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....,.
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, African Medical Investments
Plc (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 Zarina Dudhia and Wessel 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, African Medical Investments
Plc (AMI Plc) was cited as the sole respondent.
In the founding
affidavit, Dr Vivek 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 African Medical Investments Plc (AMI Plc) with
a proposal that Autoband Investments 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 Investments.
He averred that the agreement
had fallen through, and, subsequent to that, the employees of African
Medical Investments Plc (AMI Plc) had unlawfully evicted the employees
of Autoband Investments from No.15 Lanark Rd during his absence from the
country.
In the affidavit, Dr Vivek Solanki alleged that the
employees of Autoband Investments 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, African Medical Investments
Plc (AMI Plc) had taken the law into its hands and evicted Autoband
Investments, 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 African Medical Investments Plc (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
Peter J. 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, Dr Vivek Solanki claimed that
Streamsleigh Investments (Pvt) Ltd was a company in which he had an
interest and he put into issue the status of Peter J. 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 Investments 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. HC619/11 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 MC16435/11 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. HC619/11 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 African Medical
Investments Plc (AMI Plc) or Streamsleigh Investments (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 African Medical Investments Plc
(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 Dr Vivek 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 Vivek 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 Dr Vivek 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…,.:
“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)…,.
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 African Medical
Investments Plc (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 African Medical Investments Plc (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 African Medical
Investments Plc (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. HC619/11. 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 African Medical
Investments Plc (AMI Plc) from 15 Lanark Rd.
Clearly, as argued
by the appellant, the respondent went forum shopping after realizing
that it could not obtain relief in the High Court.
In an
answering affidavit before the Magistrates Court, Dr Vivek 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 African Medical
Investments Plc (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 Dr Vivek
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 Vivek
Solanki was employed by African Medical Investments Plc (AMI Plc) and
was one of the directors of the company. When the management agreement
was concluded with Autoband Investments, 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 Vivek 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 Dr Vivek 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 Dr Vivek Solanki, that, he
is the founder and director of Autoband Investments. He then claims,
that, he was approached by African Medical Investments Plc (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 African Medical Investments Plc (AMI Plc).
In
none of the applications did he submit proof of ownership of shares in
Autoband Investments, 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 Investments, in
which Dr Vivek Solanki's name does not appear on the list of directors.
According
to Dr Vivek 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 Dr Vivek 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 African Medical
Investments Plc (AMI Plc).
If the respondent, or Dr Vivek 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 African Medical Investments Plc (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 African Medical Investments Plc (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;
(i)
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
(ii) 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 [Chapter 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)…,.; Munn
Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 (1) ZLR
337 (S)…,.
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 African Medical
Investments Plc (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
African Medical Investments Plc (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 African Medical Investments Plc (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, counsel for the appellant 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 the 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.
