DISTRIBUTABLE
(42)
Judgment
No. SC. 50/06
Civil
Appeal No. 203/06
ELSIDDIGE
OMAR AHMAD v THE AFRICAN MUSLIM AGENCY
SUPREME
COURT OF ZIMBABWE
MALABA
JA, GWAUNZA JA & GARWE JA
HARARE
OCTOBER, 9 & 13 NOVEMBER , 2006
F
Mutamangira, for the
appellant
C
Phiri, for the
respondent
GWAUNZA
JA: This is an appeal against the judgment of the High Court, in
terms of which a writ of execution against the property
of the
respondent, was set aside.
The
facts of the case are not in dispute. The appellant obtained
judgment (in the form of an arbitral award) against the respondent,
his former employer, for the payment of US$70,491.25. This was on 5
August 2005.
In
execution of this judgment the appellant obtained a writ of execution
against the property of the respondent. A vehicle belonging
to the
latter was as a result attached and sold in execution on 1 October
2005 for $1 296 986 349.66. This amount was handed over
to the
appellant. On 4 October and 7 November 2005, respectively, the
appellant accepted from the respondent further amounts of
$381 340
502.19 and $361 559 117.48. These payments brought the total paid to
the appellant to $2 039 885 969.22. It is not in
dispute that the
three payments received by the appellant, when converted to United
States dollars at the then prevailing official
exchange rates,
together came to US $70 491.25, the total judgment debt. It has not
been suggested that the appellant at any time
refused to accept
payments made in Zimbabwe dollars. The evidence before the court, in
fact, shows that his preferred currency of
payment was Zimbabwe
dollars. Firstly, in executing the judgment, the appellant chose a
method writ of execution that meant
that the money realised
from the sale of the attached property, and therefore to be paid to
him, would be in Zimbabwe currency.
Secondly, the appellant accepted
the proceeds from the sale of the attached property, and the two
subsequent cash payments from the
respondent. The amounts were all
in Zimbabwe currency.
As
further testimony of his preference for payment in Zimbabwean, rather
than United States, dollars, the appellant thereafter sought
a
further payment of $5 195 243 180.60, from the respondent. This
followed the issuance, at the appellants instance, of another
writ
of execution against the property of the respondent.
The
appellant justified this demand on the basis that the total amount
paid to him in Zimbabwe dollars should have been converted
to US
dollars using the inflated unofficial, or parallel, exchange rates.
Converted at this rate, the amounts paid would have equated
an amount
far below the judgment debt of US$70 491.25.
It was the appellants demand
for what he regarded as the balance due under the original writ of
execution, that prompted the respondent
to seek an order setting
aside the writ of execution in question. At the hearing of the
matter in the court a
quo, the appellants
legal practitioner conceded that the official exchange rates, as
presented by the respondent, were the correct
rates to be applied in
determining the total amount due to the appellant. The learned trial
judge found, correctly, that the concession
was properly made since
no authority was needed for the proposition that the governing rate
for the purpose in question was the official
rate. This was the rate
fixed from time to time by notice, order, or direction made in terms
of the Exchange Control Regulations
1996 (SI 109 of 1996).
Having determined correctly
that the correct rate to apply was the official exchange rate, the
court a quo noted
as follows:
In casu,
it is not at all clear on what basis the first respondent (now
the appellant)
and his legal practitioners, with the evidently
unabashed complicity of
the second respondent (the sheriff) purported to apply the
parallel exchange rate
of ZW94 000 to US$1 in calculating their claim
. They were clearly entitled
to do so and counsel for the first respondent was unable to
advert to any
reason whatsoever justifying their outrageous
claim.
Mr
Phiri,
for the respondent, argues that the concession by the appellants
counsel in the court a
quo, that the official
exchange rate was the correct rate to apply, meant, in fact, that the
judgment of the court a
quo
was granted by consent. That being the case, Mr Phiri
argues further, it was
not open to the appellant to appeal against such judgment.
I
find there is some merit in this argument.
The
concession by the appellants counsel, if taken to its logical
conclusion, amounted to an acknowledgement of receipt, by the
appellant, of full payment of what was due to him under the original
writ. Consequently his argument before this court, that the
payment
of a total of $2 039 885 969.22 by the respondent was improperly
made and incompetent in the circumstances is clearly
untenable.
It is significant that the appellant does not explain why he received
the payment in question if he believed it was incompetent.
Nor, in respect of the property sold in execution, does the appellant
explain why he chose to proceed by way of writ of execution
when to
do so would only have meant payment to him in Zimbabwe dollars.
I
have already outlined the circumstances that lead to the inevitable
conclusion that the appellants preferred mode of payment
was
Zimbabwean rather than US dollars. For him, against the weight of
all this evidence, to argue, as he now does, that payment
should have
been effected in US dollars is quite evidently self- contradictory,
mischievous and tantamount to an abuse of the courts
process.
It
hardly needs mentioning that had the appellant really wished the
judgment to be executed in foreign currency, he would have taken
care
to choose a method of execution that ensured this eventuality. In
other words, he is the author of his own perceived misfortune.
I should point out that while
the appellant might have had an arguable case had he, right from the
beginning, insisted in execution
in foreign currency, and had he then
met resistance in that quest from the respondent, the same cannot be
said of the circumstances
of this case, which are quite different.
I
find when all is told that the appeal has no merit and cannot
succeed.
In
the result, it is ordered as follows:
The appeal be and is hereby
dismissed with costs.
MALABA
JA: I agree.
GARWE
JA: I agree.
Mutamangira & Associates,
appellant's legal practitioners
Coghlan,
Welsh & Guest,
respondent's legal practitioners
