SIMWAL INVESTMENTS (PRIVATE) LIMITED

versus

JEROME OKEKE

and

THE REGISTRAR OF DEEDS

and

THE SHERIFF FOR ZIMBABWE

and

ZINYENGERE RUPAPA LEGAL PRACTITIONERS

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 18 JUNE AND 8 JULY 2020

URGENT CHAMBER APPLICATION

T Magwaliba, for applicant

S Hashiti, for 1st and 4th respondents

No appearance, for 2nd and 3rd respondents

TAGU J: This is an urgent chamber application for stay of execution of a default judgment granted against the Applicant in favour of the first respondent under Case Number HC 3299/10 on the 25th of June 2014.

Historical background

The Applicant is the registered owner of an immovable property described as Stand Number 585, Quinnington Township of Lot 1A Quinnington Township registered under Certificate of Title No. 656/2003 (the immovable property). On the 26th of April 2010 and 7th of May 2010 respectively, the Applicant and the first respondent signed an Agreement of Sale whereby the former sold the immovable property to the latter. The parties subsequently got into a dispute over the purchase and sale of the immovable property. On the 25th of June 2014 the first respondent then obtained a default judgment in his favour under reference Case Number HC 3299/10 wherein it was ordered that the property be transferred to him. On the 18th of July 2014 the Applicant applied for rescission of the default judgment aforesaid under reference Case No. HC 5943/14. The application for rescission of the default judgment was dismissed by this Honourable Court on the 15th of January 2020. Aggrieved by the dismissal of the application for rescission the Applicant noted an appeal to the Supreme Court under reference Case No. 30/2020. The appeal is still pending before that Honourable Court.

The Applicant submits that pending the resolution of the parties’ dispute the Applicant had an agreement with the first respondent to the effect that the first respondent would not seek to transfer the immovable property to himself pending finalization of the appeal stemming from the application for rescission of default judgment. The Applicant had on the 18th of July 2014 simultaneously filed an application for rescission of default judgment under HC 5943/14 together with the application for stay of execution under Case HC 6048/14. The first respondent who was then represented by the Law Firm of Mbidzo, Muchadehama & Makoni had initially opposed both applications but later persisted with the opposition for rescission of default judgment only. For close to 6 years i.e between July 2014 up to the present day the first respondent never sought to execute on the default judgment in keeping with the parties’ understanding.

However, on the 28th of February 2020 the Applicant’s legal practitioner Mr. Obey Matizanadzo received a telephone call from Mr. Theophillus Gambe of Gambe Law Group with the information that the first respondent had communicated to Mr. Gambe that the first respondent was initiating the process to transfer the immovable property to himself and that Mr. Gambe will be attending to the conveyancing in respect of the property. Following a series of correspondences between the parties Mr. Gambe confirmed to the Applicant’s legal practitioners that Mr. Gambe would abide by the earlier understanding which endured for 6 years that transfer would be held in abeyance pending resolution of the matter. This was the position that was to be communicated to the 3rd respondent at a meeting proposed to be held on the 31st of March 2020. However, the President of the Republic of Zimbabwe declared a state of disaster in connection with the Covid-19 virus which was accompanied by a lockdown of the country effective from the 30th of March 2020.

On the 3rd of June 2020 Mr. Gambe telephoned the Applicant’s legal practitioners to attend a meeting with the third respondent. At that meeting the first respondent’s legal practitioners confirmed that they were instructed by the first respondent to proceed with the transfer of the property. The 3rd respondent also confirmed that he had been instructed to effect the transfer without waiting for the outcome of the appeal under SC 30/2020. Mr. Gambe then furnished correspondence/letter allegedly authored by the first respondent dated the 27th of January 2020. It downed on the Applicant’s legal practitioners that the signature on the alleged letter was different from that of the first respondent. Series of letters showed that it was an officer from the 4th respondent, Zinyengere Rupapa Legal Practitioners who was signing the said letters with intent to defraud the Applicant.  Further enquiries and investigations then revealed that the first respondent has not been in the country since September 2014 to date and could not have authored the letter dated 27th January 2020. This jolted the Applicant to file the present application seeking the following provisional order.

                “INTERIM RELIEF/ PROVISIONAL ORDER GRANTED

Pending the return day:

IT IS HEREBY ORDERED THAT

1. The 3rd Respondent be and is hereby interdicted from taking any steps to transfer to the 1st Respondent, and the 2nd Respondent be and is hereby interdicted from registering transfer to the 1st Respondent in, certain piece of land situate in the District of Salisbury, called Stand Number 585, Quinnington Township of Lot 1A Quinnington Township, held under Certificate of Registered Title No. 656/2003.

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court, why a final Order should not be made in the following terms:

IT IS ORDERED THAT:

1. The provisional order be and is hereby confirmed; and
2. Pending finalization of the appeal instituted by the Applicant under Reference Case No. SC 30/2020:

1. Execution of the judgment of the High Court dated the 25tgh of June 2014 under reference Case No. HC 3299/2010 be and is hereby stayed; and
2. The 2nd Respondent is directed to place a caveat on Certificate of Registered Title No. 656/2003 in respect of certain piece of land called Stand Number 585, Quinnington Township, and
3. The 1st Respondent be and is hereby interdicted from disposing, mortgaging or in any way alienating or encumbering the property; and
4. In the event of transfer of the property, being certain piece of land called Stand Number 585, Quinnington Township of Lot 1A Quinnington Township having been effected prior to the grant of this order, the 2nd Respondent be and is hereby directed to cancel such registration of transfer, and to reinstate Certificate of Registered Title No. 656/2003 in favour of the Applicant. 

1. The 1st Respondent shall pay the costs of this application.

SERVICE OF PROVISIONAL ORDER

The service of the Provisional Order with the supporting urgent chamber application and annexures shall be affected on all the Respondents by the Applicant’s Legal Practitioners or alternatively by the Assistant Sheriff as follows:

By Hand delivery.”

Second and third respondents did not file any Notice of Opposition nor did they attend the court hearing despite that they were served with the application. It is assumed that they intent to abide by the decision of this Honourable court. In their Notice of Opposition the first and 4th respondents raised three points in limine. The first point in limine is that the matter is not urgent. The second point in limine is that the deponent has no authority to institute the current proceedings on behalf of the Applicant. The third and last point in limine is that of lis pendes.

At the hearing of this application the parties agreed that the applicant should address the court first despite that the first and fourth respondents had taken some points in limine. In addressing the court the applicant also took some points in limine. The first point in limine was centred on challenging the admissibility of first respondent JEROME OKEKE’s affidavit. The bone of contention was that a copy had been produced and the said JEROME OKEKE was not present in the country. The applicant’s counsel submitted that it was not properly before the court as it was not properly authenticated and must be struck off the record. The second point in limine was that there was an affidavit filed on the day of the hearing titled “1st Respondent’s Supplementary Notice of Opposition”. Applicant’s contention was that there was nothing in our rules called supplementary notice of opposition. It submitted that it is irregular and ought to be struck out.

Indeed JEROME OKEKE’s affidavit was not original. The counsel representing Jerome Okeke indicated that the original was still at DHL and would be availed later as there were problems in collecting it due to the Covid-19 pandemic. The court found it difficult to accept such an affidavit though the counsel was at liberty to address the court since it was an urgent chamber application. As regards the second point in limine raised by the counsel for the applicant my view is that once an applicant has filed an answering affidavit there is a joinder of issues. No other affidavit can be filed without the leave of the court. To allow it would be prejudicial to the applicant who cannot answer to the supplementary opposition affidavit. The ordinary rule with regard to affidavits is that three sets of affidavits are allowed in pleadings, namely, supporting affidavits, answering affidavits and replying affidavits. The court may in its discretion permit the filing of further affidavits in terms of rule 235 of the High Court Rules 1971. It is only in exceptional circumstances or if the court considers such a course advisable that a fourth set of affidavits may be received. This can be done after an application for leave to file such affidavit has been made providing a satisfactory explanation for the failure to put the information at an earlier stage and for the late filing of the affidavit. In casu the affidavit in issue was filed after the applicant had filed its answering affidavit and it was done without the leave of the court. Such affidavit is improperly before the court and must be struck off the record. For this contention see Industry Pension Fund v United Refineries Limited & Ors 2011 (1) ZLR 98.          

MATTER NOT URGENT

The contention by the first and fourth respondents is that the urgency in this matter is self- created. The argument being that the need to act only arose when an application to stay execution was filed under HC 6048/14 which is still pending. Further, it was submitted that the applicant became aware of the first respondent’s intentions of having the property transferred to its name through the letters dated 28th February 2020. On the other hand the applicant submitted that the need to act only arose on the 3rd of June 2020 when parties attended a meeting at the Sheriff’s office and OKEKE’s representative insisted on transfer contrary to an earlier agreement to wait until the court case on rescission and or appeal has been resolved.

My analysis of the matter is that indeed the dispute in question arose as far back as 2014. In between certain processes were taking place such as application for rescission, stay of execution and filing of an appeal under SC30/20. I was convinced that what jolted the applicant to file the present application is the events of the 3 March 2020 when the representative of the first respondent insisted on transferring the property to first respondent in the face of a pending Supreme Court challenge. If indeed there was no understanding between the parties to keep transfer in abeyance pending outcome of the court processes a million dollar question would be why did the first respondent also take 6 years to transfer the property to its name from the date the application for rescission was dismissed? I therefore find that the requirements of urgency have been established.

AUTHORITY OF APPLICANT’S DEPONENT

The first and fourth respondents’ contention is that the first respondent has no contractual obligations with the deponent. The agreement of sale was entered between applicant represented by Mr. Kevin Rasai Mukohwa and the first respondent on the 7th of May 2010. The deponent bought a shelf company from Mr. Kelvin Rasai Mukohwa on the 12th of May 2010 without the building and the first respondent had already bought the immovable property belonging to the applicant. Their argument is that the deponent has no right to make this affidavit and make averments to issues or matters he was never a part of. Applicant’s remedy lies with the erstwhile shareholders of the applicant and not first respondent.

The deponent to the applicant’s founding affidavit is YOUSUF MUHAMMAD. He stated that he is a director of the applicant and was duly authorized to represent the applicant and to depose to this affidavit in these proceedings as appears from a Board Resolution of the applicant annexed as Annexure “A”. He stated that the facts he was attesting to were within his personal knowledge and to the best of his information and belief. Where he did not have personal knowledge of the facts he verified the accuracy of the same to the best of his ability. He did not say he was a director and that he signed the agreement. In my view a Company acts through its directors irrespective of when the director joined the company. See Madzivire & Ors v Zvarivadza & Ors 2006 (1) 514. As long as the director is properly authorized through a company resolution to represent it, he has the necessary authority. In casu there is a resolution authorizing this deponent to act on behalf of the company. The point in limine therefore has no merit.

LIS PENDES

Indeed there was an application for stay of execution under HC 6048/14 that was later withdrawn in June 2020. That application was not an urgent chamber application. In any case SC 30/2020 was not yet in existence. So the issue of lis pendens does not arise. This point is summarily dismissed.

AD MERITS

Applicant’s application is for stay of execution pending finalization of appeal under SC 30/2020. The applicant has since filed its heads in respect of that appeal. The respondents have not yet filed their heads. In my view this appeal will be heard soon. It would be prejudicial to the applicant should execution be allowed and the appeal succeeds. The applicant would suffer harm if the seeming fraudulent scheme to proceed with transfer succeeds as it will certainly do if execution of the default judgment in reference Case No. HC 5943/14 is not stayed pending resolution of the appeal under reference Case No. SC 30/2020.  From the submissions made before this court and the documents filed of record the Applicant has just ascertained that the first respondent or an unknown party impersonating himself to be the first respondent has instructed the 3rd respondent to proceed with transfer of the immovable property to the 1st respondent. However, such instruction is contrary to the applicant and first respondent’s earlier agreement to stay execution of the default judgment in 1st respondent’s favour which endured for the past 6 or so years. The instruction for transfer of the immovable property seems to be an elaborate fraud by an officer in the 1st respondent’s law firm Zinyengere Rupaya, calculated to render academic the decision of the Honourable Court in the appeal pending under reference Case No. SC 30/2020.  The balance of convenience favours that the execution be stayed pending the outcome of the appeal. For these reasons I will grant the provisional order.

IT IS ORDERED THAT

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final Order should not be made in the following terms:

1. The provisional order be and is hereby confirmed, and
2. Pending finalization of the appeal instituted by the Applicant under Reference Case Nao. SC 30/2020:

1. Execution of the judgment of the High Court dated the 25th of June 2014 under Reference Case No. HC 3299/2010 be and is hereby stayed and
2. The 2nd Respondent is directed to place a caveat on Certificate of Registered Title No. 656/2003 in respect of certain piece of land called Stand Number 585, Quinnington Township of Lot 1A Quinnington Township , and
3. The 1st Respondent be and is hereby interdicted from disposing, mortgaging or in any way alienating or encumbering the property, and
4. In the event of transfer of the property, being certain piece of land called Stand Number 585, Quinnington Township of Lot 1A Quinnington Township having been effected prior to the grant of this order, the 2nd Respondent be and is hereby directed to cancel such registration of transfer, and to reinstate Certificate of Registered Title No. 656/2003 in favour of the Applicant.

1. The 1st Respondent shall pay the costs of this application.        

INTERIM RELIEF/ PROVISIONAL ORDER GRANTED

Pending the return day-

1. The 3rd Respondent be and is hereby interdicted from taking any steps to transfer to the 1st Respondent, and the 3nd Respondent be and is hereby interdicted from registering transfer to the 1st Respondent in, certain piece of land situate in the District of Salisbury, called Stand Number 585, Quinnington Township of Lot 1A Quinnington Township, held under Certificate of Registered Title No. 656/2003.

SERVICE OF PROVISIONAL ORDER

The service of the Provisional Order with the supporting urgent chamber application and annexures shall be affected on all Respondents by Applicant’s Legal Practitioners or alternatively by the Assistant Sheriff as follows:

By Hand delivery.

Matizanadzo & Warhurst, applicant’s legal practitioners

Zinyengere Rupaya, 1st and 4th respondents’ legal practitioners