Matabeleland Hauliers (Private) Limited v Joshua Reuvayn Lephar & Anor & Sheriff of Zimbabwe N.O.

### Preamble
1
HB 5/24
HC 735/22
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MATABELELAND HAULIERS (PRIVATE) LIMITED

Versus

JOSHUA REUVAYN LEPAR

And

ARENEL QUALITY SWEETS (PRIVATE) LIMITED

And

SHERIFF OF ZIMBABWE N.O.

IN THE HIGH COURT OF ZIMBABWE

MANGOTA J

BULAWAYO 25 OCTOBER 2023 AND 22 FEBRUARY 2024

Opposed Application

MANGOTA J:-	The applicant, a legal entity, is a relentless litigator. It has been in and out of this court on not less than five occasions. It has taken some of its cases to the Supreme Court on not less than two occasions. In all the stated effort, its aim and object, it states, were to wrestle Stand 11, Bulawayo Light Industrial Site of Bulawayo Township Lands (“the property”) which is held under Deed of Transfer 462/1977 from the first respondent to itself.

The applicant’s narrative is that the property had been sold in a public auction which the third respondent, in his capacity as the Sheriff of Zimbabwe, conducted following a loan dispute and a court order which existed between African Banking Corporation and itself. The third respondent, it alleges, sold the property to the second respondent which, in turn, transferred the same to the first respondent in circumstances which, in its view, were dubious. It confesses that its effort to recover the property fell on deaf ears of this court as well as on those of the Supreme Court. All the cases which it filed, it states, were dismissed on technical grounds by both the Supreme Court and this court.

The current is yet another application by the applicant. It filed it on 25 April, 2022. It alleges that it reviewed the merits of its case as well as the challenge of the sale and transfer of its property. It states that its challenge is premised on common law grounds and equitable considerations. It insists that the Supreme Court and this court have not decided its case on the merits. They, it claims, decided the same only on objections which fall under the rules of this court. It moves me to set aside the sale of the property to the first, by the third, respondent. Its reasons for the motion are many and varied.

The applicant’s narration of events in respect of its current effort is that, on 5 August 2016, the third respondent confirmed the sale of the property to the second respondent. On 15 March, 2017 the second respondent, duly represented by the first respondent, cancelled the sale and, on 24 March 2017, the third respondent refunded the purchase price to the second respondent. On 19 June, 2018 the first and second respondents paid USD 73 000 to the third respondent with the first respondent as the purchaser of the property. The second sale which, according to it, took place some two years after the first sale was/is a fraud, a misrepresentation and an illegality of a transaction. It insists that the third respondent who holds a public office must act above board as well as above reproach so that the public whom he serves do not lose confidence in his office. The sale of the property, it is its view, is tainted with fraud. It claims that it became aware of the second sale when the first respondent served it with a notice of its eviction from the same. The third respondent, it insists, violated one of the rules of natural justice. He allegedly irregularly sold the property to the first respondent without giving it the opportunity to object to the second sale. It claims that the sale in question is prejudicial to it in a great measure. It insists that the second sale should not be allowed to stand under the common law. The third respondent, it alleges, did not act above board. It states that, since it is raising a new cause of action, all the cases which the Supreme Court and this court dealt with in the past are irrelevant. It claims that, because the property was sold below its market value, equitable considerations come into the equation. The court, it insists, should not condone fraud and/or misrepresentations.

The first respondent who deposed to an affidavit for, and on behalf of, the second respondent and himself corrected the name of the second respondent, a legal entity, to read ‘Arenal (Private) Limited trading as Arenal Quality Sweets and Biscuits.’  Both respondents raised the defences of res judicata and that of prescription in so far as the current application is concerned. The first respondent’s statement is that the cancellation of his Deed of Transfer number 2290/2018 and the revival of the applicant’s Deed of Transfer number 492/1997 were done fraudulently and the transaction which led to the two actions is therefore null and void. He states that he has applied under HC 811/22 moving the court to declare that:

Cancellation of his title deed is a legal nullity -and

Revival of the applicant’s title deed is a legal nullity-and

The same must therefore be set aside.

The deponent attached to the respondents’ opposing papers a copy of the default judgment which is dated 3 October, 2019. This, he states, was issued under case number HC 675/19. It is this order, according to him, on which the applicant premised his case to cancel the first respondent’s deed of transfer and to revive the applicant’s deed of transfer. The applicant, the deponent states, presented the court order to the Registrar of Deeds (“the Registrar”) to effect the changes on the title of the property. The default order, he claims, had been set aside some three months before the Registrar acted upon it. The default order, Annexure B, did not, according to him, instruct the Registrar to cancel and revive Deeds of Transfer numbers 2290/2018 and 492/1997 respectively. Annexure C which the respondents attached to their notice of opposition is a copy of the order which the court made on 23 June, 2020 under HC 2574/19. It sets aside HC 675/19. The respondents allege that the cancellation of the first respondent’s title deed and the revival of the applicant’s title deed were done unlawfully, improperly and/or fraudulently. The deponent states that, when the default judgment was rescinded on 23 June 2020, he filed an opposing affidavit and a counter – application in case number HC675/19 and, by judgment which is dated 5 November2020, the court dismissed the applicant’s application and upheld his counter-application. The applicant, he alleges, unsuccessfully appealed HC 675/19 under SCB 109/20. The appeal was struck off the roll with costs. A writ of ejectment was issued and the applicant was evicted from the property on 21 December, 2021. The respondents aver that the applicant applied to the Supreme Court under case number SCB 61/21 in terms of which it moved the court to condone it for the late noting of the appeal as well as for an extension of the time within which it would note its appeal. The Supreme Court, the respondents allege, struck the application off the roll with costs. The deponent states that the applicant did not ever disclose the fraudulent cancellation of his deed of transfer and/or the fraudulent revival of title of the property in its name. He insists that the applicant cannot derive any legally enforceable right from its fraud. The respondents state that the court cannot set aside the transfer without setting aside the sale which gave rise to the transfer. They deny that there was any irregularity for the second respondent instructing the third respondent to transfer title in the property to the first respondent who is its nominee.  They claim that, when the second respondent got frustrated by the applicant’s endless litigation which it mounted under HC3464/2013, it unsuccessfully tried to cancel the sale of the property to it and get a refund of the purchase price which it had paid less the Sheriff’s commission. Its effort in the mentioned regard became unsuccessful because, according to it, the judgment creditor’s legal practitioners refused to accede to cancellation of the sale which had been confirmed. The respondents claim that they accepted the position which the judgment creditor’s legal practitioners had taken as spelt out in their letter of 11 April, 2017 (See Annexure L page 80). They state that the court considered the allegations of fraud which the applicant raised in this application and found the same to have been without merit. It did so in HB 249/20 which judgment remains final and extant, according to them. The applicant, they claim, is abusing court process. They insist that the grounds which the applicant raised in HC 675/19 as well as the cause of action in the same cannot be re-considered because the court which finally and conclusively decided the case under HB 249/20 considered them then. The matter, the respondents insist, is now res judicata. They state that, owing to the fact that the third respondent confirmed the sale in October 2016, the current application has now prescribed. They allege that the contention which is to the effect that the property was sold for a price which is below its market value is not a common law ground. It is, according to them, one which can only be made under the rules of court. That matter, they aver, has already been determined against the applicant in HC 2651/16, HC 2746/16 and HC 1966/18. They move me to dismiss the application with costs which are at attorney and client scale.

The thrust of the applicant’s case is that all the cases which this court and the Supreme Court dealt with were not decided on the merits. They were, it claims, decided on technicalities. It, in the mentioned regard, referred me to such cases as HC 2657/16, HC 2746/16. HC 265/16 and HC 1966/16 all of which, according to it, were determined on technicalities. It, for some unexplained reasons, does not refer me to any case(s) which the Supreme Court heard and decided on technicalities.

The applicant, it is observed, was careful not to draw my attention to HC 675/19 which MAKONESE J heard and determined on 5 November, 2020 under HB 249/20. The case, it is evident, was not decided on technicalities as the applicant would have me believe. It was decided on the merits, so to speak. The learned judge, for the avoidance of doubt, identified the applicant’s cause of action as having been grounded in the delict of fraud. He stated at page 16 of his carefully-reasoned judgment that ‘the pleaded cause of action in the present application is that the second respondent conducted a fraudulent sale in execution’. The second respondent whom the Judge referred to was/is the Sheriff of Zimbabwe whom the applicant sued together with the first respondent in casu.

The papers which the respondents attached to their notice of opposition show the manner in which the applicant dealt with HB 249/20 which had been filed as HC 675/19. When judgment in HB 249/20 was delivered, the applicant’s first port of call was to appeal the decision of the court. It filed its appeal under SCB 109/20. The Supreme Court struck the appeal off the roll on 15 November, 2021. Reference is made in the mentioned regard to Annexure E. This appears at page 46 of the record. The court struck the appeal off the roll for the reason that the notice of appeal which the applicant filed was fatally defective.

The applicant’s second effort was to apply to the Supreme Court which it moved to condone it for the late noting of an appeal as well as for an extension of time within which it had to note the appeal in respect of HB 249/20. Annexure G which appears at page 48 of the record speaks to the stated matter. The annexure shows that the application which the applicant filed under SCB 61/21 was struck off the roll with costs. It was struck off the roll on 15 March, 2022.

The double striking off the roll of the appeal, SCB 109/20 as well as the application, SCB 61/21, left the judgment of MAKONESE J undisturbed. The record does not contain any evidence which shows that the applicant made any further effort to set HB 249/20 aside.

That said, the respondents’ assertion which is to the effect that HB 249/20 remains extant cannot be wished away. That fact is a reality. Because HB 249/20 was premised on the same cause of action namely fraud and/or principles of equity, the applicant cannot re-visit the same matter as it is doing in casu. In HB 249/20, the court made a final and definitive judgment of the case on the merits. The respondents’ plea of res judicata therefore remains available to them.

Res judicata is a defence which is open to a litigant who is able to show, on a preponderance of probabilities, that the matter which the other litigant has placed before the court was heard and determined in a conclusive manner by the court in a previous hearing. Its meaning and import were succinctly stated in Flowerdale Investments (Pvt) Ltd v Bernard Construction (Pvt) Ltd, 2009(1) ZLR 110 (S) wherein CHIDYAUSIKU C.J. defined the essential elements of res judicata as being that:

the two actions must be between the same parties;

the two actions must concern the same subject-matter; and

the two actions must be founded on the same cause of action.

It goes without saying that the parties whom the applicant sued in this application are the same as those whom it sued under HB 249/20; that both actions relate to the same subject-matter namely its avowed intention to wrestle the property which is the subject of this application and the earlier one from the respondents and that its cause of action as stated in HB 249/20 is in no way different from its cause of action in respect of this application. The respondents’ plea of res judicata is therefore not misplaced. It remains available them regardless of the number of times that the applicant applies to upset the ruling of the court as contained in HB 249/20.

It is not the number of times that one applies for a relief which matters. What matters is the quality of the application which the applicant files. Where a matter has been determined in a definitive and conclusive manner as was done under HB 249/20, the applicant would be wasting the time of the court and that of the respondents when it chooses to deal with the same matter over and over again. Its options do not lie in an application. They lie in an appeal or a review of the decision which has been entered against it.

It is with some sense of disquiet that I observe that the applicant made a deliberate effort to withhold from me vital information which relates to the existence of HB 249/20. The observed state of affairs is detestable not only to myself but also to any judicial officer who finds himself in the position which the applicant placed me into. As courts, we expect litigants who come to us for relief to disclose all matters which pertain to their cases even those matters which are not favourable to them. They should, at all material times, place themselves into the confidence of the court. Where they fail to do so, as the applicant did in casu, the court will not view them in good light. That will be so because of the tendency in them to mislead the court.

The view which the court holds in a situation such as the applicant stands convicted of was aptly stated in NASSA v Capital Bank Corporation, HH 16/19 wherein it was held that:

“It is an accepted position that courts frown upon litigants or legal practitioners who desire to derive the sympathy of the court by deliberately withholding vital information which has a bearing on the very matter that the court is called upon to determine”.

I can, in casu, do no better than frown upon the applicant’s deliberate effort to mislead me on a matter which it placed before me for determination. But for the effort of the respondents who were candid to advise me of the existence of HB 249/20, I would have wasted a lot of time and effort resolving a matter which the court resolved in 2020. The attitude of the applicant, in the circumstances of this case, cannot be condoned let alone accepted. It knows as much as anyone does that its application was/is res judicata. That knowledge on its part notwithstanding, it, for its unknown reasons, proceeded to file the present application for my consideration.

Annexure C which appears at page 13 of the record shows that the third respondent who is the Sheriff of Zimbabwe sold the property which is the subject of this application by public auction. On 6th October, 2016, the third respondent confirmed the sale of the property. Reference is made in the mentioned regard to Annexure D. This appears at page 14 of the record. The confirmation of the sale constitutes the date in terms of which the applicant’s cause of action started to run.

The observed fact is that from the date of confirmation of the sale to 25th April, 2022 which is the date that the present application was filed, the applicant remained relentless. It filed one application after another in its quest to wrestle the property from the respondents who purchased the same.

Its effort, unfortunately for it, remained largely unrewarded. It failed to dislodge the respondents from their hold onto the property at every turn of the events. The only time that it registered some measure of success was on 3 October, 2019 when it successfully moved the court to revive title in the property from the respondents to itself. Reference is made in this regard to Annexure B which appears at page 9 of the record.

Be that as it may, the order which the court entered in the applicant’s favour on 3 October, 2019, Annexure B. was, with its consent, rescinded on 23 June, 2020. Reference is made in this regard to Annexure C which appears at page 13 of the record. The rescission of the order which had been entered for the applicant on 3 October, 2019 returned the parties to the status quo ante the order which is contained in Annexure B. This, in short, spells doom for the applicant. The rescission shows that its efforts as contained in Annexure B were undone with its consent.

What the above-observed matters show, in context, is that the applicant has not been successful in all its effort to wrestle the property from the respondents. It is for the mentioned reason, if for no other, that the respondents argue that the claim of the applicant has been extinquished by operation of the law of prescription.

The Prescription Act (Chapter 8:11 ) (‘the Act”) allows a creditor who becomes aware of a debt which is due to him to sue the debtor for its recovery within a period of three years which are reckoned from the date that he becomes aware of the same. Section 15 (d) of the Act is relevant in the stated set of circumstances. It states that prescription commences to run from the date that the creditor becomes aware of the debt.

The trite position of the law is that failed applications and/or actions do not interrupt the running of prescription. Prescription is allowed to run its full course notwithstanding the institution of unsuccessful applications or actions: Chiwawa v Mudzuris & Ors, 2009 (1) ZLR 72 (H). The law, in short, provides that applications which are dismissed on procedural grounds do not interrupt the running of prescription.

The applicant states, in paragraphs 5.3 and 5.4 of its founding affidavit, that its various applications for review and rescission of the sale of the property were dismissed on procedural grounds. It states, in paragraph 5.4.1 of the same, that only objections under the court’s rules were tested. It is for the mentioned reason that the respondents submit, correctly in my view, that the applicant’s claim has prescribed. For it to have remained unprescribed, the application should have been filed on 6 October, 2019 or at any time which preceded that date. The application which is filed more than two and half years after the event or out of time cannot dislodge the defence of the respondents. The defence of prescription therefore remains available to them.

The respondents who are fed up with the conduct of the applicant move me to censure the applicant. They move me to dismiss the application with costs which are at attorney and client scale as well as to order that such costs be borne by the applicant, jointly and severally, with its managing director one David Bruno Phiri Luwo.

Whilst I understand the frustration of the respondents, my view is that the applicant is not entirely to blame for all that which has occurred. The frustration of the respondents largely arises from poor advice which the applicant got from its legal practitioners. These should have known that HB 249/20 resolved the dispute of the parties in a final and definitive manner. They should also have known that no useful purpose is served by advising the applicant to re-visit the matter in the manner that it did in casu. They should, in short, have advised the applicant to pursue its appeal against HB 249/20. They knew that the stated course was the only option which remained available to the applicant. Their knowledge of that matter notwithstanding, they advised it to apply as it did much to its embarrassment. They, in short, refused to acknowledge that the application which the applicant was filing was not only time-wasting but was also frivolous and vexatious in the extreme sense of the word. They cannot, in the circumstances of this case, escape censure. They are as much to blame as the applicant is. They are, after all, the ones who threw the applicant into the mess in which it finds itself. They did not give it value for money at every turn of its various applications for rescission and/or review. They filed a defective notice of appeal which the Supreme Court struck off the roll with costs. They filed a defective application for condonation which the Supreme Court struck off the roll with costs as well. They advised the applicant not to pursue its appeal but to file the present application which remains dead in the waters. They are better placed than the applicant is in so far as their knowledge of the law-substantive and procedural- is concerned. They took the applicant along a garden path which they knew leads to nowhere. They know as any legally trained mind does that there should be finality to litigation unless the same is taken on appeal as they should have advised the applicant to do. The applicant, in my view, placed its trust and reliance upon them. They apparently played the game of cat and mouse with it all in the name of assisting it when, in actual fact, they were doing a lot of dis-service to it.

The applicant failed to prove its case on a preponderance of probabilities. The application is, in the result, dismissed with costs which are at attorney and client scale and such costs shall be borne by Messrs Mudenda Attorneys.

Messers Dube Legal Practice, applicant’s legal practitioners

Danziger and Partners, 1st and 2nd respondents’ legal practitioners