Shirley Jean Scott v Tobias Zangairai & 3 Ors

### Preamble
1
HB 180.20
SHIRLEY JEAN SCOTT
HC 2981/18
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1. 	SHIRLEY JEAN SCOTT						HC 2981/18

Versus

TOBIAS ZANGAIRAI

And

LEO SCOTT

And

BRIGHTON NDOVE

And

THE REGISTRAR OF DEEDS, N.O.

2.	TOBIAS ZANGAIRAI						HC 2773/18

Versus

SHIRLEY JEAN SCOTT

And

THE SHERIFF OF THE HIGH COURT, N.O

HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 23 OCTOBER 2019 AND 27 AUGUST 2020

Opposed Application

N Mazibuko, for the applicant (in case No. 1 and for 1st respondent in case No. 2)

Ms S Mbondiya,, for the 1st respondent (in case 1 and applicant in case No. 2)

Advocate S Siziba, for the 2nd respondent (Case No. 1)

Advocate L Nkomo, for the 3rd respondent (case No. 1)

No appearance, for the 4th respondent (Case No. 1)

TAKUVA J:		The two matters listed above are related and the interested parties agreed that they be consolidated and argued at the same time to avoid repetition.

Case No 1 filed under HC 2981/18 is a court application where the applicant seeks the following relief;

1.1	An order cancelling the agreement of sale between the 1st respondent and 2nd respondent in respect of an immovable property known as Stand 10075 Bulawayo Township of Bulawayo Township lands also known as No. 46 Cheltenham Road, Montrose Bulawayo, and further reversing the transfer of ownership of the aforementioned immovable property from the 2nd respondent to the 1st respondent.

1.2	An order that the 3rd respondent is to refund the purchase price paid by the 1st respondent.

1.3	An order that the 4th respondent cancels Deed of  Transfer No. 719/2018 registered on the 1st of June 2018 in favour of the 1st respondent with the property reverting to the previous deed, plus ancillary relief on the grounds that the sale and transfer of the immovable property was unprocedural and that the applicant’s consent both to the sale and terms thereof was not obtained before  hand and that the property was in any event sold for below its market value thereby prejudicing the applicant.

The background to the application is as follows;

The marriage between the applicant and the 2nd respondent was dissolved by a decree of divorce granted by this Court on the 29th of May 1992 under case No. HC 551/89.  The divorce order incorporated a Consent Order signed by the parties and two paragraphs of that Consent Order are relevant to the application in casu namely;

(a)	Paragraph 5 which stipulated that the matrimonial home known as number 46 Cheltenham Road, Montrose Bulawayo shall become the joint property of the parties.

(b)	Paragraph 8 which stipulated that upon the youngest child attaining the age of eighteen years, the matrimonial home shall be sold and the net proceeds shared equally between the parties.

At the time of the dissolution of the marriage between the applicant and the 2nd respondent, the matrimonial home was owned by the 2nd respondent by Deed of Transfer number 2850/79 dated 15 November 1979.  Following the dissolution of the marriage in May 1992 the applicant never registered her joint ownership of the former matrimonial home but continued to enjoy exclusive occupation of the property until the youngest child attained the age of eighteen years and beyond.

Sometime in March 2017, the 2nd respondent through his legal practitioners of record engaged the applicant and informed her of the decision to have the former matrimonial home sold and the proceeds shared equally per the divorce order as the youngest child had by then long attained the age of eighteen years and was thirty-two years.  The applicant through her legal practitioners of record exchanged correspondence with the 2nd respondent’s legal practitioners over the sale of the former matrimonial home and ancillary issues relating to the applicant’s claims.

By letter dated 27th March 2018, the applicant’s legal practitioners wrote to the 2nd respondent’s legal practitioners forwarding a written offer by the 1st respondent’s assignee to purchase the former matrimonial home for the sum of $65 000.00.  By another letter dated 5th April 2018 the applicant’s legal practitioners wrote to the 2nd respondent’s legal practitioners and forwarded a “renewed offer” by the 1st respondent’s assignee to purchase the former matrimonial home for $65 000-00.  The applicant’s legal practitioners in their letter stated that the renewed offer was valid for ten days from the 4th of April 2018.

At this stage, the 2nd respondent through Real Gate Estates Agents, instructed the 3rd respondent to draft an agreement of sale of the former matrimonial home between the 2nd respondent as the seller and the 1st respondent as the purchaser, for the sum of $65 000-00.  After the agreement of sale was drafted and signed by the parties, the 1st respondent paid the full purchase price of $65 000-00 into the trust account of Messrs Ndove and Associates legal practitioners as stipulated in the agreement of sale.

By letter dated 10 April 2018 written by the 2nd respondent’s legal practitioners to applicant’s legal practitioners, the applicant was informed that an agreement of sale of the former matrimonial home had been concluded for the sum of $65 000-00 and that the full purchase price paid was held in the trust account of Mrssrs Ndove and Associates legal practitioners awaiting finalisation of on-going engagements between the applicant and the 2nd respondent on how to share the proceeds.  Thereafter, the 2nd respondent’s legal practitioners processed the conveyacing of the property from the 2nd respondent to the 1st respondent’s name through Deed of Transfer No. 710/18 dated 16 May 2018.

The applicant was informed by letter dated 7 June 2018 written by the 2nd respondent’s legal practitioners to her legal practitioners that the former matrimonial home had since been transferred to the 1st respondent.  Applicant was also informed that the parties must finalise the negotiations on the sharing of the proceeds of sale.  After that, the applicant started alleging that she did not consent to the sale of the former matrimonial home.  The 3rd respondent who at all material times acted on the basis of a principal and agent contract of mandate as the 2nd respondent’s legal practitioner is joined in the proceedings in his personal capacity and is opposing the application.

Case No. 2

After acquiring ownership through Deed of Transfer No. 710/18,1st respondent filed s court application against the applicant under case No. HC 2773/18 on 18 October 2018 seeking the eviction of the applicant from the former matrimonial home.  The applicant is opposing the eviction.  Later on 8th of November 2018, the applicant filed the court application in casu seeking the cancellation of the agreement of sale of the former matrimonial home between the 1st respondent and the second respondent and the cancellation of Deed of Transfer No. 710/18.

At the hearing of these two matters.  Advocate Nkomo for the 3rd respondent took a point in limine on the improper and unnecessary joinder of the 3rd respondent.   The argument is that at all material times the 3rd respondent acted as the agent of the 2nd respondent on the basis of a principal and agent contract of mandate.  Further, the 3rd respondent has no direct and substantial interest in the subject matter of the litigation to justify his citation as a party.  It was also contended that by concluding an agreement of sale, the 2nd respondent did not commit any fraud against the applicant.  Therefore no liability to the applicant attaches to the 3rd respondent arising from the agreement of sale between the 2nd respondent and the 1st respondent.  Finally, it was submitted that the applicant has not pleaded any valid cause of action at law against 3rd respondent.

On the other hand, applicant contended that 3rd respondent was properly cited in that it was clear from the correspondence that there was a dispute between the applicant and the 2nd respondent as to the 2nd respondent’s liability to the applicant for unpaid maintenance and other charges due in terms of the divorce order between them.  It was also argued that “from the papers” the parties “agreed” that there would be no unilateral sale of the former matrimonial home and that both parties would be “party” to the agreement of sale.  Finally, it was submitted that in light of the aforegoing, the 3rd respondent clearly acted “unprofessionally” in going on to conclude an agreement of sale with the 1st respondent “without any input whatsoever from applicant.” Third respondent was alleged to have caused prejudice to the applicant, hence his joinder.

After hearing argument, I upheld the point in limine and ordered that the 3rd respondent’s name be struck off from the record with costs against the applicant.  The following are the reasons for that decision;

On the facts, the gravamen of the applicant’s case is that after she was awarded joint ownership of the property, the 2nd respondent in whose sole name the property continued to be registered could not lawfully sell the property without her consent.  Applicant challenges the capacity of the 2nd respondent as the sole registered owner of the property to dispose of the same without her prior consent.  The relief sought is the setting aside of the agreement of sale between the 2nd respondent and the 1st respondent.  Evidently, it is only the 1st and 2nd respondents who have a direct and substantial interest in the subject matter of this court application.

As regards applicant’s input to the sale of the property, I do not share her view that she had no input “whatsoever” to the agreement of sale.  I say so because the correspondence that was exchanged between the applicant’s legal practitioners and 2nd respondent show clearly that the parties were agreed that the property had to be sold even though the applicant was of the firm view that she was now entitled to the full value of the property by herself as she alleged that the 2nd respondent owed her certain amounts relating to maintenance, city council rates and so forth.

It is common cause that it is applicant through her lawyers who forwarded 1st respondent’s offer of purchase of the property to the 2nd respondent’s legal practitioners with a ten day ultimatum for the purchase price of US$65 000-00.  The 2nd respondent’s legal practitioner who is the 3rd respondent proceeded to facilitate the sale and transfer of the property and tendered applicant’s half share of the purchase price.  The 3rd respondent did this by drafting an agreement of sale between the 2nd respondent (who was the sole registered owner of the property) and the 1st respondent.  For the applicant to now claim that she was supposed to jointly sign the agreement of sale together with 2nd respondent is legally untenable.  This follows from the fact that applicant was never a registered owner of the property in terms of the law.  Her signature would have no legal consequences as she was incapacitated from transferring the property to anyone, despite owning her half share.  Transfer of property by a non-owner is null and void at law – see TBIC (Pvt) Ltd and Another v Mangenje and 5 Others SC 13-18, Machiva v Commercial Bank of Zimbabwe Ltd and Another 2000 (1) ZLR 302 (HC) at 303-304.

In Agro Chem Dealers (Pvt) Ltd v Gono and Others HH 71-09, GOWORA J (as she then was) held that;

“The registration of title in one’s name constitutes the registration of a real right in the name of that person.  A real right is a right in a thing which entitles the holder to vindicate his right, i.e to enforce his right in the thing for his own benefit as against the world; that is against all persons whatsoever.  Another definition of a real right is that it is a right in a thing which confers on the holder of the right an exclusive benefit in the thing which benefit is indefeasible by any other person.  What then are the consequences attendant upon the acquisition of a real right of this nature?  The effect of registration of a person’s name as owner of a piece of land is that he is the owner of the land including the permanent building on it in the  absence of fraud, error or other exceptional cases.  Thus it is a principle of our law that the dominium in immovable property remains in the seller until the same is registered in the name of the purchaser.  It follows therefore that an owner of property cannot be deprived of his property against his will.  Consequently, no person who is not the owner can transfer ownership in anything whether or not such transferor was acting in good faith or mala fide.”(my emphasis)

Accordingly, applicant’s signature on the agreement of sale would have been superfluous.

The other reason why 3rd respondent should not have been joined is that at all material times he acted as the agent of the 2nd respondent on the basis of a principal and agent contract of mandate.  In Murimba & Another v Law Organisation (Pvt) Ltd & Others 2011 (2) ZLR 327 (H) at 328-F, GOWORA J (as she then was) held that;

“An agent is contractually bound to protect the interests of his principal and it was incumbent upon the plaintiffs in their declaration to plead the basis upon which the agent of another party would have an obligation to protect the plaintiff’s interests in the absence of any relationship between the two .....  Whilst a principal is liable for the fraudulent misrepresentation of his agent, an agent is not liable for the fraudulent misrepresentations of his principal ....” (my emphasis).

See also Phiri v Nawasha 2011 (2) ZLR 464 (H) at 464G

In any event, the 2nd respondent did not commit any fraud against the applicant in concluding the sale agreement with the 1st respondent.  The 2nd and 3rd respondents did not squander the applicant’s share but held it in a trust account.  Instead of accepting her share, applicant unwisely refused to accept it when it was tendered in terms of the divorce order.  The 3rd respondent as agent of the 2nd respondent did not owe any duty of care to the applicant in relation to the discharge of his role as the agent of the 2nd respondent.

Rule 87 (2) of the High Court Rules, 1971, states that;

“2.	At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application

(a)	order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party,....”

For these reasons, I made the following order;

1.	The 3rd respondent’s name be and is hereby struck off the record of proceedings.

2.	The 3rd respondent ceases to be a party to these proceedings.

3.	The applicant be and is hereby ordered to pay 3rd respondent’s costs.

The matter then proceeded against the rest of the respondents.

ISSUES

There are two broad issues for determination, namely;

(1)	whether or not the applicant was a joint-owner of the property being  stand 10075 Bulawayo Township of Bulawayo Township Lands (commonly known as No. 46 Cheltenham Road, Montrose, Bulawayo) at the time of its sale to the 1st respondent?

(2)	whether or not the 1st respondent purchased the property in question bona fides?

As regards the first issue, applicant’s contention is that the agreement of sale is null and void because it was entered into without her consent as joint-owner of the immovable property.  She placed heavy reliance upon the divorce order granted by consent in the matter under cover of case No. HC 551/89 in terms of which she alleges that the court in that matter conferred joint ownership of the property to herself and the 2nd respondent.  As a result of this, she alleges that 2nd respondent could not lawfully sell and pass transfer of ownership of that property to the 1st respondent unilaterally.

Further, applicant relied upon Clause 5 of the Consent Paper incorporated in the Divorce Order which expressly provides as follows;

“The matrimonial home commonly referred to as 46 Cheltenham Road Montrose, Bulawayo shall become the joint property of the plaintiff and defendant.” (emphasis added.

Clause 8 of the Consent Paper provides that;

“On the attainment of the youngest child of the age of eighteen years the matrimonial home, No. 46 Cheltenham Road, Montrose, Bulawayo, shall be sold and the net proceeds after payment of the amount then owed on the building society bond and Estate Agent’s Commission, shall be shared equally between the plaintiff and the defendant.”

THE LAW

The word “owner” in relation to immovable property is defined in section 2 of the Deeds Registries Act (Chapter 20:05) as follows;

“owner” in relation to immovable property means the person registered as the owner or holder thereof and includes the trustee in an insolvent estate, the liquidator of a company which is an owner and the representative recognised by law of any owner who has died or who is a minor or of unsound mind or is otherwise under disability so long as such tustee, liquidator or legal representative is acting within the authority conferred on him by law,” (my emphasis)

That registration of title amounts to proof of ownership of immovable property was clearly spelt out by GOWORA J (as she then was) in Agro Chem Dealers (Pvt) Ltd v Gomo & Others supra.

Further, in Machiya v Commercial Bank of Zimbawe Ltd and Anor 2000 (1) ZLR 302 (HC), the court expressed itself thus;

“Generally speaking members of the public are entitled to rely on the records held in the Deeds office and to assume that such records reflect the position about land ownership and the burdens which may be reflected on the deeds of transfer.  If the position were otherwise, the land registration system in the entire country would be a farce and the lending system in the financial sector would be thrown into chaos.”

What this means is that the applicant as an unregistered co-owner could not have expected to play a significant role in the sale and transfer of the property.  Applicant’s interest amounts to a personal right against the 2nd respondent in the undivided half share of the property.  That half share was tendered but applicant declined to accept it.  Applicant insisted that she is a joint owner in terms of the divorce order.  The question is did the order grant her joint-ownership.  The answer is in the negative because our law provides that real rights of ownership in respect of immovable property can only be transferred by registration in the Deeds Registry and not by an order of court.

This is supported by the provisions of section 14 of the Deeds Registries Act (Chapter 20:05).  It provides that;

“ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar.” Registration of real rights of ownership in respect of immovable property in terms of the Deeds Registries Act is not just a matter of form but also of substance. It not only serves as a constructive notice of ownership of immovable property to the world at large but is also the only way in terms of which real rights of ownership in respect of such property can lawfully be transferred – see The Sheriff  of The High Court v Nomvuyo Hilary Madziro & Others case No. HC 1800/15.

In the present matter the right conferred upon the applicant by the divorce order was personal in nature, operative against the 2nd respondent only.  In Musanhu v Musanhu HH 58-17 the applicant sought to bring a vindicatory claim and had argued that she only had to prove two aspects to succeed, namely that she was the owner of the property and that the respondent was in possession thereof without her consent.  The applicant in that case argued that she was the owner of the property by virtue of an order of court.  It was however held that the applicant’s claim for eviction could not be sustained as the applicant did not hold real rights to the property until transfer had been affected.  It was further held that she was not an owner but held a potential right of ownership duly sanctioned by an order of court.  Applicant’s vindicatory claim was dismissed.

In casu, it is clear that the applicant’s personal right to take  joint-registered transfer of ownership of the property in question was subject to a resolutive condition that was fulfilled when the youngest child attained the age of eighteen (18) – see clause 8 of the Consent Paper incorporated into the divorce order.  Further, the applicant has not proferred any reasons for her failure to take joint-registered transfer of ownership of the property from the date of the decree of divorce to the date that the youngest child of the marriage attained the age of eighteen (18).  This failure to take registered transfer of ownership of the immovable property conferred upon her in terms of the divorce order translates to a failure to prove ownership of the immovable property.  The personal right to take registered transfer should have been enforced.  The authorities cited above confirm that in terms of our law orders of court, including divorce orders do not confer any real rights of ownership in respect of immovable property but merely confer personal rights which only convert to real rights upon registration.

Consequently, since the applicant was never a joint-owner, it follows that her knowledge and consent to the sale of the property and ultimately to the transfer of ownership rights to the 1st respondent, were not required for the purpose of effecting lawful registered transfer of ownership of the property in favour of the 1st respondent.  In any event as I will show hereunder the applicant not only had knowledge of the sale but also consented to the sale.

This brings me to the 2nd issue of whether or not the 1st respondent purchased the property in question bona fides?  It is common cause that the 1st respondent and his family came to know of the sale of the property at the time they were selling their home through the same estate agent Real Gate Properties.  The 1st respondent and his wife approached the applicant directly to enquire further on the property’s sale and thereafter abided by the applicant’s direction or instructions to relay their offer through her legal practitioners.  The 1st respondent carried out his due diligence by inspecting the property’s Title Deed which revealed that the seller of the property, the 2nd respondent hereto was the sole-registered owner of the property.

An agreement of sale was then entered into on 7th day of April, 2018 in terms of which the 1st respondent purchased the property in question from the 2nd respondent (the sole registered owner).  Further, the applicant was not opposed to the property being sold for at least the sum of USD65 000-00.  See annexture “H” of the 1st respondent’s Notice of Opposition.  However as an afterthought, the applicant has disputed the reasonableness of the purchase price of the property without providing an alternative objective assessment of the value of the property at the time of sale.  Applicant submitted an email from a Mr Friend who estimated the property to be valued at the sum of USD75 000-00 four (4) months after the property had been sold.  In any case, that estimation is not a sworn valuation report.

From the above, it is apparent that the applicant’s real contention relates to the distribution of the proceeds of the sale as between the 2nd respondent and herself.  This issue is irrelevant to the sale of the property and subsequent lawful transfer of ownership in favour of the 1st respondent.  In the premises the applicant has failed to raise any valid ground for setting aside the agreement of sale and the 1st respondent’s registered ownership in respect of the property in question.  At the time of the sale, the applicant was not a joint-owner.  The 1st respondent purchased the property in good faith.  The distribution of the proceeds of the sale is alien to the validity of the sale of the property and its subsequent transfer to 1st respondent.

In my view, the applicant was ill-advised to reject her share of the proceeds in terms of the divorce order.  Applicant has enjoyed staying in the house for years after the youngest child became 18 years of age.  Obviously, she wants that status quo to persist at the 2nd  respondent’s prejudice.  Now she is also frustrating an innocent purchaser by stalling her vacation of the property.

Case No. 2 HC 2773/18

As indicated above this is an application filed by the 1st respondent as owner of the property to eject the applicant and all those claiming occupation through her from the property.  Applicant in her notice of opposition made it abundantly clear that she was challenging the sale as it was finalised without her “knowledge”.  She also indicated that the details of her challenge will be contained in an application she intended to file against the 1st, 2nd and 3rd respondents.  This turned out to be case No HC 2981/18 which I have dealt with supra.

However, applicant in her heads of argument introduced a fresh defence arguing that she was a “statutory tenant” who cannot be evicted from a residential accommodation.  In her opposing affidavit under HC 2773/18, applicant only contended that “I confirm that I have declined to vacate the premises because the transfer of the property into the names of the applicant was unprocedural and ought to be set aside.  In that regard, I confirm that I am separately filing an application with the court to reverse the transfer.”

However in her heads of argument she raised a point in limine namely that the 1st respondent failed to comply with section 30 (1) (c) as read with section 30 (3) (a) and section 30 (4) of the Rent Regulations SI 32/2007.  The contention was firstly that 1st respondent’s notice to vacate was invalid in that it did not specify that the dwelling was required for 1st respondent’s personal occupation.  Secondly it was submitted that the 1st respondent did not seek an ejectment certificate in terms of section 30 (4) of the Regulations.

Mr Mazibuko for the applicant argued strongly that the applicant is what he termed a “statutory tenant” whose eviction is governed by the Housing and Building Act (Chapter 27:07) as read with the Rent Regulations SI 32/07.  It was further contended that since the applicant is in occupation of the property in dispute in terms of the court order and as an erstwhile co-owner she is a statutory tenant.  Finally, it was contended on her behalf that payment or non-payment of rent is irrelevant to her status as a statutory tenant.

The issue is whether or not the law of landlord and tenant i.e the letting and hiring of things (locatio conducto rerum) applies to the relationship between the owner (Tobias Zangaira) and Shirley Jean Scott (co-owner)?  The Rent Regulations are an offshoot of this branch of the law.  In H & J Investments (Pvt) Ltd v Space Age Products (Pvt0 Ltd 1987 (1) ZLR 242, it was held that to qualify for treatment as a lease rather than as an innominate contract governed only by the general rules of contract, the contract must conform to the pattern of giving the use and occupation of specified property for a specified  time in exchange for a specified rent, which must be determined or determinable. (my emphasis)

That this is the position at common law is trite.  The Rent Regulations’ main objective is to prevent landlords from taking advantage of their strong economic position by charging excessive rents, and of giving tenants greater security of tenure. The current regulations are the Rent Regulations, 2007 SI 32/2007.  These regulations apply to leases of dwellings defined in section 2 (1) of the regulations.  The formation of a lease to which these regulations apply is restricted in several respects.  Limitation on ejectment is provided for in sections 30-32 of the regulations.  The rights and duties of a statutory tenant are contained in section 31 which provides;

“31. A lessee who, by virtue of provisions of these regulations, retain possession of any dwelling shall, so long as he retains possession; observe and be entitled to the benefit of all the terms and conditions of the original contract  of lease, so far as the same are consistent with the provisions of these regulations, and shall be entitled to give up possession of the dwelling only on giving such notice as would have been required under the contract of lease or if no notice would have been so required, on giving one month’s notice;

Provided that, notwithstanding anything contained in the contract of lease, a lessor who obtains an order for the recovery of possession of the dwelling or for the ejectment of a lessee, retaining possession as aforesaid shall not be required to give any notice to vacate to the lessee.”(my emphasis)

In terms of section 3 of the regulations, “Lease” means a written lease agreement signed by both parties;

“Lessee”, in relation to a dwelling, includes

-

(a)	any sublease thereof, or

(b)	the widow or widower of a leasee who was living with the lessee therein at the time of the lessee’s death; or

(c)	a lodger,

But excludes a person who occupies a dwelling as part of his or her contract of employment;

“Lessor” in relation to a dwelling, includes the owner thereof or the person to whom the rent therefore is normaly paid, and a lessee who has sublet the dwelling or part thereof and any agent of the lessor;” (my emphasis)

To establish a statutory tenancy under section 31 of the Rent Regualations 2007, SI 32/2007 the lessor must have some contractual relationship with the lessee as defined.

In my view, for a statutory tenant to be protected in terms of section 31 supra, there must first be in existence an original contract of lease.  Secondly he/she must observe the terms and conditions of that original contract of lease.  Thirdly, those conditions must be consistent with these regulations.  In casu, there is no contract of lease between the applicant and the 1st respondent.  The applicant never paid a dime in rent.  The occupation of the property by applicant as “co-owner” is clearly outside the purview of the Rent Regulations.  In the circumstances, the 1st respondent is entitled to evict the applicant from the property being stand 10075 Bulawayo since she is not a statutory tenant.

Accordingly, under case No HC 2773/18,

It is ordered that:

1.	The applicant (Tobias Zangairai) be and is hereby authorised and directed to eject the 1st respondent (Shirley Jean Scott) and all those claiming occupation under or through her from the property being stand 10075 Bulawayo Township of Bulawayo Township Lands measuring 1 367 square metres situated in the District of Bulawayo (commonly known as No. 46 Cheltenham Road, Montrose, Bulawayo).

2.	1st respondent to pay costs of suit.

In respect of case No. HC 2981/18,

It is Ordered that:

The application be and is hereby dismissed with costs.

Messrs Calderwood Bryce Hendrie & Partners, applicant’s legal practitioners in case No. 1 and 1st respondent’s legal practitioners in case No. 2

Messrs Webb, Low & Barry Inc. Ben Baron & Partners, 1st respondent’s legal practitioners in case No. 1 and applicant’s legal practitioners in case No. 2

Ndove and Associates, 2nd respondents’ legal practitioners in case No. 1