This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.
FACTUAL BACKGROUND
The appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.
The first and second respondents are also husband and wife and are the leaders (prophet and prophetess, respectively) of the United Family International Church (UFIC).
In the court below, the appellants instituted an action against the respondents, under HC7214/18 claiming a total sum of US$6,535,000 to be paid jointly and severally, the one paying the others to be absolved, broken down as follows:
“(a) Damages for US$700,000 being the value of property number 14 Edinburgh, Marlborough, Harare.
(b) A refund of the sum of US$1,698,000 for misrepresentation.
(c) US$37,000 being refund for fees paid to Tichaona Mawere.
(d) An amount of US$1,100,000 being a refund paid to the defendants.
(e) An amount of US$2,000,000 being damages for fraud and misrepresentation.
(f) An amount of US$500,000 being damages for mental anguish.
(g) US$500,000 being damages for defamation of character. (sic)
(h) Payment of interest on the sums in (a) to (g) above at the prescribed rate from the date of demand to the date of full and final payment.
(i) Payment of costs of suit on a legal practitioner and client scale.”
The claims were particularised in the declaration as summarised hereunder:
CLAIM ONE
In 2012, and during church proceedings, the first and second respondents fraudulently misrepresented to the appellants “that anyone with a bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.” (sic)
It is alleged, that, this followed after the respondents had been 'privately' informed that the appellants had an existing ZB Bank loan in the sum of US$500,000.
As a result of this misrepresentation, the appellants were induced not to pay back the loan, and, as a consequence, the Bank executed on their immovable property thus causing them to lose a property worth US$700,000.
CLAIM TWO
In the same year, the respondents misrepresented in church, that, one Tichaona Mawere (Mawere) “was a great lawyer and that he would not lose a case” when in fact he was not a registered legal practitioner.
Acting on the misrepresentation, the appellants instructed the said Tichaona Mawere (Mawere) to handle their matter for a claim of US$1,698,000 and expended fees in the sum of US$37,000. Mawere produced fake court orders resulting in them making a loss to the tune of US$1,735,000.
CLAIM THREE
That, in the period ranging from 2014 to 2016, the appellants were called on stage in church. The respondents would announce that the appellants “were a successful example in the Ministry.”
Acting on these “misrepresentations” the appellants made various direct contributions amounting to US$1,100,000 to the respondents. The respondents would represent “that, in so contributing, the plaintiffs (the appellants) would reap what was commensurate with their contributions.”
CLAIM FOUR
The appellants were again paraded in church on stage “as a chosen people by God to have succeeded in business.”
As a result of that further “misrepresentation” the appellants marketed the respondents prophecies for the advancement of the respondents interests and “their prophesies as the success story of the prophesies.” In the process, the appellants were prejudiced to the tune of US$2,000,000.
CLAIM FIVE
Before the amendment, which I shall deal with later, the claim was that “the defendants (the respondents) caused damages through defamation (sic) by publishing false articles against the plaintiffs and their business activities; articles claiming that the plaintiffs perfumes cause cancer.”
CLAIM SIX
The appellant's claimed that “the defendants caused mental anguish to the plaintiffs, emotional embarrassment and torture by exposing the plaintiffs private lives on the defendants Facebook online page 'The Truth About Prophet Makandiwa.'”
It was further averred, that, the information had been given to the respondents “in private” and the statements were meant to destroy their reputation.
Upon being served with the summons, the respondents entered an appearance to defend.
They further addressed a letter to the appellants, in terms of Rule 140 of the High Court Rules 1971 (the Rules), to the effect that the claims in question were vague and embarrassing and that they did not disclose a cause of action.
It was averred that it was not clear whether the appellants were suing in terms of Contract or under the Law of Delict, and, as regards claims five and six, whether the claims were made under defamation or injuria.
The appellants did not respond to this letter.
Consequently, the respondents filed an exception to the appellants summons and declaration.
The exception was dismissed on 12 January 2018 by MANGOTA J who ordered that the appellants amend their declaration in respect of claims five and six, that the respondents file their plea, and that the matter proceeds in terms of the Rules.
As directed, the appellants amended their declaration in respect of claims three, five, and six.
CLAIM THREE
It was amended by the addition of paragraph 20.1.
It was claimed, that, upon being confronted by the appellants, the respondents undertook to repay the appellants all the money they had contributed upon proof of such payment. Despite being furnished with the proof, the respondents have refused or neglected to pay in accordance with their undertaking.
CLAIM FIVE
It was amended by deleting the original claim and substituting it as summarised below:
The appellants were in the business of manufacturing and selling perfumes. On or around 16 August 2016, and after the fallout between the appellants and the respondents, the respondents caused to be published an article in the Herald Newspaper in which they said:
“You just need one person who can move around telling people that your perfumes can cause cancer and the news begins to spread; your company will begin to go down.” (sic)
“The statement was false and the respondents intended to spread a rumour and thereby injure the appellants in their trade. In view of the close relationship between the parties before the fallout, the words of the respondents caused a rumour to spread that the appellants perfumes cause cancer. As a result of the statement, and the subsequent rumours, the public desisted from purchasing appellants perfumes. Consequently, the appellants, through their company, ceased to manufacture the perfumes. The appellants suffered damages due to the respondents wrongful conduct in the sum of USD$500,000.”
CLAIM SIX
The original claim was deleted and substituted with a claim summarized as follows:
On or about 2 February 2017, the respondents caused to be published on their Facebook page titled “The truth about Emmanuel Makandiwa” private and intimate details of the appellants which they had received in confidence. The publication of the details was wrongful and was done with an intention to injure the appellants standing in society, and was done in the wake of the fallout between the parties. Appellants suffered damages, as a result of the unlawful intrusion into their private lives, in the sum of USD$500,000.
Following the dismissal of the exception, and, on 23 February 2018, the respondents filed an application for the dismissal of the appellants claims in toto in terms of Order 11 Rule 75 of the High Court Rules, under HC1774/18.
The respondents, having failed to prosecute their application under HC1774/18 timeously, the appellants filed a chamber application for dismissal of the same for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules, on 8 May 2018, under HC4197/18.
Since both matters were set down for hearing at almost the same time, and, before different judges, a request was made for their consolidation and it was granted.
DETERMINATION BY THE COURT A QUO
The court' s approach was to determine the application in terms of Rule 236(3)(b) of the High Court Rules under HC4197/18 first.
It opined, that, if it granted the relief being sought by the appellants that would be the end of both matters. If it dismissed the application, then, it would proceed to hear the respondents application in terms of Rule 75 of the High Court Rules, under HC1774/18, which it coined the main matter.
Regarding the application for dismissal for want of prosecution, the court found that the reasons proffered for the delay in prosecuting the matter were reasonable. It also stated that it had a discretion to discharge the application or make any other order as it deemed fit in the circumstances.
In the result, the application for dismissal for want of prosecution was dismissed and the court ordered that the main matter be heard on the merits.
Pertaining to the issue of the dismissal of the appellants claims, in terms of Rule 75 of the High Court Rules, the court a quo dealt with each of the appellants claims in turn.
It found, that, the appellants claims were frivolous and vexatious and warranted summary dismissal.
Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court. This is the appeal that this Court is seized with.
GROUNDS OF APPEAL
“1. The court a quo erred and misdirected itself in that having found that respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed for want of prosecution; no special circumstances existing to exercise a discretion in their favour.
2. The court a quo grossly erred and misdirected itself in that a prior judgment of the High Court, in HH10-18, having established that a valid and substantiated cause of action based on fraud existed between the parties, it could not render otherwise.
3. A fortiori the court a quo effectively reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction on the same cause, between the same parties, contrary to the principles of res judicata and issue estoppel.
4. The court a quo further erred and misdirected itself in finding, contrary to law, that, fraud and fraudulent misrepresentation did not constitute a valid cause of action at law; subsequently, the court a quo erred in failing to find that the question of whether fraud and its constituent elements had been proven was an evidentiary issue reserved for trial.
5. The court further grossly erred and misdirected itself in determining the matter regardless of conflicting material averments which could not be resolved on affidavit a fortiori, it could not find as a matter of fact that the claims by the appellants were frivolous and vexatious, absent evidence and its testing in contested action proceedings....,.
Regarding grounds four and five, the court, at the outset during the hearing, enquired of counsel for the appellants whether these grounds had been abandoned as they had not been motivated in the Heads of Argument.
In response, counsel for the appellants advised, that, none of the grounds were being abandoned.
On being asked to direct the court to where these grounds were motivated, he directed the court to paragraph 15 of the appellants Heads of Argument. This is what paragraph 15 states;
“Even if the court per TAGU J could revisit the question, it still did so wrongly and wrongfully. That there is a valid cause of action is beyond doubt. The law allows refunds and reimbursements for unlawfully paid funds. As a result, there cannot be argument that no cause of action can arise.”
The argument advanced in this paragraph completely misses the respondents position.
It is not that there is no cause of action. It is that the appellants pleaded falsehoods and that they could never succeed at trial on the facts as pleaded. Their action was therefore frivolous and vexatious.
The paragraph also misconstrues the finding of the court a quo.
Nowhere in the judgment a quo is it stated that a misrepresentation did not constitute a valid cause of action.
The court a quo examined each claim separately and gave reasons as to why it found each claim to be frivolous and vexatious. The crisp finding of the court a quo, in respect of each claim, was that on the facts as pleaded by the appellants, no competent cause could be sustained.
By way of illustration, in Claim One, the appellants alleged that the respondents alleged that they stopped paying the loan that they had obtained from ZB Bank on the basis of a prophecy made by the respondents to the effect that it was “a season of miraculous cancellation of debts.”
It could not, on the facts as pleaded by the appellants, be established through a deeds search at the Registrar of Deeds office that the appellants owed ZB Bank Limited USD500,000 and that the property they allegedly lost was bonded in favour of ZB Bank for that amount.
It could not be supported, factually, through a search carried out in the Civil Registry of the High Court that ZB Bank sued the appellants for USD500,000 between 2012 and 2017 as alleged, and that the property in question was attached or sold in execution as alleged or at all at the instance of ZB Bank Limited.
The reality on the ground, which the appellants never controverted, was that the property was at all material times owned by Carmeco Investments (Private) Limited (Carmeco) a separate persona from the appellants in terms of Deed of Transfer No.10763/2002 dated 24 September 2002.
In that regard, the law relating to companies applies with full force and effect.
The appellants cannot claim to have been prejudiced in respect of what they did not own.
In any event, as early as 29 February 2012 Carmeco Investments (Private) Limited had sold the property for USD800,000 to Nemajo Family Trust as represented by Steward Nyamushaya. The purchase price thereof was paid in full through the appellants agents, McDowells International (Private) Limited.
At no time did it appear from the deeds search that Carmeco Investments (Private) Limited, which owned the property, mortgaged number 14 Edinburgh Road, Marlborough to ZB Bank Limited for the sum of USD500,000 during the period 2012 to 2017.
The above illustration clearly demonstrates that the appellants pleaded falsehoods.
In their notice of opposition to the application, the appellants did not controvert these facts.
They contended, that, they did not have to reply to the evidence submitted by the respondents as it was a matter of evidence to be related to at trial.
They overlooked the fact, that, in terms of Rule 75(2) and (3) of the High Court Rules a party making an application in terms of subrule (1) is required to do two things:
(i) Firstly, he or she shall file an affidavit in which he sets out his belief that the action is frivolous and vexatious and the grounds for his belief.
(ii) Secondly, he or she may attach documents which verify his or her belief that the matter is frivolous and vexatious.
Once that information has been placed before the court, it should be incumbent upon the other party to controvert it.
In casu, the appellants did not do so. Rather, they directed their energy to a vitriolic attack on the respondents instead of addressing the requirements of Rule 75 of the High Court Rules.
Having misconstrued the court a quo's finding, grounds of appeal four and five must fail.
