Philemon Freeborn Sigauke v The Trustees of the Bovita Family Trust and Registrar of Deeds N.O.

### Preamble
1
HH 610-18
HC 8703/18
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PHILEMON FREEBORN SIGAUKE

versus

THE TRUSTEES OF THE BOVITA FAMILY TRUST

and

REGISTRAR OF DEED N.O.

HIGH COURT OF ZIMBABWE

MUZENDA J

HARARE, 27 September and 10 October 2018

Urgent chamber application

C Daitai, for the applicant

P Chiutsi, for the respondent

MUZENDA J: This is an application where the applicant seeks the following:

“TERMS OF FINAL RELIEF SOUGHT

Execution of default judgment under HC 6771/18 be and is hereby stayed pending determination of HC 8632/18

1st respondent to pay costs of suit

TERMS OF THE INTERIM RELIEF GRANTED

That pending the determination of this matter on the return day, the applicant be and 	is 	hereby granted the following relief:

Pending the return date, transfer of stand 456 Prospect Township of Stand 85 of Prospect from the applicant to the 1st respondent in execution of HC 6771/18 be and is hereby stayed.

1st respondent to pay costs of suit

SERVICE OF THE PROVISIONAL ORDER

Leave is hereby granted to the applicant’s legal practitioners to serve a copy of this Order upon each of the respondents”

BACKGROUND

On the 20th July 2018, the first respondent instituted legal proceedings against the applicant under HC 6771/18 where the first respondent sought an Order compelling the applicant to transfer stand 456 Prospect Township of Stand 85 of Prospect to him. According to the first respondent the parties had entered into an agreement of sale of the property and had paid the purchase price in full. On the 23rd July 2018 the first respondent allegedly served the application on one Crispen and using a certificate of service certified by a legal practitioner the first respondent applied for default judgment which was granted by MATHONSI J, on 12 September 2018 and the following order was granted:

“IT IS ORDERED THAT:

The first respondent be and is hereby ordered to sign all relevant documents for the transfer of a certain piece of land situated in the district of Salisbury called Stand 456 Prospect, measuring 5325 square metres into the applicant’s names within seven (7) days of service of this order upon him, failing which the Sheriff of the High Court be and is hereby directed to sign all relevant documents for the transfer of the property to applicant.

The first respondent shall pay the costs of suit on an ordinary scale.”

On 17 September 2018, the first respondent through his lawyers wrote a letter to the

applicant demanding that he signs the transfer documents and attach the court order in default under HC 6771/18. That was the date applicant became aware of the default judgment.

On 21 September 2018 applicant filed an application for rescission of judgment under case HC 8632/18 and the first respondent confirms that it had received a copy of that application. Pending the setting down of that application for rescission of judgment, applicant filed the current application seeking a provisional order spelt out above.

The application is opposed. First respondent raised two points in limine. It challenged the nature of the provisional order as being identical to the final order sought which effectively seek to stop the order for transfer, as a result of that the application is defective because the provisional order has an effect of a final order.  The interim order is couched in the shape of a final order. First respondent prayed for the dismissal of the application on that ground alone.

The second point in limine was that the applicant had not established that the matter is urgent. According to the first respondent on 20 June 2017 applicant wrote a letter to first respondent giving first respondent 30 days to remedy a breach of non-payment of the balance outstanding, else applicant would cancel the contract. Applicant did not proceed in terms of clause 8 of the agreement of sale from 20 June 2017 to date, applicant did not do anything to effect his rights for a period of over a year to cancel the agreement of sale. During that time he has received payments from the first respondent. As late as 22 January 2018 applicant’s lawyers wrote to his agent to collect the purchase price. Applicant has not paid back the money, the $135 000 purchase price and he enjoys both the money as well as the rentals. From January 2018 he did nothing till 17 September 2018 when he received the order.

On the other hand the respondent argued that the nature of provisional order being sought by the applicant was effectively an interdict and applicant has not set out the requirements of an interdict. A court should not grant an interdict against a lawful conduct and the first respondent should be allowed to proceed with execution of an order lawfully granted. In any case there are various remedies open to the applicant emanating from the agreement of sale, more particularly clause 8 if there was urgency, first respondent added it was self-created.

In response, the applicant submitted that there was indeed urgency emanating from the first respondent’s letter of 17 September 2018 where it had clearly indicated that the applicant should sign transfer papers. Now that there is an application pending for rescission of judgment an order suspending execution of that judgment should be granted. Applicant added that the order being sought is competent and its not an interdict application. Until the application for rescission is finalised the process of the transfer should be stayed.

Both points in limine are dismissed, the first respondent, during the hearing of the application openly admitted that even having received the application for rescission of judgment it is still desirous of proceeding with the execution of a judgment granted in default. The applicant has managed to lay grounds for urgency and parties were directed to address the court on the merits of the application.

The applicant submitted that first respondent obtained a judgment in default but had not properly served the applicant. First respondent was aware that applicant was legally represented by Messrs Mubangwa and Partners Legal Practitioners but chose not to serve the papers on them. The applicant denies that he employs Crispen and did not receive the papers from a responsible person. He later got the papers from a letter box and instructed his legal practitioners to oppose the application and they did so on the 8 August 2018 albeit belatedly.  He denies that he was in wilful default and has a bona fide defence to the application.  To the best of applicants knowledge the agreement of sale was cancelled on 20 June 2017 and the first respondent did not purge his breach.  The applicant also submitted that he cancelled the agreement and that is why he could not collect the balance from the agent Guest and Turner Real Estate (Pvt) Ltd.  The prospects of success on the rescission of judgment were high, applicant averred.  It prayed for the granting of the interim order with costs.

The first respondent submitted that the applicant was in wilful default.  He was properly served and Mr Albert Masango the messenger who served Chrispen with the papers had no motive to lie that he had served him when he had not.  He urged the court to accept that form of service as proper.  On the prospects of success on the application for rescission of judgment, first respondent contended that there are no prospects at all, the applicant is just abusing the court. The applicant did not follow the procedure for cancellation of the agreement of sale and had not acted in terms of clause 8 of the agreement of sale.  He opted to abide by the submissions made on the points in limine as well for this aspect.  He added that he has fully paid up the purchase price and was entitled to transfer of the property into its name.  To the first respondent the balance of convenience favours transfer and it prayed for the dismissal of the application with costs.

The following appear to be issues of common cause:

When the respondent obtained a default judgment in its favour, the applicant had not been personally served.

The applicant, when he became aware of the application, he instructed his legal practitioners to file opposing papers and they were duly served on the 8 August 2018.

The applicant has since filed an application for rescission of judgment and the first respondent has already been served.

If the execution is allowed to proceed and the applicant eventually succeeds in his application, such a success will be a brutum fulmen

I am satisfied that the applicant has met the requirements of an urgent chamber application for a stay of execution and the balance of convenience favour that the execution of the default judgment be stayed until the completion of the application for rescission of judgment under case no. HC 8632/18 is dispensed with.  Accordingly the following order is granted.

Pending the determination of an application for rescission of judgment under case no. HC 8632/18, execution of default judgment under case no. HC 6771/18 be and is hereby stayed.

Costs of this application be costs in the cause

Magwaliba &  Kwirira, applicant’s legal practitioners

P. Chiutsi legal practitioners, 1st respondent’s legal practitioners