Judgment No.

24/2015 1
Civil Appeal No. SC 306/2010

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THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL

TRUST
v
ROBERT CHIITE & 7 ORS

SUPREME COURT OF ZIMBABWE

MALABA DCJ, GARWE JA & MAVANGIRA AJA
HARARE, FEBRUARY 9, 2015

T Magwaliba, for the appellant

T Mpofu, for the respondent

MALABA DCJ: On the day of the hearing we allowed the appeal with costs

and indicated that reasons for the decision were to be availed in due course. These are they.

This is an appeal against the High Court decision dismissing a claim for an

order of eviction of the respondents by the appellant (hereinafter referred to as the Trust),

from the premises commonly known as 85 Baines Avenue, Harare. The facts of the matter

are as follows.

The Leonard Cheshire Home Zimbabwe Central Trust was established on 3

April 1981, by a Deed of Trust for the purposes of raising funds and to provide means for the

care and rehabilitation of permanently physically impaired people. The affairs of the Trust are

administered by six Trustees who are appointed in terms of clause 5 of the Trust Deed for a
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period of 5 years. In pursuance of the objectives of the Trust, the Trustees established a

number of Homes within Harare, one of which is the Masterson Home which is located at

No. 85 Baines Avenue, Harare.

The policy of the Trustees has been to admit into the Masterson Home a

specific number of inmates at a given time, rehabilitate them and release them for integration

into the community. Many permanently physically impaired persons have been rehabilitated

by the Trust and have found settlement in the public thereafter without any problem.

At a meeting held on 12 March 1998 the Trustees decided that consideration

be given to having the Masterson Home (“the Home”) closed because it had become difficult

to run the institution on the stringent budget available. On 30 November 1999 a firm decision

was taken by the Trustees that the Home be closed. The proposal was that the property

would be sold and part of the proceeds used to help the respondents (hereinafter referred to as

Beneficiaries) to start their own income generating projects in the communities into which

they would be integrated. It was also decided that those who were not ready for integration

would be transferred to a home in Kambuzuma, Harare.

Pursuant to the decision of the Trustees to sell the Home, an assessment of the

inmates was carried out in order to determine the needs that were peculiar to each of them.

The purpose of the assessment of each beneficiary’s needs was to ensure that the programme

envisaged did not adversely prejudice the beneficiaries. The assessment exercise was

undertaken by a consultancy firm which was mandated to look at the feasibility of the

anticipated programme and make recommendations. At all material times the beneficiaries
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were advised of the fact that there would be a need to vacate the premises to pave way for the

sale of the Home. It was made clear to the beneficiaries that they were not going to be

thrown into the streets, but that each individual’s needs would be assessed and a program of

rehabilitation or integration suitable to him or her put in place. They were also advised that

part of the proceeds from the sale of the property would be used to finance integration

projects in the communities in which they were to be resettled. The beneficiaries were asked

to indicate the types of projects they wanted to undertake.

The beneficiaries accepted the proposals and undertook to move out of the

premises sometime in the year 2005. They later reneged from their undertaking and refused

to vacate the building arguing that the Trustees who admitted them into the Home had

promised to let them occupy the premises for as long as they wanted. They started denying

entry into the Home to members of staff. They also let out part of the premises to medical

practitioners who converted them into surgeries. Some of the rooms were let out to members

of the public who used them as phone shops, tuck shops and living rooms.

The beneficiaries collected monthly rentals from the occupants of the rooms

they let out illegally. The Home was turned into a commercial centre. The beneficiaries did

all these things without lawful authority from the Trustees. The actions were against the

spirit of the Trust. The premises were not maintained causing deterioration in the state of

repair of the building and the general health conditions.

On 26 July 2004, a decision was taken by the Trustees to sell the Home. On 2

August 2004 the Trustees instituted proceedings, in the name of the Trust, for an order of
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eviction against the beneficiaries. The beneficiaries opposed the action. The Trustees made it

clear in the declaration that the action for eviction was being brought on behalf of the Trust.

The averment is contained in para. 13 of the declaration which reads as follows:

“13. All the defendants are beneficiaries of the Leonard Cheshire Homes Zimbabwe
Central Trust, a trust duly registered, whose trustees are the Plaintiffs. The Defendants
all occupy the apartments at the property referred to in paragraph 11 (above) in their
capacity as beneficiaries of the trust.” (My emphasis)

In their plea, the beneficiaries admitted the averment made by the Trustees

that the eviction proceedings were instituted in the name of the Trust by the Trustees who had

authority to do so. In para. 1 of the plea which addressed the averments in paras. 1– 13 of the

declaration, the beneficiaries stated as follows:

“1. Ad Para 1 – 13
This is admitted.”

The substance of the defence by the beneficiaries to the claim by the Trustees

was that they had a right to continued occupation of the premises. They alleged that the

Trustees who admitted them to the Home had assured them that they would stay at the

institution for as long as it was necessary. Their defence did not challenge the right of the

Trustees to institute proceedings for their eviction from the premises. The locus standi of the

Trustees in the proceedings was not an issue between the parties. The issues that were

referred to trial were:

i. Whether Plaintiff has failed to provide Defendants with the assistance and

support set out in paragraph 3 (i) (a) of the Trust Deed?

ii. Whether the Defendants are entitled to remain in occupation of the property?
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iii. If the answer to (ii) is No, whether Plaintiff is entitled to an order evicting the

Defendants from the property?

At the hearing the plaintiff called one B Chikwanha as a witness. When he

was being cross examined by Mr Mehta for the defendants, it was put to him that his term of

office and terms of office of Mr Gomwe, Mr Mills and Mr Hungwe had expired at the time the

decisions to evict the defendants and sell the Home were made. Mr Mehta suggested that the

decisions were invalid. Mr Magwaliba who represented the Trustees objected to the line of

cross examination on the ground that it raised a question of fact of the expiry of the terms of

office of the Trustees. Mr Magwaliba argued that the matter of expiry of the terms of office of

the Trustees had not been put in issue in the pleadings. He indicated that in light of the

admission made by the defendants that those who instituted the proceedings were Trustees of

the plaintiff it was not open to Mr Mehta to challenge the validity of the decisions made by the

Trustees on the allegation that their terms of office had expired at the time the decisions were

made.

The learned Judge took the view that the question of the expiry of the tenures

of office of the Trustees had a bearing on the validity of the decisions that were made in

respect of the closure of the Home on 30 November 1999 and 26 July 2004. He ruled that the

issue was a question of law which the defendants could raise at any time during the

proceedings and as a result overruled the objection by Mr Magwaliba. Mr Mehta was allowed

to cross examine Mr Chikwanha on the alleged expiry of the terms of office of the Trustees

who made the respective decisions. The evidence showed that although the terms of office of

some of the Trustees who made the decision of 30 November 1999 had expired, the number of

Trustees whose terms of office had not expired formed a quorum in terms of clause 5 of the
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Deed of Trust. In respect of the decision made on the 26 July 2004 the evidence was not

conclusive as to whether the terms of office of Mr Mills and Mr Muzondo had expired. The

fact that the evidence was inconclusive did not justify a finding that the terms of office of the

Trustees had expired.

As to the other Trustees the evidence suggested that their terms of office had

not expired. Mr Choto was appointed in 2004. The evidence suggested that Mr Muzondo

could have been appointed on 9 February 2004. There was no evidence to suggest that he had

already been appointed Trustee prior to that date. The evidence also suggested that Mr Mills

would not have been a Trustee before 30 of November 1999. That meant he could not have

been appointed before that date. The terms of office of Mills, Muzondo and Choto were

current on 26 July 2004, when the decision to evict the beneficiaries was made.

When the learned Judge made the decision on the expiry of the terms of office

of the Trustees, he had considered the matter to be a question of law. He however found as a

matter of fact that the terms of office of the Trustees, who made the decision of 30 November

1999, had not expired. On the basis of that evidence the learned Judge found that the

decision of 30 November 2004 was valid. The learned Judge also held that there was

inconclusive evidence on the question of expiry of the terms of office of Mr Mills and

Muzondo.

The learned Judge held that the plaintiff bore the onus of proving that the

decision taken on the 26 July 2004 was valid. As a result he held that the plaintiff had not

discharged the evidential burden of establishing the facts on which the question of invalidity
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of the decision could be made. The learned Judge misplaced the evidential onus on the

plaintiff because he misunderstood the content of the matter in issue. The question to be

decided was whether the decision was invalid. It was the defendants who raised the question

of the invalidity of the decision of 26 July 2004. They bore the burden of producing evidence

to prove the facts of the expired terms of office of the Trustees on which the question of

invalidity of the decision could be determined.

The learned Judge determined that the decision made by the Trustees on 26

July 2004 to evict the beneficiaries was invalid. The plaintiff’s case was dismissed with costs.

Aggrieved by the decision of the court a quo, the appellants noted the appeal on the following

grounds:

1. That the court a quo misdirected itself in finding that the issue whether the

Appellants had exceeded their five year terms in terms of Clause 5 (c) of the

Deed of Trust was a question of law as opposed to an issue of fact.

2. The court a quo further fundamentally misdirected itself in allowing the

respondents to raise the new issue which was not pleaded in their pleadings

with the first witness for the Appellant. The court a quo therefore erred in over

– ruling the appellant’s objection to the respondents’ raising of a new defence

at the trial.

3. The court a quo further misdirected itself in finding that the appellant had the

onus to prove that the Trustees had not exceeded their five year terms and

were therefore entitled to make a resolution for the ejectment of the

respondents thereby making the appellant liable to prove the respondents’ new

defence.
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4. The court a quo further erred in making findings of fact on the question of

whether the Trustees had exceeded the five year term limit in terms of the

Deed of Trust based on incomplete and inconclusive evidence led by the

parties thereby contradicting an earlier finding that the issue was a point of

law.

5. The court a quo further misdirected itself in failing to find that the respondents

had abandoned and not proved their pleaded defence, that is that upon being

accepted as beneficiaries to the trust, they were promised to live at the

premises in issue, No. 85 Baines Avenue, Harare for life or for as long as they

wished.

6. In the event therefore, the court a quo erred in dismissing the appellants claim.

On the question whether or not the court a quo correctly decided that the issue

of the expiry of the terms of office of the Trustees was a question of law, the Court holds that

the decision was wrong. The question was a question of fact which could only be answered

by reference to facts established by evidence. The court a quo would have had to ask itself

the question whether or not sufficient evidence had been placed before it to prove on a

balance of probabilities the facts on which it would make a finding that the terms of office of

the Trustees had expired. The court would not have gone into the question of evidence on the

expiry of the terms of the Trustees to answer a question of law. The law on the matter was

clear in that a Trustee could only serve a term of 5 years. The issue of whether a particular

Trustee had exceeded his term of office at the time a decision was made did not need an

explanation of what the law was. Once a question requires a court to consider whether

certain facts have been established in order to answer it, the court is to determine a question

of fact.
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The court a quo appears to have appreciated the position when it determined

the question whether the decision of 30 November 1999 was valid or not. To arrive at that

decision it analysed the evidence led on the terms of office of the Trustees concerned and

concluded that, the fact of the expiry of the terms of office of the Trustees who constituted a

quorum had not been proved. That was a contradictory position taken by the court if the

question whether the terms of office of the Trustees had expired was a question of law. The

same goes for the question whether the decision to sell the Home taken on 26 July 2004 was

valid. The court a quo found itself having to go into the evidence of the fact of the expiry of

the terms of office of the Trustees. It came to the conclusion that there was no sufficient

evidence to prove whether or not the terms of office of Mr Mills and Mr Muzondo had

expired.

The court erroneously placed the evidential burden on the plaintiff when it was

the defendants who had raised the issue of the expiry of tenure of office of the Trustees. If the

question of the fact of the expiry of the terms of office of the Trustees had been properly

placed before the court for determination, the onus would have been on the defendants who

made the allegations.

The finding by the court a quo on the inconclusiveness of the evidence on the

expiry or otherwise of the terms of office of Mr Mills and Mr Muzondo, was wrong. The

evidence showed that when the decision to evict the respondents was made, Mr Muzondo had

served 3 years as a Trustee. Under cross examination, Mr Chikwanha explained that

Mr Muzondo was appointed in February 2004. To say the evidence was inconclusive when

there was no evidence to contradict what Mr Chikwanha said was a misdirection. The

evidence showed that Mr Mills could not have been in office before 30 November 1999. In
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the absence of proof by the defendants to the contrary, the court a quo was bound, in light of

the admission made in the plea, to accept that the terms of office of the Trustees concerned

had not expired when the decision to evict the defendants from the premises was made on 26

July 2004.

Mr Mpofu sought to impugn the validity of the proceedings in the court a quo

on the ground that each Trustee was not named as plaintiff in the document commencing

proceedings.

On the issue of the failure to cite as plaintiff, each Trustee by name in the

document commencing the proceedings, Mr Magwaliba made reference to the High Court

Rules, 1971. The effect of r 8A of Order 2A is that it is not necessary to list Trustees by

name when they sue on behalf of a Trust. It is clear that the proceedings were instituted by

the Trust. The Deed of Trust grants the Trust the power to sue and be sued. The respondents

had challenged the locus standi of the Trustees to sue on behalf of the Trust.

The relevant rules provide as follows:

“ORDER 2A
PROCEEDINGS BY OR AGAINST ASSOCIATIONS, ETC

7. Interpretation in Order 2A
In this Order—
“associate”, in relation to—
(a) a trust, means a trustee;
(b) an association other than a trust, means a member of the association;
“association” includes—
(a) a trust; and
(b) a partnership, a syndicate, a club or any other association of persons which is not
a body corporate.
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8. Proceedings by or against associations

Subject to this Order, associates may sue and be sued in the name of their
association.
8A. Naming of associates
(1) In any proceedings to which an association is a party, any other party may, by
written notice to the association, require a statement of the names and places of
residence of the persons who were the association’s associates at the time the cause
of action accrued.
(2) A person who receives a notice in terms of subrule (1) shall, within five days after
receiving it—
(a) furnish the party concerned with a written statement containing the required
information; and
(b) file a copy of the written statement with the registrar; and the proceedings shall
continue in the same manner, and the same consequences shall follow, as if the
associates had been named in the summons or notice commencing the proceedings:
Provided that the proceedings shall continue in the name of the association except
where a writ of civil imprisonment is sought against an associate, in which event the
associate shall be specifically named in the civil imprisonment proceedings.”

A proper reading of the provisions of r 8A of the High Court Rules establishes

that it is not a requirement for the names of Trustees to be listed when they bring an action on

behalf of the Trust. The only place where the issue of the listing of the names of Trustees

when an action has been instituted on behalf of the Trust is where a defendant to a suit by the

Trustees on behalf of the Trust, has requested from the Trust names and addresses of the

individual Trustees. This would be in line with r 8A (1) of the High Court Rules, 1971.

It was for these reasons that the Court found that the decision of the court a

quo could not stand and accordingly allowed the appeal with costs.

GARWE JA: I agree

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MAVANGIRA AJA: I agree

Magwaliba and Kwirira, appellants’ legal practitioners

Lawman Chimuriwo Attorneys At Law, respondent’s legal practitioners