BERE J: This case has been triggered by the
developments in a case involving the respondent in the Magistrates Court which
was heard and concluded in favour of the respondent on 11 October 2011. The lower court case bears reference number
MC 16435/11.
The respondent,
having succeeded in the lower court sought execution on the order
obtained. The execution process could
not proceed smoothly as the other part involved with the respondent in the
lower court appealed against the decision made thereby prompting the respondent
in the instant case to apply for leave to execute pending appeal which decision
again found favour with the lower court.
Faced with the
possibility of an imminent eviction from the property at the centre of the
dispute between the parties in the lower court, the applicant in the instant
case, despite its alleged claim of not having been party of the proceedings in
the lower court filed the instant urgent application seeking the following
interim relief as per its proposed draft order on p 320 of its papers;
"IT IS DECLARED THAT:
1. The eviction order granted by the Magistrates
court, Harare in the matter between Autoband Investment (Private) Limited t/a Trauma
Centre v African Medical Investments PLc under case number MC 16435/11 be and
is hereby declared to be of no force, effect or application as against
applicant.
2. The
respondent be and is hereby banned and interdicted from evicting or in any
other way interfering with the applicant's agents, employees, occupation and
possession of the premises known as stand number 2924 Salisbury Township of
Salisbury Township Lands situated at Number 15 Lanark Road, Belgravia, Harare
utilizing the eviction order granted in case number MC 16435/11.
3.
The respondent pays costs of this
application deboris propriis or an
attorney client scale."
So much has been
thrown in this application but I understood applicant's counsel to have raised
two fundamental issues which have prompted the applicant to seek the
declaratory order cited above.
The main thrust
of the applicant's counsel's argument is that the respondent in the instant
case has demonstrated lack of faith or confidence in this court by failing to
prosecute to finality two matters which were instituted by the respondent in this
case, viz HC 619/11 and case HC 2125/11.
Counsel's argument as expanded was that it was wrong for the respondent
to embark on forum shopping by taking the same dispute in the Magistrates Court
under case MC 16435/11. Counsel accused
the respondent of adopting a casual or lackadaisical attitude in handling the
two High Court matters.
I did not find
this argument to be compelling for basically two reasons: firstly, when the
respondent took its case for eviction to the lower court, it made a full
disclosure of the pending High Court matters in its founding affidavit. A simple perusal of the founding affidavit of
Dr Vivek Dolanki (for the applicant
in the lower court) explained in greater detail on p 57 of the consolidated
record the existence of the two High Court matters alluded to by the
applicant's counsel in the instant matter.
The affidavit lays bare why a new application for eviction was being
preferred in the Magistrates' Court despite there being two other matters
pending in the High Court. By making
such disclosures, the now applicant was given sufficient opportunity to respond
to such issues which it did on p 64-65.
The lower court must have considered these submissions before it made a
determination of the application for eviction.
Secondly, where an
applicant to proceedings initiated by application procedure demonstrates a
casual attitude in the finalisation of the proceedings, there is a procedure
laid down which the respondent can initiate to bring the proceedings to
finality to the detriment of the applicant.
Order 32 r 236 3 (a) & (b)
gives the respondent sufficient ammunition to bring litigation to finality in
such a situation. The respondent in the
two High court matters has not been proactive in finalising the two High Court
matters. In Anchor Ranging (Pvt) Ltd, I
dealt with an almost similar situation and explored the procedural approach as
perceived.
The
respondent (applicant in the Magistrates Court), having disclosed about the
two High court matters and having
explained the reasons why it was initiating a new eviction case in the lower
court cannot be condemned for so acting.
The
other argument which was raised by the applicant's counsel was that the
Magistrates' Court did not have jurisdiction to deal with the matter. I did not
take this submission seriously as the lower court addressed this issue in its
judgment as evidenced by the judgment of the lower court attached as Annexure H
on p 132 of the bound papers.
The
third argument which was also raised by the applicant's counsel was that the
application brought by the respondent in the lower court did not cite the
applicant as a party to the proceedings and therefore the intended eviction
might be targeted at the wrong and innocent party.
I
have extreme difficulties in following this argument if regard is had to
annexures VS1 - VS5 being the official documents which were alleged to have
been used by the applicant at some stage.
See pages 335 - 342 of the bound record of proceedings.
Even
if one were to assume that indeed the now respondent had targeted the wrong
party in its eviction proceedings, I find it rather strange that despite it
being fully aware of the existence of the proceedings in which it purports to
have an interest in, the applicant did not see it fit to apply for jointer, in
the lower court. An application for
jointer would have given the applicant sufficient ammunition to protect the
interest which it now seeks to protect.
Even more curious is the fact that even in all those cases which are
still pending in the High Court, the applicant has not filed for joinder.
The
failure by the applicant to formally seek for jointer in both the Magistrates
court, and the High Court, in my view casts sufficient doubt on the bona fides of its application for a declarator, more so if one
considers annexures VS1 - VS5 earlier on referred to.
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 that as nothing but a stout 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 the possessory writes of the applicant in the
lower court. Again this issue was dealt
with by the lower court in its judgment referred to above. The lower court made a specific finding that
the now respondent had been unlawfully dispossesed 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 in order to short circuit the
appeal process.
Finally,
the identity of the property in issue has never been an issue in these
proceedings and it cannot become a hot issue at the time of execution. All the parties in this case are fully aware
that the property in issue is commonly referred to as No. 15 Lanark Road,
Belgravia, Harare registered as stand No. 2924 Salisbury Township of Salisbury
Township Lands.
In
conclusion I am more than satisfied that this application was motivated by
nothing really other than to unprocedurally and unfairly interfere with a
legitimate lower court process. It is
clearly an attempt to undermine the authority of the lower court. The same arguments raised in the lower court
are being recycled in this court. This
approach is unacceptable.
COSTS
The question of costs is largely at
the discretion of the court despite what the parties desire. But the discretion of the court must be
judiciously exercised. A litigant who with his eyes open
deliberately abstains from taking corrective action or has participated in and
lost in the court a quo cannot
initiate process in the High Court in order to obstruct or circumvent the
natural consequences associated with losing a case. Such spurious litigation must be discouraged
and only a punitive order of costs would send the message loud and clear.
Consequently
the application is dismissed with costs on Attorney Client scale. Following from this decision, the provisional
order is automatically discharged.
Messrs
Mtetwa & Nyambirai, applicant's legal practitioners
Messrs Venturas & Samukange, respondent's legal
practitioners
