GWAUNZA
JA:
This is an appeal against the
decision of the High Court Harare, in HC 11782/2011, which was handed down on
15 May 2013.
The background to the dispute is that the respondent instituted court action in
2005 against the first appellant and two others for, inter alia, the
return of certain church goods and regalia. On 13 December 2006 a default
judgment was granted in favour of the respondent. This judgment was
subsequently rescinded on 14 May 2007. Almost two years later, on 3
February 2009, the respondent's then legal practitioners filed a notice of
withdrawal of the action, purportedly on the instructions of the second
appellant.
It is pertinent to note that the
first appellant and the respondent belong to rival factions of what used to be
one church.
The crux of the appeal is whether or not the court a quo erred in
accepting that the said notice of withdrawal in case No. 2716/2005 was filed on
the instructions of the second appellant as opposed to the respondent.
The
judge a quo accepted the respondent's version that the second appellant,
acting maliciously and without the respondent's specific mandate, gave the
instructions to the legal practitioners to withdraw the action in HC 2716/05.
In accepting this evidence, the learned Judge relied essentially on the
affidavit dated 24 November 2011 and filed by the respondent's erstwhile legal
practitioner, Mr Gunje. Theaffidavit was to the effect that Mr Gunje had
in fact never met the respondent, had always dealt with the second appellant as
the respondent's representative and that the second appellant was the one who
gave him the instructions to file the notice of withdrawal.The court a quo,
however, made no reference to the letter, written by Mr Gunje almost three
years earlier on 9 February 2009, and addressed to the first appellant's legal
practitioners. As indicated below, we find the contents of this letter to be
quite significant.
The second appellant's defence was
that he never gave the instructions in question to the respondent's legal
practitioners; rather, that it was the respondent himself who did so. The first
appellant, in his notice of appeal and heads of argument, took the same
position. Strangely, in argument before us, Mr Goba for the first
appellant deviated from this position and attempted to argue that the second
appellant did in fact give the relevant instructions, but solely acting as
agent for the respondent.
In our assessment of Mr Gunje's affidavit, we find that he failed to explain in
any way whatsoever the contents of his letter of 3 February 2009, which was
addressed to Messrs Danziger & Partners, the first appellant's legal
practitioners. Nor does Mr Gunje's affidavit deal with the contradictions
between his averments therein and the statements contained in the said
letter. The essence of that letter, which was written on the very same
day that the notice of withdrawal was filed, was that Mr Gunje had taken
detailed instructions and then recommended to his client that he should
withdraw his claim in HC 2716/05. Our reading of the letter makes it
clear that the client referred to was the respondent. The contemporaneity
of the letter with the notice of withdrawal, in our view, leaves no room for
any other conclusion.
One
of the points taken by the respondent was that the second appellant had, at the
time he allegedly gave instructions for the notice of withdrawal to be filed,
switched allegiance from the respondent's faction to that of the first
appellant. However, this assertion is quite evidently belied by the second
appellant's letter dated 8 March 2009 which shows that, a month after the
notice of withdrawal was filed, he was still acting for and on behalf of the
respondent's faction.
When all is considered, we
find that the probabilities clearly favour a finding that it was the respondent
himself who, acting on the advice of his lawyer, gave the instructions for the
notice of withdrawal to be filed.
In the result, this court is of the
view that the judge a quo erred in finding, on the papers, that the
withdrawal was not properly made as it was not done either by the respondent or
on his authority or instructions. We accordingly find that the judge
misdirected himself by ordering that the notice of withdrawal in case HC 2716/05
be set aside and that the matter be reinstated.
In the event, it is ordered as follows;
(1)
The appeal is allowed with costs.
(2)
The judgment and order of the High Court be and are hereby set aside and
substituted with the following:
“The application be and is
hereby dismissed with costs.”
GOWORA
JA:
I agree
PATEL
JA:
I
agree
Munangati & Associates, appellant's legal practitioner
Self Actor, 1st
respondent
Danziger & Partners, 2nd respondent's legal practitioner
