CHATUKUTA J: This an application for
rescission of a default judgment granted by this court on 28 October 2009 in
case No HC 3672/09.
The background to the application is
that the respondent entered into an oral lease agreement with a satellite
church of the applicant in Mufakose to lease Chidziva Building,
Mufakose (the premises). One Stowell Mupanguri, the applicant's Deputy Governor
responsible for finance negotiated the agreement on behalf of the
applicant. The satellite church took
occupation of the premises on 15 November 2008.
It failed to pay rent leading to the respondent issuing summons on 14
August 2009 in case No. HC 3672/09. The
respondent sought an order for the applicant's eviction from the premises and
for arrear rentals in the sum of US$45 000 due from 1 November 2008 to 31
August 2009. The respondent also claimed
holding over damages at a rate of US$5 000 per month and costs of suit. The summons was served at the premises on 20
August 2009. The applicant did not
defend the suit and hence the default judgment.
The order was amended to reflect arrear rentals in the sum of US$30
000.
The applicant alleges that it only
became aware of the default judgment on 15 January 2010 when it was served by
Deputy Sheriff with a Notice of Seizure and Attachment, Notice of Removal and
Writ of Execution at its head offices at corner Bishop Gaul Avenue and Rekai Tangwena Road, Harare.
On 20 January 2010, it filed an urgent chamber application in case
number HC 318/10 seeking an order for the stay of execution of the default
judgment. The following order was granted by consent:
“1. The
applicant hereby withdraws its present application.
2. The applicant shall file an application for rescission
of judgment in case No. HC 3672/09 before 1600 hours on 11 February 2010.
3.
The applicant consents to the amendment of the
Defendant's (judgment debtor's) citation to Christ Embassy of Zimbabwe under
case No HC 3672/09.
4.
The property attached by the Deputy Sheriff on 15
February 2010 shall remain under the judicial attachment pending the resolution
of the Applicant's application for rescission of judgment.
5.
Costs shall be in the cause.”
The applicant filed the present application
in compliance with the above order.
An
application for rescission of judgment under r 63 of the High Court Rules, 1991 can only be granted where an
applicant shows “good and sufficient cause”.
The words 'good and sufficient cause' have been construed in various
judgments in this jurisdiction to mean that the applicant must:
(a) give a reasonable and acceptable
explanation for his/her default;
(b) prove
that the application for rescission is bona fide and not made with the
intention of merely delaying plaintiff's claim; and
(c) show that he/she has a bona fide defence to plaintiff's claim.
(see Songore
v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210,; Bishi v Secretary
for Education 1989(2) ZLR 240 (HC); Ndebele v Ncube 1992(1)
ZLR 288(S); Dewera Farm (Pvt) Ld &
Ors v Zimbabwe Banking Co-operation 1997 (2) ZLR 47 (H) Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) and Apostolic Faith Mission in Zimbabwe &
others v Titus I Murufu SC
28/03). I will now deal with each of the
requirements in turn.
The explanation that has been
advanced by the applicant for the default is that the summons was not served at
its place of business and therefore it was not aware of the suit. It was further contended that the applicant
was not aware that its satellite church was operating from the respondent's
premises. I found it difficult to accept
the applicant's latter contention that it was not aware that its satellite
church was operating from the respondent's premises. It flighted an advertisement in The Herald
for a “Super Sunday Service” to be held at the premises on 15 March 2009. The contact details on that advertisement are
those of the applicant's head office at corner Bishop Gaul and Rekai Tangwena Road, Harare.
In fact, Pastor Ruth, who is the deponent to the applicant's founding
affidavit, attended service at the respondent's premises. She cannot therefore be heard to be saying
that she was not aware that the applicant's satellite church was operating from
the respondent's premises.
However,
the fact that the applicant may have been aware that its satellite church was
operating from the respondent's premises does not in my view translate to
knowledge that summons were served at the premises. There is no evidence that Mupanguri advised
the applicant of the service of the summons.
It appears that the respondent was in fact aware that the applicant
might not have received the summons because although it served the summons at
the respondent's premises, the notice of seizure and attachment was served at
the applicant's place of business at corner Bishop Gaul Avenue and Rekai
Tangwena. There was no explanation from
the respondent why service of the notice of attachment was not at the same
address where the summons was served. The fact that the applicant may not have been
aware of the summons may therefore be true.
It is therefore my view that although the applicant's officials at the
satellite church may have been aware of the summons and the set down of the
application for default judgment, the head office was in the dark.
Further, it is common cause that an
application for rescission of judgment had been filed earlier on 2 November
2009 in case No. HC 5351/09 purportedly on behalf of the applicant by
Mupanguri. The respondent opposed the
application. However, it is worthy to
note that there is no mention of that application in the pleadings filed by
both parties in case No. HC 318/10. This
is so despite the fact that Mupanguri purported to having been acting not only
in his personal capacity but also on behalf of the applicant. He deposed that he was aware that summons
had been served at the premises. An appearance
to defend was not entered because he had been assured by the respondent's
director that the summons were only issued to speed up negotiations between the
satellite church and the respondent on the clearance of arrear rentals. He was surprised to be advised on 26 October
2009 by the same director that the matter had been set down on the unopposed
roll of 28 October 2009.
It is my view that the respondent's
conduct in not referring to the application is a concession that Mupanguri did
not have the authority to institute the proceedings on be half of the applicant
in case No HC 5351/09. I assume that this
explains the respondent's consent to the order directing the applicant to file
an application for rescission by close of business on 11 February 2010. If my assumption is correct that the
satellite church proceeded to represent the applicant in litigation without
authority, then the applicant's explanation for the default is
reasonable and the applicant was therefore not in wilful default.
The
applicant raised two main issues regarding whether or not it has a bona fide defence to the claim and
therefore the application for rescission is not intended to harass the
respondent and delay the inevitable. It
firstly contended that it was wrongly cited in case No. HC 3672/09. It was cited as Christ
Embassy Church
instead of Christ Embassy, Zimbabwe. It stated that there is no such entity simply
referred to as Christ Embassy Church
in Zimbabwe. I am perplexed at the submission made by the
applicants in view of paragraph 3 of the order in case No HC 318/10. The applicant consented to the amendment of
its citation in that case to reflect its proper name. It is not clear on what basis it persists in
arguing that it was not properly cited when it consented to the amendment. It appears to me that the applicant was
accepting that it was one and the same as Christ Embassy
Church and that the
satellite church did not have a separate persona from the applicant. It is therefore my view that the defence does
not have any merit.
The second defence was that the
parties never agreed to a monthly rental of US$5 000 claimed and awarded to the
respondent. It was contended that the
applicant had offered to pay a rental of US$200 per month. The respondent argued that the rental was US$5
000 as reflected by a handwritten endorsement on a letter dated 8 August 2008
written to it by the applicant.
It
is apparent from the communication between the parties that the applicant was
labouring under the impression that the rental was US$2 000 per month (and not
the US$200 referred to in the applicant's heads of argument). In a letter dated 8 October 2008 written by Mupanguri, the applicant
offered a monthly rental of US$2 000. In
another letter dated 25 August 2009 by one Mathew Kanganwayi, the applicant
offered to settle the arrear rentals in the sum of US16 000 by way of two instalments
of US$8 000 each payable on 15 September 2009 and on 7 October 2009. Thereafter the applicant would pay a monthly
rental of US$2 000. The last paragraph
of the letter is further informative. It
reads:
“We would have
loved to accompany this letter with $2 000 (USD) as payment for this month's
rental, but we saw it wise to invest the $2 000 (USD) into the business
ventures stated above so as to be able to raise the required finances to settle
the arrears of $16 000 (USD) and create solid and stable sources of finances
towards the rentals of the building in subsequent months.”
The letter referred to two meetings
held between the representatives of the satellite church and the respondent's
legal representative, Mr Chidziva prior to the letter on 13 and 19 August 2009.
The letter commences with an offer to settle a total of US$16 000 arrears. The amount tallies with rentals for 8 months
starting from November 2008 when the respondent took occupation of the premises
up to August 2009 when the letter was written.
The meetings alluded to in the
letter dated 25 August 2009 were held well after that endorsement on the letter
of 8 October 2008. Both letters were
filed by the respondent. There is no
other letter from the respondent disputing the amounts reflected in the two
letters let alone denying the purported nature and discussions of the meetings
held between the parties on 12 and 19 August 2009.
The above communication was not
placed before the court in case No. HC 3672/09.
Of concern is the fact that the respondents were well aware of the
communication and the meetings held to resolve the impasse yet these were not
brought to the attention of the court.
The respondent relied in its application to a letter of demand dated 9
July 2009 stating that the rental was US$5 000 per month. The applicant did not bring to the attention
of the court that subsequent to the letter of demand, there were two meeting
held on 12 and 19 August and the letter dated 25 August 2009 which states a
different monthly rental of US$2 000. Mr Chidziva, should have, as an officer
of the court, brought the information to the attention of the court. It appears that he had been the respondent's
legal practitioner throughout the negotiations at the meetings held on 12 and
19 august 2009. I find Mr Chidziva's conduct to be injudicious under the circumstances and
borders on unethical conduct. I believe
that had the court been made aware by the respondent of the meetings and contents
of the letter, it may not have granted order.
The letter was only produced in the
present case to show that the applicant was not being truthful when it says
that the parties had agreed to a rental of US$200 per month. Unfortunately for the respondent, the letter is
a double edged sword. It also shows that
the parties had not agreed to a monthly rental of US$5 000. I shall not venture to hazard an explanation
as to why the respondent withheld from the court such vital information then
and only produced it in the present case.
It therefore appears to me that the
applicant has prospects of success in so far as the arrear rental due and the holding
over damages are concerned. I am therefore
of the view that it is equitable under the circumstances that rescission be
granted.
It would however be remiss of me if
I do not comment on the attempt by the applicant to mislead the court that the
rental was US$200 as opposed to US$2 000.
Mr Mazonde strenuously argued
that the rental was US$200. The
applicant being a church is supposed to be above reproach. Such misleading averments are therefore not
expected of it. I also found Mr Mazonde's conduct to be deplorable
given that he was advancing a position not supported by the pleadings and the evidence filed of
record. In fact he had difficulties in
justifying the contention that the rental was US$200 in view of the letters
referred to above that were written on behalf of applicant by officers at the
satellite church. I only disregarded the
averments as they were factual and had not been specifically pleaded either in
the founding affidavit or the answering affidavit. They only appeared in the applicant's heads
of argument.
In the result, it is
ordered that:
- The
judgment entered on 28 October 2009 in case No HC 3672/09 be and is hereby
rescinded.
- The
respondent shall pay the costs of this application.
Chibune
& Associates, applicant's legal practitioners
Kantor & Immerman, respondent's legal practitioners
