This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare, handed down on 9 May 2023, dismissing the first appellant's application for a declaration under case HC5989/19 and granting the first respondent's application to set aside the second respondent's decision to uplift judicial attachment on Stand 654 Pomona Township, under case HC10315/19.
Aggrieved by the decision of the court a quo, the appellants have noted the present appeal.
The Facts
The first respondent obtained an arbitral award against the first appellant in the sum of US$4,800,000 excluding interest. The award was granted on 19 March 2015.
The first appellant appealed the arbitral award, which appeal was dismissed on 11 February 2019.
The award was ultimately registered as an order of the court a quo on 26 June 2019.
A writ of execution was issued by the first respondent leading to the attachment of Stand No.654 Pomona Township held under Deed of Grant No.2884/10 (“the property”).
Thereafter, the first appellant paid the sum of RTGS $4,800,000 as the judgment debt and RTGS $1,078,040=21 as interest thereon.
Following these payments, the second respondent advised the judgment creditors (ie the first respondent) that the debt had been discharged and he was thus proceeding to remove the property from judicial attachment.
He did so through letters to the first respondent dated 21 and 25 November 2019, respectively.
The first respondent protested this move, arguing that the property should not be removed from attachment as the judgment debt had not been extinguished because the amount should be paid at the prevailing inter-bank rate between the US$ and the RTGS, and not at the rate of 1US$ to 1RTGS$.
The second respondent did not heed that advice.
It was then that the first respondent approached the court a quo, under HC10315/19, for an order setting aside the second respondent's decision to remove the property from attachment. It also sought consequential relief.
At the close of submissions, the court a quo found in favour of the first respondent who had sued, under HC10315/19, for the setting aside of the second respondent's decision to remove the property from attachment.
Under HC5989/19 the court a quo dismissed the first appellant's application for a declaration that the judgment debt be extinguished at the rate of 1:1 between the US$ and the RTGS$.
For convenience, the two applications were heard together.
The appellants appeal the decisions of the court a quo on the following grounds:
“GROUNDS OF APPEAL
1. The court a quo erred in failing to hold that the Arbitral Award dated 19 August 2015, granted in favour of the first respondent, constituted a liability affected by the provisions of section 4(1)(d) of Statutory Instrument 33 of 2019 (subsequently section 22 of the Finance Act No.2 of 2019).
2. Concomitantly, the court a quo also erred in determining that the Arbitral Award issued on the 19th of March 2015 only became effectual upon its registration on the 26th of June 2019. At law, an arbitral award constitutes a binding obligation as at the date of its grant and not its registration.
3. With respect, the court a quo also grossly misdirected itself in holding that the first appellant's RTGS payments did not fully discharge its indebtedness to the first respondent in respect of the registered arbitral award dated 19th March 2015. Such payments fully discharged what was lawfully due.
4. The court a quo also erred in determining that the second respondent had acted unlawfully in uplifting the judicial attachment on Stand 654 Pomona held under Deed of Grant 2884/10. The voiding of such uplifting was anomalous at law given that the first appellant had discharged its indebtedness, thereby obviating the continuation of execution.
5. Additionally, the court a quo erred in cancelling 'any and all' transfers effected on Stand 654 Pomona Township in circumstances where the second appellant had received title by operation of an extant Deed of Settlement and court order handed down by the court a quo under HC4528/19.
6. The court a quo also erred in ordering the advertisement and sale in execution of Stand 652 Pomona Township held under Deed of Grant No.2884/10 after the cancellation of all subsequent transfers. Such determination is anomalous, in that, after the aforesaid cancellation of subsequent transfers, the land reverts to being State land, incapable of being sold in execution.”
The appellants seek the following relief:
“1. That, the instant appeal succeeds with costs.
2. That, the order of the court a quo be set aside and be substituted with:
Case No. HC5989/19
(i) The application for a declaration order be and is hereby granted.
(ii) The liability arising from the Arbitral Award dated 19th March 2015, in favour of the first respondent, be and is hereby declared executable in RTGS dollars at the rate of one to one to the United States dollars in accordance with section 4(1)(d) of Statutory Instrument 22 of 2019.
(iii) The first respondent to pay costs of suit.
Case No. HC10315/19
(i) The application is dismissed with costs.”
The grounds of appeal raise only one issue, that is, whether the arbitral award in issue, is subject to the provisions of SI 33 of 2019 in terms of which all assets and obligations denominated in United States dollars immediately before the effective date of 22 February 2019 shall be redeemed at the rate of 1US$ to 1RTGS$.
If that question is answered in the affirmative, then, the appeal should succeed. If not, then, the appeal stands to be dismissed.
PRELIMINARY OBJECTIONS
The first respondent raised a number of preliminary objections. The objections have no merit.
(i) Firstly, it is contended that the second respondent (the Sheriff) has not paid security for costs and therefore the appeal is accordingly deemed to have been dismissed by operation of law.
(ii) Secondly, it is averred that the second respondent (the Sheriff) should have filed an appeal against the judgment granted against him and not a cross appeal, as the cross-appeal does not seek the alteration or variation of any judgment made in favour of the first and the second appellants. The cross appeal, it is argued, is consequently a nullity that ought to be struck off the roll.
(iii) Thirdly, it is contended that the second respondent (the Sheriff) cannot purport to appeal against the whole judgment of the court a quo as some parts of that judgment were not made against him, and, therefore, he has no right to appeal the whole judgment. Thus, it is argued, the Sheriff had no interest in the dismissal of the application for a declaration under HC5989/19 and cannot appeal or seek relief against the judgment of the court. Only the first and second appellants can seek relief against that judgment.
(iv) Fourthly, it is contended that the second respondent (the Sheriff) did not file opposing papers in the court a quo, and, consequently, did not participate in the proceedings before that court. The judgment against him was given in default, and, for that reason, such judgment is not appealable.
(v) Fifthly, it is alleged that the first and second appellants did not serve the Notice of Appeal upon the second respondent (the Sheriff) at all or timeously. That irregularity renders the appeal invalid, so argues the first respondent....,.
With regards the first to the fifth preliminary issues raised by the first respondent, we make the following observation:
The Sheriff is not a litigant. He is an officer of the High Court.
Section 55(1) of the High Court Act [Chapter 7:06] establishes the offices of the Registrar of the High Court and the Sheriff. It reads:
“55. Officers of High Court
(i) There shall be -
(a) A registrar of the High Court and such deputy registrars and other officers of the High Court as may be required; and
(b) For Zimbabwe, a sheriff and such additional sheriffs and assistant sheriffs as may be required; whose offices shall be public offices and shall form part of the judicial service.”
Being an officer of the court, the immunity extended to judicial officers, and other officers of the court, extends to the office of the Sheriff.
The accepted practice is that where a complaint is raised against the Sheriff, or proceedings issued against him, the Sheriff, not being a litigant, is required to issue a report informing the court and the parties to the dispute, of the facts as known to him, the actions he took, and the reasons therefor.
The Sheriff is not expected to file opposing papers and heads of arguments since he is not a party to the dispute and has no interest in the outcome of the case.
Once he has submitted his report, he will do no more than abide by the decision of the court.
As an officer of the court, no order of costs should be issued against him. Nor is he required to pay security for costs in the event that he wishes to place his report before any court, notwithstanding promises to that effect in any Notice of Appeal.
The Sheriff is there to assist the court.
It matters not what label he may give to his papers 'appeal' 'cross-appeal' or 'report' the purpose of his intervention remains the same – to appraise the Appeal Court of the contents of his report in the court a quo and to engage counsel to articulate the implications thereof.
For these reasons, we would dismiss, as we hereby do, the first to fifth preliminary points raised by the first respondent.
