SANDURA JA: This is an appeal against a judgment of the
High Court which dismissed an urgent Chamber application filed by the
appellant.
The background facts in
the matter may be tabulated conveniently as follows -
1. In 1973
Caps Holdings Limited ("Caps Holdings") established a football team called Caps
Rovers Football Club, which was subsequently named Caps United Football Club.
2. On
2 December 1999 the appellant company, Caps United Football Club (Pvt)
Ltd, was incorporated on the instructions of Caps Holdings.
3. On
28 December 1999 Caps Holdings, represented by Edwin Robinson, and
Twin Con Industrial Air (Pvt) Ltd ("Twin-Con"), represented by
Twine Phiri, concluded a joint venture agreement which, in relevant part,
reads as follows:
"WHEREAS:
1. Caps and Twin-Con have
entered into an agreement to embark on a sports joint venture on a 50/50 basis.
2. The joint venture
company shall take over the running of Caps United Football Club and also
embark on any other sports related activities.
Now therefore in consideration of both
parties agreeing on a joint venture Caps and Twin-Con agree as follows:-
1. Twin-Con shall pay a sum
equivalent to 50% of the estimated franchise value of Caps United Football Club
within 14 days of signing the agreement.
50% of the franchise value is set at $900 000.00.
2. Upon receipt of the
Twin-Con franchise contribution by Caps the process of registering the joint
venture Company will be initiated, on an equal shareholding by the two
parties. .
3. The current Caps United
Football Club Executive is mandated to set up the new company in full
compliance with the Companies Act in consultation with both Caps and Twin-Con.
4. Upon registration of the
new company Caps shall transfer ownership of the Caps United Football Club
franchise to the new company including the players and other Caps United
Football Club related assets.
5. The new constituted
Board of Directors shall be mandated to run the affairs of Caps United Football
Club in accordance with the Companies Act and general rules governing soccer in
Zimbabwe.
6.-7. .
8. The name of the football
team shall be maintained as Caps United Football Club until such time as the
board of the new company revisits it."
4. In
December 2002 Caps Holdings sold its 50% stake in the franchise of Caps United
Football Club to Twin-Con. However,
according to Twin-Con, what it purchased was not just 50% of the franchise of
Caps United Football Club but also 50% of the shares in Caps United Football
Club (Pvt) Ltd.
5. In
August 2006 Caps Holdings acquired the second respondent, Buymore Football
Club, and immediately issued a press statement advising the football fraternity
about that acquisition, and that with effect from 1 January 2007 Buymore
Football Club would be known as Caps Football Club.
6. The
press statement issued by Caps Holdings prompted Twine Phiri, who
purported to be the chairman of Caps United Football Club (Pvt) Ltd, to file a
court application in the High Court (Case No. HC 7486/06), in the name of
Caps United Football Club (Pvt) Ltd, on 1 December 2006 against Caps
Holdings and Buymore Football Club, seeking the following order -
"1. (That the) first
respondent, Caps Holdings Limited, be and is hereby barred and interdicted from
unlawfully interfering with the goodwill, brand, colours, regalia and insignia
of Caps United Football Club and Caps United Football Club (Pvt) Ltd.
2. That the respondents be
and are hereby barred from renaming Buymore Football Club, Caps Football Club,
Caps Rovers or any other name suffixed or prefixed with the acronym Caps.
3. (That) Caps Holdings
(Private) Limited (sic) be and is
hereby interdicted from the use of the colours green and white, together with
the acronym CAPS in respect of any football team that it may own or sponsor and
register to play with the Premier Soccer League and or with the Zimbabwe
Football Association in any division.
4. That (the) respondents
jointly and severally pay the other to be absolved pay costs of suit sic)."
The court application was opposed by the respondents.
7. About
six-and-a-half weeks after filing the court application, Caps United Football
Club (Pvt) Ltd filed an urgent Chamber application in the High Court (Case No.
HC 241/07) on 16 January 2007 against Caps Holdings, Buymore Football
Club, the Zimbabwe Football Association and the National Premier Soccer League,
seeking the following order:
"1. That pending complete
resolution by the courts of case number 7486/06, the first and second
respondents be and are hereby barred from using the name CAPS Football Club and
renaming Buymore Football Club by any other name that has the acronym CAPS in
it.
2. (That) pending the
resolution of case number 7486/06 the second respondent, Buymore Football Club,
and indeed (the) first respondent, be and is (sic) hereby barred and interdicted from unlawfully and interfering
(sic) with the goodwill, brand,
colours, regalia and insignia of CAPS United Football Club and CAPS United
Football Club (Pvt) Ltd.
3. (That the) first and
second respondent (sic), jointly and
severally, each paying the other to be absolved, pay costs of suit calculated
on a scale as between attorney and client."
8. The
urgent Chamber application was heard on 19 and 22 January 2007, and on
24 January 2007 the learned Judge in the court a quo held that the matter was not urgent, and that in any
event there were disputes of facts which could not be resolved on the papers.
Aggrieved by that
decision, Caps United Football Club (Pvt) Ltd appealed to this Court.
There are two main
issues for determination in this appeal.
The first is whether the learned Judge in the court a quo correctly concluded that the matter was not urgent; and
the second is whether there were disputes of fact which could not be resolved
on the papers without doing any injustice to the parties.
Dealing with the issue
of urgency, the learned Judge in the court a quo
said the following at pp 8-9 of the cyclostyled judgment (judgment no.
HC 214/07):
"It
is my considered opinion that this matter is not urgent. It is not in dispute that the 2007 soccer
season will commence at the beginning of February 2007. I am made to understand that the case
HC 7486/06 will not have been heard before the soccer season starts. I am, however, made to understand that only
heads of argument by both parties are yet to be filed before the matter can be
set down for hearing as an opposed matter. .
I am advised further that the fixtures list has not yet been released by
the fourth respondent. It was therefore
unknown when exactly the two teams were going to meet in competitive football
in the league. . The fact that the soccer season will start
in early February 2007 does not mean that the two teams will meet in February
2007. The date on which the two teams
will meet remains unknown until the fixtures list is released. As long as the above position is correct,
this application cannot be considered urgent.
The date on which the two teams would meet is important in considering
whether or not the matter is urgent because, as I was made to understand by the
parties, ugly scenes in the terraces in the stadium would only occur if the two
teams meet each other. I was made to
understand that it was at such meetings that fans of the two teams would fight
for the name of their team and for their colours, etc .".
In my view, the learned
Judge's reasoning cannot be faulted.
The matter was obviously not urgent.
The parties should have simply filed their heads of argument in the main
court application (i.e. case no. HC 7486/06) and proceeded to have it set
down for hearing.
Having concluded that
the matter was not urgent, the learned Judge went on to deal with the issue as
to whether the matter could be resolved on the papers, although it was not
necessary for him to do so. On that
issue the learned Judge said the following on p 6 of the cyclostyled
judgment:
"It is my
considered opinion that there are a lot of material disputes of fact in this
matter which make it impossible for this court to grant any relief. How can this court grant the applicant the
relief it sought when the authority of Mr Twine Phiri to represent (the)
applicant is being questioned? There is
a serious dispute on who is the applicant and who owns it. If Mr Phiri is not the major or simple
shareholder in (the) applicant, this whole application collapses. It means he cannot depose to a founding
affidavit in (the) applicant's cause."
Once again, in my view,
the learned Judge's reasoning cannot be faulted.
In the circumstances,
the appeal is devoid of merit and is, therefore, dismissed with costs.
CHEDA JA: I
agree
GWAUNZA JA: I
agree
Honey & Blanckenberg, appellant's
legal practitioners
Mutamangira, Maja
& Associates, respondents' legal practitioners