Ntaba Insinga (Pvt) Ltd v Godfrey Kazangarare & 2 Ors

### Preamble
1
HMA 42-19
HC 338-19
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NTABA INSINGA (PVT) LTD.

vs

GODFREY KAZANGARARE

And

MARY KAZANGARARE

And

THE MESSENGER OF COURT – GWERU N.O.

And

THE REGISTRAR OF DEEDS, N.O.

HIGH COURT OF ZIMBABWE

MAWADZE J

MASVINGO, 20TH  & 27TH September, 2019

Urgent Chamber Application

I. Mupfiga & W.T. Davira for the applicant

M. Jaravaza for the 1st and 2nd respondents

No appearance for the 3rd and 4th respondents

MAWADZE J:  	In this Urgent Chamber Application the applicant seeks interim relief in the following terms;

“INTERIM RELIEF GRANTED

Pending the confirmation of the final order, this Provisional Order shall serve as Interim Order interdicting and directing that:-

Pending the return date, the sale in execution of remainder of Thornhill, Gweru, measuring 217,1655 hectares and held under Deed of Transfer 2540/91 dated 7th of June 1991 be and is hereby stopped.

SERVICE OF THE PROVISIONAL ORDER

Service of the Urgent Chamber Application and the Provisional Order will be through the Additional Sheriff for Gweru or the applicant’s legal practitioners or their clerk.”

The term for the final order sought are couched as follows:-

“TERMS OF FINAL ORDER SOUGHT

That the respondents show cause why a final order should not be made in the following terms:-

That the 3rd respondent be and is hereby interdicted from selling the remainder of Thornhill, Gweru, measuring 217,1655 hectares and held under Deed of Transfer 2540/91 dated 7th of June 1991.

That applicant be and is hereby ordered to allocate an alternative residential stand measuring 4000 square metres to the 1st and 2nd respondents within 14 days of this order.

In the event that paragraph (b) is not met, that 1st and 2nd respondents be and are hereby ordered to execute on the movables of the applicant first and obtain a nulla bona return of service before proceeding to attach the applicant’s immovable property.

That each party bears its own costs.”

Before even dealing in much detail with the Urgent Chamber Application one is tempted to comment, albeit in passing, on the terms of the final order sought despite that at this juncture this court is and should be concerned with the terms of the interim order sought. Paragraph (a) of the final order sought completely seek to shield applicant’s immovable property from any attachment by the 1st and 2nd respondents irrespective of the circumstances. Paragraph (b) of their final order sought simply regurgitates an order already granted by the Magistrates Court which is extant save that this time applicant wishes to be given a time limit of 14 days to act. One wonders why this is necessary. As per paragraph (c) applicant seems to want to have its cake and eat it by binding 1st and 2nd respondents to first hunt for applicant’s unspecified movable property at unspecified place or address and that if that effort is futile after obtaining a nulla bona return of service then proceed to attach some immovable property which again is not specified. Indeed this probably explains why during the hearing the applicant frantically tried to amend the terms of the final order sought by the deletion of paragraphs (b) and (c) and in its place inserting a clause that applicant should instead pay the 1st and 2nd respondents the sum of US$47 241.58 which was due as at 30 June, 2019 at the prevailing interbank rate at the date of payment in form of RTGs dollars within 180 days from date the court granting the final order would have so decided and that interest be payable at the prescribed rate of 5% with effect from 30 June 2019 to date of full and final payment. Lastly applicant said only if that fails then 1st and 2nd respondents would have recourse to the order granted by the Magistrates Court; which order is still in the alternative. Again these legal gymnastics are surely a merry go round which is not for the faint hearted as 1st and 2nd respondents are likely to feel dizzy in the process!

Background facts

This matter is better understood by first outlining the background facts in some detail.

Applicant alleges that it is a property developer and is in the business of selling residential stands in Gweru.

Applicant is the registered holder of title of the remainder of Thornhill, Gweru, measuring 217, 1655 hectares held under the Deed of Transfer 2540/91 dated 7 June 1991.

The 1st and 2nd respondents are husband and wife respectively. The 3rd and 4th respondents are simply cited in their official capacities.

On 2 December 2002 the 1st and 2nd respondents entered into an agreement of sale with the applicant of a certain immovable property described as Stand No. 3 being an undeveloped Stand measuring 4000 m² and ostensibly being part of the remainder of Thornhill, Gweru referred to supra for $500 000. It was known as stand No. 141 or stand No. 3. Apparently there were problems between the parties arising from this first agreement of sale dated 2 December 2002 and the parties entered into another agreement of sale dated 30 November 2015 on almost similar terms and conditions in which they consented to the jurisdiction of the Magistrates Court in case of any dispute. This second sale of the residential stand was still plagued with problems. This caused the 1st and 2nd respondents to institute proceedings to the Gweru Magistrates Court against the applicant in May 2017 alleging non delivery of the said stand Number 141. The applicant did not bother to defend the suit. As a result, a default judgment was granted on 4 July 2018, and the parties agreed that the terms of that default judgment are as follows: -

That applicant was ordered to allocate stand number 141 of subdivision of the remainder of Thornhill, Gweru, which stand measures 4 250 m² to the 1st and 2nd respondents.

That in the event of applicant failing to comply with paragraph (1) above the applicant was compelled within 7 days from 4 July 2018 to allocate to 1st and 2nd respondents a serviced replacement residential stand fully compliant with City of Gweru subdivisions and by laws, of the same size and value in the same area, subject to the physical inspection and satisfaction of the 1st and 2nd respondents’ appointed agent.

That if applicant fails to comply with paragraphs (1) and (2) above the applicant was to pay US$42 500 in lieu of the stand to 1st and 2nd respondents being the market value of the stand and applicant was to pay the interest at the prescribed rate of 5% per annum from the date of summons to the date of full and final payment together with costs of suit.

Apparently nothing materialised again. On 29 May 2019 a warrant of execution against property was issued by the Gweru Magistrates Court now in the sum of US$44 820,55. What is important to note on the warrant of execution is paragraph (3) of that warrant of execution which states as follows: -

“The only immovable property upon which this warrant may be executed is a certain piece of land situate in the District of Gwelo being the remainder of Thornhill, measuring 217, 1655 hectares held under the Deed of Transfer Number 2540/91 dated 7 June 1991.”

The notice of attachment of the said immovable property was issued on 7 June 2019. The conditions of sale were issued out of Gweru Magistrates Court on 7 August, 2019 and received by the applicant on 8 August 2019. Thereafter the sale of the said immovable property was set for 21 September 2019. This imminent sale in execution caused the applicant to then approach this court through the Urgent Chamber book on 18 September, 2019 seeking the aforesaid interim order to stop the sale.

The applicant in support of the interim order sought attached the following correspondence between the applicant and 1st and 2nd respondents’ legal practitioners;

a letter by the applicant dated 26 August 2014

a letter by the applicant in which applicant offered 1st and 2nd respondents stand Number 7 as a replacement

a letter by applicant dated 3 September 2019 in which the applicant still insisted that it was keen to provide replacement stand and that it was willing to pay endowment fees and all legal costs and that the 1st and 2nd respondents should therefore not proceed with the said sale of the immovable property already attached

letter dated 4 July 2019 in which applicant was inquiring on the offer it made to 1st and 2nd respondents

the letter by 1st and 2nd respondents’ legal practitioners dated 16 September 2019 indicates that the sale was proceeding

In its founding affidavit the applicant’s representative stated that the applicant has to seek urgent interim relief to stop the sale of the said property for number of reasons as it was clear to applicant that the 1st and 2nd respondents were pursuing the sale by instructing the 3rd respondent to sell in execution the entirety of applicant’s property measuring 217,1655 hectares to satisfy the outstanding debt of a single stand measuring about 4000m² valued at US$42 500. The applicant averred that this sale should not proceed because of the following reasons;

applicant alleges that this entire immovable property under attachment comprises of subdivided residential stands in excess of 370 each measuring about 4000m² and that an unspecified number of these stands have already been sold to other 3rd parties who have started construction on the said stands awaiting the subdivision of these pieces of land and that transfer into their names.  The applicant’s argument is that the 1st and 2nd respondents have an interest only in respect of such one stand measuring about 4000 m² and that the rest of the stands belong to 3rd parties

it is applicant’s case that the immovable property attached and sought to be sold in execution is held under Deed of Transfer number 2540/91 and measures 217,1655 hectares with a market value in excess of US$10 million, which amount far exceeds the 1st and 2nd respondents’ claim of merely US$42 500. As a result, it is unreasonable and disproportionate to proceed with such a sale.

the applicant contends that the sale in execution is irregular at law as the 1st and 2nd respondents did not first put the applicant in mora by demanding reimbursement

the applicant alleges that this imminent sale in execution is plagued with a number of irregularities outlined as follows. Firstly, that the law requires the 1st and 2nd respondents to have first have sought to attach applicant’s movable property to satisfy the debt before proceeding against the said immovable property. Secondly, that the 1st and 2nd respondents did not comply with the provisions Order 26 Rule 8(2)(d) and (e) of the Magistrates Court (Civil) Rules 2018 which enjoins them to proceed with the sale only after serving the 3rd parties in occupation of the attached immovable property, the responsible authority being the City of Gweru and the Registrar of Deeds with the warrant of execution. As a result, of such an omission, applicant argues that the anticipated sale is a legal nullity due to the fatal irregularity

it is applicant’s case that as per the letter from the Surveyor General dated 8 February 2002 the said immovable property has already been subdivided (see Annexures L and M1 – 10). The applicant submits that if this whole immovable property is sold irreparable harm would be occasioned to 3rd parties as the new buyer would take transfer of the whole property after the sale in execution hence the 3rd parties would lose that properties. This would in turn expose the applicant to a floodgate of unnecessary litigation by innocent 3rd parties. In that vein therefore the balance of convenience favours granting interim relief by stopping the sale.

lastly the applicant avers that both the applicant and the 3rd parties have no other remedy to protect their interests in this immovable property now under attachment. As proof that 3rd parties have such interests applicant attached photographs at page 57 – 60 as proof of existence of such 3rd parties and the developments they are carrying out on the said immovable property on each 3rd party’s stand.

What I have outlined above summarises the basis for this Urgent Chamber Application and the interim relief sought by the applicant as can be gleaned from the founding affidavit and the Annexures attached thereto.

Mr Jaravaza for the 1st and 2nd respondents took a point in limine to the effect that this matter is not urgent. I now turn to this point in limine and decide whether it has merit.

Point in limine – urgency of the matter

The law on what constitutes urgency in cases of this nature is very clear. The locus classicus is the case of Kuvarega v Registrar General & Anor. 1998 (1) ZLR 188 especially at 188 F (H); see also Madzivanzira v Dexprint Investments (Pvt) Ltd & Anor. 2002 (2) ZLR 316 (H) per NDOU J: Document Support Centre v Mapuvire 2006 (2) ZLR 240 (H) (per MAKARAU JP as she then was); Gifford v Mazarire & Ors 2007 (2) ZLR 131 (H) at 134 – 135 (per KUDYA J.).

In the case of Denenga & Anor. v Ecobank |(Pvt) Ltd and 2 Ors HH 117/14 at page 4 of the cyclostyled judgment I made an attempt to sum up what constitutes urgency as follows;

“The general thread which runs through all these cases is that a matter is urgent if;

it cannot wait the observance of the normal procedural and time frames set by the rules of court in ordinary applications as to do so would render nugatory the relief sought

there is no other remedy

the applicant treated the matter as urgent by acting timeously and if there is a delay to give good or sufficient reason for such a delay

the relief sought should be of an interim nature and proper at law.”

I now proceed to apply this general principle to the facts of this case to ascertain whether indeed this matter is urgent. In doing so I shall consider a number of factors.

The apparent delay

The history of the matter which I have already outlined in some detail shows that the applicant became aware of the notice of attachment of this immovable property on 13 June 2019. This was after a default judgment has been granted almost a year before on 4 July 2018. This Urgent Chamber application was only lodged on 18 September 2019 after a delay of 97 days from 13 June 2019. This was to stop the scheduled sale in execution scheduled 3 days later on 21 September, 2019. The applicant’s explanation for this delay is that the applicant believed that an amicable settlement could be reached between the parties through engagements and circumvent the sale of the immovable property. The applicant went on to attach certain letters which I have already alluded to as proof of this positive engagement between the parties. I am however not persuaded by this submission at all. To start with all the letters attached by the applicant are almost all written by the applicant’s legal practitioners to the legal practitioners for the 1st and 2nd respondents and not the other way round. In my view letters from the 1st and 2nd respondents’ legal practitioners would show evidence of such positive engagements and possibly explain applicant’s inaction for such a long time. In fact, Mr Jaravaza produced letters he wrote to applicant’s legal practitioners showing clearly that there were no such fruitful discussions or that 1st and 2nd respondents had acceded to the applicant’s request to settle the matter. It is therefore clear to my mind that the applicant did not treat this matter as urgent. Applicant did not act timeously but waited for the doomsday and mounted this application just 48 hours before the sale. This is not the urgency contemplated by the Rules of this court. Other than that the applicant was simply sunbathing no good or sufficient reason has been given for such an inordinate delay. This is a classic case of self-created urgency. No wonder why applicant had a default judgment granted against it in the Magistrate Court in 2018. The applicant simply waited for the day of reckoning to rush to court alleging urgency in this matter.

Alleged Prejudice to 3rd parties

The applicant’s case is anchored on the premis that interim relief should be granted as the sale in execution would be prejudicial to innocent 3rd parties who have no other remedy.

The question which looms large in the mind of this court is whether indeed it has been shown as a fact that there are indeed such 3rd parties. The applicant has merely made mere averments as regards their existence. The applicant concedes that no supporting affidavits are attached from the said 3rd parties. Shockingly the applicant relies on some meaningless photographs or pictures on page 57 – 60 of the record of proof of the existence of such 3rd parties. Does the applicant seriously believe that this court can repose its trust in the applicant as regards the existence of such 3rd parties on the basis of such meaningless photographs? Why, for an example were the 3rd parties not joined to this application?

What I find amazing is that the so called 3rd parties are not mentioned by name. No Stand is specifically mentioned by number as having been allocated to any specific 3rd party. No physical address of any 3rd party is given. To cap it all such third parties, have no supporting affidavits nor were they joined in this application. The applicant’s founding affidavit proffers no explanation for this omission. The applicant’s legal practitioners in their oral submissions remained mum as regards this omission.

Another important observation is that the applicant attached a number of Annexures to its founding affidavit but failed to attach any surveyed diagram for the said 3rd parties. There is no certificate of compliance from the City of Gweru in respect of stands allocated to the said 3rd parties. Surprisingly applicant could not simply attach agreements of sale in respect of such 3rd parties. Given all this one is left to wonder if the applicant is not simply fabricating the existence of such 3rd parties in order to justify so called irreparable harm or prejudice or absence of any other alternative remedy. After the notice of attachment, it appears no 3rd party approached the Messenger of Court or 1st and 2nd respondents’ legal practitioners to voice concern of the attachment of this immovable property.

At the end of the day what is clear and irrefutable is that this attached immovable property is still being held under one or single title deed. This means no sub division at law has been undertaken. Given this scenario how then are the 1st and 2nd respondents expected to attach a smaller piece of this immovable property? The existence of 3rd parties and the resultant irreparable prejudice if this matter is not dealt with immediately is clearly in serious doubt.

It cannot seriously be argued that the applicant and or so called 3rd parties have no other alternative remedy. A judicial sale is a long process which should conform to laid out procedures. Remedies are also provided. Reference is made to Order 26 Rule 8 of the Magistrates Court (Civil) Rules 2018. The Provincial Magistrate has to confirm the sale. Any interested party can object to the sale within the prescribed period. The applicant conceded that such remedies are available but believes they are simply an inconvenience to the applicant and or the so called 3rd parties. What escapes the applicant’s mind is that there is an extant order of the court which remain unsatisfied.

Alleged misrepresentations and falsehoods

Mr Jaravaza for the 1st and 2nd respondent argued that the alleged urgency in this matter is vitiated by misrepresentations and falsehoods made by the applicant.

Indeed, it is trite that urgency premised on misrepresentations and or falsehoods is not the urgency contemplated by the Rules of this court. In the case of Graspeak Investments (Pvt) Ltd. v Delta Operations (Pvt) Ltd & Anor 2001 (2) ZLR  551 (H) at 550 D – E NDOU J said;

“The court should, in my view, discourage urgent applications, whether exparte or not, characterised by material non disclosures, mala fides, or dishonesty. Depending on circumstances of the case, the court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on part of litigants. In this case applicant attempted to mislead the court by not only withholding material information but by also making untruthful statements in the founding affidavit ------------------------------. I find the application not urgent and dismiss the application on that basis.”

In casu the applicant falsely alleged in the founding affidavit that the Messenger of Court did not serve both the Registrar of deeds and the City of Gweru with notice of attachment (see paragraph 20 of the founding affidavit). Such proof of service was availed. The argument that 3rd parties were also not served with notice of attachment is simply a ruse because the address of such 3rd parties is not even stated. The truth of the matter is that the Registrar of Deeds was served on 30 June 2019 and the City of Gweru on 29 June 2019.

It is incorrect for the applicant to allege that it should first be placed in mora before the immovable property is attached. Such an argument is misleading as the 1st and 2nd respondents are executing a court judgment.

It is untrue that the Messenger of Court should have provided a nulla bona return of service before attaching the immovable property. There is no such provision in the Magistrates Court (Civil Rules) 2018 see Order 26 Rule 8.

The applicant is also misinterpreting s 20(1) of the Magistrates Court Act, [Cap 7:10] by insinuating that the 1st and 2nd respondents were obliged to attach movable property first before attaching any immovable property. The writ issued (see page 32 of the record) is very clear in paragraph 3 on the instruction given to the Messenger of Court. It states as follows;

“The only immovable property upon which warrant may be executed is a certain piece of land situate in the District of Gwelo being the remainder of Thornhill, measuring 217,1655 hectares held under Deed of Transfer No. 2540/19 dated 7 June 2019.”

In any case the applicant in the founding affidavit does not even identify the alleged movable property to be attached first, its value or where it can be found. By making such an allegation applicant is simply raising a ruse or pointing to a pie in the sky.

It is not a sound argument at law that the subject of sale is disproportionate to the debt. What is the proportionate property applicant expects 1st and 2nd respondents to attach? What is its address, size or value? As already mentioned there is just one title deed to this immovable property hence this argument is not made in good faith. If indeed applicant is genuine it can also take part in such a sale and outbid all other persons or simply pay out to 1st and 2nd respondents what is due.

The applicant in its representations is clearly misleading the court. One is left wondering whether the applicant is seeking justice or its rather charity or mercy. It is clear that the applicant has made misrepresentations in its founding affidavit. I am left wondering whether the 1st and 2nd respondents may not have been sold bottled smoke like the so called 3rd parties who have no title or Surveyor General diagram for each stand or agreement of sale relevant to each 3rd party.

The totality of all the facts in this case clearly show that this matter is not urgent. There is therefore no basis to deal with the merits of this case.

In the result, I make the following order.

IT IS ORDERED THAT

The matter be and is hereby struck off the roll of urgent matters

The applicant shall pay the costs.

Gundu Dube & Pamacheche, applicant’s legal practitioners

Dzimba, Jaravaza & Associates, 1st and 2nd respondents’ legal practitioners