ZIYAMBI JA:
This is an appeal against a judgment of the High Court which dismissed, with
costs on the scale of legal practitioner and client, an urgent application
brought by the appellant.
The basis of the dismissal was that the matter was not urgent. The order
of punitive costs was made on basis that the appellant had failed to disclose
material facts.
Mr Uriri, for the appellant in his submissions before us raised two
points. Firstly, that having found the matter was not urgent, the court a
quo should simply have removed the matter from the roll and not dismissed
it. Secondly, that the order of punitive costs was an improper exercise
of the court's discretion and that an award of costs on the ordinary scale
would have been the appropriate order.
Dealing with the first issue, Mr Uriri conceded that although the
court dismissed the application, such dismissal was not on the merits and
therefore would not give rise to a plea of res judicata in any future
proceedings. This was, in our view, a proper concession. However,
the point needs to be made that in a case such as this one the correct order to
be made would be that the matter be removed from the roll, rather than
dismissed. The order of the court a quo will be amended
accordingly.
On the second issue, namely, the award of costs on the higher scale, we find
that the court a quo did make certain findings of fact which could not
properly be made without an enquiry into the merits of the matter.
However there were other findings of fact which were either common cause or
apparent on the papers and undisputed which were properly taken into account by
the Court in the determination of the issue. These include the fact that
the dispute relating to property in question had been raging on since 2003;
that at the time that he purported to acquire the property in dispute the
appellant was the deputy mayor of the second respondent; that a massive
investigation had been conducted into the manner in which he had acquired a
number of properties in Chegutu including the property in question; that
some of the reports had suggested impropriety on the appellant's part as to the
manner of acquisition and whether he had paid for the property in the first
instance; and that the second respondent did not recognise his purported
purchase of the property.
We are therefore of the view that the finding of the court a quo that
there had been material non disclosures by the appellant cannot be
impugned. We accordingly find that there is no basis on which it can be
said that there was an improper exercise of the court's discretion in awarding
costs on the higher scale such as would warrant interference by this Court.
In the result, the appeal is dismissed with costs, save that the order of the
court a quo is altered to read:-
“The application is removed from
roll with costs on the scale of legal practitioner and client.”
GARWE JA:
I
agree
PATEL JA:
I agree
Muza & Nyapadi, appellant's legal
practitioners
Scanlen & Holderness, first respondent's legal
practitioners
Warara & Associates,
second respondent's legal practitioners
