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 r 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 s 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 r 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 id 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 USD 0.001 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 MC 16435/11
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 A.J said at pp 98-99:
“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 s 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 p 344.
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 ss 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 MC 16435/11 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
