The appellant and respondent had a land dispute which was taken to Headman Ganje for determination. Headman Ganje presided over the same dispute twice, giving two different judgments. He initially found in favour of the appellant, but subsequently found in favour of the respondent. The respondent appealed the second judgment to Chief Saunyama's Court, which found in favour of the appellant. The respondent then appealed to the Magistrate's court, which set aside Chief Saunyama's decision. The appellant then appealed to the High Court.
The appellant's appeal was upheld. The respondent was ordered to pay the appellant's costs of suit.
The binding legal principle established is that customary law courts (primary courts and community courts) become functus officio after determining a case for the first time. Although section 20(1) of the Customary Law and Local Courts Act generally excludes common law principles from customary law proceedings, sections 23(1) and 24(1) of the Act, which provide for appeals to higher courts, impliedly introduce the functus officio principle by establishing that these courts cannot hear the same case again after initially determining it. A decision made by a customary law court when it is functus officio is a nullity, and a nullity does not gain validity or status simply because it has been erroneously considered by higher courts in the judicial hierarchy.
The court observed that the principle of functus officio is of universal application and ensures that justice is seen to be done. The court noted that allowing a judicial officer to preside over the same case more than once opens him to giving conflicting decisions, as happened in this case. The court also commented that it is trite that a point of law can be raised at any stage, even on appeal, citing several supporting authorities. The court further observed that each court that heard the matter laboured in vain on a nullity on which nothing can depend, and that if any party is aggrieved by the first and valid decision of the primary court, they must appeal from that decision and not from the nullity.
This case is significant in Zimbabwean customary law jurisprudence as it establishes that the common law principle of functus officio applies to customary law courts, notwithstanding the general prohibition in section 20(1) of the Customary Law and Local Courts Act against applying common law principles to customary law proceedings. The case clarifies that sections 23(1) and 24(1) of the Act, which provide for appeals, impliedly introduce the functus officio principle by preventing customary courts from hearing the same dispute twice. It reinforces the principle that a nullity remains a nullity regardless of how many higher courts have erroneously considered it, and that allowing a judicial officer to preside over the same case more than once undermines justice and can lead to conflicting decisions.