5
HH 366-24
HCH 2237/24
MUPAMOMBE HOUSING CO-OPERATIVE SOCIETY LIMITED
versus
MUPAMOMBE HOUSING PROJECT
and
EXAVIER CHIBASA
and
MUNASHE CHIDYAMAZANA
and
FINANCIAL MIRIRAI
and
NAISON NAISON
and
ANTONY MAPINDANI
and
PETRONELLA MAHOYO
and
PHAINOS CHITONGO
and
KENNEDY PARIDZIRA
and
CHIDO FARAWO
and
MUNYARADZI KAJOKOTO
HIGH COURT OF ZIMBABWE
MUNANGATI-MANONGWA J
HARARE, 6 June & 23 August 2024
Urgent Chamber Application
B Magogo with C Mahlangu, for the applicant
Adv A Y Saunyama with B Bherebhende, for the 1st, 3rd and 4th respondents’
MUNANGATI-MANONGWA J: The applicant herein brought an urgent chamber application for stay of execution pending determination of a r 29 motion for rescission of default judgment. The respondents herein raised eight (8) preliminary points. This court finds all the points lacking in merit and dismisses all of them. The basis for such dismissal is contained within the body of the judgment. Suffice to say, despite several pronouncements by this court and the Supreme Court that a preliminary point should only be taken when it has merit and is likely to dispose off the matter (see Telecel Zimbabwe v Portraz & Ors HH 446/15) legal practitioners continue to raise numerous points in limine which do not dispose of a matter thereby wasting the court’s time and putting their adversaries to unnecessary waste of resources as they fend off baseless objections. This practice must simply stop. It is time that these courts consider penalizing legal practitioners who raise numerous preliminary points which have no merit and are meant to sideline the main issues and avoid the determination of matters on merit. In a worst-case scenario, a legal practitioner must be put to task as to why costs de bonis propriis should not be ordered against them. It is seldom the litigants who bring up these objections but the legal practitioners themselves.
The background facts to this case are as follows: The first respondent came into existence in 2002 as a housing scheme. Its primary objective was to provide accommodation to members of the public service but, it ended up also accommodating individuals of the non-civil service. The Government ceded a piece of land known as Mupamombe, Ingezi, Kadoma to the first respondent with a total number of 846 stands situated eight kilometers from Kadoma CBD in the Ngezi residential area.
It is the applicant’s case that the first respondent was governed by a Constitution and later mutated upon its registration as a cooperative in terms of the Cooperative Societies Act [Chapter 24:05] on 13 May 2019 resulting in its present existence as the applicant. It states that the registration was facilitated by the second and third respondents who were the then Executive Committee members of the applicant and one Elmon Mahaye who is the current treasurer. Resultantly, a battle for custodianship of the piece of land emanated between the applicant and first respondent resulting in a series of multiple court applications. It prompted an urgent chamber application by the first respondent on 6 July 2018 under HCH 10206/18 after which a default judgment was entered in its favor against the fifth to eleventh respondents. The default judgement barred the fifth to eleventh respondents from collecting any funds for and on behalf of the applicant, further interdicting them from making any bank transactions as well as compelling them to respect and cooperate with the new Committee of the first respondent and to allow transparency and recording of all transactions.
On 9 November 2018, a provisional order was granted against the former committee led by the fifth respondent which directed that the activities of the first respondent ought to be formalized, but the final order is not confirmed to date. In March 2024, almost six years later, all other respondents excluding the seventh and tenth respondents purported to enter into a deed of settlement which resulted in an Order by Consent which according to the applicant was entered fraudulently. The applicant alleges that the signatories to the deed of settlement lacked mandate to act as such. The order by consent was aimed at discharging the provisional order granted in November 2018 as the term of office of the Executive Committee which benefited from the interim order had expired.
As the legal battle intensified, on 26 July 2023 the first respondent obtained an order in its favour against the applicant under case number HC 3527/23 to the effect that; the applicant and the first respondent are separate distinct entities, declared the first respondent as the bona fide owner of the land and barred the applicant from selling residential stands under the housing scheme project. In a bid to try to solve the legal puzzle, through the consent of the applicant and the first respondent, an order by consent under case number HCH 6134/23 was obtained which stayed execution of the order under case number HC 3527/23 till the matter for rescission of default judgment is determined.
The present application was facilitated by an Order by Consent which was obtained on 10 May 2024 under case number HCH 10206/18 by the second and fourth respondents in the absence of the applicant who believes is an interested party to the matter. The effects of the aforesaid order by consent as per the applicant discharges the provisional order granted in favour of the applicant sometime in 2018. Further it is the applicant’s contention that the order violates an extant order which barred the first respondent from acting as a separate and distinct entity from the applicant pending an application for rescission which will be determined in due course. The applicant avers it has never been saved with that order and only became aware of it on 14 May 2024. It then did not waste time in defending and asserting its rights, by filing an application for rescission of the alleged fraudulently obtained under case number HCH 2221/24.
On the other hand, the applicant further avers that it is in possession of an extent order in its favour that prohibits the respondent from acting as a separate entity from the applicant as well as prohibits third and fourth respondents from selling stands in Mupamombe, Ingezi, Kadoma. The applicant states that it is not a distinct and separate entity from the first respondent and maintains that the said stands are under its control and administration. The applicant mantains that this urgent application has been prompted by the third and fourth respondents’ current conduct of inviting members in various WhatsApp groups to purchase residential stands under the control of applicant from them without the authority of the applicant. The applicant avers that such conduct if not interdicted, exhibit high risk of double allocations to unsuspecting members of the public and applicant’s members. The applicant learnt that the respondents have since written to the Local Authority seeking to be recognized as the legitimate leadership of the applicant despite that the applicant awaits the validity of the very order the respondents intend to effectuate.
In opposition, the respondents maintained that the applicant and the first respondent are separate distinct entities. The respondents raised several preliminary points which the court despite the order in which they were raised dealt with them as follows:
Applicant has sued deceased persons.
Application is fatally defective.
Contempt of court
The supporting affidavit of Exavier Chibasa is not properly before the court.
Material falsehoods.
Material dispute of facts.
Applicant sought incompetent relief.
Matter is not urgent.
The first preliminary point raised was to the effect that the applicant sued the seventh and the tenth respondents who are deceased. The respondents aver that it is a legal impropriety that one cites and sues a deceased person. The applicant conceded in its answering affidavit that the two aforementioned respondents are indeed deceased. That being the case, the applicant should not have cited the seventh and tenth respondents in their individual capacity as it appears in the preamble of the Deed of Settlement that they are deceased. The position of the law in this regard was clearly articulated in Nyandoro & Anor v Nyandoro & Ors 2008 (2) ZLR 219 p 222-223C where KUDYA J aptly restated that whether testate or interstate, an executor either testamentary or dative must be appointed who occupies the position of a legal representative of the of the deceased who can likewise sue or be sued on behalf of the estate. The deceased respondents are not represented by any executor hence can not be said to be before the court. That being the case, the seventh and the tenth respondents were struck off. Their absence as participants does not render the application defective as the other respondents remain parties to the application. The preliminary point is thus dismissed.
On the second preliminary point, the respondents allege that the application is fatally defective on the basis that the applicant is blowing hot and cold by claiming to be both the applicant and the first respondent. They state that if the two aforementioned parties are one, it is illogical for one to sue itself as the applicant mantains that itself and the first respondent are distinct entities hence citing the first respondent will amount to suing itself. The respondents further aver that the applicant by citing the first respondent, it is an admission that the first respondent is a separate legal persona capable of being sued in its own name. The applicant contended that this point is meritless as the question of whether the first respondent exists separately from the applicant is the bone of contention between the parties and a decisive order is yet to be given by the court. In analyzing the point raised, it is imperative to note that the order granted in case number HCH 6134/23 stayed execution of the order in HC 3527/23 until the matter for rescission is determined. As per the order in HCH 6134/23, it is common cause that the first respondent has been barred from operating as a distinct entity from the applicant. It is an extant order which ought to be adhered to (see Makombe v Munyoro and Registrar of Deeds HH 590/23). This entails that the issue of the status of the applicant and the first respondent is not a determinable issue at this particular juncture. That being the case the point in limine falls away.
The third preliminary point pertains to contempt of court. The respondents state that the applicant is in contempt of an extant court order as it alleges that the applicant openly defied the order granted on 26 July 2023 under case number HC 3527/23 which declared the applicant and the first respondents as separate distinct entities and that the first respondent is the bona fide owner of Mupamombe, Ingezi, Kadoma. The applicant contended that it is not in contempt as the order the respondents are relying on has since been stayed on 13 February 2024 in case number HCH 6134/23. In determining whether one is in contempt of court or not, the court must be satisfied that there is an extant court order which was served on the other party and that party has knowledge of what the order dictates (see Mukambirwa & Ors v Gospel of God Church International 1932 SC 8/14). Given that the order the respondents rely on was indeed stayed, the court does not see the flagrant disobedience by the applicant of the court order mentioned. That being the case, the applicant cannot prima facie be said to be in contempt of court.
Another preliminary point raised is that the applicant is not competent to approach this court. The argument was premised on the fact that the applicant violated s 21 and s 47 of the
Co-operatives and Societies Act [Chapter 24:04] when it failed to hold its first annual general meeting within three (3) months. Mr Magogo in response argued that by the virtue of the applicant being registered, the alleged non-compliance with the provisions of the Act does not take away the applicant’s corporate legal personality and its competency to approach this court. The court identifies with the applicant’s submission. Suffice that, when an entity is registered, it assumes legal personality which entitles it to sue or be sued. Failure to abide by general requirements after registration does not oust its legal personality. There exists no reason therefore why this preliminary point should not be dismissed.
Furthermore, the respondents raised another preliminary point to the effect that the applicant has not exhausted internal remedies before approaching this court. The respondents during hearing argued that the third and fourth respondents being former members of the applicant’s former Management Committee which was ousted in 2018, the dispute between them and the applicant should have been dealt with in terms of s 60 of Mupamombe Housing Cooperative Society Limited By-Laws made under Co-operative Societies Act [Chapter 24:05]. Section 60 of the By-Laws makes provision that disputes with former members of the Project should be dealt with by the Committee at first instance and upon its failure to resolve the dispute, it shall be referred to the Registrar and dealt with under Part XVI of the Cooperative Societies Act [Chapter 24:05]. The applicant argues in response that non exhaustion of internal remedies is not applicable herein given the fact that the present application is for stay of execution of an order of this court and hence only this court has jurisdiction to determine the application.
The court agrees with the applicant’s submission. It is a trite position of law that stay of execution is a civil remedy which can only be granted by a court of competent jurisdiction. Apart from the fact that the High Court has full original civil jurisdiction over all persons and over all matters in Zimbabwe except where its jurisdiction is specifically ousted, this court has authority to regulate its processes and orders hence its powers to determine an application for stay of execution. That being the case, the preliminary point has no merit and thus falls away.
The respondents further raised a preliminary point that the supporting affidavit of Exavier Chibasa is not properly before the court. This is because he is cited as the second respondent in both cases yet despite being a respondent he filed a supporting affidavit in favour of the applicant. The respondents placed reliance on Nelson Chamisa v Emmerson Mnangagwa & 24 Ors CCZ 42/18 where MALABA CJ on p 15 of the judgment has this to say:
“The court noted that the fifth, the seventh and twentieth Respondents failed to comply with the law by filing papers as Respondents that supported the court application.”
The respondents’ objection and reliance on the dictum in Nelson Chamisa case is well grounded. It is a procedural impropriety that a respondent files papers that supports the application. In this instance there is no opposition from this respondent That being the case, the affidavit of the second respondent is therefore expunged. Be that as it may, it is imperative to note that the expunged affidavit does not have any fatal implication to this application.
The preliminary point raised that there exist material disputes of facts which cannot be solved on paper does not find favour in the eyes of this court. The respondents state that the applicant made bold assertions of fraud qualifying the matter as a triable one. The alleged fraud also relates to Exavier Chibasa’s alleged signature on the Deed of Settlement which he disowned. In assessing the existence of a dispute of fact the court is drawn to MAKARAU JP’s (as she then was) sentiments in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) per 136F-G wherein it was ruled that a material dispute of fact arises when material facts alleged by the applicant are disputed and transversed by the respondents in such a manner so as to leave the court with no ready answer to the dispute in the absence of further evidence. Indeed, the court is cognisant of the fact that the dispute in the application for rescission of judgment emanates from allegations of fraud to the deed of settlement. However, that case is not the one that this court is being called to decide at this juncture. In the present case, the court having been approached to grant interim relief sought, the issue of authenticity of Xavier’s Chibasa’s signature on the Deed of Settlement is immaterial. It is a matter for determination in an application for rescission of default judgment which has already been filed and is pending before this Honourable Court.
Determining the authenticity of the alleged forged signature at the stage will be pre-empting outcome of the foregoing proceedings. That being the case, this preliminary point has been raised prematurely in these proceedings, regard being made to the fact that what the applicant seeks is an interim order for stay of execution pending final determination of the application for rescission.
The preliminary point that the application is premised on material falsehoods is dismissed as well. The respondents based their argument on three grounds which are; that the applicant was not a party to the proceedings under case number HCH 10206/18, that a lie was peddled on para 8 of the certificate of urgency that the order of 10 May 2024 discharged a provisional order granted in favor of the applicant in 2018 and lastly that the Deed of Settlement which culminated into a consent order is premised on fraud. On whether the applicant was a party to the proceedings in HC 10206/18 and whether the provisional order discharged was in favor of the applicant falls foul of the order HC 6134/23, the court finds that due to disagreements vis the mutation of the Mupamombe project to a registered entity it cannot be said with certainty that there are material falsehoods moreso where applicant challenges the deed of settlement. Both entities have been to court and the applicant has an order in its favour and remains an interested party in HC10206/18. It cannot be said that the application is based on falsehoods. This preliminary point lacks merit and is dismissed.
It was also brought to the attention of the court that the applicant’s affidavit is insufficient on two grounds: that it cited order of 10 May 2024 by CHITAPI J and failed to attach and provide full details thereof and that the cause of action is not fully set out in the founding affidavit hence the application ought to fall on that basis. The respondents relied on Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H) at 70C. The applicant submitted that the order was later on attached on p 47 of the record and that details of the case number provided are sufficient and cannot render the affidavit fatally defective. It is the court’s finding that furnishing of details of the order and not necessarily attaching the order itself is not fatal. In any case the applicants later attached the order which renders the point raised insignificant.
On the second leg of enquiry on the above-mentioned point, the court finds that the point is ill thought. In deciding whether the applicant’s affidavit failed to fully set out the cause of action, the court is guided by the authority in Silonda v Nkomo SC 6/22 where KUDYA JA had this to say:
“The law on what constitutes a cause of action is settled. A cause of action is simply a factual conspectus, the existence of which entitles one person to obtain from the court a remedy against another person. In other words, it is an entire set of facts upon which the relief sought stands.”
In casu every fact necessary is clearly stated in the applicant’s founding affidavit. The facts which triggered this application are well articulated in the applicant’s founding affidavit. The applicant clearly stated that the respondents upon obtaining an Order by Consent premised on a fraudulent deed of settlement is attempting to act upon it by disposing stands parading as the owners while in actual sense the issue of who owns Mupamombe Housing Scheme is still pending in this Honourable Court. It is upon this background that the applicant’s relief rests. This preliminary point cannot be upheld as it is devoid of merit.
The preliminary point raised that the applicants sought an incompetent relief is premised on two reasons; that the order granted in HC 10206/18 is a declaratory order which cannot be stayed as per the sentiments in Kika v Malaba & Anor HH 287/21 and that applicant is not a party to the case it sought to stay as the order legitimizes leadership of the first respondent which does not concern the applicant. It is an elementary principle of law that a declarator cannot be stayed. It is the court’s finding that the order granted in HC 10206/18 is not purely a declarator as it has consequential relief which has the capacity to be stayed. The applicants cannot be said to have sought an incompetent relief as it seeks to stay an order which might have a legal effect to it, suffice to state that the matter for rescission of the default judgment is still pending before the courts. The respondents by trying to dispose of stands is in defiance of order HC 6134/23 which barred them from acting as a separate distinct entity from the applicant as far as the battle for the administration of the stand is concerned is a cause for concern for the applicant. In any case despite not being a party to the HC10206/18 the applicant is entitled at law to seek rescission where it has substantive interest in the subject matter concerned and it seeks to be heard. Such actions call for an application of this nature. This preliminary point cannot be upheld and hence same is dismissed.
The respondents averred that the matter is not urgent. Respondents state that there exists no urgency as the applicant sought to stay an order which was procured way before its coming into existence. They maintained that several orders were granted in favor of the first respondents’ elected committees to continue running its affairs, but the applicant failed to raise issues against that and did not bother to be joined as a party despite having knowledge of the proceedings which were pending for six years. In maintaining that the matter is not urgent, the respondents allege that the applicant only rushed to court in May 2024 when the committee of the third and fourth respondents with the addition of other people was confirmed through a final order.
In response the applicant argued that the matter is urgent. It avers that upon receiving the order of 10 May 2024 on 14 May 2024, it did not waste time but acted with haste and approached the court on 21 May 2024 trying to legally rectify the effects of the order thereof. The applicant further contended that it hurriedly approached the court even before the process of execution which it seeks to pre-empt had been fully activated by the respondents who perceive the first respondent as a separate entity from the applicant despite on order barring them to parade as such.
In assessing whether the matter is urgent or not the court relies on Kuvarega v Registrar
General & Anor 1998, where CHATIKOBO J stated that:
“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at any time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been delay.”
This court finds that the applicant acted with urgency when it became aware of the order that has necessitated this application. The applicant reacted within seven days of having knowledge of the order of 10 May 2024. There was no delay at all by the applicant in springing into action. As the issue of who bears custodial and administrative rights to the stands in Mupamombe, Ingezi, Kadoma is still to be determined, any action by the third and fourth respondents to dispose off the stands in WhatsApp groups required urgent action to bar such activity. The aforementioned respondents’ actions as articulated in the founding affidavit required swift action as the applicants could not be expected to fold their hands and watch the third and fourth respondents dispose of stands of the housing scheme that applicant claims to own. Given the aforegoing, the court finds that the matter is urgent and hence the preliminary point falls away.
All the preliminary points having been dismissed, the court therefore proceeds to determine the application on merits.
On Merits
The respondents aver that stay of execution should not be granted because the application for rescission has no prospects of success on the following grounds:
Applicant sued deceased persons.
Applicant does not meet the requirements for rescission of judgment under r 29 of the High Court Rules.
The applicant failed to state on the cover of the application specifically which subsection of r 29 of the High Court Rules it relies on.
The order of 10 May 2024 had nothing to do with the applicant as it had to do with the leadership of the first respondent without affecting the leadership of the applicant.
The application for rescission is premised on an affidavit by Exavier Chibasa which is not properly before the court.
Applicant seeks rescission of a default judgment which was an order by consent not default.
Per contra, the applicant contended that there exist prospects of success on merits on the pending application for rescission given that the Deed of Settlement culminating in the default judgment is premised on fraud. It maintains that the application for rescission will succeed as the order in question was granted in error and was motivated by material non-disclosure. It states that any prejudice which may be suffered by stay of execution may be cured through an appropriate order on costs.
As for the above specifically stated points, the first one pertaining to the applicant having sued deceased persons has already been dealt with under preliminary points. As stated before, suing deceased persons on its own does not render the application fatally defective as the other respondents remain parties in the proceedings. In any case the deceased’s names were struck off. Pertaining to failure to state the exact subrule the applicant relies on, on the cover of the application such failure to mention the exact subrule cannot render the application fatal. In such circumstances the court is guided by contents of the affidavits on which subrule the application is founded on although for certainty it is advisable to cite the full rule. On the issue raised that the order by consent has nothing to do with the applicant, the court has already made a finding that the applicant has substantial interest in the matter. This issue was dealt with under preliminary points with this court concluding that the applicant has legal basis to make this application. In any case, the applicant by claiming that it mutated from the first respondent qualifies it to be an affected party as far as the issues pertaining to the Mupamombe Housing Scheme is concerned.
Equally the issue about the affidavit of Mr Chibisa was aptly dealt with under preliminary points with the court making a finding to expunge it with no fatal consequences to the application. On the last point, although the order legitimizes the leadership of the first respondent, what motivated the applicant to seek recourse from the courts is that the respondents are attempting to act in defiance of an extant order in case number HC 6134/23 by deposing off housing stands in which the applicant has an interest. The issue of ownership of the housing scheme is still under challenge especially with the case pertaining to rescission of judgment still to be determined. The applicant’s contention that the balance of convenience weighs heavily in its favour regard being to the fact that the respondents have taken a spirited attempt to exercise the very rights which are subject to contestation in pending proceedings before this court which may result in looming eternal prejudice has merit.
In an application for stay of execution pending determination of rescission of a default judgment, a party must prove that real and substantial justice so demands that stay be granted (see Cohen v Cohen (1) 1979 ZLR 184 (G) at 187) and that the pending application for rescission of judgment has prospects of success. Given that the application for rescission is pending before the courts suffice to mention that the respondents are already attempting to dispose of the stands before the main matter is determined, the balance of convenience weighs heavily in favour of the applicants. The allegations of fraud raised in the application for rescission of judgment are such that the court may make a finding in favour of the applicant. Given the aforementioned circumstance if stay is not granted, the respondents might dispose of the stands to innocent third parties. If the application for rescission succeeds, and the stands have already been disposed of by the respondents, complications will ensue as third parties will be part of the matrix let alone double allocations all of which could be averted by granting of this application.
Mounting of applications and obtaining numerous court orders some without the knowledge of concerned parties will never bring finality to this dispute unless all issues are compositely brought before the courts with the participation of all concerned parties. Lawyers need to be warned and the court draws the dictum in Kauma & Anor v Vambe & Anor HH 883/22 where MUCHAWA J had this to say:
“Litigants should not play hide and seek with the courts. Lawyers should not act like hired guns. They are officers of the court. Litigation is not a game of wits. It is a serious and scientific process to resolve disputes among individuals and to settle problems in the society. The search for truth is paramount. It is a duty thrust upon everyone. ………..”
Due to the existence of probabilities that the application for rescission may succeed, this is a proper case where the court in exercising its discretion may grant stay of execution. Regard being made to the facts of the matter, any conduct to temper with the housing scheme has to be barred pending determination of the application for rescission. The balance of convenience therefore weighs heavily in favour of the applicant. Suffice to state that if stay is granted and rescission of default judgment is not successful, the respondents will not suffer any prejudice whatsoever. Accordingly, the application for stay of execution succeeds so does the prayer for an interim interdict subject to amendments thereto.
It is thus ordered as follows:
Final Order Sought
THAT you show cause to this Honourable Court why a final order should not be made in the following terms:
Pending the determination of the application for rescission of judgment:
1st,2nd,3rd,4th,5th,6th,8th,9th,and 11th respondents be and are hereby barred from executing upon the order in case No HC10206/18.
2nd,3rd,4th,5th,6th,8th,9th and 11th Respondents be and are hereby interdicted from holding themselves out as the legitimate leadership of either Applicant or 1st Respondent and from in any way running Applicant or first Respondent’s affairs.
1st 2nd,3rd,4th,5th,6th,8th,9th and 11th Respondents relying on the order in case No HC10206/18 be and are hereby barred whether by their own acts or through the acts of their employees, agents, proxies or privies or any other person from selling and distributing Housing Stands in a settlement known as Mupamombe, Ingezi Kadoma.
That the 1st2nd,3rd,4th,5th,6th,8th,9th and 11th respondents pay the costs of this application jointly and severally the one paying the other to be absolved.
Interim order granted
Pending the determination of this matter the applicant is granted an interim order in the following terms:
Execution of the Court Order entered by this court in case number HCH10206/2018 dated 10th May 2024 be and is hereby stayed.
1st,2nd,3rd,4th,5th,6th,8th,9th and 11th Respondents are hereby barred whether by their own acts or through the acts of their employees, agents, proxies or privies or any other person from selling and distributing Housing Stands in a settlement known as Mupamombe, Ingezi, Kadoma.
Service of the order
The Sheriff shall serve this interim order on Respondents.
MUNANGATI-MANONGWA J:………………………………..
Ruzvidzo & Mahlangu Attorneys, applicant’s legal practitioners
Messrs Bherebhende Law Chambers, first, third & fourth respondents’ legal practitioners