MAVANGIRA J: This is an urgent chamber application in which the applicant
seeks the following relief:
“TERMS OF FINAL ORDER SOUGHT.
The respondents should show cause why a final order should not be made in
the following terms: -
- Respondents be and are hereby interdicted from
transferring Stand No 140 Christon Bank Township of Maryvale of Mgutu of
Great B, before determination and finalization of case no HC 1753/09.
- First and second respondents should pay costs of suit
on a higher scale of attorney and client scale jointly and severally one
paying for the other to be absolved.
INTERIM RELIEF SOUGHT/GRANTED
Pending the determination of this matter, the applicant is granted the
following relief:-
That
the respondents and all those claiming rights through them be and are hereby
barred from transferring property known as Stand No. 140 Christon Bank Township
of Maryvale of Mgutu of Great B to any third parties.”
The
deponent to the founding affidavit avers that he is the board chairman of the
applicant company. He avers that there is a pending matter in the High Court
between him on the one hand and the first and second respondents on the other
in HC 1753/09, in which the court will be tasked to determine the directorship
of the applicant company.
The
deponent avers that the applicant company is the registered owner of an
immovable property known as Stand 140 Christon Bank Township 9 of Maryvale of
Mgutu of Great B. He further avers that when the proceedings in HC 1753/09
commenced he registered an XN caveat on all his immovable property to avoid
unscrupulous individuals transferring property owned by the applicant company
without lawful excuse and depriving the applicant company of its property in
favour of third parties.
The
deponent avers that he has since received information that the first to the fourth
respondents have applied to change ownership of the property in question
without his knowledge, without a board resolution and without a lawful court
order as the matter in the HC 1753/09 is still pending. The deponent contends
that if this Court does not stop this illegal act, the applicant company will
be permanently deprived of its property. He contends that the respondents
cannot deprive the applicant company of its assets in favour of third parties
without the finalization of the matter in HC 1753/09.
The
first and second respondents oppose the application. Firstly, they contend, in limine, that the deponent to the
applicant's affidavit, Oniyas Gumbo, does not have authority from the applicant
to depose to the affidavit. They aver that they are the current directors of
the applicant company and attach to their opposing affidavit the relevant form
CR14 which reflects this position. They further state that neither of them has
empowered or authorised Oniyas Gumbo to depose to the founding affidavit on
behalf of the applicant company. Furthermore, that if Oniyas Gumbo had an
interest to protect, he ought to have instituted the application in his own
name.
The
first and second respondents further contend, in limine, that the applicant company sold the property in question
to Total Insurance Company Limited (hereinafter referred to as “Total”) in 2004
when Oniyas Gumbo was still a director and that the failure to cite Total is a
non-joinder that renders the application totally defective and warrants the dismissal
of the urgent chamber application without going into the merits of the matter.
The
third and fourth respondents also raised a point in limine in their opposing affidavit. They aver that the third
respondent purchased the property in question from Total on 19 May 2008. They
aver that the transfer which the applicant seeks to interdict is transfer of the
said property from applicant company to Total and that such transfer was being
attended to by Messrs Machingambi Legal Practitioners. They contend that the
failure to cite Total and or Messrs Machingambi Legal Practitioner as parties
to these proceedings is fatal to this urgent chamber application.
The
third and fourth respondents further contend that the matter is not in any
event urgent as the deponent to the founding affidavit became aware of the
impending transfer of the property in question to Total more that seven months
ago, judging from the date of registration of the XN Caveat. Any urgency would
have arisen then but the deponent opted to do noting about it at that time.
The
first and second respondents' challenge of the locus standi of the deponent to the founding affidavit to depose to
the affidavit on behalf of the applicant company is, in my view, a preliminary
issue that needs to be determined at the outset. The second and third
respondents have attached documentary proof that they are registered with the
Registrar of Companies as directors of the applicant company. They aver that
they have not authorised the deponent to depose to the said affidavit on behalf
of the applicant company. The deponent on the other hand, has not attached any
documentary proof to establish or substantiate his claim that he is so
authorised or to rebut the first and second respondents' claim that they are
the directors and that he is not a director. In the circumstances and on the
basis of the documentary evidence placed before the court, it appears to me
that this point in limine should be
upheld in favour of the first and second respondents.
It
appears to me that it is necessary to also deal next with the point raised by
the third and fourth respondents, that the matter is not urgent.
The
interdict is purportedly sought pending the determination of HC 1753/09 in
which the directorship of the applicant company is to be decided. The deponent
to the founding affidavit avers that he registered an XN caveat on all “his”
immovable property when he instituted proceedings in HC 1753/09. He presumably
includes in this description the immovable property in question. He does not
state when it is that he instituted the said proceedings. However, the third
respondent's averment that the XN caveat was registered some seven months ago
stands unchallenged. The registration of the caveat was, as stated by the
deponent to the founding affidavit, triggered by the apprehension that the
property may be transferred to third parties. This must, in my view, be
considered against the fact that the property in question was sold to Total in
2004 by the applicant company and that this was at a time when the deponent to
the founding affidavit was a director in the applicant company. From the
documents attached to the first and second respondent's opposing affidavit
particularly the letter dated 13 December 2004 a sale was concluded between the
applicant company and Total. The letter reads:
“Re: Cession
of Title Deeds: Stand 140 Christon Bank Transfer Number 0009579/2000
The title deeds
for the above named property were ceded to Total Insurance Company Limited on 7
March 2004, following the conclusion of a sale agreement.
We are agreeable
to them being used to secure any borrowings from CFX Bank Limited.”
The
above quoted letter was authored by the deponent to the founding affidavit together
with one E. Mapanzure as the then directors of the applicant company and was
addressed to CFX Bank Limited. Transfer of the property to Total would have
become imminent in 2004 or soon thereafter. The veracity of the contents of the
letter is borne out by the agreement of sale also attached to the first and
second respondents' opposing papers. It is an agreement entered into by and
between the applicant company on the one hand as the seller of the property in
question and Total on the other as the purchaser. It is also an undisputed fact
that Total later sold the same property to the third respondent. If not in 2004,
then certainly in 2009 at the latest, when the deponent to the founding
affidavit registered the caveat, he was aware or alive to the possibility of
transfer of the property from the applicant company to Total. It can only be
then that the urgency that he now wants this court to consider might have arisen
if at all. That was the time for him to take the action that he now purports to
do by filing this urgent chamber application. There is no explanation why that
was not done. It is in such circumstances that purported urgency is said to be
self created. When urgency is self created applicants should not expect this
court to cease all else in order to entertain them. The application in casu appears to be one such
application. I therefore find that this matter is not urgent.
In view of my determination on these
two preliminary points it appears to me that it is not necessary for this court
to deal with any of the other preliminary points raised.
For the above reasons I ruled that
this matter is not urgent and dismissed it with costs.
Manase & Manase, applicant's legal practitioners
Mbidzo, Muchadehama & Makoni, first and second respondents'
legal practitioners
Chigwanda Legal
Practitioners, third and fourth respondents' legal
practitioners
