MTSHIYA J: This
is an action for the eviction of the defendant and all those claiming
occupation through her from the plaintiff's premises situate at the
Borrowdale Park Race Course, Harare.
It is common
cause that on 23 April 2007 the plaintiff entered into a lease
agreement with a company called Lunar Graphics Products (Pvt) Ltd
(Lunar Graphics). The plaintiff was represented therein by Mr Howard
Mukundu (Mr Mukundu) who gave evidence in
casu.
Clause 6 of the lease agreement allowed the lesee to sublet part of
the premises to a licensed book maker such as the defendant.
On 31 January 2007 the plaintiff, represented by a Mr Shingirai
Tanyanyiwa, entered into an Agreement of Lease which, in clause 1,
provided as follows:-
“The lessor
hereby lets and the subtenant hereby hires a portion of the Lessor's
property commonly known as the Zimbabwe Betting and Sport at the
Borrowdale Park Race Course”.
The defendant
signed the agreement as “The Sub-Tenant”.
The 12 months agreement which commenced on 1 January 2007 was in
terms of clause 3 thereof renewable.
It is not clear whether in entering this agreement directly with the
defendant, the plaintiff was doing so on behalf of Lunar Graphics in
terms of clause 6 of the agreement signed between the plaintiff and
Lunar Graphics on 23 April 2007. The agreement between the plaintiff
and the defendant is silent on that aspect. However, in paragraphs
4.1 and 4.2 of its declaration the plaintiff states as follows:
“4.1
Accordingly on the strength of clause 6.1 of the lease agreement
Lunar Graphics Products (Private) Limited sublet the premises to the
defendant.
4.2. Further to the above referred sublease agreement between Lunar
Graphics Products (Private) Limited and Defendant, Plaintiff formally
acknowledged the subtenant through a memorandum signed to that
effect. A copy of the memorandum is hereto attached for case of
reference marked as 'B'.”
On 27 August 2007 the plaintiff gave Lunar Graphics notice of
termination of the agreement of 23 April 2007. Lunar Graphics duly
vacated the plaintiff's premises on 31 December 2007.
On 29 August 2007, two days after signing the notice to Lunar
Graphics, the plaintiff also gave notice to the defendant in the
following terms:-
“Att:
Michelle Nyamangunda
Borrowdale Park Race Course
Box 376
Harare
Dear Madam
Re: Termination of sub-lease
Please be
advised that three months notice to terminate the principal lease
agreement between Mashonaland Turf Club and Lunar Graphics has been
given. The notice period shall run from the 1st
September 2007 and shall terminate on the 30th
November 2007. You are accordingly expected to vacate the property on
or before 30th
November 2007 following the termination of the principal lease. The
three calendar months notice period is in line with clause 14 of the
sub-lease agreement.
Should you have any queries concerning the contents of this letter,
please kindly contact the undersigned within the next few days so
that any issues arising may be discussed.
Yours faithfully
S. TANYANYIWA
Mashonaland Turf Club”
The defendant did not comply with the above notice and on 28
September 2007 she wrote to the plaintiff in the following terms:-
“Mashonaland
Turf Club
Borrowdale Race Course
Borrowdale
HARARE
ATTENTION:
MR S TANYANYIWA
Dear Sir
REF: RENEWAL OF SUBLEASE AGREEMENT
In terms of
Clause 3.1. of our Lease Agreement, I hereby notify you of our
intention to renew our Sub Lease Agreement for another year to run
from 1st
of January 2008 to December 2008.
Yours faithfully
M Nyamangunda
Bookmaker”
The above letter was followed by another one from the defendant's
legal practitioners dated 27 November 2007. The letter was for the
attention of Mr Mukundu and it read as follows:-
“Dear Sir
Re:
MICHELLE
NYAMANGUNDA: TERMINATION OF SUB-LEASE
We refer to
the above matter. We thank you for furnishing us with the various
documents which we had requested to enable us to respond to your
letter to our client dated 29th
August 2007. This is our response:
1. Contrary to
what is stated in your letter aforesaid, our client's occupation of
the premises namely the premises commonly known as the Zimbabwe
Betting and Sport at Borrowdale Park Race Course is not in terms of
any sub lease with Lunar Graphics. It is actually in terms of an
agreement of lease between yourselves and our client. We attach
hereto a copy of the said agreement of lease for your information.
2. It is clear
in the premises that our client's rights in the lease agreement do
not flow from any sub lease with Lunar Graphics but from the lease
with yourselves. In the premises whether or not the lease agreement
between yourselves and Lunar Graphics has been terminated or is being
terminated, is not a factor in determining our client's right to
occupation of the premises.
3. The lease
agreement that you have with our client is for a specific period of
twelve months terminating on the 31st
December 2007. At the expiry of the lease agreement our client has an
option to renew for a further year commencing on the 1st
January 2008 to 31st
December 2009. Our client has already given your notice of her
intention to exercise her firth to renew the lease agreement. A copy
of her letter to yourselves dated 28th
September 2007 is attached hereto for ease of reference.
4. As far as
our client is concerned, clause 14 which provides for the termination
of the lease agreement on three calendar month's notice contradicts
the provisions of clauses 2 and 3 of the same lease. Clause 14 is
therefore clearly not enforceable in the premises.
In the
premises, our client does not recognise your notice as valid. Our
client will therefore not be vacating the premises as demanded by
yourselves on the 30th
November 2007. Any action which you may want to take to eject our
client from the premises will be strongly resisted. To that end we
write to advise that we have the authority to receive service of
summons on our client's behalf should you think of suing her for
eviction.
Yours faithfully
Mawere & Sibanda
T. Mawere”
The defendant's position reflected in the above letter is what led
to the issuance of a summons by the plaintiff on 21 January 2008
claiming:-
“(a) That
defendant and all those claiming right of occupation through her be
evicted from plaintiff's premises within seven (7) days from the
date of this order being served upon her.
(b) That
plaintiff shall be entitled to holding over damages from 1 January
2008 to the date of vacation (sic).
(c) Interest in the sum calculated in (b) above at the prescribed
rate from 1 January 2008 to the date of payment.
(d) Costs of suit at the Attorney and Client scale”.
Before and during the trial the defendant raised a preliminary issue.
The issue, which is incorporated in the joint pre-trial conference
minute, is:
“Whether or
not the plaintiff is properly before the court.”
In support of
the point in
limine,
Mr Mawere
for the defendant submitted that the defendant had raised the
preliminary issue before the commencement of the trial and during the
trial. He said whereas the plaintiff had the capacity to sue, the
issue in
casu
was whether or not the plaintiff was properly before the court and/or
was the plaintiff indeed being represented by the persons empowered
to institute or defend legal proceedings on its behalf.
He said the plaintiff had failed to comply with the provisions of
clause 6 of its own Rules and Bye-Laws (the Rules).
There was no resolution from the plaintiff confirming that those
instituting legal proceedings had its authority as required by Clause
6 of the plaintiff's Rules.
Furthermore, the plaintiff's representative, Mr Mukundu, had
confirmed under oath that he was neither a trustee nor steward.
Mr Mawere
pointed
out that in Mashonaland
Turf Club v Dunvale Investments (Private) Limited HC1013/08
the court had not at all dealt with the issue of whether or not the
plaintiff was properly before the court. The issue was not before the
court then. He urged the court not to rely on that case for its
ruling.
The
plaintiff, he argued, had failed to demonstrate through evidence that
it was properly before the court. This was so despite the fact that
the plaintiff had ample time to do so. He therefore urged the court
to dismiss the plaintiff's claim on the ground that it was not
properly before the court.
In response to
the defendant's submissions on the preliminary issue, Mr Halimani,
for the plaintiff argued that the plaintiff, a voluntary association,
had legal capacity to institute and defend proceedings in court. He
said the plaintiff had recently done so in the recent case (i.e.
Mashonaland
Turf Club v Dunvale Investments (Private) Limited HC1013-2008
where MAKARAU JP had disregarded that argument. He therefore urged
the court to be guided accordingly.
I shall start
by confirming that a reading of MAKARAU JP's judgment in,
Mashonaland
Turf Club v Dunvale Investments (Private) Limited
does not reveal that the same issue before me was raised. I can only
assume that the decision to proceed in that case was based on the
fact that the plaintiff has capacity to institute legal proceedings.
In the absence of a challenge such as the one before me, I have no
reason to question whether or not clause 6 in that case was complied
with.
Clause 6 of the plaintiff's Rules spells out how that capacity can
actually come by. The said clause 6 provides as follows:-
“Legal
Proceedings
The club
may sue and be sued in any court of law in its name. It shall be
represented in any legal proceedings by the Trustees for the time
being, who shall have power to institute and defend any legal
proceedings on behalf of the club when authorised to do so by the
stewards.”
My reading of clause 6 of the plaintiff's Rules as read together
with clauses 22-24 therein leaves me with no doubt that the plaintiff
did not comply with its own Rules in order to be able to acquire
capacity to institute these proceedings.
The power of Stewards is spelt out in clauses 22-24. Clauses 22-24
provides as follows: (i.e. relevant portions of the sections).
“22. The
Stewards shall in addition to the powers and authorities by these
Rules specially conferred upon them have the entire management and
control of all the affairs of the Club, but subject to any Resolution
passed at a General Meeting of members enjoying voting rights,
PROVIDED that no Resolution of the members enjoying voting rights in
General Meeting shall invalidate any prior act of the Stewards which
would have been valid if such Resolution had not been passed.
23. Without
prejudice to the general powers conferred by the last preceding
clause and the powers conferred by these presents, it is hereby
expressly declared that the Stewards shall have the following powers,
that is to say:
(a)…
(b)…
(c)…
(d)…
(e)…
(f) To
institute, conduct, defend, compound or abandon any legal proceedings
by and against the Club or its officers or otherwise concerning the
affairs of the Club.
(g) To
authorise the execution of all Deeds, Powers of Attorney and other
documents for and in the name of the Club which they may from time to
time think necessary, PROVIDED, however, that every instrument
executed on behalf of the Club shall be signed by the Chairman or the
Deputy Chairman, or another Steward, duly authorised thereto by a
meeting of the Stewards, and by the Secretary of the Club or such
other Executive officer appointed in terms of Rule 26 hereof, who has
been duly authorised thereto by a meeting of the Stewards or by some
duly authorised person acting in the capacity of either Secretary or
of such Executive officer.
(h)…
(i)…
24. The
Stewards shall have the power from time to time to make, amend or
repeal any by-laws for giving better effect to any of the Rules of
racing, and for regulating their own proceedings as they may deem
expedient, PROVIDED that such bye-laws shall not be inconsistent with
these Rules or with the Rules and Regulations of the Jockey Club
under whose authority and in accordance with whose rules and race
meetings and other functions referred to in Rule 52 are held (in
these Rules referred to as 'The Jockey Club')”.
There is no argument that in terms of clauses 6 of its Rules, the
plaintiff can sue and be sued in its own right provided it has the
necessary authority granted under that clause.
It is
unfortunate that submissions by plaintiff's counsel on the point in
limine
were primarily based on whether or not the plaintiff could institute
legal proceedings in its own name.
That was not the issue before me.
The issue before me was whether or not in instituting the proceedings
before me the plaintiff followed its own Rules.
The answer is no.
All Mr Mukundu
could tell the court was that he believed that his Chief Executive
who had authorised him to represent the plaintiff had authority from
the Trustees. Under cross-examination he testified that although he
had not seen the authority from the Stewards he believed it was in
existence. He said he had confidence in the systems followed by the
plaintiff.
It should be noted that notwithstanding the fact that this issue was
raised before the trial commenced, Mr Mukundu maintained that the
authority for him to proceed with the legal action 'was at the
office'.
In the circumstances I am satisfied that no such authority ever
existed.
Mr Mukundu and his Chief Executive were not Trustees. They were
acting on their own and therefore outside the requirements of clause
6 of the plaintiff's own Rules. This finding invalidates the
proceedings before me. The finding also disables me from proceeding
to consider the merits of the case.
The plaintiff has a clear procedure that it set for itself regarding
instituting legal process.
The plaintiff
has, in
casu, violated
its own procedures. Setting out clear procedures regarding the
process of instituting legal proceedings is a highly commendable
action by the plaintiff, but violating these same procedures is
legally deplorable. The purpose of setting them is lost.
I find SANDURA
JA's finding in Mugwebie
v
Seed Co Ltd & Anor
2000 (1) ZLR 93 (S) applicable to this case.
This was a finding made in a labour dispute where the employer, in
suspending an employee, had failed to follow its own code of conduct.
For the sake of clarity, I quote here below extensively from SANDURA
JA's judgment;
“In the
first place, the appellant was suspended by the company's marketing
manager who was not the company's designated officer. This was in
breach of para 4.2. of the code, which provides that it is the
designated officer who suspends an employee whom he suspects to have
committed an offence. It should be noted that in terms of para 4.2 of
the code the power to suspend an employee only arises when the
penalty for the alleged offence is dismissal. In terms of Part IV of
the code the penalty for fraud is dismissal.
Secondly, Mr Mupotaringa was appointed the company's designated
officer and instructed to proceed against the appellant on 5 March
1999, about four months after the appellant had been suspended by the
company's marketing manager. He should have been appointed before
the appellant was suspended.
In fact, in terms of para 4 of the code, no disciplinary proceedings
can be instituted against any employee unless it appears to a
designated officer that the employee in question has committed an
offence. Even then, it is the designated officer, and no-one else,
who is empowered by the code to notify the employee in writing of the
nature of the alleged offence and the impending investigations. And
it is he, and he alone, who is empowered to suspend the employee and
determine whether such suspension is with or without pay, where the
penalty for the alleged offence is dismissal.
The question which now arises is whether the appellant's suspension
was valid.
There is no
doubt in my mind whatsoever that it was null and void. It was a
complete nullity. I can do no better than quote what LORD BENNING
said in MacFoy
v
United Africa Co Ltd
(1961) 3 All ER 1169 (PC) at 11721:
'If an act
is void, then it is in law a nullity. It is not only bad, but
incurably bad. There is no need for an order of the court to set it
aside. It is automatically null and void without more ado, though it
is sometimes convenient to have the court declare it to be so. And
every proceeding which is founded on it is also bad and incurably
bad. You cannot put something on nothing and expect it to stay there.
It will collapse' (emphasis is mine).
In my view, these comments apply to the facts of the present case
with equal force. The suspension of the appellant was a nullity and
all the subsequent proceedings were of no force or effect. It is,
therefore, unnecessary to consider the effect of the failure to give
a decision within fourteen days.
As the appellant's suspension was a nullity, there was really no
need for a court order to set it aside, though it was convenient to
have the court declare it null and void so that the parties knew
their respective positions”.
In my view, the above case emphasizes the importance of adhering to
existing and established procedures in any operating system. Failure
to do so negates the whole purpose of ever putting the procedures in
place.
Applying the above principles of law to the case before me, it is
clear that failure to comply with Clause 6 of its Rules as read
together with the relevant parts of clauses 22, 23 and 24, means
that, in law, the plaintiff never instituted any legal proceedings at
all against the defendant.
The procedural
irregularity in
casu was
therefore fatal and accordingly the plaintiff is not properly before
the court.
Even if one were to invoke the principle of substantial compliance,
the plaintiff's omission cannot be saved. The proceedings are a
nullity. As already stated, I cannot, under the circumstances,
proceed to deal with the merits of the case.
The plaintiff's claim is dismissed with costs.
Wintertons,
plaintiff's legal practitioners
Mawere & Sibanda,
defendant's legal practitioners
