PATEL
JA:
This
is an appeal against the decision of the High Court granting an order
evicting the appellant and requiring him to pay holding over damages
and costs of suit.
The
respondent alleged that he was the registered owner of the property
in question, situated in Meyrick Park, Harare, and that the appellant
was occupying the property without his consent, entitling him to
claim holding over damages in the sum of $500 per month from 1
November 2011.
The
appellant himself also claimed title to the property.
He
denied having transferred the property to the respondent or to any
other person. He had borrowed $19,000 from one Frank Buyanga and was
made to sign a purported agreement of sale in respect of the
property. After he failed to settle his loan debt, Buyanga sold the
property to an entity called Gildastone Holdings (Pvt) Ltd.
The
appellant disputed that the respondent was a bona fide purchaser or
that he was entitled to holding over damages and punitive costs.
High
Court Judgment
The
court a quo found that the respondent was the registered owner of the
property, having purchased it from Gildastone Holdings, without
having been told of any disputed sale. He paid $55,000 for the
property and his current rental claim was not disputed by the
appellant who was still occupying the property. His evidence was
credible and not controverted under cross-examination.
Conversely,
the court found that the appellant's evidence was too complicated.
He had either sold the property to Lalapanzi Properties (Pvt) Ltd or
had failed to service his loan agreement bringing the agreement of
sale into fruition. On either of his versions, he had agreed to the
sale of his house.
He
placed no evidence before the court to support his bald assertion
that Buyanga was behind the fraudulent sales of properties in similar
circumstances.
As
regards the appellant's point in limine that the instant matter be
deferred until another matter in Case No. HC2469/13 dealing with the
ownership of the property is determined, the court noted that this
was a later case instituted several years after the instant case. The
court found that the appellant's point in limine was an
afterthought and was not genuinely raised. In any case, although the
respondent's claim was for eviction, it was based on the actio rei
vindicatio and therefore required the court to determine the true
ownership of the property. The point in limine accordingly failed and
was dismissed.
The
court reiterated that the respondent had provided a title deed to
show that he was the holder of legal title to the property. The
appellant was in occupation of the property and had to show that he
was vested with some right to remain which was enforceable against
the registered owner. He had failed to raise any recognisable defence
to the respondent's claim for eviction or holding over damages.
Consequently, the court ordered the appellant to vacate the property
forthwith. The appellant was also ordered to pay holding over damages
of $500 per month, from 1 November 2011 to the date of vacation or
eviction, and costs of suit.
Grounds
of Appeal and Relief Sought
The
grounds of appeal herein are essentially twofold.
The
primary ground of attack is that the court a quo erred in ordering
eviction despite the matter pending in the High Court to resolve the
substantive question of ownership. The court therefore misdirected
itself in failing to stay eviction proceedings during the pendency of
Case No. HC2469/13, wherein Buyanga and his associated companies were
cited and which was therefore better placed to resolve the question
of ownership.
The
secondary basis for challenge is that the court a quo misdirected
itself in making findings of ownership in respect of the property
when the sole question for determination before it was the eviction
of the appellant.
This
aspect of the appeal does not appear to be of any particular
consequence in the circumstances of this case.
Given
that the appellant had denied that the respondent was the owner or
bona fide purchaser of the property, the court a quo cannot be
faulted for having delved into the question of ownership as a
prerequisite to the respondent's right to evict the appellant.
In
any event, this aspect was not canvassed in the heads of argument
filed on behalf of the parties nor was it addressed by either counsel
at the hearing of the appeal. I shall therefore treat this ground of
appeal as having been abandoned.
The
relief sought by the appellant is that the judgment appealed against
be set aside and substituted with an order staying the matter in Case
No. HC11588/11, pending the resolution of the question of ownership
in Case No. HC2469/13.
At
the hearing of the matter, counsel for the appellant abandoned any
claim for costs, both a quo and on appeal. On the other hand, counsel
for the respondent persisted with a punitive order of costs,
initially as against the appellant's legal practitioner, but then
subsequently as against the appellant himself.
Whether
Point In Limine Properly Raised A Quo
In
his pre-trial conference minute, dated 23 October 2012, the appellant
raised two specific issues, as to whether Gildastone Holdings had any
lawful title to pass to the respondent and whether the respondent
enjoyed lawful ownership of the property. Until that stage, the
appellant was legally represented.
In
the joint pre-trial conference minute, signed on 12 February 2013,
these two issues were omitted and the question of ownership was not
directly addressed. At that time, however, the appellant had ceased
to be legally represented.
In
his plea, filed on 5 January 2012, the appellant had specifically
disputed the respondent's ownership of the property. However, he
did not raise the defence of lis alibi pendens. That defence was only
indirectly alluded to later in his supplementary summary of evidence,
filed on 5 March 2014 by his current legal practitioners, wherein he
indicated that he had issued summons in Case No. HC2469/13, seeking
nullification of the transfer of the property from himself to
Lalapanzi Properties together with all subsequent transfers, and that
he was still the owner of the property in dispute.
Ms
Mabwe, for the respondent, refers to Rule 137(2) of the High Court
Rules 1971. She submits that this subrule requires that all special
pleas must be taken and filed together with the main plea. The
appellant's plea and the joint pre-trial conference minute did not
raise any special plea relating to the pendency of Case No.
HC2469/13. The special plea was raised for the first time in the
appellant's closing submissions a quo, filed on 8 January 2018.
Consequently, so it is submitted, the special plea was unprocedurally
raised.
Furthermore,
it is contended that the court a quo quite correctly found that the
appellant was delaying the matter by raising the special plea at a
late stage. It was not raised bona fide and the court properly
exercised its discretion in dismissing the appellant's point in
limine in that regard.
Mr
Hashiti, for the appellant, counters that the Rules do not require
that a special plea must be raised at the same time as the main plea.
In any event, so he submits, the pendency of Case No. HC2469/13 was
raised not by way of a special plea but as a new point of law.
Order
21 of the High Court Rules 1971 deals with special pleas, exceptions,
applications to strike out and applications for particulars. Rule
137(1) sets out the various alternatives available to a party instead
of pleading to the merits. Rule 137(2) prescribes the form to be
utilised, mutatis mutandis, for that purpose. It certainly does not,
as is argued by Ms Mabwe, relate to when a special plea must be taken
and filed. The only relevant provision in that regard is Rule 139(1)
which provides that:
“A
party shall state all his special pleas and exceptions and make all
his applications to strike out at one time: Provided that where an
exception or special plea is taken or where application to strike out
is made it shall not be necessary to plead to the merits of the
case.”
As
is correctly submitted by Mr Hashiti, the Rules quite clearly do not
dictate that a special plea must be taken and filed at the same time
as the main plea. Rule 139(1) is only concerned with the filing of
alternatives to pleading to the merits and makes it abundantly clear
that it is not necessary for a party who excepts or takes a special
plea to plead to the merits of the case.
In
any event, the court a quo evidently did not relate to the pendency
of Case No. HC2469/13 as a special plea but simply as a point in
limine pertaining to the defence of lis alibi pendens.
The
court noted that it had been requested to stay the matter before it
pending the determination of the question of ownership in Case No.
HC2469/13, in the interests of justice and to prevent conflicting
judgments emanating from the same court. The learned judge then
proceeded to deal with the substantive merits of the point in limine,
without questioning its procedural propriety, before dismissing the
defence of lis alibi pendens.
In
my view, there was nothing that was procedurally incorrect in the
manner in which the defence was raised a quo and disposed of by the
learned judge. It was a matter that appears to have properly arisen
from the pleadings and submissions before the court.
Pendency
of Case No. HC2469/13
The
gist of the appellant's position a quo was that there was an action
pending in Case No. HC2469/13 to determine the true ownership of the
property in question and that the interests of justice, convenience
and finality to litigation demanded that the real substance of the
dispute, i.e. ownership of the property, be ventilated and determined
first. In essence, the appellant raised the defence of lis alibi
pendens.
The
defence or objection of lis alibi pendens is usually invoked in
litigation where a civil suit is already pending between the parties
and another suit is instituted involving the same parties in relation
to the same cause of action and in respect of the same subject
matter. See Herbstein and Van Winsen: The Civil Practice of the
Superior Courts in South Africa (3rd ed.) at pp. 269-70.
As
is pointed out by the learned authors, it lies within the discretion
of the court to allow or decline the defence. This point is aptly
elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2)
ZLR 176 (SC) at 180 as follows:
“The
court has a discretion to order or refuse a stay of proceedings on
the grounds of lis alibi pendens, and in the exercise of that
discretion it will have regard to the equities and to the balance of
convenience in the matter.” (My emphasis).
What
emerges from this passage is that the court seized with a request for
the stay of proceedings must have regard to all the relevant
circumstances of the case. In short, considerations of fairness and
convenience are decisive in the exercise of the court's discretion.
Thus, it is not an immutable rule that the matter or suit which was
commenced first should be proceeded with and determined before the
matter that is instituted at some later stage. The particular facts
and issues involved in both matters must be taken into account in
granting or refusing a request for the stay of proceedings.
In
dismissing the appellant's objection in limine to the continuation
of the proceedings a quo, the learned judge reasoned as follows.
The
instant matter was filed in 2011 well before the matter in Case No.
HC2469/13. At that time, there was no similar matter pending between
the parties. The defence of lis alibi pendens applies to a pending
earlier matter involving the same parties, the same subject matter
and the same cause of action. Therefore, the action which was first
commenced should be decided first. The defence raised by the
appellant was an afterthought. In any event, although the instant
claim was for eviction, it still required the court to determine the
question of ownership of the property. Consequently, the learned
judge dismissed the point in limine and proceeded to find that the
appellant had no recognisable defence to an actio rei vindicatio or
to the claim for holding over damages.
Having
regard to what I have stated earlier, the learned judge was clearly
wrong in taking the position that the defence of lis alibi pendens
only applies to a pending earlier matter and that the action which
was commenced first should be decided first.
In
my view, the correct principle to be applied in the case of dual or
multiple proceedings is not that of “first come first adjudicated”.
Rather, it is one of having regard to all the relevant circumstances
and balancing the interests of justice and convenience to all the
parties involved as well as the court system.
The
court a quo failed to do so and misdirected itself by applying the
wrong principle in the exercise of its discretion in determining
whether or not to stay the instant proceedings.
Equally
significantly, the learned judge appears to have committed a further
critical error in her adjudication of the question of ownership.
At
an early stage during the trial a quo the appellant's counsel
applied for a postponement of the trial on the ground that there was
a pending chamber application for the consolidation of the two
matters in question. It was argued that it was convenient for both
matters to be heard at the same time.
The
learned judge declined the application for postponement on the basis
that the application for consolidation was belated and had been
overtaken by events.
While
the learned judge cannot be faulted for having taken this robust
approach, it seems to me that she could not have been in any position
to make conclusive findings on the question of ownership without
having examined the record in Case No. HC2469/13. That is the matter
in which the issues of ownership and several transfers of title in
the disputed property are to be fully ventilated.
It
is not in dispute that neither Gildastone Holdings nor Lalapanzi
Properties have filed any notice of opposition to the appellant's
claim in that matter. It is also not in dispute that the principal
player in the purported loan-cum-sale arrangement over the property,
ie Frank Buyanga, has been evasive hitherto but has since been served
with process by edictal citation pursuant to a court order dated 4
April 2019.
In
short, the proceedings in Case No. HC2469/13 have progressed to a
stage where they can be expedited by the parties themselves or, if
necessary, by appropriate directions from the court.
As
I have already noted, the appellant did initially raise the question
of lawful title and ownership in October 2012. However, these issues
were omitted from the joint pre-trial conference minute filed in
February 2013, at the time when the appellant was not legally
represented. Subsequently, he issued summons in Case No. HC2469/13 on
the basis that he was still the legal owner of the property.
His
uncontroverted averment in this regard is that he did so pursuant to
the indications of the judge presiding at the pre-trial conference,
to the effect that it was not meaningful for him to challenge the
last transfer to the respondent without challenging the initial
transfer.
That
being so, it cannot be said, as was rather unfairly found by the
court a quo, that the defence raised by the appellant was merely an
afterthought.
It
is common cause that the appellant possessed initial title in the
disputed property. His position is that he inadvertently signed what
he was led to believe and understood to be simply a loan agreement
and that he did not sign anything else relating to the transfer of
the property.
At
present, title to the property is registered in the respondent's
name.
However,
it is trite that a title deed is not conclusive proof of ownership.
In
casu, the presumption of ownership being vested in the respondent has
been challenged and possibly dislodged by the absence of evidence
proving the various transfers of title from the appellant to
Lalapanzi Properties and then to Gildastone Holdings and eventually
to the respondent.
In
the final analysis, I am satisfied that the court a quo erred and
misdirected itself in declining to stay the proceedings before it
pending the disposition of Case No. HC2469/13, notwithstanding that
the latter case had been instituted after the former.
In
the exercise of its discretion, the court acted on the wrong
principle. Moreover, it failed to take into account crucially
relevant facts pertaining to title in and ownership of the property.
If
the judgment a quo were to be enforced, resulting in the appellant
being evicted from his only home, he would no doubt be rendered
destitute pending the possible restoration of the status quo ante.
Conversely, if the eviction of the appellant were to be delayed
pending the finalisation of Case No. HC2469/13 and if the respondent
were to succeed in that matter, the latter could be compensated by an
award of holding over damages coupled with an order of punitive
costs, if appropriate, and would therefore suffer minimal prejudice.
In other words, the balance of convenience clearly favours the
appellant.
Disposition
In
the premises, I take the view that the real dispute between all of
the parties involved is still pending in Case No. HC2469/13.
In
this particular instance, the matter that fully and definitively
resolves the issues of ownership and title should be heard and
determined first. This would resonate not only with the interests of
justice and the balance of convenience between the parties but also
with the need to bring finality to the protracted contestation in
this matter.
The
court a quo should have exercised its discretion accordingly and its
decision to the contrary cannot be allowed to stand.
As
regards costs, I have earlier indicated that the appellant was
prepared, in the event that the appeal succeeds, to forego the costs
a quo as well as the costs of the appeal. It is accordingly ordered
as follows:
1.
The appeal be and is hereby allowed with no order as to costs.
2.
The judgment of the court a quo be and is hereby set aside and
substituted with the following:
“(i)
The matter be and is hereby stayed pending the determination of Case
No. HC2469/13.
(ii)
There shall be no order as to costs.”
BHUNU
JA: I agree
BERE
JA: I agree
Sinyoro
& Partners, appellant's legal practitioners
Mushoriwa
Pasi Corporate Attorneys, respondent's legal practitioners
