INTRODUCTION
The parties have been in and out of the courts embroiled in ferocious battles over the ownership, possession, and occupation of a certain piece of property commonly known as the Remainder of Subdivision C of Plot 6 of Lots 190, 191, 193, 194 and 195 of Highlands Estate of Welmoed also known as Number 41 Ridgeway North, Highlands, Harare (the property).
The Supreme Court has since finally resolved the ownership dispute in the respondent's favour in judgment number SC24-22. The court order granted the respondent the right to vindicate its property from the applicant who is in occupation of its property against its will.
In a bid to enforce its court given right of eviction, the respondent successfully sued the applicant for eviction in the High Court (the court a quo). On 29 November 2023, the court a quo issued an eviction order in case number HC666/23 under judgment number HH637-23.
The applicant has now filed an urgent chamber application for an interim interdict to stay execution pending the determination of his appeal against the court a quo's judgment.
The application is opposed....,.
I therefore turn to determine the application on the merits.
FACTUAL BACKGROUND
The parties are now entangled in a vicious contest over the possession and occupation of the property which was fraudulently sold to him while it was under judicial attachment sometime in September 2017. The respondent subsequently purchased the property at a valid Sheriff's sale in circumstances where the respondent had already obtained defective title. He obtained tainted title to the property on 5 May 2022 and has been in unlawful occupation of the property from 2020 to date.
He claims to have made massive developments on the property to the tune of US$1,500,000 (one and a half million United States dollars) over a period spanning 5 years. On that score, he resists eviction, claiming an improvement lien over the developments he allegedly effected on the property.
The applicant has lost the battle for ownership of the property.
He now concedes, that, the Supreme Court correctly determined that the respondent is the lawful owner of the property. Despite having put up a brave fight, he has now capitulated and states, at paragraph 16 of his founding affidavit, that:
“16. I very much accept and abide by the judgment of this court that determined, that, my home is owned by the respondent.”
The concession is however being made in circumstances where there has been a concerted, relentless attack on the correctness and integrity of the impugned, but correct, Supreme Court judgment without any remorse or recant from the applicant.
It is common cause, that, on 19 September 2019, CHAREWA J issued a provisional order interdicting the applicant from proceeding with the demolition of old structures and construction of new ones on the property. Notwithstanding the interdict, the applicant, in contempt of the court order, proceeded with the prohibited conduct.
The respondent is now the undisputed owner of the hitherto disputed property. The dispute has now whittled down to possession and occupation rather than ownership of the property.
The ownership dispute has since been resolved to finality by the courts in favour of the respondent at the highest level.
In a bid to execute its right of vindication, the respondent applied for, and obtained, an eviction order from the court a quo dated 29 November 2023. The applicant seeks to block the respondent from executing the court a quo's writ of execution in the interim, pending the determination of his appeal to this Court. He seeks the following relief:
“IT IS ORDERED THAT:
1. Pending the determination of the appeal in SC666/23, para 4 of the operative part of the High Court judgment No. HH637–23, handed down by the Honorable Justice TAKUVA on 29th November 2023 be and is hereby set aside.
2. Pending the determination of the appeal in SC666/23, the respondents be and are hereby interdicted from evicting the applicant from his home, known as the Remainder of subdivision C of Plot 6 of lots 190, 191, 193, 194 and 195 of Highlands Estate, of Welmoed, also known as Ridgeway North, Highlands, Harare.
3. There shall be no order as to costs.”
THE APPLICANT'S CASE
The applicant's acceptance of the correctness of the judgment conferring ownership on the respondent does not, however, bring the contest between the parties to finality. The applicant now seeks to resist eviction from the property on the basis of an improvement lien against the respondent.
His case is in this respect, captured at paragraphs 17 to 19 of his founding affidavit, where he states that:
“17. My present dispute with the respondent relates to its right to evict me from my home in the circumstances of this matter. Firstly, I challenge the right of eviction without paying me for the huge improvements I effected to the property. I believe that I have an improvement lien which gives me the right to remain in occupation until the respondent has compensated me for the improvements.
18. Secondly, it is my further belief that it is unconstitutional, being an infringement of the property right in section 71(3) of the Constitution, for the High Court to order my eviction without the respondent compensating me for the improvements.
19. Thirdly, I also believe that a house is involved here; section 74 of the Constitution, properly construed, gives me an automatic stay of eviction once I appeal to a higher court against an order of eviction. In this regard, the High Court's order, allowing eviction pending appeal, runs contrary to the Constitution.”
THE RESPONDENT'S CASE
The respondent basically resists the application for stay of execution on the premises, that, the applicant is a mala fide illegal occupier of its property. Its further contention is that the applicant effected the alleged improvements in flagrant violation of an extant court order to the contrary.
It further questions the legality and value of the structures put up by the applicant on the property.
CONCESSION AND ISSUES FOR DETERMINATION
During the course of the hearing, counsel for the applicant made the vital concession, that, the applicant's alleged developments were made against an extant court order prohibiting such developments.
The concession has the effect of defining and narrowing the issues on the applicant's prospects of success on appeal.
The concession resolves the dispute as to whether the applicant is a bona fide possessor or occupier of the property.
On the basis of the concession made by counsel for the applicant, I hold, that, the applicant is a mala fide possessor or occupier of the property. That finding is consistent with the Supreme Court's finding in SC24-22 in which it came to the same conclusion, that, the applicant was not a bona fide buyer of the disputed property.
The sole issue which then remains for determination is whether the applicant, being a mala fide possessor or occupier, has reasonable prospects of retaining occupation of the respondent's property on appeal....,.
The applicant's further complaint is that the court a quo erred in ordering his eviction despite the fact, that, his appeal to the Supreme Court suspended execution of the judgment appealed against.
While it is correct, that, at common law, it is a rule of practice that an appeal against a judgment of a Superior Court suspends the decision appealed against, that rule of practice can be ousted by statute.
As correctly pointed out by counsel for the respondent, Rule 44(2) of the High Court (Commercial Division) Rules 2020 ousts the common law position. It provides that:
“(2) An appeal from the decision of the court shall not suspend the operation of the decision appealed against, unless the court or judge directs otherwise on application by the aggrieved party.”
From the pleadings, it is however, not clear whether or not TAKUVA J was sitting in the Commercial Court when she delivered her judgment in this matter.
If she was, Rule 44 of the Commercial Court rules puts paid to the applicant's complaint that his appeal to the Supreme Court had suspended the judgment appealed against as I did not hear counsel for the applicant to advance any counter argument.
Rule 44 of the High Court (Commercial Division) Rules 2020 is exclusive to the High Court Commercial Division.
If she was not sitting in the Commercial Division, it however makes no difference because, as we have already seen, in paragraph 5 above, the court a quo had inherent jurisdiction to control its judgment.
In Vengesai & Ors v Zimbabwe Glass Industries Ltd 1998 (2) ZLR 593 (H)…, the court held that:
“In stating the common law, CORBETT JA referred to the automatic stay of execution upon the noting of an appeal, as a rule of practice, subject to the court's discretion. That is not a firm rule of law, but, a long established practice regarded as generally binding, subject to the court's discretion.
Moreover, the authorities cited by CORBETT JA are authorities relevant to appeals from Superior courts.
The reference to this rule, as a rule of practice, shows the acceptance by the learned Judge of Appeal of the analysis by JENSSEN J. This analysis leads inexorably to the conclusion, that, the grant or withholding of a stay of execution, is, at common law, a matter of discretion reserved to a court in which such a discretion is imposed.”…,.
The High Court, being a court of unlimited inherent jurisdiction, it follows, that, the court a quo had inherent jurisdiction to grant or not to grant stay of execution in the exercise of its discretion.
