Alphonsus Abioma Achinulo v W. Maphios Moyo N.O. and The State

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HB 127/19
HC 1722/12
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ALPHONSUS ABIOMA ACHINULO

Versus

W. MAPHIOS MOYO N.O.

And

THE STATE

IN THE HIGH COURT OF ZIMBABWE

BERE J

BULAWAYO 17 FEBRUARY 2017 & 22 AUGUST 2019

Application for review

S. Mguni for the applicant

T. Muduma for the 2nd respondent

BERE J:	On 17 February 2017, with the consent of the parties who appeared before me I gave an order by consent of both parties which set aside the decision of the court a quo sitting at Gwanda, wherein the learned magistrate had declined to discharge the applicant at the close of the state case.

There has been a flurry of correspondence demanding my reasons for my order.  Here are the reasons.

The background

This is an application for review against the decision of the Provincial Magistrate sitting at Gwanda wherein he declined to grant an order for the discharge of the applicant after the close of the state case in a case in which the applicant was charged with the offence of theft as defined in section 113 (2) of the Criminal Law (Codification and Reform) Act Chapter 9:23)

The elaborate facts of this case which are largely not in dispute are that on 20 October 2010 two corporate entities, viz, Efund Trading Company (Pvt) Ltd represented by the applicant as its director and N & S Properties (Pvt) Ltd represented by one Nicholas Masuku as its director and now the complainant in the criminal proceedings leading to this application entered into a deed of partnership to undertake land development contracts with councils, among others, Umzingwane Rural District Council.  The partnership was named Efund and N and S Partnership.

The parties to the partnership agreed that in the event of any dispute arising in the partnership agreement such dispute be resolved in the High Court of Zimbabwe.

As fate would have it sometime in May 2012 irreconcilable differences emerged in the partnership which culminated in the now applicant representing his company Efund Trading Company (Pvt) Ltd filing an urgent chamber application in the High Court seeking interim relief against N and S Properties (Pvt) Ltd.  The interim relief sought inter alia to interdict the latte rpartner from selling the partnership assets without the written consent of the applicant company.

After considering the urgent chamber application my brother KAMOCHA J under HC 1722/12 granted the desired interim relief.

Beyond the interim relief the applicant had sought final relief in the form of the dissolution of the partnership agreement, a position which was vehemently opposed by the complainant, Nicholas Masuku in anticipation of the confirmation proceedings for the interim relief granted by KAMOCHA J.

When case number HC 1722/12 was awaiting either confirmation or discharge of the provisional order granted by KAMOCHA J, Nicholas Masuku representing N and S Properties (Pvt) Ltd one of the partners in Efund and N and S Partners raised criminal allegations against the applicant.

Subsequent to the civil proceedings under HC 1722/12 and the criminal complaint raised by Nicholas Masuku, the legal practitioners of Efund Trading Company (Pvt) ltd, N and S Properties (Pvt) Ltd and Umzingwan Rural District Council negotiated a settlement which took into account the issues raised in case number HC 1722/12.  The negotiations culminated in an agreement by the three parties on 26 September 2012.

The parties ran into problems with their interpretation of the tripartite agreement as a result of which Nicholas Masuku raised criminal allegations against the applicant.  The state allegations were that the applicant had received money from Umzingwane Rural District Council after the sale of 43 stands that belonged to the partnership of Efund Trading and N and S Properties and converted part of the money to his own use.

The allegation went further to suggest that the money allegedly stolen was exclusively meant to buy water reticulation pipes for the partnership.

In responding to the allegations, the applicant denied the alleged theft of proceeds from the sale of the 43 stands and urged that the proceeds had been used towards the advancement of the interest of the partnership agreement and that there was no provision in the agreement that the proceeds of the sale of the 43 stands would be solely used for the purchase of water and reticulation pipes.  From the papers filed of record, it is clear that the complainant’s company which was in partnership with the applicant company had serious problems with their partnership agreement.  The subsequent creation of the second tripartite agreement which now included the two feuding partners and Umzingwane Rural District Council added to further confusion in the partnership arrangement.  Their dispute centered on the partnership agreement as well the interpretation of the subsequent tripartite agreement.

A reading of both the partnership agreement and the subsequent tripartite agreement clearly shows that none of the agreements spoke to the proceeds from the sale of the 43 stands as being solely used to purchase water and reticulation pipes, a finding which the provincial magistrate triumphantly found in his ruling against an application for discharge at the close of the state close.

It was that finding which aggrieved the applicant and prompted him to file this application for review of the proceedings alleging gross irregularity in terms of section 27 (1) (c) of the High Court Act [Chapter 7:06].

The grounds for review in summation were that the court a quo erred in failing to appreciate that what was brought before it was a resolution of a civil dispute under the guise of criminal prosecution.

The court a quo was also attacked for committing an error of law amounting to gross irregularity in concluding that the evidence tendered by the state at the time of close of its case was such that a reasonable court acting carefully might convict the applicant on each of the 14 counts for which he was charged.

When served with the application for review the 2nd respondent initially filed a one paragraph notice of opposition on 14 October 2016.  This was then followed by yet another document filed on 20 October 2016 headed “2nd Respondent’s response to application for review”, on which was inscribed the following:

“Be pleased to take notice that the 2nd respondent is not opposed to the above application.”  On both occasions the 2nd respondent was represented by T. Muduma.

When the state counsel appeared before me on 27 February 2017 together with the applicant’s counsel he reiterated that he was consenting to the granting of the order which I proceeded to do although I realise as I write this judgment that the original order I granted is slightly distorted.  The actual order which I granted had 1.2 completely deleted, and had no reference to a Mr Nkomo representing the first respondent.

What exercised my mind when I looked at the papers as filed and as subsequently briefly agreed upon by the parties was a realization that, in dealing with this matter, the learned magistrate had failed to appreciate the civil nature of the dispute between the parties.  My view, backed by precedent is that such civil matters must be confined to the altar of the civil court and not the criminal court.  In coming to this conclusion I was guided by the position taken by this