GOWORA
JA: This
is an appeal against a judgment of the High Court dismissing an
application firstly for a declaration of rights in respect of an
immovable property known as No. 15 Lanark Rd Avondale Harare and
secondly for an interdict against the eviction of the appellant from
the said premises.
Pending
this appeal, on 5 September 2012, the respondent filed a chamber
application for leave to adduce further evidence.
The
appellant filed a notice of opposition and an opposing affidavit.
For
reasons that follow, it will not be necessary to traverse the
contents of the affidavits filed in that application.
Mr
de
Bourbon,
on behalf of the appellant raised a point in
limine
to the effect that the application did not comply with the rules of
the Supreme Court, in particular Rule 39 which provides that no less
than five days notice of the date of hearing shall be given by the
applicant. The appellant had opposed the application citing the lack
of compliance with the Rules and the failure to give notice as
provided in the rules.
It
is common cause that the respondent ignored the notice of opposition
and in particular the peremptory requirements of the rules which the
appellant made reference to.
It
is my view that in making that submission Mr de Bourbon was correct.
The
application could only have been made in terms of section 39 of the
Supreme Court Rules, 1964. The rule reads in relevant part:
“39.
Applications
(1)
Subject to the provisions of rules 31, 36, 37 and 38, applications
shall be by court application signed by the applicant or his legal
representative and accompanied by an affidavit setting out any facts
which are relied upon.
(2)……….
(3)……….
(4)
An application to lead further evidence on appeal shall be
accompanied by that evidence in the form of an affidavit and also by
an affidavit, or a statement from counsel, showing why the evidence
was not led at the trial, as also a copy of the judgment appealed
from and a statement indicating in what manner it is alleged the
evidence sought to be adduced affects the matters at issue.
(5)
When making an application the applicant shall, if he wishes to state
the date of hearing in his court application, arrange a suitable date
with a registrar prior to serving the application. Where no such date
has been arranged the registrar shall appoint a date of hearing and
notify the parties of the date:
Provided
that no less than five days notice of the date of hearing shall be
given by the applicant or by the registrar, as the case may be.”
In
terms of sub-rule (5), an application under the rule must be heard
upon no less than five days notice.
The
respondent served the application on the appellant three days before
the appeal was scheduled to be heard.
Clearly,
there was no compliance with the rule.
Mr
Uriri
conceded that the application did not meet the peremptory
requirements set out in Rule 39 and, submitted that, in fairness, he
could not persist with the application.
The
concession was properly made.
Accordingly,
the application was struck off the roll with the respondent being
ordered to pay the costs.
I
turn now to the merits of the appeal itself.
The
facts surrounding this dispute are convoluted and I will endeavour to
simplify them.
At
the centre of the dispute is control of the Trauma Centre. Although
the parties involved in the dispute refer to the ownership of the
same, in this matter the court is seized only with the question of
which of the parties is legally entitled to the physical occupation
and possession of the same.
The
“Trauma Centre” is a state of the art hospital which is situated
at 15 Lanark Road in Harare. It is common cause that for a
considerable period the hospital leased the premises from the
administrators of the estate of the late Rosa Alhadeff.
On
30 March 2010 the ownership of the land on which the hospital is
situate was transferred to Streamsleigh Investments (Pvt) Ltd, the
appellant herein.
The
appellant is a private company which is duly registered in Zimbabwe
in accordance with the laws of the country. Its shareholding is at
the core of the dispute between the parties, which dispute is however
not the issue presently for determination before this court. Its
directors upon registration were Wessel Roets and Zarina Dudhia. The
latter was also the Principal Officer of the company.
The
respondent is a private company duly registered in accordance with
the laws of Zimbabwe. On 30 January 2008, the respondent concluded a
management agreement with CA Meifco Limited, which is a company
registered in accordance with the laws of Mauritius, for the
provision of certain specified services by CA Meifico to the
respondent at what is colloquially referred to as the “Trauma
Centre”.
The
agreement was to run for a period of five years from the effective
date.
A
management team comprising Dr Vivek Solanki, Marco Cerunschi and
Wessels Roets was to be responsible for the overall management of the
Trauma Centre. CA Meifco was responsible for the financial management
of the hospital including the procurement of medication.
On
an undisclosed date CA Meifco changed its name to VIP Healthcare
Solutions. Although it was not specifically mentioned in the
agreement, CA Meifico was a wholly owned subsidiary of African
Medical Investments Plc (“AMI Plc”).
On
26 April 2010, AMI Plc executed a Deed of Trust in terms of which The
Streamsleigh Trust was created. Jeremy Darroll Stewart Sanford, Anis
Abdulkarim Omar and Gary Maitland Crosland were named as Trustees.
On
28 April 2010 Streamsleigh Investments (Private) Limited issued a
share certificate in terms of which The Streamsleigh Trust was
recorded as the holder of 100 fully paid shares of USD0.001 each. On
the same date Jeremy Darroll Stewart Sanford was appointed as one of
the directors of the company in addition to Dudhia and Roets.
On
28 September 2011 the respondent filed an application in the
Magistrates Court Harare. The deponent to the affidavit was Dr Vivek
Solanki (“Solanki”) who described himself as the founder and
director of the respondent company. In the application AMI Plc was
cited as the sole respondent.
In
the founding affidavit, Solanki alleged that he had incorporated
Autoband Investments (Pvt) Ltd (the respondent in this appeal) and
that, pursuant thereto he had been leasing the premises at No.15
Lanark Road for about fifteen (15) years. He averred further that he
had been approached by officers of AMI Plc with a proposal that
Autoband enter into a joint venture agreement with the former and the
negotiations had culminated in the parties executing a management
agreement in terms of which AMI Plc was to purchase Autoband.
He
averred that the agreement had fallen through and subsequent to that
the employees of AMI Plc had unlawfully evicted the employees of
Autoband from No.15 Lanark Rd during his absence from the country.
In
the affidavit, Solanki alleged that the employees of Autoband had
been intimidated by people who posed as police officers, and who
later turned out to be bogus.
It
was further alleged in the affidavit that AMI Plc had taken the law
into its hands and evicted Autoband and its employees illegally from
the premises that it had been leasing for over fifteen (15) years.
The
draft order attached to the application sought the eviction of anyone
seeking occupation through AMI Plc.
The
application was opposed by the appellant.
The
deponent to the opposing affidavit, one Peter J Annesley, described
himself as “the Chief Operating Officer of Streamsleigh Investments
(Private) Limited” a duly registered company which trades under the
name of AMI Hospital Harare.
It
seems to have escaped the notice of Annesley and his legal
practitioners that the appellant had not been cited as a party to the
application and that it could not challenge the application unless it
was joined as a party.
In
his response to the opposing affidavit, Solanki claimed that
Streamsleigh Investments (Pvt) Ltd was a company in which he had an
interest and he put into issue the status of Annesley in the said
company.
Presented
with these facts, the learned magistrate who heard the application
found that the appellant's occupation of the premises was
questionable in the absence of proof to show that the respondent had
been removed from the same lawfully.
The
magistrate as a consequence found that the respondent had been
dispossessed unlawfully as there was no court order prior to its
eviction. The magistrate then ruled that the respondent was entitled
to an order for restoration and consequent thereto issued the
following order:
“The
respondent, its officials and anyone claiming through them and grant
(sic) restored occupation to the Applicant 7 days upon delivery of
judgment.”
An
appeal was noted against the judgment of the magistrate and in
response the respondent sought and obtained an order for leave to
execute pending appeal.
Consequent
thereto, Autoband obtained a writ of eviction.
Being
the registered owner of the premises in question, the appellant
considered that its position had been compromised by the order.
It
had to protect its occupation and as a result it approached the High
Court on a certificate of urgency in which it sought a Provisional
Order in the following terms:
“TERMS
OF INTERIM RELIEF SOUGHT
IT
IS ORDERED THAT:
1.
In the absence of any direct order against the Applicant for its
eviction from Stand No.2924 Salisbury Township of Salisbury Township
Lands also known as No.15 Lanark Road, Belgravia, Harare, the
Respondent be and is hereby interdicted from utilizing the eviction
order in Case No. MC16435/11 to evict the Applicant from the premises
set out hereabove.
2.
The Respondent be and is hereby interdicted from utilizing any relief
obtained in Case Nos. HC 619/11 and 2125/11 against the Applicant.
3.
The Respondent be and is hereby ordered to pay the costs of this
application.
TERMS
OF FINAL ORDER SOUGHT
IT
IS DECLARED THAT:
1.
The eviction order granted in Case MC 16435/11 between the Respondent
and African Medical Investments Plc is of no force, effect or
application as against Applicant and its occupation of the premises
known as Stand No. 2924 Salisbury Township of Salisbury Township
Lands also known as No. 15 Lanark Road, Belgravia, Harare.
2.
Any relief granted in Case Nos HC 619/11 and 2125/11 be and are
hereby declared to be of no force, effect or application as against
Applicant in respect of its occupation of their (sic) premises known
as Stand No. 2924 Salisbury Township of Salisbury Township Lands also
known as No. 15 Lanark Road, Belgravia, Harare.
3.
That the Respondent pay the costs of this application.”
The
respondent opposed the application and in turn the appellant filed an
answering affidavit. The learned judge before whom the urgent chamber
application was placed, understandably, faced with the apparent
disputes was unable to issue an order in terms of the interim relief
being sought and instead issued a provisional order by consent which
preserved the rights of the parties pending the hearing and
determination of the application for relief in terms of the final
order sought.
He
also gave directions for the filing of further affidavits by the
parties as well as heads of argument.
The
matter was subsequently set down before a different judge who, after
hearing counsel dismissed the application and discharged the
provisional order. Following upon the discharge, the appellant was
ordered to pay punitive costs.
It
is against that judgment that the appellant has noted an appeal to
this Court.
It
was contended on behalf of the appellant that the critical issue
before the High Court was whether or not it was AMI Plc or
Streamsleigh (Pvt) Ltd which was in occupation of the premises at the
time that the eviction order was granted.
I
agree that this was the critical issue for resolution by the court a
quo
in the determination of the application for the declaratur
and consequential relief sought by the appellant.
The
learned judge in the High Court was persuaded to accept that the
finding by the magistrate as to who was in possession of No.15 Lanark
Rd was correct, and that consequent thereto, the respondent had been
illegally dispossessed of its occupation of the same.
This
is what the learned judge had to say at pp 3 to 4 of the cyclostyled
judgment:
“I
am extremely concerned with the approach being advocated by the
applicant in this case. It wants this court to grant a declaratory
order to subvert a process that started in the lower court in which
it actively participated and lost. I see nothing but a stout (sic)
effort to indulge in forum shopping and the High Court must not be
used to subvert court process emanating from the lower court for no
good cause. I agree with the forceful submissions made by Adv
Uriri
that in these circumstances a declaratory order would not be
competent.
Before
concluding this matter, I wish to observe that the applicant has
placed so much emphasis on the ownership of Stand 2924 Salisbury
Township of Salisbury Township Lands (No. 15 Lanark Road, Belgravia,
Harare). The application for eviction had nothing to do with the
ownership of the property but was restricted to possessory rights of
the applicant in the lower court.
Again
this issue was dealt by the lower court in its judgement referred to
above.
The
lower court made a specific finding that the now respondent had been
unlawfully dispossessed of the property. The applicant exercised its
right of appeal against the decision of the lower court and certainly
it was not competent for the applicant to apply for a declaratory
order to short circuit the appeal process.”
The
learned judge in the court a
quo
concluded that the magistrate was correct in finding that the
respondent had been unlawfully dispossessed by the appellant. It is
clear that the judge based his decision on a number of documents
placed before him by the parties. A perusal of the documents reveals
the following.
On
13 December 2010 the appellant wrote to the City of Harare requesting
that an inspection be carried out at No.15 Lanark Rd. The inspection
was carried out on 15 December 2010 as confirmed by a letter
written to the appellant by that department on 20 December 2010.
Ultimately, the Stand was registered as a hospital.
On
15 April 2011 the Civil Aviation Authority of Zimbabwe allocated the
appellant an account for the use of facilities at its premises for
navigation, landing, parking and other apron fees.
On
1 March 2011, the Medicine Control Authority of Zimbabwe issued a
hospital pharmacy licence to the appellant.
Lastly,
on 27 January 2012 the City of Harare issued a Municipal Licence to
the appellant for a coffee shop.
Indeed,
as stated by the learned judge in the court a
quo,
there are documents in the form of statements of accounts apparently
generated by African Medical Investments t/a Streamsleigh Investments
Plc addressed to a number of individuals who appear to be patients or
recipients of services.
In
my view, the documents in question do not confirm that the occupant
of the premises was AMl Plc. They confirm instead, that a subsidiary
of AMI Plc was running the hospital, as indicated by the statutory
licences and permissions granted in the name of the appellant.
The
respondent accepts that in the proceedings before the magistrate it
bore the onus
to prove that an act of spoliation was committed by the appellant.
The
affidavit in relation to the alleged act of spoliation was adduced by
Solanki.
He
stated that the act of spoliation had happened in his absence from
the country. This is how the alleged act is described:
“I
was however surprised that the respondent's employees unlawfully
and illegally evicted Applicant's employees whilst I was out of the
country. The respondent used unorthodox means to evict applicant's
employees including robbery, theft, corruption and fraud as a result
the respondent took occupation, such occupation was and remains
unlawful as they did not obtain a court order neither did they agree
with me or my employees.”
Where
an act of spoliation has been alleged, it is trite that the act of
spoliation has to be proved. The respondent, did not state when such
act occurred, how it occurred or by whom it was perpetrated.
In
his founding affidavit Dr Solanki refers in general terms to
'robbery, theft, corruption and fraud' as constituting the act of
spoliation.
It
cannot be gainsaid that robbery, theft, corruption and fraud are
different and distinct species of criminal offences. Each of the
offences referred to by the respondent as having been perpetrated has
its own separate essential elements constituting the specific
offence.
The
respondent does not, in the affidavit of Solanki, give details on
each of the alleged offences nor does he state how each of these acts
which are alleged to constitute spoliation were effected, when they
occurred or by whom they were perpetrated.
In
short, the affidavit is devoid of any specifics on the act of
spoliation in terms of which the order of eviction was premised. It
is lacking in detail and substance as to how the respondent was
illegally dispossessed of occupation.
In
my view the record does not reflect that the respondent has
discharged the onus
it bears.
In
Nino
Bonino v de Lange
1906 TS 120, INNES CJ stated the following in describing acts of
spoliation:
“The
best definition I have been able to find is one given by Leyser, who
states that spoliation is any illicit deprivation of another of the
right to possession which he has, whether in regard to movable or
immovable property or even in regard to a legal right.”
It
has been stated in numerous authorities that before an order for a
mandement
van spolie
may be issued an applicant must establish that he was in peaceful and
undisturbed possession and was deprived illicitly.
In
Scoop
Industries (Pty) Ltd v Langlaagte Estate & GM Co Ltd
(In Vol Liq) 1948 (1) SA 91 (W) LUCAS AJ said at pp98-99:
“Two
factors are requisite to found a claim for an order for restitution
on an allegation of spoliation. The first is that the applicant was
in possession and, the second that he has been wrongfully deprived of
that possession against his wish. It has been laid down that there
must be clear proof of possession and of the illicit deprivation
before the order is granted. (See Rieseberg
v Rieseberg
1926 WLD 59 at 65). It must be shown that the applicant had free and
undisturbed possession (Hall
v Pitsoane
1911 TPD 853). When it is shown that there was such possession, which
is possession in the physical fact and not in the juridical sense,
and there has been such deprivation, the applicant has a right to be
restored in possession ante omnia. On a claim for such restoration it
is not a valid defence to set up a claim on the merits.”
Broken
down in simple terms, an applicant for an order for a mandament
van spolie
must establish the following:
“(1)
That he was in peaceful and undisturbed possession of the property;
(2)
That he was unlawfully deprived of such possession.”
See
also Davis
v Davis
1990 (2) ZLR 136 (H) at 141B-C.
It
was necessary, in my view for the respondent to have shown that it
was in occupation of the premises in question and that further to
that it was, in fact, the appellant, as opposed to AMI Plc, that
caused its unlawful dispossession from the premises.
It
did not establish that it was in peaceful and undisturbed possession
and that it was disposed by the appellant. Consequently, there is no
substance to the allegation by the respondent that it had been
unlawfully dispossessed of occupation of the hospital premises by the
AMI Plc against which it took no action.
I
therefore conclude that the learned judge misdirected himself in
accepting the finding by the magistrate that the respondent had been
unlawfully removed from the premises by AMI Plc.
In
my view, the resolution of which entity was in lawful possession of
the premises is critical in the determination as to whether or not
the learned judge was correct in dismissing the application, as the
finding would put paid to the allegation by the respondent that AMI
Plc caused its unlawful ejectment from the premises.
However,
the issue before this Court does not end there.
It
is trite that a party is not entitled to use the court system in a
manner that undermines the judicial process.
The
learned judge in the court a
quo
was of the view that, by seeking a declaratur
before the High Court, the appellant was attempting to subvert a
process that had started in the lower court and in which the
appellant had participated. As a consequence of that view, the
learned judge not only dismissed the application, he also granted an
order of punitive costs against the appellant. The learned judge was
clearly in error.
Contrary
to the assertions by the respondent that the appellant had gone forum
shopping by seeking a declaratur
in the High Court, the entire process that plagues the dispute
between the parties commenced in the High Court and not in the
Magistrates Court as is being alleged by the respondent which error
was further compounded by the learned judge in the court a
quo.
A
narration of the sequence of events appears from the appellant's
heads of argument which sets out the facts as follows.
The
respondent brought an urgent chamber application on 28 February 2011
in an effort to interdict the appellant from proceeding with the
imminent opening of the hospital. The court however opined that the
matter was not urgent. Despite the finding of the lack of urgency,
the appellant filed opposing papers.
It
is common cause that the application has not been pursued by the
respondent.
Apart
from the urgent chamber application referred to above, the parties
also filed documents under Case No. HC 619/11. Again this application
is at a standstill.
The
application in the Magistrates Court was filed on 28 September 2011.
It
is obvious that by the time the respondent filed the application in
the Magistrates Court, it had become aware, from the documents filed
in the two High Court applications mentioned above, that the
appellant was in occupation of the hospital, yet it chose
deliberately not to cite the appellant in the application for an
order for spoliation.
In
addition, if regard is had to the attempt by the respondent to obtain
an interdict against the opening of the hospital, the assertion that
it had been despoiled sounds hollow and instead points to an apparent
intent to mislead the court.
The
record speaks for itself and shows that before the filing of the
application in the Magistrates Court the parties had been involved in
other proceedings over the same issue in the High Court and that
several matters were pending in that court which could have achieved
the same result as the respondent sought to obtain from the
Magistrates Court.
Between
2 July 2010 and 28 February 2011 the respondent brought three
applications before the High Court, all of them seeking the eviction
of AMI Plc from 15 Lanark Rd.
Clearly,
as argued by the appellant, the respondent went forum shopping after
realising that it could not obtain relief in the High Court.
In
an answering affidavit before the Magistrates Court, Solanki averred
that the respondent was seeking an order for spoliation before that
court and went on to aver that in the High Court the applications
were substantially different as the relief being sought in one of the
applications was an order for the eviction of AMI Plc.
This
was far from the truth and, sadly, the learned magistrate failed to
relate to the whole application by the respondent in respect of which
the relief being sought was an order of eviction.
The
draft order was similarly worded.
Apart
from a bald allegation that it was in possession, the respondent did
not, before the magistrate or the High Court, establish proof of its
occupation of the disputed premises.
The
affidavit from Solanki suggests that he occupied No. 15 Lanark Rd in
his personal capacity which, given the documents in the record, is an
obvious lie.
He
was not in occupation, but was on the premises pursuant to the
management agreement that got terminated, which termination he
accepted.
According
to the documents on the record Dr Solanki was employed by AMC Plc and
was one of the directors of the company. When the management
agreement was concluded with Autoband, he, Marco Cerunschi and Wessel
Roets constituted the management team on behalf of AMI Plc.
On
9 July 2010 Sallans LLP, the Legal Practitioners for African Medical
Investments addressed a letter to Dr Vivek Solanki, who, at the
relevant time was in Mozambique, in the following terms:
“Following
upon the management discussion on 30 June 2010 and the subsequent
engagement of independent auditors to conduct investigations into the
group's operations in Harare and Johannesburg, as lawyers for the
Company we are instructed by the Board of the Company to write to
confirm that, as of the date of this letter, you are suspended from
work until further notice pending investigation into an allegation of
gross misconduct in relation to potential financial and
administrative irregularities at the Company's Harare and
Johannesburg medical facilities. The Company reserves the right to
change or add to this allegation as appropriate in the light of its
investigation.…….
During
your suspension, the Company shall continue to pay your salary in the
normal way. You are also entitled to your normal contractual
benefits.
You
will continue to be employed by the Company throughout your
suspension and you remain bound by your terms and conditions of
employment, including but not limited to your duty of fidelity. You
are required to co-operate in the Company's investigation and you
may be required to attend, remotely or in person, investigative
interviews or disciplinary hearings. However, you are not otherwise
required to carry out any of your duties and you should not attend
any of the group's operational locations unless authorised by Phil
Edmonds to do so. Your e-mail account will be suspended. You must not
communicate with any of the group's employees, contractors,
suppliers or customers unless authorised by Phil Edmonds or Brett
Winstone in writing. However, you are required to be available to
answer any work related queries.…….
If
you require access to the group's premises or computer network
during the period of suspension please let Brett Winstone know as the
Company may agree to arrange this under supervision.
If
you have any questions about this matter or the terms of your
suspension please feel free to contact Philip Enoch.”
The
response from Dr Solanki was as follows:
“This
letter is formal notice that I hereby resign as Chief Executive
Officer of African Medical Investments Plc (“AMI”), to which I
was appointed pursuant to the Directors Service Agreement (“the
agreement”) made on or about 3rd
October 2008.
AMI
is in repudiatory breach of the Agreement and by resigning I hereby
accept such repudiation and give AMI notice of such acceptance. It
follows that I have been wrongfully constructively dismissed by AMI.
A detailed letter setting out particulars of AMI's repudiation of
the Agreement, is in the course of preparation, and will be sent once
it has been concluded.
I
also give notice that I hereby resign my directorship in AMI.
I
intend to claim compensation and/or damages for having been
wrongfully constructively dismissed, including representing twelve
(12) months loss of salary.
In
the event that you dispute my entitlement to resign as mentioned
above, then I give you notice that a difference dispute will have
arisen within the meaning of clause 20.3 of the Agreement.”
When
these two letters are examined against the averments in the
affidavits attested to by Solanki, the only conclusion that one can
reach is that there is a grand scheme at fraud on his part.
Firstly,
it is claimed by Solanki that he is the founder and director of
Autoband. He then claims that he was approached by the AMI Plc in
2009 with a proposal to go into a joint venture which would involve
the exchange of shares. He claims further that the negotiations fell
through but that they executed a management agreement in respect of
the Harare operations.
Yet
in the letter quoted above, he admits to being an employee of AMI
Plc.
In
none of the applications did he submit proof of ownership of shares
in Autoband nor did he file a form CR 14 from the Registrar of
Companies establishing that he was indeed a director of the
respondent.
It
is common cause that in this jurisdiction records in companies are
kept by the Companies Registry and a Form CR 14 constitutes
confirmation of the names of the directors appointed to a company.
Ironically,
such a form has been filed in respect of Streamsleigh, in which
Solanki's name does not appear on the list of directors.
According
to Solanki he had been in occupation of the premises as a tenant for
a period in excess of fifteen (15) years.
The
letter from Kantor
& Immerman
of 19 August 2008 identifies the tenant to the premises as VBL
Medical Networks (Pvt) Ltd which clearly discounts the version by
Solanki that he was the tenant to the premises.
Further
to this the management contract in terms of which the respondent
occupied the hospital was terminated.
On
30 August 2010 the interim Chief Executive Officer for African
Medical Investments addressed a letter to the respondent which reads
as follows in relevant part:
“On
behalf of our wholly owned subsidiary VIP Healthcare Solutions
Limited (formerly known as CA Meifco Limited 'VIP') as a result
of numerous alleged transgressions, relating to fraud, mismanagement
and misappropriation of funds at the Trauma Centre Harare, we hereby
give you notice, pursuant to clause 9.1 of the Management Agreement
entered into between yourself and VIP that, if such breaches are not
remedied within 5 days of the date of this letter, the Management
Agreement shall be formally terminated.……………….
If
you fail to remedy the breaches referred to above in the specified
time limit and the Management Agreement is terminated you shall
immediately cease to hold yourself out as having any connection with
African Medical Investments Plc or any of its group companies. We
will reserve our rights against you in the event that you fail to
take such actions as and when required.”
The
respondent has not adverted to this letter nor sought to explain how
it remained in possession of the premises given the relationship
between itself and AMI Plc.
If
the respondent or Solanki assumed occupation after the date of the
letter it has not been stated on the papers.
The
respondent is a corporate entity and in the light of its claim that
it was running a hospital, it was incumbent that it established
before the magistrate proof of its occupation.
Although
it alleged a lease, no lease agreement was produced.
Given
the fact that the appellant was the registered owner, there was no
evidence adduced as to who the premises were being leased from.
In
addition, a hospital has licences and permissions from various
authorities which enable it to operate as such. There was no attempt
by the respondent to produce any document in its name to establish
its occupation of the premises.
It
was argued that the manner in which the eviction order was framed did
not put the appellant at risk of being evicted at the instance of the
respondent, a factor which appears to have escaped the notice of the
learned judge.
An
order for the eviction of AMI Plc would not disturb the lawful
occupation of the premises by the appellant as such order is not
aimed at the latter.
I
agree.
This
is because there was no allegation that it had been the appellant
that was responsible for the alleged acts of spoliation being
complained of.
It
was stated by the court a
quo
that the identity of the property had never been in issue and that it
was clear that all the parties were aware that the property being
referred to was No. 15 Lanark Rd.
I
am not convinced that this is a correct interpretation of the order
from the Magistrates Court. The order did not mention the premises
from which the respondent sought that AMI Plc should be evicted. The
order also sought the eviction of officials without specifying the
names of which officials it was seeking to be evicted.
An
order must be framed in such a manner as to leave no doubt in the
minds of any party to the dispute as to its meaning, effect and
application. It should not be vague or ambiguous. It must be clear
and precise.
That
said, the same cannot be said of the order issued by the magistrate.
The
premises from which the occupants are to be evicted are not
specified. In addition the order targeted anyone who was not an
official of the respondent and, given that it was common cause that
the premises were owned by the appellant, it put the owner at risk of
being evicted, which is what occurred.
The
obvious deficiencies in the order left the discretion of the
description and location of the premises and further to that, the
identification of the targeted officials to be evicted to the
Messenger of Court.
The
appellant argued before the High Court that the respondent, having
been aware of its occupation of the premises, should have addressed
the application to it and not to a party which was not in occupation
at the relevant time.
The
learned judge however, was of the view that the appellant should have
sought to be joined in the proceedings before the magistrate.
In
my view he erred.
The
appellant had placed before the court sufficient evidence which
established that it was in occupation and further that it owned the
premises. That should have alerted the learned judge to the very real
danger of the appellant being evicted without due process. It was not
the obligation of the appellant to seek joinder. To the contrary, the
respondent had the obligation to seek the eviction of the party that
was in occupation.
The
fact that the appellant had not sought to be joined in any of the
cases was not sufficient cause for the court to dismiss the
application.
There
was sufficient evidence of the interest that the appellant claimed to
have in the property on the papers to entitle it to a declaratur
being issued in its favour.
The
finding therefore that the appellant lacked bona
fides
because of the failure to seek joinder is not correct. This is so for
a number of reasons which I shall clarify below.
The
application for a declaratur
in the court a
quo
involved the existence or otherwise of two rights, viz;
the right of the appellant to occupy the premises that it
indisputably owned and from which it had operated in excess of one
year, and secondly, the right of the appellant to be afforded a fair
hearing before the Magistrates Court.
The
appellant's legal representatives had clearly erred in the
procedure that they adopted.
They
opposed a number of legal processes in which it was not cited as a
party. They should have applied for its joinder in the applications
in question.
The
papers filed on behalf of the appellant clearly exhibited that the
premises in question were owned by the appellant which fact was never
disputed by the respondent. The papers in addition, raised the
possible existence of a prior management contract between the parties
and the possibility of disputes of fact in the application before the
learned magistrate and in the numerous applications filed by the
respondent in the High Court which had seemingly been abandoned.
A
declaratory order under section 14 of the High Court Act [Cap
7:06]
is appropriate to determine any existing, future or contingent right
or obligation.
An
applicant for a declaratory order must be an interested person in the
sense of having a direct and substantial interest in the subject
matter of the suit which could be prejudicially affected by the
judgment of the court. In addition, an applicant must establish that
some tangible and justifiable advantage in relation to its position
with reference to an existing, future or contingent legal right or
obligation may appear to flow from the grant of the declaratory order
sought.
See
Johnsen v Agricultural
Finance Corporation
1995 (1) ZLR 65 (S) at 72E-F; Munn
Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation
1994 (1) ZLR 337 (S) at p344.
The
dispute between the parties in the Magistrates Court was not
concerned with a declaratory order and in this jurisdiction only the
High Court is empowered to issue a declaratory order. There can
therefore be no legal justification to accuse the appellant of forum
shopping in seeking a declaratory order from the High Court.
An
order for the eviction of AMI Plc would not disturb the appellant and
a spoliation order can only be issued against the party that caused
the spoliation.
The
respondent has never alleged that it was deprived of possession by
the appellant and has always stated that it was AMI Plc that caused
its unlawful ejectment.
By
the time it sought redress, AMI Plc was not in possession. Instead,
as the documents would show, it was the appellant that was in
occupation of No.15 Lanark Rd.
It
is for these reasons that the High Court should have granted the
declaratur
being sought by the appellant.
The
draft order sought by the appellant in the High Court had the effect
of nullifying the eviction order granted by the magistrate.
It
is apparent from the papers that the appellant did not hold the
premises through AMI Plc and consequently the order issued by the
Magistrates Court was of no force and effect upon the appellant.
We
were informed from the bar that the respondent proceeded to have the
appellant ejected from the premises.
Counsel
for the appellant suggested that this court can issue an order for
the reinstatement of the appellant to the premises instead of the
interdict.
Whilst
this Court can issue the declaratur
that the High Court ought to have issued, I am of the view that the
interdict cannot be issued as the eviction was effected.
The
Supreme Court is a creature of statute and can only do that which its
enabling statute permits. The jurisdictional limits and powers of the
court are found in sections 21 and 22 of the Supreme Court Act
[Chapter 7:13] which read as follows in relevant part:
“21.
Jurisdiction in appeals in civil cases
(1)
The Supreme Court shall have jurisdiction to hear and determine an
appeal in any civil case from the judgment of any court or tribunal
from which, in terms of any other enactment, an appeal lies to the
Supreme Court.
(2)
Unless provision to the contrary is made in any other enactment, the
Supreme Court shall hear and determine and shall exercise powers in
respect of an appeal referred to in subsection (1) in accordance with
this Act.
22.
Powers of Supreme Court in appeals in civil cases
(1)
Subject to any other enactment, on the hearing of a civil appeal the
Supreme Court —
(a)
shall have power to confirm, vary, amend or set aside the judgment
appealed against or give such judgment as the case may require;
(b)
May, if it thinks it necessary or expedient in the interests of
justice —
(i)…,.
(ii)…,.
(iii)…,.
(iv)…,.
(v)…,.
(vi)…,.
(vii)…,.
(viii)…,.
(ix)
take any other course which may lead to the just, speedy and
inexpensive settlement of the case;
(c)
may, if it appears to the Supreme Court that a new trial or fresh
proceedings should be held, set aside the judgment appealed against
and order that a new trial or fresh proceedings be held.
(2)…,.”
It
is clear from the above that the Supreme Court has extensive powers
which include the power to amend, vary, confirm or set aside a
judgment of a lower court or tribunal. It also has the power to take
any course which may lead to the just, speedy and inexpensive
settlement of the case.
In
casu,
the appellant was evicted by virtue of an order of eviction which was
obtained under circumstances which can only be described as
irregular.
An
order directing that the appellant return to the High Court for
appropriate relief in relation to its eviction from the premises
would result in the appellant having to institute fresh proceedings
for its reinstatement. Such a course, under the circumstances of this
case, would merely serve to delay the process as this court has
already held that the eviction was irregular.
This
in my view, is a proper case where this Court may issue an order that
the appellant be reinstated in the premises.
With
regard to the question of costs, Mr de
Bourbon
argued that the appellant's costs in the court a quo should be paid
by the respondent on a legal practitioner client scale.
It
was submitted that in the circumstances of this case, the delay in
bringing the application for spoliation more than fourteen or fifteen
months after possession had been lost was so gross as to disentitle
the respondent the relief sought.
The
facts show that there was indeed a considerable delay from the time
the respondent claimed it lost possession to the time it approached
the Magistrates Court for spoliatory relief. Prior to that, it
launched a number of applications in the High Court seeking the same
relief. The first filed on 2 July 2010 was dismissed. Thereafter it
filed other applications, some of which respondent abandoned or did
not pursue.
The
abuse of court process is clear.
Its
conduct throughout the period that the dispute has been raging
deserves censure by this court. An order for costs on the punitive
scale in the court a
quo
was warranted.
In
the premises the appeal must succeed.
Accordingly
it is ordered as follows:
1.
The appeal is upheld with costs.
2.
The judgment of the court a
quo
is set aside and substituted with the following:
(a)
The eviction order granted by the Magistrates Court Harare, in the
matter between Autoband
Investments (Private) Limited t/a Trauma Centre v African Medical
Investments Plc
under Case No. MC16435/11 be and is hereby declared to be of no
force, effect and application as against the applicant.
(b)
It is ordered that the applicant be and is hereby restored to
possession and occupation of premises known as Stand 2924 Salisbury
Township of Salisbury Township Lands situated at Number 15 Lanark
Road, Belgravia, Harare.
(c)
It is ordered that the respondent pays the costs of this application
on a legal practitioner client scale.
MALABA
DCJ: I
agree
GARWE
JA: I
agree
Mtetwa
& Nyambirai,
appellant's legal practitioners
Venturas
& Samkange,
respondent's legal practitioners
