This is an appeal against a judgment of the High Court dismissing an application, firstly, for a declaration of rights in respect of an immovable property known as No.15 Lanark Rd, Avondale, Harare and, secondly, for an interdict against the eviction of the appellant from the said premises....,.I turn now ...
This is an appeal against a judgment of the High Court dismissing an application, firstly, for a declaration of rights in respect of an immovable property known as No.15 Lanark Rd, Avondale, Harare and, secondly, for an interdict against the eviction of the appellant from the said premises....,.
I turn now to the merits of the appeal itself.
The facts surrounding this dispute are convoluted, and, I will endeavour to simplify them.
At the centre of the dispute is control of the Trauma Centre. Although the parties involved in the dispute refer to the ownership of the same, in this matter, the court is seized only with the question of which of the parties is legally entitled to the physical occupation and possession of the same.
The “Trauma Centre” is a state of the art hospital which is situated at 15 Lanark Road in Harare. It is common cause, that, for a considerable period, the hospital leased the premises from the administrators of the estate of the late Rosa Alhadeff.
On 30 March 2010, the ownership of the land on which the hospital is situate was transferred to Streamsleigh Investments (Pvt) Ltd, the appellant herein.
The appellant is a private company which is duly registered in Zimbabwe in accordance with the laws of the country. Its shareholding is at the core of the dispute between the parties, which dispute is however not the issue presently for determination before this court. Its directors, upon registration, were Wessel Roets and Zarina Dudhia. The latter was also the Principal Officer of the company.
The respondent is a private company duly registered in accordance with the laws of Zimbabwe.
On 30 January 2008, the respondent concluded a management agreement with CA Meifco Limited, which is a company registered in accordance with the laws of Mauritius, for the provision of certain specified services by CA Meifico, to the respondent, at what is colloquially referred to as the “Trauma Centre”.
The agreement was to run for a period of five years from the effective date.
A management team comprising Dr Vivek Solanki, Marco Cerunschi, and Wessels Roets was to be responsible for the overall management of the Trauma Centre. CA Meifco was responsible for the financial management of the hospital, including the procurement of medication.
On an undisclosed date, CA Meifco changed its name to VIP Healthcare Solutions. Although it was not specifically mentioned in the agreement, CA Meifico was a wholly owned subsidiary of African Medical Investments Plc (“AMI Plc”).
On 26 April 2010, African Medical Investments Plc (AMI Plc) executed a Deed of Trust in terms of which The Streamsleigh Trust was created. Jeremy Darroll Stewart Sanford, Anis Abdulkarim Omar, and Gary Maitland Crosland were named as Trustees.
On 28 April 2010, Streamsleigh Investments (Private) Limited issued a share certificate in terms of which The Streamsleigh Trust was recorded as the holder of 100 fully paid shares of USD0.001 each. On the same date, Jeremy Darroll Stewart Sanford was appointed as one of the directors of the company in addition to Zarina Dudhia and Wessel Roets.
On 28 September 2011, the respondent filed an application in the Magistrates Court Harare. The deponent to the affidavit was Dr Vivek Solanki (“Solanki”) who described himself as the founder and director of the respondent company. In the application, African Medical Investments Plc (AMI Plc) was cited as the sole respondent.
In the founding affidavit, Dr Vivek Solanki alleged that he had incorporated Autoband Investments (Pvt) Ltd (the respondent in this appeal), and that, pursuant thereto he had been leasing the premises at No.15 Lanark Road for about fifteen (15) years. He averred further, that, he had been approached by officers of African Medical Investments Plc (AMI Plc) with a proposal that Autoband Investments enter into a joint venture agreement with the former, and, the negotiations had culminated in the parties executing a management agreement in terms of which AMI Plc was to purchase Autoband Investments.
He averred that the agreement had fallen through, and, subsequent to that, the employees of African Medical Investments Plc (AMI Plc) had unlawfully evicted the employees of Autoband Investments from No.15 Lanark Rd during his absence from the country.
In the affidavit, Dr Vivek Solanki alleged that the employees of Autoband Investments had been intimidated by people who posed as police officers, and who later turned out to be bogus.
It was further alleged in the affidavit, that, African Medical Investments Plc (AMI Plc) had taken the law into its hands and evicted Autoband Investments, and its employees, illegally, from the premises that it had been leasing for over fifteen (15) years.
The draft order attached to the application sought the eviction of anyone seeking occupation through African Medical Investments Plc (AMI Plc).
The application was opposed by the appellant.
The deponent to the opposing affidavit, one Peter J Annesley, described himself as “the Chief Operating Officer of Streamsleigh Investments (Private) Limited” a duly registered company which trades under the name of AMI Hospital Harare.
It seems to have escaped the notice of Peter J. Annesley and his legal practitioners, that, the appellant had not been cited as a party to the application and that it could not challenge the application unless it was joined as a party.
In his response to the opposing affidavit, Dr Vivek Solanki claimed that Streamsleigh Investments (Pvt) Ltd was a company in which he had an interest and he put into issue the status of Peter J. Annesley in the said company.
Presented with these facts, the learned magistrate, who heard the application, found that the appellant's occupation of the premises was questionable in the absence of proof to show that the respondent had been removed from the same lawfully.
The magistrate, as a consequence, found that the respondent had been dispossessed unlawfully as there was no court order prior to its eviction. The magistrate then ruled, that, the respondent was entitled to an order for restoration, and, consequent thereto, issued the following order:
“The respondent, its officials, and anyone claiming through them and grant (sic) restored occupation to the Applicant 7 days upon delivery of judgment.”
An appeal was noted against the judgment of the magistrate, and, in response, the respondent sought and obtained an order for leave to execute pending appeal.
Consequent thereto, Autoband Investments obtained a writ of eviction.
Being the registered owner of the premises in question, the appellant considered that its position had been compromised by the order.
It had to protect its occupation, and, as a result, it approached the High Court on a certificate of urgency in which it sought a Provisional Order in the following terms:
“TERMS OF INTERIM RELIEF SOUGHT
IT IS ORDERED THAT:
1. In the absence of any direct order against the Applicant for its eviction from Stand No.2924 Salisbury Township of Salisbury Township Lands also known as No.15 Lanark Road, Belgravia, Harare, the Respondent be and is hereby interdicted from utilizing the eviction order in Case No. MC16435/11 to evict the Applicant from the premises set out hereabove.
2. The Respondent be and is hereby interdicted from utilizing any relief obtained in Case Nos. HC619/11 and 2125/11 against the Applicant.
3. The Respondent be and is hereby ordered to pay the costs of this application.
TERMS OF FINAL ORDER SOUGHT
IT IS DECLARED THAT:
1. The eviction order granted in Case MC16435/11 between the Respondent and African Medical Investments Plc is of no force, effect or application as against Applicant and its occupation of the premises known as Stand No.2924 Salisbury Township of Salisbury Township Lands also known as No.15 Lanark Road, Belgravia, Harare.
2. Any relief granted in Case Nos. HC619/11 and 2125/11 be and are hereby declared to be of no force, effect, or application as against Applicant in respect of its occupation of their (sic) premises known as Stand No. 2924 Salisbury Township of Salisbury Township Lands also known as No.15 Lanark Road, Belgravia, Harare.
3. That, the Respondent pay the costs of this application.”
The respondent opposed the application, and, in turn, the appellant filed an answering affidavit.
The learned judge before whom the urgent chamber application was placed, understandably, faced with the apparent disputes, was unable to issue an order in terms of the interim relief being sought, and, instead, issued a provisional order, by consent, which preserved the rights of the parties pending the hearing and determination of the application for relief in terms of the final order sought.
He also gave directions for the filing of further affidavits by the parties as well as heads of argument.
The matter was subsequently set down before a different judge, who, after hearing counsel, dismissed the application and discharged the provisional order. Following upon the discharge, the appellant was ordered to pay punitive costs.
It is against that judgment that the appellant has noted an appeal to this Court.
It was contended on behalf of the appellant, that, the critical issue before the High Court was whether or not it was African Medical Investments Plc (AMI Plc) or Streamsleigh Investments (Pvt) Ltd which was in occupation of the premises at the time that the eviction order was granted.
I agree that this was the critical issue for resolution by the court a quo in the determination of the application for the declaratur and consequential relief sought by the appellant.
The learned judge in the High Court was persuaded to accept, that, the finding by the magistrate, as to who was in possession of No.15 Lanark Rd, was correct, and that consequent thereto, the respondent had been illegally dispossessed of its occupation of the same.
This is what the learned judge had to say at pp 3 to 4 of the cyclostyled judgment:
“I am extremely concerned with the approach being advocated by the applicant in this case. It wants this court to grant a declaratory order to subvert a process that started in the lower court, in which it actively participated and lost. I see nothing but a stout (sic) effort to indulge in forum shopping and the High Court must not be used to subvert court process emanating from the lower court for no good cause. I agree with the forceful submissions made by Adv Uriri, that, in these circumstances, a declaratory order would not be competent.
Before concluding this matter, I wish to observe that the applicant has placed so much emphasis on the ownership of Stand 2924 Salisbury Township of Salisbury Township Lands (No.15 Lanark Road, Belgravia, Harare). The application for eviction had nothing to do with the ownership of the property, but, was restricted to possessory rights of the applicant in the lower court.
Again, this issue was dealt by the lower court in its judgement referred to above.
The lower court made a specific finding that the now respondent had been unlawfully dispossessed of the property. The applicant exercised its right of appeal against the decision of the lower court, and, certainly, it was not competent for the applicant to apply for a declaratory order to short circuit the appeal process.”
The learned judge in the court a quo concluded, that, the magistrate was correct in finding that the respondent had been unlawfully dispossessed by the appellant.
It is clear that the judge based his decision on a number of documents placed before him by the parties. A perusal of the documents reveals the following:
On 13 December 2010, the appellant wrote to the City of Harare requesting that an inspection be carried out at No.15 Lanark Rd. The inspection was carried out on 15 December 2010, as confirmed by a letter written to the appellant by that department on 20 December 2010.
Ultimately, the Stand was registered as a hospital.
On 15 April 2011, the Civil Aviation Authority of Zimbabwe allocated the appellant an account for the use of facilities at its premises for navigation, landing, parking and other apron fees.
On 1 March 2011, the Medicine Control Authority of Zimbabwe issued a hospital pharmacy licence to the appellant.
Lastly, on 27 January 2012, the City of Harare issued a Municipal Licence to the appellant for a coffee shop.
Indeed, as stated by the learned judge in the court a quo, there are documents in the form of statements of accounts apparently generated by African Medical Investments t/a Streamsleigh Investments Plc addressed to a number of individuals who appear to be patients or recipients of services.
In my view, the documents in question do not confirm that the occupant of the premises was African Medical Investments Plc (AMl Plc). They confirm, instead, that, a subsidiary of AMI Plc was running the hospital, as indicated by the statutory licences and permissions granted in the name of the appellant.
