Godfrey Nyabvure v Bromine Capital Solutions (Pvt) Ltd and The Messenger of Court Chinhoyi

### Preamble
1
HCC 81/24
HCC 144/24
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GODFREY NYABVURE

Versus

BROMINE CAPITAL SOLUTIONS (PVT) LTD

And

THE MESSENGER OF COURT CHINHOYI

HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 15 October & 21 October 2024

Urgent Chamber Application

M. Mutsvairo, for the applicant
M. M. Ndebele, for the 1st respondent

No appearance for the 2nd respondent

BACHI MZAWAZI J: This is an urgent chamber application sui generis where the applicant is seeking a final order in the form of a declarateur against the respondents. The 2nd respondent has been cited in his official capacity as he had been in the previous suit.   Under normal circumstances, an interim relief is sought by way of an urgent chamber leaving room for the parties to return to argue their case in support or against the granting of a final order. It is so because an urgent application speaks to the remedial of an urgent situation that cannot wait for the ordinary application timeframes and procedures without the occurrence of an injustice. This has been amply spelt both in the cases of Kuvarega v Registrar General & Anor 1998(1) ZLR 1998 at 189 and Document Support Centre (Pvt)Ltd v Mapuvire HH117/2006 and need no repetition.

In casu, the issue of urgency was beyond debate as the applicant undoubtedly acted as soon as the need to act arose. The litigants have a long history of litigation over the same property, Stand 13586 Glasgow Road, Industrial Site, Chinhoyi owned by the applicant and leased to the 1st respondent through a twenty-year lease. The legal battles have seen their way from the Magistrates via the High Court, to the Supreme Court and back to the where it all started because of some legal technicalities needing redress. After the first respondent had been leased the property, he at some stage deserted it in a very bad state of repair. The applicant, lessor, took over the property by leasing it out to other tenants prepared to restore it to its old glory through refurbishments.  The lessee then sought a spoliation order which was dismissed by the Magistrates Court. The High Court on Appeal against that order, confirmed the subordinate court’s decision. On Appeal, the Supreme Court remitted the matter back to the Magistrate Court as the first decision was interlocutory. For one reason or the other this second time around the Magistrates Court reneged on its initial position and granted the 1st respondent his spoliatory claim with a final effect. See, Chiwenga v Mubayiwa SC26/2020.

This turn of events prompted the filing of a notice of appeal alongside an application for review of the judgment with this court, under cases HCCC118/24 and HCCC 142/24, respectively by the applicants.

Pending both the above applications to the Appeal Court, in continuance of the parties’ tug of war, an application for leave to execute pending appeal was applied for by the 1st respondent. It was granted on the 8th of October 2024. On the same day the applicants’ legal practitioners whilst in the midst of filing an urgent chamber application for stay of execution and another application for review, the 1st respondent   instructed the 2nd respondent through a letter to proceed and execute the court order for spoliation.  Upon the faith of that letter, the 2nd respondent evicted the applicant’s tenants within a timeframe of barely less than 24hours but on the 9th of October 2024. He locked the premises.

Having been placed in this invidious position the applicant filed this urgent chamber application seeking the actions of both the 1st and 2nd respondent in the manner they executed a court order as unlawful. In their argument the applicant highlighted correctly argued that court process and orders unless specifically stipulated in the order itself or by some other law are served by the Messenger of Court if it is from the Magistrate Court and by the Sheriff if it is from the Superior Courts. It is their further argument that the Messenger of Court like in the present case, and or the Sheriff can only enforce court process or order after a writ has been issued through court. In their view, it was not only wrong but unlawful for the 2nd respondent to execute a court order at the behest of and instruction of a legal practitioner. They argued that several provisions of Order 26 were infringed, thus the eviction was unlawful and should not be allowed to stand. It should be declared invalid as it is an illegality cannot be perpetuated. As such, they besought the court’s discretion under section 14 of the High Court’s Act           [Chapter 7:06] to declare the invalidity.

The applicant further argues that harm has already been perpetrated by their being evicted through an unlawful process. The only and resolute remedy is to cure the defect by nullify the illegal process, so they advert.

The 1st respondent raised a point in limine that the certificate of urgency was not dated, hence fatally defective in that there is no telling whether or not it was compiled before or after the founding affidavit. An omission, which was acknowledged by the applicants and explained as an error of oversight due to the urgency of the matter and preparation of the urgent Chamber papers.

On the merits, the 1st respondent argued that, the Magistrates ‘court is a creature of Statute, thus governed by the Magistrates Court Act [Chapter 7:10]. Thus, s20 of the said Act expressly provided for situations, areas or process which exclusively need the issuance of a warrant or writ of execution. In that vein, by express mention of those specific instances, it means any other process or judgment not mentioned can be executed without a writ. In addition, they argue that had the legislature intended for all court orders to be executed by a writ of execution of it should have expressly provided for it under Section 20. They therefore posited that the actions of the 2nd respondent, who was also a party to the suit to evict without a warrant were lawful and not incapacitated by the procedural law provisions.

In that regard, the issues for determination are whether or not the certificate of urgency is fatally defective? Secondly, whether the actions of the 1st and 2nd respondents were lawful? Lastly, whether or not a declaratory order which is final in nature can be granted through an urgent Chamber application?

At the first hearing, the 1st respondent asked for more time to enable him to file his notice of opposition and heads of argument. The parties agreed that the applicant will also file his answering affidavit and heads of arguments.  By silent acquiescence, the issue of urgency was not debated. The filing of all the pleadings synonymous with a full- fledged court application and the oral arguments meant that the court if need be, if the justice of the case so demanded would issue a final order instead of a provisional one.

On the first issue the court, dismissed the preliminary point as not fatally defective. Although there is need for legal practitioners to be meticulous and thorough in their legal drafting emphasis should not be placed on form rather than in substance. There was an admitted oversight due to the urgency of the matter against the backdrop of the legal history of this case. It had been said time and again that courts and the interests of justice should not be fettered by rules which are meant to guide but not to enslave the courts. I share the sentiments of CHITAPI J, in the case of Offer Svan v Gilad Shabtai & 2 Ors HH650/21, where similarly the certificate of urgency was not dated. The judge expressed that, the certificate of urgency expresses an opinion of the legal practitioner that the matter is urgent. He stated that, the judge should, as such, not strike out or dismiss an urgent application on the basis of want of form. Where the urgency is clearly spelt out in the founding affidavit then the court in the interests of justice should not be detained by the certificate of urgency unless it is fatally defective. See, Infralink (Pvt)Ltd v The Sheriff Of Zimbabwe NO & 2Ors HH07/19.

Coming to the second issue, it is crucial to note the rules of the court are procedural law. They are law just as substantive law borne in Statutes, judicial precedents and any other sources of law. Though the courts have the sanctioned liberty particularly in Rule 7 of the High Court 2021 rules, to condone the infraction of the rules or waive some in the interests of justice it does not make them a lessor law.  In the present case, the provisions of rule 26 of the Magistrates Court Civil Rules 2019 are straight forward.

Order 26 of the said rules states that,

The process for the execution of any judgment for:-

The payment of money;

The delivery of goods or premises; or

Ejectment;

Shall be a warrant issued by the clerk of court and addressed to the messenger.

GWAUNZA J, as she then was, as she then was, in the case of Mlanga v Sheriff 1999(1) ZLR 276(H), speaking to the then rules of the High Court pronounced that;

‘In as much as the Deputy Sheriff cannot attach property in execution unless there is a judgment that has to be satisfied, he cannot attach the property in question without a writ of the execution.’

It is my considered view that the same applies mutatis mutandis to the Magistrates Court process. A writ is issued through the clerk of court. A messenger of Court acts through a warrant issued of court. Order 26(1)(c) makes reference to issues of ejectment. The 2nd respondent ejected the applicants and all those who occupied through him without a writ issued out of Court. He acted through a letter issued out of a lawyer’s office. That was not due process.

INNES CJ, in Nino Bonino v de Lange 1906 TS 120 at 122 remarked:

“It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and or against his consent of the possession of property, whether movable or o immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.’

In the above dicta, the Chief Justice was making reference to a spoliation order but the import of the statement has the same effect to unlawful acts of despoliation where the court order though lawful was not enforced lawfully. It is common cause that the lower court had issued a final order for spoliation. A necessary step of a writ being issued out of the clerk of court was not followed. The 2nd respondent though the official who is entrusted with the execution of court orders was a part to the suit, he had no mandate. His mandate came from a writ.  A spoliation order is a court judgment and process it should be accompanied by writ for its execution. The 1st respondent’s argument of expressio unius est exclusio atterius which was well explained in the case Allied Bank Ltd v Dengu & Anor SC 503/2013 does not apply as s23 of the same Act [Chapter 7:06] specifically mentions that process is issued out of court and maybe served through the Messenger of the court out of which process is issued or through any other messenger. That is s23 (2) of the Magistrates Court Act serves to underscore that court process is executed by the Messenger of court.  Further, I agree with Mr Mutsvairo for the applicant that most of the procedures of giving a notice and specific timelines upon which to execute a court order after the issuance of a writ as outlined in order 26 were not complied with.

Anything done outside the scope of the law is a legal nullity. In Mcfoy v United Africa Co. Ltd1961(3) All ER 1169, the court remarked:

“If an act is void then it is in law a nullity. It is not only bad but incurably bad……and if the proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Lastly, section 14 of the High Court Act [Chapter 7:06] states that;

“The High Court may in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.’

See, Johnsen v Agricultural Finance Corporation 1995(1) ZLR 65.

In this case, I have already found it befitting to exercise my discretion and enquire into the existing rights of the applicant which had been infringed through an unlawful procedure or act. The parties were given the opportunity to fully ventilate their case both orally and in writing.  The nullification of the unlawful act is of a final nature. The requirements of a declaratory relief have been met.  I am fortified on this stance by the case of Ilasha Mining (Pvt)Ltd and Yakatala tradings (Pvt)Ltd t/a Viking Hardware Distributors HB03/18, where, MAKONESE J, found it appropriate to grant a declaratory order in an urgent chamber application.

However, the costs as prayed by the applicant are not justified given the protracted legal battles between the parties.

Accordingly,

It is ordered that:

The 1st respondent’s actions of instructing the 2nd respondent to execute an order of the Magistrates Court under CHnCG15/21 through a letter dated 8 October 2024 and the subsequent action by the 2nd respondent of executing the court order without a writ of execution are declared unlawful, invalid and are set aside.

The 2nd respondent’s action to eject and remove the applicant and all those who occupied through him from Stand 13586 Glasglow Road, Industrial Site, Chinhoyi without a warrant issued by the clerk of court, is unlawful, of no force or effect and must be set aside.

2nd Respondent to restore possession or access and use of Stand 13586 Glasglow Road, Industrial Site, Chinhoyi to the Applicant within twenty-four (24) hours of this order. The Status quo ante to be restored.

Respondent shall bear the cost of suit.

Mushonga, Mutsvairo & Associates, the applicant’s legal practitioners

Muchengeti & Company, the 1st respondent’s legal practitioners