Upperclass Alarms AND Securities (Private) Limited AND Jerome Okeke V Queen OF Kings Enterprises (Private) Limited AND Deputy Sheriff AND Messenger OF Court

### Preamble
1
HH 136/2012
Ref Case HC 7233/11
SC 177/11
UPPERCLASS ALARMS AND SECURITIES (PRIVATE) LIMITED
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UPPERCLASS ALARMS AND SECURITIES (PRIVATE) LIMITED
and
JEROME OKEKE
versus
QUEEN OF KINGS ENTERPRISES (PRIVATE) LIMITED
and
DEPUTY SHERIFF
and
MESSENGER OF COURT

HIGH COURT OF ZIMBABWE
CHITAKUNYE J
HARARE, 12 August 2011

URGENT CHAMBER APPLICATION

T.R. Hove for 1st and 2nd applicants
O. Takaindisa for 1st respondent

CHITAKUNYE J. The second applicant is the managing director of the first respondent. The first respondent is a duly incorporated company in terms of the laws of Zimbabwe.

The first respondent is also a duly incorporated company in terms of the Laws of Zimbabwe.

The applicants approached court seeking an order restoring them to the premises they had been occupying. The facts giving rise to this application were that - on 02 August 2011, the first respondent was granted a Final order against the second applicant in a matter between Queen of Kings Investments (Private) Limited and Jerry Okeke in HC 7233/11. In that order the third respondent was cited and ordered to restore the first respondent to the premises known as 9 Nelson Mandela Way, Harare.

On 03 August 2011, applicants filed a notice of appeal against the order in HC 7233/11. Despite the noting of appeal the first respondent was restored to the premises.
 The applicant challenged the restoration of the first respondent to the property in execution of an order he had appealed against. It is then that he approached court on this application.

The first respondent’s position was basically that restoration took place before 3rd respondent had been served with the Notice of Appeal. In short the first respondent acknowledged that the appeal would have suspended the execution of the order had it been served before execution.

From the submission made it is not disputed that 1st respondent obtained an order against the second applicant in HC 7233/11 and not against the first applicant. The second applicant appealed against that order before execution. I did not hear it denied that such appeal suspended the operation of the order granted. Despite this, the second respondent went on to execute the order by restoring possession to the first respondent. Avertments in the founding affidavit and supporting affidavits relating to the time the Notice of Appeal was served on the respondent’s shows that at the time of execution the first and the second respondent were aware of the Notice of Appeal. They thus proceeded to execute an order they knew had been suspended by the noting of the appeal. The respondent’s contention that the officer who went to execute was not aware of the Notice of Appeal is not valid. Clearly the Notice of Appeal was properly served on both the first and the second respondents before execution of the order appealed against as evident from the documents filed of record.

The question is:-

“what is the effect of enforcing an order that is suspended by operation of law?”

It is my view that to allow the execution to stand would encourage such conduct of defiance. The situation must be reversed. The first applicant should not be denied the opportunity to fight its case in court. The non-citing of first applicant in HC7233/11 may have been fatal to the enforcement of an order that adversely affected it.

I am of the view that applicants have made a case for the relief they seek as amended.

Accordingly the interim relief is hereby granted as follows:-

It is hereby ordered that pending the finalization of this application:

1) It is hereby declared that the Notice of Appeal filed in the Supreme Court of Zimbabwe, SC 177/11 suspends the operation of the final order granted in chambers by the
 Honourable JUSTICE GOWORA in the High Court of Zimbabwe at Harare in the case of Queens Enterprises (private) Limited and Jerry Okeke case Number 7233/11.

2) The first and the second respondents immediately restore possession of the premises known as 9 Nelson Mandela Avenue, Harare to the first Applicant, with the use of a locksmith if necessary.

3) The second respondent be and is hereby ordered to restore possession of the premises known as 9 Nelson Mandela Avenue, Harare to the first applicant immediately.

4) The noting of an appeal by the respondents shall not suspend the operation of this order.

5) The Applicant’s legal practitioners are hereby granted leave to serve this order upon the respondents.

T. R. Hove and Associates, applicants’ legal practitioners
Bherebende Law Chambers, 1st respondent’s legal practitioners
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