MATHONSI J: In this application the applicants
seek the consolidation of case numbers HC 2335/08; HC 2078/08 and 2079/08 so
that they are dealt with and disposed of at the same time. They also seek the dismissal and discharge of
a provisional order issued by the Gweru Magistrates Courts on 29 October 2008 under
Case No. 1965/02. They would also like
the dismissal of cases that have been brought against them while at the same
time asking for a number of orders against various individuals including the
eviction of 2nd and 3rd Respondents from House No. 6460
Mkoba 18 Gweru.
The applicants are unrepresented and did not
appear to have had the benefit of legal counsel through out this sordid affair
which has seen the filing of not less than 8 matters none of which has come
anywhere near bringing the matter to finality.
A lot of ground has been covered in volumes and volumes of paperwork and
direction less applications, which, apart from increasing the work load for the
court, will never benefit anyone.
Briefly, the applicants entered into a sale
agreement with one Joyce Severino on 24 October 2001 for the purchase of stand
6460 Mkoba North Gweru. Severino, later
sold the same property to 2nd and 3rd Respondents who
took occupation. After some spirited
litigation at the Gweru Magistrates Court spanning from April 2002 to 2008, the
applicants obtained an eviction order against Joyce Severino which they
attempted to execute without success.
They could not execute the order because the
occupants of the house were now the 2nd and 3rd
Respondents who were not party to the eviction proceedings applicants had
instituted against Severino. Instead 2nd
and 3rd Respondents quickly obtained a provisional order at the
Gweru Magistrate court which was confirmed allowing them to occupy the disputed
house without hindrance.
Thereafter 2nd and 3rd
Respondents instituted summons action against applicants and Severino under
Case No. HC 2078/08 seeking a declaration that they are the lawful owners of
the disputed house and that they be allowed to take transfer. That action has been opposed by the
applicants while Severino has consented to judgment. The applicants have filed a plea in bar which
they have not set down for hearing in accordance with the rules. They have therefore pleaded over on the
merits but the pleadings are yet to be completed.
In case No. HC 2079/08 2nd and 3rd
Respondents filed an urgent application and obtained a provisional order
suspending the execution of the magistrates court eviction writ pending the
finalisation of the summons action in HC 2078/08. The confirmation of that provisional order
has been opposed by the applicants leaving that matter in limbo as well. Rule
92 of the High Court rules dealing with consolidation of actions provides:
''Where separate actions have been instituted
and it appears to the court convenient to do so, it may, upon the application
of any party there to and after notice to all interested parties, make an order
consolidating such actions, whereupon –
(a) The said actions shall proceed as one
action;
(b) The court may make any order which it
considers proper with regard to the further procedure, and may give one judgment
disposing of all matters in dispute in the said actions''
Looking at the orders sought by the applicant
it is apparent that they are labouring under the mistaken belief that the court
can consolidate anything and then proceed without more, to dispose of matters
even without following the laid down procedure.
The applicant seek a consolidation of a magistrates' court matter in
matters pending in this court. That is
clearly not possible as the 2 courts are mutually exclusive. In any event magistrates court matter number
1965/02 in which a provisional order the applicants' have taken issue with was
granted, was withdrawn by the 2nd and 3rd Respondents in
October 2008 and the order there in abandoned.
There is therefore nothing left to consolidate.
Case No. HC 2335/08 is a review application
filed by the applicants seeking to review and set aside the provisional order
of the 1st Respondent made in 2008.
As already stated that matter was withdrawn and the order
abandoned. Therefore the review
application has been rendered irrelevant and should properly be withdrawn. It cannot be consolidated with any other
matter.
The only remaining matters are HC 2078/08 which
is a summons action still pending and HC 2079/08 where a provisional order
protecting 2nd and 3rd Respondents' occupation of the
disputed house was granted and its confirmation has been opposed by the
applicants. Nothing will be served by
consolidating those 2 matters and if the parties genuinely want to bring the
matter to finality they should agree to either the confirmation or discharge of
the provisional order in HC 2079/08 and strive to set down the main action for
trial.
That way the respective rights of the parties
will be determined once and for all instead of perpetuating the proliferation
of litigation which does not even attempt to bring the matter to finality. Having said that, I must point out that the
applicants' problems stem from their lack of representation. They are strongly advised to seek legal
representation if this dispute is the move forward instead of continuously
filing documentation which is not only repetitive and at times meaningless but
also unduly voluminous.
The application is clearly without merit and it
is accordingly dismissed with costs.
Francis and Spiwe Nyamadzawo the 1st 2nd
applicants
The Clerk of Civil Court Gweru, the 1st respondent
Messrs Sansole & Senda,for 2nd & 3rd
respondents
Mrs Joyce Severino, for 4th respondent
The Messenger of Court in Gweru, the 5th respondent
The Registrar of Deeds in
Bulawayo, the 6th respondent
