Christ Embassy Zimbabwe v Chidziva Investments (Pvt) Ltd

HH 21/11
                                                                               HC 811/10
CHRIST EMBASSY ZIMBABWE
versus
CHIDZIVA INVESTMENTS (PVT) LTD


HIGH COURT OF ZIMBABWE
CHATUKUTA J
HARARE, 30 September 2010 & 19 January 2011


Opposed Matter


L Mazonde, for the applicant
B Chidziva, for the respondent

       CHATUKUTA J: This an application for rescission of a default judgment granted
by this court on 28 October 2009 in case No HC 3672/09.
       The background to the application is that the respondent entered into an oral lease
agreement with a satellite church of the applicant in Mufakose to lease Chidziva
Building, Mufakose (the premises). One Stowell Mupanguri, the applicant’s Deputy
Governor responsible for finance negotiated the agreement on behalf of the applicant.
The satellite church took occupation of the premises on 15 November 2008. It failed to
pay rent leading to the respondent issuing summons on 14 August 2009 in case No. HC
3672/09. The respondent sought an order for the applicant’s eviction from the premises
and for arrear rentals in the sum of US$45 000 due from 1 November 2008 to 31 August
2009. The respondent also claimed holding over damages at a rate of US$5 000 per
month and costs of suit. The summons was served at the premises on 20 August 2009.
The applicant did not defend the suit and hence the default judgment. The order was
amended to reflect arrear rentals in the sum of US$30 000.
       The applicant alleges that it only became aware of the default judgment on 15
January 2010 when it was served by Deputy Sheriff with a Notice of Seizure and
Attachment, Notice of Removal and Writ of Execution at its head offices at corner
Bishop Gaul Avenue and Rekai Tangwena Road, Harare. On 20 January 2010, it filed an
urgent chamber application in case number HC 318/10 seeking an order for the stay of
execution of the default judgment. The following order was granted by consent:
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       “1. The applicant hereby withdraws its present application.
       2. The applicant shall file an application for rescission of judgment in case No. HC
           3672/09 before 1600 hours on 11 February 2010.
       3. The applicant consents to the amendment of the Defendant’s (judgment debtor’s)
           citation to Christ Embassy of Zimbabwe under case No HC 3672/09.
       4. The property attached by the Deputy Sheriff on 15 February 2010 shall remain under
           the judicial attachment pending the resolution of the Applicant’s application for
           rescission of judgment.
       5. Costs shall be in the cause.”


The applicant filed the present application in compliance with the above order.
       An application for rescission of judgment under r 63 of the High Court Rules,
1991 can only be granted where an applicant shows “good and sufficient cause”. The
words 'good and sufficient cause' have been construed in various judgments in this
jurisdiction to mean that the applicant must:
       (a)     give a reasonable and acceptable explanation for his/her default;
       (b)     prove that the application for rescission is bona fide and not made with the
               intention of merely delaying plaintiff's claim; and
       (c)     show that he/she has a bona fide defence to plaintiff's claim.
(see Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210,; Bishi v Secretary for
Education 1989(2) ZLR 240 (HC); Ndebele v Ncube 1992(1) ZLR 288(S); Dewera Farm
(Pvt) Ld & Ors v Zimbabwe Banking Co-operation 1997 (2) ZLR 47 (H) Zimbabwe
Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) and Apostolic Faith
Mission in Zimbabwe & others v Titus I Murufu SC 28/03). I will now deal with each of
the requirements in turn.
       The explanation that has been advanced by the applicant for the default is that the
summons was not served at its place of business and therefore it was not aware of the
suit. It was further contended that the applicant was not aware that its satellite church
was operating from the respondent’s premises.         I found it difficult to accept the
applicant’s latter contention that it was not aware that its satellite church was operating
from the respondent’s premises. It flighted an advertisement in The Herald for a “Super
Sunday Service” to be held at the premises on 15 March 2009. The contact details on
that advertisement are those of the applicant’s head office at corner Bishop Gaul and
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Rekai Tangwena Road, Harare.           In fact, Pastor Ruth, who is the deponent to the
applicant’s founding affidavit, attended service at the respondent’s premises. She cannot
therefore be heard to be saying that she was not aware that the applicant’s satellite church
was operating from the respondent’s premises.
          However, the fact that the applicant may have been aware that its satellite church
was operating from the respondent’s premises does not in my view translate to
knowledge that summons were served at the premises.              There is no evidence that
Mupanguri advised the applicant of the service of the summons. It appears that the
respondent was in fact aware that the applicant might not have received the summons
because although it served the summons at the respondent’s premises, the notice of
seizure and attachment was served at the applicant’s place of business at corner Bishop
Gaul Avenue and Rekai Tangwena. There was no explanation from the respondent why
service of the notice of attachment was not at the same address where the summons was
served.     The fact that the applicant may not have been aware of the summons may
therefore be true.     It is therefore my view that although the applicant’s officials at the
satellite church may have been aware of the summons and the set down of the application
for default judgment, the head office was in the dark.
          Further, it is common cause that an application for rescission of judgment had
been filed earlier on 2 November 2009 in case No. HC 5351/09 purportedly on behalf of
the applicant by Mupanguri.       The respondent opposed the application. However, it is
worthy to note that there is no mention of that application in the pleadings filed by both
parties in case No. HC 318/10. This is so despite the fact that Mupanguri purported to
having been acting not only in his personal capacity but also on behalf of the applicant.
He deposed that he was aware that summons had been served at the premises. An
appearance to defend was not entered because he had been assured by the respondent’s
director that the summons were only issued to speed up negotiations between the satellite
church and the respondent on the clearance of arrear rentals. He was surprised to be
advised on 26 October 2009 by the same director that the matter had been set down on
the unopposed roll of 28 October 2009.
          It is my view that the respondent’s conduct in not referring to the application is a
concession that Mupanguri did not have the authority to institute the proceedings on be
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half of the applicant in case No HC 5351/09.            I assume that this explains the
respondent’s consent to the order directing the applicant to file an application for
rescission by close of business on 11 February 2010. If my assumption is correct that the
satellite church proceeded to represent the applicant in litigation without authority, then
the applicant’s explanation for the default is reasonable and the applicant was therefore
not in wilful default.
         The applicant raised two main issues regarding whether or not it has a bona fide
defence to the claim and therefore the application for rescission is not intended to harass
the respondent and delay the inevitable. It firstly contended that it was wrongly cited in
case No. HC 3672/09. It was cited as Christ Embassy Church instead of Christ Embassy,
Zimbabwe. It stated that there is no such entity simply referred to as Christ Embassy
Church in Zimbabwe. I am perplexed at the submission made by the applicants in view
of paragraph 3 of the order in case No HC 318/10. The applicant consented to the
amendment of its citation in that case to reflect its proper name. It is not clear on what
basis it persists in arguing that it was not properly cited when it consented to the
amendment. It appears to me that the applicant was accepting that it was one and the
same as Christ Embassy Church and that the satellite church did not have a separate
persona from the applicant. It is therefore my view that the defence does not have any
merit.
         The second defence was that the parties never agreed to a monthly rental of US$5
000 claimed and awarded to the respondent. It was contended that the applicant had
offered to pay a rental of US$200 per month. The respondent argued that the rental was
US$5 000 as reflected by a handwritten endorsement on a letter dated 8 August 2008
written to it by the applicant.
         It is apparent from the communication between the parties that the applicant was
labouring under the impression that the rental was US$2 000 per month (and not the
US$200 referred to in the applicant’s heads of argument). In a letter dated 8 October
2008 written by Mupanguri, the applicant offered a monthly rental of US$2 000. In
another letter dated 25 August 2009 by one Mathew Kanganwayi, the applicant offered to
settle the arrear rentals in the sum of US16 000 by way of two instalments of US$8 000
each payable on 15 September 2009 and on 7 October 2009. Thereafter the applicant
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would pay a monthly rental of US$2 000. The last paragraph of the letter is further
informative. It reads:

       “We would have loved to accompany this letter with $2 000 (USD) as payment for this
       month’s rental, but we saw it wise to invest the $2 000 (USD) into the business ventures
       stated above so as to be able to raise the required finances to settle the arrears of $16 000
       (USD) and create solid and stable sources of finances towards the rentals of the building
       in subsequent months.”


       The letter referred to two meetings held between the representatives of the
satellite church and the respondent’s legal representative, Mr Chidziva prior to the letter
on 13 and 19 August 2009. The letter commences with an offer to settle a total of US$16
000 arrears. The amount tallies with rentals for 8 months starting from November 2008
when the respondent took occupation of the premises up to August 2009 when the letter
was written.     The meetings alluded to in the letter dated 25 August 2009 were held well
after that endorsement on the letter of 8 October 2008. Both letters were filed by the
respondent. There is no other letter from the respondent disputing the amounts reflected
in the two letters let alone denying the purported nature and discussions of the meetings
held between the parties on 12 and 19 August 2009.
       The above communication was not placed before the court in case No. HC
3672/09.    Of concern is the fact that the respondents were well aware of the
communication and the meetings held to resolve the impasse yet these were not brought
to the attention of the court. The respondent relied in its application to a letter of demand
dated 9 July 2009 stating that the rental was US$5 000 per month. The applicant did not
bring to the attention of the court that subsequent to the letter of demand, there were two
meeting held on 12 and 19 August and the letter dated 25 August 2009 which states a
different monthly rental of US$2 000.        Mr Chidziva, should have, as an officer of the
court, brought the information to the attention of the court. It appears that he had been
the respondent’s legal practitioner throughout the negotiations at the meetings held on 12
and 19 august 2009.         I find Mr Chidziva’s conduct to be injudicious under the
circumstances and borders on unethical conduct. I believe that had the court been made
aware by the respondent of the meetings and contents of the letter, it may not have
granted order.
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          The letter was only produced in the present case to show that the applicant was
not being truthful when it says that the parties had agreed to a rental of US$200 per
month. Unfortunately for the respondent, the letter is a double edged sword. It also
shows that the parties had not agreed to a monthly rental of US$5 000. I shall not venture
to hazard an explanation as to why the respondent withheld from the court such vital
information then and only produced it in the present case.
          It therefore appears to me that the applicant has prospects of success in so far as
the arrear rental due and the holding over damages are concerned.       I am therefore of the
view that it is equitable under the circumstances that rescission be granted.
          It would however be remiss of me if I do not comment on the attempt by the
applicant to mislead the court that the rental was US$200 as opposed to US$2 000. Mr
Mazonde strenuously argued that the rental was US$200. The applicant being a church is
supposed to be above reproach. Such misleading averments are therefore not expected of
it. I also found Mr Mazonde’s conduct to be deplorable given that he was advancing a
position not supported by the pleadings and the evidence filed of record. In fact he had
difficulties in justifying the contention that the rental was US$200 in view of the letters
referred to above that were written on behalf of applicant by officers at the satellite
church.     I only disregarded the averments as they were factual and had not been
specifically pleaded either in the founding affidavit or the answering affidavit. They only
appeared in the applicant’s heads of argument.


   In the result, it is ordered that:
   1. The judgment entered on 28 October 2009 in case No HC 3672/09 be and is
          hereby rescinded.
   2. The respondent shall pay the costs of this application.


Chibune & Associates, applicant’s legal practitioners
Kantor & Immerman, respondent’s legal practitioners