GOWORA
JA:
The
parties herein are engaged in various wrangles in the Magistrates
Court and the High Court. The wrangles have seen the parties file
complaints of alleged criminal activities against each other.
In
this appeal, the dispute relates to immovable property.
On
2 April 2014, the appellant caused summons to be issued out of the
High Court wherein it sought the eviction of the respondents, who are
husband and wife from the immovable property, described as 69 Glenara
Avenue Highlands Harare. The appellant averred therein that it was
the registered owner to the property and that the respondents were in
occupation of the same. The appellant alleged that their occupation
was without its consent.
The
respondents opposed the claim for their eviction.
They
filed an exception on 14 May 2014. This was followed up with a
special plea filed on 16 May 20104.
In
the exception, the respondents challenged the appellant's claim of
ownership in the immovable property described above. The same defence
was raised in the special plea.
On
27 June 2014, the respondents filed a plea on the merits.
The
substance of their defence was to challenge the appellant's claim
to ownership of the property in question. They alleged that the
registration of title was marred by fraud. They denied that the
appellant had a legal and enforceable right to claim their eviction
from the property in question.
On
20 November 2015, the parties jointly filed a special case with the
registrar of the High Court.
A
hearing for the determination of the special case was convened before
a judge on 3 February 2017. The special case was not heard or
determined.
The
respondents filed a chamber application for directions, which was
heard on 22 February 2017.
On
29 November 2017 the court issued a judgment in which it ordered as
follows:
“1.
Case Number HC2741/14 shall proceed to hearing as a stated case,
subject to the directions given in paras 2 to 7 of this order.
2.
The applicants be and are hereby granted leave to lead evidence at
the hearing of the stated case to deal with facts relevant to the
central issue of the existence or otherwise of valid title for the
purposes of the action of rei
vindicatio.
3.
The applicants shall have the duty to begin.
4.
The respondent shall if it so wishes be entitled to lead evidence in
rebuttal.
5.
The respondent shall if it elects to lead evidence in rebuttal, file
a detailed statement of the evidence intended to be led, the
witnesses to be called, and a bound and paginated bundle of documents
if any, upon which reliance will be placed. This paragraph shall be
complied with at least five clear court days prior to the set down
date of the special case.
6.
The parties shall address the court on the factual and legal issues
involved as provided for by the rules and practice of this court
relating to closing submissions at the close of an action.
7.
No order as to costs.”
The
appellant was aggrieved by the grant of the order aforementioned and,
with the leave of the High Court, has noted an appeal on the
following grounds:
“1.
The court a
quo
erred in not coming to the conclusion that the only application for
directions made was one made orally and a fortiori invalidly made and
stood to be dismissed on that basis.
2.
The court a
quo
erred in coming to the conclusion that a stated case could have its
character changed pursuant to the application for directions,
however, made and so erred in failing to consider the true nature of
the written application belatedly placed before it.
3.
The court a
quo
erred further in coming to the conclusion that any cause existed for
respondents to depart from the stated case and so erred in concluding
that it had a discretion over the matter.
4.
The court a
quo
erred in directing that the trial proceeds in terms of a course which
is unavailable at law and is inconsistent with the nature of a stated
case.
5.
The court a
quo
erred at any rate in concluding that there was a dispute of fact and
that the respondents had raised a defence worth interrogating in a
trial cause.”
ISSUES
FOR DETERMINATION
Although
the appellant has set out five grounds, only three issues arise;
(i)
first, whether or not an oral application for directions was made and
considered by the court; (ii) secondly, whether or not the court
ought to have declined to hear the chamber application as not being
properly before it; and
(iii)
last, whether the court a
quo
misdirected itself in granting the order for directions which was in
direct contradiction of the stated case.
I
will proceed to consider each of the issues ad
seriatim.
DID
THE COURT A
QUO
HAVE BEFORE IT AN ORAL APPLICATION FOR DIRECTIONS?
Both
in his written and oral submissions, Mr Mpofu
argued that Mr Uriri
had before the court a
quo
moved an oral application for directions on the challenges on the
stated case as framed and the need to call evidence.
He
referred us to the record of proceedings on what transpired.
Mr
Uriri
does not argue that an oral application was not made. He suggested
that there was no such application as the court a
quo
was disinclined to hear an oral application.
In
her judgment, written prior to the noting of this appeal, the learned
judge remarked as follows:
“At
the trial,
Mr.
Mpofu commenced making submissions on the merits of the matter when
Mr. Uriri
interjected arguing that there is no agreement over the matter
proceeding as a stated case. He submitted that the plea and special
case places the title in issue and that the court cannot turn a blind
eye to the fact that one of the essential elements of the rei
vindicatio
is
in issue. He urged the court to disregard the stated case and allow
the parties to call witnesses to clarify the issue of ownership of
the property in issue. Mr. Mpofu
vigorously opposed the proposal to lead evidence arguing that the
parties are bound by the stated case which constitutes pleadings. Mr.
Uriri
requested the court to give directions on how the matter should
proceed. The court declined to entertain an oral application for
directions and later acceded to another request by applicants'
counsel to file a formal written application seeking directions on
the manner the matter was to proceed. The chamber application is
opposed.”
I
have carefully perused the record of proceedings.
Mr
Uriri
did address the court on what he referred to as “an application for
directions”. It was made orally but did not seem to have much by
way of form. It sought the leading of evidence from witnesses on the
issue of the title to the property. The court pointed to the rules
and indicated that an application for directions must be made in
writing. The court declined to make a ruling on what was purported to
be an application.
Mr
Mpofu
was not asked to respond to the oral application.
In
our jurisdiction litigation is adversarial, meaning that each party
must prove his or her case. The system requires that every person be
heard in the protection of the party's rights or interests. This is
a common law right that has seen expression in our Constitution, both
as it pertains to civil litigation and criminal trials.
The
record does not show that the appellant was called upon to address
the court on the so-called oral application.
Instead
of calling on the appellant's counsel to respond, the court
referred to the rules and indicated that the rules required that an
application for directions be made in writing. It enquired of the
respondents' counsel if he was inclined to do so. The rest is
history.
Undoubtedly
the court was correct.
The
rules require that such application be in writing. The rules provide,
in relevant part:
“151.
Application for directions after pleadings closed: notice to opposite
party
(1)
In any action after pleadings are closed, or by leave of a judge,
after appearance has been entered, either party may make a chamber
application for directions in respect of any interlocutory matter on
which a decision may be required.
(2)….
152.
Matters to be stated in the notice
(1)
The party applying for directions shall in his affidavit state the
matters in respect of which he intends to ask for directions, and
such matters shall, so far as is necessary and practicable, include
generally the proceedings to be taken in the action and the costs of
the application, and more particularly the following: pleadings,
amendments of pleadings, particulars, special pleas and exceptions,
admissions, removal of trial, the hearing of arguments on points of
law, the hearing separately of one or more of the issues, discovery,
inspection of documents, inspection of movable and immovable
property, commissions, examination of witnesses, place, and date of
trial.
(2)….
153.
Opposite party may also apply for directions
(1)
The party to whom notice of an application is given shall also, as
far as is practicable, apply at the hearing of the application for
any directions which he may desire in respect of the matters
specified in rule 152.
(2)
Such party, if he intends to apply for any directions, shall before
the hearing give notice to the other party or parties to the action
of the matters in respect of which he intends to ask for directions.
(3)…..
154.
Order on hearing of application
Upon
the hearing of the application, the judge shall, as far as
practicable, make such order as may be just as to any matters in
respect of which directions were asked.”
Given
the nature of the contentious issues raised by both counsel before
the court a
quo
as to their respective differences in the context of the stated case,
the learned judge could not have adverted to the oral application and
achieved a measure of justice.
Although
the fact of title being in the appellant's name was admitted, there
was an issue as to the legality of that title, with an allegation of
fraud attaching to such registration.
The
main issue for determination by the court was whether or not
ownership of the immovable property was in dispute.
This
has to be considered against a statement on the agreed facts to the
effect that the defendants' primary defence to the rei
vindicatio
was an allegation that the plaintiff's ownership of the property
was tainted with fraud and irregularity, which the plaintiff disputed
and believed to be irrelevant in the determination of the matter.
In
addition to the above, the respondents had not placed before the
learned judge a
quo
a draft order spelling out the nature of the relief sought.
I
conclude that the learned judge's assertion that she declined to
hear the oral application is borne out by the record.
WHETHER
THE COURT A
QUO
SHOULD HAVE DECLINED TO HEAR THE WRITTEN CHAMBER APPLICATION
I
have found that the court declined to hear the oral application.
Indeed, Mr Mpofu
did not suggest that he made any submissions before the judge
concerning the purported application. The judge did not make any
ruling on the substance of the application to justify a finding by
this court that there was an oral application before the court which
it determined on the merits.
The
written chamber application was therefore properly before the court.
It
is also pertinent to note that the appellant responded to the written
application.
In
the opposing affidavit, a statement is made to the effect that the
respondents had made an incompetent application for directions and
that the said application was contrary to the rules. This was the
view of the learned judge a
quo
and she rightly refused to hear the oral application. The first
ground of appeal is without merit and is accordingly dismissed.
WHETHER
THE COURT MISDIRECTED ITSELF IN GRANTING THE ORDER FOR DIRECTIONS
A
stated case, or special case, is provided for in the rules of court,
High Court Rules 1971. Order 29 of the Rules is pertinent and
provides:
“ORDER
29
SPECIAL
CASES
199.
Special case by consent
(1)
The parties to a civil action or suit may, after summons has been
issued, concur in a statement of the questions of law arising therein
in the form of a special case for the opinion of the court.
(2)
Every such special case shall be divided into paragraphs numbered
consecutively, and shall concisely state such facts and documents as
may be necessary to enable the court to decide the questions raised
thereby.
(3)
Upon the argument of such case, the court and the parties shall be at
liberty to refer to the whole contents of such documents, and the
court shall be at liberty to draw from the facts and documents stated
in any such special case any inference, whether of fact or law, which
might have been drawn therefrom if proved at a trial.
200.
Special case by order before trial
If
it appears to the court that there is in any cause or matter a
question of law which it would be convenient to have decided before
any evidence is given or any question or issue of fact is tried, the
court may make an order accordingly and may direct such question of
law to be raised for the opinion of the court, either by special case
or in such other manner as the court may deem expedient, and all such
further proceedings as the decision of such question of law may
render unnecessary may thereupon be stayed.
201.
Special case to be typewritten, etc.
Every
special case shall be typewritten or printed by the plaintiff and
signed by the several parties or their counsel, and shall be filed by
the plaintiff. If the registrar so requests, one or more copies of
the special case shall be filed for the use of the court.
202.
Special case affecting person under disability
If
a minor or person of unsound mind is a party to such proceedings, the
court may, before determining the questions of law in dispute,
require proof that the statements in such special case so far as
concerns the minor or person of unsound mind, are true.
203.
Judgment and directions regarding other issues
When
giving its decision upon any question in terms of this Order, the
court may give such judgment as may upon such decision be appropriate
and may give any direction with regard to the hearing of any other
issues in the proceedings which may be necessary for the final
disposal thereof.
204.
Judgment without hearing evidence
If
the question in dispute is one of law, and the parties are agreed
upon the facts, the facts may be admitted and recorded at the trial
and the court may give judgment without hearing any evidence.”
The
procedure provided for in the above rules is available to parties to
a civil dispute.
The
parties must agree on the undisputed facts. The provisions are
available when there is no dispute on the facts. It is meant for
situations where only questions of law are in contention.
The
uniform rules of South Africa contain provisions that are
substantially similar to our own. In Bane
v D'Ambrisio
2010 (2) SA 539 (SCA), the court had to consider what meaning was to
be ascribed to the phrase 'stated case'. At 543E-G, the court
remarked:
“Rules
33(1) and 33(2) make it clear that the resolution of a stated case
proceeds upon the basis of a statement of agreed facts. It is, after
all, seen as a means of disposing of a case without the necessity of
leading evidence. The case drafted by the parties, with both of them
reserving their positions with regard to the factual assumptions, was
plainly contrary to the basic object of the rule and the procedure of
asking the court to rule on issues thus defined was tantamount to
asking the court to give advice on possibly abstract questions.”
It
is trite that a statement in a special case must set forth the facts
agreed upon, the question of law surrounding the dispute, and the
issue for determination by the court.
In
this jurisdiction, the locus
classicus
on the requisites of a stated case is Kunonga
v The Church of Central Africa
SC25/17. GARWE JA set out the requisites to be the following:
“WHAT
IS A STATED CASE
[14]
The rules of court of most countries make provision for the reference
of a matter as a stated case. But what is a stated case?
It
is a case that is brought upon the agreement of the parties who
submit a statement of undisputed facts to the court but who take
adversarial positions as to the legal ramifications of the facts,
thereby requiring a judge to decide the question of law presented
(Legal
dictionary. The free dictionary.com).
Put another way, it is a formal written statement of the facts in a
case, which is submitted to the court by the parties, jointly, so
that a decision may be rendered without trial. The facts being thus
ascertained, it is left for the court to decide the question of law
presented. A stated case is also called a special case, an amicable
action, a case agreed, or a friendly suit (US
Legal, Inc.)
[15]
In the case of Elizabeth
Mambus v Motor Vehicle Accident Fund
Case No. SA 4/2013, a majority decision of the Supreme Court of
Namibia, handed down on 11 February 2015, the court noted:
'… the
intention is that the stated case will adjudicate the whole of the
dispute as stated in the case that exists between the parties and
that this is ideally done by setting out the facts agreed to, the
questions of law in dispute, and the contentions of the parties. The
parties may also require a court to decide an issue of law on the
basis of alleged facts as
if agreed.'
[16]
The court further cited with approval remarks made by the Irish
Supreme Court in Simon
McGinley v The Deciding Officer – Criminal Assets Bureau
[2001] IESC 49 that:
'The
case should set out clearly the judge's findings of fact, and
should also set out any inferences or conclusions of fact which he
drew from those findings.
What
is required in the case stated is a finding by the Judge of the facts
and not a recital of the evidence. Except for the purpose of
elucidating the findings of fact, it will rarely be necessary to set
out any evidence in the case stated save in the one type of case
where the question of law intended to be submitted is whether there
was evidence before the Judge which would justify him deciding as he
did.… This court should not be required to go outside the case to
some other document in order to discover them.
The
same principle applies to the contention of the parties, the
inferences to be drawn from the primary facts, and the Tribunal's
determination. All these must be found within the case, not in
documents annexed …'
[17]
Once the facts are agreed, the court should proceed to determine the
particular question of law that arises and not delve into the
correctness or otherwise of the facts. It is bound to take those
facts as correctly representing the agreed position and to thereafter
determine any issues of law that may arise therefrom. It is not open
to the parties to the stated case to seek to re-open the agreed
factual position or to contradict such position. Nor can either party
seek to ignore existing legal principles or findings of fact made in
connection with the same matter by another court. Of course, either
party has a remedy at common law, to withdraw any concession made in
a stated case owing to justus
error,
fraud, mistake, or any other valid ground.
[18]
It has become necessary to restate what a stated case is owing to the
fact that in some instances, the appellant, in this case, has made
submissions contrary to the stated case brought before the court. The
appellant has also ignored in part the decision of this Court on
which the stated case is predicated. It bears stating that if this
happens, a party will be kept strictly to the terms of the agreed
facts, as it is on the basis of those facts that the court would have
been invited to make a determination on some specific question of
law.”
The
court a
quo
relied on Kunonga's case in deciding whether or not to grant the
application for directions. The learned judge reasoned as follows:
“What
in essence this Court is being asked to determine is if it can
resolve the dispute between the parties based on the stated case.
Para
1.1 of the stated case states that the respondent is the registered
owner of the property. In para 1.4 of the special case, the parties
recognize that the applicants' primary defense to the rei
vindicatio
is that plaintiff's ownership of the property is tainted with fraud
and illegality.
The
parties recognize that the applicants have a defense to the claim
having filed a challenge to the respondent's title. An attempt to
settle the matter failed after the withdrawal of a deed of
settlement. The claim has since been reinstituted.
It
is not surprising that the stated case has attracted so much
controversy. The stated case states two mutually exclusive
situations, one of which cannot be correct.
The
statement that the plaintiff is the registered owner of the property
cannot be accepted on the face of it especially in the face of
indications to the contrary in the stated case.
The
presumption of ownership can only be rebutted by evidence.…
Mention
is made of a fraudulent power of attorney used to support the
transfer.
The
stated case records that the respondent disputes the allegations of
fraud. The stated case discloses a material dispute of fact over
ownership of the property between the parties that cannot be resolved
on the papers. The fact that the parties previously agreed that the
matter should be dealt with as a special case in a case where there
are glaring material disputes of fact that require to be ventilated
at a trial has no effect of binding the court to such an arrangement.
Resort
to the special case procedure for the relief of a rei
vindicatio
in the face of the disputes existent on the papers is inappropriate.
Where
a special case discloses substantial disputes of fact, the court
cannot simply rubber stamp it and accede to insistence on dealing
with the case as a special case because the parties agreed on a
statement of agreed facts.
Whenever
a material dispute of fact appears on the face of a stated case,
which cannot be resolved on the papers filed, that dispute will
require full ventilation.
The
applicants raise a defense of claim of right.
An
allegation of fraud cannot be proved in the absence of the documents
allegedly used to commit the fraud. The best course to take is to
allow the applicants to call evidence to substantiate their claim of
fraud. I am not persuaded by the respondent's argument that the
defendants are bound by the stated case.
The
stated case does not clearly or correctly articulate the issues to be
dealt with.
An
issue arises regarding whether the respondent acquired valid title
from the applicants. What the parties ought to have done is to
request the court to determine who the owner of the property is,
hence asking the court to determine the issue of ownership. Instead,
the court was asked to determine,
“whether
or not ownership of the immovable property is in dispute”
What
the court is being asked to do is just to make a declaration
regarding the existence of a dispute over the property.
If
the court determines that ownership is in dispute then what? That
determination does not dispose of the dispute between the parties.
The
court ought to have been asked to resolve the real dispute between
the parties. The issue could have been worded along the following
lines, “whether
the respondent acquired valid title from the applicants”.
That is the issue disclosed by the agreed facts. This way, the trial
court is equipped to make a determination over the ownership of the
property and dispose of the dispute.”
The
special case in casu
was set out as follows:
“WHEREAS
the plaintiff issued summons and declaration against the two
defendants under case number HC2741/14 seeking a rei
vindication
order
against the said defendants, together with costs of suit;
AND
WHEREAS the said defendants having been served with the summons,
defended the proceedings and filed their Plea of record on 27 June
2014;
AND
WHEREAS the plaintiff filed its replication to the said plea;
AND
WHEREAS the matter proceeded to a pre-trial conference before the
Honourable Mrs Justice Matanda-Moyo;
AND
WHEREAS at the pre-trial conference the parties agree to proceed by
way of a special case;
NOW
THEREFORE it
is stated that:
1.
THE AGREED FACTS
1.1
Plaintiff is the registered owner of the property in dispute, that
is, Lot 1 of Stand 21A Oval Park Township measuring 5653 square
metres, otherwise known as No.69 Glenara Avenue, Highlands, Harare.
1.2
The defendants had filed a suit under HC5960/13 challenging, inter
alia,
the plaintiff's title to the above-named property.
1.3
On 16th
March 2015, a Deed of Settlement was executed under 5960/13 in terms
of which defendants withdrew their claim against, among others, the
plaintiff in respect of the abovenamed property. Find attached
as
annexure “A” a copy of the Deed of Settlement presented at the
pre-trial conference.
1.4
Defendants' primary defence to plaintiff's rei
vindication
is
the allegation that the plaintiff's ownership of the property is
tainted with fraud and illegality, which the plaintiff disputes and
believes is of no relevance to its claim for rei
vindicatio.
2.
ISSUES FOR DETERMINATION
The
parties set out the issues for determination in this matter as
follows:
2.1
Whether or not the ownership of the immovable property in issue is in
dispute.
2.2
Whether or not therefore the plaintiff is entitled to a rei
vindicatio
order.
3.
HEADS OF ARGUMENT
The
Parties Counsel agreed and undertook to file heads of argument in
respect of their positions on the facts as set out above as follows:
3.1
The plaintiff's heads of argument shall be filed on or before 20
November 2015;
3.2
The defendants' heads of argument shall be filed on or before 25
November 2015.”
A
stated case must set out the facts as agreed by the parties. The
facts must not be in contention nor should a material dispute of fact
be manifest on the statement constituting the agreed facts.
In
this case, the registration of title in the appellant's name is
admitted.
The
causa
for the registration of title and how it came to be is challenged by
the respondents ex-facie the “agreed facts”. They allege fraud on
the part of the appellant and suggest that they wish to defend the
action on the premise that the registration of title was illegal.
The
definition of a special case was spelt out in the South
African case of National Union of Mineworkers v Hartebeestfon
1986 (3) SA 53, (AD), at 56-7, as follows:
“……In
none of them is 'special case' defined, presumably because the
expression has an accepted meaning. Mozley and Whitely's Law
Dictionary, 7th
ed says sv
'special case' that it is:
“1.
A statement of facts agreed to on behalf of two or more litigant
parties, and submitted for the opinion of a court of justice as to
the law bearing upon the facts so stated.”
Stroud's
Judicial Dictionary 4th
ed states that:
“A
special case is a written statement of the facts in a litigation,
agreed to by the parties, so that the court may decide these
questions according to law……….It is also known as a case
stated.”…
It
is, therefore, implicit in the expression 'in the form of a special
case' that there should be a statement of the facts agreed by the
parties.”
The
appellant has suggested that the procedure “created by the court a
quo is unknown at law and cannot produce valid proceedings”. It has
sought reliance for that contention on Matanhire
v B P Shell Marketing
2005 (1) ZLR 140 (S), at 147F-G.
I
am unable to agree and I conclude that the reliance on the Matanhire
judgment in this context is misplaced.
The
ratio in Matatanhire's
case is to the effect that an application for directions can only be
made by a court in respect of a matter that was pending before the
court.
In
this case there was a claim for a rei vindicatio pending before the
court and the court could entertain an application for directions.
The
rules permit the giving of directions and it is trite that the High
Court can do anything except that which the law expressly forbids it
to do. In this case, the rules permit the court to give directions
and that is precisely what the court did.
In
this case, however, there is no statement of agreed facts.
The
parties have set out their respective positions with the respondents
postulating a defence to the claim for rei
vindicatio.
The respondents challenged the validity of the appellant's title on
allegations of fraud in the registration thereof.
What
the parties filed did not comply with the requirements of a special
case, and given what the parties themselves set out on the “stated
case”, I cannot conclude that the learned judge in the court a
quo
misdirected herself in finding, as she did, that there were material
disputes of fact requiring the adduction of evidence.
Evident
from the “stated case” as formulated by the parties was a clear
dispute on the facts.
The
order gives the respondents leave to deal with facts relevant to the
central issue of the existence or otherwise of valid title for
seeking relief under rei
vindicatio.
The onus
to begin is placed on the respondents and the appellant is afforded a
right to rebut any evidence led by the respondents.
No
one can be in doubt that these are the issues for determination, even
under the stated case itself.
The
issues as recorded by the parties are:
(a)
whether or not the ownership of the immovable property in issue is in
dispute; and
(b)
whether or not the plaintiff was entitled to an order for a rei
vindicatio.
It
was the parties who were responsible for drafting the case and issues
for determination. It was not the court.
It
seems to me that the manner of pleading adopted by the parties has
resulted in the adoption of a procedure that the pleadings did not
support.
If
the title to the property was not in issue, it should therefore not
have been placed before the court for adjudication. The fact that it
was so placed and that upon a consideration of the pleading
themselves the court was of the view that it could not resolve the
matter on the papers as a material dispute of fact was evident on
title cannot be blamed on the court.
The
respondents, on the papers, raised a defence to the claim.
The
court was duty-bound to consider the defence. It could not do so
based on a supposed stated case. The issue of how the appellant
acquired its title was pertinent to the disposition of the dispute.
The court could not and is not expected to turn a blind eye to
allegations of fraud or illegality. It realized that there were real
issues the determination of which required that the parties adduce
oral evidence.
There
was a clear contradiction in terms of what the appellant's case was
and what the respondents' case was. The court exercised its
discretion, and there is no allegation that such exercise was
injudicious or capricious.
The
matter was therefore not properly before the court and ought not to
have been referred for determination as a stated case.
The
appellant suggests that the court a
quo
erred in holding that the stated case could be maintained but that
the parties could give evidence on the question of the registration
of title.
I
think this contention has merit.
Once
the court a
quo
concluded that there were material disputes of fact on the “stated
case” the complexion of the matter was altered.
The
claim for a rei
vindicatio
was premised on the appellant's title which was being challenged by
the respondents. The challenge to the appellant's title as a
consequence raised the appellant's right to claim eviction as an
issue.
This
was the only issue for determination between the parties. As a
result, there was no stated case for adjudication.
Even
if the court was inclined to entertain the application for
directions, once it concluded that there were material disputes of
fact it ought to have given directions in which it ordered the matter
back to a pre-trial conference for the settling of issues for trial
purposes. This, in my view, would allow the parties to properly
consider their respective positions vis-a-vis the dispute to ensure
that all issues pertinent to the determination of the matter are
placed before the court.
Counsel
for the respondent submits that the rules give the court the
discretion on how to direct the case to be heard.
I
accept as correct the contention by the respondents on this point.
Rule
154 provides that upon hearing the application, the judge shall, “as
far as practicable make such order as may be just to any matters in
respect of which directions were asked.”
In
my view, the rules give the judge the discretion to make such order
as may result in the matter being dealt with to achieve justice
between the parties.
I
did not understand the appellant to suggest that the court lacks the
discretion to make an order for directions on the hearing of the
matter. What the appellant suggested was that the order for
directions was not one that the court is legally permitted to give.
However,
in the instant case, there was no stated case to determine and to the
extent that the court a
quo
continued to deal with the matter as if it was a stated or special
case, there was a gross misdirection on the part of the court.
This
is a misdirection that impacts upon the substance of the order issued
by the court a quo.
It
was the wrong order in view of the fact that there was no stated
case. It was thus a procedural irregularity warranting interference
by this court.
In
my view, this is a proper case for this court to invoke its powers of
review as provided in the Supreme Court Act, [Chapter
7: 13],
which provides as follows in relevant part:
“25
Review powers
(1)
Subject to this section, the Supreme Court and every judge of the
Supreme Court shall have the same power, jurisdiction and authority
as are vested in the High Court and judges of the High Court,
respectively, to review the proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
(2)
The power, jurisdiction and authority conferred by subs (1) may be
exercised whenever it comes to the notice of the Supreme Court or a
judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision notwithstanding that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.
(3)
Nothing in this section shall be construed as conferring upon any
person any right to institute any review in the first instance before
the Supreme Court or a judge of the Supreme Court, and provision may
be made in rules of court, and a judge of the Supreme Court may give
directions, specifying that any class of review or any particular
review shall be instituted before or shall be referred or remitted to
the High Court for determination.”
Notwithstanding
the fact that the appellant has not attacked the court a
quo
in deciding to entertain the parties herein in what was purportedly a
stated case which ex-facie the pleadings raised material disputes of
fact, the judgment of the court a quo cannot stand. It must be set
aside on the basis that it was irregular.
In
my view, the court did misdirect itself in ordering that the matter
should proceed as a stated case.
Once
it found that there were material disputes of fact on the so-called
stated case, it should have referred the matter to trial.
This
means that the appellant has partially succeeded in relation to
ground 4. The costs should be apportioned between the parties.
However,
because of the irregularity that ensued when the court dealt with the
matter as a stated case in the light of the material disputes of fact
ex facie the alleged stated case, the order of the court cannot stand
and must be set aside.
In
the result it is ordered as follows:
1.
The appeal is allowed in relation to the fourth ground only.
2.
In the exercise of review powers vested in the court in terms of s25
of the Supreme Court Act [Chapter
7:13],
the order of the court is set aside in its entirety.
3.
Each party is ordered to pay his or her own costs.
4.
The matter is remitted to the court a
quo
for the setting up of a pre-trial conference before a judge in
chambers.
PATEL
JA:
I agree
BERE
JA:
(no longer in office)
Atherstone
& Cook,
appellant's legal practitioners
Thomson
Stevenson & Associates,
respondents' legal practitioners
