MATHONSI
J: The
applicant is an incorporation based in Kwekwe and so is the second
respondent. In HC2978/15 the applicant sued out a summons seeking an
order declaring null and void the cession of certain Stands in Kwekwe
to the second respondent and for the restoration of all rights and
interest in those Stands to it on the pain of attorney and client
costs.
When
the second respondent entered appearance, the applicant brought this
applicant for summary judgment on the basis that it has not a bona
fide
defence and that appearance was entered for purposes of delay only.
The
application is opposed by the second respondent while the other two
respondents, Irvine Manhire, who executed the cession from Tetrach
Investments (Pvt) Ltd, an apparently non-existent entity, and the
third respondent which is the local authority owning the Stands in
question, stayed far away from these proceedings.
The
facts are that on 15 February 2011 Tetrach Investments (Pvt) Ltd
passed a resolution purporting to be a company, to sell Stand numbers
6544, 6533, 6534, 6535 and 6536 Kwekwe Township, Kwekwe to the second
respondent for a price of $35,000-00. In the same resolution signed
by a “company secretary,” it authorized Irvine Manhire to sign
the power of attorney to pass transfer and to sign all other
documents in connection with the sale.
It
has not been explained what position Irvine Manhire held but Ms
Mugabe
who appeared on behalf of the applicant admitted that he was, at the
material time, employed by the applicant and not by Tetrach
Investments (Pvt) Ltd which she also admitted did not exist. So, if
ever there was an entity in existence at the time, it was the
applicant, which also employed Irvine Manhire.
It
is also worth noting here that the deponent of the founding affidavit
is one Charles Manhire who shares a surname with Irvine and that the
resolution dated 23 November 2015 giving him authority to represent
the applicant in legal proceedings is written on a letterhead which
gives the applicant's name only as “Tetrach.” It does not have
“Enterprises (Pvt) Ltd” or “Investments (Pvt) Ltd.”
It
is also significant that the signature of the secretary on the latest
resolution of the applicant resembles that appended on the resolution
of 15 February 2011 allowing Irvine Manhire to cede the Stands. The
aid of a handwriting expert is not required for one to see that the
secretary of the applicant who signed the resolution on 15 February
2011 is the same secretary of the applicant.
Whatever
case, it is common cause that in February 2011 the Stands were
registered in the name of Tetrach Investment (Pvt) Ltd at the offices
of the third respondent and that they were ceded to the second
respondent in February 2011 as confirmed by a letter from the third
respondent dated 18 September 2015. The second and third respondents
and Tetrach Investments (Pvt) Ltd signed the cession agreement then
with the latter represented by Irvine Manhire, who is said to be now
in Dubai.
Having
observed that the third respondent's rates account was in the name
of the applicant even after the cession, it is not clear when the
third respondent's records were changed to reflect the applicant as
the holder of title although it is admitted by the applicant that a
correction was made at some stage, the applicant then instituted
these proceedings.
Without
bothering to explain why its official, the first respondent,
alienated the properties and how he is related to Charles Manhire the
deponent of the founding affidavit, the applicant says that when he
signed the cession agreement as he did, the first respondent was not
authorized by the lawful owner, the applicant. For that reason the
cession was unlawful and fraudulent. The applicant insists that the
cession was a nullity for want of authority on the part of the first
respondent and also by reason that the applicant's name was
erroneously cited in the third respondent's records “which error
was corrected a long time ago.” The applicant adds that “no
legal persona answering to the names of Tetrach Investments (Pvt) Ltd
exists.”
Now,
in my view this is a trifle.
It
is even more so when considering that Charles Manhire the deponent
says he is “one of the directors of the applicant.” He does not
take the court into confidence as to who the other directors are and
deliberately does not disclose the status of Irvine in the company.
Other than saying that Irvine did not have authority, the applicant's
papers are completely silent about this individual. The applicant
trifles with the court when it seeks to found a cause of action on
such vagueness and the fact that there was an error at the municipal
offices in recording its second name. For that reason, even though it
is one of its officials who executed the cession, it should be
allowed to reclaim the properties without even explaining what became
of the purchase price.
Life
can never be that easy.
Summary
judgment is an extra ordinary remedy in the sense that it denies a
party who has shown a desire to contest a claim, an opportunity to do
so. It is a procedure conceived so that:
“a
mala
fide
defendant might summarily be denied, except under onerous conditions,
the benefit of the fundamental principle of audi
alteram partem
--- when all the proposed defences to the plaintiff's claim are
unarguable, both in fact and in law ----.”
(Chrisma
v Stutchberry
1973 (1) RLR 277).
Conversely,
in order to succeed in defeating a summary judgment application the
respondent must set out a bona
fide
defence by alleging facts which, if established at the trial, would
entitle him to succeed;
Kingstons
Ltd v
L
D Ineson (Pvt) Ltd
2006 (1) ZLR 451 (S) 458 F – G; Jena
v Nechipote
1986 (1) ZLR 29 (S).
In
my view, that is what the second respondent has done.
It
has shown that an official of the applicant sold the properties to it
and signed the agreement to pass the right, title and interest in the
properties to it. This has been confirmed by the municipality which
superintends the properties.
The
applicant seems to be hiding behind a finger, not a very effective
instrument for cover, and is obviously taking advantage of an
insignificant error in records to try and reverse what is, on the
face of it, a genuine sale.
There
must have been a reason for the parties to record the name of the
seller as Tetrach Investments (Pvt) Ltd when it did not exist. It is
either because the second respondent's due diligence search had
revealed that the records showed it as the title holder, or the
applicant's official wanted to mislead. Whichever way the facts
point to the existence of triable issues as the second respondent's
case is clearly arguable.
In
the result, it is ordered that:
1.
The application for summary judgment is hereby dismissed.
2.
The applicant shall bear the second respondent's costs.
Lunga
Gonese Attorneys,
applicant's legal practitioners
Messrs
Hore & Partners,
2nd
respondent's legal practitioners
