Delant Chasaya v Mark Engai Dzobo

### Preamble
1
HMT 66-20
CIV ‘A’ 13/20
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DELANT CHASAYA

And

MARK ENGAI DZOBO

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 23 September and 8 October 2020

Civil Appeal

V Chinzamba, for the Appellant

N Mungure, for the respondent

MUZENDA J: This is a civil appeal against the judgement of the court a quo which was handed down on 10 March 2020 at Mutare.

FACTUAL BACKGROUND

Sometime in February 2018 the respondent herein borrowed $3 500-00 from one Binali.Yard and the money was to be repaid in full at a later date. Respondent gave Binali Yard his motor vehicle a Mitsubishi canter as collateral. Once the debt was settled, the motor vehicle would be released to the respondent.

The respondent repaid Binali Yard and appellant a total of $16 204-00 and demanded back his motor vehicle. Appellant was now in possession of the motor vehicle. Both Binali and appellant refused to release the motor vehicle. On 27 November 2018 respondent made an exparte Chamber Application at Mutare Magistrate’s court seeking the release of the motor vehicle held by appellant. On 26 November 2018 the court a quo granted the order.

On 13 May 2019 appellant noted an appeal against the order of the Magistrate alleging that the Magistrate refused to hear the appellant and that appellant was in defiance of court order. Appellant also impugned the decision of the court in convicting him for contempt of court and sending him to prison. Appellant prayed for the setting aside of the Magistrate Court’s determination and that the matter be remitted for hearing on the merits.

On 1 August this court upheld the appeal, set aside the court a quo’s decision and also set aside appellant’s incarceration for contempt of court. The matter was to be heard on merits.

PROCEEDINGS OF THE COURT A QUO

When the appeal under case No HMT 63/19 was received by the court a quo, it proceeded with the original application on merits. The respondent persisted with his prayer that he gets back his motor vehicle, and he be paid $7 000-00 which he had overpaid the lender and appellant.

The appellant, who was second respondent in the court a quo raised preliminary points stating that the application was defective in the sense that the provisional order and final order sought were identical. The learned Magistrate dismissed the points in limine. The appellant was not yet done with objections, he contended that the application was riddled with material disputes of fact which could not be resolved on paper and required viva voce evidence through the testimony of witnesses.

After looking at the submissions of the appellant on the aspect of material disputes of facts, the court a quo held that they were indeed disputes of facts which cannot be resolved on the papers without the need to call witnesses. The court a quo then referred the matter to trial with the papers filed standing as pleadings. The lender Mr Binali Yard was in default and the court a quo granted the order against the lender as prayed for by the respondent.

Appellant dissatisfied by the order of the court a quo to refer the matter to trial noted on appeal against that order.

GROUNDS OF APPEAL

The learned Magistrate erred at law by referring the Application to trial when same was null and void abnitio

The learned Magistrate thus erred and exercised his discretion wrongly when he refused to dismiss the application.

Submission of the parties before the court.

Mr V. Chinzamba for the appellant submitted that where the claim is sounding in money a litigant should utilise a summon to get his or her relief. He cited the case of South West African Building Society v M. D. Coetzee he added that before bringing the application to court the respondent should have been aware that there were disputes of fact and as such had adopted a totally wrong procedure in initiating proceedings by way of an application. He prayed that the application should have been dismissed by the court a quo. He cited the matter of Room Hire Co. (Pvt) Ltd v Jeppe Street Mansions Ltd. He further submitted that this case is an authority that a court has discretion as to whether to dismiss an application where there are disputes of fact which cannot be resolved on the papers. However where the litigant was quite aware of the disputes of facts the court must dismiss the application. To support this argument, Mr Chinzamba cited the case of Masukusa v National Foods Ltd and others.

Appellant contended that the application has material disputes of fact and the trial Magistrate erred and exercised his discretion wrongly when he declined to dismiss respondent’s application. He alluded to the matter of Masukusa (supra) as well as Williams v Williams and Others and submitted that this court has repeatedly dismissed matters brought before it by wrong procedure especially where the parties have been legally represented.

Mr Mungure for the respondent, submitted that the appellant and Binali Yard in opposing the respondent’s application in the court a quo made a bare denial and did not seriously oppose respondent’s application. He cited Supa Plant Invetments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132. 136 F-G where the court a quo established that there were material disputes of fact, it was further submitted by Mr Mungure, it wisely and judiciously exercised its discretion by referring the application for trial. Respondent averred that he could not have been aware of material disputes likely to arise since he denies knowledge of an agreement of sale entered between him and the appellant. Mr Mungure added that the appellant has failed to establish cogent grounds to be relied upon by a superior court to interfere with a decision of a lower court where the lower court had properly used its discretion in arriving at a decision. No gross misdirection by the court a quo has been established by the appellant in this appeal.

On the question of costs, Mr Mungure prays for costs at an attorney client scale because the appeal is frivolous and mischievous.

In response to the issue of costs Mr Chinzamba opposed costs at a punitive scale. He argued that it cannot be said that the appeal was frivolous, there is no basis established by the respondent to justify costs at a punitive scale. Appellant denies abuse of court process. He contends that his appeal is genuine and is based on real issues.

ISSUES FOR DETERMINATION

Whether the court a quo erred and exercised its discretion wrongly when it refused to dismiss the application where the application was null and void abinitio?

THE LAW

Order 22 r 5 of the Magistrates Court (Civil) Rules, 2019 SI 11 of 2019 provides as follows:

“Orders Court may make on application.

“5. After hearing the parties the court may

(a) refuse the application and give written reasons for its decision: or

(b) grant the order applied for or any variation thereof, giving written reasons for its decision: or (c) order that the issue shall be tried by way of action and give such directions as it thinks just to     enable such issue to be brought to trial and make such order as to costs as it thinks just.”

Where a party does proceed by way of a court application, the trial court will consider whether there is a dispute of fact but it will generally adopt a fairly robust approach to denials made by the respondent.

Where there is a dispute of fact the court may dismiss the application, order oral evidence or order the matter to stand over to trial with such orders as to pleadings as it sees fit.

APPLICATION OF LAW TO FACTS

The order under case number HMT 63/19 clearly directed the court a quo to hear the merits of the application then filed by the respondent. The order also directed the court to hear the appellants’ arguments before a decision could be made.

When the application was heard by the court a quo after remittal, the learned trial magistrate was convinced by the appellant that there were material disputes of facts which could only be resolved by the parties leading oral evidence. The court was guided by order 22, r 5 of the Magistrate’s court (Civil) Rules, 2019 which spells out the nature of orders the court dealing with an application can decide to do. The trial court decided to utilise order 22 rule 5(c) and referred the application to trial. The original application filed by the respondent was an exparte in terms of order 22 r 7 of the Magistrate Court (Civil) Rules, and it was not null and void abinitio as submitted by the appellant. The application was appropriately and properly issued by the clerk of court. The original order given by the court a quo in form of a provisional order was properly heard on the return day. Appellant did not attack the application before he was found to be in contempt of court. He challenged the propriety of the order on return date. I dismiss the appellant’s arguments that the application was null and void abinitio. That argument finds no favour with this court at all.

The appellant’s argument that the court a quo did not judiciously exercise its discretion is equally without merit. In the first place the court a quo complied with Order 22 of its rules, particularly r 5 (c) and further the learned magistrate followed the tenets of the law as highlighted in the case of Horizons Investments (Pvt) Ltd (supra). The law and the rules give the magistrate a wide discretion on what to do in the event that the court concludes that there are material disputes of facts. The law reposes on the magistrate a discretion when it uses the word “may” and if there are requirements proved by a respondent about the existence of material disputes of fact, the court may dismiss. The law does not say that once such material disputes of facts exist the court must dismiss the application. The court a quo in this matter decided to refer the matter to a full trial. I fail to see the misdirection on its part.

“It is settled that an appeal will not lightly interfere with the factual findings of a lower court. It will only interfere where the factual findings of a lower court are so grossly unreasonable that no sensible person applying his or her mind to the facts would have reached the same decision”

I am satisfied that the lower court properly exercised its discretion in referring the application to a trial and this court has no legal basis on appeal to interfere with that judicious exercise. That ground of appeal has no merit and it is dismissed.

COSTS

The close synthesis of facts of this appeal exhibits and illustrates a deliberate abuse of court process relating to appeals. The underlying law applicable to the discretion open to a Magistrates Court clearly shows that the appellant did not read the rules or well knowing the rules chose to file an appeal against a judicial officer’s judgment. The jurisprudence from the applicable common law to the same subject on applications is so glaring that if the appellant’s legal practitioners had responsibly taken the time to study the law, this appeal should not have been embarked on. I agree with respondent that the appeal is indeed frivolous and this court should show its displeasure by awarding costs on legal practitioner-client scale. In future this court will not hesitate to award such costs debonis propriis. Legal Practitioners should take heed of this warning to avoid unnecessary burden on their clients in form of their wasted costs.

Accordingly it is ordered as follows:

The appeal is dismissed in its entirely

The appellant to pay respondents’ costs on legal practitioner-client scale.

MWAYERA J agrees ___________

Mugadza Chinzamba & Partners, Appellant’s legal practitioners

Makombe & Associates, respondents’ legal practitioners