UCHENA
JA: This
is an appeal against the whole judgment of the High Court dated 13
August 2020, striking off the roll the appellant's application for
rescission in HC6771/19 of a default judgment granted in favour of
the respondents in HC12074/16
and granting a consent order, which dismissed an interdict granted
against the respondents in HC6784/19.
At
the hearing of the appeal Ms Sanhanga
for the first respondent and Mr Uriri
for the second and third respondents raised points in
limine
on the validity of the appellant's notice of appeal. They submitted
that there is no valid appeal before the court because the appeal was
noted without leave of the court against an interlocutory order and
was also noted against a consent order.
This
judgment is restricted to the determination of these preliminary
points.
FACTUAL
BACKGROUND
The
facts of the case can be summarised as follows;
The
appellant (Technoimpex JSC) is a company duly incorporated in terms
of the laws of Bulgaria. It is the registered owner of an immovable
property in Harare, Zimbabwe known as Lot 12 of Lot 15 Block C of
Avondale, commonly referred to as Bath Mansions Flats at number 32
Bath Road, Avondale, Harare held under Deed of Transfer number
1657/89.
In
case number HC6784/19 it applied for an interdict against the first
to the third respondents who it alleged wanted to steal its property.
The
High Court granted the application. In arriving at the decision to
grant the provisional order it said:
“From
the history of the matter that I outlined above the applicant has
always been the lawful owner of Bath Mansions Flats. The judgment I
referred to (sic)
showed he was successful in warding off the efforts of the first and
second respondents to steal the property. For that reason, the
applicant has a real right in the property. Once the property has
been transferred to a third party the applicant is likely to suffer
irreparable harm. In this case the second respondent has applied for
a rates clearance certificate to enable her to transfer title of the
property to third respondent. Such harm is apprehended. In my view
the balance of convenience favours the granting of the relief sought
until a lasting solution to the saga is found. There is therefore no
other effective alternative remedy other than granting the relief
sought. The application will succeed and I grant the following order.
IT
IS ORDERED THAT
TERMS
OF FINAL ORDER SOUGHT
INTERIM
RELIEF:
“1.
The 1st
Respondent be and is hereby interdicted from transferring Lot 12 of
Lot 15 Block C of Avondale commonly known as Bath Mansions Flats, 32
Bath Road Avondale, Harare previously held in favour of Technoimpex
JSC under Deed of Transfer No.1657/89 and currently held in favour of
1st
Respondent under Deed of Transfer No.1080/2019 and certificate of
registered title no. 1081/2019 to 3rd
Respondent or any other persons.
2.
1st
3rd
4th
and 5th
Respondents be and are hereby interdicted from transacting on and/or
facilitating any process for the transfer of Lot 12 of Lot 15 Block C
of Avondale commonly known as Bath Mansions Flats, 32 Bath Road
Avondale, Harare previously held in favour of Technoimpex JSC under
Deed of Transfer no. 1657/89 and currently held held in favour of 1st
Respondent under Deed of Transfer no. 1080/2019 and certificate of
registered title no. 1081/2019 unless with specific leave of the
court hearing this matter.”
3.
---------
4.
The Registrar of Deeds and all the Respondents cited herein be and
are hereby interdicted from facilitating or passing further transfer
of Lot 12 of Lot 15 Block C of Avondale Harare, previously held under
Deed of Transfer Number 1657/89 and currently held in favour of 1st
Respondent under Deed of Transfer no. 1080/2019 and certificate of
registered title no. 1081/2019, commonly known as Bath Mansions
Flats, 32 Bath Road Avondale, Harare.
5.
The 1st,
2nd
and 3rd
Respondents be and are hereby interdicted from advertising, selling,
pledging, ceding, mortgaging, donating or in any way encumbering or
alienating Lot 12 of Lot 15 Block C Avondale Harare.
6.
Pending the determination of this matter and High Court Case no.
2012/2018, whichever is the later, the Sheriff of the High Court be
and is hereby directed to serve notices, court process, pleadings,
orders issued by any person or litigant (sic) be served on
Applicant's legal practitioners mentioned in para 3 above.
7.
Pending the determination in High Court Case no. HC12074/16 or the
application for rescission of default judgment granted in High Court
matters HC2972/17 and HC11246/17 whichever will be the later, the
Sheriff of Zimbabwe be and is hereby ordered not to carry out any
eviction at 32 Bath Road Avondale Harare in terms of any litigation
commenced after 13 September 2016 by any person without the leave of
the Court hearing the present matter.”
It
is apparent from the provisional order that it had various interdicts
protecting the appellant from possible harmful conduct by the first,
second
and
third respondents.
In
subsequent proceedings before Musithu J for the confirmation of the
provisional order in HC6784/19, the parties agreed that the
provisional order's fate shall depend on the court's decision on
the merits, in the application for rescission in HC6771/2019. The
court a
quo
commented on that agreement as follows:
“Mr
Magwaliba advised that case Number HC6784/19 was set down before
Musithu J for the confirmation or discharge of the Provisional Order
and that the parties agreed that the Provisional Order be extended
until a determination is made in this matter. In the event that this
Court finds for the applicant the parties agreed that the Provisional
Order be confirmed and that if the court finds against the applicant
the Provisional Order will be discharged.
Ms
Sanhanga
for the first respondent and Mr Uriri
for the second and third respondents confirmed the above terms of the
agreement. I have had sight of the order issued by Musithu J in
HC6784/19. It indeed extends the Provisional Order in HC6784/19 until
the determination of the present matter”.
In
HC6771/19 the court a
quo
in determining the application before it said:
“I
have reached the conclusion that the applicant has not shown the
deponent's authority by furnishing a resolution. The effect of this
is that there is no founding affidavit before the court. A court
application must be supported by a founding affidavit. Without a
founding affidavit there is no application.
All
things being equal that finding is such that I did not have to
dispose of the question of locus
standi
which I determined only because its factual basis was related to the
question of lack of authority. The primary basis of my judgment is
that the application is not authorised. It is thus a nullity. There
is therefore, nothing before me to dismiss. The only appropriate
order is an order striking the matter off the roll.”
(emphasis
added)
It
in the result ordered as follows:
“1.
That the application is struck off the roll with costs.
2.
The Provisional Order granted in case number HC6784/19 on 9 October
2019 is, by consent of the parties, discharged with costs.”
Aggrieved
by this decision, the appellant noted the present appeal.
Before
the appeal could be heard on the merits Counsels for the respondents
raised preliminary issues on the validity of the appellant's notice
of appeal. They submitted that the notice of appeal is invalid
because it appeals against a consent order and an interlocutory
order.
SUBMISSIONS
MADE BY THE PARTIES ON THE PRELIMINARY ISSUES
Ms
Sanhanga,
for the first respondent, argued firstly that the notice of appeal
was defective as the appeallant sought to appeal against an order
made by consent in HC6874/19. Secondly, she submitted that the appeal
was also defective in that it related to an interlocutory order of
which leave to appeal was neither granted nor sought. Lastly,
she submitted that the matter should be struck off the roll as there
is no valid appeal before the court.
Mr
Uriri
for the second and third respondents agreed with the first
respondent's Counsel.
He
submitted that the appellant's representative's reliance on a
power of attorney instead of a resolution by the Board of the
appellant's Directors rendered the appellant's application in
HC6711/19 fatally defective.
He
submitted that the court a
quo
therefore correctly struck the application off the roll.
He
further argued with reference to the discharge of the provisional
order as a result of the striking off the roll, of HC6771/19, that a
decision is not only a decision on the merits but can also be a
decision on the basis of technical objections.
Mr
Uriri
submitted that the court a
quo
made a determination on fatal procedural defects which is a decision
of the court against the appellant which triggered the coming into
operation of the parties agreement by consent before Musithu J.
Counsel
for the second and third respondents also agreed with the first
respondent's counsel that there was a consent order which could not
be appealed against and once that is accepted, the notice of appeal
becomes invalid.
He
therefore submitted that his clients are entitled to costs as they
have been forced to defend themselves against an invalid appeal.
In
response Mr Mpofu
for the appellant argued that the order of the court a
quo
was not by consent as the appellants agreed to a course of action and
not to the result of the court a
quo.
He
also submitted that consent to a course of action does not amount to
a concession to the correctness of the judgment.
He
thus submitted that since the judgment of the court a
quo
was not a consent order it could be appealed against.
In
respect of the interlocutory order he argued that it had a final
effect and could thus be appealed against without leave of the court.
THE
ISSUES
Two
issues arise for the determination of the preliminary points raised.
The issues for determination are:
1.
Whether or not the appellant consented to the order granted in para 2
of the court a
quo's
order and could therefore not appeal against it.
2.
Whether or not the appellant can appeal against the order issued in
HC6771/19 without the leave of court.
THE
LAW
The
law applicable to the facts of this case is as follows:
It
is an established principle of the law that a litigant cannot appeal
against an order by consent. The notice of appeal would be fatally
defective for lack of compliance with section 43(1) as read with
section 43(2)(c)(i) of the High Court Act [Chapter
7:06].
Section
43(2)(i) of the High Court Act provides as follows:
“43
Right of appeal from High Court in civil cases
(1)…
(2)(c)
No appeal shall lie from -
(i)
an order of the High Court or any judge thereof made with the consent
of the parties; or…”
Section
43(2)(c)(i) of the High Court Act clearly establishes that when a
party consents to the granting of an order by a court or a judge he
or she cannot appeal against the consent order.
In
the case of Thambi
v Stalka NO & Anor 1946 TPD 297 ROPER J
reasoned that there could be no appeal against a judgment by consent
given under the South African Magistrates Court Act 32 of 1944. He at
p300 said:
“It
is impossible to imagine any circumstances in which a party could
appeal against a judgment by consent; he might have good grounds for
setting aside or varying such a judgment but he would not and could
not appeal against it.”
Consent
to a court order by the parties, leading to the granting of a consent
order is a decision consciously made by the parties fully
appreciating the facts and the law applicable to the dispute between
them. The consent cannot be based on facts which were not in the
contemplation of the parties.
It
is an order granted by the court at the instance of the parties.
It
is also trite that a party to proceedings in which the court grants
an interlocutory order cannot appeal against such an order without
the leave of the court.
Section
43(1) provides as follows:
“43
Right of appeal from High Court in civil cases
(1)
Subject to this section, an appeal in any civil case shall lie to the
Supreme Court from any judgment of the High Court, whether in the
exercise of its original or its appellate jurisdiction.
(2)
No appeal shall lie -
(d)
from
an interlocutory order or interlocutory judgment made or given by a
judge of the High Court, without the leave of that judge or, if that
has been refused, without the leave of a judge of the Supreme Court,
except in the following cases -
(i)
where the liberty of the subject or the custody of minors is
concerned;
(ii)
where an interdict is granted or refused;
(iii)
in the case of an order on a special case stated under any law
relating to arbitration.”
(emphasis added)
There
are exceptions to the requirement for leave to appeal against an
interlocutory order. The three exceptions are:
(i)
where the liberty of the subject or the custody of minors is
concerned;
(ii)
where an interdict is granted or refused;
(iii)
in the case of an order on a special case stated under any law
relating to arbitration.
A
party can therefore only appeal against an interlocutory order
without leave of the court if the decision appealed against falls
under one of the three exceptions.
1.
WHETHER OR NOT THE APPELLANT CONSENTED TO THE ORDER GRANTED IN PARA 2
OF THE COURT A
QUO'S
ORDER AND COULD THEREFORE NOT APPEAL AGAINST IT
The
appellant's Counsel submitted that the appellant did not consent to
the order granted by Tagu J dismissing the interdict he had
previously granted as a provisional order. On the other hand Counsels
for the first respondent and the second and third respondents
submitted that the order was granted with the consent of all parties.
The
facts of this case establish that the order was preceded by the
parties appearing before Musithu J before whom the confirmation or
discharge of the provisional order granted by Tagu J in HC6784/19 had
been set down.
Parties
discussed the way forward which was presented to Musithu J by
Advocate Magwaliba who was representing the applicant who is now the
appellant.
At
p483 of the record Mr Magwaliba made the following submissions to
Musithu J:
“My
lord my learned friend approached me and suggested that the order
granted by his lordship the Honourable Tagu J being a provisional
order which granted interim relief protecting the applicant, remains
in force and protects the applicant in the interim in respect of the
property mentioned therein. And then the substantive issues will be
resolved within the context of the application for rescission of
judgment in HC6771/19. It occurs to me my lord that once the judgment
in issue which gave rise to this transfer is set aside as we expect
in HC6771/19 or is not set aside as my learned friends for the
respondent expect, the question of the confirmation of Justice Tagu's
order becomes resolved.”
Pages
484 to 485 of the record of appeal establish that, while parties were
still presenting their agreed positions to Musithu J the following
exchange took place between Musithu J and Advocate Magwaliba, for
the appellant, who was then the applicant:
“Musithu
J: So essentially if I understand your earlier submission, Advocate
Magwaliba I am confirming the interim relief by Tagu J. As of 9
October 2019?
“ADV
Magwaliba: No, no my lord. The confirmation of that order will entail
granting final relief which is not what the parties have agreed. The
parties have agreed to extend the provisional order. So
the provisional order remains, parties will then direct argument in
relation to HC6771/19 which has the effect of resolving the final
relief sought before Justice Tagu.”(emphasis
added)
When
the parties appeared before Tagu J, Advocate Magwaliba who was
representing the applicant, who is now the appellant introduced the
parties agreement to the judge on p489 as follows:
“The
position which pertains therefore my lord, is
that by resolving HC6771/19 necessarily the provisional order will
either be discharged if rescission is not granted, confirmed if
rescission is granted.
That is the basis upon which I referred that matter to the court. But
there will be no argument in relation to HC6784/19 because that
argument will be encapsulated in HC6771/19….”
(emphasis
added)
The
submissions by Advocate Magwaliba before Musithu J and Tagu J are
clear.
The
parties wanted the provisional order to be extended so that its fate
would be tied to that of the court a
quo's
decision on the merits in HC6771/19.
There
is nothing in his submissions before the two judges and his exchange
with Musithu J which suggests that any other decision in HC6771/19
should result in the discharge or confirmation of the provisional
order.
There
is however need to establish whether or not the parties consented to
the order granted by the court a
quo
in
para 2 of its order.
A
consent to a court order is a decision consciously made by a party
fully appreciating the facts and the law applicable to the dispute
between the parties. Consent to a court order cannot be based on
facts which were not in the contemplation of the parties.
In
this case the parties clearly agreed that the confirmation or
discharge of the preliminary order issued by Tagu J would be
dependant on whether or not the application for rescission in
HC6771/19 was granted or dismissed on the merits.
In
making his presentantion before Musithu J Mr Magwaliba said:
“And
then the substantive issues will be resolved within the context of
the application for rescission of judgment in HC6771/19. It
occurs to me my lord that once the judgment in issue which gave rise
to this transfer is set aside as we expect in HC6771/19 or is not set
aside as my learned friend for the respondent expects, the question
of the confirmation of Justice Tagu's order becomes resolved.”
(emphasis
added)
I
am satisfied that the parties did not agree that the fate of the
provisional order granted by Tagu J in HC6784/19 be determined by the
striking off the roll of the application in HC6771/19. The parties
agreement was that the fate of the provisional order was to depend on
whether or not the application for rescission in HC6771/19 was to be
granted or dismissed.
In
clarifying what the parties had agreed on, to Musithu J, Mr Magwaliba
said:
“The
parties have
agreed to extend the provisional order. So the provisional order
remains, parties will then direct argument in relation to HC6771/19
which has the effect of resolving the final relief sought before
Justice Tagu.”(emphasis
added)
Parties
agreed that they had to make submissions which would enable the court
a
quo
to make a decision on the merits which would resolve the issue of
whether or not the provisional order could be confirmed or set aside.
This
did not happen as the application for rescission was struck off the
roll an event which was not in the contemplation of the parties.
In
Georgias
& Anor v Standard Chartered Finance Zimbabwe Ltd 1998
(2)
ZLR 488 (S) at p496,
this
Court stated that an order by consent “extinguishes any cause of
action that existed.”
In
this case the striking off the roll of the application did not
exstinguish the cause of action between the parties. It merely
delayed its determination as the striking of the matter off the roll
does not prevent the appellant from filing another application on the
same cause of action.
Therefore,
the fact that the order granted by Tagu J striking the application in
HC6771/19
off the roll was not consented to by the parties means the
appellant's appeal against para 2 of the court a
quo's
order is properly before this Court.
The
respondents preliminary issue on this point should be dismissed.
2.
WHETHER OR NOT THE APPELLANT CAN APPEAL AGAINST AN INTERLOCUTORY
ORDER ISSUED IN HC6771/19 WITHOUT THE LEAVE OF COURT
In
arriving at the decision to strike the matter off the roll the court
a
quo
said:
“I
have reached the conclusion that the applicant has not shown the
deponent's authority by furnishing a resolution. The effect of this
is that there is no founding affidavit before the court. A court
application must be supported by a founding affidavit. Without a
founding affidavit there is no application.
All
things being equal that finding is such that I did not have to
dispose of the question of locus
standi
which I determined only because its factual basis was related to the
question of lack of authority. The primary basis of my judgment is
that the application is not authorised. It is thus a nullity. There
is therefore, nothing before me to dismiss. The only appropriate
order is an order striking the matter off the roll.”
(emphasis
added)
The
application before the court a
quo
was a nullity because the deponent to the founding affidavit had no
authority to represent the company.
The
appellant's failure to present before the court a
quo
a resolution by the appellant's board of directors authorising him
to represent the appellant, was fatal to the application.
There
was nothing before the court a
quo
to dismiss and the only appropriate order was to strike the matter
off the roll.
In
the light of the above considerations, and the law as provided by
section 43(2)(d) of the High Court Act, I am of the view that the
appellant had no right to appeal against the court a
quo's
interlocutory order without the leave of the court.
Section
43(2)(d) of the High Court Act provides as follows:
“(2)
No appeal shall lie -
(d)
from an interlocutory order or interlocutory judgment made or given
by a judge of the High Court, without the leave of that judge, or, if
that has been refused, without the leave of a judge of the Supreme
Court, except
in the following cases -
(i)
where the liberty of the subject or the custody of minors is
concerned;
(ii)
where an interdict is granted or refused;
(iii)
in the case of an order on a special case stated under any law
relating to arbitration.”
(emphasis
added)
The
exceptions under (i) to (iii) do not apply to the striking off of the
application in HC6771/19 from the roll.
The
appeal against para 1 of the court a
quo's
order is therefore a nullity.
If
there was no matter before the court a
quo,
there is therefore also nothing before this Court.
In
Jensen
v Acavalos
1993
(1) ZLR 216 (S) KORSAH JA at 220B said that the reason why a fatally
defective notice of appeal could not be amended was that:
“… it
is not only bad but incurably bad”.
In
casu
there
was no proper resolution thus there was no proper application for
rescission before the court a
quo.
The appeal before us in respect of the interlocutory order is fatally
defective and cannot even be amended.
In
ZOU
v Ndekwere
SC52/19
at p18
Garwe
JA (as he then was) commenting on defective processes said:
“Once
the court had determined that all the grounds of appeal before it
were attacking factual findings and not issues of law, it should have
found that there was, therefore, no proper appeal before it.
And
if there was no proper appeal before it, there was, in fact, nothing
before it.
And if there was nothing before the court, there was therefore
nothing to dismiss. The only appropriate course of action, in these
circumstances, would have been to strike the matter off the roll.”
(emphasis
added)
It
is clear that the notice of appeal against the striking of the
application in HC6771/19 off the roll in this case does not comply
with section 43(1)
and (2)(c)(i) of the High Court Act.
It is fatally defective.
The
matter must therefore be struck off the roll.
DISPOSITION
In
the result, the preliminary objection in respect of paragraph 1 of
the court a
quo's
order has merit and for that reason there is no valid appeal against
paragraph 1 of the court a
quo's
order before this Court.
In
respect of paragraph 2 of the court a
quo's
order I have found that there was no agreement between the parties
that if the application in HC6771/19 was struck off the roll then the
provisional order granted in HC6784/19
would be discharged.
Both
parties have succeeded on one of the issues. Therefore
each party should bear its own costs.
It
is therefore ordered that:
1.
The notice of appeal against para 1 of the court a
quo's
order is a nullity.
2.
The matter is hereby struck off the roll.
3.
The notice of appeal against para 2 of the court a
quo's
order is valid.
4.
The appeal against para 2 of the court a
quo's
order should proceed to a hearing on the merits.
5.
The Registrar is instructed to set it down before the same bench for
hearing at the earliest convenient date.
6.
Each party shall bear its own costs.
GUVAVA
JA: I
agree
KUDYA
AJA: I
agree
Rubaya
Chinuwo,
1st
respondent's legal practitioners
Farai
Nyamayaro Law Chambers,
2nd
and 3rd
respondents legal practitioners
Mutumbwa
Mugabe & Partners,
appellant's
legal practitioners
