BHUNU
J: All the parties in this case claim
to be members of the Anglican Church but belonging to rival factions. They are
however engaged in vicious Court battles concerning their legitimacy and
entitlement to Church property.
On
24 July 2009 the applicant obtained a provisional order against the first
respondent from HLATSHWAYO J under case number HC 2792/09 in the following
terms:
"TERMS
OF THE INTERIM ORDER
(a)
That the consecration of a new bishop by the respondent
on 26 July 2009, or any date thereafter be and is hereby stopped pending the
discharge or confirmation of this order on the return date.
TERMS OF THE FINAL ORDER
SOUGHT
(a)
That it be declared that Dr. Nolbert Kunonga is still
the Bishop of the diocese of Harare.
(b)
That the respondent is barred from recognizing any
Bishop of the Diocese of Harare until there has been compliance with the
Constitution of the respondent.
(c)
That it pays costs of suit."
On the same date HLATSHWAYO J under case number HC 4327/09 granted a
declarator declaring Nolbert Kunonga's Board of Trustees as the legitimate
Board of Trustees for the Diocese of Harare. The same order further affirmed
that the said Diocese's property is vested in the applicant, that is to say,
The Diocesan Trustees For The diocese of Harare.
Aggrieved by both judgments the first respondent lodged an appeal to the Supreme
Court on the same date, the 24th of July 2009. Notwithstanding HLATSHWAYO
J's order to the contrary, the first respondent proceeded to consecrate the
second respondent as the new Bishop for the Diocese of Harare. In doing so the
respondents were relying on the well known rule of practice in the superior
courts that an appeal suspends the decision appealed against.
The applicant responded by filing this urgent chamber application seeking
to enforce HLATSHWAYO J's orders notwithstanding the noting of an appeal
against his orders. The application is premised on numerous grounds these include:
(1)
That the appeal was mala
fide in that it was lodged for the mere purpose of by-passing HLATSHWAYO
J'S orders.
(2)
That the noting of the appeal was irregular and to that
extent a legal nullity.
During the course of the hearing counsel for the applicant
took the point that the appeal relied upon by the respondent in proceeding to
consecrate the second respondent against HLATSHWAYO J's order was fatally
defective and a nullity at law in that the appeal was noted before HLATSHWAYO J
had delivered his judgment. Whether or not the appeal was filed before His
lordship had delivered his judgment is a point of fact which in the normal run
of things should be referred to trial. It was however argued that the nature of
the dispute was such that it was capable of resolution on the papers after
considering documentary evidence from relevant witnesses.
It is common cause that the registrar's office responsible for processing
appeals to the Supreme Court closes at 4 pm. No notices of appeal are accepted
after 4 pm. The applicant's complaint is that HLATSHWAYO J completed delivering
his judgment after 4 pm. In that case it was practically impossible to file a
notice of appeal in the registrar's office that day because by the time the
Judge finished delivering his judgment that office had closed
Considering that the issue of when and how a notice of appeal was lodged
and issued in
the registrar's
office is an issue essentially within the registrar's responsibility I sought clarification
from him. The Registrar has since submitted a detailed written report which
reads:
"In the
course of the proceedings held before Hon. BHUNU J in the above cited matter
this honourable Court directed me to investigate and report on an allegation
that a notice of appeal issued under case number SC 180/09 was issued and
processed on 24 July 2009 before the Honourable HLATSHWAYO J, had passed his
judgment at 17:35 pm on the same date.
I have had the
occasion to peruse the notice of appeal in question and to interview the
officer who issued the appeal in the Supreme Court and my findings thereon are
discussed seriatum.
Firstly, the
issuance of all Court processes and pleadings except urgent applications filed
outside working hours is conducted between 8:00 am and 4:00 pm which times are
in terms of the Rules of Court called business hours. In casu, the appellant through its legal practitioners Gill Godlonton
and Gerrans approached the Supreme Court on the 24th July before
close of business at 4:00 pm with a notice of appeal. Having satisfied himself
that the notice of appeal was prima facie
complying with the requirements prescribed by the rules of Court in that:-
(a)
the notice contains the date of judgment of the Court-aquo
(b)
It mentions the court from which the appeal lies.
(c)
It contains the grounds of appeal and prayer.
(d) It is signed by the legal
practitioner of the appellant and contains the requisite address of service.
The Registrar
categorically proceeded to issue the appeal by stamping and affixing a case
number to the appeal and recording it in the Civil Book.
A copy of the
notice of appeal was thereafter filed with the High Court in the registrar's
reception shortly before close of business at 4:00 p. I however notice that the
appeal was not filed with the appeals' office as required. A blue ink has been
used for the whole of July 2009 by the Appeals Office.
In my final
analysis, I am fortified to maintain that the Notice of Appeal was issued
during working hours when regard is given to the time that the respondents were
served with the Appeal. The service was effected at 16:23 hours on the same day
(see) page 2 of the attached notice."
Both
officers who handled the notice of appeal in the Supreme Court Supreme Court
and the High Court have filed affidavits. Their respective affidavits confirm
the registrar's report in every material respect.
The
officers' affidavits and the registrar's report establish beyond question and I
did not hear anyone disputing that the notice of appeal was filed during
working hours. I accordingly find as am matter of fact that the notice of
appeal in question was filed during normal working hours between 8:00 am and
4:00pam.
The
real crux of the matter is however, whether or not the notice of appeal was
filed before HLATSHWAYO J had delivered his judgment. Mr Tranos Goronga the
Judge's Clerk who handled the matter submitted a detailed affidavit concerning
when the sitting started and ended on that day. It is necessary to reproduce
his affidavit verbatim. It reads:
I am a clerk to the
Honourable Justice HLATSHWAYO and as such relate directly to the files that he
handled.
2 The matter between the
Diocesan Trustees for the Diocese of Harare and the Church of The Province of
Central Africa Case No. HC 2702/09 and HC 4327/08 were heard in Court on 23 July
2009, with judgment being reserved for 15 00hrs on 24 July 2009
3.
At around 15:00 hrs on 24 July 2009, I attended Court
'E' and advised the parties' legal practitioners namely Mr T Moyo of Messrs Chikumbirike and Associates for the applicant and
Mr R Moyo with Advocate Zhou for the respondents that the Judge
was delayed and was finalizing his judgment. I further advised the parties'
legal representatives that I was going to inform them what time the judge was
going to be available.
4.
It was around 16:00 hrs, when I attended Court to
advise the parties that the learned Judge was now ready to pass his judgment.
And was therefore attending Court thereafter. The Honourable Judge HLATSHWAYO
led by myself then entered the Courtroom a short while later, and read a
prepared judgment in respect of Case No. HC2792/09 which was in favour of the
applicant. An order was given in favour of the applicant. Immediately
thereafter he proceeded to read his judgment in Case No. HC 4327/08 which was
in favour of the applicant. I confirm that the proceedings ended at or
around 16:35 hrs.
5.
As I was leaving the Court room, I met a clerk in
the employee of Messrs Gill Godlonton and Gerrans who handed me a notice of
Appeal in respect of case number HC 2792/09 (the provisional order), which he
asked me to file in the record, I acted accordingly.
6.
That is all I believe is relevant to the handing down
of judgment in HC 4327/08 and HC 2792/09 and the notice of appeal SC 180
/09"
The
respondent has strongly objected to this Court's Jurisdiction on the grounds
that the matter is now within the domain of the Supreme Court.
The
respondents have strenuously opposed the application on the basis that the
appeal was filed during normal working hours after HLATSHWYO J had delivered
his judgment They denied that the judge delivered his judgment after 4 pm. To
this end they have filed affidavits from their legal practitioner Mr Chingore who represented them at the
hearing before HLATSHWAYO J. His affidavit was dully supported by that of Mr Moyo one of the legal practitioners for
the respondents. The affidavit of Mrs Vimbai
Nyemba a fellow legal practitioner in support thereof is however to a large
extent based on hearsay evidence. Mr.
Tichaona Murazi who filed the notice of appeal at the Supreme Court deposed to
an affidavit affirming that he filed the notice before 4 pm at around 3:45 pm.
The
applicant's deponent in his founding affidavit under case 3391/09 corroborates
the respondents' contention in every material respect when he says that:
"7. On 24
July in the afternoon after the judgment had been handed down, the first respondents
issued a Notice of Appeal against the judgment(s) of HLATSHWAYO J. The
Notice of Appeal is annexure 'C' here of."
The
above sworn statement is in direct contradiction to the applicant's present
stance that the notice of appeal was issued before the learned judge had issued
his judgment. The applicant has sought to explain the contradiction by saying
he was merely making the usual general statement on appeal when he said that
the appeal was filed after the learned judge had issued his judgment. I find that
explanation incredible and unconvincing considering that the applicant was
making a sworn statement. The applicant's deponent is no ordinary citizen, he
is a man of the cloth. He knows the value of an oath. He was therefore duty bound to verify and
ascertain his facts before taking the oath. The applicant cannot blow both hot
and cold. It is stuck with the consequences of his lack of diligence.
Mr
Goronga the Judge's clerk is an officer of this court who apparently has no
interest in the outcome of this matter. That being the case, he is unlikely to
deliberately mislead the Court unless he is mistaken. He did not keep a record
of the times alluded to in his affidavit otherwise he would have referred to it
had it been in existence. He did not tell us how he ascertained the time the
Court adjourned. We do not know whether he had a reliable means of telling the
time or he was merely relying on guess work. I am therefore unable to exclude
the possibility that he might be genuinely mistaken. This is particularly so
taking into account that his evidence goes against that of the applicant's
initial affidavit and that of respectable senior lawyers who are also members
of this Court.
Generally
Courts trust the word of its officers until the contrary is shown. This is because they are sworn to tell the
truth in Court at all material times. Doing otherwise has grave consequences
for any legal practitioner. In this case I would hesitate to find that several
lawyers would put their careers on the line for the sake of advancing their
client's case.
The
applicant's deponent contradicted himself on a material point of fact upon
which its application hinged thereby rendering the veracity of his affidavit
unreliable and highly questionable. The onus of proof lay on the applicant. It
chose to discharge that onus on the papers without viva voce evidence. In doing so it was taking a deliberate
calculated risk. The quality of documentary evidence it relied upon is far from
satisfactory and falls far too short of proving what it alleges on a balance of
probabilities.
Looked
at from a different angle the respondents took the point that this application
ought to have been lodged with the Supreme Court as it is now seized with the
matter. On 24 September the applicant filed a chamber application seeking the
dismissal of the appeal in Case Number SC180/09 on the grounds of irregularity.
What this means is that the question of whether or not the appeal filed in the
Supreme Court is regular is within the domain of that Court The
same issue cannot be pending in both the Supreme Court and this Court. For to
do so, is to set the two courts on a collision course. It is trite in our
jurisdiction that whenever a higher Court is set against a lower court the
higher court takes precedence. Thus the mere fact that the same issue before
this Court is pending in the Supreme Court negates this Court's Jurisdiction.
In the final analysis I find:
1.
That the applicant has failed to prove on a balance of
probabilities that the appeal was noted before HLATSWAYO J had delivered his
judgment.
2.
That as the same issue is pending in the Supreme Court
this Court has no jurisdiction to hear and determine the matter.
It is accordingly ordered that
the application be and is hereby dismissed with costs.
Chikumbirike and Associates applicant's legal practitioners
Gill Godlonton and
Gerrans, respondent's legal practitioners.
