MAKARAU JP: Judges are public servants and as such
they are not to complain about what lands on their plates. They must do justice always no matter the
state of the case that is placed before them. I must however confess that the
above matter is a dog's breakfast. The parties have been to this court on at
least five occasions and may have appeared before the magistrate courts once or
twice before. The dispute between them has not been put to rest up to now and I
now have to unravel the orders and counter-orders that this court has given on
the issue over the years. A lot of red herrings have crept into the case due to the time the matter has taken
to be resolved and also due to the manner in which the parties have prosecuted
their respective claims to date. Allegations of improper behavior have been
traded as between the parties and some conduct by the parties remains
unexplained and unexplainable. I have however taken a robust stance to resolve
this matter once and for all and to do justice as between the parties.
The
whole matter started when one Moffat Phiri, originally from Malawi, passed away in Harare on 17 September 1996. He died intestate.
In his estate was a piece of land, commonly known as number 22 Hunyani Road,
Mabvuku, (the property), which he was purchasing under a suspensive deed of
sale from the City of Harare. Moffat Phiri was at the time married to the
first respondent. The couple had three children whose names and ages, if given
in the papers, I cannot now establish.
It
would appear that after the death of Moffat Phiri, the first respondent and her
children were evicted from the property by one Lekinala Moffat, a brother to
the Late Moffat Phiri. Lekinala Moffat was in due course appointed heir to the
estate of the late Moffat Phiri and had the property transferred into his name.
In
February 2002, Lekinala Phiri also passed away and on 3 May 2002, the third
respondent, who had traveled from Malawi for the purpose, was issued
with Letters of Administration by the Master of this Court to wind up the
estate of the late Lekinala Moffat. At this time, the immovable property was
now registered in the name of Lekinala Moffat. The third respondent was also
authorised to transfer the property into her name.
Following
the issuance of the Letters of Administration to her, the third respondent sold
the property to the applicant on 30 May 2002. The purchase price was paid in
full and the rights in the property were transferred to the applicant on 31 May
2002. This date is however disputed by the first respondent.
The
first respondent did not contest her eviction from the property in 1996. It was
only after the death of Lekinala Moffat in 2002 that she made her moves.
On
4 June 2002, she approached the office of the Provincial Magistrate who wrote
to the fifth respondent, advising him that there was a dispute concerning the
immovable property in the estate of the late Lekinala Moffat. The Provincial
Magistrate directed the fifth respondent not to effect any transfer of rights
in the property until the dispute had been resolved. He undertook to advise the
fifth respondent of the fact of the resolution of the dispute.
Perhaps
not having much faith in the efficacy of the letter, the first respondent then approached
this court on 17 June 2002 under a certificate of urgency, citing the third,
fourth and fifth respondents, in a chamber application wherein she alleged that
she was the surviving spouse to the late Moffat Phiri and objected to the
appointment of the third respondent as executrix dative in the estate of the
late Lekinala Moffat and the transfer of the property into the third
respondent's name.
The
application did not cite the applicant who by then had purchased the property
from the third respondent and was in the process of receiving cession of rights
in the property or had already received cession of rights in the property.
The
application was granted and a provisional order was issued on 17 July 2002,
declaring the immovable property as forming a part of the estate of the late
Moffat Phiri and not that of the late Lekinala Moffat. Cession of rights in the
property in favour of the third respondent was set aside and the fourth
respondent was directed to register the first respondent as the holder of
rights in the property. The order also evicted the third respondent and all
those occupying through her. I shall refer to this application as the main
matter as it was the first court action between the parties to the dispute
relating to the property.
In
my view, the first legal error occurred with the granting of this provisional
order. I shall return to this in detail.
On
21 August, 2002, the applicant caused her legal practitioners to address a
letter to the office of the Provincial Magistrate, advising him that the dispute
between the parties had now been resolved. This was clearly a misrepresentation
calculated to make the Provincial Magistrate act to facilitate the transfer of
rights in the property to the applicant.
It
is also not clear why the letter was regarded necessary as by that date,
cession of rights in the property was allegedly now registered in the name of
the applicant. This may give some credence to the first respondent's assertion
that cession of rights in favour of the applicant was effected well after the
date appearing on the cession forms which were backdated to frustrate the first
respondent's claims. While this is ex facie a dispute of fact, I have
considered it to be non –material and that it should not deter me from
disposing of this matter on some other basis.
The
applicant, not being a party to the application, did not oppose confirmation of
the provisional order issued in favour of the first respondent and this was
duly done on 21 August 2002.
A
belated attempt was made by one Blackson Chimutondo, to oppose the confirmation
of the provisional order. He filed his notice of opposition and opposing
affidavits on 4 November 2002, well after the provisional order had been
confirmed. His locus standi to do so
remains a mystery. His position was never debated before court as the court was
functus offico when he filed his affidavit.
On
11 November 2002, the applicant caused her legal practitioners to write to the
first applicant's legal practitioners highlighting that the provisional order
obtained in July 2002 was a brutum fulmen
as rights in the property had already been transferred to her. There was no
response to this letter.
In
January 2003, the first respondent attempted to evict the applicant from the
property using the order that she had obtained from this court in June 2002 and
which had been confirmed in August 2002. The applicant successfully resisted eviction,
arguing that she was not occupying through anyone but in her individual right
as the registered tenant in respect of the property. In the provisional order
issued in her favour, the operation of the order in favour of the first
respondent was stayed pending the filing and determination of an application
for joinder by the applicant in the main matter in which the eviction order had
been obtained and an application to have that order set aside. When she applied
for joinder under case no HC 1131/03, her bid to be joined in the main matter
was dismissed. The provisional order in her favour prohibiting the first
respondent from evicting her from the property also fell away.
The
first respondent tried once again to evict the applicant from the property
using the order in the main matter. The
applicant in turn approached this court under a certificate of urgency and her
bid to stay the eviction was unsuccessful. The applicant then wrote to the
deputy sheriff pointing out that the writ of eviction was not operational
against her as she did not occupy the property through the third respondent.
She remained in occupation of the property.
The
first respondent approached the magistrates' court and obtained a rule nisi
authorizing her to evict the applicant. The applicant was duly evicted from the
property.
Aggrieved
by the state of affairs, the applicant filed this court application on 21 July
2008, seeking an order declaring her to be the sole holder of rights in the
immovable property in question and also declaring that the first respondent did
not acquire any rights in the property at any stage and that the eviction order
obtained by the first respondent under the main matter cannot be used to evict her.
The
application was opposed.
In
opposing the application, the first respondent argued that the relief sought by
the applicant in this application is the same relief that she failed to obtain
on the merits in HC 1131/03, the application for joinder. In the same vein, the
first respondent submitted that once she had failed to be joined to the main
action, the applicant became non –suited and the issue of her rights in the
property became res judicata.
Finally
and still in limine, the first
respondent argued that the applicant had approached the court with dirty hands
as she had had the property transferred into her name despite the existence of
an order prohibiting her from so doing.
Regarding
the merits of the application, the first respondent maintained her stance that
she is the surviving spouse to the late Moffat Phiri and that the property in
question is her property, which should not have been dealt with without her
knowledge and consent. She further argued that the order that she obtained from
this court in the main matter must take precedence over all other processes
that the applicant took in allegedly acquiring rights in the property. It is
her case that until that order is set aside, the applicant cannot assert rights
to the property as the court has granted those same rights to her.
The first respondent also highlighted how
after 2003, the applicant mounted two other attempts to have the order in the
main matter set aside. In the first instance, her application was ruled as
being not urgent and in the second, as an abuse of process.
Despite
having been lawfully evicted by an order of the magistrates' court, the
applicant re-took possession of the property without having first set aside the
order evicting her. After being evicted for the second time, the applicant
obtained a writ from the magistrates' court restoring her possession of the
property. The writ is allegedly not based on any order issued by the court and
served on the other parties. The legal practitioners who purportedly acted on
behalf of the applicant in obtaining this order never assumed agency in the
matter and have not acted for the applicant subsequently.
At
the time of the hearing of the matter, it emerged that the first respondent had
proceeded to have the property registered in her name in terms of the order in
the main matter. She in turn had sold the property to the third respondent who
was co-applicant in the main matter.
As
indicated above, the applicant approached this court for a declarator to the
effect that she is the holder of rights, title and interest in the property
known as stand number 8417 Mabvuku
Township. In the second
paragraph of her prayer, the applicant prays for an order declaring that the
first respondent did not acquire any rights in the property. In the third and
fourth paragraphs of the order, the applicant prays that it be declared that
the order in the main matter does not operate to set aside the cession of
rights in her favour and cannot be used to evict her from the property.
In
my view, the essence of the declarator sought by the applicant is that the order
granted by this court in the main matter did not and could not at law have taken
away the rights that she had acquired in the property by another legitimate but
quasi –judicial process in the form of intestate inheritance and subsequent
sale by the executrix dative.
The
legal issue that falls for determination in this matter appears to me to be the
effect of the order in the main matter on the rights that the applicant had
acquired in the property prior to the issuance of that order.
The
power of this court to issue a declaratory order in the matter is not in
dispute. It is trite that where there is a concrete controversy involving the
invasion of an applicant's rights, the courts will issue a declaratory order in
the matter, whether it is exercising its inherent jurisdiction or acting under
the specific powers granted it under section 14 of the High Court Act [Chapter
7.06]. (See Nolan v Povall and Others1953
(2) SA 202 (SR); Barron v Greendale Town
Managemnt Board 1957 (2) SA 521 (SR); Musara
v Zinatha 1992 (1) ZLR 9 (H) Lupu v
Lupu 2000 (1) ZLR 120 (SC)).
It
is my view that there is a concrete dispute between the parties in this
application and one that has eluded resolution for some time.
In
resolving this matter, I have taken a rather simplistic approach to the
dispute. It appears to me that the provisional order granted by this court on
12 June 2002 and confirmed in August 2002 cannot stand. It was erroneously
sought in the absence of the applicant who was by then known to the first
respondent and had an interest in the rights and title attaching to the
property in dispute. It was also erroneously granted as it sought to divest
rights that had been properly vested in the third respondent by virtue of
intestate succession.
Rule
449 (1) (a) of the High Court Rules 1971 provides that an order or judgment may
be set aside if it was sought or granted erroneously in the absence of a party
affected by the order or judgment. This
specific power is give to the court or a judge by the rules in addition to the
inherent to this court to correct injustices.
It
is my further view that the error in seeking judgment in the main matter lies
in the fact that by the time the first respondent approached the court as surviving
spouse of the late Moffat Phiri, the property in dispute no longer formed part
of the estate of the Late Moffat, it having been lawfully awarded to Lekinala
Moffat under intestate succession of that time which allowed brothers to
inherit from the estates of their brothers ahead of the surviving spouse as
surviving spouses where not eligible to become heiresses. It worth noting that
the first respondent did not seek to challenge the appointment of the late
Lekinala Moffat as heir to her husband's estate. She accepted the position and
only sought to assert her rights to the property after the death of Lekinala
Moffat. For the court to reverse that state of affairs six years down the line
amounted to applying the law retrospectively. More importantly in my view, the
order was sought erroneously in the absence of the applicant who had acquired
rights to the property through a lawful process. Her rights in the property
could not be adversely affected in her absence and without affording her the
right to be heard. So fundamental and paramount is this tenet of our justice
system in my view that it will be remiss of me to overlook it or down play it in
favour of any other feature of the case.
I
am aware that in the main matter, the first respondent successfully challenged
the falling of the property into the estate of the late Lekinala Moffat. In the
order obtained by the first respondent on the 17 of July 2002, it was declared
that the property did not form part of the estate of the late Lekinala Moffat
among other orders that were made. At the time, rights in the property had
already been ceded to the applicant. The property was no longer in the estate
of the late Lekinala Moffat but had passed into the estate of the applicant. Had
the applicant been served with the papers in the main matter, the court would
have been appraised of the correct position regarding the property and would
not have made the orders that it did.
I
am further aware that the first respondent has sought to argue that by failing
to be joined to the main matter, the applicant became non-suited in the
application before me as the issue of her rights in the property became res judicata. With respect, the issue of
the applicant's rights in the property was never adjudicated upon in the main
matter as she was not cited as a party in that matter. It is trite that the
plea of res judicata applies inter
partes where the same issue between the same parties has already been resolved.
I
am also aware that the first respondent has argued that at the time the first
respondent approached the court in June 2002, the applicant had not yet
received cession o f rights in the property in her favour. In my view, this
issue is neither here nor there. Even if registration of cession in her favour
was completed in September 2002 as alleged by the first respondent, this does
not cure the defect that attaches to the order granted in favour of the first
respondent in June 2002. She did not cite the applicant who by then was in
occupation of the property and had taken steps to have cession in her favour
registered. She had an interest in the matter at the time and she had a right
to be heard before the order was granted. Her absence at the hearing of the
matter taints the entire proceedings which must be set aside simply on that
basis.
Finally
I note that the first respondent has strenuously argued that the applicant has
approached this court with dirty hands in that she has retaken possession of
the property after being lawfully evicted by the an order of the magistrates
court. These courts take a serious view of such conduct as the integrity of the
judicial system depends on the obedience of all court orders by all litigants.
In
casu, I have sought to weigh the need
to uphold the integrity of the court process against the need to correct
manifest injustice. It appear to me that I can achieve both by denying the
applicant her costs as an measure of my disapproval of her conduct even though
she has been partly successful, yet setting aside the erroneously sought and
erroneously granted order in favour of the first respondent.
In
the result, I make the following order:
1.
The provisional order granted in favour of the first
respondent on 12 June 2002 and confirmed on 21 August 2002 is hereby set aside.
2.
There shall be no order as to costs.
Mantsebo & Company, applicant's legal practitioners.
Mambara &
Partners, 1st and 2nd respondent's
legal practitioners.
