MAWADZE
J: This is an urgent chamber
application for a provisional order whose interim relief sought is stated as
follows:
“Pending the
finalization of its application the first and second respondents be and are
hereby interdicted from ejecting the applicant.”
The terms of the
final order are construed as follows:
“That
you show cause why a final order could not be made in the following terms:
1.
The first and second respondents be and are hereby
stopped or interdicted from executing or enforcing the order of the
Magistrates' court granted on the 6th
of August 2010 in this case pending the outcome of the appeal against that
order under case number “Civ' 'A' 537 (later amended to 'Civ' A 450/10).
2.
The second respondent bears the costs of this
application in the event that the application is opposed”.
The
background facts of this matter are not outlined by both the applicant and
first respondent. After gleaning through the papers filed of record the brief
facts of this matter can be summarized as follows:
On 22 June 2010
the first respondent obtained an eviction order in the Magistrates' court
against the applicant on the grounds that the applicant had breached the terms
of the lease agreement by late payment of rentals for the months of March,
April and May 2010. The applicant appealed to this court against this decision
on 23 June 2010. (Appeal No 271/10 under case number Civ 'A' 450/10
(hereinafter the main appeal). This appeal had the effect of suspending the
eviction order granted on 22 June 2010.
The
first respondent proceeded to file an application for leave to execute pending
appeal in the Magistrates' court on 12 July 2010 which leave was granted on 5
August 2010 despite being opposed by the applicant. The applicant, realizing
the imminent consequences of the Magistrates' court's order proceeded to note
an appeal against the granting of this interlocutory relief on 6 August 2010
(Appeal No 272/10 under case number Civ 'A' 537/10)(hereinafter the second
appeal). Notwithstanding the noting of this second appeal against the order
granting execution pending appeal, the first respondent proceeded with the
execution of the order, that is, ejectment, by serving a warrant of ejectment
on the applicant despite protestations by the applicant. The applicant was due
to be evicted on 12 August 2010. This prompted the applicant to approach this
court on 11 August 2010, on a certificate of urgency, praying for the interim
relief already alluded to. This application is opposed.
At
the commencement of the hearing Advocate Zhou
sought to amend the citation of the case number in para 1 of the terms of the
final order to read “Case number Civ 'A' 450/10 rather than Civ 'A' 537/10.
This amendment was made by consent. The purpose and significance of that
amendment later became clear in Advocate Zhou's
submissions.
Mr
Samkange raised a point in limine which may obviate the need to even
deal with the merits of this application. In a nutshell the point raised by Mr Samkange was that there could not be a
valid notice of appeal against the granting of an order of execution pending
appeal from the Magistrates' court. In argument Mr Samkange stated that such an appeal would be against an
interlocutory order which is not final and definitive in nature. Mr Samkange argued that there is therefore
no second appeal pending before this court and that on this basis alone this
application should fail.
Advocate
Zhou, in response conceded to this
fact and in my view made a proper and informed concession.
The
position of the law is now settled on that point. In the case of Gillespies Monumental Works (Pvt) Ltd
v Zimbabwe Granite Quaries (Pvt)
Ltd 1997 (2) ZLR 436 the point was made that the order granting leave to
execute the ejectment order did not have a final and definitive effect on the
main suit. The noting of an appeal against such an order would be invalid.
In
the case of Peter Mungwambi v Ajanta Properties (Pvt) Ltd HH 77-08 MAKARAU
JP (as she then was) had this to say on the same point at p 4 of the
cyclostyled judgment:
“… an order for leave to execute pending appeal is
an interlocutory order. It is not final as it is pending the appeal. As such,
in my view it can not be appealed against”.
A
similar view was expressed by MUTEMA J in the case of Marathon Group of Companies t/a Harrison
and Hughson (Pvt) Ltd v Alstom Zimbabwe (Pvt) Ltd &
Messenger of Court Harare HH 152-10 in which the case of Gillespies supra was cited with approval on p 4 of the cyclostyled judgment:
“The noting of
an appeal by the applicant against the magistrate's order granting leave to
execute pending appeal was invalid, and there was no basis for this
application. The bringing of the application could be described as analogous to
shutting of the stable door after the horse had bolted”.
Section 40 (2) of the Magistrates' Court Act (Cap 7:10) provides that appeals from the Magistrates' court to this court
shall be against any rule or order if such has the effect of a final or definitive judgment. Put in another way
this means that where the rule or order appealed against from the Magistrates'
court is not a final or definitive in nature no appeal can be made.
In casu the
order for leave to execute pending appeal made by the Magistrates' court on 5 August
2010 is an interlocutory order. It is not decisive or definitive on the rights
of the applicant. In essence therefore no valid appeal can be made against such
an order. This would mean that the appeal made by the applicant to this court
(the second appeal) on 6 August 2010 Appeal No. 272/10 Case no Civ 'A' 537/10
is of no force and effect. The applicant can therefore not approach this court
to seek an order to stay execution pending such an appeal. This would therefore
mean that there is no basis for this application.
Advocate Zhou
however contended that this court can still deal with the merits of this case
even after upholding the point in limine
raised by Mr Samkange. The argument
made by Advocate Zhou was that two
appeals were noted and that even if the later appeal (second appeal) is invalid
and of no force and effect the first (main) appeal remains valid. He submitted
that this court therefore can still proceed on good grounds to grant a stay of
execution on the basis of the first (main) appeal still pending. This explains Advocate
Zhou's request to amend para 1 of the
terms of the final order in order to expunge case number Civ 'A' 537/10 appeal
number 272/10 which he had cited as it
refers to the second appeal. Advocate Zhou
sought to rely on the views expressed by MAKARAU JA (as she then was) in Peter Mugwandi v Ajanta Properties (Pvt) Ltd supra
at p 2 of the cyclostyled judgment wherein it was stated:
“The power to
grant stay of execution pending appeal is a common law exercise of the power
that inheres in this court. In this regard the court enjoys the discretion of
the widest kind.
The main guiding principle for the court in determining such applications is to
grant stay where real and substantial justice requires such a stay or
conversely where injustice would otherwise be done”.
Advocate Zhou
urged this court to deal with the merits of this case on the basis of the main
(first appeal) and consider the relevant factors which include inter alia prospects of success on
appeal, the potentiality for irreparable harm or prejudice to either
applicant or respondent if stay is
granted or not granted and the balance of inconvenience or hardship to either
party.
I am however not persuaded by Advocate Zhou's argument in support of this
application. While the position of the law is correctly stated by MAKARAU JP
(as she then was) in Peter Mugwambi v
Ajanta Properties (Pvt) Ltd supra that proposition would
not in my view support this application. I arrived at this position on
basically two reasons.
In the case of Peter
Mugwambi v Ajanta Properties (Pvt) Ltd
supra the urgent chamber application seeking an order staying execution was
premised on the two appeals in that case. See p 2 of the cyclostyled judgment.
In casu the certificate of urgency is
instructive. It clearly spells out that this application is premised on the
appeal made on 6 August 2010 which appeal is invalid. I cannot do more than to quote
the relevant part of the certificate of urgency:
“1. On 6 August 2010 the
applicant appealed against an order for leave to execute or judgment of the
Magistrates' court of pending appeal. The appeal is still pending. The
applicant has since been served with a notice of removal, which removal is due
to take place on 12 August 2010.
2. The order for leave to
execute judgment pending appeal was in the circumstance an interlocutory order with
a definitive effect hence appealable. The definitive effect arises from the
irreparable harm that the applicant will suffer if execution proceeds more
particularly in that:
(a) …
(b) …
(c) …
(d) …”.
Similar averments are repeated in the applicant's founding affidavit. It
is therefore clear that the applicant's case is premised on the appeal made on
6 August 2010. In fact in the papers filed of record the applicant sought to
argue that the order for leave to execute judgment pending appeal though
interlocutory was definitive in nature hence appealable. The valiant attempts
by Advocate Zhou to amend para 1 of
the terms of the final order and to try and completely change the thrust of the
applicant's case during the hearing are in vain. In fact, if one was to accept Advocate
Zhou's argument the applicant would
need to file completely new papers in this case. On that point alone the
argument by Advocate Zhou is
untenable.
The second
reason why I am not persuaded by Advocate Zhou's
argument relates to the practical problems this court would encounter if it
were to adopt his so called robust approach and deal with the merits of this
application on the basis that the first (main) appeal is valid and that real and. substantial justice enjoins this court to grant the provisional
order. Firstly this court can not meaningfully deal with the merits and
demerits of the granting of an order of ejectment by the Magistrate's court on
22 June 2010 unless it is sitting as an appellate court. That appeal is still
pending before this court and can not be partially dealt with under the guise of
an urgent chamber application. The two records of proceedings in the
Magistrates' court are not even before this court.
The second aspect is that the applicant is simply trying
to upset the decision of the lower court and circumvent the effect of a valid
order for leave to execute pending appeal which order applicant realises is not
appealable. This is akin to trying to have the second bite of the cherry as it
were. Both parties argued before the lower court on the relevant aspect of
whether it was proper to grant leave or execute judgment pending the first
(main) appeal. The lower court exercised its discretion and granted the order
for leave to execute pending appeal. This court in my view cannot seek to
review this decision in the absence of a proper application for review. The
point is made that this court cannot also be asked to review the decision by the
lower court on the basis of an urgent chamber application in the form and
format filed of record by the applicant.
I find no merit at all in the arguments proffered by Advocate
Zhou for the applicant.
I am of the view that this is a proper case in which I
should award costs against the applicant on a higher scale as prayed for. It is
quite clear that the applicant is not acting in good faith. The applicant purported
to file an appeal when the applicant was apparently aware that such an appeal
was invalid. Even after conceding to this fact the applicant still sought to
pursue this application, albeit, on new basis, totally at variance with the
papers filed of record. The honourable course of action was for the applicant
to simply withdraw the matter and avoid incurring further costs. This court
should express its displeasure and award costs against the applicant on a
higher scale.
In the result I make the following order:
1.
The point in limine
raised by the first respondent is upheld.
2.
The application is dismissed.
3.
The applicant shall pay costs on the legal
practitioner-client scale.
Sawyer & Mkushi, applicant's legal
practitioner
Venturas and
Samukange, 1st respondent's legal
practitioners
