GARWE JA
[1] In a judgment handed down on 18 November
2015, the High Court of Zimbabwe ordered the appellant, and four other
defendants, to pay to the respondent, jointly and severally, the one paying the
others to be absolved, the sum of $427 829.39, together with interest thereon and
costs of suit. This appeal is against
that judgment.
FACTUAL BACKGROUND
[2] The appellant was, prior to 4 August
2007, the Bishop of the Harare Diocese of the respondent. He was the head of the Board of Trustees,
constituted in terms of the Constitution of the respondent. The Board was charged with the
responsibility, inter alia, of
managing the assets of the respondent.
[3] A dispute arose within the church over
the issue of homosexuality. The dispute
became so heated that the appellant and other trustees (“the trustees”)
purported to withdraw the Harare Diocese from the respondent. They then formed their own church, called the
Anglican Church of the Province of Zimbabwe, but continued to exercise control
over the assets of the Harare Diocese.
[4] The respondent immediately instituted proceedings
against the trustees, seeking an order for their removal as trustees of the
church and recovery of the church assets.
The matter was heard by the High Court which ruled in favour of the
trustees. Consequent thereto, they
remained as trustees of the Church and continued to exercise control over the
assets of the church. The respondent appealed
but, for procedural reasons, the appeal was struck off the roll. It was however reinstated by order of
CHIDYAUSIKU CJ on 4 August 2011. The
order, inter alia, provided that the
appeal would not have the effect of suspending the operation of the order
granted by the High Court in favour of the appellant and the other trustees.
[5] In August 2011, the appellant and the
other trustees liquidated a number of share certificates belonging to the
respondent. The value at the time of
disposal was $427, 892,39. The trustees
sold them for $270 000.00 and used the proceeds to fund the activities of their
new church.
[6] The long running dispute was eventually
resolved in November 2012 by this court in the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare SC 48/12. In that judgment this court made a number of
factual and legal findings. In summary,
this court found that, upon the appellant and other trustees constituting their
new church in January 2008, their continued possession and use of the assets of
the respondent was illegal.
[7] Consequent upon the above determination
made by this Court, the respondent, as plaintiff, instituted an action against
the trustees for the recovery of the sum of $591 818.95 representing the value
of the shares. The appellant and the other
trustees denied dealing in shares belonging to the respondent and prayed for
the dismissal of the claim. However on 9
November 2015, the parties' legal practitioners filed what they termed a joint
stated case. The case stated is as
follows:
“1. Prior
to the 4th of August 2007, the Bishop of Harare Diocese was the
Right Reverend Dr Norbert Kunonga. He
headed the Board of nine trustees, known as the Diocese Trustees of the Diocese
of Harare. The Trustees had the
responsibility of managing, administering, possessing and using the assets of
the Diocese of Harare. The defendants
are some of the Trustees who were duly appointed.
2. A
dispute arose between members of the Anglican Church in respect of the issue of
homosexuality which culminated in Bishop Kunonga and the other trustees
withdrawing the Diocese of Harare from the Church of the Province of Central
Africa. There was a schism in the church
arising out of that issue and subsequent withdrawal. One group was led by first defendant and the
other by Bishop Bakare and subsequently by Bishop Gandiya.
3. The
property of the Diocese of Harare remained under the control, possession,
administration and use of the defendants.
4. On
or around the 31st of August 2011, the defendants obtained from
Imara Asset Management various share certificates of shares which were owned by
Plaintiff. They sold the shares reflected
in paragraph 5 of Plaintiff's declaration.
5. The
defendants sold these shares so that they could run the business of their
faction of the church which fell under their leadership.
6. Meanwhile
the Church of the Province of Central Africa instituted proceedings against
defendants in HC 6544/07 and the defendants also instituted proceedings against
the Church of the Province of Central Africa under HC 4327/08. The learned Judge, HLATSHWAYO J (as he then
was) heard both matters and dismissed the claim of the church and granted that
of the defendants. This was on the 24th
of July 2009. The High Court held that 1st Defendant was the
rightful leader of the Anglican Church.
An appeal was noted against that judgment but was struck off the
roll. On the 4th of August
2011 the Chief Justice reinstated the appeal but in doing so held that the
noting of the appeal would not have the effect of suspending the judgment of HLATSHWAYO
J (as he then was).
7. In
December 2012 the Supreme Court resolved the “Anglican Saga”. It found that the defendants had seceded from
the Church of the Province of Central Africa and were not entitled to the
assets and were thus obliged to return the assets to the Church of the Province
of Central Africa. The secession was
held to have been with effect from the year 2007.
8. As
a consequence of the Supreme Court ruling the defendants returned the Church of
the Province of Central Africa's assets including the remainder of the shares
in their possession. Apparently certain
shares belonging to the Church of the Province of Central Africa had been sold
as indicated above. Plaintiff values the
shares sold:
i) As at 31st August 2011 at
USD 427 892.39
ii) The current market value at USD 453
709.10
iii) The defendant sold the shares for USD
270 000.
9. Defendants
now fellowship under a Christian organisation known as the Anglican Church of
Zimbabwe. In the Supreme Court matter
that resolved the Anglican saga, this position was adopted by them.
ISSUES
FOR DETERMINATION
10. Whether
the defendants can be held liable for disposing the shares in question.
11. If
they are liable, what the quantum of such liability is.”
PROCEEDINGS IN THE COURT
A QUO
[8] At the hearing of the matter before the
High Court, the second, third, fourth and fifth defendants, who were the
appellant's co-trustees, did not appear.
However the notice of set down had been served on Venturas and Samkange, the law firm that had been representing all
the trustees. Thereafter Messrs Venturas and Samkange renounced agency on
behalf of the four trustees and, at the commencement of the hearing before the
court a quo, stated that the
appellant had always been the person in charge and that the trial could proceed
in the absence of the other trustees.
[9] In its judgment, the High Court found
that from the time that the appellant and “his followers” resolved to secede
from the respondent church and formed a new Ministry called the Church of the
Province of Harare, they ceased to have any right over the property of the
respondent which they had previously controlled or held in trust. The court found further that although the
High Court had granted an order declaring the appellant and his co-trustees as
the rightful Diocesan Trustees of the Diocese of Harare and allowing them to
continue to exercise control over the respondent assets, and although the
Supreme Court had further ordered that the appeal noted by the respondent would
not have the effect of suspending the order appealed against, the orders did not
allow the appellant and his colleagues to dissipate the property for the
benefit of their new church. The two
judgments granted in favour of the appellant were at all times interim since
the order of the High Court was immediately taken on appeal. On the question of the quantum, the court reached the conclusion that, in general,
delictual damages should be measured as at the date of the delict, because that
is when the owner's patrimony is reduced, unlike in a vindicatory action where
the value is determined as at the date of judgment. The court then made the order, the subject of
this appeal.
GROUNDS OF APPEAL
[10] The appellant has filed a total of sixteen
grounds of appeal. I quote these
verbatim.
“1. The
learned judge erred in dismissing the Appellant's version in its totality.
2. The
Appellant, together with the other trustees, purchased the shares and later
invested them. The Appellant never lost
control of the shares and other assets, both movable and immovable.
3. The
court erred in failing to appreciate that the issue which was determined by the
Supreme Court was between the Diocesan Trustees for the Diocese of Harare
against The Church of the Province of Central Africa and that it was not
between the Appellant and the Church of the Province of Central Africa.
4. The
court erred in stating that the Appellant had no right to use the assets. Honourable HLATSHWAYO's order specifically
allowed them to use and dispose of the assets.
Alienation of the assets was on the strength of a court order.
5. The
court erred in failing to appreciate that whilst the judgment by Honourable
Justice HLATSHWAYO was extant the Appellant did not dispose of the
property. The Appellant only disposed of
the property after Chief Justice CHIDYAUSIKU's judgment which allowed them to
use the assets.
6. The
court a quo erred in holding that the
Appellant had established and founded a church of his own.
7. The
court a quo erred in interpreting
that the two (2) judgments of Honourable Justice HLATSHWAYO and Honourable
Justice CHIDYAUSIKU did not give the Appellant the right to use the property.
8. The
court a quo also failed to appreciate
that the Appellant used the same premises during the dispute, and met all
expenses incurred in doing so.
9. The
shares were sold in order to maintain and preserve the rest of the other
properties. The court erred in not
appreciating that the alienation of the shares was in the interest of the
Respondent at the material time.
10. The
court erred in concluding that shares were sold because the Appellant must have
realised that there is a likelihood of him losing the appeal and that he was
trying to make “hay whilst the sun shines”.
There is no evidence to support this conclusion. It is totally unfounded and unjustified.
11. The
court did not take into account the joint stated case to the effect that the
Diocese of Harare remained in possession of the Diocese of Harare Trustees
which included the Appellant as the Bishop.
12. The
court failed to appreciate that the Appellant did not act in his personal
capacity but as head of the Diocesan Trustees of the Diocese of Harare. To find the Appellant liable personally is
unjustified in the circumstances.
13. The
court erred in failing to give any meaningful justification why it dismissed
the value of shares at the time they were sold which is US$270 000.00. The US$270 000.00 is the actual value and
market value at the time of sale of the shares.
14. The
Respondent was not an administrator of the shares as it was not involved in the
purchase of the shares. There is
absolutely no evidence that the shares could have been sold for more than
US$270 000.00. The Respondent did not
bring any evidence to prove that the shares could have been sold for more than
US$270 000.00.
15. The
court failed to appreciate that the shares were sold through the stock exchange
market and where therefore sold in public.
No members of the public offered to buy the shares at a higher
price. The suggestion that they were
sold at a giveaway price is unjustified in the circumstances.
16. The
court a quo erred in concluding that
there was an agreement to the market value of the shares.” (sic)
APPELLANT'S SUBMISSIONS
ON APPEAL
[11] Before this court, the appellant has made the
following submissions: -
- That
the appellant did not use the proceeds from the sale of the shares for his own
personal interest, but rather to run the business of the respondent's church
which fell under the control of the appellant at the time.
- That
the remarks by the Supreme Court that the appellant and his co-trustees had no
right to continue to use the assets once they formed their own church are not
applicable in view of the agreed position in the stated case that the proceeds
from the shares were not applied in furtherance of the interests of the new church
but had been applied for the benefit of the respondent.
- That
the finding by the court a quo that
the appellant had the right to use the property fully and finally disposes of
the appeal as property such as shares cannot be used without dissipating them.
- That,
on the issue of quantum, there was no
agreed value of the shares. The court a quo was therefore wrong in taking the
value ascribed to the shares by the respondent.
There was no evidence before the court that the sum of $270 000.00 for
which the shares were sold, was not the open market value of the shares at the
time they were sold.
RESPONDENT'S SUBMISSIONS
ON APPEAL
[12] In its heads of argument, the respondent
church makes the following submissions: -
- The
matter before the court was a stated case.
In his heads of argument, appellant makes submissions which do not
derive from the common cause facts and in some instances tries to put in issue
the agreed position.
- There
are sixteen grounds of appeal attacking an eight-page judgment. Most are vague and lack meaning. Some of the heads are not even based on those
grounds. Even findings made by the
Supreme Court are put in issue e.g. whether the appellant founded his own
church. Consequently, there is no proper
appeal before this court.
- The
appellant seeks to appeal against the whole judgment when it is clear that the
judgment was made against four other parties who were in default.
- That
what the appellant refers to as a faction of the church in paragraph 5 of the
stated case was found by the Supreme Court to have been a new church, created
upon the occurrence of the schism. The
court a quo was called to pronounce
upon the legal implications of that outfit and was bound by that decision.
- That
the court a quo was correct in
finding that while the appellant and other trustees had the right of use of the
assets in terms of the judgment of the High Court, they could not lawfully
alienate the property until the dispute had been finalised on appeal.
- On
the question of quantum, three possible
amounts were put forward for consideration by the court. How those sums were arrived at was not in issue. The court a
quo was being asked to identify the appropriate sum to be awarded in the
light of our laws of delict.
ISSUES FOR DETERMINATION
[13] It is clear from the above that a number
of issues arise for determination by this court. In the order in which they stand to be
determined, the issues may conveniently be stated as follows:
(a) What
is a stated case or a case stated. Can a
party to such stated case go outside the facts agreed?
(b) The
grounds of appeal. Are they valid?
(c) Is
the notice of appeal, which seeks to impugn the whole judgment, valid.
(d) The
effect of the Supreme Court judgment on the stated case.
(e) Whether
the appellant was entitled to dispose of the shares belonging to the Respondent
once he and his colleagues moved out of the church.
(f) The
effect of the determination by the High Court and Supreme Court allowing the
appellant and other trustees, to remain in custody of the church assets.
I
deal with each of the issues in turn.
WHAT IS A STATED CASE
[14] The rules of court of most countries make
provision for the reference of a matter as a stated case. But what is a stated case? It is a case that is brought upon the
agreement of the parties who submit a statement of undisputed facts to the
court but who take adversarial positions as to the legal ramifications of the
facts, thereby requiring a judge to decide the question of law presented (Legal dictionary. The free dictionary.com). Put another way, it is a formal written
statement of the facts in a case, which is submitted to the court by the
parties, jointly, so that a decision may be rendered without trial. The facts being thus ascertained, it is left
for the court to decide the question of law presented. A stated case is also called a special case, an
amicable action, a case agreed or a friendly suit (US Legal, Inc.)
[15] In the case of Elizabeth Mambus v Motor Vehicle Accident Fund Case No. SA 4/2013,
a majority decision of the Supreme Court of Namibia, handed down on 11 February
2015, the court noted:
“…
the intention is that the stated case will adjudicate the whole of the dispute
as stated in the case that exists between the parties and that this is ideally
done by setting out the facts agreed to, the questions of law in dispute and
the contentions of the parties. The
parties may also require a court to decide an issue of law on the basis of
alleged facts, as if agreed.”
[16] The court further cited with approval
remarks made by the Irish Supreme Court in Simon
McGinley v The Deciding Officer – Criminal Assets Bureau [2001] IESC 49
that:
“The
case should set out clearly the judge's findings of fact, and should also set
out any inferences or conclusions of fact which he drew from those findings.
What
is required in the case stated is a finding by the Judge of the facts, and not
a recital of the evidence. Except for
the purpose of elucidating the findings of fact, it will rarely be necessary to
set out any evidence in the case stated save in the one type of case where the
question of law intended to be submitted is whether there was evidence before
the Judge which would justify him deciding as he did. … This court should not
be required to go outside the case to some other document in order to discover
them.
The
same principle applies to the contention of the parties, the inferences to be
drawn from the primary facts, and the Tribunal's determination. All these must be found within the case, not
in documents annexed …”
[17] Once the facts are agreed, the court should
proceed to determine the particular question of law that arises and not delve
into the correctness or otherwise of the facts.
It is bound to take those facts as correctly representing the agreed
position and to thereafter determine any issues of law that may arise
therefrom. It is not open to the parties
to the stated case to seek to re-open the agreed factual position or to
contradict such position. Nor can either
party seek to ignore existing legal principle or findings of fact made in
connection with the same matter by another court. Of course either party has a remedy at common
law, to withdraw any concession made in a stated case owing to justus error, fraud, mistake, or any other valid ground.
[18] It has become necessary to restate what a
stated case is owing to the fact that in some instances, the appellant in this
case has made submissions contrary to the stated case brought before the
court. The appellant has also ignored in
part the decision of this court on which the stated case is predicated. It bears stating that if this happens, a
party will be kept strictly to the terms of the agreed facts, as it is on the
basis of those facts that the court would have been invited to make a
determination on some specific question of law.
I
now turn to deal with the next issue requiring determination, namely, the
meaning of “clear and concise” within the context of r 29 of the Rules of this
court.
GROUNDS MUST BE CLEAR AND
CONCISE
[19] Rule 32 of the Rules of this court
provides that the grounds of appeal contained in a notice of appeal must be
clear and concise. Many decisions of
this court and the courts in South Africa have, over a long period of time,
explained what is meant by the term, but this notwithstanding, many lawyers,
including very senior ones, continue to experience considerable difficulty in
properly formulating grounds of appeal that comply with the Rule. I think it is necessary to trace the various
decisions of the courts on this aspect over the years, both in South Africa and
this country.
[20] In Hendricks
v Wilcox 1962 (1) CPD 304, the appellant had filed a notice of appeal
reading as follows: -
“Be
pleased to take notice that an appeal is hereby noted against the judgment of
absolution from the instance granted by the above honourable court to the defendant
… for the reason that the judgment was against the weight of the evidence …”
The
court ordered that the appeal be struck off the roll for failure to comply with
the Rules. In striking out the appeal,
the court noted: -
“…
it is clear that a notice of appeal which sets out as a ground of appeal merely
that the judgment is against the weight of the evidence is, generally speaking,
bad …. The magistrate made a number of
findings of fact on the evidence and then made a further finding that neither
party had been negligent. It is
impossible to deduce from the notice of appeal which of these findings is being
challenged.
…
I have come to the conclusion that the notice of appeal is bad. There is abundant authority to the effect
that such a notice cannot be amended …”
[21] In S
v McNab 1986 (2) ZLR 280 (SC), the only ground of appeal before this court
was that:
“The
learned Trial Magistrate erred in fact and in law in holding that the State had
proved the appellant was so drunk as to be incapable of having proper control
of his motor vehicle.”
This
court held that the above ground did not comply with the Rules of court and more
specifically that the notice of appeal did not set out clearly and specifically
the grounds of appeal. The court
remarked at page 282 F-G:-
“…
there must be stated in the Notice of Appeal “a precise statement of the points
on which the appellant relies.” A
statement that the magistrate “erred in fact and in law in holding that the
State had proved appellant was so drunk to be incapable of having proper
control of his motor vehicle” is not precise enough … it does not tell the
respondent or the magistrate what it is that is being attacked. The respondent is required to prepare his
answer to the allegations made in the Notice of Appeal …”
[22] In State
v Jack 1990 (2) ZLR 166 (SC), the single ground of appeal on each of the
two counts in respect of which the appellant had been convicted read:
“The
Magistrate erred in finding the accused guilty despite the fact that the charge
was not substantiated.”
The
Supreme Court concluded that the above ground was not valid. The court, per McNALLY JA, remarked at page
167 D-G:-
“This
amounts to saying he was not guilty because he was not guilty. It is meaningless. A magistrate who receives such a notice of
appeal cannot know what to say in response to it … It is necessary to draw legal practitioners'
attention again to the provisions of this Rule and to the judgment of BEADLE J
(as he then was), in R v Emerson &
Ors 1957 R & N 743; 1958(1) SA 442 (SR) …
It
seems to be widely believed that when a client who has been convicted and
sentenced belatedly instructs a legal practitioner, all that is necessary is
that a notice of appeal he lodged setting out the most cursory and meaningless
grounds with (sometimes) the promise that proper grounds will be substituted
when the record is available. This is
not so. A notice of appeal without
meaningful grounds is not a notice of appeal.
Since it is a nullity, it cannot later be amended.”
[23] In S
v Ncube 1990 (2) ZLR 303 (SC), the only ground of appeal against conviction
read as follows: -
“The
learned magistrate erred in accepting the complainant's evidence.”
That
ground was held to be unacceptable.
McNally ACJ (as he then was) had the following to say at 303 G and 304
C-D:-
“It
is not usual to write a judgment in respect of a matter which has been struck
from the roll. This judgment is written
for the guidance of practitioners and to serve as a warning to those who have
not pondered the lesson of R v Emerson
1957 R & N 743(SR) …
…
I need only quote one passage from R v
Emerson, supra, at 748 D-E to
show that such a ground is unacceptable.
BEADLE J with the concurrence of the full Bench of the High Court of
Southern Rhodesia, said this
“I
do not consider that such general grounds of appeal as “the conviction is
against the weight of the evidence” or “the evidence does not support the
conviction” or “the conviction is wrong in law” are a compliance with the rule. It follows that where the only ground of appeal given in the notice of appeal is a
vague one of this description the notice of appeal must be considered to be
bad. The effect would thus be the
same as if no notice of appeal had been given at all …”” (emphasis my own).
[24] In Songono
v Minister of Law and Order 1996(4) SA 384 (Eastern Cape Division) the
learned judge (Leach J) commenting on the requirement that grounds of appeal
must be clearly and succinctly set out in clear and ambiguous terms to enable
the court and the respondent to be fully and properly informed of the case
which the appellant seeks to make out and which the respondent is to meet,
stated at p 385 G-H that: -
“…
it has been held that grounds of appeal are bad if they are so widely expressed
that it leaves the appellant free to canvass every finding of fact and every
ruling of the law made by the court a quo,
or if they specify the findings of fact or rulings of law appealed against so
vaguely as to be of no value either to the Court or to the respondent, or if
they, in general, fail to specify clearly and in unambiguous terms exactly what
case the respondent must be prepared to meet …”
and
further at 386 A-B that: -
“…
the lengthy and rambling notice of appeal filed in casu falls woefully short of what was required. Mr Bursey
suggested that grounds of appeal could be gleaned from the notice but that is
not the point – the point is that the
notice must clearly set out the grounds and it is not for the Court to have to
analyse a lengthy document in an attempt to establish what grounds the
applicant intended to rely upon but did not clearly set out. …” (emphasis
my own)
[25] In Arnold
Cephas Kwanai v The State, SC 12/97, the only ground of appeal against
conviction read as follows: -
“The
learned Magistrate erred in convicting the accused person in the absence of any
concrete evidence showing beyond a reasonable doubt …, that he committed the
offence.”
This
court turned down a request to amend the notice of appeal on the ground that it
was a nullity. It was a nullity because
it did not set out “clearly and specifically the grounds of appeal.”
[26] In Van de Walt v Abreu 1994(4) SA 85 (W) Stegmann
J made an exhaustive review of case law relating to notices of appeal from the
Magistrates Court in South Africa. That
case is authority for the proposition, based on the Magistrates Court Rules of
South Africa, that there are two distinct requirements, both of which have to
be satisfied, for a proper notice of appeal disclosing a valid ground of
appeal. Firstly, the notice must specify
details of what is appealed against (i.e. the particular findings of fact and
rulings of law that are to be criticized on appeal as being wrong) and
secondly, the grounds of appeal (i.e. it must indicate why each finding of fact
or ruling of law that is to be criticised as wrong is said to be wrong. For example, because the finding of fact
appealed against is inconsistent with some documentary evidence that shows to
the contrary; or because it is inconsistent with the oral evidence of one or
more witnesses; or because it is against the probabilities.
[27] In Fraderick
Chimaiwache v The State SC 18/2013, GOWORA JA, made the following pertinent
remarks at page 7 of the cyclostyled judgment: -
“It
seems that the rider contained in those authorities is still not being heeded
by those who practice law in this jurisdiction.
A notice of appeal must contain grounds that are clear and
specific. If a ground of appeal is
general, then it cannot be a valid ground of appeal …”
[28] In Econet
Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd (2) Trusto Group
International (Proprietary) Ltd), SC 43, I had occasion to cite, with
approval, the remarks of Korsah JA in The
Master of the High Court v Lilian Grace Turner SC 77/93 that:
“…
by concise is meant brief, but comprehensive in expression …”
[29] In John
Chikura N.O. & Anor v Al Shams Global BVI Limited, SC 17/2017, the
notice of appeal filed with this court spanned eleven pages. Of those pages, six comprised eighteen
grounds of appeal. The judgment appealed
against consisted of eleven pages. In
holding that the grounds of appeal were unnecessarily long, incoherent and
prolix, this court, after quoting the remarks of Leach J in Songono v Minister of Law and Order (supra), struck the matter of the roll,
remarking at pages 3-4 of the cyclostyled judgment:
“It
is not for the court to sift through numerous grounds of appeal in search of a
possible valid ground; or to page through several pages of “grounds of appeal”
in order to determine the real issues for determination by the court. The real issues for determination should be
immediately ascertainable on perusal of the grounds of appeal …. The grounds of
appeal are multiple, attack every line of reasoning of the learned judge and do
not clearly and concisely define the issues which are to be determined by this
court …”
[30] I have quoted the above remarks made by
eminent judges both in this jurisdiction and South Africa in order to stress,
once again, the need for legal practitioners to pay due regard to the
requirement that grounds of appeal must be clear and concise and what the term
“clear and concise” signifies. Sadly, as
the facts of this case, and many others, show, most legal practitioners still
do not know how to properly formulate grounds of appeal that comply with the
Rules of this court. I now turn to the
grounds of appeal noted in the present case.
THE GROUNDS OF APPEAL
[31] There can be little doubt that, in
general, the grounds of appeal noted in this case, are vague in nature and
cannot be said to be clear and concise.
In some instances, the grounds purport to go outside the stated case and
in other instances attempt to impugn the final decision made by this court in
terms of which the appellant was ordered to return all the church assets to the
respondent.
[32] A short examination of each of the grounds
is called for. Ground 1 is couched “The
learned judge erred in dismissing the appellant's version in its
totality.” This is obviously
meaningless. Neither this court, nor the
respondent, would have any idea what it is that the appellant is
attacking. Ground 2 is also
meaningless. It states: - “The
appellant, together with the other trustees, purchased the shares and later
invested them. The appellant never lost
control of the shares and other, assets, both movable and immovable”. This ground is more of a statement of fact
and its meaning is anybody's guess. It
begs the question: so what? The third
ground is equally vague. One does not
know what point the appellant seeks to make.
That ground reads:
“The
court erred in failing to appreciate that the issue which was determined by the
Supreme Court was between the Diocesan Trustees for the Diocese of Harare
against the Church of the Province of Central Africa and that it was not
between the appellant and the Church of the Province of Central Africa.”
Grounds 4, 5, 7, 8 and 9 & 11 all
raise the same issue, namely that, pursuant to the order by HLATSHWAYO J and
CHIDYAUSIKU CJ, the appellant had the right to use the church assets and that
in doing so, he sold some of the assets in order to maintain and preserve the
remaining assets. Ground 10 is vague,
especially when one has regard to the remarks by the court a quo at page 8 of the cyclostyled judgment that: -
“the
timing of the sale of the shares after August 2011 may point to a design to
make something out of the property of the plaintiff before the definitive
Supreme Court determination of the dispute, that is the furthest I am prepared
to go. I am not persuaded that it is
enough to attract the application of the value at the time of judgment.”
Grounds
13, 14 and 15 all deal with the same aspect, namely that the court a quo was wrong in failing to find that
the value of the shares was US$270 000.00 i.e. the price at which they were
sold. Ground 16 seeks to attack the
interpretation of paragraph 8 of the Stated Case, and in particular, whether
the parties were agreed on the three values itemised therein.
[33] Having found that some of the grounds are
lacking in precision, it becomes necessary to determine the fate of the other
grounds that sufficiently identify the basis upon which the judgment of the
court a quo is impugned. The approach adopted by this court in S v Ncube (supra) and other cases is that where a court is faced by some
grounds of appeal that are not clear and concise and by others that are, the
court should proceed to determine the appeal on the basis of the valid grounds
of appeal. In that case this court cited
with approval remarks in R v Emerson
(supra) that where the only ground in the notice of appeal is vague, then
the appeal is a nullity.
[34] The case of Songono v Minister of Law & order (supra), cited with approval
by this court in the recent decision in John
Chikura N.O. & Anor v Al Shams Global BVI Limited (supra), is authority
for the proposition that grounds of appeal that are prolix do not comply with
the Rules of this court. The word prolix
derives from the Latin word “prolixus”, which means extended or copious. A speech or writing is said to be prolix if
it contains too many words or is tideously lengthy. It connotes unreasonable and tideous dwelling
on detail. It also means long winded, verbose, rambling. It follows from this definition that grounds
of appeal that are prolix cannot be clear or concise and are therefore a
nullity. I agree with the remarks in the
John Chikura case (supra) that where grounds of appeal are
prolix, it is not for this court to sift through numerous words in search of a
possible valid ground.
[35] In my view however, where, in the same
notice of appeal, there are grounds that are prolix and there are others that
are clear and concise, then such appeal cannot be said to be fatally defective
in its entirety. In these circumstances,
the appeal would fall to be determined on the grounds that are found to comply
with the Rules. Consequently grounds 1,
2, 3, 4, 5, 10, 14, 15 and 16 must be struck out.
THE NOTICE OF APPEAL
SEEKS TO IMPUGN THE WHOLE JUDGMENT
[36] In his prayer, the appellant seeks an
order, inter alia, that the judgment
of the court a quo be set aside and
in its place, an order made dismissing with costs the plaintiff's claim.
[37] The respondent has taken the point that
the prayer cannot be correct as the appellant was only one of five persons
against whom judgment was entered in the court a quo. The judgment entered against the other four defendants was a
default judgment, all of them having failed to attend the trial proceedings.
[38] I agree with the respondent that the
appellant cannot competently appeal against the whole judgment as he purported
to do. He could only appeal against that
part of the judgment that affected him.
[39] The question however arises. Does the intimation that the appeal is against
the whole judgment when in fact it is only against part of the judgment
invalidate the appeal? My view is that,
in the particular circumstances of this case, it does not. The clear intention by the appellant appears
to have been that, once it is found on the merits that he is not liable, by
extension, his co-trustees would, ipso
facto, also not be liable. In my
view the notice and grounds of appeal call upon this court to determine whether
or not the trustees, inclusive of the appellant, were liable in their official
capacity. The fact that the appellant,
in his prayer, did not confine the relief he was seeking to himself only, does
not breach Rule 29 of the Rules of this court.
EFFECT OF THE SUPREME
COURT DECISION ON THE STATED CASE
[40] The judgment of this court that resolved
the dispute within the Anglican Church was the Church of the Province of Central Africa v Diocesan Trustees, Harare
Province SC 48/12, now reported in 2012 (2) ZLR 392 (S). In that judgment, this court made a number of
factual findings. Amongst others, it
made the following findings: -
- the
appellant and the other trustees formed a new Church in January 2008 in which
the appellant was consecrated and enthroned as the Archbishop.
- that
they continued to use the assets of the respondent without the approval of the
Provincial Synod.
- that
they used the assets in furtherance of the interest of their new church.
- In
short, that they had no right, once they seceded from the church in 2007, to
continue to hold onto the church assets or to use them for any reason
whatsoever.
[41] The respondent has submitted that the High
Court was bound by these findings. I
agree. By command of the law, the
decisions of this court are final and binding on all other subordinate
courts. Commercial Farmers' Union v Mhuriro & Ors 2002 (2) ZLR 405
(SC).
[42] It is therefore not permissible for the
appellant to argue, as he has done, that the assets were used to maintain and
preserve the assets of the respondent.
Nor can the appellant and respondent, in a stated case, agree that “the
defendants sold these shares so that they could run the business of their
faction of the church which fell under their leadership.” This court did not find that there were
factions. It found that the appellant
and his co-trustees formed a new church.
THE EFFECT OF THE
DECISIONS OF THE HIGH COURT AND THE SUPREME COURT
[43] The two orders made by HLATSHWAYO J (as he
then was) and CHIDYAUSIKU CJ, allowed the appellant and his co-trustees the
right to retain custody of the church assets pending determination of the
dispute in this court. I agree that
these orders were interim, in the sense that they did not permit the appellant
and his co-trustees to dissipate church property. In any event, when the Supreme Court made the
findings to which reference has been made, it was aware that these two orders
had been made. That notwithstanding,
this court ruled that once they moved out of the respondent church in 2007,
they should have left all the property in the custody of the respondent. At the end of the day therefore, these two
orders had no significance on the final assessment made by this court.
WHETHER THE APPELLANT'S
SUBMISSIONS ON APPEAL HAVE MERIT
[44] The appellant, in attacking the judgment
of the court a quo, has made several
submissions. Firstly, the shares in
question were sold in order to run the affairs of the respondent church and
therefore he cannot be held personally liable. Secondly, the two parties to the
stated case had agreed that the proceeds from the sale of shares had been
applied to further the interests of the respondent church. Thirdly, the
acknowledgment by the court a quo
that the appellant had the right to use the property, fully and finally
disposed of the appeal. Lastly, there was no agreed value of the shares.
[45] I deal firstly with the submission that
the shares were sold in order to run the affairs of the respondent's
church. Clearly that submission has no
merit. In a well-considered judgment,
this court, as the final court of appeal, found that the assets had been used,
not for the benefit of the respondent church but rather in furtherance of the
interests of the new church that the appellant and his colleagues had
formed. In the light of that clear and
unambiguous finding, it is disingenuous and even dishonest, on the part of the
appellant, to make the above submission.
The two parties to the stated case agreed that the appellant and his
co-trustees had sold these shares so that “they could run the business of their
faction of the church which fell under their leadership.” Whilst there may well be a dispute on what
this paragraph means, quite clearly the parties could not, in a stated case,
make a factual statement contradicting the finding already made by this court
on the same issue. One has to interpret
that paragraph in the light of the finding made by this court that the shares
were used to advance the interests of the new church that they had formed.
[46] It is submitted by the appellant that the
court a quo acknowledged that the
appellant had the right to use the property in terms of the two judgments of
HLATSHWAYO J and CHIDYAUSIKU CJ and that such acknowledgment fully and finally
disposes of the appeal.
[47] I do not agree with this submission. The Supreme Court was aware of these two
orders when it made the ultimate finding that the appellant and his co-trustees
had no right to continue to possess the church assets and to dispose of them
once they had moved out of the respondent church. The submission, in my view, is intended to
circumvent the decision of this court.
That is not proper and cannot be done.
The submission must therefore fail.
[48] On the submission that there was no
agreement on the value of the shares, I hold the view that this too must fail. The stated case gives three valuations of the
shares. These are (a) plaintiff's
valuation as at the time of their disposal, (b) market value as at the time of
the trial and (c) the price at which they were sold/purchased on the open
market.
[49] Given these three valuations, the court
was entitled to take these as the accepted values. Why else would one put these valuations in a
stated case unless the amounts are not in dispute? How the computations were arrived at, was not
at issue. The court a quo assumed and, I agree, correctly so, that it was being asked
to determine, on the basis of legal principle, which of the three valuations
was applicable. The court a quo determined that, consistent with
general principle in our law of delicit, it would award the value of the shares
as at the time of the delict. I find
nothing untoward about that.
THAT RESPONDENT HAD NO
CAUSE OF ACTION IN DELICT
[50] The submission was made by the appellant
that the plaintiff's cause of action, based as it was on the Aquilian Action,
had not been proved. In particular, it
was suggested that the essential elements for delictual liability were absent
from the stated case.
[51] I do not agree with this submission, which
clearly ignores what a stated case is.
Whether the facts as agreed disclosed a cause of action was not an
issue. Only two issues were referred for
determination. These were whether the
appellant and his co-trustees were liable to pay for the shares and, if they
were, what the quantum thereof
was. It is unfair and improper, in my
view, for the appellant to complain that the cause of action was not proved,
when the attention of the court a quo
was not directed to the need to determine that aspect. In any event, the entirety of the facts
disclose wrongful conduct on the part of the trustees, which conduct resulted
in financial loss, such loss having been caused by the deliberate sale of the
share certificates.
DISPOSITION
[52] I am satisfied that no proper basis has
been given to impugn the judgment of the court a quo. The appeal must
therefore fail.
[53] It is accordingly ordered as follows: -
“The appeal be and is hereby
dismissed with costs.”
ZIYAMBI JA: I
agree
BHUNU JA: I
agree
Venturas & Samkange,
appellant's legal practitioners
Gill, Godlonton & Gerrans, respondent's legal
practitioners
