to enforce this order.

d) The respondent to pay costs of suit on a legal practitioner and client scale.

In her founding affidavit of the urgent chamber application for the spoliation order, which was denied by the High Court, the applicants’ managing director Eunicah Joan Ohizu through legal counsel Briane Hwachi outlined that around February 2003, the applicants identified a large vacant piece of land on the western side of Harare City Centre, Stand 14432 Salisbury Township and enquired with the City of Harare.

Ohizu cited that they considered the geological complexities of the land due to its swampy nature, deed pits and dumps on the concerned piece of land and got interested.

“I was then informed by the City of Harare that the land belonged to the respondent whose premises are directly opposite the site I was interested in. I saw the great potential in the piece of land to establish a church and business infrastructure though at the time it appeared to be impossible to make any reasonable use of the land,” she said.

“The respondent then referred me to their estate agent CB Richard Ellis Property Leasing Corporate.

“I had discussions with the estate agent’s official Mr Macdonald Chinyoka.”

She said a lease agreement was drafted and the initial lease period was from July 1, 2003 to June 30, 2005.

Ohizu signed the lease agreement in May 2003 before NRZ signed in November 2003, meanwhile, they had permitted development work to commence and was in progress.

“It was a term of the agreement that I would improve and develop the property at my own expense subject to the approval of the City of Harare.

“I spent a little over US$200 000 backfilling and preparing the land for development. I called the City of Harare inspectors who came and inspected and advised that they would only approve construction if I was to use a special foundation and I contacted a structural engineer to ensure that I was building durable and safe structures.

“Before expiry of the first lease agreement a new lease was entered into extending the period from 1 February 2004 to 30 January 2006,” she said, adding that a house, office block, an ablution block, and a small meeting room on the premises were built.

In addition, Ohizu stated that between 2007 and 2008, more offices were built including a block of commercial shops.

In 2009, she said, a church auditorium was built and in 2011 a church office block office was built and established.

“Furthermore, between 2012 and 2014 another church office block was built and established.

“Lastly, between 2019 and 2020 more retail shops and a warehouse were built.

“I submit with greatest respect that during the erection of all these structures I complied with the City of Harare regulations and each and every stage was inspected and approved by inspectors as per the laws and regulations of City of Harare.

“I have since employed 26 people excluding those operating the retail shops and their workers. Meanwhile, all this was done by consent and permission from the respondent,” she said.

Ohizu stated that having done all the work, improvements and development of the property worth US$1 650 000 or its equivalence in local currency, the respondent issued eviction summons against her under case number HC6016/20 (in 2020).

“I aver that having done all the work, improvements and development of the property worth US$ 1 650 000 or its equivalence in RTGS dollars respondent issued ejectment summons against me under HC6016/20 for alleged rental arrears which claims were all falsehood and malicious.

“I vehemently defended the action and filed a counterclaim. It went all the way to the pre-trial conference where the respondent voluntarily withdrew their claim citing that on termination of the lease agreement, they would not renew it but I did not withdraw our counterclaim.

“I submit that I have been religiously paying rentals and electricity bills,” stated.

“I submit that I do not owe the respondent any cent. In addition, I submit that the dispute of arrear rentals started sometime around February 2022 when my former legal practitioners, Honey and Blackenburg received a notice of rental review from the respondent’s then legal practitioners Mangwana and associates.

“The rental review letter dated 20th December 2021 indicated that the respondent was proposing a rental increment from $26 000 to US$10 080 effective February 1, 2022,” she said.

Ohizu said the letter indicated that the applicants had until the 25th of January 2022 to confirm acceptance of the offer.

She said her lawyer responded to the letter notifying them that the date had already passed and requested a meeting to further clarify the matters of the proposed rental increment.

“The respondent’s lawyers set two dates for the meeting and on those two occasions, they never showed up for the meeting.

“I submit that respondent through its powerful senior officials started enquiring whether I had licenses to operate the church, the shops, and the rest of the business after they failed to lawfully evict me.”

Ohizu stated that she informed them of having complied with the laws and Bylaws of Zimbabwe, operating legally and legitimately paying the rentals timeously and paying taxes to the Government.

She said during all this, she reminded NRZ that when it leased the land in question, it was a dump and swamp with very deep holes with no prospects of reasonable use. “Now that the property is developed and beautiful, the business running successfully and worth a lot of money, the respondent now wants to fault-find and eject me unlawfully in bid to take over the premises.

“On or around 23rd of September 2023 respondent gave applicants notice of termination of the lease agreements.

“On the 6th of December 2023, after having been in peaceful and undisturbed possession of the premises, respondent’s officials unlawfully and without a court order and/or consent of the applicants entered the premises violently chased everyone out including my family who had to lock themselves up in the house, church members who were praying, security guards, shop operators and customers and locked all the gates and blocking all access to the premises,” said Ohizu.

“I realised the matter was getting out of hand, I rushed to Harare Central Police Station and saw the Superintendent in charge of crime who advised me to contact my lawyers as this was a civil matter and then ordered respondent’s security officers to accompany me to the premises so that I could gain access to my house which is inside the premises.”

She then instructed lawyers to file an Urgent Chamber Application under HCH8048/23 on the 8th of December 2023 and the matter was heard on the 27th of December before Justice Muchawa.

She added that at the hearing, NRZ raised a preliminary point that the applicants had not attached resolutions giving Nixon Ohizu authority to present the applicants and therefore they were not properly before the court.

“The court upheld the preliminary point and 1st and 2nd Applicants were struck off and expunged from the record.

“The court only proceeded to hear Nixon Ohizu as the only applicant who was properly before the court.

“The application was granted in respect of Nixon Ohizu on the 29th of December 2023.”

In her founding affidavit, Ohizu stated that the applicant has been in peaceful and undisturbed occupation of the land for two decades and this circumstance has endured without any incident.

She outlined that a group of people (respondent’s agents) invaded the premises and violently chased everyone out without a court order.

In the founding affidavit, Ohizu submitted that the acts of the respondent were unlawful in that they did not have a court order to take occupation and evict the applicants from the concerned premises.

“Even if they did, they have no right to execute it personally. They would have had to do so through the Sheriff of the High Court or his lawful deputy.

“In the circumstances, they have taken the law into their own hands and taken occupation of the premises from the applicant illegally and without consent.

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“They committed spoliation.

“I must also record the fact that we are without help. The director of the 2nd applicant is of Nigerian descent who is permanently resident in Zimbabwe and married to a Zimbabwean citizen with children.

“They have contributed significantly to the vision of the Government of being an upper middle-income economy by 2030,” she stated, adding that the police have indicated that they will not and cannot stop the criminality and lawlessness of NRZ.

“It is necessary that the Honourable Court intervenes and restores the applicant to its peaceful and undisturbed occupation of the premises and the Respondent and its privies vacate the premises.

After Nixon Ohizu was restored to occupation on the 29th of December 2023, the applicants proceeded to approach NRZ to settle the dispute amicably.

Applicants and the respondent had a meeting on January 2, 2024 at NRZ’s headquarters in Bulawayo.

“The respondent refused an amicable settlement and gave the applicants an ultimatum to move out of the premises by the 8th of January 2024 and proceeded to put more security on all gates.

“Applicants’ premises are locked. The business is closed and has not been operating since the taking over of the premises.”

Further, she stated that on January 5, 2024 the respondent gave the applicants an ultimatum up to the 8th of January 2024 to remove all the outstanding property in the shops and the church.

She said NRZ indicated that failure by the applicants to comply with the rail operator’s officials, they would break-in and remove the possessions of the applicants forcefully.

“After applicants were expunged from the record on the 27th of December 2023, the order was granted on the 29th of January 2023 in favour of Nixon Ohizu the applicants before the court approached the respondent on the 2nd of January 2024 to resolve the dispute.

“The respondent indicated they have permanently taken over the premises.

“The period within which the applicants approached this court falls inside the time which these courts have prescribed for the urgent treatment of spoliation matters, which is at most one year from the date of spoliation.

“I submit that the applicant acted with haste and diligence in seeking the court’s intervention and in asserting its rights.

“I urge the court to hear the applicants with the same urgency that applicants have approached it,” she said.

-herald