DISTRIBUTABLE (27)

Judgment No. SC 35/03

Civil Appeal No. 298/02

AGSON MAFUTA CHIOZA v

(1) JOHN LEWIS SAWYER (2) THE REGISTRAR OF DEEDS

SUPREME COURT OF ZIMBABWE

SANDURA  JA, CHEDA JA & GWAUNZA JA

HARARE, OCTOBER 14 & NOVEMBER 6, 2003

J Wood, for the appellant

A M Gijima, for the first respondent

No appearance for the second respondent

SANDURA  JA: This is an appeal against a judgment of the High Court, in terms of which several applications which had been heard together were decided in favour of the first respondent (“Sawyer”). Dissatisfied with that result, the appellant (“Chioza”) appealed to this Court.

The factual background in the matter is as follows –

1. On 1 November 1994 Chioza and Sawyer concluded a lease agreement, in terms of which Chioza leased Rothbury Farm (“the farm”) to Sawyer. Clause 14 of the agreement, in relevant part, provided as follows:

“… the Lessor agrees that the Lessee shall have the right of first refusal to purchase Rothbury at a price no greater than the Seller would be prepared to accept from any other bona fide third party purchaser …”.

2. In July 1997 Chioza, without ascertaining whether Sawyer wished to purchase the farm in terms of clause 14, sold and transferred the farm to Neville Mujikwa (“Mujikwa”) for two million dollars. When Sawyer became aware of the sale, he filed a court application in the High Court, case no. HC 4787/98, seeking an order setting aside the sale, authorising the Registrar of Deeds to cancel the registration of the farm in Mujikwa’s name and directing that he be given an opportunity to purchase the farm for two million dollars in terms of clause 14. In his founding affidavit he averred that he would certainly have wished to purchase the farm had he been given the chance to do so. The application was successful and Sawyer was given fourteen days within which to exercise the option to purchase the farm. That was on 3 March 1999.

3. When Sawyer failed to exercise the option within the fourteen day period, he filed an urgent chamber application in the High Court (case no. HC 4468/99) seeking an extension of time within which the option had to be exercised. The application was placed before the learned judge who had granted the order in case no. HC 4787/98, but it was dismissed. However, about four months later, a similar application, case no. HC 5459/99, was placed before another judge of the High Court and, on 29 July 1999, Sawyer was granted the extension which he had sought. From the record, the circumstances in which this application was made and granted are not clear. What is clear, however, is that when the application was heard both parties were legally represented, and that no appeal was ever noted against the order that was made. In the circumstances, Chioza’s complaint about this order cannot be entertained by this Court.

4. Immediately after the extension of the time within which the option to purchase the farm was to be exercised, Sawyer informed Chioza in writing that it was his intention to purchase the farm for two million dollars. Thereafter, in October 1999 Chioza filed a court application in the High Court, case no. HC 15214/99, seeking an order releasing him from the obligation to transfer the farm to Sawyer on the ground that Sawyer had breached the order granted in case no. HC 4787/98. The application was dismissed with costs on 13 January 2000. The court found that Sawyer had not breached the order when he directed that the farm be registered, not in his name, but in his company’s name. No appeal was noted against that decision.

5. On 28 March 2000 Chioza filed another court application in the High Court, case no. HC 4111/2000, seeking an order cancelling the sale of the farm to Sawyer on the ground that he wanted payment of the sum of two million dollars by means of a bank cheque and not by means of a bank guarantee provided by Standard Chartered Bank. He alleged that in the circumstances Sawyer had failed to comply with the order issued in case no. HC 4787/98.

6. On 18 May 2000, before case no. HC 4111/2000 was heard, and after Chioza had refused to sign the transfer documents, Sawyer’s lawyers, who had already been granted the necessary power of attorney by the Deputy Sheriff on 30 March 2000, transferred the farm to their client in accordance with the order issued in case no. HC 4787/98. When Chioza became aware of the transfer, he filed an urgent chamber application in the High Court, case no. HC 6582/2000, on 13 June 2000, seeking a provisional order calling upon Sawyer to show cause why the transfer of the farm to him should not be cancelled. The provisional order sought was granted on 15 June 2000 and was served on Sawyer’s lawyers on 16 June 2000. When the urgent chamber application was filed, Chioza was aware that his court application, case no. HC 4111/2000, in which he sought an order cancelling the sale of the farm to Sawyer, would be heard on 22 June 2000.

7. On 22 June 2000 case no. HC 4111/2000 was heard and dismissed with costs on the legal practitioner and client scale. The learned judge who heard the matter observed that Sawyer had complied with the order issued in case no. HC 4787/98 as he had exercised the option to purchase the farm within the time provided in the order, and was able and willing to pay the purchase price of two million dollars. Thereafter, Chioza collected the sum of $1 800 000.00 from Sawyer’s lawyers, which was the balance of the purchase price after capital gains tax had been deducted.

8. On 27 July 2000 Sawyer filed a court application in the High Court, case no. HC 8261/2000, seeking an order barring Chioza from instituting any court proceedings against him concerning the farm without the leave of the court. The application was opposed and is one of the applications which the learned judge in the court a quo determined.

9. After the dismissal of Chioza’s court application in case no. HC 4111/2000, Chioza’s legal practitioner renounced agency in case no. HC 6582/2000 which, as already stated, was an urgent chamber application in which Chioza sought the cancellation of the transfer of the farm to Sawyer, alleging that the transfer had been fraudulent. The legal practitioner renounced agency because he was not prepared to persist with case no. HC 6582/2000, bearing in mind the decision in case no. HC 4111/2000. However, as Chioza intended persisting with case no. HC 6582/2000, he briefed another legal practitioner who, on 1 August 2000, wrote to Sawyer’s lawyers as follows:

“Be advised that we now act for Mr Chioza. We have been instructed to file an appeal in case number HC 4111/2000 and await the reasons for judgment and confirmation that you are acting for Mr Sawyer in this matter and in HC 6582/00 before we file and serve our client’s notice of appeal. Please confirm.

We understand the above quoted cases are the only ones outstanding between the parties. If there are others please advise us. We intend to do our best to resolve this dispute which we understand goes back for some years now.”

10. On 9 August 2000 Sawyer’s lawyer replied as follows:

“Thank you for your letter dated the 1^st of August 2000. …

We … can safely state that the only matters outstanding vis-à-vis your client and my client are case no. HC 6582/00 and case no. HC 8261/00. As far as we are concerned case no. HC 4111/00 was dealt with and is concluded.

Given the judgment received in case no. HC 4111/00, we felt that your client’s application under (case no. HC) 6582/00 fell away. However, you seem to want to pursue the matter. We now request for further time in which to file our opposing papers as we are out of time. Kindly afford us sufficient time to brief (an) advocate and get our papers in order. …

In the light of the above, we now look forward to your consent to afford us further time to get our papers in order in respect of (case no. HC) 6582/00.”

The record does not indicate that there was a reply to this letter.

11. On 23 August 2000 the provisional order granted in case no. HC 6582/2000 on 15 June 2000 was confirmed. Sawyer’s lawyers had not filed any papers opposing the confirmation of the provisional order because Chioza’s former legal practitioner had indicated that in view of the decision in case no. HC 4111/2000 he would urge Chioza not to pursue the matter. A default judgment was, therefore, granted.

12. On 5 September 2000 Sawyer filed a court application in the High Court, case no. HC 9558/2000, seeking the rescission of the default judgment granted in case no. HC 6582/2000. About a week later, he filed an urgent chamber application for stay of execution, case no. HC 9559/2000, seeking a provisional order calling upon Chioza to show cause why the cancellation of the transfer of the farm to him (i.e. Sawyer), which had been ordered in case no. HC 6582/2000, should not be stayed. The order sought was granted on 13 September 2000.

13. On 11 January 2001 Chioza’s appeal in case no. HC 4111/2000 was heard by this Court and was dismissed with costs on the legal practitioner and client scale. See Agson Mafuta Chioza v John Lewis Sawyer judgment no. SC 29/2001 (not yet reported).

14. In December 2001 Chioza filed a chamber application in the High Court, case no. HC 9558/2000, seeking the dismissal of Sawyer’s court application in case no. HC 9558/2000 for want of prosecution. The chamber application was given the same case number as the court application. As already indicated, in that court application Sawyer sought the rescission of the default judgment granted against him in case no. HC 6582/2000.

15. On 10 January 2002, Sawyer’s court application, case no. HC 9558/2000, was dismissed for want of prosecution. What had happened was that when Chioza’s chamber application for the dismissal of Sawyer’s court application was served on the firm of legal practitioners acting for Sawyer, the legal practitioner handling Sawyer’s case was on leave, and the legal practitioner who was supposed to handle her cases whilst she was on leave did not do so owing to a mis-interpretation of the nature of the application. Consequently, no opposing papers were filed on behalf of Sawyer, and a default judgment was granted in favour of Chioza. The learned judge who dismissed the court application for want of prosecution granted Chioza leave to enforce the order issued in case no. HC 6582/2000 which directed the Registrar of Deeds to cancel the Deed of Transfer executed in Sawyer’s favour.

16. On 12 February 2002 Chioza instituted a civil action in the High Court, case no. HC 1413/2002, claiming Sawyer’s eviction from the farm and holding over damages in the sum of $27 778 per day. After entering appearance to defend the action, Sawyer filed a plea in bar, alleging that the matter was res judicata.

17. On 14 February 2002, in case no. HC 1431/2002, an urgent chamber application filed by Sawyer, the High Court, by consent, granted an order interdicting the Registrar of Deeds from cancelling the Deed of Transfer executed in Sawyer’s favour, pending the consolidation, hearing and determination of a number of cases between the parties.

18. On 22 February 2002 Sawyer filed a court application in the High Court, case no. HC 1787/2002, seeking the rescission of the default judgment granted against him on 10 January 2002 in case no. HC 9558/2000 when his court application was dismissed for want of prosecution.

19. On 25 February 2002 Sawyer filed an urgent chamber application in the High Court, case no. HC 1788/2002, seeking the consolidation of the following matters so that they would be heard together as case no. HC 10536/2000 – HC 6582/2000, HC 8261/2000, HC 9558/2000, HC 9559/2000, HC 1413/2002, HC 1431/2002 and HC 1787/2002. Thereafter, on 4 March 2002, the learned judge who heard the urgent chamber application consolidated only four of the seven matters and heard them on 10 May 2002. The cases which were consolidated are – HC 8261/2000, HC 9559/2000, HC 1413/2002 and HC 1787/2002. Regrettably, there is nothing in the record indicating why case no. HC 6582/2000 and case no. HC 9558/2000 were not included in the consolidation order. It may very well be that the learned judge overlooked including them, or did not consider it necessary to specifically mention them in the order because they were incorporated in case no. HC 9559/2000 and case no. HC 1787/2002 by reference, their files being reference files in those cases.

20. Nevertheless, the files in both cases were before the learned judge in the court a quo, as part of case no. HC 10536/2000, and the issues in both of them were extensively canvassed by the parties in the affidavits filed by them and, obviously, at the hearing of the consolidated matters. In addition, it is clear from a perusal of the opposing affidavits filed by Chioza in case no. HC 9559/2000 that he understood that application to be an application involving the rescission of the default judgment granted in case no. HC 6582/2000. Accordingly, he argued that Sawyer was in wilful default when he did not file opposing papers in case no. HC 6582/2000. In any event, when the various cases were consolidated, the intention was to bring to finality, once and for all, the cases still outstanding. That is what the learned judge did. In my view, neither party was prejudiced by that approach.

As already stated, the learned judge determined all the cases before her in Sawyer’s favour. I now wish to consider whether that was correct.

CASE NO. HC 6582/2000

This is the case which prompted the filing of several chamber applications and court applications in the High Court by the parties to this appeal, after the disputes between them had been put to rest by this Court in Agson Mafuta Chioza v John Lewis Sawyer supra.

It was an urgent chamber application filed in the High Court by Chioza on 13 June 2000 seeking a provisional order calling upon Sawyer to show cause why the transfer of the farm to him, which had been effected on 18 May 2000, should not be cancelled. The provisional order was granted on 15 June 2000.

The factual background was as follows. When Chioza refused to sign the relevant documents in order to transfer the farm to Sawyer in terms of the order issued in case no. HC 4787/98 on 3 March 1999, the obligation to do so fell on the Deputy Sheriff. He in turn granted a power of attorney to Sawyer’s lawyers authorising them to sign the documents and effect transfer of the farm to their client. That was on 30 March 2000.

On 31 March 2000 Chioza visited the Deputy Sheriff at his offices and informed him - (a) that he had not refused to sign the documents transferring the farm to Sawyer, but had refused to sign documents transferring the farm to a company nominated by Sawyer; (b) that he had not been paid the purchase price of two million dollars; and (c) that he had filed a court application in the High Court, case no. HC 4111/2000, seeking an order cancelling the sale agreement.

Believing what Chioza had told him, the Deputy Sheriff immediately telephoned Sawyer’s lawyers and informed them that he was withdrawing his signature on the power of attorney and transfer papers. He confirmed that in writing on 3 April 2000, and requested Sawyer’s lawyers to return the signed documents to him. That request was ignored.

Thereafter, on 18 May 2000 Sawyer’s lawyers used the power of attorney and transfer documents signed by the Deputy Sheriff to transfer the farm to their client in accordance with the order issued in case no. HC 4787/98. When Chioza became aware of the transfer, he filed an urgent chamber application in the High Court, case no. HC 6582/2000, on 13 June 2000, seeking a provisional order calling upon Sawyer to show cause why the Deed of Transfer executed in his favour should not be cancelled. He alleged that the farm had been fraudulently transferred to Sawyer because Sawyer’s lawyers had used a power of attorney issued to them by the Deputy Sheriff when they knew that the Deputy Sheriff had withdrawn his signature. As already stated, the provisional order sought was granted on 15 June 2000, and was confirmed on 23 August 2000 in circumstances already set out in this judgment.

Quite clearly, the urgent chamber application was devoid of merit. Chioza had deliberately misled the Deputy Sheriff when he knew the true facts in the matter. He was under a legal obligation to transfer the farm to Sawyer in terms of the order issued in case no. HC 4787/98, and payment to him of the sum of two million dollars had already been secured by means of a bank guarantee. By filing the urgent chamber application he hoped to block the transfer and thereby delay the inevitable transfer of the farm.

In any event, the Deputy Sheriff had no power to withdraw his signature on the power of attorney and transfer documents. In terms of the order issued in case no. HC 4787/98, he was obliged to transfer the farm to Sawyer as Chioza had refused to do so. He was not at liberty to do otherwise. In addition, having signed the documents, he was functus officio and could not undo what he had done in compliance with a court order by which he was still bound.

In the circumstances, there was no legal basis for the order sought by Chioza in the urgent chamber application. As a result, the application should not have been granted.

That, in fact, is the end of the matter. All subsequent applications based on the default judgment granted in the urgent chamber application, therefore, fall away. Nevertheless, I shall consider them and briefly comment on them.

CASE NO. HC 9558/2000

This is a court application filed by Sawyer in the High Court seeking a rescission of the default judgment granted against him when the provisional order issued in case no. HC 6582/2000 was confirmed on 23 August 2000. The circumstances in which Sawyer’s lawyers did not file affidavits opposing the confirmation of the provisional order have already been set out in this judgment.

The basic reason was that when Chioza’s court application in case no. HC 4111/2000 was dismissed, they did not think that Chioza would pursue case no. HC 6582/2000, and had been given that impression by Chioza’s former lawyer, because the relief sought in both cases had the same effect. In fact, they wrote to Chioza’s new lawyers saying so, and requesting them to consent to an extension of time within which to file Sawyer’s affidavit opposing the confirmation of the provisional order. Chioza’s lawyers did not reply to that letter, but instead set the matter down for the confirmation of the provisional order on 23 August 2000 without notifying Sawyer’s lawyers.

In the circumstances, Sawyer gave a reasonable and satisfactory explanation for his default. In addition, the urgent chamber application was devoid of merit, as already indicated. Accordingly, the default judgment was properly rescinded.

CASE NO. HC 9559/2000

This is an urgent chamber application filed in the High Court by Sawyer seeking a provisional order calling upon Chioza to show cause why the cancellation of the transfer of the farm to him (i.e. Sawyer), which had been ordered in case no. HC 6582/2000, should not be stayed. The provisional order sought was granted on 13 September 2000.

This is one of the matters determined by the learned judge in the court a quo. She confirmed the provisional order and interdicted the Registrar of Deeds from cancelling the Deed of Transfer executed in Sawyer’s favour, thereby in effect putting to rest case no. HC 6582/2000.

In my view, that decision is correct. As already indicated, case no. HC 6582/2000 had no merit and should not have been instituted.

CASE NO. HC 1413/2002

This is a civil action instituted in the High Court and in which a summons was issued on behalf of Chioza on 12 February 2002. In it Chioza claimed Sawyer’s eviction from the farm and holding over damages in the sum of $27 778 per day.

After entering appearance to defend the action, Sawyer filed a plea in bar, alleging that the matter was res judicata. The learned judge in the court a quo upheld the plea and dismissed the action. In my view, the learned judge correctly determined the matter.

There can be no question that since Sawyer exercised the option to purchase the farm in accordance with the order issued in case no. HC 4787/98, he ceased to be a tenant. That was in July or August 1999. Thereafter, he became the purchaser of the farm, despite Chioza’s repeated attempts to reverse the legal position. Sawyer’s right to the transfer of the farm was finally settled by this Court in Agson Mafuta Chioza v John Lewis Sawyer supra on 11 January 2001. The matter is, therefore, res judicata.

CASE NO. HC 1787/2002

This is a court application which was filed in the High Court on 22 February 2002 by Sawyer, seeking the rescission of the default judgment granted against him on 10 January 2002 in case no. HC 9558/2000, a chamber application seeking the dismissal of his court application in case no. HC 9558/2000 for want of prosecution.

The learned judge found that the explanation given by Sawyer for his default constituted good and sufficient cause for the relief sought. Accordingly, she rescinded the default judgment.

Sawyer’s explanation for his default was that when the chamber application was served on his lawyers, the lawyer handling his case was on leave, and the lawyer who was supposed to handle her cases whilst she was on leave did not do so because he mis-interpreted the nature of the application. He thought that it was an urgent chamber application in respect of which he would later be notified of the date of hearing by the Registrar of the High Court. Accordingly, he returned the file to the secretary of his colleague who was away on leave. An affidavit from the lawyer concerned, setting out the reason why the application was not opposed, was annexed to Sawyer’s founding affidavit.

Commenting on Sawyer’s explanation for the default, the learned judge had this to say:

“Having considered the reason for the non-opposition by the applicant and the background to the litigation between the parties, it is my view that the applicant has shown good and sufficient cause for the rescission sought. While his legal practitioners were not as efficient and well organised as expected of them, the explanation for the non-action is reasonable, and the history of the litigation between the parties reveals that he does have a bona fide defence to the claims by the first respondent.”

I entirely agree with those comments. In any event, I am not prepared to say that the learned judge did not exercise her judicial discretion properly. Furthermore, it was conceded by counsel for the appellant that the decision in this matter was not appealable.

CASE NO. HC 8261/2000

This is a court application filed in the High Court by Sawyer on 27 July 2000, seeking an order barring Chioza from instituting any court proceedings against him in respect of the farm without the leave of the court having been granted. It had nothing to do with the default judgment granted in case no. HC 6582/2000. The application was opposed, but the learned judge granted the order sought. In my view, that decision is unassailable.

As this Court stated in Agson Mafuta Chioza v John Lewis Sawyer supra at p 6 of the cyclostyled judgment:

“The long history of this case indicates that the appellant has gone to great lengths to unlawfully frustrate the respondent in the transfer of the farm. He has told untruths in his affidavits, fabricated issues, commenced and sustained hopeless suits and generally acted unlawfully. This Court’s displeasure at his actions is reflected in the order of costs awarded.”

Those comments apply to the present appeal with equal force.

Finally, before concluding this judgment I would like to state why, just before the hearing of the appeal, we granted an application by counsel for the first respondent for the condonation of the late filing of his heads of argument. The main reason was that we accepted counsel’s explanation that he had been briefed late. His instructing legal practitioner, who filed the written application for condonation, averred in his affidavit that he had briefed counsel late because, prior to briefing him, he had attempted to brief other advocates who had declined to accept the brief because of the large number of files involved. He added that by the time he approached counsel it was already late. Accordingly, the application for condonation was granted.

In the circumstances, the appeal is dismissed with costs on the legal practitioner and client scale.

CHEDA JA: I agree.

GWAUNZA JA: I agree.

Manase & Manase, appellant's legal practitioners

Gollop & Blank, first respondent's legal practitioners