Urgent
Chamber Application
KAMOCHA
J:
On
30 November 2005 the first respondent - Bell Inn (Pvt) Limited was
granted a spoliation order by GOWORA J in the following terms:
“INTERIM
RELIEF GRANTED
Pending
determination of this matter, applicant is granted the following
relief:
1.
That 1st
respondent is directed to remove himself and property and all persons
holding through him from Arden Estate within 24 hours of the date of
service of this order.
2.
The Deputy Sheriff is authorised to evict 1st respondent and all
persons holding through him from the farm.
3.
That 1st
respondent is interdicted from interfering with applicant's farming
activities.
4.
That 2nd
respondent is directed to give the necessary instruments to Nyabira
police to render all necessary assistance to the Deputy Sheriff in
implementing his order should 1st
respondent offer any resistance thereto.
TERMS
OF FINAL ORDER SOUGHT
1.
That 1st
respondent be interdicted from returning or visiting Arden Estate.
2.
That 1st
respondent pay the costs of application on a legal practitioner and
client scale.”
In
that case Bell Inn (Pvt) Limited, the 1st
respondent in the present proceedings was the applicant while Mr
Zakeyo Mereki, the applicant in the present case was the 1st
respondent and the Commissioner of Police was the 3rd
respondent.
On
that same day id
est
30
November 2005 Mereki filed an application to suspend service of Bell
Inn's application on himself. His application was heard in chambers
on 5 November 2005 and judgment was handed down on 7 November.
The
order that the court issued was as follows:
“TERMS
OF RELIEF MADE
1.
That the 2nd
respondent be and is hereby ordered to suspend service of the order
annexure “C” on the applicant.
2.
That the applicant be and is hereby entitled to remain in occupation
of subdivision 1 of Arden Estate in Zvimba District of Mashonaland
West Province until the final determination of this matter and to
carry on all farming activities which he was engaged in or intended
to engage in consequent upon his right to occupation in terms of
annexure “A” the letter dated 10th
November 2005 from the acquiring authority.
TERMS
OF ORDER SOUGHT
1.
That the applicant be and is hereby declared to be the rightful
occupier of No.1 Arden Estate in Zvimba District of Mashonaland West
Province in terms of the offer letter annexure “A” dated 10th
of November 2005.
2.
That the 1st
respondent be and is hereby ordered to cease occupation of the
subdivision 1 of Arden Estate in Zvimba District of Mashonaland West
Province.
3.
That the 1st
respondent pay the costs of this application.”
When
Bell Inn's application was served on Mereki on 2 December 2005 he
had already filed the above application seeking to prevent the Deputy
Sheriff from effecting service on him.
In
the same application Mereki was seeking for a declarator.
As
already stated above the court handed down the judgment on 7 December
2005 wherein it declared Mereki as the correct occupier of the
disputed piece of land.
Two
days later Bell Inn filed a notice of appeal against that judgment.
Mereki
who is the respondent in the appeal contended that the appeal was a
nullity. Hence the order that he was granted remained operative. It
could only have been suspended had the appeal been properly and
validly noted against that judgment and order, so his contention
went.
The
appellant appealed against the granting of an interdict to the
respondent.
The
respondent argued that when an interdict is granted it was not
appellable. It was only the refusal of an interdict, which is
appellable.
Mr
Chikumbirike
who appeared on behalf of the respondent argued this point at some
length citing some South African authorities.
He
concluded that the legal position on that point was as stated in the
South African authorities and went on to submit that the appellant
had misread the law.
It
turned out however, that it was him who had misread the law.
There
was no need for the respondent to refer to foreign authorities when
our statutes have the answer to the question that falls to be
decided.
In
casu
the
answer lies in section 43(2)(d)(ii) of the High Court Act [Chapter
7:06]
which recites that –
“(2)
No appeal shall lie –
(a)………………….
(b)…………………..
(c)…………………..
(d)
from an interlocutory order or interlocutory judgment made or given
by a judge of the High Court, without the leave of a judge, if that
has been refused, without the leave of a judge of the Supreme Court,
except in the following cases -
(i)……………….
(ii)
Where an interdict is granted or refused.”
Quite
clearly there was no need for the appellant to obtain leave of the
judge in this matter.
Its
appeal was properly and validly noted and it suspended the judgment
and order handed down on 7 December 2005.
In
this application Mereki sought confirmation of the Provisional order
which the noting of an appeal suspended.
That
is clearly untenable.
There
is another issue in this application which is a cause for concern.
The
applicant did not file a draft of the order that he sought. He merely
stated what he was seeking at the conclusion of his founding
affidavit.
As
mentioned above, what he was seeking was the confirmation of the
order which had been suspended by the noting of an appeal.
On
realising that what he was seeking could not possibly be granted he,
a day after the hearing then filed a draft order which was different
from what he originally sought. This time around his interim relief
read -
“TERMS
OF RELIEF MADE
A(1) That
the writ of execution issued by this Honourable Court on the 5th
of January 2005 be and is hereby set aside pending the confirmation
or discharge of the order reflected in “B” below.
(2)
That notwithstanding the noting of appeal in case no. HC6286/05 and
this case, the Provisional orders be operative with immediate
effect.”
This
is completely new and was never addressed at the hearing in chambers.
The
application was defective because it did not comply with the
peremptory provisions of the rules of this court in particular Rule
227(3) which reads -
“(3)
Every written applications shall contain a draft of the order
sought."
The
applicant did not seek condonation from the court for failure to file
a draft order with the application.
When
attention was drawn to this defect all that the applicant's legal
practitioner could say was that applicant would have no problems with
filing a draft order. He then went on to file a draft order which was
totally unrelated to what was argued at the hearing.
The
application also fails for failure to provide a draft of the order
sought.
In
conclusion, I hold that the application fails on two grounds:
(a)
That the order in case No. HC6286/05 was suspended by noting of an
appeal on 9 December 2005; and
(b)
That the application was defective in that it had no draft order for
which no condonation was sought for the failure to do so.
In
the result, I would dismiss the application with costs.
Chikumbirike
& Associates,
applicant's
legal practitioners
Wintertons,
respondent's legal practitioners
