MATHONSI
J:
The
applicant seeks a stay of the execution of a judgement entered
against him in default on 13 January 2015 to enable him to prosecute
an application for the rescission of the default judgement sought to
be executed, he having filed the application for rescission on 16
January 2015, an application which is itself plagued by a number of
irregularities as to put to question the seriousness both the
applicant and his legal practitioner.
In
HC7281/12 the applicant was sued by the first respondent for eviction
from church premises located at Stand 5488-77th
Crescent, Glen View, Harare and related relief on the basis that he
had joined another church organisation but continued to collect tithe
from the congregation which he converts to his own use. The applicant
contested the suit maintaining that he had not resigned from the
first respondent and was therefore entitled to continue in occupation
and doing whatever it is that he does at that church.
The
matter came up for trial before this court on 13 January 2015 but
both the applicant and his legal practitioner did not attend court
resulting in judgement being granted in default. It is that judgement
which the applicant wants to have rescinded in the rescission of
judgement application he has filed. Meanwhile, as the first
respondent has issued a writ of ejectment and instructed the second
respondent to execute the writ, the applicant has made this urgent
application for a stay of execution.
The
applicant asserts that he was not in wilful default given that his
legal practitioner had been engaged at the Supreme Court at the same
time and had in fact written to the first respondent's legal
practitioners requesting that the matter be stood down to allow the
legal practitioner to complete his Supreme Court matter. The matter
was not stood down, instead default judgement was sought and granted.
The applicant states further that he had arrived in court at about
09:45hrs on the day in question only to find that the matter had
already been dealt with at 9am. There was a mix up of the time as the
applicant wallowed under “a genuine error on the time set for the
trial.” He had thought that the trial would commence at 10am. The
applicant does not state what led to the error and why he thought the
time was 10am.
On
his defence to the claim for eviction the applicant insists that his
averment that he has not resigned from his post of pastor as he
continues to discharge those duties and that he has never converted
tithe money to his own use should carry the day should the matter go
to trial. Accordingly he craves for a stay of execution aforesaid.
The
first respondent has opposed the application on the basis that the
applicant's default was wilful and that there exists no bona
fide
defence in the main action. It maintains that this application is
just but an attempt to delay the inevitable by an applicant who had
already prepared to vacate but now wants to gain more time. The
applicant and his legal practitioner were aware of the court date and
time but did nothing about it until the eleventh hour. The first
respondent disputed that the applicant was in court at 09.45hrs on 13
January 2015 because they were called three times well after that
time but did not respond. Indeed, there was no mix up on the time but
the applicant simply did not attend.
The
first respondent denied the existence of a bona
fide
defence to the claim for eviction because the applicant has aligned
himself to and joined another church organisation which pursues an
agenda contrary to the teachings and administration of the first
respondent. The applicant now collects tithe money and uses it
contrary to the instruction and procedure given by the first
respondent among other transgressions.
There
can be little doubt that both the applicant and his legal counsel
were extremely remiss in their handling of the matter prior to the
date of set down to an extent that one may be forgiven for concluding
that there was never an intention to appear in court at all. In fact,
one gets the distinct impression that whatever they did was designed
to build a case for seeking rescission of judgement in future by a
litigant with no wish to prosecute any case at all.
The
record shows that the applicant, then represented by Messrs Chingore
& Associates was served with the notice of set down on 17
December 2014. Messrs Chingore & Associates only renounced agency
on 5 January 2015 barely a week before the court date and Messrs
Makuku Law Firm assumed agency on behalf of the applicant on 9
January 2015 three days before the court date. Considering that it
was on a Friday with a weekend in between, this was at the eleventh
hour indeed. So we have a situation where the applicant was busy
changing lawyers at that late stage instead of preparing for trial.
That
is not all.
Instead
of using the weekend and whatever time they had left to prepare for
trial, Makuku Law Firm did not even bother taking instructions from
their client who also probably saw no wisdom in imparting the same. I
say this because, although they assumed agency three days before
trial, Makuku Law Firm did not engage the first respondent about
their double booking. They simply did nothing until 13 January 2015
the date of set down, when they merely wrote a letter of that date to
Robinson & Makonyere which was only delivered at 08:57 hours,
exactly three minutes before the trial was due to commence, which
reads:
“RE:
UNITED APOSTOLIC FAITH CHURCH AND D. MBURUMA HC7281/12
We
refer to the above matter. We request that the matter be stood down
as Mr Makuku handling the matter has another matter in the Supreme
Court at 9:30am. Further we intend to seek a postponement as we have
just assumed agency and wish to receive full instructions.”
I
have already stated that the applicant was preparing ground to launch
an application for the rescission of judgement. How else can one
explain the delivery of a letter giving notice of a postponement
three minutes before commencement of trial? Why did the applicant not
engage the other side earlier than that?
Assuming
for one moment that the applicant was pressed for time, a point not
borne by the evidence before me, surely he would have used other
means of communication instead of sending a letter to a lawyer who
was already in court. A phone call would have done the trick.
It
is interesting to note that Mr Makuku
was only required at the Supreme Court at 9:30am on 13 January 2015
and that the applicant himself had no excuse whatsoever for not
making it to court. To say there was a mix up and end there cannot
possibly constitute a reasonable explanation. If indeed Mr Makuku
wanted an indulgence there was nothing stopping him from attending at
the courtroom before the commencement of trial and engaging his
colleague representing the first respondent about standing down the
matter. In fact there was nothing stopping him from seeking a
postponement before Chigumba J, who was presiding, when the court sat
at 9am. He did neither and the applicant himself was nowhere to be
found.
A
stay of execution is discretionary upon the court, a discretion which
must be exercised judiciously at all times. This court is not in the
habit of exercising its discretion in favour of those abusing its
process: Zvidza
& Anor
v Mudoti
HH422/14.
It
is true that I am not dealing with the rescission of judgement
application which the applicant has filed, but in deciding whether to
exercise my discretion to grant the applicant an indulgence of a stay
of execution, I must consider whether he presents good and sufficient
cause (Rule 63(2)) for a rescission of judgement. In other words it
is imperative to peep into the rescission of judgement application to
see if it has merit before exercising my discretion in favour of the
applicant.
Where
the application for rescission itself lacks merit, a court should not
grant the indulgence of a stay of execution because doing so would
offend against the time tested principle of our law that there should
be finality in litigation. In such circumstances, the default
judgement would prevail and therefore a stay of execution should
purposely be refused. The onus is on the applicant in such an
application, to satisfy the court that he is entitled to an
indulgence. It would be quite impossible to frame an exhaustive
definition of what would constitute sufficient cause to justify the
grant of an indulgence: Cairns
Executors
v Goarn
1912
AD181 at 186.
I
am not satisfied that the applicant in this matter has discharged
that onus.
As
I have said the applicant and his legal practitioner were remiss in
the extreme when they got notice of the set down. They did not bother
to notify the court of their inability to attend the court. They
chose the wrong options in the face imminent commencement of the
trial, electing to write a letter as if already buttressing an
application for rescission, when the letter was obviously not going
to be attended to before trial and they chose not to avail themselves
before the court when they had an opportunity to do so before the
Supreme Court engagement.
In
fact it is pertinent to note that even in the Supreme Court matter Mr
Makuku
was only a correspondent for Messrs Ndlovu & Hwacha the
appellant's legal practitioners as appears upon reference to the
notice of hearing from that court. It is therefore unlikely that he
was even at the Supreme Court.
I
am also not persuaded that the applicant has a bona
fide
defence to the claim for eviction. Specific allegations were made
against him in the main matter which he has only brushed aside with
bare denials. He was accused of joining another organisation, the
International Life Centre Church and conducting its business from the
first respondent's premises and collecting tithe money which he did
not account for. He admitted collecting tithe but averred that the
“plaintiff has not requested defendant to account for the money.”
If
the applicant has his heart in another church and is introducing its
systems then a schism may have occurred. A party leaving the church
cannot lay a claim to the property of the church: The
Church of the Province Central Africa
v The
Diocesan Trustees for the Diocese of Harare
SC48/12; Guta
RaMwari
v Waduka
& Ors
HH470/14. There is therefore a case for the eviction of the applicant
which has not been challenged in any meaningful way. For that reason
the applicant has not made a case for the indulgence of a stay of
execution.
Accordingly
the application is hereby dismissed with costs.
Makuku
Law Firm,
applicant's legal practitioners
Robinson
& Makonyere,
1st
respondent's legal practitioners
