The appellant, Monica Gondo, issued summons in the Magistrates Court seeking eviction of the respondent, Raymond Tafadzwa Nhowe, from a subdivision of No. 9 Vickers Road, Belvedere. The appellant claimed she bought the property from Shingirai Fabion Nhowe on 30 October 2017 and held title deeds after having paid the purchase price. She received title deeds on 28 November 2018 and gave the respondent three months' notice to vacate, which was not heeded. The appellant also sought rental arrears of US$3,000 for December 2018 to February 2019 and holding over damages. The respondent defended the claim, asserting rights through his mother, Ntombizodwa Nhowe, who was granted rights over the property through a High Court order dated 20 May 2021. After a full trial, the Magistrates Court dismissed the matter for want of jurisdiction, finding it lacked power to make the necessary declaratory order regarding ownership. The appellant appealed to the High Court.
The point in limine was upheld. The appeal was struck off the roll with costs on an ordinary scale in favor of the respondent.
Where a court a quo dismisses a matter on jurisdictional grounds without making findings on the merits, it is incompetent for an appellant to seek substitution of that order with one granting substantive relief on the merits. The appropriate relief in such circumstances, if the appeal were to succeed, would be remittal of the matter to the lower court for determination on the merits. A notice of appeal that contains grounds irreconcilably contradictory to the relief sought is fatally defective and incurable. An appellate court cannot make findings on issues that were never adjudicated by the court a quo. A fatally defective appeal cannot be condoned or amended and must be struck off.
The court observed that section 31(1)(a) of the High Court Act grants wide powers to the High Court on appeal to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require. However, these powers can only be exercised where there is a valid notice of appeal before the court, not where the relief sought is incompetent. The court also reiterated that costs on a higher scale should only be awarded in exceptional circumstances where a party's conduct is mischievous and objectionable, involving factors such as dishonesty, absence of bona fides in conducting litigation, or mere harassment of the defendant/respondent. The mere fact that an appeal is ill-conceived and doomed to failure is not a justifiable basis for awarding costs on an attorney and client scale.
This case reinforces important principles of appellate procedure in Zimbabwean law: (1) An appellant cannot seek relief that is irreconcilable with the grounds of appeal; (2) Where a lower court declines jurisdiction without deciding the merits, the appropriate relief on appeal (if successful) is remittal, not a substantive order on the merits; (3) An appellate court cannot be invited to make findings on issues that were never adjudicated by the lower court; (4) A fatally defective notice of appeal is incurable and cannot be saved by condonation or amendment; and (5) Costs on a higher scale require exceptional circumstances such as dishonesty or lack of bona fides, not merely an ill-conceived appeal. The case demonstrates the importance of properly framing appellate relief consistent with the nature of the lower court's decision.