Opposed
Application – Leave to Execute Pending Appeal
CHAREWA
J:
This
matter emanates from a judgment I granted, with costs, in favour of
the applicant on 13 September 2017 in HH614/17 (HC9698/17).
Therein,
applicant had sued defendant claiming possession of certain piece of
land situate in the District of Salisbury called the Remainder of
Subdivision B of Marshlands of Delft of Hopley (the Remainder) and
payment of the sum of two thousand three hundred and eighty United
States Dollars (USD2,380) per month calculated from 10 July 2013.
After
a full trial, I granted the applicant the order he sought.
The
Facts
The
parties entered into an agreement of sale sometime in 2005 wherein
the applicant sold, and the respondent purchased Stand 694 of
subdivision B of Marshlands of Delft of Hopley (Stand 694). It later
became evident that, during the sale transaction, the parties had
used a wrong map, rather than CG2907, which was duly approved by the
Surveyor General on 1 November 2003. As a result, the respondent in
fact purchased a road, Stand 694 having become a thoroughfare upon
completion of the survey plan by the Surveyor General.
Efforts
to rectify the error were unsuccessful, mostly due to the
respondent's intransigence, who spurned the offer of a replacement
Stand and cash adjustment or a refund of the purchase price.
Ultimately, the respondent approached this court for an order
compelling applicant to transfer to him, Stand 694, which was duly
done. Case number HC1205/07 and DT502/2011 dated 18 February 2011
being apposite.
Thus
respondent currently holds title to Stand 694. Unfortunately for him,
Stand 694 is a road in accordance with the properly approved
subdivision permit and survey diagram CG2907 aforesaid.
Respondent
subsequently obtained an order from this court, authorising the
eviction of the applicant from Stand 694 (case number HC6804/11
refers). However, quite contrary to the title he holds and the
eviction order he obtained, respondent went on to evict applicant
from the Remainder using the eviction order granted in respect of
Stand 694.
Upon
obtaining judgment for the restoration of his possession in HC9698/17
aforesaid, applicant issued a warrant of execution on 20 September
2017. The warrant of attachment with respect to the monetary portion
of my judgment was served on the respondent on 25 September 2017,
with eviction scheduled for 28 September 2017.
On
27 September 2017 respondent noted an appeal against my judgment
which effect was to suspend any execution of the judgment.
Consequently, applicant filed, on 5 October 2017, this application
for leave to execute pending appeal.
Parties'
Submissions
Applicant
submits that respondent noted the appeal with no bona
fide
intention to test the correctness of the judgment of the court a
quo,
but that the appeal is merely intended to either harass him or buy
time for the following reasons:
(i)
It is fundamentally defective and is likely to be struck off by the
superior court;
(ii)
The two grounds of appeal raise no issues at law as no averment is
made as to how the court a
quo
erred at law as respondent avers no rights entitling him to remain in
occupation of the Remainder or why he should continue receiving
rentals therefrom and should be absolved from making good the same.
The
applicant submits therefore that he stands to suffer irreparable harm
and prejudice if the application for leave to execute is not granted
as the respondent will continue to occupy applicant's property and
receive rentals in circumstances where the appeal is frivolous and
vexatious and hence has no reasonable prospects of success.
On
his part, the respondent submits that he has good prospects of
success on appeal as the judgment appealed against seeks to reverse
previous orders of this court which recognised his title to the
property in dispute. Besides, execution pending appeal should not be
lightly granted as that would abrogate his right to appeal.
In
any event, respondent further submits, applicant has not demonstrated
any special circumstances necessitating execution pending appeal.
Therefore the balance of convenience favours a freezing of the
parties' positions until the litigation has run its course,
particularly since the superior court might come to a different
conclusion with regard to the issue of res
judicata
and compensation.
Respondent
seems to suggest in his further submissions that because the
applicant did not mount a vigorous defence to his ejectment from
Stand 694, and did not immediately institute proceedings challenging
such ejectment, that gave respondent rights to the Remainder.
The
Law
It
is trite that the right to appeal is fundamental to justice and is
not lightly interfered with as a party has the right to test the
correctness of a decision of a lower court.
Therefore, I do agree that the right to appeal is absolute.
However,
the consequence of noting an appeal is not an absolute right to stay
of execution pending appeal, else the law would not grant a litigant
the right to apply for leave to execute pending appeal. Further, the
law would not grant the courts the discretion to allow execution
pending appeal where an appellant has no bona
fide
intention to test the correctness of the decision of the lower court,
but is driven by a desire to frustrate a successful party or to buy
time. Therefore the right to stay of execution pending appeal is
limited to the extent that the courts have the ultimate and wide
discretion to grant leave to execute pending such appeal.
However,
the court's discretion to interfere with stay of execution pending
appeal can only be exercised within the confines of four fundamental
common law principles, the sum total of which is that it is just and
equitable to allow execution pending appeal.
In this regard, jurisprudence, in Zimbabwe, has identified these
principles, which I list in no particular order as follows:
1.
The prospects of success on appeal, with special emphasis on whether
or not the appeal is frivolous or vexatious or has been noted with no
bona
fide
intention to reverse the judgment but only to buy time or harass the
successful party.
2.
The potentiality of irreparable harm or prejudice to the appellant if
leave to execute is granted.
3.
The potentiality of irreparable harm to the respondent if leave to
execute is refused; and
4.
Finally, the balance of hardship or convenience as the case may be.
The
law in Zimbabwe does not require for “special circumstances” to
be established for an application for leave to execute pending appeal
to be instituted or granted, outside the principles enunciated above.
What the law requires is that a specific application has to be made
seeking such leave. Some judgments have termed this a “special
application”, but that is as far as the law has gone.
Finally,
while the law is clear that a notice of appeal must be directed at
the order of the court a
quo
and not the reasons thereof,
it seems logical to me that the substantive legal grounds for
attacking such order must be made. Else, how does a court requested
to grant leave to execute pending appeal, or even the appellate court
itself, assess the bona
fides
of the appeal.
In
fact, Chidyausiku
Nyakabambo
(supra), which the respondent seeks to rely on, must be read within
its own context. Therein, the notice and grounds of appeal had been
made against an order rather than a fully reasoned judgment.
Analysis
It
is my considered view that the appeal in this case has no reasonable
prospects of success at all. This is because, firstly, the notice of
appeal only attacks two issues in the judgment of the court a
quo:
that it erred in granting an order of ejectment and that it erred in
granting an order for payment of rental at the rate of $2,380 per
month from July 2013 to the date respondent gives vacant possession.
In
the first place the court a quo did not give an order of ejectment as
that was not the relief sought by applicant. Applicant sought and was
granted an order restoring his entitlement to possession of the
Remainder. In any event, even if an order of ejectment had been
given, the grounds of appeal do not specify why such order is wrong
at law.
In
the second place, the notice of appeal attacks the period and amount
of rentals that respondent must pay without specifying why, in
substance, that order is wrong at law.
It
seems to me therefore that the grounds of appeal raise no issues,
cementing the notion that the appeal has been filed merely to prevent
applicant from using his own property.
Secondly,
the respondent has introduced in his appeal, matters which were not
before the court a quo.
For
instance, Annexure C to the opposing affidavit cannot form part of
the appeal record as it was never a matter raised at the trial. It is
trite that one can only introduce new evidence with leave of the
court, which leave respondent did not seek during this hearing nor
has sought for purposes of appeal.
But
even if he does seek and obtain such leave, Annexure C would actually
vindicate the applicant's position, that Stand 694, to which the
applicant is entitled by virtue of the title deed he holds in his
favour, is in fact not part of the Remainder, and further that
respondent's ground of appeal that the applicant does not hold
title to the Remainder is in fact baseless.
Further,
the issue of compensation for the buildings constructed by respondent
on the Remainder cannot be subject of appeal as it has not been
raised in the grounds of appeal.
This
is precisely because it was never a claim before the court a
quo,
and in any case, there is no admission, tacit or otherwise, on the
trial record, that applicant was prepared to pay compensation for any
buildings put up by respondent on the Remainder without applicant's
consent. In any case, any purported offer of compensation was made on
a without prejudice basis, and at the behest of the court to
facilitate an equitable settlement.
In
fact, the record will show that, in the face of defendant spurning
any offer of a replacement Stand or refund of the purchase price,
applicant specifically withdrew any offer of compensation he might
have made.
In
addition, that the City of Harare may have approved the respondent's
building plans, or received rates payments from the respondent, does
not give title to the Remainder to respondent. It is also neither
here nor there that applicant did not vigorously mount a defence to
his eviction from Stand 694. There was absolutely no reason for him
to do so since he acknowledged selling that Stand to respondent and
was not in occupation thereof, besides which it was a road anyway.
The
court a
quo
only dealt with two issues, predicated on the court's finding that
applicant's claim was in fact an action for rei
vindicatio:
viz;
(i)
whether respondent had any entitlement to keep possession of the
Remainder; and, if not (ii) whether he should be ordered to refund
the rentals he has received for the Remainder. Applicant was
therefore only required to prove his ownership of the Remainder, thus
disentitling respondent thereto; and that respondent was in
occupation thereof and collecting rentals therefrom, which he did to
the Court's satisfaction.
As
a result the Court's finding was that applicant was wrongfully
ejected from the Remainder, which property he owned, on the basis of
an order relating to Stand 694. And further that Respondent was
residing, and building on the Remainder, as well as collecting rental
therefrom, in circumstances where he held no title thereto.
That
finding is unassailable and respondent has absolutely no prospects of
success thereon.
Further,
the issue of res
judicata
has also not been raised in the grounds of appeal.
Besides,
save to state that HC5728/13 was not dealt with on the merits and
cannot therefore be regarded as having disposed of the rights of the
parties to the Remainder to merit the respondent's resort to
res-judicata
the
court a
quo
did not interfere with or set aside any previous judgments of the
court.
In
particular, the court a
quo
was careful to note that HC1205/07, HC3900/11 and HC6804/11 being
matters dealing with rights to Stand 694, had nothing to do with the
matter before it; being a matter requiring resolution to the parties'
rights to the Remainder.
Clearly
any appeal on this basis is spurious and has no reasonable prospects
of success.
However,
I am also mindful of the fact that lack of reasonable prospects of
success on appeal alone is not enough to allow a court to grant a
party leave to execute pending appeal. It is also important to look
at the balance of convenience or hardship that may befall a party if
execution is permitted.
In
this case I find it difficult to find anything in favour of the
respondent.
Rather,
the applicant is an owner of property, whose enjoyment he has been
wrongfully deprived of since 10 July 2013, and which income
respondent has been benefiting from unlawfully since then. Clearly,
the balance of convenience favours the applicant, especially since
the courts are loath to be used by parties to perpetuate clearly
illegal activities.
Further,
applicant stands to suffer more irreparable harm should he continue
to be deprived of execution on property for which respondent has no
reasonable prospects of success on appeal. In the unlikely event that
respondent succeeds on appeal, he would have lost (in his own
estimation) only about twelve (12) months of rental income, whereas
applicant has lost almost 10 years of income.
On
balance therefore, applicant stands to suffer more prejudice than
respondent.
This
is more so since the record shows that respondent did not put in
issue, and actually admitted, during the trial, that he continues to
occupy property that he is not entitled to; that he continues to
collect rentals in respect of buildings he neither built nor is
entitled to; and that he is continuing to construct on the Remainder
notwithstanding the institution of litigation.
Finally,
the applicant substantiated his submission that the appeal is not
bona
fide
by the fact that respondent has not paid any security for costs in
respect of the appeal to show his seriousness in the prosecution
thereof, nor paid for the preparation of the appeal record.
Respondent argued that he had tendered security for costs, but did
not proffer any proof of such tender neither did he indicate the
amount of the tender. Further, save to move from the bar, oral
evidence that correspondence from the Supreme Court show that the
appeal is being prosecuted, respondent neither tendered copies of
such correspondence nor made any submissions at all with regard to
payment for the preparation of the appeal record.
While,
ultimately, the issues of security for costs and costs for the
preparation of the appeal record are issues for the Supreme Court to
consider and decide, the lack of any proof before me that any efforts
have been made to pay them does create the impression that the appeal
is not bona
fide.
For
these reasons, I am therefore inclined to believe that the intended
appeal is indeed meant to buy time and frustrate the applicant. On
balance therefore, it is my view that applicant has discharged his
onus that the balance of hardship or convenience is in his favour.
In
the circumstances, I find it to be just and equitable that leave to
execute pending appeal be allowed.
Costs
In
the final analysis, I agree with the applicant that the appeal is
spurious and merely meant to harass the applicant or to buy time.
In
my estimation, it is a classic case of abuse of court process with no
bona
fide
intention to test the correctness of the decision appealed against.
This
is particularly evidenced by the respondent bringing into issue
matters which are not germane to the application before the court;
bringing up documents which were not before the court a
quo;
filing grounds of appeal which make no attempt to attack the legal
rationale behind the judgment appealed against; attempting to smuggle
in grounds of appeal which are not on the notice of appeal as well as
attempting to obfuscate the basis of the decisions in HC1205/07,
6804/11 and 5728/13; and failing to pay security for costs of the
appeal.
For
these reasons, I am of the view that applicant is entitled to costs
on the higher scale.
Disposition
Consequently,
it be and is hereby ordered that leave to execute pending appeal be
and is hereby granted with costs on an attorney client scale.
Chatsanga
& Partners,
applicant's legal practitioners
Wintertons,
respondent's
legal practitioners
1.
See
Zimbabwe
Mining Development Corporation v African Consolidated Resources PLC &
Ors
SC1/10
2.
See Arches
(Pvt) Ltd v Guthrie Holdings (Pvt) Ltd
1989 (1) ZLR 152 (HC)
3.
See South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534 (A) @ 545
4.
See Whata
v Whata
1994 (2) ZLR 277 (S) @ 281 B. See also Net
One Cellular (Pvt) Ltd v Net One Employees & Anor
2005 (1) ZLR 275 (S) @ 281 B-D
5.
Arches
(Pvt) Ltd v Guthrie Holdings (Pvt) Ltd (supra). See also Net One
Cellular (Pvt) Ltd v Net One Employees & Anor @ 280F which cited
with approval South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd (supra) @ 544H-545H
6.
Chidyausiku v Nyakabambo
1987
(2) ZLR 119 (SC)
