This
is an application for a joinder. The draft order attached to the
application reads as follows:-
“1.
The 6th
Respondent be and is hereby joined as the 6th
Respondent in Case No. HC1393/08.
2.
The 6th
Respondent shall, if he wishes to defend the 1st
and 2nd
Applicants' claim, file a Notice of Opposition within (10) ten days
of service ...
This
is an application for a joinder. The draft order attached to the
application reads as follows:-
“1.
The 6th
Respondent be and is hereby joined as the 6th
Respondent in Case No. HC1393/08.
2.
The 6th
Respondent shall, if he wishes to defend the 1st
and 2nd
Applicants' claim, file a Notice of Opposition within (10) ten days
of service of the pleadings in Case No. HC1393/08 on him.
3.
The rest of the pleadings shall be dealt with in accordance with the
rules of the Court.
4.
There shall be no order as to costs.”
I
give, here-below, a brief background to the relief sought.
On
7 March 2008 the applicants filed an application under case number
HC1393/08 (the main matter) for the following relief:-
“IT
IS ORDERED THAT:
1.
The 1st
Respondent [the plaintiff herein] is hereby interdicted from
transferring the property known as No. 98 Churchill Avenue, Harare,
also known as a certain piece of land situate in District of
Salisbury Township Lands measuring 3,066 square metres under Deed of
Transfer 39/76 to anyone except the 1st
and 2nd
Applicants.
2.
The property in paragraph 1 above be transferred to Asswell Africa
Gurupira and Jean Jane Gurupira and the 2nd
Respondent [Sandra Muir] is directed to sign all the necessary
documents to finalise the transfer within 10 days of the Order.
3.
Should the 2nd
Respondent fail or refuse to sign the necessary documents to effect
transfer, the 4th
or 5th
Respondent [Sheriff and Deputy Sheriff respectively] are hereby
directed to sign all the necessary documents to effect the transfer
by the 3rd
Respondent [Registrar of Deeds] to 1st
and 2nd
Applicants.
4.
The 1st
and 2nd
Respondents shall bear all the costs of this application on
attorney-client scale jointly and severally one paying the other to
be absolved.”
On
21 May 2008, I granted the above order in default.
On
22 August 2008, the sixth respondent, in his capacity as the Managing
Director of the first respondent, filed an application, under case
number HC4211/08, for the rescission of the default judgment granted
in favour of the applicant on 21 May 2008. I must mention that when
the rescission application was filed, the default order had already
been executed/enforced.
In
paragraph 14 of the founding affidavit in the rescission application
filed on 22 August 2008 in HC4211/08, the sixth
respondent
averred as follows:-
“14.
I humbly submit that the Applicant has got a prima facie right and a
bona fide defence to the 1st
and 2nd
Respondents claim. Applicant bought all the shares from the 3rd
Respondent, through its Managing Director, and took transfer of the
shares well before the 16th
of June 2008 when the 1st
and 2nd
Respondents took transfer of the immovable property. In fact, the
Order granted by this Honourable Court, see Annexure “I”, was
granted in error. The alleged Agreement of Sale between 1st,
2nd
and 3rd
Respondents was not for the sale of the immovable property but for
the sale of shares. In fact, it is quite doubtful that the same could
have been granted if the 1st
and 2nd
Respondents' Legal Practitioners had been candid with this
Honourable Court and included Annexure “H” which is the Notice of
Opposition to the Court Application. As it is, 1st
and 2nd
Respondents Legal Practitioners saw it fit to cherry pick the
information and omitted to mention or attach the Opposing Affidavit
to Case No. HC6660/07. In a nutshell, the transfer of the immovable
property to the 1st
and 2nd
Respondents is null and void as
the company shares in the Applicant were bought and transferred to
JOHN LEGGETT, who, in his capacity as the sole shareholder, became
the owner of all assets owned by the Applicant well before it
purported to take transfer of the immovable property on the 16th
of June, 2008.”…,.
The
first and the second respondents referred to in the above passage are
the first and the second applicants herein. The third respondent is
the second respondent in this matter. John Leggett, referred to in
the above passage, is the sixth respondent that the applicant herein
seeks to join in the main matter (HC1393/08).
The
contents of the above passage are further reinforced in the answering
affidavit filed by the sixth respondent on 25 September 2008 in
HC4211/08 on behalf of the applicant therein. In paragraphs 6 and 7
of the answering affidavit, the sixth respondent states as follows:
“6.
Annexures
“B1” and “B2” clearly show that 3rd
Respondent transferred her shareholding to John Leggett. I also
attach hereto, as Annexure “A” a Share Certificate which clearly
shows that John Leggett is the owner of 100 fully paid ordinary
shares in the Applicant.
It is true that the Applicant was the owner of all its assets,
including the immovable property in dispute, and the same (Applicant)
was owned by the 3rd
Respondent hence her power to sell and transfer the shares to John
Leggett who became the owner of the Applicant. Simple
logic testifies that the purpose of purchasing shares is to own and
control that company and how 'the deponent did not become the owner
of the Applicant's property by acquiring shares in it' is
confusing (for want of a better word).
Is
it being suggested that Applicant's shareholder (John Leggett)
elected to buy the name of the company and did not want to become
owner of Applicant's property by acquiring shares in it?
The
averments in this paragraph by the 1st
and 2nd
Respondents is, with respect, confusing. Initially, it is alleged
that “3rd
Respondent did not transfer any shares to the Applicant. Then a few
lines down it is alleged that 'the deponent did not become owner of
the Applicant's Property by acquiring shares in it.'
The
issue is not who entered into an Agreement with 3rd
Respondent first. The issue is simply, who took transfer of the
shares first.
As
at 28th
May 2008, John Leggett was the new shareholder and owner of the
Applicant.
Annexure
“A”, attached hereto, clearly shows that the Share Certificate
was issued to John Leggett on the 5th
of June 2008 and 1st
and 2nd
Respondents took transfer improperly of the immovable property on the
16th
of June 2008. The 1st
and 2nd
Respondents either deliberately or through a genuine error on their
party overlooked the
fact that the Applicant has a new shareholder who took transfer of
the Shares from 3rd
Respondent, and, as such, has got a vested interest in the matter.
The Applicant is the owner of the immovable property and other
movable property and if it cannot be the Applicant who deposes to the
Founding Affidavit who should then be?
7.
The
Applicant had new Shareholders who should have been cited by the
respondents.
The law is quite clear.”…,.
As
per his own averments, the sixth respondent was actually the new sole
shareholder of the first respondent in
casu.
The foregoing brings to the fore the sixth respondent's vested
interest in the main matter. Clearly, the relief sought in paragraph
2 of the draft order in the main matter (HC1393/08) would adversely
impact on the vested interest of the sixth respondent. That position
requires no argument and would indeed form the legal basis upon which
a joinder is being sought.
When
the rescission application was placed before PATEL J…, he directed
that, because of the disputes of fact in the matter, it should go to
trial.
The
matter eventually went to trial before MAFUSIRE J who granted the
rescission on 19 March 2014. The rescission meant that the main
matter, (HC1393/08), should now be heard in terms of the rules of
this court. However, before the hearing of the matter, the applicants
correctly deemed it necessary to join the sixth respondent who was
not cited in the main matter.
Curiously,
the application for joinder is opposed by the sixth respondent. This
is despite the fact that, according to him, he is now the Managing
Director and sole shareholder of the first respondent. Ownership of
the property, which is really at the center of the dispute between
the parties, is said to vest in the first respondent, whose total
shares the sixth respondent now claims to own.
In
his founding affidavit, in casu,
the first applicant explains, in part, as follows:
“8.
On the 7th
of March 2008, I together with 2nd
Applicant filed a Court Application before this Honourable Court,
seeking an order for specific performance against the 1st
and 2nd
Respondents, among other things. The order was granted in default and
has since been rescinded by this Honourable Court. Parties are back
to the previous status quo.
I
beg leave to refer to the pleadings in 1393/08 as if specifically
traversed herein. At the time of the issuing of the said application
the 2nd
Respondent had in her possession on the Share Certificates reflecting
her as the sole shareholder of the 1st
Respondent, the Company owning Stand 12896 Salisbury Township
measuring 3,066 square metres also known as No.98 Churchill Avenue,
Gunhill, Harare. I together with 2nd
Applicant, entered into an agreement to buy the said shares to
facilitate ownership and control of Stand 12896 Salisbury Township
measuring 3,066 square metres also known as No.98 Churchill Avenue,
Gunhill, Harare.
However,
it subsequently came out that the 2nd
Respondent had later purported to issue and sell the same shares in
the 1st
Respondent to the 6th
Respondent, John Legett, without our knowledge. Therefore, the said
John Legett clearly has an interest in the outcome of the Case No.
HC1398/08 which seeks to have us declared the true shareholder of the
1st
Respondent and subsequently, the process of Stand 12896 Salisbury
Township measuring 3,066 square metres also known as No.98 Churchill
Avenue, Gunhill, Harare at 6th
Respondent's expense.
9.
The 2nd
Applicant and I insist that we are the rightful shareholders in 1st
Respondent and believe that the purported transfer to John Legett was
improper and a legal nullity.
We
would want the court to rule that purported sale of the shares to
John Legett be deemed null and void and it is only proper that the
6th
Defendant/Respondent be given an opportunity to give his side of the
story.
10.
Therefore, it is necessary that the 6th
Respondent, John Legett, be joined in this case to enable us to
enforce the order we are seeking before this Honourable Court. In
fact, the Court can properly determine the issue of the purported
sale of shares to the 6th
Respondent by the 1st
and 2nd
Respondents as all the interested parties would be before it.”
Indeed,
the relief sought in the main matter is the one reproduced in full at
page 2 of this judgment. In the main, the applicants pray for the
transfer of the property in dispute to themselves.
In
the main matter, (HC1393/08), the opposing affidavit sworn to by the
sixth respondent states, in part, as follows:-
“(a)…,.
(b)
The 2nd
Respondent's interest in this matter ceased on the 28th
of May 2008 when 2nd
Respondent sold and transferred to me her two shares in the 1st
Respondent. I must mention that by this date I already held 98 shares
in the 1st
Respondent.
(c)
As from 11 December 2007 I had been the majority shareholder in the
1st
Respondent as I had ninety eight shares. Following the agreement of
28 May 2008 I had then assumed 100% shares of the 1st
Respondent.
(d)…,.”
The
above is consistent with other averments made in the rescission
application (HC4211/08) and already quoted in this judgment.
Notwithstanding
the sixth respondent's clear interest in the main matter,
(HC1393/08), he remains opposed to the joinder.
In
his opposing affidavit in the main matter the sixth respondent states
as follows:-
“4.
The First Applicant has deliberately misrepresented the relevant
facts of this matter which facts are well known to him. Undoubtedly,
he has chosen to adopt a course based on incorrect and incomplete
facts in order to justify this extremely belated application for
joinder.
5.
It is correct that on 7 March 2008 the Applicants instituted a Court
Application in Case No. HC1393/2008. I was not cited as a party in
that application. In that matter, the Applicants sought an order,
without any factual or legal basis, for the transfer of the property
in Churchill Avenue from the name of the First Respondent into their
personal names. There had not been any proper service of the papers
in the matter on the First Respondent, but, notwithstanding, a
judgment in default was granted.
6.
As soon as I learnt to the default judgment, I caused an application
for rescission of that default judgment to be made on behalf the
First Respondent, which was Case No. HC4211/2008. It was an
application brought, in the main, by the First Respondent, for the
rescission of the judgment obtained without notice or proper service
and without any basis for the transfer to the Applicants of the
property belonging to the First Respondent.
7.
However, that application was referred to trial by the Honourable Mr
Justice Patel on 24 September 2009 and the parties were directed to
file pleadings. Among the pleadings filed was one termed “1st
and 2nd
Defendants' Counterclaim', filed on behalf of the present
Applicants on 2 November 2009. In the so-called Counter-claim I was
cited as the Second Defendant, and the relief sought in that
Counterclaim was, in essence, precisely the same relief as is now
being sought through the application for joinder. I attach a copy of
that so-called Counter claim as Annexure
“A”
for the benefit of this Honourable Court.
Objection
was taken to the attempt to join me as a party as none of the
original papers had been served on me, and the legal practitioners
representing the present Applicants thereafter withdrew the so-called
Counterclaim. When the trial took place earlier this year before the
Honourable Mr Justice Mafusire there was no claim made by the present
Applicants against me in my personal capacity.
8.
The result of that trial, handed down on 19 March 2014, was that the
judgment given in default was set aside. Subsequent thereto, on 2
April 2014, I caused to be filed on behalf of the First Respondent
the necessary opposing papers to the application brought in Case No.
HC1393/2008, together with a counter-application for the eviction of
the Applicants from the property belonging to the First Respondent.
The
response thereto, on behalf of the Applicants, was to file, on 8 May
2014, the Applicants filed an opposing affidavit to the
counter-application. The delay in filing that opposing affidavit had
been the subject of correspondence between Gill, Godlonton &
Gerrans and Sawyer & Mkushi. As agreement had been reached to
allow the late filing of the Opposing Affidavit I make nothing of
that delay.
10.
On 30 May 2014, Heads of Argument for the Applicants were filed in
Case No. HC1393/2008. I am advised that these Heads of Argument were
filed out of time and that issue will be raised at the hearing of the
application. Some five business day later the present application for
joinder was filed and served.
12.
The papers in Case No HC1393/2008 are now closed and the matter ready
for hearing, rendering it inappropriate to reopen all those papers
simply because the Applicants have eventually decided to bring an
application for joinder. Most certainly, the Applicants have had
since 19 March 2014 to make any such application, but have delayed, I
would suggest, deliberately, until 6 June 2014 to bring that
application in order to extend their unlawful occupation of the house
in Churchill Avenue. It is also intended to interfere with the
administration of justice and the proper determination of the issues
raised in Case No. HC1393/2008.
11.3
Furthermore, more than three years have elapsed since the Applicants
knew that I had entered into two agreements relating to the shares of
the First Respondent. Those details had been set out in the founding
papers which I caused to be filed on behalf the First Respondent in
Case No. HC1393/2008 as long ago as 22 August 2008. I am therefore
advised that the claim purported to be brought by way of the joinder
application is prescribed and cannot be pursued.”
I
take note of the withdrawal of the counter-claim wherein the sixth
respondent had been cited.
In
addition to the above objections, which I have, for the purpose of
clarity, quoted at length, during the hearing of this application the
sixth respondent raised another issue. It was an issue of law and the
submission was:-
“19.
The Form 29 used to institute this present application for joinder
specifically states that the application is made in terms of Order 13
Rule 85 of the High Court Rules 1971. This reads:
'85.
Subject to Rule 86 two or more persons may be joined together in one
action as plaintiffs or defendants whether in convention or in
reconvention where -
(a)
If separate actions were brought by or against each of them, as the
case may be, some common question of law or fact would arise in all
the actions; and
(b)
All rights to relief claimed in the action, whether they are joint,
several or alternative, are in respect of or arise out of the same
transaction or series of transactions.
The
Rule clearly applies solely to actions and not to applications. It is
submitted that there has been no extension of this Rule in the
procedure relating to applications. Therefore, the attempt to make an
application in terms of Rule 85 in the present circumstances was
ill-founded.
21.
This is not to say that in application procedures and Order 32 the
Court cannot order the joinder of an interested party. But it does
mean that any such joinder cannot be to permit substantive relief
different to that sought in the founding application to be claimed.”...,.
With
regards to the legal issue, I acknowledge the fact that both Rules 85
and 87 appear to confine themselves to actions. However, I take the
view that a rigid construction of those Rules will result in a
miscarriage of justice. I therefore believe that reference to “any
cause” in Rule 87 should enjoy a wider and encompassing meaning. In
that case, an interested party can join or be joined as long as the
matter is yet to be determined i.e. at any stage. It would therefore,
in the circumstances, be appropriate to invoke Rule 4C of the High
Court Rules 1971 which provides as follows:-
“4C.
Departures from Rules and directions as to procedure
The
court or a judge may, in relation to any particular case before it or
him, as the case may be –
(a)
Direct, authorize or condone a departure from any provision of these
Rules, including an extension of any period specified therein, where
it or he, as the case may be, is satisfied that the departure is
required in the interests of justice;
(b)
Give such directions as to procedure in respect of any matter not
expressly provided for in these Rules as appear to it or him, as the
case may be, to be just and expedient.”
In
view of the foregoing and given the fact that this court can manage
its own Rules in order to render justice to litigants, I am unable to
accept that an application for joinder cannot be made in a
matter/cause brought by way of application. That, in my view, would
be an unfair law.
